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Lord Lester of Herne Hill: I am grateful to the noble and learned Lord whose response I find extremely helpful. He persuades me that my proposed new clause may well be unnecessary. Perhaps the noble and learned Lord can assist on one matter. As the Law Lords have increasingly decided in recent cases that there is a constitutional right to freedom of expression, does the Minister accept that that must be treated with very great importance, subject only to necessary and proportionate exceptions? If that is accepted as a proper approach to the framework within which we look at this Bill, bearing in mind other fundamental rights to protect confidential information, personal privacy, the interests of good government and so on, that has a great bearing on my attitude to this matter.

Lord Falconer of Thoroton: I accept that there is a right to freedom of expression. Equally, I accept that there are other rights as the noble Lord indicates. It would be wrong for me to seek to define with any degree of precision the ambit of those rights, but of course I accept their existence.

If we emphasised specific purposes in a purpose clause as proposed it might backfire. For example, if business were to be inhibited from giving commercially sensitive information to the Government on the basis that it might be released under freedom of information, effective regulation of the financial sector, trade and commerce would be undermined. The public interest in FOI could, therefore, conflict with the public interest in regulation. In the light of what I have said, I ask the noble Lord to withdraw his amendment. I also ask the noble Lords, Lord Mackay of Ardbrecknish and Lord Lucas, to withdraw their amendments.

Lord Archer of Sandwell: Before my noble and learned friend sits down, is he able to tell the Committee what became of the report of the group chaired by my noble and learned friend Lord Williams of Mostyn?

Lord Falconer of Thoroton: If my noble and learned friend refers to the advisory group on openness, its report has been published and placed in the Library of the House of Commons by my right honourable friend the Home Secretary.

Lord Lucas: I am grateful to the Minister for that reply. We thoroughly understand each other's position. As we go through the Bill there will be an opportunity to determine whether in the end we agree with the noble and learned Lord or take the view that

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this matter should be pursued at Report stage. At this stage, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 and 3 not moved.]

Clause 1 [General right of access to information held by public authorities]:

Lord Falconer of Thoroton moved Amendment No. 4:

    Page 1, line 14, after ("sections") insert ("Effect of exemptions,").

The noble and learned Lord said: This group of amendments comprises Amendments Nos. 4, 5, 7 and 9. I believe that Amendments Nos. 10 to 23 were included in this group but the noble Lord, Lord Lucas, wants them to be de-grouped.

Lord Lucas: I am content if the noble and learned Lord chooses to cover the subject matter. At this stage I believe that Amendments Nos. 16 to 23 would be better debated singly, but it may be that the noble and learned Lord has such weighty opinions to deliver that I shall not find it necessary to move them. I do not discourage the noble and learned Lord from speaking to those amendments, but it is probable that I shall not refer to them.

Lord Falconer of Thoroton: The noble Lord's use of the word "weighty" perhaps overstates it. However, it may be convenient if I briefly set out the Government's view on the matter. The noble Lord can then take whatever course he believes convenient.

Lord Goodhart: I agree with the noble Lord, Lord Lucas. As Amendment No. 10 stands in our names, we are content that Amendments Nos. 10 to 15 should be taken together with the initial new clause amendment. We also prefer Amendments Nos. 16 to 23 to be taken separately.

Lord Falconer of Thoroton: It is probably convenient if I briefly set out our position. I shall proceed on the basis that noble Lords will want to return to it, unless by mistake, as it were, we have a complete debate at this stage. The other amendments in the group are Amendments Nos. 75, 79 92, 96, 97, 270, 292, 329, 340, 343, 348 and 358.

Lord Mackay of Ardbrecknish: The noble and learned Lord referred to Amendment No. 97 as forming part of this group. That amendment is grouped with Amendments Nos. 10 to 15.

Lord Falconer of Thoroton: Subject to the exclusion of Amendment No. 97 and Amendments Nos. 10 to 23 being effectively de-grouped, perhaps I may deal with the group of amendments that I have just described.

The Government have always been honest about the complexity of drafting freedom of information legislation. It involves a difficult balancing act between the citizen's right to know and the public interest in maintaining the right to confidentiality in appropriate

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circumstances. That difficult balancing act must be translated into legislative form. However, we also accept that as the drafting of this Bill has evolved in a number of respects it has lost its way in expressing the balance of those rights with adequate clarity. I am sure everyone accepts that clarity in this area is of great importance. That is particularly true of the provisions dealing with rights of access in Clauses 1 and 13. Therefore, I should like to speak to the following amendments which simplify the parts of the Bill which deal with the right of access. However, I stress that, save in one respect to which I shall refer, they do not alter the substantive effect of the Bill as far as concerns the right of access, except for some minor changes to which I shall come later.

