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Lord Mackay of Ardbrecknish moved Amendment No. 126:

("(a) the information is held by the public authority and the public authority has made an irrevocable public commitment to publish the material and for the scheduled publication date to be within the next three months,").

The noble Lord said: Amendment No. 126 makes it clear that information intended for future publication is exempt information only if, in addition, the authority made a clear commitment to publish that information within three months. In other words, it is not good enough to say, "We are not going to tell you now because we may publish at some time in the future", when "some time" may be some distance away.

The amendment is being extremely generous when it mentions three months because, as Members of the Committee will be aware, in the passage of the Postal Services Bill, my noble friend Lady Miller of Hendon had a real struggle with the noble Lord, Lord Sainsbury, over a report from the Audit Commission. The noble Lord pretended, first, that it did not exist, and then that Ministers had not given any view when it

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was perfectly clear from the leaked document that the department had given a view. In fact, a Question was asked on that the other day.

It was entirely unsatisfactory that Parliament was being asked to consider a Bill when a report had been prepared about which everybody knew, but which the Government were trying to pretend they were keeping secret because they would publish it at some time in the future. In fact, that report was important to one of the principal issues in the Bill. The Audit Commission report was duly published. It said exactly what my noble friend said it would say. But the Bill had become an Act and therefore nothing could be done to change what was in it.

All that was extremely unsatisfactory. We must tie the Government down so that they cannot use the excuse that they intend to publish at some time in the future to prevent publication at a time when it would be of use to the public or, as was the case in relation to the Audit Commission's report, to Parliament itself. So we are being generous in suggesting three months. It is an important provision to impose on the Government to ensure that they do not use, "We are about to publish", as an excuse for not publishing in time. I am pleased to see that the noble Lords, Lord Goodhart and Lord Lester, have tabled an amendment of a similar nature. I beg to move.

Lord Goodhart: We tabled an amendment in a similar form, with one minor difference; but the principle of Amendment No. 126 seems to us to be absolutely right.

As Clause 20 stands, it would be possible for a government who received an extremely embarrassing report to say, "We intend to publish this report, but need to consider it and discuss further issues it raises. So the time is not right to publish it yet. It will be published "in due course". "In due course" may be after, for instance, a forthcoming general election.

It is wholly inappropriate to give any public authority--the Government or any other public authority; the report could affect local government, for instance--the power to delay open-endedly the publication of important information simply because they say that they intend to publish it at some undesignated future date.

The only difference between Amendments Nos. 126 and 127 is the term "irrevocable ... commitment". We felt that it was not practicable to include it. It is difficult to know what "irrevocable" means in this context and what sanctions could be enforced to deal with a commitment that was made in good faith and cannot in fact be complied with. One can imagine various scenarios; for example, a printing strike may make it impossible for a public authority to produce information within the three-month period. It is therefore pointless to include the word "irrevocable". But clearly an authority which gave a commitment to publish within three months and failed to do so without an obvious excuse would find itself in considerable trouble with the media and the public. That would probably be a sufficient sanction.

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That is an unimportant difference between the two amendments. We are four-square behind the noble Lord, Lord Mackay of Ardbrecknish, on the principle of Amendment No. 126.

Lord Norton of Louth: I rise to speak to Amendments Nos. 126 and 127. Two problems arise as the provision is presently drafted. One is the open-ended nature of when any publication would take place and the other the fact that there is no commitment to publication at a future time so long as an authority is of the view that it "may" publish at a future date. Both elements need to be constricted.

I see a potential problem with the amendments as tabled in relation to information that may be regularly published; for instance, an annual or six-monthly report. But the principle embodied in the amendments is absolutely sound. We should find some way of ring-fencing it or making it a requirement that there will be some specific time within which publication will occur, so that an authority cannot say, "We are minded to publish at a future date". That needs to be constrained. The amendments are clearly in the right direction and the Government should make some movement in their direction because, as the clause is presently drafted, it is clearly unacceptable.

