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Baroness Noakes: My Lords, that is extremely interesting, but will the Minister explain why that cannot be covered by general instructions? In setting up a joint intelligence cell, it seems to me that there would be an element of commonality of disclosures. Therefore, we would be talking about one form of authoritisation, not thousands.
Lord Goldsmith: My Lords, as I indicated, the difficulty is whether one can foresee all the circumstances in which disclosures need to be made. If I were to say that there should be disclosure in any case where there is a joint intelligence cell, noble Lords would view that sort of blanket authorisation as too broad and insufficiently precise.
I am citing only one example. The proposition in support of the amendment, as suggested by the noble Lord and the noble Baroness, is that there cannot be that many disclosures in operation. I am told by those who know the position that a large number of disclosures are made. We are not talking about disclosure down to the level of the tea lady. It does not help a responsible department to argue for something that is even more restrictive than the present position, to take the tea lady example.
I made it perfectly clear in Committee that there is no question—it would be astonishing if anyone thought there were—of delegating to the tea lady decisions about disclosure of information on public interest grounds. We are talking about a serious, responsible, public department, which understands its
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obligations. It must give proper and due consideration to the disclosure of information because that is what the statute requires.
I can say on the record that class instructions on public interest disclosure will not be delegated below senior Civil Service level. I emphasise the term "class instructions" because there could be individual cases that go below senior Civil Service level—some of my examples indicate why it may be necessary to deal with matters urgently.
Lord Goldsmith: My Lords, I shall finish the point if I may. It would be the senior expert on that matter who would make the instruction.
Lord Barnett: My Lords, I am curious to know what the level of a senior civil servant will be in these cases. Is it deputy secretary, permanent secretary, or what?
Lord Goldsmith: My Lords, I never know the answer to that question. The answer has arrived. It is grade 5 assistant secretary.
I cannot accept an amendment that would tie us to allowing only commissioners to make disclosures. I ask noble Lords to accept that I shall not be putting forward an approach that is based on irresponsibility or a desire to allow disclosures to be made on an inadequate basis and with inadequate seniority of consideration.
Lord Newby: My Lords, earlier the noble and learned Lord raised the issue of an officer who, in the course of his duty, came across a possible health and safety problem. Under the draft statutory instrument, one area covered in terms of disclosure relates to disclosure to a body exercising public functions in relation to the protection of public health and safety. Can the Minister help me with regard to the situation that applies?
The officer from Customs and Excise is examining a fuel storage depot to ensure that those responsible are paying the duty. He is worried that there is a leakage and that there may be a public safety problem. The statutory instrument has been passed, enabling disclosure to be made to a body exercising public functions in relation to the protection of public health and safety. Is it the case that, having come across a circumstance covered by one of the disclosure provisions, under the current rules the officer would still have to refer it upwards to a senior officer before he could ring up the Health and Safety Executive and say, "Look, I've found a leak. I really do think you ought to come and have a look at it"?
Lord Goldsmith: My Lords, the noble Lord asked me what the position is under the current rules. I cannot answer that at present, although perhaps in a moment I shall be able to do so. But I want to say to him that, again as I understand it, Clause 20 makes clear that there are two requirements for a disclosure to be made. The
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disclosure has to be for a purpose of a kind specified in regulations—the noble Lord referred to one of the purposes specified in the draft regulations—but it also has to be made on the commissioners' instructions, which can be either specific or general.
We have had a debate about "general". If the instruction was specific, it would be specific authorisation of that information on that occasion. "General" obviously allows a degree of class instruction to be given, but, so it seems to me from reading the Bill, it cannot just be a question of the instruction being of a type specified within the regulations.
The answer to the question is: yes. In the example given by the noble Lord, Lord Newby, the officer would have to refer the matter upwards unless it was already covered by a class instruction. It is not enough that it is just in the regulations because they specify the purpose. One has to look at the instruction.
I was about to say in summary, first, that the instructions will always be given by a senior and competent person who has the appropriate training—that I can clearly say. Secondly, they will be within the criteria set out clearly either in the Bill or in the regulations. Thirdly, I can also tell noble Lords that commissioners will monitor the instructions by ensuring that there are proper records and audit trails.
