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Lord Norton of Louth: I support the amendments. On the face of it, they are extremely sensible and they are central to realising the intent of the Bill. Without them it is possible for an authority, in effect, to frustrate the whole intention of the Bill.

Clearly, someone who knows the process, understands his rights and is determined to acquire the information will do so--the measure provides for that--but what about those who do not understand the process and who are not determined? One can envisage an authority frustrating them by asking why they want the information and not volunteering what is available and not assisting them.

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My noble friend Lord Lucas mentioned that we have touched on this point in earlier amendments. In responding to Amendment No. 25 the noble and learned Lord, Lord Falconer, referred, quite properly, to Clause 10(1)(c) under which an applicant can request information in summary form. However, if the information is not requested, there is no obligation on the authority either to volunteer or to indicate that that information may be usefully provided in that form. The amendment would embody the spirit of the Bill and I believe that without it problems would arise.

The noble Lord, Lord Lester, touched upon the argument that there may be a case for not including it on the face of the Bill, but for putting it in the code. I see the argument for that, but my preference would be for something to be on the face of the Bill, perhaps in the form of the amendments before the Committee, and for the code of practice to flesh out the matter and how it should be given effect.

The amendments touch on an important point. I believe that the amendment in the name of my noble friend Lord Lucas goes more to the spirit of the Bill, although in terms of drafting I believe that the amendments of my noble friend Lord Mackay are preferable. Those are important points and there is a case for putting something on the face of the Bill.

Lord Hunt of Chesterton: I also support the general idea behind these amendments. Noble Lords have talked about public authorities and government departments, but of great concern to the scientific community is the fact that a huge amount of information is issued by agencies. Government agencies are not listed as such. I presume that organisations such as the Ordnance Survey, the Meteorological Office, many health departments and so on are included in government departments. Clarity on that matter would be helpful.

There must be greater encouragement to openness. New Zealand, which is often lauded as an open country, was the first in the world to introduce exorbitant costs for certain kinds of data. It required great protests by other countries to make New Zealand take a more sensible view. Therefore, cost as well as openness is very important.

Another feature about which the scientific community is extremely concerned is the ready electronic access of information. The point made earlier by the noble Lord, Lord Lucas, was extremely important. This should be seen as part of making assistance very easy. I am trying to do something about the fact that the House of Lords does not receive meteorological forecasts and data from one of its own agencies in an easy and open fashion. One has seen recent reports from the United States that people are able to obtain information from government electronically very quickly in a way that is not possible in this country. That is all part of our expectation of how the Bill will impact on people. I hope that the way that the Bill is presented, including this clause, will assist that.

Lord Bassam of Brighton: The Government recognise that these amendments are well meaning.

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Each in its own way seeks to place a duty on public authorities to assist applicants either to understand or exercise their rights under the Bill. The noble Lord, Lord Lester, put his finger on it when he said that it was all about a cultural change. I agree with that. Amendment No. 81 moved by the noble Lord, Lord Lucas, seeks to achieve that by placing a duty on the authority to give reasonable assistance to an applicant, having regard to the relevant guidance in the Secretary of State's code of practice. The two amendments moved by the noble Lord, Lord Mackay of Ardbrecknish, seek to achieve a comparable result, although in this case the duty to assist a member of the public in making a request for information is to be unlimited, while the public authority is required to provide such assistance as is practicable in assisting the applicant to understand the access and appeal procedures within the Bill.

I well understand the good intentions which have informed both noble Lords in moving these amendments. It is an understatement to say that I have considerable sympathy with the desire to ensure that the public is able to enjoy the rights which this Bill will provide. However, we do not believe that the amendments as drafted necessarily offer a sensible way forward.

When we replied to the report of the Select Committee on Public Administration on the White Paper, the Government accepted the need for authorities to give such assistance as set out in the amendments. However, on reflection, the Government decided that the best way to ensure that was not through the creation of statutory duties along the lines proposed by either of the noble Lords. The reason for this is that statutory duties must be clear and definite if they are to have genuine meaning, not only so that authorities are clear as to how to follow them but so that the enforcement body, in this case the commissioner, can be sure when duties have been breached.

