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Lord Mackay of Ardbrecknish: My Lords, I have tried to follow the argument. Perhaps I may ask a layman's question. As to subsection (2), am I right in understanding that if the information was not obtained from confidential sources--perhaps in the course of a general inspection, or whatever--it would not be considered exempt, as long as it was not being used, or about to be used, for a prosecution?
Lord Falconer of Thoroton: My Lords, it would not be exempt under Clause 29(2). The subsection provides that the information required relates either to a prosecution or an investigation of the kind referred to in Clause 30, and the information that is desired describes how and from whom the information is
obtained. Therefore, it is designed to protect the name of an informer, or something short of the name of the informer which may identify how the information has been obtained. The provision aims to provide an assurance that if people give information in confidence to help a criminal prosecution, or a wider investigation, they will have protection.
Lord Archer of Sandwell: My Lords, I agree with all noble Lords who have said that this is much more than a debate among lawyers. I am not sure that between them the lawyers have clarified the matter. I am the first to accept that I have misread Clause 29. I do not believe that I am totally alone in having misread parts of the Bill. As my noble friend Lord Brennan reminded us, in Committee my noble and learned friend himself was somewhat surprised to discover that both criminal and non-criminal matters were part of Clause 29. My noble friend Lord Borrie cheerfully agreed that he too had not been as clear about the clause as perhaps some of us should have been. Clearly, we need to reflect further on this matter.
I remain slightly troubled by two matters. Paragraph (2)(b), which governs so much of this debate, exempts information if it relates to the obtaining of information from confidential sources. As my noble and learned friend said, that is much wider than the question of deterring witnesses from coming forward.
Earlier today we discussed what is information from confidential sources. Is it confidential if it arrives in an envelope marked "confidential"? We are in danger of going very wide with that requirement unless we look more closely at the meaning of information from confidential sources. I say no more about that at the moment. It is something on which I want to reflect. I hope that it is something on which my noble and learned friend may want to reflect.
I turn to the point made by the noble Lord, Lord Goodhart, that this matter is now dealt with because of the amendments to the public interest test. It may be that all this was comparatively late and we have not had as much time to absorb it as we should. I am not certain that he has persuaded me. That is something else on which I should like to reflect. For all those reasons, I do not propose to press the amendment further tonight. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Colville of Culross moved Amendment No. 37:
- Page 19, line 1, at beginning insert ("Subject to subsection (4),").
The noble Viscount said: My Lords, on 19th October the noble and learned Lord, Lord Archer of Sandwell, moved an amendment which I tabled to
what is now Clause 29, which we have just debated. I want to move away from the question of criminal prosecutions and to the obtaining of information from confidential sources. I can see that either in Clause 29 or in Clause 30, which must be linked, there will be a consideration under the new version of Clause 2, which will enable the information commissioner to hold, if the public authority has already done so, that there is an objection to disclosure.I want noble Lords to look at Clause 30. I am concerned with the matters referred to in Clause 30(1)(g), (h) and (i) which on the face of it are not criminal matters. I appreciate that they may have to do with confidential information or information from confidential sources. That matter can be dealt with in the same way as it will be under Clause 29. The rest of the contents of paragraphs (g), (h) and (i), as expanded in Clause 30(2), cover a very wide field of regulatory, civil law and other investigatory purposes, including causes of accidents, health and safety--all the matters to which the noble Lord, Lord Brennan, referred just now.
It has been rightly said that the Bill is extremely difficult to understand. I do not want to make a legal point out of this, but the fact remains that it will have to be interpreted by lawyers and, in the end, it will be subjected to the ordinary tests of statutory interpretation. I do not know whether the information commissioner will initially be bound by strict rules, but the information tribunal will certainly have to abide by those rules. If there is a judicial review at any stage, then certainly the rules will be borne in mind. The question that I raise in this amendment--I do not think that it has really been answered--relates to timing on subjects like the BSE or rail safety inquiries or the many other purposes that are covered under Clause 30(2).
The scheme of the Bill, now that it has been amended by the Liberal Democrats, is that there should be a right to information, but that it should be subject under Clause 2 to, in this case, a public interest test with the burden being in favour of disclosure. What has not been said anywhere is when the disclosure will take place. That must be of some importance. One thinks of the inquiry of the noble and learned Lord, Lord Phillips, into BSE and its indictment of the long periods of time when the public were simply not informed--when Ministers and officials decided that the public would not be told and that it was better that they should not know. That adds up to a long period of secrecy during which a great deal of harm is done.
The whole flavour of the debate on these matters has been that that should not continue. If the noble and learned Lord, Lord Falconer, tells me that that is also the Government's intention, I shall accept that. But I want to know whether the Bill has been drafted in order to achieve it. In Clause 2, as amended by the
Liberal Democrats through Amendment No. 4, we see the phrase,
- "in all the circumstances of the case".
- "in all the circumstances of the case",
- "such time as is reasonable in the circumstances".
What I am asking for in this amendment is that there should be a particular reference to the timetable when it comes to the matters set out in Clause 30(2). When will the public authority disclose the matters that relate to the purpose of ascertaining the cause of an accident? How long will the public authority sit on it? For how long will the information commissioner be debarred from taking account of that timetable in deciding whether the circumstances of the case, under Clause 2 as amended, enable her to judge as between the public interest and the right to information--it is now the right to information and the public interest, as that is the order of precedence?
The Bill as it is now drafted deprives the information commissioner of taking account of an inordinate length of time that has been taken in order to investigate something like BSE or rail safety or nuclear safety. She is not allowed to take account of that timetable when deciding under Clause 2 whether the circumstances are such that she should now rule in favour of disclosure. That is inherent in the drafting of the Bill. If Clause 10 deals with the timetable, I do not understand how the circumstances in Clause 2 can also include the timetable.
I am sure that the noble and learned Lord does not wish to allow that kind of situation to appear on the face of the Bill, but it is the inevitable construction that that is the result of what is now in the text. I hope that he can allay my fears. I beg to move.
9.30 p.m.
Lord Falconer of Thoroton: My Lords, as I understand the amendment tabled by the noble Viscount, it proposes that, in considering the exercise of the public interest balancing act under Clause 2, the public authority should have regard to the period which has elapsed, in effect, between the exercise of the functions covered in paragraphs (g) to (i) and the application of a request for information. To take an extreme case, if one is looking for information concerning something which took place, say, 15 years ago, that is a factor which would militate in favour of disclosure--to put it no higher than that.
I can readily put the noble Viscount's mind at rest here. As he has rightly pointed out, provision is already made to take account of all the circumstances
in the case. That would specifically include the matter referred to in the noble Viscount's amendment. The reference to timing in relation to Clause 10 is not a reference to the activities or exercise of the function in respect of which an application is made; rather it is the period between the time that the application for information is made and the public authority then dealing with it, which is a completely separate matter. It does not, therefore, as a matter of construction, exclude the public authority--in exercising its discretion under Clause 2--from taking into account the matters referred to in the amendment. I hope that that will put the noble Viscount's mind at rest.
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