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Lord Falconer of Thoroton: I do not know what the BSE inquiry report will say. Under the Bill, reports about BSE given to Ministers would be covered by the exemption under Clause 33, but it would then be for the Minister or the relevant public authority to decide whether the balance of public interest lay in disclosure or in maintaining the exemption. Ministers might get that wrong or right, depending on how it looked some years later with the benefit of hindsight, but it is worth emphasising that, if there was a harm test, it would still be for the public authority to ask itself whether producing the information caused harm. That is the choice. Under our approach there is no need to worry whether the information is fact or opinion. The relevant body simply looks to see whether the information is covered by the exemption and then applies the public interest test. That is a more straightforward and direct way of dealing with the problem.

That gives me an opportunity to deal with the three examples that the noble Lord, Lord Brennan, raised in his speech, which I omitted to deal with. He referred to meetings between the Chancellor and the Bank of England. They have been replaced by the Monetary Policy Committee, which does not involve the Chancellor, because the Bank of England is now responsible for interest rate policy. The publication of the minutes is provided by statute. There is also a provision for withholding any information if prejudice would be caused to certain matters.

Reports on safety matters would probably not be caught by Clause 33, because they would not be in relation to the formulation of policy. They would be dealt with elsewhere. The Food Standards Agency has

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published advice that it has given to Ministers from time to time. Under the Bill it might well be covered by an exemption, but, assuming that no other exemption applied, it would be for the agency to decide whether the Clause 13 balancing act should lead to publication.

Lord Goodhart: Before the noble and learned Lord sits down again, perhaps I may ask him a question. If the withholding of information that is exempt under Clause 33 causes no harm, then if disclosure of that information is sought, the withholding of the information would almost certainly fail the balancing test under the new Clause 2. In that case, what is the real objection to including a harm test in the exemption itself?

Lord Falconer of Thoroton: As presently drafted, Clause 33 provides certainty as to what is covered by the exemption in relation to the public interest that is dealt with by the balancing under Clause 13.

Lord Lucas: The Minister began his remarks by saying that he was aiming to create a culture of greater openness. He then ended by saying, "But not for us; only for the rest of the public service. We shall disclose rather less than we have to under the code at the moment". I do not believe that the rest of us consider that to be acceptable.

There are various ways to deal with the issue and we have discussed some of them before. Clearly, we must rebalance the public interest test so that it is not phrased as it is at present but so that the interest in withholding information outweighs the interest in releasing it. Under those circumstances, I believe that there is a strong argument for a duty to assist--which would also help in this matter--and, indeed, for a purpose clause.

However, I would much rather attack the problem at its root in this clause. There is a strong argument for a harm test. I believe that that returns us to the point where we should be, which is to make the individual official who is faced with making a decision under the Bill consider realistically whether there is an argument for withholding the information rather than to allow him to pass the buck downstream. As my noble friend Lord Norton of Louth said, downstream may be a long way--weeks or even months--during which time the buck may be passed, the whole matter may be diffused through the passage of time and government will be allowed time to fudge, time to change and time to make the matter irrelevant, rather than facing up to the need to be open at the moment that the decision is made. I believe that the Government must take their own medicine in this clause and I hope that the Minister will think again.

Lord Falconer of Thoroton: I apologise for interrupting, but I am not sure that I understand the point made by the noble Lord in relation to timing. An application for information under the Bill could be made at any time; for example, precisely at the time a decision was made in respect of which information was

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sought. That would require the relevant public authority or Minister to consider whether or not it was covered by an exemption and then, if it was covered by an exemption which was not an absolute exemption, including Clause 33, whether or not to exercise the discretion under what is now Clause 2. Therefore, I am not quite clear to what the noble Lord refers when he says that time can pass.

Lord Lucas: I hope that I understood my noble friend Lord Norton aright when I agreed with him that presently there is no time limit on consideration of the public interest test and that that can be spun out indefinitely under the terms of the Bill as it is now.

