| Previous Section | Index | Home Page |
', not later than the sixtieth working day following the date of receipt,'.--[Mr. Mike Hall.]
Clause 13
Dr. Tony Wright: I beg to move amendment No. 1, in page 7, line 13, leave out from "authority" to end of line 34 and insert--
'which is to any extent exempt or whose disclosure is not required by virtue of section 11.'.
Mr. Deputy Speaker: With this it will be convenient to discuss the following: Government amendments Nos. 46 and 47.
Amendment No. 2, in page 7, line 36, leave out from "whether" to "to" in line 37.
Amendment No. 3, in page 7, line 42, leave out from "whether" to first "to" in line 43.
Amendment No. 4, in page 8, line 2, leave out from "shall" to end of line 5 and insert--
Government amendments Nos. 49 to 51, 53, 72 and 73.
Amendment No. 41, in clause 75, page 37, line 21, at end insert--
Amendment No. 42, in page 37, line 26, at end insert--
Government amendments Nos. 74 and 75.
Dr. Wright:
Several times in our proceedings, the relevant Minister has said, "I am sure that there is not very much between us. We disagree only about the means; we are all together on the ends." It is pleasing to come to a part of the Bill about which there is genuine agreement. The Government have vastly improved clause 13. Indeed, by changing the clause, they have fundamentally rebalanced the Bill--not, unfortunately, entirely satisfactorily, but the changes to clause 13 are a good start.
I had intended to speak at some length, but I shall be brief because I suspect that the Home Secretary, who is now with us, will say something to us shortly about the connection between clause 13 revisions and new clause 6, which we shall discuss later. However, couple of points must be made. I have already welcomed the Government's amendment to the clause. They are moving from a discretion to a power for the Information Commissioner, and that is wholly positive.
We have tabled amendment No. 1 because clause 13 still exempts whole areas from the public interest test. Originally, the public interest test did not apply to six areas, and two more have been added to that list. Clause 19 exempts information that is already reasonably accessible to the public. Clause 21 exempts information supplied by bodies dealing with security matters and clause 30 exempts information supplied to a public authority by a court, tribunal or inquiry. Clause 32 exempts information that would infringe parliamentary privilege. Subsections (1) and 2) of clause 38 exempt personal data about the applicant and clause 39 exempts confidential information. Clause 42 exempts disclosures prohibited by statute, and clause 43(2) deals with information exempted by order.
It may seem necessary to exclude each of those areas from the Bill, but that is wrong for two reasons. It is wrong in principle because the public interest test should be universal. It is proper to have exemptions but it is also proper to have the public interest test apply across the board.
As I say, it is wrong in principle to take another category of material and to say that it is outside the public interest test altogether. It may seem an unexceptionable area, but it is not. If I had the time and inclination, I would bore the House with an explanation of why some of these things are more interesting than they seem.
I give simply a couple of examples. It might seem entirely sensible to remove the category of bodies dealing with security matters from any public interest consideration. The bodies that are listed include those with some security functions and other functions. For example, one of the bodies, the National Criminal Intelligence Service, has some security functions, but deals also with football hooliganism, credit card fraud and counterfeiting.
To make the point, I hope graphically, in the run-up to Christmas 1998, NCIS issued a press release warning shoppers about counterfeit toys, including fake Furbys. With the best will in the world, it is difficult to see why a whole spread of its activities should not be subject to a public interest test.
Similar considerations apply to clause 39. The legal obligation to confidentiality is said to be the reason for the exemption from a public interest test. That obligation has been thoroughly breached by the Government in relation to the Food Standards Act 1999, which gives the Food Standards Agency wide powers to obtain information about
The point is that, although it may seem straightforward to take those rather large categories of information away from the public interest test, it is indefensible to do so. The public interest test should be universal and go across the board. That is the thrust of amendment No. 1. The other amendments in our joint names, as we have got used to describing them, simply take away remaining discretionary elements from clause 3.
I say again that I very much welcome the Government's amendments in that area. We now have a rather different Bill. Unfortunately, the good things that are given in clause 13 are taken away in new clause 6. No doubt the Home Secretary will tell us about that, too.
The Secretary of State for the Home Department (Mr. Jack Straw):
I am grateful to my hon. Friend the Member for Cannock Chase (Dr. Wright) for the manner in which he has moved the amendment and particularly grateful for the endorsement that he has given. He and his colleagues must claim some credit for the fact that, as he says, the Bill has been vastly improved and fundamentally rebalanced.
