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Lord Hunt of Wirral: I congratulate the noble and learned Lord, Lord Archer of Sandwell, on achieving a first. This is the first instance I can recall of someone managing to introduce a reference to the last amendment on the Marshalled List during a debate on the first. I understand his reasons. There is a great deal of sympathy in the House for the idea of inserting a clearer statement of intention.
My noble friend Lord Mackay of Ardbrecknish referred to the clear statement in the code. On Second Reading, I reminded the Government that when Labour was last in office, in 1979, the government produced a Green Paper recommending a code rather than legislation. I take responsibility for the introduction of the current code and recommending its strengthening.
I always had in mind the clear understanding that as soon as we progressed to legislation we would need to list a huge number of exemptions. I was loath to allow that to happen because it would give the wrong impression of the purpose of such legislation. We now have a new government and a new intention to put a Bill on the statute book. I accept that. However, I hope that the Minister will consider ways in which he can make the purpose of the Bill clearer. Several points are made in the briefing papers we have received on the subject. The issue was aptly put by Public Concern at Work, who said:
We need to listen carefully to my noble friends Lord Lucas and Lord Mackay and to the Liberal Democrats and try to find a way of demonstrating that the Bill is intended to promote greater openness and accountability.
My concern is shared by a number of outside commentators and a number of noble Lords. As it stands, the Bill would encourage less openness than is presently allowed for under the code. We cannot accept that.
We greatly welcome the fact that we are at last able to get down to line-by-line scrutiny of the Bill. We have waited a long time. If I have a criticism, it is that we are being asked to improve the Bill at the last moment, in the final days of the Session. I hope that the Government will allow us enough time to devote ourselves to the task in hand. Now that there is to be a Bill, let us make sure, as the noble Lord, Lord McNally, said, that once it gets on the statute book it is at least as effective as the non-statutory code. I support the idea of a purpose clause.
Lord Clinton-Davis: I do not know why some noble Lords insist on the amendments in the light of what they have said. It is important that we test whether the Bill is ambiguous or less open than we would like. The only way to do that is by looking at the information set out in the Bill, not by looking at the general information that noble Lords have mentioned. The noble Lord, Lord Hunt, did not welcome that.
I hope that we will look carefully at the Bill. I share to a great extent the views of the noble and learned Lord, Lord Archer of Sandwell. I have not disagreed with him about civil liberties issues in the past, so I see no reason to do so in this case. However, I hope that we get on to ensuring that the Bill conforms to what we have said about it in the past by opening rather than closing the channels of information that are available through government departments.
I worked in the Department of Trade between 1974 and 1979. It then became the Department of Trade and Industry, and I served there again in 1997. On neither occasion were the civil servants inclined to shelter the Government from the information that is set out. I hope that the House echoes my belief in opening rather than closing the avenues of information that are available.
Lord Lester of Herne Hill: I was unable to be present on Second Reading, but I was here on 11th December 1997 when I gave a strong and unequivocal welcome to the Government's White Paper. This is my first opportunity to congratulate them on the Bill. I shall explain briefly why a purpose clause matters and would make a difference.
I am not normally a fan of purpose clauses. I am in favour of them only if they serve a practical purpose. The problem is that we are asking public authorities, the information commissioner and the courts to interpret and apply this constitutional measure in a general constitutional vacuum. Unlike many countries, this country does not have a strong Bill of
We do not start with a strong constitutional value in law that gives a positive right of access to information, subject only to necessary exceptions. I am not wedded to any of the three versions of the purpose clause that have been put forward, including the one that stands in my name. Whatever version is put forward, we need a strong expression of a constitutional right for the citizen to have access to information about the workings of government and other public authorities.
That can be achieved in various ways. A purpose clause is one possibility. Alternatively, the Bill could specify an appropriate standard for weighing and balancing the right to free speech against other public interests and rights. So far the Government have resisted the idea of putting in an appropriate standard of significant or substantial harm, which would serve the same purpose. The Bill therefore needs a purpose clause to establish a strong constitutional right to free speech, subject to necessary exceptions. It would be helpful if the Minister could tell us that he agrees that, even though they are not expressly stated, the purposes of the legislation include facilitating public access to information held by public authorities and the purposes described in Amendment No. 3. If he cannot give us that assurance, I should be grateful to know why not. If we could put in a proper standard to enable weighing and balancing when we come to the harm tests, a purpose clause would be much less important.
Finally, if the noble and learned Lord, Lord Archer of Sandwell, will forgive me, I do not agree with his Amendment No. 368. I believe that amending the Long Title would weaken the Bill rather than achieve his objective. However, it will be many hours before we reach that point.
Perhaps I may add one further point. The noble Lord, Lord Mackay of Ardbrecknish, referred to the New Zealand Freedom of Information Act as an example with a purpose clause. I thought that the Committee might like to know that that has been of real practical value in the way that I have described. In a case called Commissioner of Police v. The Ombudsman (1988), 1NZLR 391, Sir Robin Cooke, sitting as President of the Court of Appeal of New Zealand, referred to the purpose clause in order to be able to interpret the New Zealand Act in an appropriate way. I hope that that example can be looked at before this matter is taken further.
Lord Campbell of Alloway: I rise briefly to support the purpose clause in some form, and the form in which it has been presented from the Liberal Benches happens to attract me very much. There must be a purpose clause because this is a constitutional Bill. As
I do not want to go over the procedure, the difficulties and the arguments. The important point is that an avalanche of amendments have been tabled long after Clause 1, which is not really a purpose clause at all. We are in a total shambles and under considerable pressure. For it to be suggested that we can redress or deal with the situation wholly adequately by dealing with each qualifying amendment as it arises is asking a little too much. If we had a purpose clause, at least it would serve as a guide or beacon which may lead us out of the shambles or enable us to deal with it.
Before I sit down, perhaps I may make the point that, whatever was or was not agreed between the usual channels, it is the Back-Benchers on all sides of the Chamber who have to deal with the shambles. I am one of them. I spoke at Second Reading and I am not sure that as yet I have been able to get my mind round the amendments sufficiently to be able to speak to many of them in Committee.
Lord Brennan: In some Bills a purpose clause is appropriate. However, for the following reasons, I do not believe that this is such a Bill. First, I hope that the English language has not reached such a level of semantic poverty that the words "freedom of information" cannot be understood and their message be plain to read. We do not want a purpose clause in this Bill because its Short Title is explicit, and its longer Title is clear, that the intention is to make disclosure of information a positive purpose. That provides the key to our consideration of the rest of the Bill. By the Short and Long Titles we can ascertain the purpose of the Bill and, where we need to, have light thrown on its construction.
Secondly, I fear that a purpose clause in a Bill of this constitutional importance would be a recipe for unnecessary, expensive and unwanted litigation. There would be litigation, if I may say so, on both sides: from those who adamantly want the information and from the bureaucrats who do not want to give it; and the purpose clause would be their vehicle for contest and delay. I do not believe that a freedom of information Bill should be the source of litigation; I believe that exactly the opposite is true. It should be there to educate the public by their obtaining information and to discipline civil servants and politicians by their knowing that they may have to give it.
Thirdly, I do not imagine that, if the Bill is passed, the Civil Service of our country--enormous as it is numerically and in power--could implement it without a code of practice. It would surely have to be given direction. In the code of practice introduced by the previous government a key passage to the civil servants stated:
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