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Mr. O'Brien: It is purely because, when there is an interest in the public knowing, the public will have a right to know. Where public health is seriously at risk and information is held by the Government, it is difficult to see, on any reading of the Bill, how it could be justified for a Minister to take the view that the public interest was in favour of secrecy, unless a criminal investigation were about to be undertaken, in which case the public interest would have to be weighed very carefully. In circumstances where there is a clear view that public health would be at risk--particularly in the sort of situation in which BSE arose--under the Bill, it would always be in the public interest for that information to be in the public domain. Therefore, it would be public and, under the Bill, it would not be possible for the concerns about secrecy that my hon. Friend mentioned to arise. Therefore, the measure would provide a protection.
Helen Jackson: Will my hon. Friend give way?
Mr. O'Brien: I shall not give way any more to my hon. Friend because I want to make progress.
Clause 28 currently provides that there is a class exemption for information whose disclosure would seriously undermine the effectiveness of both the police and the prosecution services. The class exemption is restricted to criminal proceedings and investigations by authorities into matters that may lead to a decision being taken by that authority to institute criminal proceedings, even if no such proceedings were eventually taken. Information that is the subject of the amendment could fall within that latter category.
Mr. Simon Hughes (Southwark, North and Bermondsey): Will the Minister give way?
Mr. O'Brien: I will not give way at the moment.
Any investigation is a serious matter. It makes no difference if a person is convicted of a serious offence such as manslaughter as a result of a criminal investigation--whether it be an investigation by the police, or by the Health and Safety Executive relating to a safety matter. The cause and effect are much the same. The result to the person involved is much the same. In many respects, the processes
are very similar. Therefore, we believe that it would be wrong to have a different procedure for one type of investigation as against another.8.45 pm
Both the Director General of the Serious Fraud Office and the Director of Public Prosecutions, on behalf of the Crown Prosecution Service, have made it clear that they would have serious concerns if a public interest test were replaced by a test obliging them to disclose and provide information that might lead to frustration of the process of justice and a situation in which those who are responsible for criminal offences cannot be convicted. We are concerned that, if the amendment were accepted, it would interfere with that process.
The Government believe that we cannot have less certainty in, or give less protection to, some proceedings simply because the prosecuting agency is one body rather than another, and that to do so would effectively be to say that one type of prosecution is more important than another. However, that is what the amendment seeks to achieve, by providing that certain information is subject to a different test because it has been collected as a result of a particular form of investigation. I have no doubt that the amendment was laudably intended. However, it would have the unintended consequence of making prosecution uncertain.
As I said to my hon. Friend the Member for Sheffield, Hillsborough (Helen Jackson), I believe that the public interest test will operate effectively to ensure that information cannot be withheld inappropriately. Clearly, the public interest in the disclosure of information on the discharge of dangerous waste into rivers and waterways or the results of traffic collisions will be high. Although it is right that public interest should be balanced against the need for a fair trial, the Government are satisfied that, in those types of circumstances, that is the correct test to apply.
Of course, the commissioner will also have an important enforcement role, to ensure that public authorities do not seek to hide behind the exemption at clause 28 by misapplying that public interest test.
I have some questions on the amendment for the hon. Member for Southwark, North and Bermondsey (Mr. Hughes). First, however, I shall give way, just once, to him.
Mr. Simon Hughes: I appreciate the points that the Minister is making. However, does he accept the argument that the clause is so widely drawn that it allows application of a general harm test that could be indefinite not only in time, but in extent? One day, there might be a prosecution of someone, but when or by whom would not necessarily ever have to be disclosed. The information could remain exempt effectively for ever.
Mr. O'Brien: No, I do not accept that. Each time an application is made, a judgment has to be made about where the public interest lies. If it eventually becomes clear that the information is not being used for the purposes of a prosecution and is unlikely to be so, at that point, the public interest clearly weighs in favour of disclosure. Therefore, I do not accept the hon. Gentleman's point.
My real concern is that amendment (a) takes us too far. I have some questions about how it would work. For example, how would it prevent a company that is the subject of an inquiry finding out the name of a whistleblower employee who communicated information confidentially to the inquiry? The amendment applies to all of clause 28 and would damage protection for whistleblowers. There is sometimes a public interest in not revealing the identity of a whistleblower for a time or in withholding some information provided by a whistleblower.
On my reading of the prejudice test that the hon. Member for Southwark, North and Bermondsey seeks to include in the Bill, it would not only allow a company, for example, to discover information about the identity of an informer or information given in confidence to an inquiry, but might enable a potential defendant who was the subject of an inquiry into a health and safety issue to force early disclosure of information before a decision on prosecution was taken, perhaps deliberately prejudicing the outcome of a prosecution. Like the hon. Gentleman, I am a lawyer. One can imagine ways in which such information might be used by some lawyers on behalf of potential defendants to ensure early disclosure of information, although disclosure might not be in the public interest.
How would such a provision apply in relation to the Marchioness inquiry, for example? No prosecution is likely to be pending until the end of an inquiry, which could take a considerable time. Under a prejudice test, information could be made public before the conclusion of the inquiry, either in a selective way, to suggest that some people are more culpable than others, or so as to force disclosure that might, whether deliberately or inadvertently, prejudice a fair trial and prevent the conviction of a criminal who might otherwise be convicted.
Under a prejudice test, an inquiry would not be obliged to consider the public interest in disclosing information, as we would advocate, but would have to disclose the information unless there was a pending prosecution that would there and then be prejudiced. That would produce uncertainty and might mean that evidence might not be disclosed to the inquiry for fear that it might be prematurely disclosed under FOI. In other words, it might lead to greater secrecy where we want greater openness. A prejudice test is not in the public interest, whereas a public interest test is.
The hon. Member for Surrey Heath (Mr. Hawkins) asked whether there were more exemptions in the Bill than in the White Paper. There are, because we have extended the Bill's scope to include Parliament, which will, quite properly, want some matters, particularly privilege, to remain exempt. The number of exemptions is not greater in any other respect, but there are more clauses in the Bill because of the way in which the White Paper was worded. The hon. Gentleman's view is erroneous.
Mr. Nick Hawkins (Surrey Heath): The official Opposition disagree with Lords amendments Nos. 12 and 13. We want to require that all requests for information be dealt with promptly, no later than 20 working days after they are made. The extended response times on "public interest" in clause 10(3) and (1) would be deleted.
In the earlier guillotine debate, reference was made to the squalid deal done by Liberal Democrat peers with the Labour Government. We understand that it was done behind the backs of Liberal Democrat Members in this Chamber. The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) is well known for his sophistry, but he will have to excel himself to explain why his colleagues in another place stitched him up. They went behind not only his back but that of the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), who was described in the Financial Times as absolutely livid. I hear that the hon. Member for Portsmouth, South (Mr. Hancock) was also described as very angry.
Conservative Members know that the Liberal Democrats have always said one thing in one constituency where they think it will please the electorate and diametrically the opposite in the seat next door, but this is a completely new departure: we have never previously had Liberal Democrats daring to say one thing in this House and diametrically the opposite in another place.
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