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Lord Lucas moved Amendment No. 53:

( ) the desirability of making information available on the world wide web").

The noble Lord said: My Lords, this is another attempt--the noble Lord, Lord Bach, will recognise it--to deal with the questions that I raised in relation to Clause 20. If it is too difficult to deal with these matters in Clause 20--I hope that I have convinced the noble Lord to some extent of the justice of the cause that I pursued--perhaps we can do something here to give some weight to the desirability of making information available in electronic form, even if that is not the form in which that information is immediately and easily available to the public authority. I beg to move.

Lord Bach: My Lords, Amendment No. 53 would make it a requirement for the code of practice to include guidance concerning the desirability of making information available on the Internet.

As has been said, the purpose of the code is to provide guidance to public authorities on meeting their obligations under Part I of the Bill. Clause 11 already requires authorities to comply, as far as reasonably practicable, with the applicant's expressed preference for communication. This will include the provision of information by electronic means, which may involve making use of the Internet. We believe therefore that we do not need to include any specific reference to the Internet in so far as responding to requests for information is concerned.

Clause 18, relating to publication schemes, requires proactive disclosure. The means by which authorities make information available in accordance with a publication scheme is something over which the commissioner has direct control as she must approve the scheme. In so far as the commissioner thinks that

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the authority is not making appropriate use of the Internet, she can require it to include appropriate provisions in its scheme. This seems to the Government to be the appropriate way to ensure that the intention behind the amendment is met.

There is an important general point here. Given the range of public authorities which will be required to comply with the Bill's provisions, it would be inappropriate to make the Internet or any other means of communication a recommended method for communicating information under the terms of the Bill. We see where the noble Lord is coming from but we do not think that his amendment is necessary.

Lord Lucas: My Lords, I hope that does not mean that the Government have abandoned their intention to make all government available on the Internet by 2005. As that is also the year in which the Bill, if it becomes an Act, will become active, I should have thought that we might be looking forward to that point.

To go back to something that the noble Lord said earlier, I find it astonishing that the Government consider it all right that doctors do not have computers and that we should allow for doctors not to have computers in the year 2005. If the Government are serious about the Internet, they should be planning for it to be a compulsory part of the way that public authorities deal with the public in 2005, when we are supposed to have electronic government and when this Bill will become active. I am disappointed by what the noble Lord has said but I shall at this moment withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Norton of Louth moved Amendment No. 53A:

    Page 26, line 12, at end insert ("and other bodies as he deems appropriate").

The noble Lord said: My Lords, Clause 44(4) provides that,

    "Before issuing or revising any code under this section, the Secretary of State shall consult the Commissioner".

That is clearly a sensible provision. I have no problem with the Secretary of State consulting the commissioner. However, I think that there is a case for stipulating that the Secretary of State shall consult other bodies as he deems appropriate. The commissioner is an obvious and necessary person to consult. But there are others who will be in a position to offer informed comment. In revising the code the Secretary of State may find it helpful to consult the public authorities themselves.

I fully appreciate the point that the Minister will doubtless make in response: that the provision of the clause does not preclude the Secretary of State from consulting other bodies. However, by stipulating that the Minister must consult the commissioner there is the danger that the Minister will take the commissioner as the only person to be consulted.

My amendment makes clear that the Secretary of State should consider consulting other bodies. It does not tie the Minister's hands by stipulating the bodies

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to be consulted. The Minister may even conclude that there are no other bodies that he deems appropriate and thus need not consult anybody other than the commissioner. The purpose of the amendment is simple. It is to ensure that the Minister at least gives thought to consulting other bodies. That I think is appropriate. To achieve that purpose the amendment is necessary. I beg to move.

Lord Bach: My Lords, not for the first time the noble Lord is miles ahead of me in understanding what I shall say. Of course he is right. Before issuing or revising a code of practice under Clause 44 the Secretary of State is required to consult the information commissioner. The issue is whether anything else needs to be written in. It is perhaps a fine point.

The commissioner has been specified because she has clear statutory duties in the areas to be dealt with in the code. But nothing in the Bill prevents the Secretary of State from consulting whomever he sees fit before issuing or revising a code of practice.

The commissioner can suggest, and may well do so if she feels it necessary, that the Secretary of State consult particular persons or bodies if she sees fit. We do not think that, on balance, the amendment adds anything to the position that already prevails. If the Secretary of State thinks it appropriate to consult more widely than is set out on the face of the Bill he can and will do so.

The noble Lord knew almost everything I would say before I said it.

Lord Norton of Louth: My Lords, I am grateful to the Minister for that answer. I had anticipated more or less everything. However, I was not quite certain that the final sentence would be as it was. I take his point that the issue is finely balanced; it could go the other way. I was suggesting a prompt to the Minister.

I take the point that it is necessary to consult the commissioner. It may be necessary and sufficient to consult the commissioner. In some cases it may be necessary but not sufficient to do so. I thought it appropriate to put on the face of the Bill that prompt to the Secretary of State to make sure that some other consultation may be desirable.

