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Lord Lucas: I thoroughly support the amendment. It seems to me crucially important that we should not have in the middle of the Bill an unlimited timescale which can be exploited by a department going backwards and forwards, trying to find ways in which not to disclose information, or simply taking its time when someone is waiting for information and has every reason to expect that it should be delivered promptly.
It is not at all clear to me who effectively will adjudicate the wording in Amendment No. 79:
- "until such time as is reasonable in the circumstances".
I also agree with the noble Lord, Lord McNally, when he says that there should be only one time limit. There is no reason why the two questions cannot be parallel-processed. If the Government are considering whether a particular piece of information is exempt, they can also consider the question of what would happen if it were exempt. Would there be an obvious public interest in disclosure? One does not have to wait for a decision on whether or not it is exempt in order to decide the second question. The two should be decided together.
The noble Lord produced the killing piece of information. Even under our present-day, reasonably relaxed arrangements, very few civil servants are properly trained in the use of the code. I believe that only 170-odd have attended the course on how to operate the code. There has not exactly been a major training scheme, but even civil servants operating on their native wit and knowledge have provided 96 per cent of answers to requests for information within the 20-day limit. When we have a fully trained, up-to-the-minute, computerised Civil Service, as the noble and learned Lord, Lord Falconer, promises us, I am certain that we shall be able to do better than that and that there will be no reason why the 20-day time limit should not cover both processes rather than just the one.
Lord Cope of Berkeley: I have much sympathy with these amendments. Amendment No. 80 in the name of my noble friend Lord Mackay, which leaves out subsection (3), is a provision that allows the Secretary of State to extend the 20 working days to 60 working days; that is to say, to extend it from four weeks to up to 12 weeks in particular cases.
We all know that public departments can take a long time to reply to letters. Professor C Northcote Parkinson, in his excellent advice which contained a great deal of truth among a great deal of humour, suggested that the proper way to deal with income tax inspectors was to send them a few queries, carefully targeted, so as to calculate how long it took them to reply. The size of the in-tray was measured in days. If one discovered that it took 30 days for a reply to be sent, one should write every 29 days to ensure that one's income tax file went to the bottom of the heap continually and never reached the top! That was one
way of pointing out that public officials can take a great deal of time to reply. In a case like that they should not be given too much leeway.The lengths of time are expressed in working days and the provision includes bank holidays in any part of the United Kingdom. It appears that in relation to this Bill, St Patrick's Day and other bank holidays that are observed in one part of the kingdom or another all count as non-working days throughout the public service. However, I support some of the thoughts behind these amendments.
10.30 p.m.
Lord Bach: I shall deal with Amendment No. 80 first, as it was the last one spoken to by the noble Lord, Lord Cope. I am afraid that the poor old Government cannot win. The Bill as drafted in Clause 9(3), which Amendment No. 80 seeks to delete, mentions a period,
- "not later than the sixtieth working day".
- "not later than the sixtieth working day following the date of receipt".
There has been plenty of consultation in relation to this Bill, as referred to earlier by the noble Lord, Lord Mackay of Ardbrecknish, but I wonder whether any consultation has taken place between the Conservative Front Bench in another place and the Conservative Front Bench in this place. It is a gentle point, but I believe it is a fair one to make in the circumstances.
The provision was amended in another place so as to limit the Secretary of State's power to extend the statutory time limit for compliance with a request. As now drafted, it provides that there should be an upper limit on the Secretary of State's powers to set a different time limit for compliance with an application. The provision in the Bill now reflects concerns expressed in another place that there should be a cap on the time limit which might be set by regulation under this provision. The Government have recognised and addressed those concerns.
We have no intention to extend the statutory time limit under the regulations, which will be made only in exceptional circumstances. Recognising other concerns expressed during Committee stage that the regulation-making power itself should be subject to close parliamentary scrutiny, regulations under subsection (3) are subject to affirmative resolution. We believe it is necessary for the Bill to retain the power for the Secretary of State to provide for circumstances under which time for compliance may be extended beyond the statutory period of 20 days set out in the legislation.
The Bill will apply to some 50,000 public authorities. The Government cannot say at this stage with any certainty that those authorities can, in all circumstances, realistically be expected to comply with all requests within the statutory time limit. If it should become apparent that there is a need to extend the time limit for compliance with requests the Government will be required to justify any proposals at the time. Any regulations laid before Parliament in relation to time for compliance will be subject to full scrutiny by both Houses of Parliament under the affirmative resolution procedure. For that reason, we cannot accept Amendment No. 80.
