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Lord Bach: My Lords, I beg to move that the House do now adjourn during pleasure until 8.18 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.7 to 8.18 p.m.]

Freedom of Information Bill

Lord Falconer of Thoroton My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.--(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Viscount Oxfuird) in the Chair.]

Clause 36 [Health and safety]:

[Amendment No. 204 not moved.]

Clause 36 agreed to.

Clause 37 [Environmental information]:

[Amendment No. 205 not moved.]

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On Question, Whether Clause 37 shall stand part of the Bill?

Lord Lucas: I gave notice of my intention to oppose the Motion that this clause should stand part of the Bill in order to give the Government an opportunity to enlarge on how this mechanism will work. It is a pity that this clause has to be included in the Bill at all; it has been put in place only because the Government have moved so far back from what they said they would do on freedom of information that they have been forced to leave isolated this one commitment. They must be open about environmental information and they cannot shrink away from that. Here we see a small example of what all noble Lords would wish had been repeated throughout the Bill. It serves as a memento to preserve the failures of nerve suffered by the Government on the whole question of freedom of information. That is a sorry position.

I am concerned that we may inadvertently reduce, to a certain extent, the rights of the citizen. Parts of the Bill provide for rights of review by the information commissioner as regards the speed at which information should be released. I should be grateful for some comfort from the Minister in the form of a reassurance that what will happen will in every way be an advance on what is set out in the Bill. Furthermore, I seek a reassurance that no inquirer will be faced with a situation in which, because Clause 37 is in place, he might lose some of his rights under the Bill because those rights are not duplicated in the secondary legislation to be introduced in a later provision.

The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): It will come as no great surprise to the noble Lord that I cannot accept his analysis. Both in opposition and in government, my party has built up an enviable record as regards its efforts to ensure that citizens have fair, reasonable and proper access to environmental information. In Government, we are committed to implementing the United Kingdom's international obligations under the EU directive on environmental information and in particular the Aarhus Convention.

This will be done through regulations to be made under Clause 73 rather than directly through the general provisions of the Bill. The Bill will continue to have an effect because even if information need not be disclosed under the regulations, its disclosure may still be required under the public interest test. Copies of the consultation paper entitled Proposals for a Revised Public Access to Environmental Information Regime were placed in the Library of your Lordships' House on the 10th of this month. Those proposals inform our discussions and debates.

Clause 37 is an essential component of what we regard as sensible arrangements which will ensure that the public has proper access to information about environmental issues and that we continue to observe our international responsibilities. The exemption of such information from the freedom of information requirements under Clause 37 will prevent any confusion as to the intended relationship between the

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rules governing access to environmental information and the FOI regime. Perhaps I may stress that the exemption provided for by Clause 37 would not result in environmental information being withheld. Let me also reassure noble Lords that any fees charged under those regulations will be made subject to the test of reasonableness and will have to be made known in advance.

I hope that we shall not need to conduct a lengthy discussion on this matter. I believe that our reputation and standing on this issue is well known, well established and strong. I hope that the noble Lord will see that our approach here is reasonable. I trust that he has now had an opportunity to look at the consultation paper which, as I said earlier, has been placed in the Library of the House.

Lord Cope of Berkeley: However that may be, we were told that the Government initially proposed to incorporate these regulations into the Bill but that they came to realise that the Bill was so weak that that would not comply with either the EU directive or the convention. That is why they have had to rely still on the regulations. The Minister may be right so far as concerns environmental information, but that is because of the regulations. That tells us a lot about the rest of the Bill.

Clause 37 agreed to.

Clause 38 [Personal information]:

The Earl of Northesk moved Amendment No. 206:

    Page 21, line 39, leave out paragraph (a) and insert--

("(a) that the disclosure of information to a person would be likely to result in a public authority breaching its obligations to respect the private life of another person as set out in Article 8 of Part I of Schedule 1 to the Human Rights Act 1998, and").

The noble Earl said: Our purpose here is simple. Clause 38 is concerned with personal information. Accordingly, there is an argument for suggesting that the current drafting of the Bill, with its reference to the data protection principles, should be replaced with a reference to the underlying--and maybe more important--need to protect the right to privacy. This is what the amendment seeks to do.

There are some subsidiary arguments. We are often told by the Government, in terms, that the Human Rights Act is the most important and most significant constitutional advance that has been achieved in the current Parliament. Equally, it is reasonable to suggest that the data protection principles were derived substantially from the ECHR. Therefore there should be a presumption that the Human Rights Act has some measure of primacy over the data protection principles. In effect, it could be interpreted as being the appropriate source, if not statutory authority, for the application and interpretation of the terms of Clause 38.

Indeed, by using Article 8 of Schedule 1 to the Human Rights Act attention in Clause 38 might be much more properly focused on the necessity to protect personal information about someone's private life rather than broader issues such as the identities of

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public officials which, I understand, under the terms of the Data Protection Act, qualify as "personal data". Hence the amendment. I beg to move.

