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Lord Bach: The noble Lord cannot have been listening to my very reasonable arguments.

Lord Lucas: I was listening. However, I was not very impressed by them.

Lord Mackay of Ardbrecknish: This is the third Minister who has attempted to convince us. I shall

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resist the temptation to call a Division against him in order to have a full house. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 139 and 140 not moved.]

Clause 27 agreed to.

Clause 28 [Investigations and proceedings conducted by public authorities]:

Lord Archer of Sandwell moved Amendment No. 141:

    Page 15, line 5, leave out ("has at any time been") and insert ("is being").

The noble and learned Lord said: The noble Viscount, Lord Colville of Culross, in whose name this amendment stands, has asked me to say that he greatly regrets that he cannot be present--although he might perhaps have revised his view had he known the hour at which this debate was about to begin. However, he is unavoidably out of the country.

It may be for the convenience of the Committee if, with this amendment, we debate all the amendments up to and including Amendment No. 155.

At the outset, I echo the tribute which the noble Lord, Lord Goodhart, paid at an earlier stage in our debates to the Campaign for Freedom of Information. We have all benefited from what it has had to tell us and it has demonstrated to my satisfaction at least the value of the wide dissemination of information, even if it is information about freedom of information.

Clause 28 is about an exemption from the obligation to disclose; namely, information held by a public authority for the purpose of a wide range of investigations. They are investigations of precisely the kind where the public wants to know the facts because they relate to matters which concern the public. Indeed, that was often the whole reason why the investigation was embarked upon. One can think of a number of examples which I shall not quote in extenso at this hour--the Food Advisory Committee's inquiry into BSE, or the report which has just been handed in by the noble and learned Lord, Lord Phillips, inquiries into railway accidents which your Lordships were discussing earlier today, the falsification of nuclear quality control reports, inquiries into food poisoning, investigations into the Stephen Lawrence incident.

We are not discussing simply the contents of the reports. It is not merely those which the public may want to know about. The public are surely entitled to satisfy themselves that the investigations were adequately conducted, so they may need information about that too.

The number of public authorities which are caught by the clause are those set out in Schedule 1. Therefore, almost anything which bears on human activity may come within the subject which we are now debating.

The clause as at present drafted provides that information is exempt not merely when it is to be used for a prosecution or for disciplinary action but if it has ever been held by the authority at any time, even if the authority has decided not to prosecute or to take any

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action and even if the prosecution or the disciplinary action has taken place and there is no longer any further action which they might take. That surely is an extremely wide sector in terms of time--bordering, in fact, on eternity. Amendment No. 141 is intended to address that question.

There are other amendments in this group which go to the other question: that there is no harm test. This is a category exemption and the question of inquiring into the harm which may result simply does not arise.

My amendment goes a little further than some of the others because it seeks to provide that the harm should be substantial. The Committee has discussed that at some length. I doubt whether I should go to the head of the popularity stakes if I were once again to canvass all the arguments. I came prepared with a substantial number of quotations, most of which have been scooped by the noble Lord, Lord Mackay of Ardbrecknish.

However, I invite my noble and learned friend to have two matters in mind when, as I think he promised, he is considering this matter.

First, the Minister may wish to refer to the evidence given by our noble and learned friend Lord Williams of Mostyn to our Select Committee, where the matter was discussed at some length. So it has been discussed by all the authorities that the noble Lord quoted; it has been discussed by many more that we could cite tonight. To my knowledge--I stand to be corrected--it is the first time that I have heard the argument that my noble and learned friend addressed to us tonight. It was a persuasive argument. He certainly got me thinking and I promise to go away and think about it. As far as I am aware, it was invented at a late stage, because it was not used in any of the earlier discussions.

Is my noble and learned friend questioning what I say?

Lord Falconer of Thoroton: I cannot be sure of the argument to which my noble and learned friend is referring!

Lord Archer of Sandwell: If my noble and learned friend cannot remember his argument I shall try to refresh his memory. He said that it does not matter whether one uses the adjective "substantial" before "harm or prejudice" because it will all be subsumed when we come to the balancing stage. That is an argument that deserves reflection, but it is not an argument that I have heard previously.

Another matter I want to impress upon my noble and learned friend is that for some of us this was a great adventure. For years we have been waiting for the Freedom of Information Bill. At last, we have a Government who are committed to freedom of information. To their credit, they embarked upon the Freedom of Information Bill. After two evenings in Committee we have arrived at the most important matters at the heart of the Bill, a whole series of clauses relating to exemptions.

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It is such a pity that after the years of waiting, now that the Government have introduced the Bill they have somehow managed to give the impression that they wish they were somewhere else. On Tuesday, my noble and learned friend assured me that they really are enjoying the prospect of seeing the Bill on the statute book. I accept that, but why can they not show more conviction? When my noble and learned friend says that it depends on how it is said, that may be so and how it is said may be quite important, particularly in relation to the way that the Bill is received in the country. I beg to move.

10.30 p.m.

Lord Hunt of Wirral: I support the words used by the noble and learned Lord, Lord Archer of Sandwell. Like him, I pay tribute to the Campaign for Freedom of Information. Perhaps I may add my personal thanks to the Law Society which also is concerned about this unacceptably wide class exemption in Clause 28. Perhaps I may argue strongly that one of the reasons why I was always concerned about the introduction of legislation and why I played a part in the introduction of the code, is that I knew this situation would develop. I knew that as soon as one sought to put legislation on the statute book, one would run into a series of necessary--so it is argued--exemptions. Here we have a classic example in Clause 28.