We believe that the more serious amendments are Amendment No. 77 and the consequential Amendment No. 100 tabled by the noble Lord, Lord McNally. Amendment No. 77 would bring public interest disclosures within the 20 working day period for compliance. At the moment that period applies only to the initial determination as to whether the authority is obliged to confirm or deny that information is held and to disclose non-exempt information. The Bill provides that public interest disclosure must be made within such time as is reasonable. As Amendment No. 100 is consequential I do not need to describe what it does.
Under Clause 9(1) an authority has up to 20 working days to comply with Clause 1(1). Where the information requested is in an exempt category, the new clause will require the authority to determine whether the public interest in disclosure outweighs the public interest in maintaining the exemption taking into account all the circumstances of the case. The new clause replaces most of the provisions of Clause 13, and the Government have signalled their intention to oppose that Clause 13 stand part of the Bill when the time comes.
There are two steps involved in determining whether otherwise exempt information should be disclosed in the public interest. In making such a decision an authority must already have determined that the information is exempt. While this decision must be made promptly, it is conceivable that such a decision can take the full 20 days allowed by Clause 9(1). I offer one possible example. Let us assume that a public authority receives a request for the disclosure of information that it holds which has come from a third party. That third party may have a legal interest in the decision on disclosure, perhaps because of the operation of the common law duty of confidentiality. Under the Bill it is for the public authority to decide whether to disclose all or some of the information, provided that there is an exemption on which it can rely and no overriding public interest.
The authority may think it right to consult the third party, or those to whom the information relates, or those likely to be affected by the disclosure. The Secretary of State's code of practice under Clause 44 will advise authorities to carry out such consultations. But the relevant interested parties may themselves be unavailable, or the consultation may raise an issue of public interest which the authority must weigh. The
amendment would, however, impose a 20 working day limit on such consideration which could leave no time for proper consideration of the public interest and any work that might be necessary if it decided that disclosure was appropriate.Moreover, disclosure in the public interest requires an authority to take all the circumstances of the case into account in balancing that interest. Such a decision may be more complex than the original decision as to whether the information is exempt and involve consultation within the authority as well as further consultation along the lines above with those who would be affected by any disclosure. Therefore, we have come to the conclusion that it is impossible to specify any time limit on the taking of such decisions because much will depend on the circumstances of each case. It is necessary, therefore, for the Bill to provide for a "reasonable" period.
The Government's amendments tabled for Clause 9 will introduce the "reasonable" period provision into that clause by virtue of new subsection (2). This is currently the effect of Clause 13, but, as the Committee knows well, the Government have tabled amendments to restructure the early part of the Bill which will have the effects of deleting Clause 13. New subsection (2A) of Clause 9 reinstates the necessary timing provisions for disclosure in the public interest.
The Government understand that if time is short, authorities may be more likely to withhold information than disclose it on the basis that where a matter is not properly considered, it is better to be safe than sorry. On the other hand, authorities may decide not to consult those affected by disclosure on the basis that that would take too long. We think we have the matter about right in that the Bill provides for a reasonable limit in order to ensure that decisions are taken soundly. To impose an unreasonable and even impractical time limit would inhibit the culture change that the Government are trying to achieve with the Bill.
We believe that the amendments, although well meant, would have the effect not only of disadvantaging authorities by imposing an impractical time limit on them but might also disadvantage applicants and others affected by disclosure by causing decisions on the public interest to be taken hastily.
"Oh", say those who are in favour of these amendments, "that is all very well, but this gives a green light to public authorities not responding". There is a sting in the tail. In order to prevent authorities from stalling, the commissioner has power to issue an enforcement notice under Clause 51(2) or, where she has received a complaint, a decision notice under Clause 49(4), requiring the authority to disclose information in the public interest within a time set out in the notice. That is a safeguard in the Bill against abuse of the lack of a specified deadline on public interest disclosures and should be put in the balance when the Committee decides whether our stance is sensible or not.
We fear that the amendments would result in ill-considered decisions by authorities and might work against the culture of openness that the Government
are attempting to achieve with this legislation. I hope that the noble Lord, Lord McNally, who moved Amendment No. 77, may think that there is something in what I have said and will withdraw his amendment.
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