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Lord Lester of Herne Hill: I am grateful to the noble Lord. I wonder whether he will address the point that I was trying to raise: that there is no criterion in the Bill that enables the weighing and balancing to be done in a way that would avoid the kind of unnecessary litigation that he and I wish to avoid. Does he take on board the point that there is a reference to prejudice but there is no indication as to the standard to be applied by officials, courts or anyone else? That is why we need the purpose clause.

Lord Brennan: The noble Lord, Lord Lester, anticipated my final point: that the need for a purpose clause is obviated by the attention which we should pay to the construction of the rest of the Bill in determining in each clause, item by item, the proper balance between government interest and that of the public.

However, in examining in detail what we intend to do, I hope that we shall bear in mind the following. I was once taught by one of my legal elders, who tried to explain the difference between a Teutonic lawyer and a British lawyer, that, for a Teuton, everything is prohibited unless it is permitted, but for a British lawyer, everything is permitted unless it is prohibited. I intend, as I am sure do all noble Lords during the course of the Bill, to ensure that where the balance must be struck, our sympathies will go to the citizen except where it can be shown that they should not.

Lord Richard: Like my noble friend who has just sat down, I am not a great lover of purpose clauses, nor, indeed, is the noble Lord, Lord Lester. Four arguments have been put in this case for the purpose clause. First, it is said that it is an aid to interpretation. Secondly, it is said that it would be a clear and definitive statement of the Government's commitment to freedom of information. Thirdly, it would be a goad to the civil servants to behave in the way in which the Bill guides them. Fourthly, I suppose that it would help to create a proper balance. Much has already been said today about the balance of the Bill.

Provided that the Bill is in reasonable form, I believe that the effect of the clause on interpretation is fairly peripheral. I do not say that it does not exist but it is peripheral. Frankly, I do not believe that it has a great deal of effect as a goad to civil servants. It is a purpose clause at the beginning of the Bill. What is important is the way in which Ministers and the Government as a whole direct the Civil Service to behave; in other words, it is the way in which the rules governing the way in which civil servants are supposed to behave, the way in which those are drafted and, more particularly, the way in which they are enforced that are important.

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Nor do I believe that there is a great deal that a purpose clause can do to produce a proper balance in the rest of the Bill. It can be a declaration at the beginning of a statute as to what the statute concerns.

In relation to this amendment, the only argument that I find at all persuasive is that it would be a clear and definitive statement of the Government's commitment to a freedom of information regime. However, I do not believe that such a clause in the Bill is the only way to achieve that.

During the course of this Bill, today or subsequently, it is important that the Government make it absolutely clear that their presumption is that information that is in the hands of the Government is disclosable unless there are strong and good reasons why it should not be disclosed. That is not the case if the balance is the other way round: that information should be retained unless the person asking for it can make a good case for having it revealed. Therefore, during the course of the Committee stage, I hope that it gradually becomes clear that this Bill is concerned with such a situation: that the Bill is about creating a balance in favour of disclosure and not about creating a balance in favour of retention. Having said that, I am not in favour of the inclusion of the purpose clause.

Lord Dubs: At about half past three this morning, when I was going home by taxi, the driver, on discovering whence I came, asked me what we had been discussing. I told him we had been debating the Countryside and Rights of Way Bill. He said, "What is the purpose of that?" and I endeavoured to explain. However, I did not have the Bill with me or the benefit of the Long Title. If the same taxi driver were to take me home tonight--I sincerely hope at an earlier hour than 3.30 a.m., although that is up to the Opposition Benches and not the Government Benches--I hope that I can give him a clear answer.

I am bound to say that the debate on these amendments will not help me. I do not believe that anyone, whether a taxi driver or the man on the Clapham omnibus--if such buses were to run as late as that--would have a better understanding of what we are about having listened to or heard the substance of the debate today.

There may be other reasons for purpose clauses, but I am not persuaded. If we are talking about the persuasiveness of any particular clause--for example, Clause 13--we have to address that clause and not whether a purpose clause will somehow make matters clearer. However, I have some interest in the point raised by my noble and learned friend Lord Archer, who has tabled an amendment to change the Long Title. It seems that everything that has been said in favour of a purpose clause is an argument for a clear and sensible Long Title. If the Long Title does what it is supposed to do--with the amendment tabled by my noble and learned friend, I believe that it would--we would have no need for a purpose clause. The Long Title would be sufficient.

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Lord McNally: When the noble Lord, Lord Dubs, goes home tonight perhaps he should take the amendment in the name of the noble Lords, Lord Goodhart and Lord Lester, and show it to his taxi driver so that he can explain the purpose of the Bill in a few seconds.

