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Lord Lucas: I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendments Nos. 19 to 21, as amendments to Amendment No. 9, not moved.]

Lord Lucas moved, as an amendment to Amendment No. 9, Amendment No. 22:

    Line 32, leave out paragraph (g).

The noble Lord said: The Minister set out the position with great clarity. My question concerns the nature of the public interest test which would be applied in ordinary law were the matter to arise. The nature of that public interesttest is considerably narrower than the public interest test envisaged under the Bill. There is not equality. For instance, the common law test takes particular account of the identity of the person to whom the information is disclosed; and there are other aspects on which that test is different from the test provided in the Bill. I would prefer the test in the Bill to be applied rather than the common law test. I beg to move.

Lord Falconer of Thoroton: Clause 13 refers to a public interest in disclosing a particular fact. In relation to the common law test and confidentiality, the courts say that on the face of it someone has a right to keep that information confidential but ask, despite that confidentiality, whether there is a public interest in disclosing the information at large. I am sure that lawyers could fine tune the differences between the two tests but they are in substance sufficiently close. In order to establish whether the exemption applies, consideration must be given as to whether common law public interest applies. Having decided that it does not, it would be absurd to have to consider again a similar test under the current Clause 13. That does not seem sensible to us. That is why we have excluded the matter from Clause 2, which was Clause 13.

Lord Lucas: I thank the Minister for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas moved, as an amendment to Amendment No. 9, Amendment No. 23:

    Line 33, leave out paragraph (h).

The noble Lord said: The amendment is a more practical way of dealing with the problem of the complicated and dense repeals which would be required to get rid of the exemptions one by one. Exemptions have always proved somewhat hard to deal with. That takes up a great deal of official time. Consideration has to be undertaken in the absence of any set of facts which might illuminate whether or not a statutory restriction should be left. At the end of the day, the restrictions remain because it takes too much work to remove them.

A mechanism allowing them to be overridden if the circumstances of the case demanded it would be an easier approach. We could deal with the issue on a case

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by case basis without having to go into the restrictions on a lengthy and difficult process of legislation. I beg to move.

Lord Lester of Herne Hill: I do not support the amendment for reasons similar to those given in debate on an earlier amendment on judicial powers. The amendment seeks to override Community obligations or something forbidden under another statute or punishable as a contempt of court, treating the Freedom of Information Bill as trumping it. But that would not produce clarity but confusion.

I take the examples covered by Clause 42. There is already a fair recognition of the importance of free speech. For example, in Community law in the Community obligations the European Court of Justice would vindicate the right to free speech subject to necessary exceptions. The same applies to contempt of court. The Contempt of Court Act 1981 was introduced specifically to ensure that free speech was not trumped unnecessarily by fair trial; and the same as regards common law in relation to contempt. I cannot say the same as regards,

    "prohibited by or under any enactment".

However, under Section 3 the Human Rights Act would come to the rescue of that by re-reading an enactment in a way which was narrow if it unnecessarily interfered with free speech.

Therefore, safeguards are built in although one cannot read them on the face of the Bill. One probably has to be a lawyer to advise on the issue, which is a regrettable necessity for most people--if not for lawyers. I do not think that the lawyer problem would go away if the amendment were accepted by the Government.

Lord Falconer of Thoroton: Clause 42 identifies that there are other legal bars on disclosure. In effect, it states that they should survive. However, it is worth drawing attention to two matters in the Bill. First, Clause 74(1) states:

    "If, with respect to any enactment which prohibits the disclosure of information held by a public authority, it appears to the Secretary of State that by virtue of section 42(1)(a) the enactment is capable of preventing the disclosure of information under section 1 or 13, he may by order repeal or amend the enactment for the purpose of removing or relaxing the prohibition".

The Secretary of State has power to deal with the point on Clause 42(1)(a). He cannot deal with a Community obligation in that way. Nor can he deal with a contempt of court problem. It is right that he should not be able to do so by order. To some extent, the Bill gives some comfort on the point the noble Lord raises.

At present 400 bars would fall within Clause 42(1)(a). A review of the bars is ongoing. I hope that the Government will announce in due course possible candidates for amendments or repeal. I believe that we are dealing with the matter in a sensible way. I respectfully suggest that the noble Lord withdraws the amendment.

