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Lord McNally: The Minister provoked us with yesterday's Question, but is not that a classic example? If the Government sit on research and make their own judgment, perhaps motivated by other politically-led judgments, the general public do not have an opportunity to assess it. I do not see the problem with opening up research findings to public scrutiny, other than that people might make judgments different from those made by the Government.

Lord Bassam of Brighton: It will come as no surprise to the noble Lord to know that I see no problem either, particularly in the case of GW Pharmaceuticals, the case to which I referred. It expects to complete its research in 2002. It is irritating that we must wait for that but, in order for it to be properly formulated so that we can make reasoned judgments and people can join in the debate, that is only right and proper. If we attempt to pick things off in a partially formulated way and perhaps hide behind FOI to do exactly that, the public interest will not be served.

Lord Mackay of Ardbrecknish: The only people hiding behind FOI are the Government. I began to be convinced by a bit of the Minister's argument, but I am afraid that it fell away at the end. Almost daily we read in newspapers information about research which is not fully completed. Work is still being done on the research, but we read bits about it, especially as

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regards medicine, pharmaceutical products and the like. Claims about "wonderdrugs" for curing cancer spring to mind, and they arise time and again. Journalists, the medical profession, and the public treat them with hope but also with a good deal of scepticism. I am not in the least convinced that if a research project is ongoing some of the preliminary findings must be kept secret until the final report is published. If that final report takes years and years, some of the preliminary information which might be of interest and use will be hidden from the public for years.

I am not in the least convinced, and I noticed that the Minister did not address my complaint about the Audit Commission's report and its impact on our discussions on the Postal Services Bill in July, before the Recess. If the report had officially been made public and the Minister had been forced to own up to it, in Committee and eventually on Report and at Third Reading your Lordships' House might have taken a different view of the amendments tabled by my noble friend Lady Miller. They would certainly have taken a different view of the arguments put forward by the Minister, the noble Lord, Lord Sainsbury.

As regards my amendment, I fully accept--I would be unwise not to--the advice I have received from the noble Lord, Lord Goodhart, that the word "irrevocable" is perhaps not the wisest to use. I fully see that his amendment is better than mine. However, we shall have to return to the issue because the Minister, instead of persuading me that I had no argument, managed to persuade me that there was a great deal in it and that we may need to pursue the matter when we have devised a tighter wording. We can then answer a few of the legitimate concerns raised by the Minister in reply. Frankly, some of the concerns which were, to put it mildly, less than legitimate did not improve his argument in any way. I am not impressed by the thought that government might keep things secret on the basis that at some time in the future they might want to publish the final paper. I do not believe that that is a reason for keeping secret matters that should be made public.

Lord Bassam of Brighton: Perhaps the noble Lord is a little curmudgeonly in his response. He failed to address the issue on which I concluded: the public interest test. Clause 20 does not allow an arbitrary and unchallengeable decision to be taken by an authority. A commissioner can overturn it if reliance on Clause 20 is unreasonable and the public interest test applies. The noble Lord needs to take account of that. These matters can be tested by the commissioner. Therefore, the Bill has real teeth to put these matters under the spotlight and give them the kind of scrutiny which the public quite rightly demand.

Lord Mackay of Ardbrecknish: The cavalry has perhaps delivered a slightly better argument than the main force. I am still not sure that I am convinced. We shall obviously take into account the Minister's response when we consider whether to return at Report stage with a better amendment. We may table

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an amendment more along the lines of that in the name of the noble Lord, Lord Goodhart, or perhaps even one that addresses some of the legitimate concerns put forward by the Minister. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 127 not moved.]

Lord Lucas moved Amendment No. 128:


    Page 12, line 6, leave out subsection (2).

The noble Lord said: In moving Amendment No. 128 I shall not speak to Clause 26 stand part. That is really a different argument which arises in its proper place in the Bill. Nor shall I address any of the other amendments in this group, unless it is in response to anything that the Government may wish to say, because at this stage I am concerned entirely with the general argument as to how the power neither to confirm nor deny is to be used in the operation of the Bill. It may be that as one comes to understand the position of the Government it will be sensible to speak to the other amendments either now or in their place in the Bill, but that decision is left for the end of the argument.

Perhaps I should rehearse my understanding of how the provisions of Clause 15 of the Bill will work to ensure that I do not proceed on an entirely false premise. The basic arrangement with exempt information is that if the public authority believes that information is exempt it will inform the applicant of that fact, and why it believes the exemption applies. If appropriate, it will then say that it is, however, considering whether it should be released under the public interest test. That may take a little longer to come through, but at the end of the day the member of the public will receive an answer. He will know that the information exists, that the process has been gone through and what stage it has reached. To understand that seems to be a reasonably straightforward affair.

That is not so when one comes to the duty to confirm or deny. According to the wording of Clause 15, it appears that the duty to confirm or deny must be referred to in what the public authority says to the applicant when the duty comes into play. When the public authority believes that that duty does not apply it does not mention anything to do with the duty either to confirm or deny. The duty arises only when a question is asked which raises matters that fall within the ambit of the duty to confirm or deny. To take an example, in another place the Government might be asked whether they had considered the possibility of a particular form of taxation. The Government might not wish to be drawn on the fact that there had been a paper on the subject. They might reasonably wish to say that as a matter of practice they neither confirmed nor denied whether various aspects of taxation had been considered.

