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Lord Archer of Sandwell: My Lords, I am most grateful. What I had misunderstood was not the Bill but the noble Viscount. Clearly, we are at one on that. The amendment has improved the position by swinging the balance from one way to the other.

I was rather puzzled by a point made by the noble Lord, Lord Lester. He said that the Campaign for Freedom of Information had overlooked the provision for the public interest override. I do not think that it has done that at all. I believe that it thinks, as I confess I do, that we must not overrate the importance of the concession made by my noble and learned friend. As he emphasised in Committee, we are talking about not the burden of proof but the tie-breaker. We have improved the situation if there is a tie and the person concerned cannot make up his mind one way or the other. It would be a mistake to give the impression that we have gone further than that. As the noble Lord, Lord Goodhart, very fairly put it in his argument in Committee, that is precisely what was being aimed at. It is about sending signals. I quite agree that that is an important reason for welcoming my noble and learned friend's response.

Other matters may engage our attention later. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Principal Deputy Chairman of Committees: My Lords, in calling Amendment No. 2, I have to advise the House that if it is agreed to, I cannot call Amendment No. 3.

Lord Lester of Herne Hill moved Amendment No. 2:

("(1) Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either--
(a) the provision confers absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information,
section 1(1)(a) does not apply.").

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The noble Lord said: My Lords, I have spoken to Amendment No. 2 all too fully. I beg to move.

On Question, amendment agreed to.

[Amendment No. 3 not moved.]

Lord Lester of Herne Hill moved Amendment No. 4:

    Page 2, line 21, leave out from ("apply") to end of line 27 and insert ("if or to the extent that--

(a) the information is exempt information by virtue of a provision conferring absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 5 not moved.]

Lord Lucas moved Amendment No. 6:

    Page 2, line 27, at end insert--

("(2A) In assessing the public interest in disclosing the information under subsection (2)(b) above, particular weight shall be given to the desirability of making factual information freely available to the public.").

The noble Lord said: My Lords, Amendment No. 6 is grouped with Amendments Nos. 42 and 43. We have already heard a little about Amendment No. 43. I do not intend to press Amendment No. 6. I tabled it as a placeholder for a promise made by the noble and learned Lord the Minister in Committee to restore to the Bill a provision which had in error been struck out by the government amendment to Clause 13.

Two points arise in relation to Amendment No. 6 and Amendment No. 43, which apparently is to be accepted by the Government. First, why does not the concession on factual information apply to Clause 35? When the provision was in Clause 13 it was of general application. I have looked through the various exemptions and can see that there are many in relation to which a prejudice in favour of disclosure of factual information would have no relevance. But it does have a considerable relevance in relation to Clause 35. Why has the Minister brought back the provision in such a restrictive way that it now applies only to Clause 34?

Secondly, I should like to refer to the amendment that is to be proposed by the noble Baroness, Lady Whitaker. I am interested in the extent to which the word "factual" precludes information which might reasonably be released to the public by way of statistical information or analysis. The noble and learned Lord was kind enough to write to me with a definition of "statistical", for which I asked in Committee. He has accepted the definition of the Office for National Statistics that a statistic is a quantitative fact or statement. I presume, therefore, that "factual" embraces qualitative, but to what extent is analysis contained in that? If I have a collection of facts which are analysed in a dispassionate way--a statistical analysis of the facts--is that still a fact? The noble and learned Lord said in his letter that he had

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included in it a couple of illustrations. Unfortunately, they were not in the envelope; nor has his office been able to supply them since my request to it this morning.

Lord Falconer of Thoroton: My Lords, I apologise. I was fully aware of that this morning. My office immediately told me of this disaster when the news was brought to it by the noble Lord this morning. I am sorry that the attachments have not yet reached him. I shall try to ensure that they do before the end of the day.

Lord Lucas: My Lords, I shall read them with great fascination when they arrive. We need to know how the Minister interprets the word "factual". When I was in government most of the papers I saw that formed the basis of decisions had a lot of facts in them. But the facts were not just randomly arranged on the page; they were supported by analysis so that one could see an interpretation of them. Part of the science of statistics is putting facts in a way that enables decisions to be made from them. I hope that the noble and learned Lord understands "factual" to include that kind of analysis but to exclude speculation based on that analysis, which would fall outside "factual". I hope that the noble and learned Lord will be able to enlarge on the definition of "factual". If not, I would be very happy to have a letter before Third Reading. I beg to move.