Lord Bassam of Brighton: The Bill as it stands sensibly makes provision for information which a public authority intends to publish to be exempt from the duty to disclose under Clause 1(1). Unfortunately, the amendment limiting the exemption at Clause 20 would include information relating to projects or reports which it would be inappropriate to publish until after a certain time.

I should like to assist Members of the Committee by providing some examples. First, the Treasury holds information about the performance of different sectors of the economy and information about whether it intends to raise or lower taxes--important information. Such information has an effect on the United Kingdom economy and its release needs to be carefully managed. Secondly, there exist research projects, the findings of which it would be unreasonable, impractical and inappropriate to publish before the project has been completed. Some research projects could easily run for longer than three months, but under this exemption they would have to supply information on request before the project was completed, with the possible effect of nullifying the results of that project.

Clause 20 allows for those different examples and, combined with the proposed arrangements for the adoption of a publication scheme and the enforcement powers of the information commissioner, provides an effective exemption.

The clause as drafted provides an exemption from the duty to provide information where there is a present intention to publish and it is reasonable to withhold the information until publication. The applicant should be told of that intention and would be expected to await formal publication. The requirement of reasonableness, which is a fair test,

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effectively prevents this exemption being used simply as a device to avoid publishing something which might cause embarrassment to Ministers. In order for this requirement to be satisfied, there must be a clear commitment on the part of the authority to publish the information at some defined point in the future, as well as, by definition, a real reason for the withholding of the information.

Lord Goodhart: The Minister referred to some defined point in the future, but is it not the case that Clause 20 refers to,

    "publication ... at some future date (whether determined or not)"?

Lord Bassam of Brighton: I take the noble Lord's point, but there would come a stage where there would have to be a definite date for publication.

The information commissioner will be able to determine whether an authority has acted properly in applying this exemption, including forming her own view on whether the authority intends to publish the information and whether it is reasonable to expect the applicant to wait until then. We should not forget that the public interest test will also apply to information which is exempt by virtue of Clause 20. There can be no doubt, therefore, that the Bill as it stands will guarantee the disclosure of such information.

That is the way in which we see the scheme working. I hope that that explanation will have encouraged Members of the Committee, who undoubtedly have been moved by the right spirit in terms of the culture of the Bill, not to move their amendments.

Lord Goodhart: The examples which the Minister gave referred in particular to economic and fiscal policy in the Treasury. Would not that in any event be covered by the exemption under Clause 27? Is it not the case that anything which would be seriously damaging to the public interest would be covered by a different exemption?

Lord Bassam of Brighton: In many circumstances, yes, it would; nevertheless the example has some real application.

Lord Lucas: The Minister also gave research as an example. He may not be as familiar with the situation as I, but he may remember that it was a major problem in the early days of the BSE epidemic. The Government, particularly MAFF, chose to withhold a great deal of statistical information about the course of the epidemic because it was the subject of their own research and eventual publications, supposedly. The situation was not revealed until the mid-1990s when for the first time the information was given to outside bodies. We then began to see that using the same information it was possible to draw completely different conclusions from those drawn by the MAFF researchers.

That was one of the principal causes of the wrong decisions which the government then made. The information had been withheld by--had been kept

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within--the MAFF scientists as part of their research project rather than being allowed out into the wider world. The Minister should be very careful about saying that that is a precedent which this Government want to follow.

6.45 p.m.

Lord Bassam of Brighton: I certainly have not said that. Throughout the time of the previous government's problems with BSE, there was in place a toothless code of practice on freedom of information. It did not greatly help the public or the interests to which the public rightly looked to protect them.

I believe that had the current Bill then been an Act the public would have felt a greater measure of protection and would have had at least the confidence that a regime worked to produce the information.

The noble Lord referred to research in general. I ask him whether it would be in the public interest to produce research which was incomplete, not properly formed or formulated? Yesterday I answered a parliamentary Question about the research on cannabis and its possible medicinal uses. I am sure that early parts of the research could be forced into the public domain but should that be the right way of approaching an issue which must be properly science-led? My argument would finally come to the conclusion that it should not be.

We must tread very carefully in these areas. That is why I believe that the scheme we intend to operate, as set out in the legislation, is sensible, practicable and workable.

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