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Lord Norton of Louth: Perhaps I may add my support to my noble friend. I feel rather in the position of a student who comes in at the end of a class and says, "Well, everything I want to say has already been said." I fear I am also in grave danger of doing what the student then does; namely, repeat what has been said. I shall try to avoid that.
I have exactly the same feelings as my noble friend and the noble Lord, Lord Goodhart, about the clause, particularly in relation to the other provisions of the Bill and trying to work out what it covers that is not covered by other clauses. It is an extraordinarily broad provision to allow an authority to claim that virtually any aspect of its dealings with another administration is eligible for exemption.
I know the Minister will say that a public interest test will be applied. But why should one have to go through the process of applying a test? I cannot see what information should be exempt that is not covered by another clause in the Bill. The other clauses cover subjects that should be considered exhaustive in scope. This clause appears to be a sweeping-up operation to allow the bodies covered an opportunity to claim exemption for something they have not been able to withhold under another head. I do not see why that opportunity should exist. The clause is unnecessary. The Minister will have to come up with a compelling argument to explain why it should stay in.
Lord Hunt of Wirral: As the noble and learned Lord the Minister knows, an understanding of some of the complicated provisions to which my noble friend has just referred would be greatly helped by the Minister giving some specific examples. Several speakers have asked for that in seeking to discover the need for this clause. As my noble friend said, on the face of it, the issue is covered in other parts of the Bill. Therefore, perhaps we can get down to some specific examples.
I cannot envisage at the moment any situation where, say in the National Assembly for Wales, so far as its relationship with any other similar administration is concerned, any information which came to light concerning that administration would not be caught somewhere in the Bill. It may well be that the noble and learned Lord the Minister, as always, is exceedingly well briefed. So we await with great pleasure and anticipation the very detailed examples he is now going to give us.
Lord Falconer of Thoroton: Quite a build-up! I have been asked about the reason for having Clause 26 in the Bill. We take the view that disclosure which damages relations between the United Kingdom Government and the devolved Assemblies and Parliament is in principle bad. The balancing act under Clause 13 will have to be performed, but disclosure of information which damaged our relations with the Scottish Parliament and the Welsh and Northern Irish Assemblies would be detrimental. The provision is reflected in the freedom of information Acts of other countries; for example, Australia and Canada. In those countries there is a similar exemption in the federal statute concerning relations between the member states.
The noble Lord, Lord Goodhart, in my view wrongly, seeks to equate the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales with either a government department or a county council. With the greatest respect, if he seeks to equate them with those examples, he has not fully understood the purpose of devolution. As a matter of policy, we think it is an interest worth protecting.
The noble Lords, Lord Mackay of Ardbrecknish and Lord Hunt, asked for examples of where the exemption might apply where it is not covered by Clauses 33 or 34. I shall give two examples. First, let us suppose that there was kept in a government department a thumbnail sketch of the strengths and weaknesses of the individual members of an executive. That would not assist relations between the devolved Assembly or Parliament and the UK Government. It would not be caught by Clause 33 and it probably would not be caught by Clause 34. A second example might be comments within a government department on a devolved administration's policy proposals or Acts.
Lord Hunt of Wirral: I hope that the noble and learned Lord will forgive me but I am rather incredulous. No doubt he was well briefed before he said what he just said. What thumbnail sketches have the Government been accumulating of the leading personalities of the National Assembly for Wales? All those in the National Assembly would be intrigued to know. In particular, what is it within those thumbnail sketches that the public does not have a right to know?
Lord Falconer of Thoroton: I am not suggesting that there are such thumbnail sketches. The noble Lord asked for examples of particular areas that would not be covered by Clauses 33 or 34. Pictures of people or discussions of policy proposals of other administrations are examples of what would not be covered by Clauses 33 or 34.
Quite separately from those examples, it is right that in the Bill the exemptions are clearly targeted and defined. Yes, there should be catch-alls, but where there is an intention to have a particular exemption for a particular purpose, that should be spelt out in the Bill.
Lord Lester of Herne Hill: I am grateful to the noble and learned Lord. Clause 34 covers prejudice to the effective conduct of public affairs. It gives another exemption for information whose disclosure would be likely to prejudice,
Lord Falconer of Thoroton: The approach we have adopted in relation to exemptions is as follows. Where there is a particular interest that we regard as being sensible to protect by use of an exemption, that is then spelt out. Clause 34 is the catch-all clause. Its provisions lay down a test, not specifically targeted in the manner of the previous exemptions, but in place to catch those matters identified which would not be caught by any of the targeted exemptions.
The point raised by the noble Lord, Lord Lester, begs the question of whether we should include a catch-all clause under Clause 34. By virtue of his question, he appears to accept the principle underlying Clause 26. If, for the sake of argument, we assume that he has accepted the intention that lies behind that clause, then the correct course is to accept Clause 26, which is properly targeted. We can later debate the merits or otherwise of including a catch-all clause when we reach Clause 34.
Lord Goodhart: I apologise for again interrupting the noble and learned Lord. The example he gave of something that might appropriately be exempted under the provisions of Clause 26 was that of a dossier kept on, shall we say, leading Members of the Scottish Parliament. If the Government choose to keep dossiers on leading Members of the Scottish Parliament and, perhaps, on leading Members of the Opposition in Westminster, what is the justification for treating them differently?
Lord Falconer of Thoroton: So far as concerns dossiers or simple accounts of those working in the devolved assemblies, the production of such documents would prejudice relations with those administrations. If the noble Lord accepts the principle which underlies Clause 26, as do the Government, namely, that documents which might prejudice relations with the devolved assemblies should not be produced, that principle justifies the position in relation to Clause 26.
We regard relations between the United Kingdom Government and the devolved assemblies as worthy of special protection under the terms of the Freedom of Information Bill. The example cited by the noble Lord in relation to Westminster would not apply. There is no special interest that requires protection. What underlies Clause 26 is the belief that a special interest is entitled to protection, as provided for in both the Canadian and Australian Acts. One can agree or disagree about what is entitled to protection, but if one
Lord Norton of Louth: I am in some difficulty in trying to follow the line of argument here. The principle just enunciated by the Minister is that our administration should not produce anything that might cause harm. If the administration should not produce something, then it should not do it. I do not see how that can relate to disclosure. Furthermore, I do not see how the noble and learned Lord's example bears any weight. He needs to justify the principle that he is enunciating here, rather than taking it as being self evident.
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