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Dr. Tony Wright: I shall say but a word on the amendments. The Minister argued against an omnibus harm test. We have heard that a lot during debates on these issues over the years. If we accept the logic of that argument, we could also say that there are areas in which it makes sense to say "substantial" and others in which it makes sense not to. That is the point about not having an omnibus test. That was precisely the argument used by the Select Committee on Public Administration when it examined the draft Bill. The Minister has argued that there is no need for an omnibus test. According to his argument, it should be possible to have a substantial test for those matters for which such a test would make sense. I am disappointed that the Government have not been minded to consider that.
9.15 pm
It is getting late and we are all tired; that inevitably influences our debate. I do not want to detain anyone, so I shall confine myself to amendment No. 39 to clause 28--the clause that deals with investigations. If the House were in more vigorous mood, it would be mightily exercised by this part of the Bill.
There is no question but that the blanket exemption for investigations has caused enormous disquiet among consumer organisations and those concerned with public safety. There seems no reason at all for it. I can only believe that, because the Government want to ensure that
the police and other organisations are covered, they have decided to extend the provision to all investigatory bodies. The effect will be to place all investigations carried out by them into the exempt category.
That is quite unnecessary. Jenny Bacon of the Health and Safety Commission expressed the same view in evidence to the Select Committee. She said that the commission's work did not need to be in that category, and that it needed no more than a prejudice test to safeguard those matters that needed to be safeguarded.
I wish that the Government had considered the matter more closely. The preposterous possibility arises that a trading standards inspector might visit a premises and give it a clean bill of health, but that that information could not be disclosed. That would be because, under the Bill, he would represent an investigatory body that has the power to conduct an investigation. That is a silly and unnecessary conclusion, and the clause should be qualified in the way suggested by the amendment.
If I were in a more vigorous mood, I would talk at greater length about these matters. However, I place on record my enormous disquiet about this proposal.
Mr. White:
The Government believe that open government consists of them releasing information under clause 13, but nothing demonstrates more clearly than clause 28 their unwillingness to accept that citizens have a right to demand that information for themselves. The Bill is supposed to ensure freedom of information, so it should give citizens the right to have access to the information that they want, once any prosecution is complete and the information has been released from sub judice requirements. The test should revolve around prejudice to an investigation, and I urge my hon. Friend the Minister to consider the amendment again.
Mr. Mike O'Brien:
Amendments Nos. 15 to 26 would all have a similar effect, so it is sensible for me to deal with them separately from amendment No. 39, which deals with a slightly different matter.
I well remember that the hon. Member for Somerton and Frome (Mr. Heath) and other hon. Members in the Committee discussed at some length--almost to the point of angels dancing on pins--the various meanings of words and how those meanings could be defined. I shall not burden the House with a dissertation on why we have chosen one word in preference to two.
However, my hon. Friend the Member for Cannock Chase (Dr. Wright) Chairs the Select Committee on Public Administration and I refer those hon. Members interested in this matter to the Committee's very well argued report on the draft Bill, volume 1 of which looked in some detail at the word "prejudice" and other harm tests in UK law. It is a valuable reference work on some of these issues--indeed, I used it in Committee.
Amendments Nos. 15 to 26 would change the harm test in the exemptions for defence, international relations, relations within the UK, the economy, law enforcement and audit functions, which at present include a test of prejudice, to include a test of "substantial prejudice".
As I have said in other contexts, it is difficult to place a specific meaning on the word "substantial" and to determine what practical effect this would have in the Bill. For example, if the term means "a great deal of" or "a lot of", the amendments would mean that information that
was deemed damaging to a lesser extent--that would involve some lesser prejudice--would have to be disclosed without the need to show that the public interest required that such damage be caused. That would not properly balance the public interest in disclosure with that of maintaining the exemption.
In addition, the qualification of the term is unnecessary. The Government have consistently stated their view that prejudice means prejudice that is
Moreover, we must not forget that the judgment of whether disclosure of information would be prejudicial to a given interest will not merely rest with the authorities. The commissioner and the tribunal will be required to consider individual cases that may be referred to them and may overturn the decision of the authority where they consider that the test is not met.
Amendment No. 39 would convert clause 28(1) into a prejudice-tested exemption. That would mean that the information held for the purposes of investigations into offences and any criminal proceedings that may flow from those would be exempt only where disclosure would be prejudicial to the investigation or proceedings.
The Government believe that the removal of a class exemption for such information would undermine the effectiveness of both the police and the prosecution services and that it is vital to retain the protection of a class exemption for that category of information.
The amendment would result in information about criminal investigations being released in advance of court proceedings, which would have a damaging effect on the case. The Government believe that it is essential to ensure that criminal proceedings are not jeopardised by the premature disclosure of information and that the criminal courts are preserved as the sole forum for determining guilt. Information which is, or may be, disclosed in court will continue to be placed in the public domain through that process.
The right hon. and hon. Members who tabled the amendment may say that surely a prejudice test would meet the concerns. We do not think so. First, in areas of criminal activity and individual liberty, one needs to be very wary of being too quick to assume that no prejudice would be caused. Introducing a prejudice test would lead to a search for demonstrable prejudice, with a real risk of injustices being caused or criminal activity being facilitated where such prejudice cannot immediately be pointed to.
Furthermore, it is right that the law enforcement agencies should not be subject to the commissioner's view of what would constitute prejudice in this field. The commissioner cannot be an expert in law and order and so must defer to the views of those agencies in this regard. Thus, to introduce a prejudice test would achieve little.
However, the clause as drafted will not prevent the disclosure of information about criminal investigations
where it is in the public interest for such disclosures to be made by virtue of clause 13. Public authorities will release such information when the public interest in releasing it outweighs the public interest in maintaining the exemption. Therefore, in our amendments, we have met some, if not all, the concerns of hon. Members. I should also make it clear that general information about the conduct of investigations, as opposed to the information relating to particular investigations, is covered not by the class exemption but by the prejudice tested exemption in clause 29.
It is essential that, for information held for the purposes of investigations or criminal proceedings, we retain the protection afforded by a class exemption. It is not appropriate to subject this category of information to a prejudice test, and the Government amendments to clause 13 will in any case ensure that, where there is an overriding public interest in the disclosure of the information, it will be released.
I therefore ask the hon. Member for Somerton and Frome to withdraw the amendment.
Mr. David Heath:
The Minister has simply repeated what he previously said about prejudice. I expected nothing else from him--he is being admirably consistent, and so am I. I still do not believe that the threshold is sufficiently high. We shall have to agree to differ, and see who rallies to our standards.
We have a very serious disagreement with the Government on amendment No. 39. I do not understand why the Minister suggests that it would lead to premature disclosure of information to the detriment of judicial proceedings. Clause 29 deals specifically with all the areas that would no longer be covered by the exemptions in clause 28. There is no circumstance in which that would not catch information that would prejudice, or would be likely to prejudice, the administration of justice, the prevention or detection of crime, or anything else about which the Minister is concerned. We share those concerns, of course, and would not have tabled an amendment if we believed that it was likely to do that.
We will seek the opinion of the House on this matter. If the opportunity arises, we should also like to seek the opinion of the House on amendment No. 39.
actual, real or of substance.
Prejudice is an ordinary word that is found without qualification in many pieces of legislation. It is a word that is familiar to the courts as well as to others involved with the day-to-day interpreting of legislation.
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