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Lord Fowler: Can information now be withheld on public interest grounds? In other words, was information withheld under the old Public Health Laboratory Service, or is the provision entirely new? As I understand it, the Minister says that the decision is made by the agency. In the real world, if information is withheld, will that not be an issue of some importance? Will not the agency be in contact with the Government through the Department of Health? I would be very surprised if it was not.

7 p.m.

Lord Warner: Absolutely right. I was going to come to the circumstances in which it is highly likely that particular types of information, both now and in future, would not be put in the public arena. The HPA is the possessor of much sensitive information—not sensitive in the sense of embarrassing to Ministers, but in the sense of security issues of one kind or another. I shall name a few.

There is the whole area of radiological protection information, some of which is very sensitive. Some information relates to bioterrorism, the planning to anticipate it and how the HPA would work in terms of some of the mechanics of emergency planning in such circumstances. On the whole, one does not tell one's enemy the response mechanisms and detail. A similar example is that of matters such as the details of where stocks of vaccine are held. Those are the kinds of issues on which the HPA would have information that would clearly not be in the public interest. Indeed, it would probably be restrained by other legislation in terms of its ability to put such information in the public domain. Such constraints exist now and will exist in future.

I shall respond as openly as I can to the noble Lord, Lord Fowler, about the relationship between the HPA and government. There will be areas where the HPA, for good and legitimate reasons, may be uncertain in its own mind about whether it is crossing the line. In those circumstances, it would no doubt wish to consult government lawyers about the rights or wrongs of making information available. The noble Lord has been in government; he knows how the system works. There would have to be some degree of interchange, privately, in such circumstances. One is not trying to disguise that that would be the case.

This statute places very clearly a responsibility for thinking such matters through on the agency itself. That is a difference in many ways. It is a very clear statement, as with the Food Standards Act, of where the responsibilities lie.

I turn to Amendments Nos. 30 and 31, which were argued for very persuasively by Members of the Committee. Amendment No. 30 puts the "onus of proof" on the agency if challenged to demonstrate why information should not be made public. There is a good deal of overlap in the amendment with what I said about the Freedom of Information Act. The noble

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Lord needs to reflect on the extent to which his needs are actually met by the provisions in that Act. Many of his concerns are dealt with by that legislation and the codes of practice around it.

Amendment No. 31 would require any decision to be reported to the Chief Medical Officer and the Secretary of State. They will no doubt be flattered that they have been singled out for such special treatment, and I understand the intention and the need for an audit trail. I sympathise with the spirit of the amendment, but I hope that I can persuade Members of the Committee that it is not necessary to add it to the legislation.

Let us consider first the situation where the agency needs to react to a request to release information. As I said, under the FOI Act, there is a set of rules by which it has to deal with that. There will have to be an audit trail. Ultimately, in these cases, there is a right of appeal to the information commissioner. So there are processes under the legislation.

However, it would be bureaucratic in the extreme to write into the legislation a requirement on the agency to go through the processes envisaged by Amendment No. 31, which assumes that it would only ever be the board that would take a decision not to publish information or advice—that is, that such a decision could never be delegated to the agency's officers. That is undesirable. Where information falls into categories that should not be published—for example, personal medical information—there is no need for a decision not to publish to be referred to the board. Those kinds of decisions are not made on public policy issues; they are matters of interpretation and can be left to officers, I suspect.

The amendment would require any decision not to publish to be reported to the Secretary of State, and reports would need to go to him every time the agency complied with the requirements by not publishing personal medical information. That is a pointless exercise. For the reasons I have given we believe that such a requirement on the agency is not necessary. I hope that when noble Lords reflect on my arguments they will feel able to withdraw their amendments.

Lord Clement-Jones: I shall leave the thunder to the noble Lord, Lord Fowler. I found what the Minister said about the Freedom of Information Act of great interest. However, as he acknowledged, it needs careful consideration.

The problem is not to do with the clear issues of public interest that anyone would regard as falling within the definition—for instance, the issues that he and I raised about bio-terrorism, radiological warfare and so on. But a problem could arise if, for instance, a survey which embarrassed the Government—which perhaps did not come up with the right conclusions—was carried out by the agency and was withheld on the grounds that it was not a matter of public policy for the agency to publish it. There are many more grey areas. One is not looking at obvious public interest matters but at the interface between the Freedom of Information Act and what it defines as "public interest".

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It worries me that under the Bill the procedure is mandatory. It does not state that the agency shall consider whether or not something is in the public interest; it simply states "is not in the public interest". It is not on all fours with the procedure contained in the Food Standards Act, which is more about weighing issues and the way in which the FSA comes to a conclusion. There would be great merit in translating that to reflect these circumstances.

I am not totally convinced. There is considerable food for thought under the Freedom of Information Act. There is one other major flaw, but I am not quite sure how to get out of it. It is a Catch 22 situation. How can you ask for information if you do not know it exists? That is the great conundrum of government versus individuals that we encounter in this area. It is the knot that the noble Baroness, Lady Finlay, was trying to untie. It is not quite untied but we are certainly some way towards doing so. It is an issue with which we shall all continue to wrestle.

Lord Warner: Perhaps I may clarify one point for the noble Lord. I should have mentioned earlier that we went to parliamentary counsel and asked whether there was a legal difference between this wording and the wording in the Food Standards Act. He said that the outcome was exactly the same. But I am happy to come back to him if it is believed that there is some merit in the way it is framed in the Food Standards Act. I agree that it is different legislation, but his argument was that the wording is essentially the same.

Lord Clement-Jones: That is a helpful offer because, certainly in governance terms, the FSA duty has a wholly different flavour from that of the duty here. I accept some of what the Minister has said about the levels at which these decisions are made, but with something like this—a question of whether the public interest is outweighed—such a decision may go to a higher level precisely because of the FSA-type wording rather than the provision as currently set out in the Bill.

Baroness Finlay of Llandaff: Perhaps I may raise one concern. I would be grateful if the Minister could respond to it when he looks at this matter again. Will he consider the role of the board in relation to any information being withheld? I am concerned that the decision to withhold information should not be taken only by the executive officers of an agency. The non-executive officers on a board have a specific responsibility at board level and that responsibility should be exercised. I should be grateful if the Minister would look into that point and get back to me.

Lord Fowler: The fact is that we shall all want to look carefully at what the Minister has said and almost certainly we shall return to the issue on Report. This has been an important debate. At times I was reassured, but as the discussion continued, I was rather less reassured. I thank the Minister for the reply and for his words about the Data Protection Act. I think that it was the noble Lord, Lord Clement-Jones, who said that this is a grey area. At times it became even

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greyer. We learnt, for example, that the agency makes the decision, but who is the agency that makes that decision—is it the board or is it the executive?

The Minister referred to my experience in government. In my time, if an agency such as the former Public Health Laboratory Service had something that was extraordinarily sensitive, it would come to the Secretary of State. It might not result in a formal decision, but a decision would be reached one way or another. I think that the Government will be involved in this and therefore it will repay us to look at this matter and the Minister's reply rather more carefully.

I am very attracted to the argument put by my noble friend Lord Howe. Confidence in the agency will be diminished if it can be suggested that information is being unnecessarily withheld. Moreover, while I accept that security, bioterrorism and stores of vaccine are matters about which, prima facie, publication should be prevented, I still do not have a reply to the question I put about how we can check on this. I am unclear about how the public, Members of Parliament and Members of the House of Lords will know what information is being withheld. There are some big questions here.

I thank the Minister for his courtesy, but I should say that we shall want to examine his reply, to think about it carefully, and to come to it on Report. At this stage, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 29 to 31 not moved.]

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