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Lord Goodhart: My Lords, perhaps I may assure the noble Baroness that she is wrong on that point. A decision can be reviewed on grounds of unreasonableness. However, the only decision on which the information commissioner is prevented from substituting her own discretion is the decision that some prejudice exists. What matters is that, in applying the public interest test under Clause 2, she is the person who must then weigh up that prejudice against the public interest in disclosure. In that respect, she is in no way restricted in coming to her own independent decision.

Baroness Thornton: My Lords, therefore, would it not be simpler not to have it at all? The exemption here is considerably worse, for example--again, I hope that the Minister will explain this to me--than the equivalent provisions in the open government code, of which the noble Lord opposite is so fond and, indeed, than other overseas freedom of information laws.

I hope that the Government will reconsider their position on this matter because I believe that it is important. I do not believe that a freedom of information Bill worth its weight should have this type of exemption in it.

Viscount Colville of Culross: My Lords, before the Minister replies, I should like to ask the noble Lord,

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Lord Goodhart, whether he can possibly be right in what he has just said about the powers of the commissioner. The difficulty in relation to this Bill is that the duty to confirm or deny is a term of art. It means "the right to know".

The provision in Clause 35(3) means that there is no right to know. Therefore, Clause 2 does not arise because Clause 2 depends upon Clause 1, which is the duty to confirm or deny, and there is no jurisdiction for the commissioner to do anything other than a judicial review exercise. The question of prejudice or merit does not come into it.

Lord Goodhart: My Lords, if the noble Viscount looks at Clause 2(1), he will see that that applies the public interest test to the decision to confirm or deny in the same way that Clause 2(2) applies it to the actual information itself.

Lord Mackay of Ardbrecknish: My Lords, we have probably breached the rules of the House there but I am not surprised because the noble Lord, Lord Goodhart, is acting in many ways as the shadow Minister, and I do not mean the opposition shadow but I mean the shadow Minister on this Bill and he is always very quick to give what I consider to be a ministerial speech. That must be a great relief to the noble and learned Lord, Lord Falconer; or perhaps it is not considered helpful at all.

Lord Falconer of Thoroton: My Lords, it signifies widespread support for the Bill throughout the House.

Lord Mackay of Ardbrecknish: My Lords, I do not think it does quite that. I believe it shows widespread support among the people with whom he has done a deal. Perhaps if he had done a deal with some of his noble friends or even with myself, he might be receiving widespread support.

I am totally puzzled as to exactly what the truth is. I have listened to the noble Lord, Lord Goodhart. I have here the letter from Charter 88 from which I have quoted before but I have not quoted this part and I feel, therefore, that I should do so. It talks about the Clause 35 prejudice to the effective conduct of public affairs. It states:

    "This 'catch-all' protects any information whose disclosure 'would in the reasonable opinion of a qualified person be likely to prejudice the effective conduct of public affairs'. This qualified person would be a minister or official. By giving weight to a minister's opinion, the decision is protected from review by the Commissioner",

which is exactly the point which the noble Baroness, Lady Thornton, was making.

Perhaps Charter 88 is wrong and the noble Lord, Lord Goodhart, is right; I do not know. It goes on to state:

    "This is considerably weaker than the current Open Government Code".

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It is not as though I am in love with the current open government code. I just think that if this Bill is to be an improvement, then it jolly well should be an improvement, and not be either the same or weaker. The letter goes on to state:

    "Lord Archer has proposed amendments to remedy this provision".

In the Commons, Mike O'Brien, the Home Office Minister, in Standing Committee B on 27th January--this Bill really has been a long time in Parliament, has it not?--said:

    "The Government consider that only a qualified person can have a full understanding of the issues involved in the decision-making processes of a public authority".

I must say that that is good government-speak. He has learnt to be a government Minister pretty quickly. He goes on to say that,

    "we do not consider that it would be right for the prejudice caused by that sort of information to be determined by the Commissioner".

Therefore, I am left absolutely puzzled when the noble Lord, Lord Goodhart, tells me that the commissioner does have a role. The Home Office Minister did not seem to think so and Charter 88 does not seem to think so.

The freedom of information people say:

    "We do not believe a self-respecting legislature would accept this objectionable principle on the face of a freedom of information Bill".

My Lords, are we a self-respecting legislature?

Lord Brennan: My Lords, the command of his brief shown by the Minister has been formidable this evening but it is being tested to the maximum by the content of Clause 35.

He will note that another member of the Bar has told us that the inclusion of the trigger of having,

    "the reasonable opinion of a qualified person",

is pointless. I wonder whether he agrees with that and,if he does not, why is it necessary?