The changes, which are intended simply to produce better drafting, include the omission of Clause 13(5) from the existing draft of the Bill. Clause 13(5) provides:

    "In making any decision under subsection (3) or (4) in a case where the information is exempt information by virtue of section 33(1)(a), the public authority shall, in particular, have regard to the public interest in communicating to the applicant factual information which has been used, or is intended to be used, to provide an informed background to decision-taking".

That provision was intended to underline the public interest in the disclosure of factual information which informed the taking of policy decisions. It has been deleted by these amendments. I believe that the Liberal Democrats have tabled a subsequent amendment in which they seek to delete it as part of a package of amendments which also amend Clause 33. While we do not accept the wider amendment of Clause 33, we have concluded that Clause 13(5) has been omitted in error.

The noble Lord, Lord Lucas, has tabled Amendment No. 14 which proposes to insert a similar provision. Therefore, although the provision is deleted from the draft that I am dealing with, when we reach Report stage we intend to insert a provision similar to that proposed in Amendment No. 14. Perhaps the Committee should read Hansard to pick up the beauty of all of that, but it is an important point to make at this stage.

I now describe the principal amendments which restructure and simplify the provisions of the Bill. As currently drafted, the general right of access in Clause 1 is separated from the provisions of Clause 13 which give a right of access where the public interest in disclosure outweighs the public interest in maintaining the exemption. These amendments bring the rights of access together at the head of the Bill. They express more clearly the effect of the exemptions in terms of public interest disclosure by distinguishing between the provisions in Part II which confer an absolute exemption, where the need to balance the public interest in disclosure against the public interest in maintaining the exemption does not arise, and other exemptions whose application must be balanced against the public interest in disclosure. This is preferable to the current drafting where the relation between the general right of access, the duty on

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authorities to disclose information in the public interest and the effect of the various exemptions is not clear.

Amendment No. 9 makes certain other changes in respect of the following provisions which do not confer an absolute exemption. Those changes are as follows. I shall deal first with Clause 34. Amendment No. 9 includes the exemption in Clause 34--that relating to the effective conduct of public affairs--in the list of absolute exemptions in so far as it relates to information held by either House of Parliament. This is not a change of policy, merely of approach. The Bill as it stands already excludes the operation of Clause 13 in relation to such information--that is Clause 13(7). However, it does so by reference to the issue of a certificate under Clause 34(6). This approach we believe confuses the issue of a certificate, which is purely an evidential issue, with the substantive question of whether the public interest test should be applied.

It is necessary to exclude the operation of the public interest test in relation to information held by Parliament and exempt by virtue of Clause 34 as, although disclosure of such information may not technically constitute a breach of parliamentary privilege, the effective conduct of Parliament is so closely connected with it that the same consideration applies. For example, something that might prejudice the conduct of parliamentary affairs but not be a breach of parliamentary privilege is advice from the Clerks of the House to the Speaker. Another example is advice from officials of the House to Members of the House. Neither of those would fall into the category of parliamentary privilege but disclosure under freedom of information could prejudice the affairs of Parliament. It is for Parliament alone to consider whether to disclose such information. That is the amendment to Clause 34.

I now turn to Clause 38. The approach in relation to Clause 38, to the limited extent I shall now set out, is a change of policy and a response to an issue raised in another place. In the Bill as currently drafted, disclosure to a "third party" of personal information could be prevented because of the data subject's right under Section 10 of the Data Protection Act 1998 to prevent processing--which in effect means disclosure--which was likely to cause him substantial damage or substantial distress. The public authority concerned would have no need to consider the public interest in disclosure because the public interest test in Clause 13 currently does not apply in such cases. Therefore, if one had a Section 10 Notice saying that disclosure of this information would cause a particular individual substantial damage or substantial distress, that is the end of it; you do not need to disclose it. That is what the present law prescribes.

