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Lord Falconer of Thoroton: The noble Lord is absolutely right. I assumed that the noble Lord, Lord Hunt, was thinking that perhaps public authorities might make a mistake from time to time. They might--but, assuming that they are addressing the matter in good faith, it will not be difficult to identify whether or not there is an arguable trade secret, confidence or contractual claim. The alternative of obliging them to consult everyone--which is the effect of the added clause proposed by the amendment--is not sensible.

I should make it clear--as the noble Lord, Lord Lester, did by his reading--that the consultation goes wider than simply cases where there is either a legal interest or the possibility of a legal interest. It also includes cases where the public authority thinks that the third party may have something to say that could be relevant to the question of disclosure, even where there is no legal interest.

That is a sensible process. It sets out what we believe to be good practice; it is practicable. I have no doubt that it is much more sensible to deal with this issue by way of a code of practice on the face of the Bill. It provides the degree of flexibility which is necessary in such a situation. I hope that in the light of my explanation the noble Lord will withdraw the amendment.

Lord Cope of Berkeley: It has been an interesting debate. However, this remains an important point to which we must clearly give further thought. We shall of course consider some of the points made by the noble Lord, Lord Brennan, in regard to dealing with trade secrets and so on, when we come to the amendments to Clause 41.

However, coming back to Amendment No. 70, as my noble friend Lord Hunt indicated in his usual polite manner, the drafting of the amendment is not something on which I am relying absolutely. Several points were made in the course of the discussion which indicated ways in which the drafting may be improved.

The nub of the question is whether it is correct that this matter--on which we are largely agreed--should be in a code of practice or in the Bill, drafted of course in an excellent manner. As we have discussed, there is a wide range of public authorities; there are several pages of bodies, some of which one does not normally think of as being part of government. These public authorities will not be legally bound to follow the code. They are supposed to follow the code of practice, but

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they are certainly not legally bound to. They might of course be bound by a contract they entered into with the third party concerned, but not all of them will be.

Not unexpectedly, it has emerged from the debate that the Government believe, as we do, that third parties who are directly affected should be consulted--particularly if there is a question of trade secrets, and so on--but they are prepared to put that provision only in the code of practice and not in the Bill. We shall reflect on the arguments that have been made--

Lord Lester of Herne Hill: I am grateful to the noble Lord. When the noble Lord reflects, will he take into account the fact that the code creates a legitimate expectation that it will be followed. If it were not followed by a public authority, there would be judicial review. So in that indirect way it becomes legally binding upon all public authorities.

Lord Cope of Berkeley : That is an additional point for us to consider. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Fees]:

9.45 p.m.

Lord Cope of Berkeley moved Amendment No. 71:

    Page 5, line 18, leave out ("may") and insert ("shall").

The noble Lord said: This amendment stands in the name of my noble friend Lord Mackay of Ardbrecknish. Various amendments are grouped with it for discussion. They all concern fees. Amendment No. 71 is not the most important amendment in the group, but it attempts to ensure that the Secretary of State will definitely make regulations regarding fees. I am in no great doubt that the Secretary of State will wish to make such regulations; however, we believe that it should be his legal duty to do so. Most of the amendments concern the detail of how the fees will work.

Amendment No. 72 attempts to create a presumption that there will not be a fee in most cases and allows for a fee to be charged only in prescribed cases so as to narrow the circumstances in which any fee is payable.

Amendment No. 73 seeks to place a limit of 10 per cent of the cost of complying with the request on the fee. That percentage is not plucked out of the air. It comes from no less a person than the Home Secretary, who suggested during the course of debate on the Bill in another place that a charge of up to 10 per cent of the cost of supplying the information might be appropriate.

Amendment No. 74 suggests that fees should be set at a sufficiently low level so as to facilitate access by the public. What we do not want--I am sure that there is no disagreement in this place about this--is public authorities trying to put people off using the Bill by charging large fees. This is another amendment where it would not be right to rely too much on the precise

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drafting of the matter, although I fancy that I shall have the support of most Members of the Committee in terms of the thought that lies behind it.

The other amendments standing in the name of my noble friend, Amendments Nos. 101 to 103, suggest that a fee may be charged only in prescribed cases; otherwise no fee is to be payable. All the amendments go to the same general point.

Amendment No. 85 relates to the refusal of requests. Requests can be refused if the cost of meeting them exceeds the appropriate limit. Ministers have set this at £500. We are all conscious of the answer to parliamentary Questions, that this would be beyond what is reasonable. We have all received answers of that character--and some of us have given such answers from time to time, just as Ministers do at present. So it is not a question of not appreciating what lies behind all this. Of course, it is entirely possible, indeed likely, that some people will ask for information which appears to be legally necessary but which will be impossibly expensive to provide. There may be a good deal of agreement around the Chamber on this point.

The question of fees is of great importance because we do not want public authorities, and the sort of bodies that will be covered by this legislation, to be burdened with huge costs on account of this so that it becomes quite out of proportion to the value. However, we do not want individuals to be put off using the powers that we are attempting to give them under this legislation by the fact that very large, disproportionate fees are being charged. In one way or another, all these amendments seek to achieve that aim. I beg to move.

Lord Lucas: I have two amendments in this group. The first is Amendment No. 84. However, as I rather prefer my noble friends' amendment, Amendment No. 85, I shall not cover it in what I have to say. Amendment No. 87 addresses a separate point; namely, the question of periodic requests. Let us suppose that I were to make a habit of asking the Department of Health every month to provide statistics of people who have died from variant CJD. It is, of course, something that the department already provides, but let us imagine that that was not the case. None the less, it would, to my mind, be a perfectly reasonable request to make.

There are pieces of information with which one wants to build up a periodic pattern as that information changes, and where it is necessary to make such a request. If we are to be faced under this legislation with the cost of complying with such a periodic request being aggregated to the point where it is no longer necessary for the local authority to provide the information because the appropriate limit has been exceeded, I believe that we would be looking in the wrong direction. There is provision in the Bill, as written, for this area to be governed by regulations. I should be content if the Minister could promise me

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what will be in those regulations to allow reasonable periodic requests for information, such as I have described, to be made.

Lord McNally: A number of words have been used over the past few hours to indicate how this Bill will be made to work--for example, "simplicity, good faith and common sense". What we are discussing now is another element; namely, cost. As the noble Lord, Lord Cope, said, if the means of gaining access to information were in any way to be a deterrent--if freedom of information was like the freedom to dine at the Ritz; in other words, you could get information if you could afford it--that would be against the spirit of what I hope we all intend to be a revolutionary Bill.

In their different ways, all these amendments seek reassurance on that point. There is no particular merit in picking them out separately, other than to mention the one that suggests that the actual cost of finding information should not be a final barrier in all cases. Indeed, there are occasions when the costs would justify acquiring the information, even if that process was expensive.

It has been suggested to us that in other freedom of information Acts there are forms of words that are not so open to using "costs" as an excuse for not providing such information. I take the point made by the noble Lord, Lord Cope. We have all noticed that certain Members in another place table so many Questions obsessively--thank God none of them ever sits on the Liberal Democrat Benches. Indeed, I cannot think of any who do.

Public authorities have to be protected against such practices. However, we must also ensure that neither initial access nor the response of prohibitive cost is used too easily or too lightly. I rose to speak to this group of amendments in order to hear the Minister's response to the whole approach of making sure that cost is not a deterrent to citizens seeking to use the Bill and to ensure that public authorities do not use it in too cavalier a manner so as not to co-operate with the Bill.

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