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The Countess of Mar: My Lords, before the noble Lord sits down, on a technicality, perhaps I may gently point out that at this stage the only amendment which has been moved is Amendment No. 1. He is speaking to his amendments and not moving them at this stage.

Lord Lester of Herne Hill: My Lords, I am always at a loss when it comes to matters of procedure and I am always grateful to be told that I have got it wrong. I apologise for having done so.

Viscount Colville of Culross: My Lords, I want to speak briefly in support of this group of amendments. I was a member of the Select Committee chaired by the noble and learned Lord, Lord Archer of Sandwell, but the timing of the Bill has been such as to make it impossible for me to attend its previous stages. However, he and the noble Lord, Lord Lester, have made a strong case. I spend a long time trying to decide disputes between people and often the arguments are extremely evenly balanced. In those circumstances, something in the order of a burden of proof is immensely important and valuable.

I understand that the burden of deciding whether disclosure will be made will arise at many stages and in the minds of a disparate collection of people. There will be the first occasion when the request is made and

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the public authority, in the form of some individual, will have to decide whether or not to disclose. Then there are the information commissioner, who will need some guidance, the tribunal, the courts and Ministers under the override system.

I found it most disquieting to read in the report of the Committee stage that there was likely to be equality and that it was not clear what would happen when the balances were exactly even. It seems to me that the balances are even less easy to discern in a subject such as this than in an ordinary case which comes before the courts because the issues are intangible and extremely difficult to weigh.

I would therefore commend to the noble and learned Lord, Lord Falconer, the arguments which have been made; that there should be a clear presumption in favour of disclosure. If there is no such guidance to assist those who are making decisions of the type I have just described, I do not know where they will think they are going to start. With any ordinary system of burden of proof, you know from where you are going to start and that makes it much easier for a proper and fair decision to be made.

One of the things which came out of the Committee stage--the noble Baroness, Lady Whitaker, clearly put her finger on it--is that this is one of the most important introductions to the whole of the system of freedom of information on which the Bill is centred. Unless we can get it right, there does not seem to be much prospect in there being an open culture of freedom of information, which is what it is all about. I am not sure which of the amendments I shall in due course be invited to support, but, as regards the principle, I am very much in favour of both noble Lords who have spoken.

Lord Peston: My Lords, I am extremely sympathetic to the sensible remarks of the noble Viscount, Lord Colville of Culross, but I was left somewhat puzzled by the noble Lord, Lord Lester, speaking to his amendments. The Deputy Speaker said that he could not call one if the other were passed, but I understand that there is a genuine sense in which the amendments are competing with each other.

I have not been able to understand what Amendment No. 2 et al. do which Amendment No. 1 does not do. Do they do less? Do we get more freedom of information under Amendment No. 1 than under Amendment No. 2? Do they do the same or more? We were not told why we should have Amendment No. 2 rather than Amendment No. 1.

On the assumption, which I assume we all share, that more freedom is better than less, I would like to know whether we are being told that Amendment No. 2, for example, offers us more freedom of information. I should have thought that the noble Lord, Lord Lester, as he spoke to amendments in the group, could have helped at least those of us who have difficulty following the wording--and I have enormous difficulty--by answering the simplest of

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questions: namely, is he saying, "Support me because you get more freedom of information from me than you do from the noble and learned Lord"?

Lord Mackay of Ardbrecknish: My Lords, as this is Report stage, I have to speak before the Minister. However, it would have been interesting first to hear what the Minister had to say--

Lord Bach: My Lords, I am sorry to interrupt the noble Lord but on Report it is possible for the Minister to speak at an early point in the debate and before the noble Lord, allowing for others to speak and not to follow the normal rule of the Minister speaking last before the mover of the amendment.

I know that the noble Lord has a great deal more experience of the House than do I, and of this stage in particular, but I believe that the Minister can speak early in a debate without precluding others from speaking after him.

Lord Mackay of Ardbrecknish: My Lords, while I accept that, it must be said that last week there was a dispute about noble Lords speaking after the Minister. I was attempting to avoid the same guidance coming not from the noble Lord, Lord Bach, but from a different Whip who tends to try to keep your Lordships in some semblance of order!

The noble Lord, Lord Peston, must be the only person who does not understand what is going on. We read it in the newspapers. The speech by the noble Lord, Lord Lester, was not a good example of freedom of information, because the one piece of information that he did not give, especially when I intervened to ask why he spoke to amendments which were not part of the group, was that he and his noble friends had done a deal with the Government on these matters. I do not normally read the Guardian, but the following article in Saturday's issue was drawn to my attention:

"Liberal Democrats agree pact on Information Bill".

The Financial Times said:

"Liberal Democrats' deal set to ease the path of the data access Bill".

Robert Shrimsley wrote in that newspaper:

"Ministers believe that they have headed off defeat on the Freedom of Information Bill in the House of Lords next week after striking a deal with the Liberal Democrats to ensure its passage. The Home Office has accepted four amendments tabled by Liberal Democrat Peers".

