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Lord Bassam of Brighton: My Lords, I invite the noble Lord to study very carefully the code of practice. When he reads it he will see that the guidance is quite clear and unequivocal and that consultation with third parties is obviously there to be made. I think his interpretation of what I have said is somewhat misguided. I invite him to withdraw his amendment.
Lord Mackay of Ardbrecknish: My Lords, if my interpretation is misguided it is because what I have
heard has been confused. I was about to say that I will withdraw my amendment. I shall read very carefully the code of practice in order to be certain in my own mind that it is strong enough to ensure that public authorities do not use this as an excuse to hide information which ought to be made public. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 42 [Commercial interests]:
Lord Mackay of Ardbrecknish moved Amendment No. 50:
- Page 25, line 21, after ("it)") insert ("except that, where the public interest in complying with the request for information exceeds the harm to the public interest that would arise from the authority releasing it, the information is not exempt").
The noble Lord said: My Lords, this amendment seeks to insert a public interest test into Clause 42(2), which exempts information that would prejudice commercial interests. Anyone who wished to appeal against the disclosure of information under this test and the ruling of the commissioner could do so by applying to the tribunal.
The amendment seeks to ensure that the public interest continues to be weighed against the commercial one, including the commercial undertakings of public authorities, when considering whether information should be disclosed or not. Without the amendment, it would be possible to exempt information under this clause with the weakest attachment to commercial activity and thereby avoid the more rigorous test of what would be in the wider public interest.
An example is information relating to the use of pesticides for commercial gain. I suppose that most pesticides are used for commercial gain, or else they are used to rid us of the demon midges--unfortunately, they are not very successful. If commercial gain could be prayed in aid, it could mean that information would not be revealed. The authorities would take the view that to give out such information would prejudice the commercial interests of either an individual or a public authority in terms of reputation or management and that it ought not to be revealed.
Trade secrets as a whole would remain unexposed to disclosure because the display of their content would not qualify as overwhelmingly in the public interest. However, it might well be in the public interest if some other pieces of commercial information were revealed. I should like to try to tease out from the Minister some of the thinking behind parts of the Bill that attempt to close the door on public information rather than keep it open. I beg to move.
The Countess of Mar: My Lords, I support the noble Lord in this amendment. I have hit my head against a brick wall on many, many occasions--so much so that it is now beginning to feel quite numb. Many of us who believe that we have been poisoned by chemicals which are produced commercially have tried to find out the reasons why particular products have been affecting us. One of the major problems is that, while the active ingredients are owned up to, there are large numbers of
so-called inert ingredients which are highly poisonous themselves. We have had enormous difficulty in finding out what the inert ingredients are. While we do not want to know the proportions of the mixes--which is understandably a commercial secret; it is like giving away the recipe for a cake--we should like to know what is in the product. The noble Lord's amendment would help us to find out.
Lord Lucas: My Lords, I can indeed remember failing to provide the noble Countess with the information she sought under just such headings for the very reasons she describes.
Lord Bassam of Brighton: My Lords, I think we have been subjected to a Damascene conversion on the part of the noble Lord, Lord Lucas.
Amendment No. 50 aims to introduce a public interest test. The amendment would affect the second limb of the exemption which relates to information the disclosure of which would prejudice the commercial interests of any person. However, the public interest test already applies to information exempt under Clause 42, by virtue of Clause 2, so that authorities must release such information where the public interest in disclosure outweighs the public interest in maintaining the exemption--the considerations of balance that were much discussed earlier. The amendment is unnecessary because the Bill already achieves what it appears to be aimed at.
The amendment also applies different wording to the public interest from that already used in the Bill. It uses the formula,
- "except that, where the public interest in complying with the request for information exceeds the harm to the public interest that would arise from the authority releasing it, the information is not exempt".
Lord Mackay of Ardbrecknish: My Lords, if I understood the Minister's response, I believe he said that Clause 42--not Clause 41, which is what he referred to--is already covered by a public interest test. However, we shall have to study his answer to make sure of that. I have no doubt that the noble Countess, who has had a long-term interest in extracting information of this kind, will be studying it particularly carefully before we reach Third Reading. We shall ensure that what the Minister just said in relation to Clause 42 is in fact accurate and that it would meet the points that both I and my noble friend, together with the noble Countess, have raised. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 44 [Issue of code of practice by Secretary of State]:
Lord Lucas moved Amendment No. 51:
- Page 25, line 43, after ("advice") insert ("and assistance").
The noble Lord said: My Lords, the time has come to cut short discussion and merely test the opinion of the House. I beg to move.
On Question, amendment agreed to.
Lord Lucas moved Amendment No. 52:
- Page 26, line 9, at end insert (", and
The noble Lord said: My Lords, this amendment picks up a point that we discussed earlier concerning time limits. One of the Liberal Democrat amendments has dealt with the question of time limits in one small part of the Bill; namely, the time taken to deal with questions of public interest. There are plenty of other undefined time limits in the Bill, especially in regard to appeals, dealing with approaches to tribunals and responding to the information commissioner. There ought to be a general encouragement to public authorities to deal promptly with all the matters for which they are responsible under this Bill. They should respond as promptly as they can and as is appropriate under the circumstances.
If such a duty is included in the Bill, it will give the commissioner a real lever to ensure that good practice occurs. If there is no duty to act promptly and no feeling of urgency as regards the value of time where information is concerned, I fear that we may find ourselves faced with practices that are relaxed from the point of view of the public authorities and extremely tedious from the point of view of anyone trying to obtain information. I beg to move.
Lord Bach: My Lords, this amendment would make it a requirement for the code of practice to include guidance concerning the desirability of dealing promptly with all matters. The Government share the desire of the noble Lord to ensure that authorities do deal promptly with requests. I remind the House that Amendment No. 28, which was accepted and approved earlier, will impose a requirement on authorities to give an estimate to the applicant of how long they believe it will take to make a public interest decision. We recognise that that can usefully be supplemented by a reference in the code of practice to the desirability of complying with such estimates, as well as to making all decisions within the 20 working days wherever possible.
The code of practice provides guidance to public authorities as to the practice that it would be desirable for them to follow in connection with the discharge of their functions under Part I of the Bill. Clause 44(2) relates to guidance on various matters. They all relate directly to the obligations under Part I, but also cover aspects not addressed on the face of the Bill. Most importantly, Clause 10 requires authorities to deal promptly with requests made under Part I and determines an upper limit for doing so. In order to comply with this requirement, authorities will
Lord Lucas: My Lords, I shall withdraw the amendment but not without saying that I do not think that the noble Lord is right in saying that Clause 10 and the amendment cover the matter.
The intention of this amendment is to cover all the little bits and pieces to do with later clauses in the Bill, with all the toings and froings with the commissioner and the tribunal,, where again we have a whole set of undefined times. I had hoped that the noble Lord would give me some comfort that the duty to proceed as fast as was proper in every case was one which would be imposed, one way or another, on public authorities. However, at this stage of the night, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
( ) the desirability of dealing promptly with all matters").
11.15 p.m.
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