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Lord Falconer of Thoroton: My Lords, as identified in Committee and in the earlier stages of the Bill, the Government believe that there will be certain cases dealing with the most sensitive issues where a senior member of the Government, able to seek advice from his Cabinet colleagues, should decide on the final question of public interest in relation to disclosure.
We believe that Cabinet Ministers are accountable in a way in which the commissioner cannot be. It is right that responsibility and accountability should rest at that level for this very important aspect of the freedom of information regime. As noble Lords have pointed out in the course of this short debate, a provision in Clause 52 requires the person exercising the override to specify the reasons for so doing. That is the purpose of the override, and that is the basic way in which it works.
I turn to the amendments. First, Amendment No. 56 in the name of the noble Lord, Lord Mackay of Ardbrecknish, would introduce a new and different test at the stage at which the accountable person was being asked to consider whether the public authority had properly carried out its responsibilities under the freedom of information legislation. Whereas the authority would look at all the circumstances of the case in reaching a decision on the balance of the public interest, the accountable person, pursuant to the noble Lord's amendment, would have to ask not whether it had been done properly but, if the authority had applied a different test, would the accountable person be able to confirm that he was right not to disclose the information requested? Therefore, a new test is being introduced at a very late stage in the process.
At a late stage, the amendment seeks to introduce a concept of "serious harm" to the public interest. Throughout the debates on the Bill the Government have made clear why they are unhappy with any suggestion that it would be sensible or even practical to introduce words such as "substantial" or "serious" to qualify the nature of a harm. The same obviously applies in this case.
The public, and public authorities, will want to be clear about how the judgment about the balance of the public interest will be made. As drafted, the accountable person must be satisfied that the authority has correctly identified and weighed the competing interests. The amendment would add an unwelcome element of subjectivity to that assessment of what is
serious harm and what is not. I believe that the amendment proposed by the noble Lord, Lord Mackay of Ardbrecknish, is misguided and I urge him to withdraw it.I turn now to Amendment No. 57. The Government have made their position clear on why, having listened to the arguments here and in another place, they believe that the right people to be accountable for issuing an exception certificate are Cabinet Ministers. The effect of Amendment No. 57 would be to transfer that accountability to Parliament.
I wonder what would be gained by such a procedure. There would certainly be additional delays in reaching a view on whether information might be disclosed or withheld, but I doubt there would be any greater transparency than the Bill already provides. We are not discussing a power which the executive can exercise lightly or unadvisedly. The Bill provides that decisions must be transparent. A Minister signing an exception certificate must give public reasons for his decision. The commissioner, who will have had an opportunity if she wishes to see all of the relevant information, can report any shortcomings in the decision-taking procedure to Parliament; and Parliament itself can at any time hold the Minister to account for his actions which are, in effect, an act of executive power, rather than legislative power, which is what the effect of the amendment would turn it into. Those are significant and sensible safeguards which operate without the need for the superstructure and delay inherent in the amendment.
Finally, I turn to Amendment No. 57A tabled by the noble Lord, Lord Norton of Louth. This amendment is complementary to Amendment No. 57. It would have the effect that a Minister, having signed an exception certificate, would be required within 20 sitting days to pass in confidence to a relevant Select Committee the information in question.
The Government's objections to those proposals are similar to those which I set out in relation to Amendment No. 75. They provide delay without providing any additional transparency of any sort. To some extent, they duplicate the position of the commissioner, who will, in the process, have seen the documentation or information with which the application is concerned. She is in a position, where appropriate, to report to Parliament on any shortcomings in relation to the decision-taking procedure. Because the Cabinet Minister is obliged to set out his reasons for exercising his executive override, the individual Minister will be accountable to Parliament.
For all those reasons, I invite noble Lords not to press their amendments.
Lord Mackay of Ardbrecknish: My Lords, I start with Amendment No. 56. I am not sure what Ministers mean when they say that an amendment is "misguided". Does it mean that I have not hit the right target but there is another one which I should have tried to hit? I shall consider that.
I am always amused to hear that we should not qualify the test. It is interesting that, as far as I know, the Scottish executive is still going to use the word "substantial" before "prejudice". However, I am rather unsighted as to the position there. I do not know whether a Bill has been produced or whether the White Paper is still being considered.
I heard what was said about introducing a different test late in the proceedings. I agree that it is late in the proceedings but it is at a very serious stage in the proceedings. I remain to be convinced whether one should increase the size of the hurdle before one goes to the serious step of a Cabinet Minister issuing his veto. However, for the moment, I shall certainly withdraw that amendment.
As I listened to the Minister on Amendment No. 57, I wondered whether what he was saying was consistent with what he said on 25th October in relation to parliamentary accountability. He referred to explaining to Parliament the grounds on which the certificate had been requested and approved. I am not sure whether in his summing up he was agreeing with what he said. It seemed to me that he was backing off from what he had said. I am puzzled as to how a Minister would be called to account, especially if there were no obligation on the Cabinet Minister to report to Parliament. If he reported to the commissioner months down the road, Parliament may find out after many months had elapsed.
The complainant may have been told and he may raise it with his Member of Parliament. I am not sure how it would be raised. Would the MP have to wait until the next Question Time when the Minister was on his feet? Would he be able to put down a Question? Would he be able to put down a Motion on the Order Paper and hope that the Government are decent enough to find time? Governments are not noticeably decent enough to find time for Early Day Motions and the like on the House of Commons Order Paper, although I am not surprised, given the quality of some Early Day Motions that appear on the House of Commons Order Paper. I believe that noble Lords are well advised to steer clear of that particular route.
My serious point is how would Parliament call the Minister to account? The noble and learned Lord has not really addressed that. As I listened to my noble friend Lord Norton of Louth, I felt that his proposition was more attractive. If matters such as national security are dealt with, there is already a Select Committee in another place that takes those matters into account. If the noble and learned Lord says that that would be second-guessing the Cabinet Minister, I do not know why he used the words that he used on 25th October because the other place, in holding the signatories accountable for their actions and in explaining to Parliament the grounds on which the certificate had been requested, seems to involve parliamentary accountability.
I believe that my amendment and that of my noble friend put in place a method by which that parliamentary accountability can be carried out. However, I shall look seriously at what has been said
and take account of the points made by the Minister, which I understand. I am quite attracted to the route chosen by my noble friend Lord Norton of Louth, which I believe goes a long way to meet the criticisms of the Minister. Perhaps when we have taken advice and discussed the matter, we may return at Third Reading with a way in which the Minister can honour the words that he used to your Lordships' Committee on 25th October. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[Amendment No. 57A, as an amendment to Amendment No. 57, not moved.]
The Deputy Speaker: My Lords, Amendment No. 60 has been incorrectly marshalled.
[Amendments Nos. 61 to 62 not moved.]
Clause 65 [Decisions relating to certain transferred public records]:
Lord Goodhart moved Amendments Nos. 63 to 65:
- Page 34, line 43, leave out from ("II") to second ("or") and insert ("relating to the duty to confirm or deny").
- Page 35, line 3, leave out from ("Where") to end of line 4 and insert ("information to which this section applies falls within a provision of Part II relating to the duty to confirm or deny but does not fall within any of the provisions of that Part relating to that duty which are").
- Page 35, line 14, leave out ("does not apply") and insert ("applies").
On Question, amendments agreed to.
Schedule 6 [Further amendments of the Data Protection Act 1998]:
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