I invite noble Lords to accept that those assurances are adequate to meet the concerns, which I understand, and so that this responsible department can do its job in an effective and satisfactory way for the benefit of all the people of this country. Therefore, I invite the noble Earl to withdraw his amendment.
The Earl of Northesk: My Lords, I am grateful for the response of the noble and learned Lord the Attorney-General, except that in many respects he has added to my confusion rather than offered me any reassurance. As I read the Bill, there is a clear distinction between the grant of any individual authority for a disclosure and the issuance of instructions.
I heard what the noble and learned Lord said about the number of individual authorities for disclosure that may currently exist within the Revenue authorities and HM Customs and Excise. I also heard what he said about class instructions. If my reading of the Bill is correct, it seems to me that those are within the terms of the qualification over which my noble friend Lady Noakes and the noble Lord, Lord Newby, said they wanted satisfaction.
In addition, in respect of what the noble Lord, Lord Newby, referred to as the "office cleaner conundrum", I deliberately offered the noble and learned Lord another example—that of a senior IT manager—which he singularly failed to address. My concern remains that, as the Bill stands, delegation of these instructions under the terms of Clause 20 could be made to any other person. That is the text of the Bill, and I think that that drafting is far too loose. In those circumstances, I wish to test the opinion of the House.
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5.45 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 147; Not-Contents, 136.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Baker of Dorking, L.
Biffen, L.
Blaker, L.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Buscombe, B.
Byford, B.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Chalker of Wallasey, B.
Colwyn, L.
Courtown, E.
Crickhowell, L.
Cuckney, L.
De Mauley, L.
Dholakia, L.
Dixon-Smith, L.
Dykes, L.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Falkner of Margravine, B.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Garden, L.
Gardner of Parkes, B.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of High Cross, L.
Hayhoe, L.
Henley, L.
Hodgson of Astley Abbotts, L.
Home, E.
Hooson, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Inglewood, L.
Jenkin of Roding, L.
Jopling, L.
Kalms, L.
Kimball, L.
King of Bridgwater, L.
Kingsdown, L.
Knight of Collingtree, B.
Laidlaw, L.
Lane of Horsell, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lester of Herne Hill, L.
Lindsay, E.
Liverpool, E.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
McNally, L.
Maginnis of Drumglass, L.
Mar, C.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Hendon, B.
Molyneaux of Killead, L.
Monro of Langholm, L.
Montrose, D.
Morris of Bolton, B.
Mowbray and Stourton, L.
Moynihan, L.
Murton of Lindisfarne, L.
Newby, L.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northesk, E. [Teller]
Northover, B.
O'Cathain, B.
Onslow, E.
Palmer, L.
Patten of Barnes, L.
Perry of Southwark, B.
Peyton of Yeovil, L.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Plumb, L.
Rawlings, B.
Razzall, L.
Reay, L.
Redesdale, L.
Rees, L.
Renton, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rogan, L.
Roll of Ipsden, L.
Roper, L.
Rotherwick, L.
Russell-Johnston, L.
Saltoun of Abernethy, Ly.
Seccombe, B [Teller]
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shrewsbury, E.
Shutt of Greetland, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Steel of Aikwood, L.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Tebbit, L.
Thatcher, B.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trumpington, B.
Tugendhat, L.
Vallance of Tummel, L.
Vinson, L.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Wilcox, B.
Windlesham, L.
Alton of Liverpool, L.
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Blood, B.
Borrie, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chan, L.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Colville of Culross, V.
Corbett of Castle Vale, L.
Craigavon, V.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Drayson, L.
Dubs, L.
Elder, L.
Erroll, E.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grantchester, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Judd, L.
Kilclooney, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Marsh, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Merlyn-Rees, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Manchester, L.
O'Neill of Bengarve, B.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Peston, L.
Plant of Highfield, L.
Prosser, B.
Prys-Davies, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Smith of Leigh, L.
Snape, L.
Stone of Blackheath, L.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walpole, L.
Walton of Detchant, L.
Warwick of Undercliffe, B.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the affirmative, and amendment agreed to accordingly.
22 Mar 2005 : Column 157
5.55 p.m.
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