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Lord Roberts of Conwy: My Lords, the order represents the fulfilment of a promise made by the Government in the course of our discussions on the Public Audit (Wales) Act last year. As the Minister knows, we were particularly concerned about the content of Section 54 and the restriction that it imposed on disclosure of information. We were anxious that the clause should not be used as a hiding place by errant authorities.

Only the Government's promise to consider our concerns about that aspect of the Bill in the wider context of the Freedom of Information Act and the Audit Commission Act prevented some of us trying to remove the clause altogether. The Government have kept their word. We are grateful for this order removing the restriction on disclosure by, or on behalf of, public authorities, for the purposes of the Freedom of Information Act.
 
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The order amends and adds to the existing Section 54 in the Public Audit (Wales) Act 2004 and brings the Auditor General for Wales into line with the Audit Commission in England so far as concerns the Freedom of Information Act. As I understand it, the penalty for the offence of wrongful disclosure in the new section and the Freedom of Information Act is a fine, as opposed to imprisonment, which remains the penalty for wrongful disclosure in contravention of subsection (2) of existing Section 54. It may seem odd to have different penalties for similar offences but it is understandable bearing in mind the different legislative source of the amending order.

I wish to raise a couple of outstanding issues. The question of who decides ultimately that, as stated in new Section 54A(2)(c), disclosure,

of an authority and should not therefore take place has been answered by the Minister, Mr Don Touhig, in Standing Committee in the other place. He implied that the Auditor General had the final say. To save bother I shall quote him:

Nevertheless, some doubts persist in that area. Concerns were raised in Standing Committee about the apparent lack of independent arbitration on what would prejudice effective performance. I gather that if someone requesting information had their request denied on the basis of prejudice, under Section 54A, the Information Commissioner could not consider their complaint and review the decision. I would be very grateful if the Government could clarify the Information Commissioner's ability to review decisions to withhold information. Was the Minister right to say that the ultimate arbiter is the Auditor General?

My second point relates to the fact that new Section 54A applies only to public authorities designated under the Freedom of Information Act. At the moment, while the Auditor General for Wales is designated, local government auditors appointed by him are not designated, or at least the position is uncertain. The Minister referred to the Auditor General "and his staff", but I am not sure whether all the auditors that he may appoint ad hoc to local authorities are necessarily members of his staff. That means that the Auditor General for Wales will disclose information in line with the Freedom of Information Act, but the auditors whom he appoints may not disclose information, except under more restricted circumstances.

One way of remedying that anomaly would be for the Government to designate auditors appointed by the Auditor General as public authorities under the Freedom of Information Act as soon as possible. I wonder whether the Government have any plans to do
 
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so, and, if so, when. Will they then bring forward orders to amend further the legislation in England and Wales?

Having put those two points, which I hope the Minister can answer, either this evening or at his convenience, we are generally content with the order. It is, of course, coupled with an auditor's duty under Section 22 of the Public Audit (Wales) Act 2004 to report on, and bring to the attention of the public, any matter that comes to his notice and requires such treatment in the public interest. I understand, incidentally, that Section 54 has not yet been activated by the National Assembly Government. Can the Minister tell us when that might be?

We all favour openness and transparency in the operations of public authorities and believe that this order and the Public Audit (Wales) Act will promote these objectives. There should be no hiding place for wrongdoing in any kind of public authority.

10 p.m.

Lord Thomas of Gresford: My Lords, I echo the sentiments of the noble Lord's final sentence. I regard the order as a promise half-fulfilled, although I do not doubt the Government's good intentions in putting it forward.

We seem to have ended up in something of a muddle. I note that the noble Lord, Lord Davies, in presenting the order to your Lordships, envisaged that there would be further legislation and that further orders would come before the House on this matter. That underlines the point we made during the passage of the Bill itself in September last year: that Section 54 should be scrapped, and something put in its place that was clear and led the way, which would be a pattern for the English authorities to follow. We felt, and said so on a number of occasions, that Wales should lead the way, as effectively as we did last Saturday in winning the Grand Slam. Your Lordships will forgive me—I had to get that in at some stage.

In introducing Commons Amendment No. 1 on 8 September, the noble Lord, Lord Evans of Temple Guiting, said:

I said in reply that the solution, which had been arrived at with considerable effort on the part of the Minister,

That was the context in which the amendment was accepted.

When we look at what has happened with this order, Section 54 has not been repealed. It remains. The section apparently applies to anyone other than a public authority, who could be either the Auditor General and his staff, or the local government body that is concerned and its staff. Anyone else who discloses information
 
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is subject, following conviction on indictment, to imprisonment for a term not exceeding two years, or to a fine, or to both. So the promise that was put forward by the noble Lord, Lord Evans, has not been fulfilled by this order.

It is confusing that Section 54 remains with all its subsections, apart from one minor amendment. For example, its Henry VIII clause—by order made by statutory instrument amending or repealing Section 54—is still in being. The conditions in which that amending order could be made are still in being. All the mechanisms which one would have thought would have become obsolete, if this order were properly drafted, are still there. So, the mechanism that we found to be highly unsatisfactory is still in the Bill. This order merely makes a distinction between any person and a person who is either the Auditor General for Wales or a local government authority or people acting on its behalf. So a double mechanism exists, one of which is, one would have thought, completely out of date.

The sanction of imprisonment remains. The sanction of a fine for breach of the new Section 54A remains. The curb on whistle-blowing for local government authorities that we had hoped would be abolished remains.

Furthermore, the drafting of the order is rather strange. I refer to new Section 54A(2), which reads as follows:

However one reads the subsection, the person remains the same, so the Auditor General may disclose any such information except where it would be likely to prejudice the effective performance by him—not by anybody else—of a function imposed or conferred on him by or under an enactment. The illustration that the noble Lord, Lord Davies, gave when he introduced the order simply did not follow that wording. It referred to disclosure prejudicing the effective performance by another person and not by the Auditor General.

Although I have done my best, I end up confused. Section 54 of the Act remains in being, with its sanction of imprisonment; and the new Section 54A is introduced with a different mechanism and confusing wording. As it is a draft order, I would be grateful if, in addition to taking on board the points that were strikingly made by the noble Lord, Lord Roberts of Conwy, those who are in charge of the order were to go back and consider whether they can set out more clearly what they intend and whether it would not be better to repeal Section 54 as it now stands in the 2004 Act and start afresh with something that we can all understand.

I am not at all impressed by the argument that we must mirror the English legislation. That argument was put forward in September last year. We rejected it
 
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then, and we continue to reject it. So I hope that the order, before it is confirmed, will be considered with much greater care.

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