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Lord Lucas: My Lords, although I suspect that many of us on this side of the House would today like
to drop the Liberal Democrats into the Trinidad tar pits, it appears that they are seeking to camp on my Amendment No. 51, which is consequential on their Amendment No. 25. I am ever grateful for whatever small crumbs may fall second-hand from the Government's table.If my understanding that the amendment is to be accepted is right, this would seem to be a sensible moment for the Government to say so. If not, I am still grateful for the Liberal Democrats' presence on the amendment because it will give us something to talk about together when we get to that moment.
Lord Falconer of Thoroton: My Lords, I am aware of the strength of feeling which was expressed in Committee about the arguments for placing a duty on public authorities to assist and advise applicants, and that that duty should be on the face of the Bill. I am grateful to the noble Lord, Lord Goodhart, for moving the amendment.
I have always made clear that it is the Government's intention that public authorities should do what is reasonable to help applicants to understand and exercise their rights under the Bill. In the past, I have expressed the Government's reservations about a duty to assist which is open-ended and impracticable to enforce because of its lack of clarity. However, the effect of this amendment is to impose a statutory duty upon public authorities to provide assistance to persons either who make or have made requests for information so far as it could be considered reasonable for the authority to do so.
Subsection (2) of the new clause helpfully clarifies that, where the authority has provided advice and assistance to the applicant in conformity with the guidance in the Secretary of State's code of practice, that authority shall be deemed to have complied with the statutory duty to assist. I can give the noble Viscount, Lord Colville of Culross, the assurance that he seeks. The existence of this statutory duty will not lead to a diminution in the substance of the code.
The amendment moved by the noble Lord, Lord Goodhart, would provide a clear message to public authorities about what they must do as a minimum to ensure that they have met the duty imposed by the amendment. Of course, it does not prevent them from going further if they able to do so. Because the duty that the amendment imposes is contained within Part I of the Bill, the duty to assist and advise will be enforceable by the information commissioner. If a public authority fails to comply with its statutory duty to assist, she will be able to issue an enforcement notice under Clause 51 or a decision notice under Clause 49.
The amendment will strengthen the requirement on public authorities under the Bill to assist applicants while ensuring that the duty is both clear and enforceable. I believe that it will make a difference to the culture, which is so important in relation to the effect of the Bill. I commend the amendment to the House.
So far as concerns the amendment referred to by the noble Lord, Lord Lucas, we shall accept it when we reach it, but it is separately grouped. So there is good news coming!
7 p.m.
Lord Hunt of Chesterton: My Lords, perhaps I may comment on this clause. Taking the Bill as a whole, there seems to many to be considerable difficulty as to what extent technical information--
Lord Bach: My Lords, perhaps my noble friend will give way. This is Report stage. After the Minister has replied, apart from the mover of the amendment--
Lord Hunt of Chesterton: My Lords, I should like to ask a question.
Lord Bach: My Lords, if my noble friend will just ask a question, that would be very helpful.
Lord Hunt of Chesterton: My Lords, will the clause refer to the kind of data about which many people are concerned following the floods? I refer to technical environmental information that it is difficult to obtain. Will public authorities be urged to provide the kind of information that people urgently need?
Lord Falconer of Thoroton: My Lords, perhaps the noble Lord, Lord Goodhart, should answer first, as this is his amendment; however, if he will permit me I am happy to respond. This is a duty imposed on local government to assist people in relation to the making of applications for information under the provisions of the Bill. The intention is that it should apply when, for example, someone wants to find out how an application should be framed. To take the example given by my noble friend Lord Hunt, if someone says that he or she seeks available information in relation to flooding, the public authority should assist the applicant in framing the application. If it is a matter of basic factual material relating to flooding, at the moment it is difficult to see what reason there could be for not providing it. The critical point about the amendment is that it focuses on helping people to make their applications. That is what it is designed to deal with.
Lord Goodhart: My Lords, I am grateful to the Minister for accepting the amendment. I am also glad that he has agreed to accept Amendment No. 51, which is plainly consequential on this one. I commend the amendment to the House.
On Question, amendment agreed to.
Clause 16 [Refusal of request]:
Lord McNally moved Amendments Nos. 26 and 27:
- Page 10, line 3, leave out from ("that") to second ("or") in line 4 and insert ("any provision of Part II relating to the duty to confirm or deny is relevant to the request").
- Page 10, leave out lines 14 to 17 and insert--
The noble Lord said: My Lords, I have already spoken to these amendments. I beg to move.
On Question, amendments agreed to.
Lord Goodhart moved Amendment No. 28:
The noble Lord said: My Lords, I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Goodhart moved Amendment No. 29:
The noble Lord said: My Lords, I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 30 and 31 not moved.]
Clause 18 [Publication schemes]:
Lord Norton of Louth moved Amendment No. 31A:
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 31B.
I raised the issue of the wording of subsection (4) in Committee in speaking to an amendment moved by my noble friend Lord Lucas. Under subsection (4),
That assurance is helpful--it goes much of the way to meeting the concern that I expressed--but it still leads to a problem with the wording. If the commissioner has to approve the publication scheme, and that approval extends to the form in which the scheme is published, then I do not see how one can give a public authority the power to publish a publication scheme,
Given that intention, the present wording of subsection (4) confuses rather than clarifies the situation. My Amendment No. 31A is designed to address the problem. It removes reference to the power of an authority to publish a scheme "as it thinks fit" and stipulates instead that the publication shall be in paper and electronic form. It thus removes a power that is broad and misleading and substitutes a clearer and, I believe, appropriate requirement. I appreciate that the stipulation that publication shall be in paper and electronic form could be embodied in the code of practice; however, I note that no such reference appears in the draft code. Putting the stipulation on the face of the Bill strikes me as sensible. It will then be open to the commissioner to give guidance as to the manner in which paper and electronic copies are made available. It would appear to me, therefore, to make the clause internally consistent.
My Amendment No. 31B makes it clear that copies of the publication scheme shall be made available free of charge. I presume that there is no intention that a charge shall be made; however, on my reading of Clause 20, it may be possible for an authority to make such a charge. I do not believe that a charge should be made and I think that, if my interpretation of Clause 20 is correct, that stipulation should appear on the face of the Bill. I beg to move.
("(i) that any provision of Part II which relates to the duty to confirm or deny and is not specified in section 2(3) is relevant to the request, or
(ii) that the information is exempt information only by virtue of a provision not specified in section 2(3), and").
Page 10, line 24, at end insert ("and must contain an estimate of the date by which the authority expects that such a decision will have been reached").
Page 10, line 27, leave out ("does not apply") and insert ("applies").
Page 12, line 9, leave out ("such a manner as it thinks fit") and insert ("both paper and electronic form").
"A public authority shall publish its publication scheme in such manner as it thinks fit".
It was not clear to me at Committee stage that publication of a publication scheme is caught by the provisions governing approval, by the commissioner, of the publication scheme. If it is not covered, then the provision offers the opportunity for an authority that is not well disposed towards disclosing information to devise a way of publishing details of its publication scheme in a restricted manner. The noble Lord, Lord Bach, assured me that it is covered and that publication will be a matter for the commissioner when she determines the set of rules that are to apply to publication schemes.
"in such manner as it thinks fit".
Subsection (4) seems to be negated by subsection (1)(a). The intention, as confirmed by the Minister, is not that a public authority shall publish its publication scheme in a manner in which it thinks fit, but rather in a manner in which the commissioner thinks fit.
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