Section 10 of the 1998 Act implements Article 14(a) of the 1995 EC Data Protection Directive. This Article requires, in certain specified circumstances, that the data subject be given the right to object at any time on compelling legitimate grounds relating to his particular situation to the processing of data relating

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to him, except where national legislation provides otherwise. If the objection is justified, the processing may no longer involve this data.

The Government have now reached the view that subjecting this right to the public interest test, in Clause 13 of the Bill as currently drafted, would be consistent with Article 14(a). The substitution of subsection 3(f) of the new clause in Amendment No. 9, for subsection (2)(e) of Clause 13, will mean that the disclosure to which the data subject objects under Section 10 of the 1998 Act, will nonetheless be made, where it is required in the public interest, provided that making it would not breach the data protection principles. So what one has now is that even though there is a Section 10 Notice saying that substantial distress or damage would be caused by disclosure, that does not any longer automatically mean no disclosure. The public authority has to balance that against the public interest in disclosure. So it is a step towards greater openness. Of course, the public authority's decision under the public interest test clause will be reviewable by the information commissioner. If she concludes that the information should be disclosed in the public interest, her decision is enforceable, subject to the provisions of Clause 52.

I now turn to Clause 43. Other amendments tabled in my name remove Clause 43 from the Bill. That is the power that would have allowed further exemptions to be made by order. That clause is going. That is a source of some pleasure to certain parts of the Committee. In anticipation of these amendments, Clause 43 has here been removed from the list of absolute exemptions in the new Clause 2.

The remainder of the Government's amendments are consequential on the restructuring of the provisions dealing with the right of access, and merely tidy up the rest of the Bill to reflect this restructuring.

Perhaps I may briefly touch on the other amendments tabled in the names of other Members of the Committee. Amendments Nos. 16 to 23--to which I shall return shortly--will require authorities to come to a decision on public interest disclosures for all exempt information. Amendment No. 96, tabled by the noble Lord, Lord Mackay of Ardbrecknish, also seeks to remove the list of absolute exemptions from the public interest test of the Bill. However, it also goes slightly further in so far as it seeks to include information which would be exempt under Clause 11--that is, exemption where cost of compliance exceeds certain limits--within the scope of the public interest test.

So far as concerns information exempt by virtue of Clause 11, it should be noted that nothing in the Bill actually precludes the disclosure of information by a public authority in response to a request, no matter what the cost of compliance with that request would be. Where an authority has the power to disclose information, it will have to consider disclosing this information. The Government expect such information to be released and so they have tabled a

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new Clause--Amendment No. 90--dealing with the issue of charging for such information. Therefore, Amendment No. 96 is unnecessary to that extent.

Amendments Nos. 16 to 23 deal with each of the absolute exemptions. Perhaps I may briefly say what the Government's case in relation to each of those is. The first of those is information under Clause 19; that is, information that is already accessible by other means. It would be a nonsense for authorities to have to provide information that would be reasonably accessible by other means. An example of that would be a request for a telephone directory. Authorities should not be obliged to have to consider whether to send an applicant a copy of a telephone directory. Clearly, the applicant can look at his own or approach British Telecom for one.

Alternatively, the authority may be obliged to provide the information under another regime. An illustration of that is the Local Government Act 1972. That Act requires local authorities to make certain information available, and so there is no need for the authority to consider disclosure under freedom of information. It is important to note that, under Clause 19, if the information is not reasonably accessible to the applicant, then the applicant may apply for it under FOI. Freedom of information will therefore operate as a "top up" to the other free-standing access regimes. The information commissioner will have the power to determine whether the information is in fact reasonably accessible to the applicant or not.

I turn now to Clause 13; that is, whether information supplied by or relating to bodies dealing with security matters should be an absolute exemption. As a matter of policy, the Government are committed to ensuring that the work of such bodies is not hampered by FOI. The Bill, therefore, excludes the bodies themselves. Moreover, because of the extremely sensitive nature of this information, disclosure of information related to the work of the bodies will also always be against the public interest. Therefore, if the information requested falls into this class, there should be no further need to consider whether or not to disclose it.

Court records are also excluded from what was Clause 13. Subject to the views of the Committee, that will be Clause 2. This is because the normal rules should apply to the release of court records, and when an applicant requires disclosure of information contained in them, it is for the courts to determine what should be made available.

For that reason, once an authority has established that the information falls into that class there is no reason for the authority to consider further whether or not to release it in the public interest. That is a matter for the courts to decide.