Lord Falconer of Thoroton: The public authority is obliged to consider the question of whether or not to exercise the discretion within a reasonable time. That can be policed by the information commissioner. The idea that that will lead, as the noble Lord, Lord Norton, said, to years going by is, with respect, fanciful.

Lord Mackay of Ardbrecknish: We have had an interesting start to this debate. I believe that I heard the noble Lord, Lord Brennan, asking the question: has the code worked? I believe that he meant: has it not worked, thus forcing government to divulge information that they would rather not have done? Perhaps I slightly misunderstood the nuance in his question. The Minister did not refer to that at all. I believe that the logic of the question raised by the noble Lord, Lord Brennan, was: if it has worked, why weaken it?

The Government must have started by considering that the code was all right and they wished to strengthen it. In the White Paper they envisaged something much closer to the code than the present Bill. The White Paper rejected a class exemption for policy material, stating that the Government were prepared to expose government information to FOI legislation at all levels. However, most exemptions were to be based on a test of whether disclosure would cause substantial harm. The case for a lower threshold in that area was accepted. Information about policy would be available subject to a test of simple harm; that is, would disclosure of the information cause harm?

The Government find themselves out of step with what is being proposed in Scotland, which I find interesting. I suppose one must add the caveat that in Scotland it is still just a White Paper. We have not yet seen a Scottish Bill. So maybe some pressure will be applied to the Scottish Executive from down here to ensure that it withdraws from its White Paper in the same way that the Government have withdrawn from theirs.

The noble and learned Lord, Lord Falconer, gives robust defences of his position. He started off by saying that the Government were in favour of increased openness. Does it not worry the noble and learned Lord that no one in the Committee seems to believe him? Members of the Committee, with one

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exception, seem to think that the Government are not going down the road of increased openness. As we contemplate what we should do to tackle this clause, and what amendments we should table on Report, perhaps the Minister might contemplate why he is not receiving support for what he believes to be increased openness and why he is being met with a mild degree of scepticism. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10 p.m.

Lord Falconer of Thoroton moved Amendment No. 168:

    Page 18, line 34, after ("department") insert ("or by the National Assembly for Wales").

On Question, amendment agreed to.

[Amendments Nos. 169 to 171 not moved.]

Lord Falconer of Thoroton moved Amendment No. 172:

    Page 18, line 40, at end insert--

("(1A) Once a decision as to government policy has been taken, any statistical information used to provide an informed background to the taking of the decision is not to be regarded--
(a) for the purposes of subsection (1)(a), as relating to the formulation or development of government policy, or
(b) for the purposes of subsection (1)(b), as relating to Ministerial communications.").

The noble and learned Lord said: The Government have listened to the points put forward concerning statistical information and have accepted that greater openness can be achieved in this area. Amendments have consequently been tabled to address that.

The net effect of Amendment No. 172 would be that such statistical information would then fall within the prejudice test exemption contained in Clause 34. Within Clause 34, there is provision that any information to which the clause applies is exempt information if, in the reasonable opinion of the relevant qualified person, its disclosure would, or would be likely to, prejudice the matters set out in subsection (2). However, Amendment No. 191 goes on to provide that the test in relation to statistical information would be a simple prejudice test. In other words, the amendment would remove the words,

    "in the reasonable opinion of a qualified person"

from the exercise of the exemption under Clause 34.

The amendment is necessary in order to ensure that the information commissioner is able to review a decision not to disclose statistical information taken by a public authority and is not simply limited to whether the qualified person has acted reasonably in determining not to release the statistical information. That underlines our commitment to openness and as such is surely to be welcomed by Members of the Committee.

Perhaps I may also reassure the Committee that in relation to statistical and other factual information which still falls within Clause 33 and that which falls within Clause 34, the public interest test will apply.

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Thus, any statistical or factual information which should be disclosed in the public interest will be disclosed under the Bill.

With the leave of the Committee, I shall not speak to the other amendments in this group, which are to be moved by other noble Lords, until noble Lords have spoken. I beg to move.

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