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The Principal Deputy Chairman of Committees (Lord Tordoff): My Lords, I should point out that if Amendment No. 1 is agreed to, I cannot call Amendments Nos. 2 to 4 inclusive because of pre-emption.
3.15 p.m.
Lord Lester of Herne Hill: My Lords, I wish to speak in support of Amendments Nos. 2 and 4, which stand in my name and that of my noble friend Lord Goodhart. In doing so, I note that Hugo Young, writing in today's Guardian, accuses me and my colleagues on these Benches of having become "half-baked" in our pragmatism and "amnesiac" in our regard for principle, part of what Mr Young regards as a "shocking" conspiracy to "gut" true reform and to assist the Government in the butchery of the Bill.
The basis for that slightly intemperate comment rests on the retention in the Bill of absolute exemptions and the test of harm or prejudice which does not expressly refer to the need for that harm or prejudice to be "substantial", and the retention of a ministerial override which, according to Hugo Young, means that the information commissioner would be powerless in the face of a ministerial veto.
Hugo Young is an old and very close friend of mine and a leading political commentator for whose views I have the highest regard. But on this occasion his criticisms and perhaps those of the wider campaign are, I believe, misguided and unfair. They are based on a misunderstanding of the Bill and of what this package of amendments would achieve. I should like briefly to explain why I think that that is so.
During the first day in Committee I pointed out that the problem with the Bill as it stands is that it asks public authorities, the information commissioner, and the courts to interpret this constitutional measure in a constitutional vacuum. We do not start with a strong constitutional value in UK law that gives a positive right of public access to government information, subject only to necessary exceptions. I also pointed out that one way of filling the gap would be by the Bill including a proper standard against which to weigh the public right of access, conferred by Clause 1, against other rights and other facets of the public interest.
During the second day in Committee we attempted unsuccessfully, on all sides of the Chamber, to persuade the Minister to accept a substantial prejudice
test against which to weigh and balance the public right of access against necessary exceptions. The noble and learned Lord, Lord Falconer of Thoroton, having rejected the attempts of my noble friend Lord Goodhart to shift the burden of proof said this:
- "The Bill provides for an equal balance. The factors in favour of maintaining an exemption are to be weighed against the factors in favour of disclosure".
- "That is not how the Bill is drafted. The only factors to be considered are what is on one side of the scale and what is on the other side".--[Official Report, 17/10/00; col. 1267.]
If that had remained the Government's position, I would have continued to believe that the Bill is a mockery of a true Freedom of Information Bill worthy of that name, as I said in my evidence to the Select Committee on the draft Bill in another place. By creating a public right of access and then qualifying it with exceptions and limitations without a clear presumption in favour of public access, unless there is very good reason not to disclose the information, the Bill as it stands is seriously defective.
If that fatal defect remained in the Bill, it would be legitimate for the House to withhold consent to the Bill's enactment because the public right of access would be illusory; not a real and effective right but something written in water. We on these Benches would feel especially cheated, after campaigning for so many years for a strong Freedom of Information Act and reaching an agreement with new Labour shortly before the 1997 general election in what is known as the Cook-Maclennan agreement.
The purpose of these amendments is to remove that serious defect by writing into Clause 2 a clear presumption in favour of public disclosure. I shall explain our understanding of the purpose and effect of the amendments and hope that the Minister, as controller of the Bill in this House, will not only support the amendments but will indicate whether or not he agrees with our understanding of their important purpose and significant effect. Ultimately, of course, it is not for the Minister but for the courts to decide on the meaning of the Bill in the form in which it is enacted.
Clause 2 is a crucial provision because it prescribes the standards to be applied to the exemptions from disclosure in Part II other than absolute exemptions. That includes the ministerial override in Clause 35 which, contrary to both the understanding of Hugo Young and those involved in the Campaign for Freedom of Information, does not--I repeat, does not--contain an absolute exemption, but an exemption subject to Clause 2. Where there is a duty to inform whether a public authority holds information, Clause 1(1) creates a duty to provide the information.
These amendments require the public authority, the information commissioner and ultimately the courts to ask and answer a key question: in all the circumstances of the case, does the public interest in maintaining the exclusion of the duty to confirm or deny outweigh the public interest in disclosing whether
the public authority holds the information? In other words, the starting point is the public right of access and the public interest in disclosure, and it is for the public authority to justify non-disclosure on the basis that public disclosure is outweighed in the circumstances of the case by the public interest in non-disclosure.The burden of proof, as lawyers would say, is placed upon the public authority to show that there is some pressing need for non-disclosure and that the restriction on the public right of access is necessary in the sense of being a proportionate way of meeting that need. That applies to the exemptions in Clause 34 related to the formulation of government policy and to the exemption in Clause 35 (the ministerial override for prejudice to the effective conduct of public affairs). In each case, it will be for the public authority to justify the exceptional course of relying upon the exception.
It is true that the Bill does not qualify the word "prejudice" with an adjective such as "substantial". But the Minister conceded in previous debates that the prejudice must be real and not fanciful and, in applying the new balancing test inserted into Clause 2 by these amendments, the public authority, the information commissioner and ultimately the courts will decide whether the harm to the public interest in non-disclosure, identified in the specific exemption, is sufficiently substantial in the particular case to outweigh the public interest in disclosure. In other words, Clause 2 will enable the information commissioner and the courts to ensure that there is a proper sense of proportion and that the exemptions are not used excessively or unnecessarily or, in the old English phrase, that a sledge-hammer is not to be used to crack a nut.
Amendment No. 25, as part of the scheme, will tilt the balance more strongly in favour of public disclosure by placing a duty to provide advice and assistance on public authorities. That, too, will encourage a change in Civil Service ministerial culture to promote more open government and to discourage unnecessary secrecy.
In the case of Clause 34, Amendment No. 43 is designed to make it clear beyond argument that in deciding whether to invoke the ministerial override, regard must be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to decision taking. That is a further safeguard--
Lord Mackay of Ardbrecknish: My Lords, can the noble Lord help me? I am puzzled by his reference to Amendments Nos. 25 and 43 because they are not in this group; they are in other groups. Has the grouping been changed without me being told?
Lord Lester of Herne Hill: My Lords, the noble Lord is right. As Clause 2 applies across the face of the Bill, I am trying in a single statement of our position to explain why we believe that these amendments should
be commended. In doing so, I am not attempting to move Amendment No. 43 but to explain the scheme as a whole.As I was saying, Amendment No. 43, if it is later accepted, will provide a further safeguard of the public right of access, modelled on the way in which the Human Rights Act gives primacy to the right of freedom of communication to the public. It applies whether the decision has already been taken at the date of the request for information.
We ask the Minister to confirm that his understanding of the effect of these amendments is similar to our own understanding and their acceptance would represent a real shift in the way in which the balance is to be struck and maintained. We have no doubt that, if the amendments are accepted as part of the Bill, the courts will interpret the Bill in a way which gives practical reality to the public right of access, in the same way as the Law Lords have already given a powerful lead in protecting the right to free expression against unnecessary restriction in cases such as Derbyshire County Council, Reynolds and Turkington, in all of which I declare my professional interest in acting for the newspaper.
When the Government's White Paper was published, I congratulated them from these Benches. Most unfortunately, when responsibility was transferred from the Cabinet Office to the Home Office, a Bill was prepared which did not meet the expectations created by the White Paper. The draft Bill was rightly criticised by the Select Committees of both Houses. The Bill is far from perfect and it is not in the form which a Liberal Democrat administration would have introduced. But the amendments enable the Bill to be made to work in practice. I beg to move.
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