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Lord Lucas: My Lords, I am grateful for that explanation. I am sorry that paragraph (b) is not accepted. I thought that it would have some very interesting effects. However, I have been spotted coming, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Fees]:

6.15 p.m.

Lord Mackay of Ardbrecknish moved Amendment No. 18:

Page 6, line 19, leave out ("may") insert ("shall").

The noble Lord said: In moving Amendment No. 18 I speak also to Amendments Nos. 19 and 20. These amendments would require, instead of merely permit, the Secretary of State in his regulations under Clause 9(3) to specify the cases in which fees might or might not be charged, to set a maximum fee and to say how the fees should be calculated. Amendment No. 18 would confirm implementation of the subsections of Clause 4 which currently take the form of guidance

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rather than statutory requirements. It would then require fees regulations to reflect the provisions set out in the Bill and avoid circumstances in which the Secretary of State would have too much discretion, thereby allowing Parliament to be given a say in establishing the boundaries of the fee regulations. The amendment would prevent the imposition of unreasonable and restrictive fees on the public where access is potentially limited by the cost of fulfilling the request for information.

Amendment No. 19 creates a presumption that there will be no fee. To allow a fee to be charged in prescribed cases is likely to narrow the circumstances in which it is payable. We believe that it is more in keeping with the "Freedom" part of the Bill to prescribe those cases that involve fees and thus highlight that the information can automatically be restricted for some people. This amendment clearly defines when a fee can be levied.

Amendment No. 20 links the fees level to the main purpose of the Bill, which is to facilitate public access. Public authorities must bear in mind that the main purpose of the Bill is to allow members of the public to request information, and nothing must be done which excludes them from requesting that information because of the fee structure. The code of practice allows for information and is not subject to a charge, but under the Bill fees are to be charged on a basis set out in regulations issued by the Secretary of State. These amendments seek to prevent too high a level of fee being charged, which results in members of the public being unable to exercise their rights. The amendments seek to prevent a financial fissure being created between those who can afford access to information and those who cannot.

I wonder whether in this case I may tempt the Liberal Democrats to join me, despite the deal that they have made. Perhaps I may remind the noble Lord, Lord McNally, of his observations in Committee on 17th October. I was not present on that occasion; I was in Scotland on a rather sad occasion. The noble Lord said:

"As the noble Lord, Lord Cope, said, if the means of gaining access to information were in any way to be a deterrent--if freedom of information was like the freedom to dine at the Ritz; in other words, you could get information if you could afford it--that would be against the spirit of what I hope we all intend to be a revolutionary Bill".--[Official Report, 17/10/00; col. 993.]

Having reminded the noble Lord of his words, I hope that I can look forward to his support.

Lord Bach: My Lords, we have been round this circuit before, but on that occasion there was a different driver on each side. As the noble Lord said, for a sad reason he was unable to be present. At that time another of my noble friends answered the debate and that task falls to me today. Noble Lords opposite were not fully persuaded by the arguments employed last time, perhaps because the noble Lord, Lord Mackay of Ardbrecknish, was not present to advise them of the good sense of those arguments.

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Amendment No. 18 would not have the effect of compelling the Secretary of State to make regulations but simply require that any regulations that might be made should include provisions to give effect to the matters listed in Clause 9(4). We believe that that is too prescriptive. It is quite sufficient to specify the particular matters which the Secretary of State may wish to consider, including in regulations, which is the effect of the clause as drafted. Regulations need to have a somewhat greater degree of flexibility than the primary legislation upon which they depend so as to enable them to adapt within the parameters set by subsection (4) to circumstances and practical experience. We believe that that is a reasonable and balanced way to proceed, rather than force the regulations needlessly to cover matters which practical experience and circumstances show that they do not need to cover.