Lord Lucas: My Lords, I speak to Amendment No. 208 in this group, which stands in my name. The amendment seeks to ensure that where the exemption applied the public authority would have a duty to ask the person with the ability to release that personal information whether they were prepared to do so.

The most recent example I can give is a Written Question in which I asked the Department of Health whether a particular sufferer from BSE had "met met" or "met val" at codon 129 of her prion gene. The Department of Health said that it could not answer that question because it was seeking personal information. I asked the department to ask the person whose personal information it was whether she was prepared to release the information. I had been talking to the person who had the authority to release the information and knew that she was prepared to release it, but the Department of Health said that it would not ask her; it refused to ask for the information. Had the department asked for the information, it would have been available and the department would have been able to tell me.

I was aware of the information, but I was interested in the reaction of the Department of Health. This particular patient is "met val" and not "met met" like every other BSE patient who has been announced to date. By its refusal to ask for permission to release the information, the department has avoided answering my quite reasonable questions about what are the consequences of this turn of events; what are the different characteristics of the disease in someone with this different genetic make up; and what else will doctors be instructed to look for in terms of the symptoms of this disease.

It seemed to me a reasonable question to ask and a reasonable question to answer. The Department of Health is hiding behind a refusal to ask the person who has the information whether they are prepared to release it. I am sure that the Department of Health has the information, too, but it is pretending that it does not have it or that it cannot release it.

This is a highly undesirable state of affairs. I do not at all approve of the idea that in every case the public authority should have to ask the possessor of the personal information for the right to release it--in most cases it will be quite clearly private and the person should not be troubled--but there are times when a public authority should not be able to hide behind this. Where the personal information is crucial to public affairs, the public authority should have a duty to ask. That is the purpose of the amendment.

8.30 p.m.

Lord Falconer of Thoroton: Dealing first with Amendment No. 206, as the noble Earl, Lord Northesk, acknowledges, the United Kingdom has to implement the European Community directive in relation to personal information. Equally, that

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directive is of itself required to be consistent with Article 8 of the European Convention on Human Rights which the noble Earl's amendment refers to. A simple requirement such as Amendment No. 206 proposes is unlikely to achieve exactly the same results; namely, compliance with the EU directive. In any event, public authorities have been required to comply with Article 8 by virtue of the Human Rights Act 1998 from 2nd October 2000.

As a result I can see no benefit to the citizen resulting from the amendment proposed by the noble Earl, Lord Northesk. Conversely, it would call into question the UK's implementation of the directive and may lead to claims that we are in breach of our EU obligations. I am sure that is not a result that the noble Earl intended. Therefore, I see no benefit from the amendment and I see, to some extent, harm. I urge the noble Lord to withdraw the amendment.

Amendment No. 208, moved by the noble Lord, Lord Lucas, is drafted to apply to information which is exempt by virtue of either subsections (1) or (2) of Clause 38. I am not clear that the amendment would have any effect in respect of information exempt under subsection (1), and I believe that it could have only limited application in respect of information exempt by virtue of subsection (2).

Where a data subject makes a request for information which is personal to him, that request falls within the limits of subsection (1). The information is exempted from the application of freedom of information, and the applicant effectively pursues his claim to the information under the provisions of the Data Protection Act. In the case of such an application, the question of asking the applicant's permission to release information about himself is clearly a nonsense. So the question does not arise in relation to the Clause 38(1) exemption.

Clause 38(2) deals with personal information relating to someone other than the applicant. So it would cover the example given by the noble Lord. Exemption from the duty to disclose information follows from certain conditions being met. Those conditions are set out in subsections (3) or (4). Although the amendment purports to bite on an exemption under Clause 38(2) regardless of the grounds of that exemption, in practice this would not be the case.

The amendment is only likely to have any relevance to information where a Clause 38(2) exemption falls to be considered by virtue of the conditions set out in subsections (3)(a)(i) or (3)(b). This condition relates to a request for disclosure of personal information by a third party where such disclosure would contravene the data protection principles in the Data Protection Act 1998.

What would such a duty actually amount to? The amendment proposes that there should be a duty to consider asking permission of the data subject to disclose relevant information, but not a duty to consult. Such a duty is so vague as to be effectively unenforceable. The Government believe that it is right

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that public authorities should, in appropriate circumstances, be encouraged to consider consulting a third party where to do so might result in the disclosure of information which would otherwise be exempt. But we do not believe that it is appropriate to place on authorities a statutory duty to do so. Instead, we have set out the requirement as a provision within the Secretary of State's code of practice, to be made under Clause 44. The code of practice is currently in draft form.

I should also like to add that as a result of the Government's amendments a public authority is required to disclose the information, notwithstanding a Section 10 Notice, if the public interest requires that. I suggest that this is a more appropriate way to deal with this issue than the broad and, I think, undeliverable duty which the noble Lord's amendment proposes.

In the light of that explanation, I hope the noble Earl feels able to withdraw his amendment.

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