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Baroness Whitaker: My Lords, this has been an important debate with distinguished contributions from lawyers and others. My noble friend Lord Winston made significant points on matters which go to the heart of the Bill. I thank all who took part. I thank the Minister for his detailed explanation and, as others have said, the courtesy with which he has dealt with our misgivings.

His explanation will be extremely helpful with regard to the interpretation of the Bill by the public. I hope that the noble and learned Lord will support the interpretation that he furnished today with guidance to the public which makes crystal clear the kind of access they have. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

Clause 36 [Prejudice to effective conduct of public affairs]:

Viscount Colville of Culross moved Amendment No. 5:

("any action or decision for the effective conduct of public affairs which the department, Assembly or authority proposes at some future time to take in any case where--
(i) the information is not exempt by virtue of section 22; and
(ii) it is reasonable in all the circumstances for the information to be withheld at the time when the request for it is made").

The noble Viscount said: My Lords, I thought that I had told everyone that I did not want Amendments Nos. 5 and 6 grouped. I hope that I may be forgiven if I deal with them separately because they are separate points.

Noble Lords will recall that as a result of the decision taken quite late in the evening on Tuesday 14th November Clause 36 still provides for the reasonable opinion of a qualified person. We have discussed the provision under Clause 36(2)(c). The noble Lord, Lord Mackay, has joined his name to the amendment. I believe that he also is not clear exactly what we are talking about. It would be easy for the reasonable opinion of a qualified person to take a quite wide view of what would be likely to prejudice the effective conduct of public affairs. Not all of the qualified persons will be of the calibre of my noble friend Lord Williamson of Horton who conceded that, had he still been in his previous office, he would have been likely to fall into that category. I believe that others may not have such a grasp of the overall situation and their duties under this legislation.

The difficulty about Clause 36(2)(c) is its breadth. It is worth remembering how this matter originally came about. In the draft Bill before the Select Committee presided over by the noble and learned Lord, Lord Archer, of which I was a member, this matter was part

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of the decision-making and policy formulation issue which is now dealt with in Clause 35 of the Bill. Since then it has been sub-divided. We have just discussed Clause 35. Clause 36 goes further than anything previously conceived of in Clause 38 of the draft Bill.

The explanatory memorandum that accompanied that Bill said:

    "Subsection (5) defines a qualified person. For a government department in the charge of a Minister it is a Minister of the Crown. For other government departments it is to be the person in charge of that department. In relation to the National Assembly for Wales it means the Assembly First Secretary. For other public authorities it is to be a Minister of the Crown unless the authority or other person is authorised by a Minister of the Crown".

That is not how it has worked out in the Bill. There is now a much wider range of people either specifically named or able to be nominated by Ministers under the machinery in Clause 36. What will they say is exempt by virtue of subsection (2)(c)?

The noble and learned Lord, Lord Falconer, has been pressed continually about that and has given only two examples. One was the premature publication of exam questions. The noble Lord, Lord Norton of Louth, dealt with that thoroughly. The Minister's other example was the premature disclosure of a local planning authority's proposal to list a building, with the implied invitation that the owner would need to hurry up and demolish it before the listing took place. If that is all that the provision is supposed to cover, my amendment would deal with the problem satisfactorily. It would provide an exemption for such legitimate activities of the public authority concerned that would be published in due course but ought not to be published yet, because premature publication would cause damage.

Given the Minister's arguments so far, I do not understand how he can resist the amendment. He cannot deny that I have simply translated into general terms the sorts of situation covered by his examples. If he has in mind a wider set of circumstances that ought to be covered by paragraph (c), this is our last opportunity to hear them. If that is the case, it might be best if the Government accept the amendment and move amendments to it in another place to deal with whatever they propose to cover.

If the Minister continues to rely on the examples that he has given, it would be wise to constrict the public authority in preventing the publication of information by providing greater clarity in the Bill, not leaving it to the courts. The noble Lord, Lord Lester, has now left, so he cannot tell me anything more about that. We should make clear in the Bill the exemption that we are providing for the benefit of the public authority. The situation is unsatisfactory. The people in charge of the decision will have wide jurisdiction to prevent the public finding out what they want to know. The amendment would help to clarify the situation and to put it in the context that the Minister referred to. I beg to move.

