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Lord Lucas: I feel that the Government must offer more on this issue. We cannot have this unrestricted time limit without any mention in Amendment No. 79, which is where we find this wording, of any need to get a move on. Such a period as "reasonable in the circumstances" has a very relaxed feeling to it. There is no "as quickly as is reasonably possible"; there is no illustrative time limit.
The noble Lord, Lord McNally, mentioned the current rate of performance. In those circumstances, it would be quite reasonable to say that it should usually be done within the 20-day time limit allocated to deciding whether or not a decision is exempt, but can be stretched beyond that period. I understand the noble Lord's arguments but they apply to extreme cases. Yes, provision has to be made for extreme cases, but it must be quite clear that it is for extreme cases. There needs to be a yardstick in front of everyone, an expectation that things will be done quickly.
There is no indication of the point at which one might reasonably start to complain. There is no indication of whether--as I would hope--most things should happen within the original 20 days; whether we should expect an additional 20 days where this is concerned; or whether it should be an additional three months. We must have more clarity. It must be more easily operable by members of the public. Everyone must know what the expectations are. Yes, if we have to allow for exceptions, it must be made clear that those are exceptions and not allowed to become the rule.
Lord Bach: Before the noble Lord, Lord McNally, decides what to do with the amendment, perhaps I may say that there is a good deal in what the noble Lord, Lord Lucas, says with which we agree. In many cases we agree and trust that the two decisions will be made within the 20 working days. But we cannot accept that that will happen on every occasion; and it will not happen sometimes for good reason. In an earlier intervention the noble Lord asked who will adjudicate on "reasonable" time. The answer in the first instance is the commissioner. She will have the power to assess it, whether from a complaint or not from a complaint. Under Clause 49 she can require decisions to be made if she thinks that an authority is taking too long.
When the amendment was moved and noble Lords spoke in favour of it no mention was made of the commissioner's powers in this instance. She has a real power to make sure that public authorities do not abuse their position. Of course there is no specific time, but to say within a "reasonable" time is not as loose as the noble Lord indicates.
Lord McNally: I take on board what the Minister said about the commissioner's powers. They are to a certain extent stable-door-slamming powers and will become active only when abuses become apparent. We
are trying to make sure that abuses do not occur in the first place. There is a problem with reasonableness. The noble Lord will have heard of the visitor in the west of Ireland who asked a local whether there was anything in Gaelic equivalent to manana. He replied, "Nothing with that sense of urgency". Reasonableness quickly equates with manana unless there is a spur to action.At this stage we are willing to withdraw the amendment, but we shall certainly come back to the issue at a later stage. Whatever the Minister may say about other parts of the Bill, we feel that a "reasonable" period is open-ended and open to abuse. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton moved Amendment No. 79:
- Page 5, line 35, at end insert--
The noble and learned Lord said: I beg to move.
Lord Lucas: In view of what was said in reply to the immediately preceding group of amendments, I really urge the Government not to proceed with this amendment. The idea that we should allow this bottomless pit to be inserted into the time limits in the Bill is inappropriate. I hope that the Government will take the amendment away and think again.
Lord Falconer of Thoroton: We have already dealt with this point, both in what I said earlier and in what my noble friend Lord Bach has just said. I do not think that it would be at all sensible for us to go over the ground again. It is quite late at night as well--a quarter to eleven--to go through the same arguments. We all know where we stand in relation to the point. Of course we bear in mind what has been said, but the Government's position has been put.
On Question, Whether the said amendment (No. 79) shall be agreed to?
("(2A) If, and to the extent that--
(a) section 1(1)(a) would not apply but for paragraphs (a) and (b) of section (Effect of exemptions)(1), or
(b) section 1(1)(b) would not apply but for paragraphs (a) and (b) of section (Effect of exemptions)(2),
the public authority need not comply with section 1(1)(a) or (b) until such time as is reasonable in the circumstances; but this subsection does not affect the time by which any notice under section 15(1) must be given.").
10.45 p.m.
Alli, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Bragg, L.
Brennan, L.
Burlison, L.
Carter, L. [Teller]
Cocks of Hartcliffe, L.
Cohen of Pimlico, B.
Dean of Thornton-le-Fylde, B.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Harris of Haringey, L.
Harrison, L.
Hayman, B.
Hollis of Heigham, B.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Judd, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
Massey of Darwen, B.
