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Earl Baldwin of Bewdley: My Lords, I briefly support what the noble Viscount has said. I think we have had too much of a culture of secrecy in many government bodies through the years, and I think this amendment if passed, or something like it, would help to roll back that secrecy. I think there is importance in the use of the word “shall" in place of “may". I also support what the noble Viscount said that since one of the chief purposes of this Bill is to reassure the public it would be rather ironic if it was seen in any way on the face of the Bill to be tight-fisted over information. I think this raft of amendments deserves support.

Baroness Wilcox: I support Amendments Nos. 57 and 57A in the name of the noble Viscount, Lord Thurso, for two reasons. First, I am a great believer in public bodies operating as openly as possible, and secondly, there is an important job to do--as has already been expressed--in rebuilding public confidence in decision-making about food.

The separation of the agency from the Government is part of its openness. The transparency of information flowing from the agency and the Government, particularly on advice, will be crucial. There should be a presumption of openness. That means that everything should be open unless there is a good reason for it not to be. Like the noble Viscount, Lord Thurso, I do not think that the current wording--the use of the word “may" rather than “shall"-- shows a clear presumption in favour of openness. I therefore hope that the Minister will take this amendment on board.

Perhaps in her reply to the amendment the Minister could clarify how the food standards legislation will interact with the Government's proposed freedom of information legislation. There have been conflicting signals from different parts of the Government as to what legislation takes precedence as regards openness. For example, during the Committee stage of the Food Standards Bill in another place, the former Minister of State said that,

However, that contrasts with what emerged during oral evidence to the Public Administration Select Committee on 22nd June. The Home Secretary indicated that the Food Standards Bill would take precedence because its openness provisions are greater than those in the current draft freedom of information

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Bill. This point was made by the head of the Home Office's Freedom of Information Unit. I hear the Division Bells. Shall I stop and start all over again?

[The Sitting was suspended for a Division in the House from 6.38 to 6.50 p.m.]

The Deputy Chairman of Committees (Lord Lyell): I was harsh on the noble Baroness, Lady Wilcox, who was discussing Amendment No. 57.

Baroness Wilcox: That is very kind of the noble Lord. Perhaps I can go back to the beginning of the relevant paragraph. I was discussing how the food standards legislation would interact with the Government's proposed freedom of information legislation. There have been conflicting signals from different parts of the Government as to what legislation took precedence in the openness.

As I said, during the Committee stage of the Food Standards Bill, the former Minister of State said that,

    “the Bill will not be outwith freedom of information legislation".--[Official Report, Commons, Standing Committee B, 8/7/99; col. 242.]

However, that contrasts with what emerged during oral evidence to the Public Administration Select Committee. The Home Secretary indicated that the Food Standards Bill would take precedence because its openness provisions are greater than those in the current draft freedom of information Bill. This point was made by the head of the Home Office's Freedom of Information Unit, Lee Hughes, who said that,

    “where there is legislation governing openness, you will get the greatest amount, whether it is in specific legislation or in the freedom of information legislation. It will be the most that will be delivered".

Assuming we get the freedom of information legislation soon, two pieces of legislation will operate eventually. So perhaps the Minister could clarify how they will operate together and which legislation will have precedence.

Lord Mackay of Ardbrecknish: This group also contains Amendment No. 59 in the name of my noble friend Lady Byford.

I should like to say a few words about that amendment and about the amendment moved by the noble Viscount, Lord Thurso. My noble friend's amendment makes clear that any information which is gained and published should exclude personal data. One of the problems of the concept of freedom of information is that the information may be about people, which quite frankly they have every right to think is private and personal to them. That problem has increased enormously with the advent of the computer, databanks and all the other things about which we know. I am fairly pessimistic about one's ability to keep one's personal data to oneself the moment they appear on any computer, no matter how secure anyone may tell me that computer is. I do not believe there is such a thing as a secure computer; I believe clever people can always find a way into it. It is an increasing problem.

