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Lord Norton of Louth: I rise to reinforce the points made by my noble friend and the noble and learned Lord, Lord Archer of Sandwell. Rather like the noble and learned Lord, I am at a loss to understand why all the amendments under this clause have not been grouped together and why they have been disaggregated in this way. It strikes me that there is a clear and logical connection between them and, therefore, it would be appropriate to speak to them at the same time.

I wish to speak to Amendment No. 169. As the noble and learned Lord said, the present clause moves away from both the White Paper and the existing code of practice, which I understand has been working rather well. Therefore, can the Minister tell us to what extent the present clause is an improvement on the situation created under the code? In what way does the clause improve it? As I read it, the clause actually represents a step backwards from the code. Amendment No. 172, tabled in the name of the Minister, does not bring the situation up to the present level.

As far as I can see, the code appears to have worked reasonably well. However, if I am wrong, perhaps the Minister can explain in what way it is not working. As has been mentioned, this is a class exemption; the only test will be the public interest test. I should have thought that there is a particular problem here in that respect. If you raise that, it will take some time if you appeal the public interest test. Therefore, it may perhaps be some way down the road before you receive the information, by which time the decision may have been taken and the material will not be of as much use

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as it would have been if it had been available at the time it was researched. I cannot see how the clause represents an improvement; I believe that it represents a step backwards. I completely agree with what has been said by noble friend and the noble and learned Lord, Lord Archer of Sandwell.

Lord Goodhart: I shall speak very briefly on this issue. I support the remarks made by previous speakers. I, too, echo the words of the noble and learned Lord, Lord Archer, and the noble Lord, Lord Norton of Louth, that it would have been more appropriate to discuss all the amendments to Clause 33 together, because they make up a package. Indeed, I shall be brief on this group because I shall have rather more to say on the next group of amendments dealing with factual information.

It is quite clear that Clause 33 as it now stands is one of the most objectionable provisions left in the Bill. It plainly requires a harm test to make it acceptable, as well as other changes that we shall be considering shortly. It seems to me that this represents a step backwards, both from the code and from the White Paper. Therefore, I very much hope that the Government will see their way to changing their view on the subject of these amendments.

Lord Williamson of Horton: We are dealing here with a most important point, which deals specifically with the class exemption in Clause 33 for information held by a government department, if it relates to the formulation or the development of government policy. It cannot be disputed that this is a very wide exemption. Indeed, it has been described by the Campaign for Freedom of Information as, "a gigantic class exemption" because, as the Bill currently stands, it is not limited to Civil Service advice but covers all information relating to policy.

I understand that there is a safety valve in that under Clause 13(4)(b), the public authority will make the information available if it decides that the public interest, in disclosing the information, outweighs the public interest in maintaining the exemption in question. Clause 13(5) requires the public authority to,

    "have regard to the public interest in communicating to the applicant factual information which has been used, or is intended to be used, to provide an informed background to decision-taking".

I should like to see the class exemption in Clause 33 more restricted so that more information would be available to the public. I believe that my views are rather liberal and perhaps even more so than those of the Liberal Democrats, although my views are not more democratic. I do not wish to go into the general point about exemption as a whole. In such a contest between David and Goliath, Goliath is odds-on to win.

I return to the amendments themselves and follow the grouping, which has been the subject of some complaint. The exemption amendments deal with the harm or prejudice test. The question is whether or not we should have a harm test. We should have one. I believe that it can be operated successfully. Of the

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various amendments in the Marshalled List from the noble Lord, Lord Mackay of Ardbrecknish, I favour a harm test which relates to the phrase,

    "would, or would be likely to, prejudice".

I do not know how one would build that in from the present Amendment No. 170. I prefer that to the harm test which states that it,

    "would harm the frankness and candour of ... discussion".

I make that point because I believe that it would be easier to operate such a system if it were based on the word "prejudice" rather than on "frankness and candour" which seems to me to leave a certain amount of room for manoeuvre and which could be exploited in the use of that amended exemption.