4.15 p.m.

Lord Lucas: My Lords, I entirely support the noble Viscount, Lord Colville of Culross. We had an

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unsatisfactory answer from the Minister on Report. The noble Viscount's interpretation of the clause is entirely reasonable. The wide terms of subsections (1)(a) and, in particular, (1)(b), mean that an exemption is available for almost any information held by almost any public authority at the whim of one of the named individuals. There is no limitation on them and no effective control of them.

The Minister tried to put a different construction on the problem on Report. He said the clause merely provided a helpful restriction on the number of people who could operate the clause, putting the power in the hands of a relatively small number of individuals who would all be upstanding and responsible. He said that the clause would be entirely helpful to the cause of freedom of information.

The crucial distinction between those two views is the position that the information commissioner finds herself in when presented with an appeal against a refusal of access to information as a result of the exemption. It is stated that under the clause the qualified person can determine whether prejudice exists. That is fine, but can they also determine the quantum of that prejudice? Does the information commissioner have to accept that determination? If the qualified person says that the information would cause such prejudice that it should never be released, will the information commissioner be bound by that view, or can she substitute her own view? If she is entirely free to substitute her own view, the clause could do only a relatively limited amount of harm. If, on the other hand, the amount of prejudice is to be determined by the vast array of qualified persons, the clause could do extreme harm to the cause of freedom of information. We got no answer from the Minister on Report. I hope that we shall get one now.

Lord Mackay of Ardbrecknish: My Lords, as the noble Viscount, Lord Colville of Culross, said, the examples given by the Minister on Report almost brought noble Lords to the edge of their seats with laughter, particularly the need for a qualified person to be able to prevent potential examination questions being revealed. My noble friend Lord Norton of Louth, who has probably made up more potential examination questions than anyone else in the House, dealt with that. That situation clearly does not need such protection.

We remain worried about the scope to be given to the reasonable opinion of a qualified person. The noble Viscount has done us a favour by coming forward with a modest limitation on that scope. I look forward to the Minister's answer. Perhaps he will give us some better examples this time.

Lord Falconer of Thoroton: My Lords, I am grateful to the noble Viscount for raising this important issue. I accept that we have degrouped Amendments Nos. 5 and 6. I shall deal only with Amendment No. 5 at the moment. The Bill provides an exemption for information that would,

    "prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs".

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The amendment would exempt information that would,

    "prejudice, or would be likely otherwise to prejudice, any action or decision for the effective conduct of public affairs which the department, Assembly or authority proposes at some future time to take in any case where

(a) the information is not exempt by virtue of section 22; and
(b) it is reasonable in all the circumstances for the information to be withheld at the time when the request for it is made".

The difference between the existing draft and that draft is quite difficult to detect. It does not for one moment, for example, touch the definition of the qualified person, the number of qualified persons or the role that they perform in determining where the balance lies.

The noble Viscount justifies his proposed amendment by saying that it would cover the examples given. It would, so long as the noble Viscount knows what view the information commissioner or the courts would take about the phrase,

    "it is reasonable in all the circumstances for the information to be withheld".

In parenthesis, I refer to what the noble Lord, Lord Mackay of Ardbrecknish, said. If one wants uncertainty about what will happen in the future, one should insert a phrase such as,

    "it is reasonable in all the circumstances for the information to be withheld",

because absolutely no guidance is given as to how that would be effected.

However, the clause is not intended simply to deal with the two examples that have been given. As was said on the previous occasion that we discussed this matter, the clause has been inserted because 50,000 public authorities are covered by the Bill. From where we sit at the moment, it is impossible to determine the precise circumstances in which it might be appropriate for information to be withheld because in the future that would prejudice the effective conduct of public affairs by a public authority. If there is a case, first, a named individual must say that such a prejudice exists. Then, under Clause 2, disclosure of that information takes place unless the relevant public authority can satisfy the information commissioner that there is a good reason for not disclosing.

The noble Lord, Lord Lucas, asks whether the information commissioner can weigh the quantum of the prejudice. Of course, she can. The information commissioner will have to do so because she is deciding where the weightier balance lies when it comes to Clause 2.

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