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Lord Falconer of Thoroton: Perhaps it would be as well if I reply to that point now. There is good news and bad news in this respect. I think the noble Lord, Lord Goodhart poses the question whether the removal of the words "it appears to the public authority" means that the commissioner now has wider powers under Clause 49: that is, she can substitute her own view rather than being inhibited by something similar to a judicial review-type test. I think that that is the question. We say that it does not change

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the existing position. We say that the position has always been that the commissioner could substitute her own view for that of the authority. So the bad news has been replaced by the good news at the end, and the removal of the words we believe have made the position clearer. That is why I did not mention it as a change, because it was referring to a position that already existed. I am sure that that will satisfy the noble Lord.

Lord Goodhart: The bad news has clearly been trumped by the good news. For that reason, I am happy with the assurance given by the noble and learned Lord.

I shall turn now to Amendments Nos. 10 and 12. As the noble and learned Lord, Lord Archer of Sandwell, pointed out in his contribution, Clause 1(1) states that anyone who requests information is entitled to receive it. That seems to us to be the proper and correct principle on which the Bill should be based. Of course we recognise that that principle cannot be unconditional. No freedom of information legislation anywhere in the world is completely unconditional, but the principle that the information held by an authority should be made available is most important. The new clause plainly contravenes this principle, as indeed did the original Clause 13. Under subsection (1)(b) of the new clause, the duty to confirm or deny applies only if,


    "in all the circumstances of the case, the public interest in disclosing whether the authority holds the information outweighs the public interest in maintaining the exclusion of the duty to confirm or deny".

Similarly, under subsection (2)(b), the duty to disclose applies only if,


    "in all the circumstances of the case, the public interest in disclosing the information outweighs the public interest in maintaining the exemption".

It is of course true that these provisions apply only to information exempted under the provisions of Part II and not to other information. However, that part of the Bill contains an extremely long list of exemptions. It includes no less than 24 clauses, each of which specifies a different type of exempted information. Indeed, eight of the 24 clauses provide exemptions even from disclosure under the proposed new clause. We shall need to look at those eight cases in more detail when we come to later amendments.

However, subsections (1)(b) and (2)(b) of the new clause are plainly inconsistent with the principle because they turn the wrong way round the burden of proof. It is possible to secure confirmation that information is being held, and subsequent disclosure of that information, only if the public interest in disclosing such information outweighs the public interest in maintaining the exclusion. Surely the principle to apply here should be that information must be disclosed unless the desirability of so doing is outweighed by the public interest in maintaining the exemption. If the balance is equal, disclosure should take place.

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It is fair to say that I doubt whether, in practice, this will make an enormous difference. In most cases, it will be possible for whomever is adjudicating to come to a decision on whether one interest does in fact outweigh the other. But the fact that the statute calls for maintaining the exemption in cases of equality sends absolutely the wrong signal. The trumpet call for freedom of information in Clause 1 is muffled and muted by the inconsistent rule which has been proposed for inclusion in the new clause.

Lord Lucas: I believe that my Amendments Nos. 11 and 13 address much the same points just covered by the noble Lord, Lord Goodhart, although they do so rather less well. Under those circumstances, I prefer his amendments. However, my argument is exactly the same: when a close balance needs to be struck between disclosing information and not disclosing information, the disclosure of information should win. I agree very much with the noble Lord, Lord Goodhart, on this point. Whatever may be the legal implications of what has been proposed, the implication in plain English suggests that one will have to prove that information ought to be disclosed and that the balance must fall clearly in one's favour before such disclosure is to be allowed.

I accept that that may not be exactly how it could be interpreted legally but that is how it reads to me and clearly to the noble Lord, Lord Goodhart. I believe that the noble Lord's suggestion that the phrase should be turned around would--if it would make no legal difference--greatly improve its accessibility in terms of plain English. A great many people who will care deeply about the provisions in the Bill will wish to read them in plain English rather than in "legalese".

I am delighted that Amendment No. 14 may have some effect here. I shall be happy to wait to see what that is to be and I shall reserve my reaction until the appropriate time. As regards Amendment No. 15, I shall be much comforted to be told that that is to be dealt with in some other way. It is a difficult matter to address at this point in the Bill. However, it is clear that instructions to public authorities in some form must be included as regards how they are to deal with decisions to be reached under the provisions of the new clause in Amendment No. 9. We address that point elsewhere by suggesting in another amendment that the information commissioner should be given a role in instructing public authorities on how they should reach such decisions. Whether that is to be the case, it is clear that instructions in some form are needed here. I shall be content if I am told that the noble and learned Lord agrees with me that, where a matter is no longer under active consideration, in principle that should be construed as evidence in favour of it being disclosed.

The noble and learned Lord has given me food for thought as regards Amendments Nos. 16 to 23. I believe that it will be easier to deal with them separately and individually. In the light of what the noble and learned Lord has already stated, I may no longer bother to move some of them; indeed, to

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address them now would merely complicate matters. They will each require individual and practical attention.

Perhaps I may turn now to Amendment No. 79, tabled by the noble and learned Lord. I do not intend to address this in detail today, but I am distressed to see that the noble and learned Lord has not taken the opportunity to examine the matter of time limits. It seems to me that we have a lacuna in the proper operation of the Bill, in that in circumstances where a public interest test arises no time limit will be imposed on a public authority's deliberations. It could take three or even six months to consider the matter. As long as it is actively considering an issue under that heading, it entirely escapes the time limits imposed by the Bill--or at least that is how I read it. It may be that I have it wrong. If that is the case, I shall be happy to be corrected. Otherwise, the provisions of Amendment No. 79 will need to be revisited when we consider the Bill on Report.

Lord Lester of Herne Hill: In considering the extremely helpful new clause set out in Amendment No. 9 and questions such as the burden of proof, it would be most useful if the noble and learned Lord could indicate how he considers the phrase,


    "the information outweighs the public interest",

is to be addressed. I take it from his earlier speeches that he would agree that the starting point is the right of the public to have access to information, subject to certain necessary exceptions. I take it also that he would agree that those exceptions should be necessary in the sense that they should apply only where the principle of proportionality operates. Thus the starting point would be access to information. We then come to exceptions, where they are necessary, with the application of the principle of proportionality.

This might be covered by the phrase, "the information outweighs the public interest in disclosure" and "outweighs the public interest in exclusion". However, this is the first example we have reached which demonstrates the absence of a legal standard or criterion. It would therefore be helpful if the Minister could indicate the Government's position here.

In some recent cases, in particular in R v. Secretary of State for the Home Department, ex parte Simms, which concerned restrictions on access to the media by a prisoner, and another, Reynolds v. Times Newspapers, which concerned how to balance reputation against free speech, the Law Lords indicated that the starting point always should be free speech, subject to any necessary exceptions. However, it would be undesirable if we needed to establish through litigation what ought to be plain and obvious. Either this should be dealt with by making the situation plain on the face of the Bill or at the very least by a Pepper v. Hart statement from the Minister--even though I do not particularly favour that.

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Either now or at a later point in the passage of the Bill, will the Minister also address the issues of the legal test and burden of proof and how he sees these points being worked out in practice?


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