Amendment No. 19 would force the Secretary of State to prescribe in the regulations the circumstances under which a fee might be charged. It was said in Committee that this did not take sufficient account of the scope of the legislation. This amendment, if passed, would require the Secretary of State to identify all types of information and the circumstances under which any one of the 50,000 authorities within the scope of the Bill might charge. Just to state it proves the impossibility of that task. But even if it could be achieved, the effect would be to produce regulations which would be complex, confusing and difficult to interpret. For the smallest public authority, any omission or failure properly to comprehend the implications could have a significant effect on its operational and financial viability, and that would be too high a price to pay. What we propose in comparison is sensible, comprehensible and, above all, deliverable and will ensure that the public are able to exercise their right of access to information without overcharging or obstruction through the fees structure.

Amendment No. 20 would introduce a statutory duty to set fees at a sufficiently low level to facilitate access to information by applicants. That is not necessary. The regulations will provide that the greater part of the costs of disclosing information under the Bill will be met by the public purse. The appropriate way to do that is through the detail of the regulations. A statement of a statutory duty to provide for a low level of fees to "facilitate" public access to information would be vague and unenforceable. What level would constitute "sufficiently low"? Should the fee be means tested to ensure that a wealthier person should pay a fee more commensurate with his level of income? Arguably, any fees would put people off to varying degrees, depending upon their means. No fees as such facilitate access to information. Looked at like that, the amendment could be seen even as unfair and counter-productive. The intention behind the amendment is clearly commendable, but we do not think that it will achieve the aim that it seeks.

The Government have published their draft fees regulations. The policy is that the maximum fee should be 10 per cent of the marginal costs of seeking and

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finding the information. We reckon that that is a fairly generous subsidy. I invite the noble Lord to withdraw his amendment.

Lord Mackay of Ardbrecknish: My Lords, I am not overly surprised by the noble Lord's argument. I accept that my words,

"fees are set at a sufficiently low level",

are a tinge on the vague side. But they have achieved what I meant them to achieve. I have on the record a fairly reasonable assurance of the Government's intentions. Although the noble Lord did not put it in as many words, he accepted that people must not be put off because of the fee structure confronting them if they ask for information. I am reasonably content with the noble Lord's answer. I do not know whether that means that the noble Lord made a better effort than his colleague in Committee. But I am prepared to accept that answer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19 and 20 not moved.]

Clause 10 [Time for compliance with request]:

Lord Mackay of Ardbrecknish moved Amendment No. 21:

Page 6, line 28, leave out ("subsections (2) and (3)") and insert ("subsection (2)").

The noble Lord said: My Lords, in moving Amendment No. 21, I shall speak also to Amendment No. 22. Under Clause 10, decisions on whether information is exempt must be taken within 20 working days. However, decisions on whether to disclose exempt information on public interest grounds are not subject to any time limit. Clause 10(3) allows these decisions to be taken within,

"such time as is reasonable in the circumstances".

That could allow decisions to drag on for indefinite periods, either because the authority was obstructive or merely because it had no formal target at which to aim. Because the public interest test is the sole basis for access to information covered by many of the class exemptions, all requests for such information would be subject to no real time limit at all.

Amendment No. 21 seeks to delete Clause 10(3). The effect of that would be to require decisions on public interest grounds to be taken within the same 20-day period as decisions on whether an exemption applies. That is in line with the existing code of practice, which has a 20 working-day period for all requests, regardless of whether or not the code's public interest test is involved. Home Office figures indicate that the 20-day target--or the shorter time limit set by some departments--is complied with in 92 per cent of cases. So it is not an impossible target.

The code's approach has been adopted in the Aarhus convention on access to environmental information, to which the Government are a signatory. The DETR in its consultation paper--Proposals for a Revised Public Access to Environmental Regimes published on 18th October 2000--said that it supports the convention's approach to time limits. The

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convention requires that information must be supplied as soon as possible and at the latest within one month of the request. All exemptions under the convention incorporate a public interest test. So this one month covers all decisions on which the public interest test has to be taken into account. We should put a time limit of 20 days in the Bill. That limit is used in other parts of the Bill. The code indicates that departments are able to meet that limit in the vast majority of cases. I beg to move.

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