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Lord Goodhart: I am grateful to the noble and learned Lord. It is not just the question of applying the judicial review test. Surely it is the information commissioner who has to decide under the new Clause 2 what weight to give to the prejudice. It seems to me that it is simply going to cause confusion if she is not also the person who defines whether or not there is any prejudice.
Lord Falconer of Thoroton: She decides first of all, in relation to Clause 34, on a judicial review basis whether or not there is an exemption there at all. Once that is decided it is for the public authority to make its decision under what is now Clause 2, weighing Clause 34 matters against the public interest. That can then be tested before the information commissioner. She can replace the public authority's judgment with her judgment under Clause 2. I see no difficulty in that.
It is essential to have a provision relating to the reasonable opinion of a qualified person to ensure the proper protection of information relating to the effective conduct of public affairs. The information covered by Clause 34 is less sensitive than that covered by Clause 33, but it remains among the most sensitive that a public authority may hold. If public servants cannot be reassured that they may express views in confidence when providing advice, the Government believe that there could be an unwelcome deterioration in the quality of decision-taking in public sector bodies. Similar concerns arise in the context of other interests protected by the Clause 34 exemption.
Lord Goodhart: We are getting a bit technical here. It seems to me that the reasonable opinion of a qualified person applies only to whether there is prejudice. It may be that in the first instance the public authority concerned has to carry out the weighing exercise under Clause 2, but when the issue reaches the information commissioner, she cannot override the decision of the qualified person except on Wednesbury principles, but she can substitute her discretion for that of the public authority under Clause 2(1)(b). She will have to take the weighing decision on its merits, but she will not be able to take the decision on prejudice on its merits.
Lord Falconer of Thoroton: The information commissioner decides at stage one whether any reasonable qualified person could come to the conclusion that there was prejudice. She can intervene at that stage only on the judicial review basis. If she concludes that no reasonable qualified person could
Moving on to the discretion phase, if the public authority decides against disclosure, having balanced the reasons for the exemption against the public interest in disclosure under Clause 34, the information commissioner can form her own view. That is pretty clear.
Lord Archer of Sandwell: At the risk of being tiresome, it seems that the commissioner is being called on to carry out a curious intellectual exercise. She may decide that there is no prejudice, but cannot come to the conclusion that the decision that there is prejudice is Wednesbury unreasonable. In that case she has to assume that there is prejudice. She then has to decide afresh the weight of the prejudice. How can she do that as a separate intellectual exercise?
Lord Falconer of Thoroton: I do not see any difficulty in the information commissioner saying that the Minister was reasonable to conclude that there was prejudice, but then deciding that the information should be disclosed after weighing that prejudice against the public interest in discovering the facts.
Lord Lucas: Perhaps I should take the chance to move on to my amendments, which address how wide the ability to apply ones views to the prejudice should be and who should be granted the ability to put a block in the way of the information commissioner.
Perhaps I could start by saying that, if we have a proposal in the Bill such as that set out in Clause 34, why on earth should concern be expressed about having an ability to disclose factual and analytical information taken out of Clause 33? Surely there cannot be any question that disclosure of information which would cause damage in the way that the Government are worried about would fail to fall within Clause 34. Surely we do not need to block off that avenue twice.
I do not believe that the Minister addressed that question at all when we considered Clause 33. Now that we have reached Clause 34, perhaps he could revisit the question and provide examples of the type of factual or analytical information which, if not exempt under Clause 33, would fail to be exempt under Clause 34 if it caused harm to any processes of government. I cannot get my mind around what that might be and I see no reason to double up in this way.
Lord Falconer of Thoroton: First, Clause 34 applies to public authorities other than central government. Clause 33 applies only to central government. Secondly, an example which the noble Lord asks for in relation to Clause 34 might be where English Heritage
Lord Lucas: Yes, but what possible harm will that cause to the workings of government? The idea that that type of information could be considered for being hidden away by government under freedom of information legislation is quite extraordinary.
Lord Falconer of Thoroton: Whether the disclosure of that advice causes harm is the next question. If the owner of the property in question should gain access to that information before a decision was made, obviously he could take certain steps in relation to his property.
Lord Lucas: If that is the case, that is not a harm to the workings of government; it is a harm to the listed estate. Freedom of information implies changes in the way in which practices are carried out. Since this is information which indubitably falls under the rubric of being considered for future publication, it would be exempt within that.
Lord Lucas: However, it is being considered for future publication and that is all that is required under that clause of the Bill. I have listened to what the Minister has said and shall read it again in Hansard.
I return to the question of my amendments. I am concerned that not only is a wide range of people allowed to exercise this power, but the power can be extended almost ad infinitum by fiat of the Government. I believe that the clause should be extremely restricted in its activities. It should be restricted to officials or to people such as Ministers who are in direct contact with the public will. If one starts to allow that type of power to be exercised by local councils or by others who in ordinary experience have for years practised things that are considered to be disreputable because they are in no danger electorally, I believe that the whole operation of the Bill may be brought into disrepute. A great power is being bestowed upon officials under this clause. It must be restricted to those on whom the action of public will and public opinion is strong enough to prevent them from misusing the power.
Lord Falconer of Thoroton: The reason the list has been chosen is that the people identified in the list are those who hold the relevant information. That is why they have been chosen. Under the noble Lord's proposal, people other than those who hold the information would have to make the decision. We do not believe that that is the right approach. Those whom we have identified in the list are all people of considerable responsibility: Ministers of the Crown,
The noble Lord made two points. First, Clause 34 relates to the conduct of public affairs, not the workings of government. The conduct of public affairs would be affected detrimentally if, for example, people could obtain the information that I have referred to in relation to listing and use it in order to affect their own property rights.
Secondly, he referred to Clause 19: considered for publication. It is intended for future publication. That information would not necessarily be intended for future publication. That would depend on the conclusion of the Minister.
Lord Lucas: I find both those statements interesting. In the first, the noble and learned Lord contradicted what he had said earlier and said that a building being considered for listing would come under Clause 34. I had said that if it comes under Clause 34, what on earth is the need to protect it under Clause 33. The noble and learned Lord is being far too protective of information under Clause 33. Anything which is likely to cause disruption to government is already protected under Clause 34.
I am particularly concerned about subsection (n) which allows any public authority to be added willy nilly to this clause and certainly could include local education authorities or, indeed, the very smallest of the public authorities listed in the Bill. As far as I can see, there is no limitation on how far this power can be extended under that subsection. If nothing else, given the Minister's arguments, I consider that that subsection should be deleted.
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