The next area where Clause 13, now Clause 2, does not apply concerns parliamentary privilege. This is for Parliament to decide, not public officials. Personal information is covered by Clause 38(1) and individuals have a right of access to information about them under the Data Protection Act. That Act sets out exhaustively the right to such information. There is no

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need to come to a further decision on the public interest in the disclosure of such information. Personal information about a third party is also outside the scope of the duty if its disclosure would contravene the data protection principles. Disclosure contrary to those principles would be contrary to EU law and the European convention and thus there is no room for a public interest test.

We also exclude from the new Clause 2 information supplied in confidence. The common law duty of confidence contains a public interest test, so that if the public interest requires that certain information should be disclosed a duty of confidence cannot attach to that information. In such a case the information would not be exempt and the information would be disclosable under Clause 1. There is therefore no need to apply the further public interest test. If a duty of confidence does arise it should not be put in doubt by the application of a further public interest test under what will become Clause 2.

Turning to Clause 42 and prohibitions on disclosure, where as a matter of law the authority may not disclose the information in question the Bill does not require its disclosure. The public interest in disclosing the information will already have been taken into account in establishing the prohibition, often by Parlament itself, and there is therefore no need for authorities to consider the question under FoI. However, the Government recognise that some statutary bars to the release of information have outlived their usefulness and therefore Clause 74 of the Bill provides a power to enable such bars to be amended or repealed to allow the information to be disclosed. A review of the 400 or so bars is currently ongoing, and the Government will in due course announce possible candidates for amendment or repeal.

I have already dealt with Clause 43(2), removing the power to increase exemptions. Amendment No. 20 seeks to remove Clause 34 to the extent that it refers to information held by the House of Commons or the House of Lords from the list of absolute exemptions. This is in response to the government amendment introducing Clause 34, to the extent that I mentioned, to the list of absolute exemptions. I have already set out why that aspect of the government amendment is necessary. I have gone very briefly through the reasons why each one is an absolute exemption. That touches on Amendments Nos. 16 to 23 and it is entirely in the hands of noble Lords who wish to put amendments as to whether to deal with them now or later.

Amendments Nos. 10 and 12 I will deal with when they have been raised. The same applies to Amendments Nos. 11 and 13 to 15. I think that is all I can usefully deal with at this stage. I beg to move.

4.45 p.m.

Lord Goodhart: I wish to speak to Amendments Nos. 10 and 12 as amendments to Amendment No. 9, moved by the noble and learned Lord. First, I should like to say that we welcome aspects of the new clause. We think that the new way in which the interface

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between freedon of information and data protection is to be handled is a significant improvement. There is one aspect, though, of the new clause as a replacement for Clause 13 which we believe to be an improvement but which the noble and learned Lord did not discuss. That is the question of the interaction between this new clause and Clause 49, which is the clause under which the information commissioner has power to make decisions.

Under Clause 13(3) and (4), it was for the public authority to decide whether in all the circumstances of the case information should or should not be disclosed or whether there should be confirmation or denial of its being withheld. Clause 13 (3) says:

    "Where the duty to confirm or deny does not arise but it appears to the public authority that, in all the circumstances of the case,"

and so on. It appeared to us, arguably, that the effect of those words was that in Clause 49 the role of the information commissioner would be purely one of judicial review; that is, of deciding whether there were effects on the basis of which a reasonable public authority could have come to that decision. As we understand it--and I should like to hear from the noble and learned Lord whether this is a correct conclusion--the new wording does not refer to the opinion of the public authority. It simply says that the question is whether, in all the circumstances of the case, the public interest in disclosing outweighs the public interest in maintaining the exclusion.

On that basis, it is our understanding that the test is an objective one and if the information commissioner comes to the conclusion on an application under Clause 49 that she would herself have come to a different conclusion, then she is entitled to substitute her own conclusion for that of the public authority, even if it could not be said that the decision of the public authority was irrational.

That seems to me a very important point because the public authority is obviously an interested party. It cannot be regarded as an independent or impartial tribunal. It is taking a decision which is subject to review by the information commissioner, and it is obviously correct that the information commissioner must, as the first independent reviewer of the position, be entitled to substitute her own decision for that of the public authority. That certainly is something that we regard as a major bonus of the new clause but in view of the fact that the noble and learned Lord did not mention it in his speech it concerns us whether that is in fact the intention of the Government. We would hope to be comforted in that respect by hearing that it was the intention.

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