My hon. Friend referred to remarks and proposed changes in respect of the basic scheme laid down in new clause 6, which I intend to bring to the House's notice in a moment, but first, as they are fresh in our minds, I shall deal briefly with the points that he raised on amendment No. 1 and describe how the basic scheme of the Bill works. Under clause 1, there is a statutory duty to disclose information. Under part II, there are a series of exemptions and exceptions. Some are class exemptions--for example, in respect of policy advice to Ministers--some are total exclusions, which, most notably, include the security and intelligence agencies, and there are others. Most are determined by a prejudice test.
The first and most important thing to say about that part of the scheme of the Bill is that where there is a dispute about whether information that is sought comes within the exemptions or exclusions under part II, the matter goes to the commissioner and--subject only to appeal to the tribunal and, in very limited circumstances, to a court--the commissioner's decision is final. Ministers have no discretion whatever--no veto, no override, nothing. If the commissioner orders a disclosure and says that the information is not exempt or excepted, it has to be disclosed. It is only when the commissioner or the tribunal have themselves said that information that is being sought is not required to be disclosed under clause 1 and part II that the question of the so-called discretionary disclosure under clause 13 kicks in. Amendment No. 1 relates to clause 13. I shall deal with the points made by my hon. Friend, but the background is important.
Originally under clause 13, we proposed that the commissioner would have a power to make a recommendation for disclosure, but not an ability to order it. The disclosure test, which is first on the public authority, is one of balancing the public interest in disclosure against the public interest in the information not being disclosed. As a result of many representations, not least those made on Second Reading by my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher) and many other hon. Members, I recognised the concern in the House about the fact that in the scheme of a statutory right to know it looked slightly odd that there should be provision only for the commissioner to make a recommendation. It was up to the public authority whether to accept it. Two objections were made to that: the first was that only a recommendation could be made and the second, which flowed from that fact, was that the level at which a decision would in practice be taken by the public authority as to whether to accept the recommendation might be quite low.
As a result of the representations, we have in many ways fundamentally changed the structure of clause 13, except in one respect. We have strengthened the tests--that is a matter for another debate in respect of factual information--but we have made it a duty, not a discretion, on the public authority to consider whether the public interest in disclosure outweighs the public interest in the matter not being disclosed. Where the public authority
decides that the balance of public interest is in favour of disclosure, it is under a duty to disclose. If it comes to a contrary view, the matter can go to the commissioner and he can order disclosure. That is the scheme of the Bill.
I shall come to whether there should be an Executive override, so-called, and at what level that should be raised, but before I do so let me come directly to the point made by my hon. Friend the Member for Cannock Chase in respect of amendment No. 1. As the House will see from subsection (2) of clause 13, those discretionary disclosures--which would be significantly changed by these amendments and new clause 6--cover every clause in part II, apart from those read out by my hon. Friend.
I understand my hon. Friend's concern and that any exemption might set off an amber light, if not a red one, for him. However, each exception to the disclosure regime in clause 13 has a straightforward explanation--one that I hope will meet the approbation of the House.
Under clause 19, if the information is already accessible through other means, the public authority should not be required to disclose it. For example, if people want information that is in the telephone book, they should go to British Telecom and not to a public authority. On the other hand, if the information is not reasonably available from the original source, but is available from a public authority, it would be possible--under further amendments that we are tabling--for someone to apply for it under the Bill.
My hon. Friend referred to provisions on information supplied by, or relating to, bodies dealing with security matters. He implied that he accepted that that was satisfactory in reference to the security and intelligence agencies per se, but that other bodies were included in the definition for the purposes of the measure. He mentioned specifically the National Criminal Intelligence Service.
'(a) inform the applicant whether it holds information, and
(b) communicate the information to him,'.
', or the information is information which could be communicated to the applicant in accordance with section 13'.
'or which could have been communicated to him in accordance with section 13'.
food premises, food businesses or commercial operations being carried out with respect to food.
In pursuit of its functions, which include providing information to the public to assist them making "informed decisions about food" it is free to publish
any information in its possession (whatever its source).
In doing so, the agency must
consider whether the public interest in the publication of the advice or information in question is outweighed by any considerations of confidentiality attaching to it.
Therefore, the legal obligation to confidentiality is expressly over-ridden in the Food Standards Act. I could go through--happily for everyone here, I shall not do so--the other provisions, which would demonstrate something similar.
| Next Section
| Index | Home Page |