Lord Goodhart: My Lords, as the noble Baroness, Lady Whitaker, does not appear to be rising at this point to speak to Amendment No. 42, perhaps I may speak to Amendment No. 43. The noble Baroness will no doubt speak later. Amendment No. 43 is very important indeed. Clause 13(5) of the Bill as it originally appeared from the Commons stated that in considering access to government information under what was then Clause 33--I should say in response to the noble Lord, Lord Lucas, that it was never wider than Clause 33--regard should be had to the public interest in obtaining background information. That provision was apparently left out by accident when Clause 13 was replaced by Clause 2--at any rate, so we were told. We have now brought forward an amendment which we believe strengthens significantly what was originally contained in Clause 13(5). It is further strengthened when Amendment No. 43 is read together with the amendments to Clause 2 which have just been approved.

It is fair to say that we would have preferred a simple amendment recognising that there is a right not only to statistical information but also to other forms of factual information. That would have given a more easily understandable provision. However, the Government were unwilling to accept that. They took the view that it is a difficult job to separate factual information from opinion information. Be that as it may, we have now come back with an alternative version. It states that,

    "regard shall 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".

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If we accept that the public has a "particular" interest in the disclosure of factual or background information and then add to that the change in what I would regard as the balance of the burden of proof under Clause 2--even if the Government do not strictly accept that--then we will reach a situation in which the Government will have to overcome a substantial hurdle if they are to withhold factual or background information, whether that is done before or after a decision is taken.

I am not sure whether the noble and learned Lord, Lord Falconer, will accept this, but we regard this as being in all but name a prejudice test. It will be necessary, first, for the information commissioner to take into account the particular public interest in the disclosure of background factual information. Secondly, she will have to recognise that that interest has to be outweighed by the public interest in non-disclosure. Frankly, unless it can be established that disclosure would cause significant harm to the public interest, we do not see how that hurdle can be overcome. That is why I have said that we feel that this is, in all but name, a prejudice test--something that we and other organisations such as the Campaign for Freedom of Information have been asking for over a long period of time.

On that basis, we feel that if Amendment No. 43 is accepted, it will represent another very important step forward in improving the quality of the Bill and the power it will confer on members of the public and the media to obtain information which properly should be disclosed. I shall not move the amendment--I am mindful of the noble Countess, Lady Mar--but I advocate most strongly the proposals which we have put forward in Amendment No. 43.

4 p.m.

Baroness Whitaker: My Lords, our Amendment No. 42 is more clear cut than Amendment No. 43, which states only that,

    "regard shall be had to the particular public interest in the disclosure of factual information".

The amendment removes "factual or statistical information" and its analysis from the scope of three of the four class exemptions in Clause 34; namely, information relating to the formulation or development of government policy, ministerial communications and the operation of Ministers' private offices. Where, however, the facts or their analysis point to a forthcoming decision and disclosure would be contrary to the public interest, the information could be withheld.

The amendment is designed to improve a useful and valuable Bill. It is in line with Section 20(2)(b) of Ireland's Freedom of Information Act 1997, which removes from a similar exemption,

    "factual (including statistical) information and the analyses thereof".

Chaos does not seem to have broken out in Ireland during the three years since the Act was passed. Our

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amendment is also in line with the existing UK Code of Practice on Access to Government Information, which requires government departments,

    "to publish the facts and analysis of the facts which the Government considers relevant and important in framing major policy proposals and decisions".

The amendment would give effect to current best practice in government, as exemplified by my right honourable friend the Minister for Agriculture, Fisheries and Food in his Statement in another place on the BSE inquiry on 26th October, when he said that:

    "It is clearly right--certainly with the advantage of hindsight"--

which we have now--

    "to trust the public, put the advice available to government into the public domain and encourage a responsible debate around scientific advice".--[Official Report, Commons, 26/10/00; col. 396.]

That was echoed by my noble friend the Minister in your Lordships' House on the same day:

    "one of the lessons to be learnt from this is that it is necessary to be willing to expose uncertainties and to air balances of evidence and the consequent judgments that are made".--[Official Report, 26/10/00; col. 495.]

It is further echoed in the guidelines issued by the Government's Office of Science and Technology in July of this year, where at paragraph 26 it states that:

    "Departments should aim to publish widely the scientific advice and all the relevant papers, so that those outside can satisfy themselves about the process by which the advice was formulated and that the conclusions are correctly drawn".

In our view, this amendment would make an essential improvement to this important and desirable Bill, an improvement such that the kind of secrecy over the devastating harm done by BSE, and the resulting lack of remedial measures which could have saved lives tragically cut short, would have been impossible to maintain. We need this simple, straightforward but fundamental provision to complete the Freedom of Information Bill.

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