Lord Dubs: I shall leave the noble Lord to do that.

4.15 p.m.

Lord Falconer of Thoroton: The first group of amendments concerns the purpose of the Bill. It may be helpful if I begin my comments by saying that the Government's purpose in introducing this legislation is to ensure that the right to know is placed on a statutory basis and that, consistent with proper regard for privacy, confidentiality and the effective conduct of public affairs, the right is exercisable freely and easily throughout the public sector.

Such a right to know would promote,


    "(a) the accountability of public authorities,

(b) informed public debate on public affairs,

(c) public participation in the making of decisions, and

(d) public understanding of the powers, duties and operation of public authorities".

Those are the purposes referred to in the proposed purpose clause put forward in the third amendment in this group.

There has been much debate in this House and in another place as to whether the Government have achieved their aim with this Bill. We believe that they have. We have listened carefully to the arguments put forward and I hope that your Lordships will recognise that in many areas we have amended the Bill or proposed amendments for debate that reflect concerns expressed.

Before turning to the purpose clause, I want to tell the Committee how we are approaching this stage of the Bill. Your Lordships have an opportunity to listen to the views of the Government on the Bill, virtually clause by clause, and I hope to be able to persuade the Committee, on at least some points, that the Government have got it right. I have no doubt that many noble Lords will aim to convince the Government that in some cases we have got it wrong, or at least some further tweaking or amendment of the provisions is necessary. I cannot give the Committee any assurance that we shall accept all or any of the arguments, but we are a Government who intend to listen carefully to the arguments put during the Committee stage. I hope that what comes out of this process will be a constructive experience for all involved and for the Bill.

I entirely agree with the noble Lord, Lord Lucas, that what is required is a culture change in relation to disclosure of information. The Government intend that the Bill should act as the catalyst for that culture change. I join with the noble and learned Lord, Lord Archer of Sandwell, in enjoying the prospect of there being a freedom of information Act on the statute book.

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I turn to the three amendments in this group. They are each designed to introduce a purpose clause. The amendment tabled by the noble Lord, Lord Lucas, states that the purposes of the Bill are to,


    "enable and encourage the provision of information by public authorities to the public".

The second amendment, in the name of the noble Lord, Lord Mackay of Ardbrecknish, states that the purpose of the Bill is to,


    "facilitate public access to information held by public authorities",

That amendment is the same as a Conservative amendment tabled in another place, and it echoes a recommendation that was considered by the ad hoc Lords Select Committee, chaired by the noble and learned Lord, Lord Archer.

As has been mentioned on a number of occasions, the committee decided not to recommend a purpose clause because it felt that it was far better to deal with the issues by detailed provisions in the Bill. The noble Lords, Lord Lucas and Lord McNally, were both members of that committee. That view was echoed by the chairman of the committee, the noble and learned Lord, Lord Archer, and in a number of speeches made in the House on this series of amendments, particularly by the noble Lords, Lord Brennan and Lord Clinton-Davis.

We accepted the recommendation, in part, of the Select Committee to change the Long Title. We changed it from,


    "Make provision about disclosure of information",

to,


    "Make provision for the disclosure of information".

We did not go as far as the noble and learned Lord, Lord Archer, in the last amendment in this group, because we were advised that that was going too far in a Long Title. We believe that by changing the word "about" to "for", we provide the steer that his committee was after in the Long Title.

I am loathe to include further clauses in the Bill that are not necessary. I do not believe that either Amendment No. 1 or Amendment No. 2 would make any material difference. In those circumstances, there is not much point in including them. I believe that Amendment No. 3 tabled by the noble Lords, Lord Goodhart and Lord Lester of Herne Hill, attempts to do much more than is attempted by Amendments Nos. 1 and 2. I do not believe that a purpose clause along the lines of this new clause is appropriate, particularly in the light of the indication that I gave at the outset of my speech.

One must assume that such a clause would be given legislative effect by the commissioner, tribunal and courts. Therefore, it would change the balance of rights which the Bill as a whole achieves in a way which we cannot predict or control. It is not possible to say that in every case one right should trump another. The right of access to information must be balanced against the other rights to which reference has been made. Too strong a presumption in favour of disclosure for certain purposes, however worthy, over other competing rights to privacy, confidentiality and

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so on, could lead us into conflict, for example with the Data Protection Act which is a particular problem in the Bill. Openness does not have a monopoly of righteousness because, plainly, everyone accepts that in certain cases data protection or, in other circumstances, the right to privacy should prevail. Equally, confidentiality has its proper place.


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