Secondly, there is the critique of my noble and learned friend Lord Archer towards paragraph (c) in relation to the prejudice that might be caused to the effective conduct of public affairs. Can I prevail upon my noble and learned friend to give us a little more explanation about that? It is the sort of phrase which, if used before a judge, would probably receive the sobriquet that it was vacuous at best, meaningless at worst.

Those instructing my noble and learned friend, so to speak, have come with the examples of examiners' papers and information about proposed disposition of property. I cannot believe that the law of confidentiality as it exists does not protect both those items as being needed to be protected in the public interest.

If those examples are the limit of what has been given to him by way of how the paragraph will work, does he not agree that it appears to be a mighty piece of vacuous verbiage to cover what I may call

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unimportant examples in relation to a Bill of such significance? In dealing with those two points I hope that he will return to the level of intellectual distinction that we usually expect of him.

Lord Williamson of Horton: My Lords, there has been much discussion between legal experts, but I intervene briefly because earlier I said that in an earlier existence I believe that I would have been qualified as a "qualified person" for the purposes of the clause. The Minister will be glad to hear that I do not have strong views on this point. However, it is important to understand that including in the Bill the words,

    "in the reasonable opinion of a qualified person",

we are de facto, but perhaps not de jure, restricting the operation of the commissioner.

If a qualified person has already decided in accordance with statute that the disclosure of certain information would, or would be likely to, prejudice the maintenance of the collective responsibility of Ministers of the Crown, it would be extremely difficult for the information commissioner to put against that her opinion on the public interest. That is the reality. The reality is the reverse of what the noble Lord, Lord Goodhart, stated; it is, that the opinion of the qualified person will be the most important element in deciding on the disclosure of the information and, although the information commissioner may be able to operate in the public interest under Clause 2 of the Bill, her position will be extremely weak.

Lord Lucas: My Lords, it is quite clear that what the noble Lord, Lord Goodhart, said is entirely wrong. If the Government agreed with him that this was a set of proposals in the Bill that had no particular effect, they would have been delighted to give in to the noble Lord, Lord Goodhart, for a little extra concession such as him taking on the job of Minister for the Dome for a while.

However, there is a serious point to be dealt with. We are dealing with a catch-all; and when designing a catch-all in a Bill, generally one designs it so that it catches anything big that has been missed, but this is designed as a fine-tooth comb to go through the whole of the Bill and to trawl out anything little that may have been missed and subject it, not to the public interest test, but to something that is much more favourable to public authorities and officials.

Lord Falconer of Thoroton: My Lords, does the noble Lord, Lord Lucas, consider that the public examinations example should be covered by a non-disclosure provision, and, if so, by which one should it be covered?

Lord Lucas: My Lords, I was not objecting to the non-disclosure provision. I am objecting to the words,

    "in the reasonable opinion of a qualified person".

That substitutes for the general public interest which is satisfactory in matters of enormous importance elsewhere in the Bill, but because this affects the intimacies of a public authority, it is to be protected by

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the reasonable opinion of a qualified official which is to be set up not only as establishing the existence, but the quantum, of damage that may be done to the Government.

It is quite extraordinary for the Government to argue that the commissioner can determine whether some large state secret is to be released on public interest grounds, but cannot determine whether or not it is right to disclose the details of some aspect of the public examination system. It is quite ridiculous that the public interest test, which is right, proper and reliable for all the major aspects of this Bill, should be so denatured when it comes to the little bits of public authorities because for most of us citizens it is those little bits that count. It is the denial of our proper access to that sort of information which will cause most of us most grief if this Bill is enacted the way it is.

10.30 p.m.

Lord Norton of Louth: My Lords, I rise to support these amendments. Their juxtaposition is particularly important because it is the juxtaposition of the phrase,

    "in the reasonable opinion of a qualified person",

with paragraph (c) that serves to undermine the whole purpose of the Bill by a sweeping-up provision and giving the decision to a qualified person to determine. So I agree completely with the points made on the phrase,

    "in the reasonable opinion of a qualified person".

As has been mentioned, paragraph (c) is really a sweeping-up provision and the Minister would probably admit that on the basis of discussions in Committee. The problems I have with his justification for it are two-fold. One is that, when he is challenged to justify it, he does so by reference to example. That in itself is insufficient to justify the breadth of this type of provision. But I have a second problem with the actual examples he tends to give. One goes away and thinks about those examples and, on looking at the rest of the Bill, finds that the examples are covered by other provisions.

The noble and learned Lord put to my noble friend Lord Lucas the question of exams. In part that was answered by the noble Lord, Lord Brennan, in relation to confidentiality. It is also covered by Clause 21.

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