Lord Lucas: I am grateful for that explanation. I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

On Question, Amendment No. 9 agreed to.

[Amendment No. 24 not moved.]

Lord Lucas moved Amendment No. 25:

    After Clause 1, insert the following new clause--


(" . When a public authority has declined to disclose information, the public authority shall consider whether, by deletion or summarisation or otherwise, the relevant information may be rendered into a form where it is suitable for disclosure.").

The noble Lord said: When a public authority finds itself, for good reason, unable to disclose a whole set of information available to it, I should like to be sure that it has a positive duty to make as much as possible of that information available to the applicant; it might be by deletion. I understand that that is provided for in the structure of the Bill. I should be grateful for confirmation of that.

I am not sure that summarisation is covered. If I were to ask a school for its examination results, it might reasonably refuse to provide me with the full details because that would disclose the names of each person who had taken the examinations which was its private information. However, by an act of summarisation and deletion, the school could reach the point at which I could no longer identify that, or individual classes, although I could draw conclusions about the performance of individual teachers, which might also be thought to be undesirable. I seek a reassurance about the fact that the school will have a duty to do that and that it will not be able to hide behind the fact that some of the data, or a level of detail in the data, might reasonably be regarded as exempt information. I beg to move.

Lord Mackay of Ardbrecknish: My noble friend asks two interesting questions, one of which involves a large document, part of which was clearly exempt but other parts of which were not. As my noble friend said, it would be useful to have clarification about whether public authorities would be under an obligation to release those parts that were not caught by the Bill, although they would have to remove those parts that were caught by it.

My noble friend's second point may be more difficult to achieve, although if some records cannot be made public because of information in them--perhaps the names of the people involved--it is fair to ask whether there would be an obligation on authorities to produce a summary that excluded those names. The two interesting points that were raised by my noble friend need clarification.

Lord McNally: This may be an appropriate moment to recall the point that was raised by the noble and learned Lord, Lord Archer of Sandwell, and in the Select Committee, namely, that the Irish Government have invested much time and money preparing public servants and helping them to think constructively about how to make the Bill work. The amendment

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involves a classic case. If there had been proper training, requests that could be partially satisfied would be approached in that positive manner. Do the Government already have in mind a programme of training, such as that which was explained to us by the Irish commissioner? That programme has had an impact on the culture of the Irish public service and on its efforts to respond constructively to requests.

Lord Falconer of Thoroton: We have been discussing whether the Bill in effect permits partial disclosure. It will in fact require that when some of the information that is requested is exempt but other information is not. The right of access in Clause 1 involves information that is recorded in any form. That means that the right of access attaches to the content of documents or records rather than to the documents or records themselves. When a document contains a mixture of disclosable and non-disclosable information, the disclosable information must be communicated to the applicant.

On the point about summarisation, Clause 10 states that when applicants have a preference for one of certain specified means in which they wish the information to be communicated to them, the authority shall, so far as is reasonably practicable, give effect to that preference. The means specified involve copying of the information, inspection, or a digest or summary of the information. If the applicant requests a copy of the document that contains the information or to inspect the actual document, Clause 10 requires the authority to give effect to that preference so far as is reasonably practicable to do so. That includes "blanking out" information, such as names that cannot be disclosed. Similarly, if the applicant has requested a digest or summary of the information, the authority must also comply with that request, if it is reasonable to do so. I hope that that deals with the points that were raised by the noble Lords, Lord Lucas and Lord Mackay of Ardbrecknish.

Training, we accept, is vital. That is already in hand across government and in particular in the Home Office, which is responsible for the freedom of information provisions. The commissioner will have a role in disseminating advice on the Bill's operation. We fully expect the commissioner to provide training materials. Clause 45 contains obligations to produce codes of practice which, I believe, have already been made public. With regard to training--although this will apply to every public authority--the code of practice states:

    "All communications in writing to a public authority fall potentially within the scope of the Act if they seek information and must be dealt with in accordance with the provisions of the Act. It is therefore essential that everyone working in a public authority ... is familiar with the provisions of the Act, of the codes of practice issued under its provisions and any relevant guidance on good practice issued by the commissioner. Authorities should ensure that proper training is provided."

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The process has started, its importance is recognised and the commissioner will have a role to play. There is obviously a long way to go, but we fully recognise the importance of the process.

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