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Lord Mackay of Ardbrecknish: My Lords, I am not entirely sure that I quite followed that exchange between the noble and learned Lord, Lord Archer, the noble Lord, Lord Goodhart, and the intervention by the noble and learned Lord, Lord Falconer. It may be that this is water into which a non-lawyer should not dip a single toe. But I have done it before so I do not see why I should stop now.
Other organisations outside are equally worried. If they have misinterpreted the provisions of the clause, now is a good time to clear up that matter. For example, I have already quoted the letter that I received from Charter 88 chiding the Liberal Democrats for having sold out rather too cheaply. It highlights this amendment in particular as one which it feels should be addressed. Without this amendment, it considers the Bill to be seriously defective.
- "This clause would protect prosecuting authorities where an investigation could have led to a decision to prosecute".
- "The Health and Safety Executive's former director general, Jenny Bacon, has said that her agency did not require this exemption".
In Committee, the noble and learned Lord, Lord Falconer, appeared to suggest that routine inspections by bodies like the railways inspectorate, the nuclear installations inspectorate, the CAA, the now-called Maritime and Coastguard Agency, environmental health officers and even MAFF were not caught by this exemption. I understand that the noble and learned Lord confirmed later that they are indeed caught. That seems to me to go slightly counter to what noble Lords were saying to the noble and learned Lord, Lord Archer. It may be that all that information is considered to have been received in confidence. If I understood the intervention correctly, that was the point. If the information had been obtained from confidential sources, then it could not be made available on request.
But I should have thought that routine inspections do not come into this category unless, in the course of a routine inspection, somebody has said, "Take it from me, you really want to have a look at that but don't, for goodness sake, quote my name". I suppose that
that gets back to the problem that whistle blowers have when they report something to an authority and they do not want their name to be known in case their employer takes action against them. It is important that such people should be protected; I understand that. But I do not believe that protecting them should necessarily mean that we cast a great cloud of secrecy over all the works of those various safety bodies.Therefore, it seems to me that the noble and learned Lord, Lord Archer, has proposed a fairly modest amendment which puts into the disclosure test whether it would be likely to prejudice investigations or proceedings. If investigations or proceedings are not to take place, then I believe that it should be easier for interested parties to get at the information held. I understand that if there are to be prosecutions, the information should not be divulged before the prosecution takes place. But I should have thought that, after a prosecution or if there is to be no prosecution, the information should be put into the public domain if somebody asked for it.
After all, it could be that one of the regulatory bodies had simply failed to act properly and it will be allowed to keep that covered up. I do not believe that the Minister can be comfortable with that. If we are going down this kind of track, then we need openness. I shall not mention the cases to which reference has been made throughout the evening but we can all think of examples where, if there had been a great deal more openness, then perhaps events would not have developed in the way that they did.
I believe that the noble and learned Lord, Lord Archer of Sandwell, has a very good point. I hope that, if the Minister does not feel able to accept the amendment, then he will perhaps return with his own version on Third Reading so that we are all absolutely certain that those important safety authorities, among others, cannot hide behind a veil of secrecy when they have information about which the public really should know.
Lord Brennan: My Lords, the interventions that I have made on this Bill in the past have been directed particularly at ensuring that the Bill provides freedom of information about health, safety and the environment. Those are matters in which the public are far more interested than the political aspects of the Bill which have taken up so much debate.
My noble and learned friend Lord Archer has indicated the fact that information in those three areas is held by regulatory authorities with the power to prosecute. My noble friend has enumerated many of them. The purpose of Clause 29(1) is to define exempt information. As I read the Bill, it is entirely separate from subsection (2). I invite the attention of the House to the fact that under Clause 29(1)(b) the exempt information will include material arising in "any investigation" conducted by an authority such as the noble and learned Lord, Lord Archer, described, which may lead to a decision to prosecute.
As we lawyers read this Bill, in those terms it means that information so acquired would be exempt even if there were no prosecution because it falls within those
words. The explanation as to why such an approach was taken by the Government was a persuasive one: that the Serious Fraud Office and the Director of Public Prosecutions were intent on protecting witnesses, encouraging them to give evidence and ensuring that they would not suffer by so doing. That is entirely commendable.However, in analysing this clause I can see no reason why health, safety and environmental considerations should be equated with the particular needs of combating serious crime. There is no cogent reason for such an equation. As I understand it, this amendment seeks to create a valid distinction between protecting the interests of combating serious crime and enabling greater disclosure of material in relation to health, safety and the environment.
On the third day of the Committee stage, my noble and learned friend the Minister had to correct himself in regard to his interpretation of this clause. That is perfectly understandable as it is not that easy to follow. He had assumed, as many would, that health, safety and the environment would be treated differently. It appears not, although they should be.
I shall give a simple example. Can one equate a Health and Safety Commission inspector, the owner of the property that he investigates and bystanders who have witnessed an accident as people who need to be protected or who may be deterred from giving evidence? Certainly not.
The amendment seeks to establish that the proper approach will be that those who hold the information will first test whether the disclosure of it would prejudice an investigation or prosecution. If it does, it stays confidential; if it does not there is no reason for not disclosing it. In fact, if it reassures the public, there is every reason for disclosing it. The second part of the amendment directs the attention of the authority to protecting witnesses, so it achieves a valid distinction between serious crime and health, safety and the environment.
To accept the amendment as some noble Lords on this side of the House would interpret it would mean that there would be symmetry in the Bill. When looking carefully at this matter, your Lordships may appreciate that defence, international relations, the economy and all those grand topics of state follow the prejudice route. The first prejudice is that if there is a public interest test, ultimately there will be a veto and if there is no prejudice there will be disclosure. Why should health, safety and the environment be considered to be more sensitive and less proper for public disclosure than those grand affairs of state?
When my noble and learned friend the Minister spoke in Committee about this clause, he was concerned to confirm that in his view if there was no criminal prosecution, the public interest would surely demand disclosure of that kind of information. On the third day of the Committee stage he said:
- "I am satisfied that the Bill will provide the correct outcome in such cases. But, in the spirit of the debate on this clause, I shall reflect further on this point".--[Official Report, 24/10/00; col. 274.]
The noble Lord will remember the statement made by the Minister for Agriculture in the other place when he said in relation to the aftermath of the BSE inquiry:
- "Trust is at the heart of this matter",
Legislative burdens in this House are many and sometimes they deaden our sensitivity to that which people want as against what we think they ought to have. They certainly want this information. I hope that this Bill will not be tainted with that lack of sensitivity. I hope that this amendment is treated by the Minister as entirely reasonable. It achieves a good public purpose. If we are wrong in believing that it is necessary I have no doubt that those on the Liberal Democrat Benches will be able to tell us why they believe it is adequate in its present state without amendment, as I am sure the Minister will.
The key point about the amendment is, after we have debated freedom of information, what will the answer be if any citizen should say to any noble Lord, "I want to know what this Bill has done for information on health, safety and the environment". Will the answer be, "Look at the exemptions" or "Look at the public interest test"? They do not want that. They want to know, and Amendment No. 36 is designed to allow them to know.
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