Of the proposed amendments, I assume that they have been tabled on the same principle used in the football pools; namely, perm three of any four. I would perm them in favour of those which relate to the harm test based on prejudice in one way or another. I am sure that we shall return shortly to the other question as to whether there will be a specific arrangement for factual material, but I leave that to the second group of amendments.

9.30 p.m.

Lord Lucas: Surely this is the absolute heart of the Bill. Here we have a Government who say that they want much more openness in public affairs, but when we reach the part of the Bill where their own affairs are concerned, they are quite clearly determined to stay rooted to the spot and even to go backwards. It is all part of the code of practice, particularly the second paragraph, which is a wonderful piece of "Sir Humphreyism", expressing in every word the image of moving forward, but clearly remaining absolutely where the Government stand at the moment and putting off the possibility of any change into the far distant future.

If the Government wish to be taken seriously on this Bill and want the support of their own Back-Benchers, let alone that of Members of the Committee on these Benches, they must show that they are prepared to lead by example. We must have recognition by the Government that freedom of information means greater openness. In the operation of this part of the Bill, it must be clear that there is the prospect of getting better information, certainly information on which the Government are basing their decisions and government decisions generally.

It is a subject to which we shall return to as a House on Thursday when we debate the BSE report. We see from that the consequences of the Government remaining closed to the inspection of so much of their decision-making and the basis on which they made their decisions was not made available to the public. Ministers must have access to the information. Surely, they must see from that that it is essential for greater openness to flow from this Bill.

Certainly this Chamber understands that if we do nothing else with the Bill, that is what we must achieve. We must make government information more open and more available so that the decisions which

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government take are better informed and more accountable. There are, of course, various ways of doing this. It may be that a harm test in some form is part of it. It may be that the amendments we are to debate in the next group form part of it. But one way or another we must move; otherwise, we are leaving a Bill in which the lead horse is facing the wrong direction. That really will not do.

Lord Armstrong of Ilminster: I intervene only to say that I think that the clause as it stands is about as good as you can get it in this respect. I think that phrases such as,

    "harm the frankness and candour of internal discussion"

leave a great deal too much open to argument and doubt. I remain strongly of the view which I expressed before in debates on the Bill; namely, that it is not possible to conduct government business as it were in a goldfish bowl. Therefore I support the clause as drafted.

Lord Brennan: Many on this side of the Committee have approached the Bill in the hope that it would improve the level of public knowledge on matters concerning their health and safety. It is in that arena that I share the concern expressed by many of my noble friends about subsection (1)(a). If I understand it correctly, it means that there will be no right to know about the purely descriptive reports of existing practice, to find out about research reports or to gain access to evidence on health hazards and therefore no means of testing the validity of government and Civil Service conclusions on matters concerning the safety and health of the public. I invite the Minister either on this occasion or at Report stage to indicate in what regards the existing code under which these matters are open has not worked. If it has worked, why change it?

I invite the Government to note--furnished as I am with information provided by the Campaign for Freedom of Information--the paradoxes that are likely to arise under subsection (1)(a). The information I mentioned gives three examples which I believe merit debate in the Chamber. First, since the Government came to office they have continued to publish the minutes of monthly meetings between the Chancellor of the Exchequer and the Bank of England. One cannot imagine any more sensitive area of economic and financial information which is regularly dispersed to the public without apparent damage. The other day we discussed the potential differences that are likely to arise between the practice of this Chamber under this Bill and the practices in Scotland and Wales. I note that the Welsh Assembly publishes its cabinet minutes six weeks after the discussions take place without editing them. Has there been damage? If there has, let us know what it is. If there has not, why should subsection (1)(a) be so wide-ranging?

I return to my opening remarks on safety. The Food Standards Agency has been encouraged to publish its advice to Ministers and has been given express statutory authority to do so. That is to be commended. I suggest that the same spirit ought to influence government. If we should know the advice of the Food

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Standards Agency, why should we not know what the Government propose in response to that agency? On the issues of health and safety the Bill must be seen to serve a new purpose.

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