If we are to see at least as much information disclosed under this Bill as under the code, I believe that this class exemption needs to be replaced by some kind of harm test, preferably one of prejudice or substantial prejudice. Like the noble and learned Lord I do not want to repeat the points debated earlier. I suppose it is possible to contemplate a class exemption that would be limited to the investigatory period. Certainly that would be the next best alternative to what is proposed.

Looking at Clause 28, I support this group of amendments because information is exempt regardless of whether its disclosure would prejudice, in any way, the investigation or the proceedings. It is very widely drawn. First, it will apply indiscriminately to all information held by a public authority appertaining to an investigation, whether or not a decision is made to prosecute. While general information about the conduct of investigations will probably be covered by the prejudice test in Clause 29, a great deal of information would fall within the ambit of Clause 28, including, for example, routine investigations.

Secondly, it will apply indefinitely to information held at any time, so that, even after a prosecution or after a decision is made not to bring charges, the exemption will remain. Thirdly, it applies not only to information held by the police and the other prosecuting authorities, it applies also to a range of safety, environmental and consumer protection agencies; for example, the Health and Safety Executive, the Environment Agency and the Civil Aviation Authority. Fourthly, at no stage would authorities have to confirm whether or not they hold

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any information which is requested. Those four reasons show that it is an exceedingly widely-drawn exemption.

The noble and learned Lord, Lord Archer of Sandwell, mentioned the Macpherson report on the death of Stephen Lawrence. It rejected the idea of class exemption unequivocally. The authors stated,

    "we see no logical grounds for a class exemption for the police in any area",

and went on to recommend that,

    "a Freedom of Information Act should apply to all areas of policing, both operational and administrative, subject only to the 'substantial harm test' for withholding disclosure".

I know those issues were covered earlier this evening. But I join with the noble and learned Lord in reminding the Committee of the Select Committee's view on the exemptions relating to investigations and prosecutions conducted by public authorities. I hope Members of the Committee will share with us our considerable concern about the way matters are proceeding.

Speaking for a moment as president of the group on occupational health and safety, I am particularly reminded of Jenny Bacon's comments when director of the Health and Safety Executive. She told the Public Accounts Committee in another place that she felt that,

    "in respect of health and safety matters a prejudice tested exemption would provide sufficient protection".

So it is pretty authoritative and I cannot quite yet understand why the Minister, in earlier sessions and in another place, indicated a refusal to consider these matters.

I do not want to go into all the different examples, but, looking for a moment just at police investigations, any information about the handling of any police investigation would be exempt. The police would not have to reveal, for instance, whether any suspects or witnesses were interviewed; whether any searches were ever carried out or on which premises; or whether information given to them was ever acted upon. When one looks back on some of the instances which have become so notorious in recent months and years, one really cannot support the idea that that should prevail.

Information accumulated in the course of investigating deaths in custody would be exempt. That would include information in all the old cases because of the way the clause is drafted where, for instance, disclosure of information might show a pattern of behaviour amounting to a systemic problem. This has caused Members of the Committee on all sides of the Committee considerable concern. It could also mean a denial of access to vital information about restraint techniques which, if revealed, could show a problem with training of police officers or prison officers. All those are important issues.

Again, referring back to a previous responsibility as Secretary of State for Wales, if there was a suspicion of abuse in a children's home or care home for adults, under Clause 28(3) a local authority would not even

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have to disclose whether there had been any investigation of allegations of abuse, let alone what the findings were.

I mentioned the Civil Aviation Authority, which is a public authority under Clause 28. The CAA has specific responsibility for air safety and must maintain high standards through its Safety Regulation Group. It would not be required to release information on, say, a near miss between planes in mid air, despite the serious consequences that such an incident could have.

One has only to think of the different problems which arise in relation to environmental incidents to recognise that the Environment Agency also comes within the scope and ambit of Clause 28. The agency works hard to prevent and alleviate pollution, and assesses, I understand, more than 32,000 pollution incidents reported each year. It goes without saying that just one of those incidents could be very serious indeed. The agency rightly aims to inform anyone who wants to know the outcome of an assessment, but surely the public would have more confidence that nothing was being covered up if they had the right to information.

I do not want to go back over the previous debate on Clause 13. However, the Minister may well ask, "Why are you worried, because Clause 13 provides a mechanism for the release of information in the public interest, particularly for investigations which are no longer live?". That may be an argument and I look forward to hearing the Minister's reply. However, it must be emphasised that there is no guarantee that the police or other authority will be willing to release statements and other documents in their possession. Indeed, such a widespread release seems unlikely. Again, I believe that public confidence would be restored only if people knew that they had the right to certain appropriate information.

I could speak for much longer on the examples and arguments but I hope that the noble and learned Lord will be able to reassure us tonight. The balancing act of Clause 13 may deliver the information requested on occasions, but surely if we are to support the Act, we should support it in the way in which we introduced the code, which is to create a new culture of openness. It was welcomed by the Government--then the opposition--in that spirit. So we welcome any move to further that new culture of openness, but I regret to inform the Committee that I believe that this clause is a step backwards.

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