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Lord Falconer of Thoroton: Perhaps I may deal, first, with Amendments Nos. 214, 218 and 219, which suggest that some public interest test of one sort or another should be included in Clause 41. By virtue of the new Clause 2, which was added by earlier government amendments, there is already a public interest test that applies to information exempt under Clause 41. Therefore, authorities must release such information,
- "where the public interest in disclosing the information outweighs the public interest in maintaining the exemption".
Amendment No. 221 was one of the amendments proposed by the noble Lord, Lord Goodhart. He identified certain specific issues that should be addressed and weighed in the balance under Clause 13, now Clause 2. It is not clear why a framework such as that contained in his amendment is considered necessary in respect of this type of exemption but in no other. In seeking to identify interests to which the authority should have particular regard in this way, the effect would be to weight the balance of the test in a particular direction. The Government do not consider that that is appropriate. Authorities need to take account of all the circumstances of a particular case when reaching such decisions. No single interest or group of interests should be seen to predominate. I invite the noble Lord, Lord Goodhart, not to move that amendment.
I am delighted that the noble Lord, Lord Young of Dartington, has taken part in this debate. He has obviously had a much longer role than any of us on issues concerning freedom of information and consumer choice. I am delighted that he delivered such a speech and played a part in this Committee stage. Having said that, I shall begin to disappoint him with my response to his amendment.
I wholly support the intention to protect consumer choice, but the amendment is too widely drawn. Information that relates to the quality or safety of the goods or services or conditions of production or supply may include, for example, manufacturing processes by which the quality or safety of a particular product is ensured or a firm's plans for promoting a particular product where quality or safety are to figure in the promotion. The amendment states:
- "conditions under which those goods or services are produced or supplied".
That could range from manufacturing processes through to conditions in supply contracts and marketing plans. The harm test is also too wide. Factors affecting consumer choice include price, quality, the environmental impact of the product, the origin of the product, location of its point of sale, how it is marketed and a range of other criteria. The effect of this test would be to remove the protection of the exemption from any commercially sensitive information which touched on these or other factors. There is already provision in the Bill for those matters to be properly taken into account under the public interest test. In the light of the arguments, I hope that the noble Lord, Lord Young of Dartington, can be persuaded not to pursue his amendment.
I turn to Amendment No. 215, which seeks to define "trade secret". The noble Lord, Lord Goodhart has said, and he is right, that trade secret is a phrase well known to the law. It is used in a large number of statutes and cases. I do not believe that there will be any difficulty in identifying a corpus of law which would define it. "Trade secret" would not go as far as to cover everything in Clause 41(2) because "trade secret" would primarily focus on processes within a commercial organisation, whereas Clause 41(2) is wide enough to cover, for example, competitors of an organisation giving information to the Government that was critical of its processes. That would not be a trade secret, but something that could damage the body about which they were talking.
I was asked about the situation where information is given about a particular product which showed that the product was toxic in some respect, and whether that would be disclosable under the Bill. We always come back to: while it might be damaging, the public interest has to be weighed in Clause 2. So I do not think that a definition of "trade secret" is appropriate.
I turn finally to Amendments Nos. 222 and 325. Amendment No. 222 would effectively introduce a new exemption into the Bill for all information that was supplied to a public authority by a company or other commercial organisation before the Bill, once enacted, came into force. This would apply to a large amount of information and would drive a coach and horses through the policy of retrospection, at least in relation to commercial information. I grant that the public interest test provisions would at least still apply to information of that sort.
However, this general approach is nonsensical because such information should already be available under the code of practice introduced by the previous government. I would therefore ask noble Lords not to press that amendment.
I do not believe that Amendment No. 325 is necessary. There are good reasons for continuing certain exemptions relating to highly sensitive information beyond the 30-year point. However, that can only be justified where there is some likelihood that the disclosure of such information could cause real harm years after it was created. The circumstances of commercial life change so rapidly that I cannot foresee any information which would have a
prejudicial effect on a party's commercial interests after 30 years. For those reasons I invite the noble Lord not to pursue his amendment.Amendment No. 217 has not been proposed by the noble Lord, Lord Lucas. It refers "to an unreasonable degree". I am not confident that that term would assist us. There will continue to be different interpretations of what constituted "unreasonable" and in consequence no clarity about the way in which the provision would work in practice.
9.30 p.m.
Lord Archer of Sandwell: Perhaps I may echo the tribute which my noble and learned friend paid to my noble friend Lord Young. I still have some of the books and pamphlets which he wrote when I was a student, which is a very long time ago. They are still on my shelves, occupying a place of honour.
I apologise to my noble and learned friend. I overlooked the fact that there was a public interest test in the new clause. I thought that I had checked it. Admittedly, I did so after a late night and an early morning, but I did not see it. I take on board what he says, subject to the point made yesterday by my noble friend Lady Whitaker that the test in its present form does not deal with the tie-breaker situation.
I believe that I have fathomed the secret of my noble and learned friend's success as an advocate. One has two arguments and preferably they are inconsistent and mutually exclusive. One does not use both of them on the same occasion. If the complaint is that the category is too wide, one says, "Don't bother about how you define the category, let's keep it simple. Let's subject everything to a prejudice test and do not worry about what the category says." If the complaint is that there is no prejudice test one says, "Of course, some things are so likely to cause harm that one will need categories so one has to be very careful what they are." He uses both arguments to extend the scope of information which is exempt from the Bill. However, I promise to look very carefully at the new Clause 2. It may very well be that I shall not need to trouble the noble and learned Lord further.
Lord Cope of Berkeley: I was also delighted that the noble Lord, Lord Young of Dartington, contributed to this short debate. Like the noble and learned Lord, Lord Archer, I believe that the noble Lord has given us something to think about on the points raised by these amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 215 to 219 not moved.]
Lord Young of Dartington had given notice of his intention to move Amendment No. 220:
- Page 23, line 11, at end insert--
The noble Lord said: I am most grateful to the noble and learned Lord and other noble Lords for what they said. I could not help thinking once again of the old saying that fine words butter no parsnips. If the noble and learned Lord has second thoughts about the matter, it would be sensible and greatly appreciated in wide circles if there was a re-wording of the clause. Despite the arguments that he advanced, I believe that he can see that it will not be apparent to ordinary consumers in Widnes, or wherever it may be, that there is some small protection here. There is a chance that the noble and learned Lord will be prepared to back his kind words tonight with some kind of action and that he will show some concern for the consumer interest. There is no better place in the Bill than in Clause 41. I know that the noble and learned Lord has many things on which to reflect, but I hope that he will feel able to make more than a gesture to an important interest in our society. I shall not move the amendment.
[Amendment No. 220 not moved.]
[Amendment No. 221 not moved.]
[Amendment No. 222 not moved.]
Clause 42 [Prohibitions on disclosure]:
[Amendments Nos. 223 to 225 not moved.]
Clause 43 [Power to confer additional exemptions by order]:
("( ) Information is not exempt by virtue of subsection (2) if or to the extent that--
(a) it relates to the quality or safety of the goods or services produced or supplied by the person referred to in that subsection or the conditions under which those goods or services are produced or supplied; and
(b) the prejudice to that person's commercial interests would result from the exercise of more informed choice by persons seeking to acquire those goods or services.").
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