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Baroness Ashton of Upholland moved Amendment No. 73:

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The noble Baroness said: My Lords, this amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

[Amendment No. 74 not moved.]

Clause 21 [Risk of damage to the economy]:

Lord Goodhart moved Amendment No. 75:

The noble Lord said: My Lords, in moving Amendment No. 75, I wish to speak also to Amendment No. 76. These two amendments represent the only respect in which the Government have not broadly accepted the freedom of information arguments which we put forward in Grand Committee.

Amendment No. 75 would reverse the outcome which would happen under the Freedom of Information Act where there is an equal balance between public interest in disclosure and the public interest in refusing disclosure. Under Section 2 of the Freedom of Information Act 2000, where there is an equal balance, there is to be disclosure. The same principle should apply under Clause 21.

However, Amendment No. 76, which of the two amendments I prefer, raises a more fundamental question and seeks to leave out Clause 21. Why is Clause 21 necessary? The Crown, or the other objector, can make a case either to the Minister, or to the chairman of the inquiry, for the imposition of a restriction order or notice on the evidence that the relevant witnesses are going to give. Damage to the economy is a ground for an exemption, although not an absolute exemption, under Section 29 of the Freedom of Information Act.

Clause 17(5) of this Bill provides that damage to the economic interests of the United Kingdom is a matter to which the Minister or chairman must have regard in deciding whether to make a restriction order or notice. What on earth does Clause 21 add? Why are the Government objecting to its removal? It seems to me to be simply surplus. The interest of the Bank of England, the Treasury, or whoever else is concerned here with the economy of the United Kingdom, is perfectly adequately met by the other provisions in the Bill. I beg to move.

Lord Kingsland: My Lords, I simply add that we entirely share the views that have just been expressed by the noble Lord, Lord Goodhart.

Baroness Ashton of Upholland: My Lords, I agree that when a person making the assessment of public interest is fully informed, information should be released when public interests are equal, which is the issue raised by the noble Lord, Lord Goodhart, around the Freedom of Information Act.

However, inquiry panels would not be fully informed. European law prevents tripartite authorities—that is, the Treasury, the Bank of England, and the Financial Services Authority—from passing some information to inquiry panels, including in many cases information needed to assess where the balance of the public interest
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lies. Because inquiry panels would often be assessing public interests while unaware of the true extent of the likely damage to the economy, it is right that information should be released to inquiry panels only when public interest in disclosure clearly outweighs public interest in avoiding the risk of damaging the economy.

I reassure the noble Lord that authorities would not make an application under Clause 21 when information that is at hand would be disclosed under the Freedom of Information Act. In other words, that is when the Treasury has assessed balancing public interests, while fully informed of all relevant facts, and has concluded that the public interest in avoiding damage to the economy does not outweigh the public interest in disclosure.

The noble Lord is particularly concerned as to why we need Clause 21, and what it adds to what we already have. I have tried to indicate that it is a different and a tougher test than the test of disclosure in Clause 17, and it is deliberately more general than that test. For example, the matters to which the panel must have regard under Clause 21 are not stated as they are in Clause 17. We recognise that when assessing the Clause 21 submissions, the panel will have incomplete background information, which is because Community law has restrictions that do not allow tripartite authorities to release all the relevant background information. We have it here as an additional safeguard to Clause 17 because of the different circumstances that apply; and that is the reason for it.

Where you have an informed body, where it is weighed up—despite my attempts to get this completely wrong in Committee—the balance is in favour of the Freedom of Information Act requirements. Where we know that a body will not have complete information, we have looked at that balance and thought again. Where we recognise that because of the nature of the disclosure regime that would apply around Community law, it is right and proper to have greater clarity in the Bill. Clause 21 enables these tripartite bodies to go to the panel and make a submission, and it will be for the panel to determine the outcome of that submission.

I hope that is helpful to the noble Lord, and I am happy to discuss it further with him. On that basis, at least for the moment, he may be able to withdraw his amendment.

Lord Goodhart: My Lords, I am not entirely satisfied with the response. Clause 21 states:

Subsection (4) states:

My assumption is that the Crown, the FSA, or the Bank of England, is coming to the inquiry with information that it is going to disclose to the inquiry, so the panel does in fact see it. Therefore, the panel is in a perfectly good position. It is the panel that must take the decision as to whether it is satisfied about the balance of the public interest. It is not the Crown, the
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FSA, or the Bank of England that takes that final decision. Really, I still find it extremely difficult to see how this adds anything to the protections that are already there—the right to go and ask the chairman for a restriction notice.

However, I am happy to take up the proposal from the Minister to discuss the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 76 not moved.]

Clause 22 [Submission of reports]:

[Amendment No. 77 not moved.]

Clause 23 [Publication of reports]:

Lord Kingsland moved Amendment No. 78:

The noble Lord said: My Lords, the substance of this amendment has been dealt with in considerable detail both on Second Reading and in Committee. I can therefore be extremely terse.

Essentially, this amendment is directed against the power of the Minister to determine what parts of a public inquiry report can be published. The noble Baroness well knows that it is my view that the contents of the final report should be a matter entirely for the chairman; otherwise we will be in a situation whereby a chairman, before he agrees the final version, will have to check it with the Minister. My preoccupations, as the noble Baroness well knows, are especially with Clause 23(4)(b) and the additional criteria set out in subsection (5)(a) and (5)(b). I beg to move.

7 p.m.

Baroness Ashton of Upholland: My Lords, Clause 23 is designed to reflect what have been differing practices in past inquiries. Generally, an inquiry submits its report to the Minister, and the Minister then publishes the report. That has certainly been the practice for many past inquiries. The clause allows for the chairman to publish instead, so that can be done in cases where it is more appropriate.

Until now, there has been no general statutory obligation to publish inquiry reports, and therefore no limit on the types of information that could be withheld. Yet we have still seen the vast majority of inquiry reports published in full, even for some inquiries—the Penrose inquiry into Equitable Life, for example—that have been wholly private. We fully expect that to be the case for future inquiries as well.

We have given only limited powers to withhold information from publication. We shall shortly come to a government amendment that ensures that those powers could not be used to prevent disclosure of any information under the Freedom of Information Act, so there would be clear limitations to them. Under that amendment, a person could make a request under the Act for any information that had been withheld from a report. As a result of the usual operation of the Act,
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there would then be a right of appeal to the Information Commissioner. Any decision to withhold information is, of course, reviewable by the courts.

That is the principle behind the clause—to bring into the Bill the ability to publish a report, to make clear the role of the Minister and the issues concerning publication. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

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