I put forward the amendment to be helpful. I realise that the issue is not at the heart of the Bill. If I were to test the opinion of the House I am sure that I should receive overwhelming support. However, given the time of night I do not think that that is necessary. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 [Application for decision by Commissioner]:

[Amendment No. 54 not moved.]

Clause 51 [Enforcement Notices]:

[Amendment No. 55 not moved.]

The Deputy Speaker (Viscount Simon): Amendment No. 59 has been incorrectly marshalled.

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[Amendment No. 59 not moved.]

Clause 52 [Exception from duty to comply with decision notice or enforcement notice]:

Lord Mackay of Ardbrecknish moved Amendment No. 56:

    Page 31, line 3, at end insert (", and

(b) compliance with the decision notice or enforcement notice would result in serious harm to the public interest.").

The noble Lord said: My Lords, in moving the amendment, I speak also to Amendment No. 57. These amendments have to do with the veto that we have touched on several times. Amendment No. 56 puts in a serious-harm-to-the-public-interest test, because at present the Ministerial veto under Clause 52 can be invoked where the Minister has on reasonable grounds formed the opinion that the public interest in maintaining the exemption outweighs the public interest in disclosing the information or confirming whether it is held.

If the Minister maintains that the commissioner has got it marginally wrong, he can veto the decision even if no real harm would flow from the disclosure. The amendment would insert an additional test: that the Minister had reasonable grounds for believing that complying with the commissioner's notice would cause serious harm to the public interest. This is the test which the last government adopted for claiming public interest immunity following the Scott report. The then Attorney-General, Sir Nicholas Lyell, announced in 1996 that:

    "Under the new approach, Ministers would focus directly on the damage that disclosure would cause. The former division into class and contents claims would no longer apply. Ministers would claim public immunity only when it is believed that disclosure of a document would cause real damage or harm to the public interest.

    The new emphasis on the test of serious harm means that Ministers will not, for example, claim PII to protect either internal advice or national security material merely by pointing to the general nature of the documents. The only basis for claiming PII will be a belief that disclosure will cause real harm".--[Official Report, Commons, 18/12/96; cols. 949-50.]

The present Government, in the person of the Home Secretary, said on 3rd March 1999 at col. 761 of Hansard that the present Government followed, and I quote:

    "the same approach to public interest immunity."

The Foreign Office has explained that a PII certificate has been issued in relation to documents whose disclosure,

    "would have caused serious harm to the UK's foreign relations."--[Official Report, Commons, 26/7/99; col.149.]

The new test I am proposing would make judicial review a much more realistic safeguard. Under the Bill as it stands, a Minister would be entitled to such wide discretion in exercising the veto that it is difficult to imagine circumstances in which the courts would normally set aside a veto, so long as he could offer any public interest argument against disclosure. The courts would not look at whether the Minister had reached the right decision in the balancing exercise. The additional test would require the Minister to

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demonstrate to a court that he had reasonable grounds for believing that disclosure would cause "serious harm".

Amendment No. 57 discusses how Parliament should be informed of these issues. At the moment there is no duty on Ministers to notify Parliament when they issue a veto. The Minister, or other accountable person, is required only to give the veto certificate to the commissioner and to tell the complainant why he has done so. The complainant could make the fact of the veto public, but may not bother, perhaps assuming that the matter would be of no interest to anyone else anyhow. Parliament may not learn about the veto until the commissioner's next annual report, which may be months down the road. Yet Ministers have argued that the prospect of having to justify the veto to Parliament is the main deterrent against its abuse. The noble and learned Lord, Lord Falconer, said in your Lordships' House on the 25th October, and I quote from col. 441 of Hansard, that the veto:

    "will be available only on the signature of a senior member of the Government ... we can be sure that this House and the other place will hold such signatories accountable for their actions".

At col. 442 he said:

    "A Minister making any such decision would be required to inform the applicant of the reasons for his decision and, as I said, would be accountable to Parliament, his Cabinet colleagues, his constituents, members of his own party and the wider population for that decision".

At col. 444 he said:

    "Ministers would expect to have to explain to Parliament the grounds on which the certificate has been requested and approved".

My question simply is: if the Minister believes that-- I have no doubt that he does--how is Parliament to be informed? It really is not good enough for Parliament to be informed months later in a report. The amendment before your Lordships this evening would require the Minister to lay a copy of the veto before Parliament. The veto would have to be approved by both Houses within 20 sitting days. If the support was not forthcoming, the veto would automatically lapse and the Minister's words would be honoured in the deed, because the Minister would have had to account to Parliament for the veto. I beg to move.

11.30 p.m.

Lord Norton of Louth: My Lords, I presume that it will be for the convenience of the House if I speak to my Amendment No. 57A, as an amendment to Amendment No. 57, tabled by my noble friend Lord Mackay of Ardbrecknish. I imagine that the Minister will wish to reply to both at the same time.

I fully support my noble friend's amendment, which is designed to ensure that certificates issued under Clause 52 are subject to parliamentary scrutiny. The Minister can have no quarrel with that aim.

