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Lord Williamson of Horton: My Lords, I know nothing of a deal struck between the Liberal Democrats and the Government, nor anything of the Conservative Whip. However, I should like to intervene at this point because it is important that we achieve the best possible provision for the availability of factual information and its analysis for the public. I start from a different point. I think that the availability of factual information should be automatic, but because we shall not reach that point, we shall have to see how far the Bill would be improved by the amendments that we are discussing.
I shall start with the amendment spoken to by the noble Lord, Lord Goodhart. I support the amendment, although I must say that I admire the way in which he was able to convince himself of its importance. Perhaps I may say that it is drafted in a style which I could easily have used myself during many years of drafting provisions. The noble Lord has used the phrase,
- "regard shall be had to the particular public interest".
I shall turn now to Amendment No. 42, tabled by the noble Baroness, Lady Whitaker. This amendment has the advantage over Amendment No. 43 in that it is more specific. It changes the onus of proof--in the same way that we discussed on an earlier amendment--by stating that,
- "Information is not exempt ... insofar as it consists of factual or statistical information, or the analysis of such information, unless its disclosure",
Lord Archer of Sandwell: My Lords, perhaps I may first apologise to the House. The reason why my noble friend did not rise immediately to speak to her amendment was that I distracted her attention over a different matter.
This is a serious problem. There have been few provisions in the Bill which have attracted more universal criticism than Clause 34 as it is presently drafted. In Committee, the noble Lord, Lord Goodhart, described it as one of the most objectionable provisions in the Bill; he said that it was a step backwards from both the code and the White Paper. He attracted universal agreement to that proposition.
My noble friend Lord Brennan invited my noble and leaned friend to point out in what respect the existing code had failed to work. He received no reply. If the existing code was working, one needed to do very little but enact it in the Bill.
My noble friend Lord Borrie asked why it should be assumed that it is against the public interest for information about government policy to be disclosed. That is a question which seems to be shared by my right honourable friend Nick Brown and by the noble Lord, Lord Williamson.
Amendment No. 43 would improve that situation--it is certainly better than what we have now--but it would simply require whoever takes the decision to have regard to the matters in question. My noble friend's amendment is more decisive in the direction of disclosure. The danger which appears to concern the Government is provided for in the amendment. I hope that my noble and learned friend will allow us to be competitive on this occasion and to prefer Amendment No. 42.
I hope that my noble and learned friend will not revert to the argument that he used on many occasions in Committee. Where the exclusion is defined by category without a harm test, my noble and learned friend tells us that it does not matter if the category is too wide; we should not trouble ourselves about the breadth of a category because it is all subject to the public interest test. Yet when we come to discuss the appropriate boundaries of a category, we are always told that we are trying to cast the boundaries too wide.
The difficulty in relying on the public interest test--I was rather expecting to develop this argument at a later stage; I have only just realised that Amendment No. 42 was grouped with an earlier amendment--is that the overall problem which casts its clammy hand over the Bill is that the last word on the public interest override lies with a senior member of the Government--a Cabinet Minister--or an appropriate Minister from the Welsh or Northern Ireland Assemblies.
At this stage we have not brought forward an amendment to deal with that because the Government's mind appears to be made up. However, if we are then invited to look at the stage where the matter is decided on the public interest override, we have to bear in mind that the last word will be with someone who is acting as judge in their own court. But for that, we may have gone along with a great deal of what is in the Bill.
I hope that when my noble and learned friend looks at this issue he will agree that something more forceful is required in Clause 34.
4.15 p.m.
Lord Goodhart: My Lords, before the noble and learned Lord sits down, does he agree that the significant point in Amendment No. 43 is not the words "regard shall be had" but the recognition in that amendment that there is a particular public interest in the disclosure of factual information? The force of Amendment No. 43 lies in that wording. That is why Amendment No. 43 is a substantial improvement on the previous drafting.
Lord Archer of Sandwell: My Lords, I agree entirely that Amendment No. 43 is a substantial improvement on the previous drafting. It certainly was not my intention to criticise it. But when the noble Lord says that it recognises the public interest in disclosure, I suppose that a cynic may reply, "We all know there is a public interest in disclosure. That is the basis of our arguments on the Bill. It is about balances". I do not think it does any harm to remind people. As I say, I certainly would not wish to criticise the noble Lord's drafting.
Lord Lester of Herne Hill: My Lords, before the noble Lord, Lord Mackay of Ardbrecknish, accuses those on these Benches of being party to a dreadful conspiracy, perhaps I may give him further ammunition by outlining why, with respect, there is a great deal to be said for Amendment No. 43, and by
explaining some of the problems with Amendment No. 42, even though they have common cause in what they seek to do.Perhaps I may first say something about the contribution made by the noble Lord, Lord Williamson. I very much appreciate what he said. However, if he were to look at the draft EC regulation now being presented on public access to information, he will find it a good deal less liberal than his own sentiments. If he reads the report of the House of Lords Select Committee on the subject, he will see why this House, through that Committee, wishes for something stronger on the European Union level.
Secondly, he said that he could have drafted Amendment No. 43. I am sure that is right. He would have looked at the Human Rights Act and seen that in that Act--which is a charter of freedom--exactly the same approach is being used in respect of regard being had to the particular public interest in freedom of expression as a way of steering the courts in the direction of openness and against an unnecessary and disproportionate restriction on free expression. That is why the words used in Amendment No. 43 are not weak; they give a very clear steer to the information commission and to the courts.
My third point is this. Of course it is right that Amendment No. 42, which stands in the names of, among others, the noble Baroness, Lady Whitaker, and the noble and learned Lord, Lord Archer of Sandwell, reflects what is in the Irish legislation and in the Australian legislation. We are not eating our words in saying that there is an enormous amount to commend that amendment. But it is not right to say--I am sure neither of them have said so--that it automatically provides for the disclosure of factual information. It provides a qualified right because it contains the words,
- "unless its disclosure would be contrary to the public interest by reason of the fact that the applicant would thereby become aware of a significant decision which the government department"--
- "proposes to make".
It may not have occurred to everyone that the effect of Clause 2 when read with Clause 43 is to provide a presumption of disclosure, not only for factual information but also for policy advice; and not only for factual information before a decision is reached but also for factual information after a decision is reached. In one sense, therefore, Amendment No. 43 is much wider than Amendment No. 42 and in another sense it is narrower.
I submit that it is better not to seek to draw distinctions between pre-decision and post-decision information but to have the wider test in Clause 2 read with the positive steer in Amendment No. 43. These are not great issues of principle; we are simply arguing about the most effective means of achieving the same end.
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