Lords Hansard text for 25 Oct 2000 (201025-28)

Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Cope of Berkeley had given notice of his intention to move Amendment No. 226:

Page 23, line 28, leave out ("effects adverse") and insert ("substantial prejudice").

The noble Lord said: In moving Amendment No. 226, I wish to speak also to the amendments with which it is grouped.

Lord Falconer of Thoroton: This is an amendment to Clause 43, which we oppose standing part. Therefore I do not think that there is much point in moving amendments to it.

Lord Cope of Berkeley: That is fair comment. We shall await the clause stand part debate. I shall not move the amendment.

[Amendment No. 226 not moved.]

[Amendments Nos. 227 to 229 not moved.]

Clause 43 negatived.

[Amendment No. 230 not moved.]

25 Oct 2000 : Column 428

Lord Lucas moved Amendment No. 231:

After Clause 43, insert the following new clause--

RECORDS OF MINISTERIAL ENGAGEMENTS
(" . Records of ministerial engagements can never be exempt information under sections 19, 20, 26, 27, 33, 34, 38 or 39.").

The noble Lord said: I shall adopt my standard technique here. This is merely an opportunity for the noble and learned Lord to show yet again how determined he is that this Bill should not apply to the central activities of government. I beg to move.

Lord Bassam of Brighton: I am afraid that the noble Lord, Lord Lucas, will have to put up with the noble and less learned Lord Bassam on this amendment.

We take the view that it would be wrong to treat records of ministerial engagements differently from other types of information held by public authorities. This would be the effect of the blanket disclosure which Amendment No. 231 would introduce. The Bill as drafted ensures that such information will be disclosed, if it is in the public interest to do so. We believe that is the right test. The decision is, of course, reviewable by the information commissioner and she can order disclosure. I am not sure that too much would be gained by knowing how and at what time I arrive at Victoria Station in the mornings. Nevertheless the information commissioner would be obliged to disclose that information if she thought it right to do so. The Bill ensures that such information as ought to be disclosed will be disclosed. We believe that this amendment is not necessary. I therefore invite the noble Lord to withdraw it.

I turn to the proposed new clause in Amendment No. 231A. This would remove from the scope of certain exemptions the name and address of any correspondent with a public authority, the date of the correspondence and response from that authority. Subsection (2) of the proposed new clause defines "name and address" for the purposes of the new clause.

I am not convinced that members of the public corresponding with public authorities would be at all happy at the prospect of their names and addresses being disclosed to third parties simply by virtue of having entered into such correspondence. Nor am I clear what this would achieve; perhaps the noble Lord can enlighten us.

There is also the question of clashing with other legislation, in particular, the Data Protection Act 1998. Under the 1998 Act, "personal data" are data which relate to a living individual who can be identified from that data. It is likely that the names and addresses of persons drawn from correspondence with public authorities will be "personal data" within the meaning of the Data Protection Act 1998. The noble Lord's amendment would almost certainly be incompatible with the directive on which that Act is based. Given that information, I trust that the noble Lord will also withdraw that amendment.

Lord Lucas: I shall not, of course, press the amendments, but the noble Lord is saying that the

25 Oct 2000 : Column 429

identity of those lobbying Ministers is something which this Government wish to continue to be able to keep secret. I understand that to be the case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 231A not moved.]

Clause 44 [Issue of code of practice by Secretary of State]:

[Amendment No. 232 not moved.]

Lord Lucas moved Amendment No. 233:

Page 24, line 38, at end insert--

("( ) The code may include provisions as to how public authorities shall reach decisions under particular sections or subsections of any part of this Act.").

The noble Lord said: This amendment would allow the information commissioner to set out rules and to express opinions on how decisions under the Bill shall be reached by public authorities. I think it extremely important that the information commissioner should be able to do so. It should be part of her remit. I beg to move.

Lord Norton of Louth: I add a word of support for my noble friend's amendment, and a provision which may be helpful in relation to the code. Having considered the amendment, the draft code and the Bill, I believe that there may be argument for providing guidance relating to the publishing of publication schemes. Under Clause 17 authorities are required to publish publication schemes. However, as I read the clause, I am not sure that publication is covered by the publication scheme. There may be a need for guidance under the code relating to the publishing of the publication scheme. It is referred to in the draft code but there is no guidance on the form of publication other than a requirement that an e-mail address should be included.

I use my noble friend's amendment as a peg on which to hang this point. I did not give the Minister notice that I would raise the matter. I do not expect, therefore, a response today. I put the issue before the noble Lord if he wishes to consider it.

Lord Bach: I am grateful to the noble Lord, Lord Norton of Louth, for raising a matter which I should like to consider.

Amendment No. 233 would have the effect of allowing the code of practice to include provisions relating to how public authorities shall reach decisions under the Bill. However, we think that it would be inappropriate to place provisions about reaching decisions under the Bill in a code of practice. It may be that there has been some misunderstanding as to how this amendment would work. Subsection (2) of Clause 44 is an adjunct to subsection (1). It does not provide an exhaustive or definitive list of what is to be contained in the code of practice. We see the codes of practice as there to provide a methodology for public authorities; for example, on how to deal with inquiries or complaints. The noble Lord's amendment would

25 Oct 2000 : Column 430

extend that to covering areas such as how to reach a decision concerning exemptions, a matter which we believe is correctly dealt with on the face of the Bill.

The code is a supplement to the provisions of the Bill. It is not a substitute for legislation. The responsibility--I want to emphasise this--for ensuring that authorities apply the provisions of the Bill rests with the information commissioner and the tribunal and not with the Secretary of State. The commissioner can set rules on what she wants, but the amendment relates to what the Secretary of State must include in the code. It is the commissioner who has the power to set the rules on this.

My initial answer to the noble Lord, Lord Norton of Louth, on publication, is that that again is a matter for the commissioner when she determines on the set of rules that she may apply. After this short debate, I hope that the noble Lord will withdraw his amendment.

Lord Lucas: I think that the Minister misunderstands where the amendment would come in the clause. It would not be a paragraph under subsection(2) but a new subsection (3). It is a permissive "may" rather than a "must".

The reason for bringing forward the amendment is amply illustrated by the debate I had with the noble and learned Lord, Lord Falconer, about 10 minutes ago on the test which would have to be applied by a public official considering whether information was held in confidence and should be disclosed under that brand of public interest test. The information commissioner will sit in judgment on whether the public official has done right, but will not be allowed to give the public official any guidance as to how to do right. That is an odd state of affairs. Anyone who judges whether the right procedures have been followed in deciding the public interest must set down the procedures that they expect to be followed so that a public official who seeks to take a decision under the relevant clauses can know that they have done as they are supposed to do and that the information commissioner is likely to be happy.