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Lord Goodhart: My Lords, I rise to speak to Amendment No. 28 which is grouped with Amendments Nos. 21 and 22. I have a good deal of sympathy with the amendment that the noble Lord, Lord Mackay of Ardbrecknish, has just moved. But there is a problem. While, undoubtedly in the great majority of cases, it is and should be possible to take a decision within a 20-day period both on exemption and on the question of disclosure under Clause 2, there are nevertheless certain cases of particular sensitivity where consultation may be needed about the possible consequences of disclosure. Therefore, it is reasonable that a further period of time should be allowed. For that reason, we have tabled a considerably more modest amendment than the noble Lord's amendment. The amendment requires a public authority to give an estimate of the time it will take to reach a decision. That will set a bench-mark against which it can be tested.
The issue must be looked at against the background of Clause 10(3) which does not give a public authority an open-ended discretion as to the time it can take; it must comply within such time as is reasonable in the circumstances. We think that it will help if the public authority is not merely allowed to take a reasonable time, but must make and publish its own estimate of what a reasonable time is. I recognise that a public authority will give itself as much time as it thinks it may possibly use, but it is more likely to give a reasonable time for the estimate. That is likely, therefore, to have a beneficial effect in speeding up the time within which decisions are taken.
Lord Lucas: My Lords, I should have thought that the natural thing would be to say, "just a couple of weeks". Having waited a couple of weeks, one can usually persuade someone to wait a couple more weeks. If one is capable of reaching a decision within the first two weeks, that will give ample time to spin matters out. After a month it may be that the information has been rendered useless by other actions or other decisions that have been taken to deal with a problem which would have been brought to light earlier had the information been available more promptly.
In this and other areas where the timescales are undefined, what is lacking in the Bill is any sense of urgency. There is no imposition of urgency or promptness or mention of "as quickly as you can" or anything else. There is nothing to give the information commissioner some teeth to bite on authorities which do not so much delay unreasonably but generally dawdle and stretch timescales as much as they can.
I think that the Liberal Democrats have sold the pass very cheaply and that we could have achieved something a good deal better with their co-operation. It is clear that the point was understood by the Government in Committee. It is clear because the Government have agreed to the Liberal Democrat amendment. It is a great shame that the Liberal Democrats should have settled for such a little advance when, without any great difficulty, the Government could have conceded something much more useful.
6.30 p.m.
Lord Bassam of Brighton: My Lords, I was going to say, until I heard the noble Lord, Lord Lucas, that there was not a great deal between us on this issue. We debated the issue at an earlier stage. The Government explained the complexities which might lead to applications for information involving public interest disclosure decisions taking longer than 20 days to resolve. As the noble Lord, Lord Mackay, said, in 92 per cent of cases there is likely to be compliance with that deadline. We should all feel very pleased about that. It rather undermines the point made by the noble Lord, Lord Lucas.
The Government have a real concern that if time is short, authorities may be more likely to withhold information than disclose it, on the basis that where there is insufficient time to consider the matter properly it is better to be safe than sorry. On the other hand, authorities may decide not to consult those affected by disclosure on the basis that it would take too long. A properly considered decision that perhaps takes a little longer seems to me far better than an ill-considered one produced within a wholly unrealistic timescale. Thus the Bill provides for a reasonable limit in order to ensure that decisions are taken soundly.
Amendments Nos. 21 and 22 would have the effect not only of disadvantaging authorities by imposing an impractical time limit on them but might also disadvantage perversely applicants and others affected by disclosure, by causing decisions on the public interest to be taken hastily. The amendments would result in ill-considered decisions by authorities and work against the very culture of openness that the Government are seeking to achieve with this legislation. For those reasons, I invite the noble Lord, Lord Mackay, to withdraw the amendment.
Amendment No. 28, tabled by the noble Lord, Lord Goodhart, and others, concerns the timetable for making a decision where information which is requested is covered by an exemption, but not an absolute exemption; that is, where Clause 2 requires the public authority to determine where the public interest lies. The Government believe that it would be wrong to set an arbitrary time limit on decisions on disclosure in the public interest for all the reasons we have just been debating. However, we have listened to the strength of feeling on this issue. Having given further consideration to these matters, we accept that
Amendment No. 28 is sensible, reasonable and practical in the circumstances, and that we can support the changes which the amendment would introduce.Failure to provide an estimate of time would mean there was failure to comply with the requirements of Part I of the Bill. The commissioner would therefore be able to issue an enforcement notice under Clause 51(2), or a decision notice under Clause 49(4). In the light of the amendment, if accepted, the Government make a commitment to add a reference in the Secretary of State's code of practice under Clause 44 to the desirability of complying with estimates given. Failure to comply with the estimate would render the authority liable to a practice recommendation from the commissioner under Clause 47. So, to answer the point made by the noble Lord, Lord Lucas, there is a series of steps which give the provisions some teeth.
