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Baroness Ashton of Upholland: My Lords, I fully agree with the noble Lord, Lord Goodhart, that restriction
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notices and orders should not prevent the disclosure of information from inquiry records under the Freedom of Information Act. That has always been our policy. The original draft of the Bill achieved that, but some modifications are needed if the exemption in Section 32 of the Freedom of Information Act is not going to apply.
Government Amendments Nos. 66 and 67 ensure that restriction notices and orders will not apply to any information held by a public authority once an inquiry is over. I do not agree that it is right to go further than that and stop all restriction notices and orders at the end of an inquiry. Restrictions have an important role quite separate from inquiry records. They can be vital in protecting sensitive or private information, by preventing people who have heard it as a result of the inquiry from passing it on. There is no intention that someone who gives evidence to the inquiry could not repeat that. Article 10 would, indeed, be engaged and apply under those circumstances.
As I indicated during the Grand Committee sessions, I have also brought forward Amendment No. 70 to ensure that a Minister could not vary a restriction notice or order in such a way as to make it more restrictive. I hope that answers the point made by the noble Lord, Lord Goodhart, and that he will therefore feel able to withdraw the amendment.
Lord Goodhart: My Lords, as I understand it, therefore, the position is that a restriction order, if it continued after the end of the inquiry, would engage, or potentially engage, Article 10. I refer to the Minister's answer to the inquiry of my noble friend Lord Lester. The retention of at any rate part of subsection (5) would not prevent information being disclosed where there was no justification under Article 10 for keeping it secret. While I am a little concerned that that is not in the Bill as I think it may give people a misleading impression of the position, nevertheless I am prepared to accept that. I beg leave to withdraw the amendment.
"( ) After the end of the inquiry, disclosure restrictions do not apply to a public authority, or a Scottish public authority, in relation to information held by the authority otherwise than as a result of the breach of any such restrictions."
The noble Baroness said: My Lords, in moving Amendment No. 71, I wish to speak also to Amendments Nos. 95, 96, 97 and 102. These amendments are a set of clarifications. They make it absolutely plain that these references to the "inquiry" are references to the inquiry panel or those working on its behalf. We felt it was appropriate to make these amendments to ensure that no confusion is caused. I beg to move.
"( ) his evidence, or the production of any documents or things which he is required to produce by the notice, would not give any material assistance to the inquiry, or
( ) the burden of producing any document or thing which he is required to produce by the notice would be disproportionate to the assistance likely to be given to the inquiry by their production,"
The order in a court case for disclosure of documents is a powerful order made by a judge and perhaps involving time and expense to the person against whom the order is made. Orders will not normally be made for fishing expeditions; that is, a trawl through documents to see if anything unexpected but helpful turns up. Production orders may be made in inquiries by a chairman who is not a lawyer and not familiar with the law on disclosure. It seems to us that the chairman should be given some guidelines on the circumstances in which the order could be made.
That is a vague phrase and could be regarded as being a high hurdle to get over. It suggests, to my mind at any rate, that only great physical difficulty, or something like it, in producing the documents would suffice.
Our amendments provided that there should be two tests for objecting to an order. One is that the documents requested were irrelevant and therefore could not assist the inquiry in any way. The second is that while
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documents might have limited relevance, the burden of producing them would be disproportionate to the assistance which their production would provide to the inquiry.
The Government did not accept those but have come back with an alternative formula in Amendment No. 73. This seems to impose a test which constitutes a lower hurdle than Clause 19(4) as it now stands. Does the Minister believe that the new amendment is sufficient to prevent fishing expeditions and a disproportionate burden on the person against whom a disclosure order is sought? I beg to move.
Baroness Ashton of Upholland: My Lords, I agree completely with the noble Lord, Lord Goodhart, that it is important to ensure that the chairman does not use the powers of compulsion in relation to information that is not necessary, which could lead to undue demands on individuals.
I accept that subsection (4) of Clause 19 might not adequately cover the situation in which an inquiry chairman asked for irrelevant materialthe fishing expeditionbecause it focused more on the practical difficulties of obtaining that material.
Government Amendment No. 73 has exactly the same purpose as Amendment No. 72 in the name of the noble Lord, Lord Goodhart. The noble Lord will know that I try to accept amendments but sometimes the wording has to be rewritten. As I say, my notes say that government Amendment No. 73 has exactly the same purpose as Amendment No. 72, which I hope allays the noble Lord's concern. Amendment No. 73 allows individuals to claim that it is not reasonable "in all the circumstances" to require them to produce evidence. That will cover practical difficulties, but will also cover the situation in which the evidence will not be of material assistance to the inquiry. It will also cover any other unforeseen situation in which the use of powers of compulsion would be unreasonable, so it goes a little further than the noble Lord's amendment. I hope that that answers the noble Lord's concern and that he feels able to withdraw his amendment in favour of government Amendment No. 73.
Lord Goodhart: My Lords, I am very grateful to the Minister for that reply. I am certainly very happy to accept her explanation of the intention of the government amendment. Therefore, I am happy to beg leave to withdraw the amendment.
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