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Here we have an agency which in the course of investigating a food processor, perhaps, may be digging and delving quite deeply, and may well find personal information. It may, for example, find the income tax details of the individuals who work in the company. I fully accept that it does not seem very relevant to the agency, but the danger is that it might in the course of its report feel obliged, if things are drawn too tightly, to reveal all the information it has discovered, and that might go much further than I suspect any of us would like. That is why my noble friend has suggested that the words “excluding personal data" should be added, to make clear that personal data, which are by definition relevant to the people employed in the factory, should not be made public.

Turning to the other amendments, I listened to the noble Lords who spoke to them and to my noble friend Lady Wilcox. I have some slight reservation which I should like to explain to the Committee. Many food processing plants do something to food which they think gives them a marked advantage over other people. There are many places that smoke salmon which believe they do so by some magical means which makes their product hugely better than everyone else's product. The same could be said about lots of other processes in the food industry. I can think of one very famous company which guards its recipes dearly, and would certainly not allow them to be known by anyone else. This agency may well have to obtain that information to work out what is happening inside a plant and how a product is created if it is looking at food standards in that product. I am quite sure the noble Viscount does not mean this, but quite clearly such information ought to be counted commercially confidential. I just have a slight reservation when I hear about openness and so forth. The noble Viscount wants to reassure me.

Viscount Thurso: I am grateful. I do not want to get into a debate with the noble Lord on the subject, but he missed a debate we had a little earlier on. If he would refer to Clause 14(8), it specifically makes the point. If my memory is right it is a crime for a trade secret to be divulged, so my comments in asking for openness were in the full knowledge that trade secrets were protected. I totally accept everything the noble Lord is saying with regard to the flavour of smoked salmon.

Lord Mackay of Ardbrecknish: I apologise for not being here earlier. I am being a bit of a butterfly in this Committee; I took down only a limited number of amendments and yesterday took part on the Floor of the House as well, so with that apology I fully appreciate therefore that the noble Viscount has taken on board my reservations. I shall not delay the Committee any further.

7 p.m.

Baroness Hayman: Perhaps a general apology ought to come from those who talk about smoked salmon at this time of the evening! This is an important group of amendments. I welcome the spirit in which the noble

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Viscount introduced it. It gives an opportunity to say something about the agency's power to publish information, which is an important tool in making this body open and transparent in its operations.

He is right in thinking that I shall not say that the amendments are necessarily completely technically deficient, but I do not believe that they are the right way to go about ensuring that the commitment the Government have to the food standards agency being an open and transparent body is fully realised.

We know--and the point has been made by Members of the Committee--that this openness and transparency will be an essential prerequisite in restoring consumer confidence in food safety and food standards. That is a point to which we have referred several times in our deliberations. Even without the food standards agency being in existence, we have done a great deal to open up to the public and to interested organisations the workings of committees in this area, by giving access to agendas of advisory committee meetings, the papers that are considered by the committees and the minutes of those meetings. I am looking at other ways. For example, the advisory committee on novel foods and processes could open up its procedures at an earlier stage and allow participation by members of the public.

Some of the advisory committees are holding open meetings. Next week I shall be chairing a meeting of the consumer panel advising MAFF where there have been 80 expressions of interest of members of the public in coming along to attend that meeting. We have every expectation that the agency will build on and develop such practices.

When I look at the amendments I have to advise the Committee that I do not believe it would be sensible to change the Bill in this way. Amendment No. 60 is consequential on Amendment No. 57, and similar issues arise in respect of Amendment No. 57A. They would remove from the agency its discretion to decide what information and advice it should publish. Giving the agency an automatic duty to publish everything--the transfer from “may" to “shall"--would not, we believe, be the most effective way of creating a body that is open and transparent in its operations and also has the trust of those with whom it deals.

Clause 19 currently gives the agency discretion to decide what information and advice it should publish. Clause 22 says that the agency must keep records of its decisions and of the information on which those decisions are based, and that these have themselves to be available to the general public. We believe that these two clauses already provide a sound legal framework for an open and transparent body.