Mitchell, L.
Parekh, L.
Rendell of Babergh, B.
Smith of Leigh, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Thornton, B.
Turnberg, L.
Watson of Invergowrie, L.
Whitaker, B.
Williams of Mostyn, L.
Woolmer of Leeds, L.
Attlee, E.
Cope of Berkeley, L.
Glentoran, L.
Henley, L. [Teller]
Lucas, L. [Teller]
Northbrook, L.
Northesk, E.
Norton of Louth, L.
Park of Monmouth, B.
Roberts of Conwy, L.
Shrewsbury, E.
Willoughby de Broke, L.
Resolved in the affirmative, and amendment agreed to accordingly.
10.50 p.m.
Clause 9, as amended, agreed to.
Clause 10 [Means by which communication to be made]:
Lord Lucas moved Amendment No. 82:
- Page 6, line 15, leave out from beginning to ("the") and insert ("a form specified by").
The amendments concern our Internet future and the way in which the Bill will operate. It will come into force at about the same time as our 2005 Internet government and it seems to me that we should draft the Bill with the requirements of that kind of medium and culture in mind.
Amendment No. 82 relates to the wording of Clause 10. At the moment, an applicant has a right to express a preference for a copy of the information in permanent form or in another form acceptable to him. I do not consider that wording to be clear enough. The amendment substitutes the words "a form specified by" the applicant.
If I wanted information in electronic form, as I would do, I should--we all should--be able to expect electronic information under an Internet government. I do not want to be fobbed off with a paper copy that I can make no good use of. It is quite reasonable to ask for the information in electronic form.
The public authority has to comply with such a request only "so far as reasonably practicable". If I ask for information in a form which is not practicable for the public authority, it does not have to comply with my request. But I should have a reasonable expectation that the information will be provided in the form specified by me if that is reasonably practicable. The amendment seeks to insert a better formulation of the duty which a public authority should be under.
Amendment No. 91 addresses the question of copyright, as do Amendments Nos. 104 and 125. If you acquire information in electronic form under the Freedom of Information Act, you will want to communicate that information. You will want to put it on your website and pass it on to other people. As currently practised by the Government, copyright is a considerable obstacle to that. It has been decaying slowly over the past few years, and this year we have at last the relinquishment of copyright in the schools performance tables by all four parts of the United Kingdom. It has been a long time in coming, but people are now free to reproduce, analyse and make use of that information on the Internet and to provide it in the way that they want to people interested in UK schools.
But this is a much more general problem. There is a great deal of information out there which is subject to Crown copyright merely because it is in a publication in some form or another. To try and impose that copyright in a web-based world is not sensible or feasible. Indeed, to tell someone, "Yes, you can have this information under the Freedom of Information Act but you cannot publish it"--which, in Internet terms, means you cannot tell anyone else about it because almost all Internet communication amounts to publishing--is a negation of what the Freedom of Information Act should be about.
The effect of Amendment No. 91 would allow public authorities to charge a fee where copyright is involved; Amendment No. 104 seeks to give the applicant the right to publish, subject to fees; and Amendment No. 125 concerns the effects of these various matters on Clause 19. It states that information is not reasonably available if it is not available in electronic form; and that information is not reasonably available if it is not free to be published on the Internet.
There may well be better ways of achieving these aims. It may be that this is an area which is still a matter of controversy within the Government. I hope that the Minister will be able to bring us up to date on the Government's thinking and perhaps give a reassurance that these are problems that the Government intend to address in the course of developing full electronic government by 2005. If that is the case, I hope that he will also be able to show us how these matters are dealt with in the wording of the Bill as drafted, so that when decisions are taken on this matter we shall not need to return to primary legislation but can deal with it in secondary legislation--if indeed any legislation is necessary. I beg to move.
11 p.m.
Lord Cope of Berkeley: I have sympathy with my noble friend's amendment, and also with the points that he makes about copyright. However, I rise to draw attention to Amendment No. 83, which specifies that Braille and large print can be used in responding to an applicant.
It is important that the Government should make clear their attitude to this. The amendment is not an absolute insistence on all information being available in Braille; it is governed by the later provision about being "reasonable in the circumstances". Nevertheless, the amendment draws attention to the needs of those who require information in Braille or large print. The amendment was tabled in order to draw out the Government's intentions.
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