Finally, I should say that the Government remain of the view that wherever possible all information should be disclosed within a 20-day time period. That too--I give a commitment--will be reflected in the Secretary of State's code. For that reason, I commend Amendment No. 28 to the House.
Lord Mackay of Ardbrecknish: My Lords, noble Lords should not be in the least surprised by the fact that the Government accept Amendment No. 28 as that was one of the four deals done by the Government with the Liberal Democrats. I am not entirely sure whether the Liberal Democrats think that that amendment is a great grain of comfort. I do not think it is very much. Frankly, I am not convinced. The idea that authorities might be more likely to withhold information if they are asked to provide it within 20 days would soon be ended when it became public knowledge that authorities were behaving like that. They would find themselves at the rough end of the courts, the commissioner or indeed Parliament.
I do not believe that four weeks represents hasty, although the time it takes to get letters out of some government departments suggests that four weeks is but a twinkling of an eye for them and that they do not think it matters. I think it is important that we have 20 working days. I am sorry that the Liberal Democrats are not with me. I am going to ask the opinion of the House.
6.35 p.m.
On Question, Whether the said amendment (No. 21) shall be agreed to?
Their Lordships divided: Contents, 79; Not-Contents, 148.
Alton of Liverpool, L.
Astor of Hever, L.
Attlee, E.
Belstead, L.
Brabazon of Tara, L.
Bridgeman, V.
Brougham and Vaux, L.
Burnham, L. [Teller]
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Croy, L.
Carnegy of Lour, B.
Carr of Hadley, L.
Chadlington, L.
Clark of Kempston, L.
Colwyn, L.
Cope of Berkeley, L.
Crathorne, L.
Crickhowell, L.
Cumberlege, B.
Dean of Harptree, L.
Dixon-Smith, L.
Elliott of Morpeth, L.
Elton, L.
Ferrers, E.
Fookes, B.
Glentoran, L.
Goschen, V.
Hanningfield, L.
Hanson, L.
Henley, L. [Teller]
Higgins, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howe, E.
Hunt of Wirral, L.
Jopling, L.
Kimball, L.
Knight of Collingtree, B.
Lawson of Blaby, L.
Lucas, L.
Lyell, L.
Mackay of Ardbrecknish, L.
Mar, C.
Molyneaux of Killead, L.
Monro of Langholm, L.
Montrose, D.
Moynihan, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Norton of Louth, L.
O'Cathain, B.
Palmer, L.
Park of Monmouth, B.
Pilkington of Oxenford, L.
Rawlings, B.
Reay, L.
Rees, L.
Renton, L.
Roberts of Conwy, L.
Ryder of Wensum, L.
Saatchi, L.
Seccombe, B.
Selsdon, L.
Shaw of Northstead, L.
Skelmersdale, L.
Skidelsky, L.
Soulsby of Swaffham Prior, L.
Stodart of Leaston, L.
Strathclyde, L.
Thomas of Gwydir, L.
Vivian, L.
Waddington, L.
Walpole, L.
Wilcox, B.
Williamson of Horton, L.
Young, B.
Acton, L.
Addington, L.
Ahmed, L.
Alli, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Bath and Wells, Bp.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Blease, L.
Borrie, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Carter, L. [Teller]
Chandos, V.
Christopher, L.
Clarke of Hampstead, L.
Clement-Jones, L.
Cocks of Hartcliffe, L.
Cohen of Pimlico, B.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Goldsmith, L.
Goodhart, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greaves, L.
Grenfell, L.
Hardy of Wath, L.
Harris of Greenwich, L.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Haskins, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jacobs, L.
Janner of Braunstone, L.
Jay of Paddington, B. (Lord Privy Seal)
Jenkins of Putney, L.
Kirkhill, L.
Lea of Crondall, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mackie of Benshie, L.
McNally, L.
Merlyn-Rees, L.
Methuen, L.
Mitchell, L.
Molloy, L.
Morgan, L.
Morris of Castle Morris, L.
Morris of Manchester, L.
Newby, L.
Nicol, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
Orme, L.
Parry, L.
Patel, L.
Patel of Blackburn, L.
Plant of Highfield, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Razzall, L.
Rea, L.
Redesdale, L.
Rendell of Babergh, B.
Rennard, L.
Richard, L.
Rodgers of Quarry Bank, L.
Scotland of Asthal, B.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shepherd, L.
Shutt of Greetland, L.
Simon, V.
Smith of Leigh, L.
Strabolgi, L.
Strange, B.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thomas of Walliswood, B.
Thornton, B.
Tomlinson, L.
Tordoff, L.
Turnberg, L.
Uddin, B.
Walker of Doncaster, L.
Wallace of Saltaire, L.
Walmsley, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Richmond, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Crosby, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Winston, L.
Woolmer of Leeds, L.
Young of Old Scone, B.
Resolved in the negative, and amendment disagreed to accordingly.
6.45 p.m.
[Amendment No. 22 not moved.]
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