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Baroness Wilcox: I am grateful to the Minister for the way that she is carefully outlining what she is saying but I should like to be sure that I heard what I believe I heard.

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As the Bill is being set up before the freedom of information legislation comes into being, we are saying that what we decide in this Act will take precedence over the freedom of information Act. Is that what the Minister is saying?

Baroness Hayman: It cannot take precedence over something that does not exist.

Baroness Wilcox: Only inasmuch as it will presumably be in place and enacted before the other Act.

Baroness Hayman: This legislation will come into force before any freedom of information legislation. So in that sense, there is not an issue of precedence. This legislation puts wider responsibilities of openness and a greater presumption of openness on the workings of the food standards agency than would be imposed by the freedom of information provisions that would govern the whole of government activity. I suggest again that the draft freedom of information Bill now being reviewed before coming before Parliament provides a discretion to Ministers to withhold policy advice to them when it is requested by an individual organisation, but is under no obligation to do so.

This Bill gives the agency--and this is the proactive as against the reactive situation--a general discretion to publish its advice to Ministers on its own initiative, together with a general presumption of openness. It therefore goes much further in fact than the provisions of the freedom of information Bill and, on my reading of it, it would not be possible. If the agency chose to publish its advice to Ministers--it has the power to do so and there is a presumption that it will do so--it would not then be open to Ministers to exercise a discretion to say that they did not want that advice published. Although even listening to myself it does not sound as though I have made it very clear, I hope that some of the interactions between the draft Bill, the freedom of information legislation and this particular Bill have made the position clear. Although I understand the reasoning for suggesting these amendments, they go too far in terms of putting the burden of publishing everything on the agency. I have given some reassurance about the commitment to that presumption of openness and the mechanisms both for ensuring it and for public access to examine the way in which the agency is conducting itself in these areas.

Earl Baldwin of Bewdley: Before the Minister sits down, perhaps I may ask a question. I may be dim on this, but I have been looking very carefully as she was speaking at Clause 19. I cannot myself see any presumption in the wording either way. I may have missed something or there may be other parts of the Bill which say it. Speaking for myself, I can accept some of the criticisms of these amendments because I take the point she made about having to publish everything. But on the point of where the presumption lies, I should be grateful if she could point to where it

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does presume one way or the other. It does not seem to me that subsection (3) raises any presumption there which amplifies one in any way.

Baroness Hayman: Clause 19 must be read in conjunction with Clause 22(2), which together give the presumption of openness.

Lord Mackay of Ardbrecknish: I am perfectly satisfied with the Minister's explanation as far as my amendment is concerned.

Earl Baldwin of Bewdley: I do not want to make a meal of this, but I did have a look at Clause 22 and, again, I cannot see any presumption from this. I hear good intentions and it may be the way it works, but I still feel something a bit stronger is needed.

Lord Desai: I remarked on the fact that Clause 25(1) was a very unusual statement, allowing the Secretary of State to remove the prohibition on certain disclosure of information, and that is a very forward way of saying information will be made available even though otherwise it would be prohibited from publication. I remember remarking that at Second Reading and I thought that that was a very good indication of openness in the agency.

Baroness Hayman: Perhaps I may help the noble Earl. Although the word “presumption" does not occur in Clause 22, in Clause 22(2)(a) and (c) the use of the word “securing" puts that responsibility very firmly on the agency. It is from the use of that terminology that the presumption of openness comes. It is a drafting point, but the use of the word “securing" in those particular paragraphs--in (a) where the activities are the subject of consultation with those affected and members of the public and in (c) where,


    “records of its decisions, and the information on which they are based, are kept and made available"--

are what provides that presumption. It is not the most usual word to be used in provisions of this sort.

7.15 p.m.

Viscount Thurso: That was an interesting debate and it is an issue to which we shall return. I am grateful to all noble Lords who have taken part and for their contribution.

I want to make one or two small points, but before I do so I want to say to how grateful I am for the spirit in which the Minister has responded. I do not doubt that the Government's intention is to be open. Where I perhaps have a little difficulty is in how much that intention will be translated into reality as time goes by. There was one marvellous defence that I could see being drafted; the “Oh, we will flood you with paper" defence. I was looking across at that seat over there and thinking that if the noble Countess, Lady Mar, were in her place, she would be my best defence to that because I understand there is one official permanently employed to answer the parliamentary questions. In fact, if you just published it all, it would probably save one employee. However, I shall skip merrily over that.

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The heart of what we are talking about is what is required as opposed to what can be done voluntarily and there are two points. The Minister said that my amendments would remove discretion, which is absolutely right. I want to remove discretion. Where I agree that I was probably wrong was in going too far. I certainly do not want totally to remove discretion and I certainly do not want to flood anybody with paperwork. However, I would like to see on the face of the Bill somewhere a requirement for a certain amount to be published or disclosed.

My second point--which is about freedom of information and this Bill--is that freedom of information is about the right to access. No government department or Minister has to do anything except make available that which is requested, whereas what we are asking for here is a duty to publish or disclose.

It would be helpful if we could discuss this matter, perhaps not this evening but after we have all had a chance to read the debate. First, is there a right of access irrespective of whether a freedom of information Act is published? Should we in this Bill allow a right of access to information, and if so to what information? Secondly, what should we oblige the agency to publish or disclose? I do not wish to go any further than that now. It may be that when we have all had a chance to read what has been said and perhaps had a meeting to see where our minds might meet, we could come back to the matter at a later stage. Those are the two core points that I wish to make. I thank the Minister for her response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 57A to 60A not moved.]

Baroness Hayman movement Amendment No. 61:


Page 10, line 13, leave out subsections (7) and (8) and insert--
(“( ) In this section “enactment" means an enactment contained in, or in subordinate legislation made under, any Act, Act of the Scottish Parliament or Northern Ireland legislation.")

The noble Baroness said: In moving this amendment I would like to speak also to Amendments Nos. 85, 95 and 96, which I can assure the Committee do not change the substance of the Bill and are technical in their nature. The first three amendments amend the definition of “subordinate legislation". Basically we have taken the definition of “subordinate legislation" out of the interpretation clause, Clause 36--which relied on the Interpretation Act 1978--because there was some doubt as to whether that definition would work properly in a devolved context. As regards most of the rest of the Bill, the term is adequately defined already. However, it was necessary to have a definition of “subordinate legislation" in Clause 30 which concerns the making of orders and animal feedingstuffs, so these amendments add one back in.

Amendment No. 96 is a minor change to remove an ambiguity in the terminology used in the financial provisions. It makes clear that the additional money that may be provided by Parliament under subsection (2) of Clause 39 relate to legislation passed by

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Parliament as distinct from the Scottish Parliament or the Northern Ireland Assembly. These are very technical points, and I hope the Committee will be able to accept them. I beg to move.

On Question, amendment agreed to.

Clause 19, as amended, agreed to.

Clause 20 [Power to issue guidance on control of food-borne diseases]:


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