Although the amendment does provide for confidentiality to be taken into account, the Bill already provides a very clear test which would require the agency to take account of considerations of confidentiality which must clearly outweigh the public interest before it prevents publication. I believe that the test is more heavily weighted in favour of publication than the confidentiality provision

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contained in the proposed amendment. Making a duty on the agency in the way suggested would be both burdensome and bureaucratic because the agency would then have to publish everything as a matter of course, much of which would be routine and trivial, but not perhaps open to the public interest defence as it is normally interpreted because a great many things might be of interest to the public in terms of invitations that were addressed to agency members, officials' advice on whether to accept or not, rumours and hearsay, the press cuttings that are considered and the responses to them. I fear that if all this material were put out, even in the information age, it would clog up the agency's web site and the public pressures with irrelevant and even incorrect material of no help or no use to consumers. Moreover, it would mean that the agency staff would spend all their time preparing material for publication rather than doing the real work of improving food standards. I suggest, therefore, that the agency should remain free to decide what information should be published in the public interest. The public interest test that we have provided adequately deals with any confidentiality issues.

Confidentiality leads me on to the point raised by the noble Lord, Lord Mackay of Ardbrecknish, when he spoke to Amendment No. 59. I agree with him that the agency's power to publish information and advice must not extend to personal data, but the Data Protection Act already protects personal information of that sort. Clause 19(2) specifically says that the agency may not publish anything that is prohibited by an enactment. It is therefore unnecessary to add those words since they are covered already by the prohibition which was referred to in the Data Protection Act.

I hope that that explanation of the way in which personal information, held or obtained by the agency, is already protected by the Bill as drafted, and the law as stated in the Data Protection Act, is reassuring to the noble Lord.

I have a great deal of sympathy with the intentions behind Amendment No. 60A. Let me say clearly and unequivocally that we have always said that the agency will operate openly and transparently, and the provisions of Clause 19 are designed to give a presumption in favour of openness. Equally, it was made clear that, where there are genuine grounds for confidentiality, information should not be published without first giving very careful consideration to whether or not that information should be released.

The provision in Clause 19(3) provides a test that the agency must carry out in deciding whether to publish any advice or information. That puts the emphasis on publication but, if there is strong interest in considerations of confidentiality which outweigh the public interest in the publication, that information might not be published. The judgment to be made against the presumption of openness is the agency's own--it has to decide where the balance lies. In doing so, however, it will clearly need to operate some general guidance, acting reasonably and proportionately, and taking legal advice.

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As the noble Lord, Lord Mackay, said on an earlier amendment, the devil is in the detail in all these things. I would certainly support the idea that that general guidance governing the operation of the agency's discretion in this area should be published. Indeed, I believe that the general duty on the agency under Clause 22 to operate transparently, so that the public can make informed decisions about the way in which it is carrying out its functions, would oblige the agency to put into the public domain the principles it is following in deciding what advice and information to publish. I therefore believe that this amendment is technically unnecessary and that the spirit it is trying to embody is already covered in the provisions of the Bill.

As has been pointed out, the agency will clearly need to take account of new developments including, for example, the new freedom of information Act, if Parliament approves it, together with existing legislation such as the Data Protection Act and existing guidance. The agency will, of course, be expected to go considerably further than much existing practice in terms of openness, bearing in mind the provisions we have made in this Bill.

If we look at the way in which we have been developing these areas, the extension of openness--for which we are not always thanked--is already going on. The use and publication of brand names in the results of surveys has been controversial in some areas, but it is very much welcomed by consumers because it gives them the sort of information that they want.

The noble Baroness, Lady Wilcox, asked specifically about the draft freedom of information Bill and the differences as perceived between that Bill and the general presumption of openness--as I described it--in this Bill.

It is easier to understand this if we think in terms of the proactive duties on publication of information that are put on the agency under this Bill and the reactive duties that are put generally on government organisations by freedom of information legislation. The proactive duties on publication are certainly much wider in this Bill than necessarily the draft freedom of information Bill at the moment. Those duties, as contained in this Bill, will govern the function of the agency in carrying out its work.

Perhaps I may give an example that will make it easier to understand. Let us assume that an individual asks for a piece of information from the agency. It may well be that, when looking only at the freedom of information Bill provisions, the power of discretion not to accede to that request would come into play. However, the agency will function under the legislation in which it is being set up; namely, a presumption of openness in its dealings. In asking what takes precedence, therefore, the agency will have to conduct itself on the broadest and most open principles that are set out within the legislation setting it up.

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