The proposed amendments would place a duty on authorities which would be vaguely defined and therefore difficult to enforce. What are reasonable steps in one situation may be very different in another, depending on the type of request, the type of authority and the type of questioner. The kind of assistance that a large government department might reasonably give to an individual requester would be different from the kind of assistance that a GP might reasonably be able to give to a multinational drug company that made a request. It is all rather vague. The Government believe that these good intentions might well lead to bad law. The amendment moved by the noble Lord, Lord Lucas, would help in seeking to give guidance as to what might be considered reasonable by referring to the provisions set out in the code of practice which my right honourable friend the Home Secretary will issue.

Clearly, it is good practice for authorities to give help where it is appropriate and in a manner that is appropriate. I am certain that the code is the correct place for such advice to be set out. We have, therefore, drafted the Bill to include a requirement that the Secretary of State's code of practice under Clause 44 should include guidance on the provision of advice by

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public authorities to persons who propose to make, or have made, requests for information from them. But we have gone further than that. Clause 46 of the Bill places specific duties on the information commissioner to provide advice to the public and, importantly, to perform her duties under the Bill in such a way as to promote good practice and the observance of the requirements of the legislation and the provisions of the codes of practice by public authorities.

I have a problem, however, with the noble Lord's amendment which would introduce a requirement that those aspects of the code should be mandatory. The strength of the Government's proposals is precisely that they leave the code as a flexible medium. This means that the code can set out the kind of assistance authorities should give in broader terms than is possible in a statutory provision. It also means that the commissioner, when issuing practice recommendations to authorities which have failed to comply with the code, can have regard to current best practice in making her decision, not just the strict letter of a statutory provision. I shall have more to say about enforcement of good practice in a moment.

Lord Lester of Herne Hill: It would assist the Committee if it could see the draft code during these debates to see whether some statutory provision is needed or whether it is well taken care of in that code. Is it possible for the draft code to be made available before Report stage so that the Committee can consider its contents?

Lord Bassam of Brighton: I believe I am right in saying that a copy of the draft is in the Libraries of both Houses. If the noble Lord wishes to have it, I undertake to provide a copy to him and other Members of the Committee who have taken part in the debate.

I need to say a word about Amendments Nos. 28 and 29 spoken to by the noble Lord, Lord Mackay of Ardbrecknish. The first of those amendments would introduce a statutory duty on public authorities to assist applicants to make a request for information, which is a very desirable outcome. To that extent the amendment echoes the intention behind the earlier amendment moved by the noble Lord, Lord Lucas. Strangely, the amendment in the name of the noble Lord, Lord Mackay, makes that statutory duty an open-ended one by missing out the qualification that the noble Lord, Lord Lucas, thought appropriate; namely, that the assistance offered should be "reasonable".

If Amendment No. 28 were accepted every public authority would be under a statutory duty to make available an unspecified amount of its resources and energies at the behest of an applicant to assist that applicant to make an application. When would that duty be fulfilled--only when that applicant had framed his or her "ideal" request? Clearly, in the circumstances that would be over the top because of the burden which it could place on such authorities, many of which, we should recall, would be small

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bodies or even individuals. They could be school governing bodies, my favourite small local authority, Adur District Council, a primary care group or a general practitioner. The burden on some of those public bodies could be quite disproportionate.

The second amendment of the noble Lord, Lord Mackay, requires that a public authority should be under a duty expressly to assist an applicant to understand the procedures for making an application for information or appealing against a refusal to disclose information. I welcome the recognition in this amendment, if not the earlier one, that any duty should be qualified--in this case by what is practicable--and not open-ended. However, while I welcome the amendment I cannot commend it to the Committee for reasons that I have already explained; namely, in essence the duty is inappropriate in such circumstances.

I said that I would return to the issue of enforcement. I fully accept that compliance with the published codes of practice would not be enforceable in the courts in the same way that a statutory duty might be. As the provision is drafted, the information commissioner has the power to look at compliance and issue practice recommendations. I believe it would be an exceptional authority which wilfully ignored such a recommendation, particularly given the commissioner's powers to name and shame in any report that she might make to Parliament. An additional point is that the code of practice could be referred to in any test case which was the subject of judicial review. The powers of naming and shaming should not be underestimated in regard to public sector bodies keen to keep the confidence of the public they serve.

Perhaps I may pick up one or two points that have been raised in the debate.

7 p.m.

Lord Richard: Before my noble friend leaves that point, may I ask him a question on what he has said already? He said that there will be a duty on public authorities to advise. That is contained in the code. Is there any duty to assist as well as advise?

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