Those were the four amendments to which the noble Lord referred. The noble Lord could have been free with information had he described the purpose of the other amendments outside the group, if he intended to explain helpfully the package that had been agreed with the Government. I shall not complain too much. However, at Committee stage I and a number of other noble Lords were on the same side as the two noble Lords on the Liberal Democrat Benches--I was in awe of their speeches on the whole subject--and it would have been nice if they had indicated their intention to desert the field of battle without any grapeshot having been fired, accept some crumbs of comfort from the

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table of the noble and learned Lord, Lord Falconer, and abandon ship. They have abandoned ship to a fairly puny lifeboat.

It is clear that the noble Lord, Lord Lester, was a little sensitive. He drew attention to the article in the Guardian by Hugo Young. I am not surprised that the noble Lord did not draw attention to the headline.

3.30 p.m.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. He provokes me to get to my feet, which I had not intended to do. Without seeking to cause offence to the Conservative Benches, if my choice of ally is between the present Government, who have introduced an admirable White Paper and a Bill which, though defective, at least creates a statutory right of access to the public, and the Conservative Party which during 18 years in power could not come up with anything other than a voluntary code--for which I commend it--and was always opposed to a statutory right of public access, on this occasion I unhesitatingly choose the new Labour Government over the old and new Conservative Party.

Lord Mackay of Ardbrecknish: My Lords, it is amazing that the Bill which the noble Lord now supports is in some ways less open than the code of practice introduced by my right honourable friend John Major. I now know that next time I sup with the Liberal Democrats I should use an even longer spoon.

The headline in the Guardian was,

"See the Lib-Dem approach: compliant, abject and half-baked".

The noble Lord, Lord Lester, did not quote the whole article, which your Lordships should hear:

"The progressive alliance which got [the Bill] this far is, however, turning into a conspiracy to gut true reform. From the Government, this has been signalled for a long time".

I suppose that it was signalled the day that David Clark was sacked and the White Paper was watered down to form the Bill. It goes on:

"What is new and shocking is the willingness of the Liberal Democrat Peers to assist in the butchery".

It is not just Hugo Young and myself who believe that the Liberal Democrats have sold themselves short. In a letter to me dated Monday of this week Charter 88 states that it is,

"disturbed to learn of the reported details of the agreement reached between the Liberal Democrats and the Government over the Freedom of Information Bill ... Bearing in mind particularly the furore surrounding recent incidents, such as the Hatfield rail disaster and the BSE report, we find it difficult to believe that the deal to secure the passage of the Government's Bill will command public support. This makes the collapse of Liberal Democrat support for the most important amendments outlined above all the more surprising".

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The Campaign for Freedom of Information is also fairly scathing:

"The four amendments in themselves are helpful"--

indeed, they provide a little help--

"but they represent only limited progress on issues of mainly secondary importance and do not in our view address the Bill's key shortcomings. We cannot see how they justify ending all serious efforts to amend the Bill, particularly at this critical stage".

I would have thought that it would have been in the interests of the Liberal Democrats and ourselves to send some bits of this Bill back to the other place, where a significant number of the Government's own supporters are very unhappy with this watered-down version, to see whether some real progress could be made. For whatever reason, the Liberal Democrats have decided not to do that. My arithmetic is not bad, but I am aware that, even if I gain the assistance of a few noble Lords on the Government Benches, if the Liberal Democrats march into the Division Lobby with the Government my chances of sending much of this Bill back to the House of Commons are greatly limited. If we had stuck together we could have sent back some fairly substantial amendments.

I have no doubt that in a few moments the noble and learned Lord, Lord Falconer, will turn to these amendments. In Committee he told us gracefully about the balancing process. He admitted that when there was a balance the presumption would be in favour of disclosure. The effect of the amendments before us--I support them to this extent--is that there will be disclosure if the total balance is in favour of it. The noble Lord, Lord Goodhart, said in Committee:

"It is fair to say that I doubt whether, in practice, this will make an enormous difference. In most cases, it will be possible for whomever is adjudicating to come to a decision on whether one interest does in fact outweigh the other. But the fact that the statute calls for maintaining the exemption in cases of equality sends absolutely the wrong signal".--[Official Report, 17/10/00; col. 908.]

Therefore, we are talking about something which will not happen very often. This is not a huge step forward for anyone, let alone mankind or freedom of information.

Although I am grateful to the Government for signalling--as they will shortly in the person of the noble and learned Lord, Lord Falconer--that they intend to accept this amendment, I am not impressed. I would rather they accepted the amendment in the name of their noble and learned friend Lord Archer. The noble and learned Lord's amendment goes further and introduces into the debate the word "clearly". Therefore, for secrecy to be maintained it must clearly outweigh the public interest over disclosure. I believe that that is a much more powerful way to look at it. If they balance out equally there shall be disclosure, but the use of the word "clearly" makes the amendment much more important, and better, than that of the Liberal Democrats. To tempt the noble and learned Lord, Lord Archer, if he decides to put his amendment to a vote we shall join him in the Division Lobby.

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