In Committee, the Minister advanced three arguments in response to criticisms of the clause. The first was that the provisions were not as all-encompassing as some Members of your Lordships'

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House suggested, because they covered only material that was exempt. The second was that the breadth of coverage was necessary to cover matters that were,

    "not predictable from where we stand at present".--[Official Report, 25/10/00; col. 445.]

The third was that the Minister making the decision would be accountable,

    "to Parliament, his Cabinet colleagues, his constituents, members of his own party and the wider population for that decision".--[Official Report, 25/10/00; col. 442.]

My noble friend Lord Lucas dealt effectively with the first point in Committee, pointing out that:

    "under Clause 34, anything that will cause a Minister distress is exempt".--[Official Report, 25/10/00; col. 446.]

That leaves Ministers with remarkable scope for preventing material being made available.

The noble and learned Lord, Lord Falconer, made it clear in Committee that the Government were not prepared to accept any narrowing of the scope of the clause. I have already quoted his justification for that stance. That leaves us with only two options. One is to remove the clause. That is--or rather was--the position of the noble Lord, Lord Goodhart. The other is to ensure that the powers exercised by Ministers under the clause are subject to effective parliamentary scrutiny. My noble friend's amendment is designed to ensure that Ministers are accountable to Parliament for their actions.

It is formally correct that Ministers are accountable to Parliament for their actions, but ensuring that accountability is another matter. Ministers are often adept at bypassing scrutiny, not least because of the pressures on parliamentary time.

My noble friend's amendment would require a copy of the certificate to be laid before Parliament and approved by both Houses. That is a necessary step towards ensuring parliamentary accountability. However, I am not certain that it is sufficient. Ministers have to give reasons for their decisions. Members of both Houses will be able to consider those reasons. The problem is that it will be difficult to know how valid those reasons are if Members do not know what is in the material being sought. There may well be occasions when it is clear from the request what information is being sought and the Minister's reasons for refusing it may be clear and acceptable to Members of both Houses without them having sight of the material. However, on other occasions it may be difficult, if not impossible, to judge whether the veto is justified without seeing the material in question. That may be particularly relevant when the Minister's reasons are broad.

My amendment addresses that problem. It would give Parliament an opportunity to judge the appropriateness of the Minister's action without putting into the public domain material that should be kept secret. The appropriate departmental Select Committee of the House of Commons, or, in matters of national security, the Intelligence and Security Committee, would be permitted to have confidential sight of the material that was the subject of the certificate. The Committee would not be able to put

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the material in the public domain, but it would be able to issue a report saying whether, on the basis of its review of the material, it believed that a certificate should have been issued. It would be open to the Committee to have a meeting in closed session with the Minister before issuing its report.

I appreciate the limitations of that approach from the perspective of Parliament and of the Minister. Members of Parliament may want more than a recommendation from a Committee. They may well feel just as much in the dark as before. However, a recommendation from a Select Committee would at least offer Members an informed opinion other than that of the Minister. If the committee states that in its opinion the certificate is not appropriate, it is then open to Members to take that into account in deciding whether or not to approve the resolution before them.

The Minister may say that there is a risk in allowing members of a committee to have sight of the material. It may leak. Ministers may draw attention to the fact that some members have leaked material in recent years. However, I draw your Lordships' attention to the fact that members of the Select Committee on Defence may see material up to and including that classified as secret. The Intelligence and Security Committee, which is a statutory body comprising senior Privy Counsellors, has access to intelligence material. So far as I am aware, there is no evidence that either committee has failed in its duty to maintain the confidentiality of material.

Those committees cover the most sensitive areas and those in which I would consider it most likely that certificates would be issued. Providing for a committee to have such access is important in terms of maintaining the integrity of the governmental process; otherwise, one is giving too much power to Ministers to act as judge and jury in their own cause. Furthermore, this provision may have a valuable deterrent effect. If Ministers know that a parliamentary committee, or the Intelligence and Security Committee, has the power the see the material which they seek to withhold, they are likely to be even more rigorous than they would otherwise be in ensuring that their case for issuing a certificate is watertight.

I make two final points. First, I appreciate that, if doubts exist about the security of material, there may be a case for creating a special committee, perhaps even a statutory committee, akin to the Intelligence and Security Committee. However, if the issuing of certificates is to be as rare as the Government claim will be the case, there seems to be little point in crafting a purpose-built committee. On the other hand, I would not rule out such a possibility.

Secondly, my amendment is tabled as an amendment to that of my noble friends, but, if necessary, my amendment could be free-standing. It seems sensible to link it to the proposal put forward by my noble friends, but one can envisage a situation in which parliamentary approval need be sought only in the event of an adverse recommendation from a committee.

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My purpose in making those points is to show that it is possible to achieve some flexibility in determining the best method of ensuring that the reasons for Ministers to issue certificates are subject to parliamentary scrutiny.

The noble and learned Lord, Lord Falconer, can have no argument with the end that is involved; that is, accountability to Parliament. We are debating means to achieving that end. If the noble and learned Lord believes that what is proposed is not appropriate, it is up to him to put forward an alternative to give effect to the end which he himself identified so clearly in Committee.

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