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Lord Archer of Sandwell: Some noble Lords were somewhat starved of sleep last night. I do not think that I am firing on quite as many cylinders as has sometimes been known. For that reason, I hope that my noble and learned friend will forgive me if I read carefully what he said when introducing the new clause. Meanwhile, silence does not necessarily imply assent.

Perhaps my noble and learned friend can assist me with one matter. We now have an expression in the Bill which, if I am not mistaken, was not there before--that is, "absolute exemptions". I take it that the expression is intended to distinguish those exemptions from exemptions which are subject to either a harm test or a public interest test. However, I wonder whether they have any other significance--whether they are intended to have some other meaning or whether it is simply an attempt to add emphasis, like heavy breathing. Perhaps my noble and learned friend could elucidate on that when he replies.

5 p.m.

Lord Brennan: Before the Minister replies, perhaps I may invite him to deal with the practical application of subsection (1)(b) so far as concerns government employees and the public. The Committee has just listened to a classic example of the fear I expressed not more than half an hour ago that when you set lawyers onto this Bill they will have a field day. We have had one on this subsection, but that is not a proper state of affairs.

I anticipate a problem that, if the Bill becomes law in these terms, government civil servants will develop a frame of mind in which they think information can be withheld unless the applicant can convince the commissioner that the public interest outweighs the government interest. Much more importantly, the ordinary citizen who makes an application and is put in contact with the information commissioner will want to know the substance of that upon which he is about to embark. Will he be told, "It is for you to show the commissioner that your interests and those of the public outweigh the interests of the Government"? Or will he be told, "You cannot obtain disclosure unless you can convince the commissioner it is in the public interest"? That is an extremely important practical application of the Bill. It would be most unfortunate if the Bill came into legislative force without some practical direction being given to it in the way I have indicated.

Lord Mackay of Ardbrecknish: During the previous debate, the noble Lord, Lord Dubs--who is unfortunately not in his place and cannot accept my challenge--said that he wanted to know what he could say to his taxi driver tonight when explaining what the Bill was about. I would happily pay the noble Lord's taxi fare home if I could hear him explain this Bill to the taxi driver in a way that he could understand it.

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I am also reminded that when we were in government I had two namesakes--my noble and learned friends Lord Mackay of Clashfern and Lord Mackay of Drumadoon. I occasionally went to speaking engagements where it was perfectly clear to me that a good proportion of the audience had come along thinking that they were going to hear one or other of those learned gentlemen. I always said that I was sorry to disappoint them, but they knew that I came cheaper.

I hesitate to intervene in this debate between noble and learned Lords, whether they are technically learned in the phraseology of the House of Lords or learned because they are senior lawyers. I hope that not too many members of the public need to rely on the previous 39 minutes to work out whether or not they have rights under the Bill.

I have tabled Amendment No. 96, which covers, in a different way, the same ground as that covered by the amendments of the noble Lords, Lord Goodhart and Lord Lester, and of my noble friend Lord Lucas. They cover the whole question of the public interest test and the exemptions to it.

Moving the provisions of Clause 13 to the beginning of the Bill is a step in the right direction. It creates one point of access to the Bill instead of two. However, if I have understood much of the debate, the real point is that the Government have retained the provisions which exempt certain kinds of information from a public interest test as to whether or not it should be released.

We believe that, if we are going to have a freedom of information Act, as much information as possible should be released. It is right that a public interest test should be applied as to whether certain exempt kinds of information should be released. Amendment No. 96 takes us through the various sections originally contained in Clause 13 but which are now contained in government Amendment No. 9.

It is worth reminding the Committee of the absolute exemptions contained in the amendment. They will constitute a problem for an ordinary person, who will have to weave his way through the Bill to discover them. If ever a Bill needed to be written in plain English, it is this one--especially if it is to be used by plain people, like myself, who wish to understand the Bill and to obtain information from government departments without having to pay fees.

The first exemption is information which is accessible to the applicant by other means. One does not have to have worked very long in government with civil servants to know that that exemption could certainly be used to shut a good few doors once the clever people got at it. The next exemption concerns information relating to the work of bodies dealing with security. I understand the reason for that, although again that could cover a multitude of sins. Other exemptions include court records supplied to public authorities; information supplied subject to parliamentary privilege; and personal data--an extraordinarily complicated area that we shall go into

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later, in which we could find two well-meaning principles conflicting with each other. Further exemptions include information the disclosure of which would constitute an actionable breach of confidence; and information the disclosure of which is prohibited by statute, is incompatible with a Community obligation--I would not have thought that any information could be kept secret because it is inconsistent with a Community obligation, but never mind--and would involve contempt of court. Even I understand that one.

In addition, I have suggested--the noble and learned Lord has addressed this matter--that the public interest test relating to costs exceeding appropriate limits should be questioned. Government Amendment No. 90 may make that aspect of Amendment No. 96 unnecessary.

It seems to me that we should not exempt broad classes of information without a public interest test. I suspect that many people inside government will find Clause 13--which has now been moved to the beginning of the Bill by the noble and learned Lord--a mine where they can find excuses and reasons for not disclosing information. The people who have a close interest in this issue and have looked at it from a legal point of view are signalling the same kind of concern.

Once we see the new print of the Bill, with the noble and learned Lord's amendments in place and after we have had an opportunity to study what he said, we may well have a clear view of the Government's position. We may or may not like that and we may have to return to the issue. However, for the moment, I wish to lay Amendment No. 96 before the Committee as a suggestion for perhaps improving public access to information held by governments in the same way as other noble Lords who have spoken.

Lord Falconer of Thoroton: I agree entirely with the noble Lord, Lord Mackay of Ardbrecknish, that the Bill should be as clear as possible. We have sought to make it as clear as possible. I should emphasise that if noble Lords come forward with amendments designed to increase the clarity of the Bill, we shall certainly consider them. It is a difficult process to make the Bill as clear as possible because it is a Bill which will be used by citizens in exercising their rights to freedom of information.

Turning to the main points raised by Members of the Committee, the noble and learned Lord, Lord Archer of Sandwell, asked what is meant by an "absolute exemption". An "absolute exemption" means an exemption contained in new Clause 2(3)--that is, an exemption to which the public interest provisions do not apply. It has no meaning beyond that. It is simply a means of identifying which exemptions do not have the public interest test applied to them once it is established that the information is within the exemption.

In their separate amendments the noble Lords, Lord Mackay of Ardbrecknish and Lord Lucas, seek to remove all of those exemptions. In relation to the remarks of the noble Lord, Lord Mackay, in support

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of that aspect of the amendments, he began to indicate that there were some such as the security services that he might accept should be included. He did not seem to indicate that parliamentary privilege should be an absolute exemption. I am not sure what he was saying in relation to court records. Our point is that if it is a court record, surely the court should decide, not a public official.

In relation to personal information, the noble Lord said that the issue is very complicated. Indeed, it is. We are saying that there is a legal code dealing with personal information that has been enacted into law. We should stick with that. In relation to information supplied in confidence, that is not covered by a public interest disclosure test because material in confidence can be held back only if it can be established that the confidentiality outweighs the public interest in the first place--so one is effectively repeating the test that one has already applied to get the exemption in the first place.

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