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Lord Davies of Oldham: My Lords, I am grateful to both noble Lords for their contributions to this debate. I am marginally more grateful to the noble Lord, Lord Roberts, who gave a rather more hearty welcome to the main propositions behind the order than did the noble Lord, Lord Thomas, but I understand that the purpose of the debate is to leave us with a full understanding of the issues raised.

I sought to emphasise in my opening remarks that we recognised the concern about Section 54 when the Bill was being considered. The order is an honest and constructive attempt to fulfil the obligations into which we entered at that stage, although I recognise that the noble Lord, Lord Thomas, is asking for rather more than what is being at present offered.

Let me emphasise one or two points to the House. It is certainly the case that, at the time of its drafting, the Freedom of Information Act order to which I referred in my opening remarks—that which amended Section 49 of the Audit Commission Act 1998—can extend only to the amendment or repeal of legislation in so far as it applies to public authorities. We are committed to extending disclosures of information beyond that. We are looking at all legislative avenues, and intend to fulfil this obligation as rapidly as we can. I recognise the reservations of the noble Lord, Lord Thomas, about the more limited dimension of this particular order. However, I give the noble Lord an undertaking in good faith: we have more work to do, which we intend to do as rapidly as possible.

I want to concentrate rather more on any weaknesses that there may be in this particular order, and to reply to the points that have been made. First, I emphasise that the Auditor General has the final decision concerning the audited body—that is, before the Information Commissioner is involved. However, in response to the first of the two long and interesting questions addressed to me by the noble Lord, Lord Roberts—questions which I will hope to meet as fully as I can, and where I have failed to answer in every respect what he and other noble Lords have asked, I will certainly write to them—the Information Commissioner has jurisdiction to consider all complaints made to him under the Freedom of Information Act 2000. A request made in respect of information relating to the audit or inspection of a local government body under the proposed Section 54 would be no different from any other request. If the Auditor General for Wales, or a local government body, were to deny access to information on the grounds that its release would be prejudicial to the effective performance of statutory functions—and, therefore, exempt under Section 44 of the Freedom of Information Act—I can assure the noble Lord that it would be open to the person who had requested that information to complain to the Information Commissioner. As with any other request, that would
 
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be the case. So we are covered, in the same way as any other request, under freedom of information legislation.

The Earl of Northesk: My Lords, I am grateful to the Minister for giving way. I have a brief question: are the Government entirely satisfied that the Information Commissioner, given the burgeoning tasks which are being given to him, has sufficient resources to deal with issues like these? Can the Minister give an absolute guarantee—and an explanation—about where the funds are coming from? Does the Information Commissioner have enough resources to deal with these problems?

Lord Davies of Oldham: My Lords, this is a developmental role. It is difficult, in the first instance, to judge how much use may be made by the public of the requests for information. I am sure that the noble Earl is reflecting some anxieties in the press about the extent of the information to be revealed and how quickly that will be done. How strange it would be if the press did not have criticisms on that score, given that it takes the opportunity to criticise the Government on almost every other score. If a journalist finds that a request is not met with the degree of promptness he expects, no doubt there will be a complaint.

In general terms, however, and giving the noble Earl credit for the serious intent of his question, of course we will need to expand the resources available to the Information Commissioner according to the development of his workload. However, the noble Earl will recognise that while many of the requests will be entirely appropriate and intelligent, addressing proper sources of information, among those will be some requests—as we see in Parliamentary Questions—which might not hit a significant nail on the head. From time to time it is only right that the answer to such questions should be that the information could be provided only at disproportionate cost. Members of the other place are accustomed to the fact that that answer must be given on certain occasions. It is an accurate answer. We cannot provide limitless resources even to a body as important as that of the Information Commissioner.

With that rider, I want to reassure the noble Earl that this order demonstrates that the Government are committed to making freedom of information work. As the noble Earl has indicated, that requires resources to be made available in order to meet requests for information. I give way to the noble Lord, Lord Thomas of Gresford.

10.15 p.m.

Lord Thomas of Gresford: My Lords, I am much obliged. Further to the answer just given by the noble Lord, if a member of the public obtains information that has been supplied to the Auditor General through the use of freedom of information and then releases it to the press or makes it public in any way, has he committed an offence under Section 45 which would make him liable to imprisonment of up to two years?

Lord Davies of Oldham: My Lords, I am no lawyer and, in the presence of several extremely distinguished
 
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lawyers, I hesitate to tread on this ground in definitive terms. But I should have thought that the logic is obvious. Once information is in the public domain and has been supplied by a properly authorised officer, how could anyone commit an offence by further distributing that information? That is the logic of the position. I cannot conceive of any form of information whose use, which would be entirely legitimate, by the individual concerned would render him subject to sanction.

The noble Lord, Lord Roberts, asked me a question related to bodies other than public bodies. Section 5 of the Freedom of Information Act enables the Secretary of State to add bodies not already designated as public authorities for the purposes of the Act. However, designation under Section 5 does not confer a presumption of disclosure on any such body solely for the purposes of proposed Section 54A. Designation would carry with it all the responsibilities conferred on public authorities for the purposes of the Act. It would confer a duty, for instance, to produce and consult on a publication scheme and other responsibilities in respect of the handling of requests for information.

This could be unnecessarily burdensome. A private sector organisation appointed as auditors for the Auditor General might find that under these requirements, having fulfilled its responsibility to support the work of the Auditor General, it is in the same position as a public body. So I emphasise again that the Government have made a public commitment to extend the presumption in favour of disclosure within the spirit of the Act to appointed auditors and to other organisations not currently covered by the scope of the amending order. That will be done at the earliest opportunity.

I hope that noble Lords will agree that a designation under the Freedom of Information Act may not be the most appropriate and, indeed, perhaps not the quickest way of going about this task. We are at one with the noble Lord's intent. However, we have reservations about whether that is necessarily the best way of tackling the matter.

I was asked whether Section 54 had been activated. The Assembly proposes to commence that on 1 April 2005, so we are a matter of days away from the activation of that section. I understood the points that the noble Lord, Lord Thomas, emphasised. I can only reiterate what I said in introducing the order. I recognise that there is no way in which the Government can respond fully to the noble Lord when he says, "We would have preferred that Section 54 had never been passed into law". We had these debates last year. It is a great joy to revisit these issues at this late hour some months later. However, one's memory remains fresh and green as regards all things that are interesting and exciting, as the noble Lord, Lord Thomas, reflected, although his memory of Saturday's game is slightly awry. Wales did not score first and therefore there was an element of recovery even in that game.

I want to emphasise that of course we are not able to meet the noble Lord in full when he says that he would prefer that Section 54 had not been passed. This order
 
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makes considerable progress under Section 54 towards the extension of information which was sought in earlier debates. I freely give the noble Lord the commitment that we are pursuing other ways in which we can extend that to non-public bodies. I hope that the noble Lord will recognise that we are making progress.

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