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Lord Falconer of Thoroton: The two safeguards are different. There is, first, an Order in Council and, secondly, costs paid in a judicial review. Our proposals allow parliamentary scrutiny in relation to the exercise of the override because reasons have to be given; Ministers are accountable in Parliament. Costs in judicial review is not a protection. Where a person challenges the ministerial override in New Zealand, the government are obliged to pay the costs come what may. That is not present in our system but that does not make the difference between when it is an acceptable override and when it is not.
The government proposals, for the reasons I have given, ensure that the decision to issue an acceptance certificate would not be taken lightly. A Minister making any such decision would be required to inform the applicant of the reasons for his decision and, as I said, would be accountable to Parliament, his Cabinet colleagues, his constituents, members of his own party and the wider population for that decision.
The government amendments do not make provision on the face of the Bill for the certificate to be authorised by a Cabinet Minister acting collectively with Cabinet-rank colleagues. That point was raised in another place and my right honourable friend the Home Secretary said that he would consider it. In legislation passed by Parliament it is the Minister who
Amendment No. 289 restricts the override to decisions by the commissioner relating to information held by government departments, the National Assembly for Wales and any public authorities designated by order by the Secretary of State for these purposes. The Government believe that such a power to designate further bodies by order is necessary to ensure that there is no gap in the protections required for exempt information which may be held by a body other than by a government department or the National Assembly for Wales, which it would be unacceptable to release without an avenue of final appeal on the public interest from the commission tribunal to a Cabinet Minister.
Amendment No. 352 would have the effect that the order designating further public authorities for the purpose of this clause must be made under the affirmative resolution procedure. The requirement for affirmative resolution ensures that the provision would be used only sparingly. It would be wrong to pretend that we can be definite as to when exactly such a power would be used. The case for designation is likely to be strongest in respect of public authorities in areas such as national defence, national security and law enforcement. Immediate examples which come to mind might include bodies such as the police information technology organisation and police forces. We shall, however, want to consult carefully before bringing forward any draft orders for consideration by Parliament under the affirmative resolution procedure.
I turn to Amendments Nos. 298 to 303, 306 and 307, tabled by the noble Lord, Lord Lucas. These amendments seek to limit the scope of the "override" in a way which is comparable to that provided by the government amendments. I hope that therefore he will not move them.
The noble Lord has tabled two further amendments. Amendment No. 306 would have the effect of requiring that an order must include a statement of the reasons for the order and must be made public. Amendment No. 307 would have the effect that an exception certificate issued by virtue of Clause 52(1) could never be exempt information under Part II of the Bill.
The Government have made it clear that Ministers would expect to have to explain to Parliament the grounds on which the certificate has been requested and approved. I hope that in the light of those explanations, the noble Lord, Lord Lucas, will not move his amendments.
As my noble and learned friend Lord Archer said, a number of other amendments do not fit into the mainstream but before dealing with them perhaps I may deal with the point raised by the noble Lord, Lord Goodhart, about judicial review. There is a requirement to give the reasons for the certificate. In giving those reasons, one need not give any information which would disclose the information that one is saying should not be disclosed. That is obvious common sense. However, that does not mean that one can avoid giving a full explanation as to why one is not disclosing the information.
As regards the courts' approach to judicial review, it is for them to determine what they regard as appropriate procedures in relation to such cases. Obviously, disclosure of the information to the other side would not be appropriate, but it is for the courts to develop procedures that they consider appropriate to deal with the relationship between them and a Minister who is being judicially reviewed in relation to such a claim. The procedure in relation to PII, where the court looks at the document without it being shown to one of the parties to the litigation, was developed by the courts.
Lord Falconer of Thoroton: I do not believe that it is necessary for a power to exist in the Bill in order for it to be possible for the document to be shown to the court. However, it is a matter for the court to develop what it believes are appropriate procedures. It must be remembered that the information commissioner will have seen it.
The other amendments grouped here propose changes which flow from the debate we have been having on Clause 52. As currently drafted, Clause 56(3) of the Bill provides that a complainant has a right of appeal against the commissioner's decision when she upholds the authority's decision not to disclose in the public interest. However, public authorities do not have the same option of bringing an appeal to the
Government Amendment No. 317 rectifies this by allowing for such an appeal. The right of appeal will exist for those few public authorities covered by the provisions at Clause 52. That should ensure that disagreements between the commissioner and such authorities are litigated in the tribunal and, if necessary, by the courts, rather than recourse being had to Clause 52.
Amendments Nos. 272 and 286 are both consequential upon Amendment No. 317. Amendment No. 272 has the effect that decision notices in respect of failure to disclose information in the public interest must contain particulars of the right of appeal and provides that any timetable for disclosure under the decision notice must have regard to any appeal procedure. Amendment No. 286 has a similar effect in respect of enforcement notices.
I turn now to Amendments Nos. 273 and 288, tabled in the name of my noble and learned friend Lord Archer of Sandwell. The intention behind these amendments is clear: to negate the effect of Clause 52. However, I hope that I have made the Government's position plain in relation to that clause. Finally, I turn to Amendment No. 259. The noble Lord, Lord Cope, made clear that his intention in moving the amendment was to also to negate the effect of Clause 52. Again, I have made the Government's position clear in that respect. In the light of those arguments, I invite the noble Lord, Lord Cope, to withdraw his amendment.
Lord Norton of Louth: Before my noble friend responds, perhaps I may say that I am extremely grateful to the Minister. I feel vindicated because I believe that he has adopted the approach that I predicted he would. However, he has not made a clear case for the breadth of the clause. He made the case that there will be circumstances--such as those associated with national security--where there is clear justification for an override. But I do not see why the provision should be so broadly drawn. I have been trying to think about this in regard to the field of education; for example, why should it encompass this provision and in what circumstances would it apply? I do not understand why it cannot be more narrowly drawn simply to cover the cases mentioned by the Minister. Indeed, we could all be persuaded that there was clearly a case for such issues to be covered.
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