However, there is a problem when one considers how that works with the public interest test. If the public authority goes through the process of deciding whether under the provisions of the public interest test the existence of a document should be acknowledged,

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or that it should be released, there is a duty under Clause 15 to state that fact, but it cannot do so because at this moment it denies its very existence; it cannot say that it is considering whether the public interest test should apply. That arises only if there is a document, and the public authority is not in a position to admit its existence. I believe that there is a potential for confusion in the operation of the provision.

I also have a good deal of concern as to what wording is to be used. The fact that one refuses to tell a member of the public whether a particular document exists may come as an affront. The member of the public may believe that the Government are being secretive. How the decision is expressed is very important. I have not seen the wording in writing anywhere and I should very much like to see it.

One comes to the question of how frequently this provision will be used. The Government have adopted the strategy, as one sees from the immense number of potential amendments in this group, of being able either to confirm or deny in the case of almost every exemption. It is, therefore, possible that all manner of public authorities will use this provision on all kinds of occasions. I take some examples instanced by the Campaign for Freedom of Information. Safety inspectors will not have to reveal when they last inspected a dangerous site; whether they took readings or measurements; whether their visits were announced to owners in advance or made without warning; whether they looked at parts of the premises about which the request is concerned; or whether they were satisfied or dissatisfied with what they found. That is explicitly permitted under Clause 28(3). Ministers would not have to say whether they had received the report of a statutory inquiry, made private submissions to it or intervened in legal proceedings, for example by signing a public interest immunity certificate. That is permitted by Clause 33. In that case there would not be a public interest test.

Given the widespread incidence of this clause in the Bill, at present one has an invitation to be evasive which is not balanced by a duty to assist, which may help to offset such an influence on civil servants. If this provision is widely used potentially it will cause the public to believe that the effects of the Bill are being avoided. It also means that the information commissioner will be overloaded with work. When one receives the reply that something is neither confirmed nor denied, which indicates that the subsection is in use, one must go to the commissioner. If the matter is at all questionable, or one does not immediately understand why it should be subject to the "neither confirm nor deny" rules, one must go to the commissioner to find out if there is even any information. The automatic response of anyone who receives what he believes to be an unjustified response under this heading is to go to the commissioner; he has no other route open to him.

If the provision becomes widely used there is a danger that the commissioner will be completely overloaded and there will be lack of trust in the legislation by those who use it. At present I do not see

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any provision either in the Bill or the code which prevents authorities from making frequent use of a widespread power in the exemptions in the Bill. I want the Bill to be a workable and successful measure in which the public can have confidence. I believe that the use of the duty either to confirm or deny in inappropriate circumstances will very quickly poison the public's attitude to the Bill. I beg to move.

7 p.m.

Lord Goodhart: My noble friend Lord Lester and I have added our names to this amendment. We go most of the way with the noble Lord, Lord Lucas, on this group of amendments but not all the way. We think there are some circumstances where there should be no requirement to confirm or deny that the information is held. One example is Amendment No. 204, which is an amendment to Clause 36, dealing with health and safety. Clause 36(1) states:


    "Information is exempt information if its disclosure under this Act would, or would be likely to--(a) endanger the physical or mental health of any individual, or b) endanger the safety of any individual".

Subsection (2) goes on to state:


    "The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely, to have either of the effects mentioned in subsection (1)".

There are certain possible circumstances in which the mere disclosure that information was held would be a potential danger, either to someone who would be seriously upset-- mentally perhaps--by the realisation that such information was in the possession of a public authority, or to someone who had supplied the information. The fact that that was known might induce someone to take steps against him. Therefore, we would not necessarily be in favour of a blanket removal of all these "confirm or deny" subsections.

There are a number of subsections where there is a harm test; namely, where it is said that there is no duty to confirm or deny, where the confirming or denying would give rise to the damage which the clause was intended to prevent. There are very few cases in which it is realistic that the refusal to confirm or deny is necessary to prevent the damage which the clause is intended to prevent. But if it is conceivable that there might be some cases, so be it, because it will affect only a tiny minority of cases, if any.

There are a number of amendments in the group where there is no necessity to have a refusal to confirm or deny. Indeed, there is no justification. I refer to Amendment No. 128, which deals with Clause 20. We have already discussed that clause. It deals with holding information with a view to future publication. I cannot see that subsection (2) is remotely necessary because if one is required to disclose that information exists, it is impossible to see that that would imperil the purpose for which Clause 20 is intended.

Amendment No. 137, which relates to Clause 26, is another unjustified amendment. That clause deals with information that would prejudice relations between different administrations in the United

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Kingdom. However, I think the real argument there is that the whole clause should not exist. Amendment No. 156 relates to Clause 28. Clause 28(3) states:


    "The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1) or (2)".

I find it difficult to see that that is an exemption which is justified.

Finally, Amendment No. 176 seeks to delate subsection (2) of Clause 33. Clause 33 is the well-known clause which deals with the advice to government. It is extremely difficult to see why it should be necessary in that clause to have a subsection which provides that there should be no duty to confirm or deny whether such information exists. It is not a question of revealing the content of the information. It is quite unjustifiable to say that there should be no disclosure in such a case even that the information exists.

Therefore, while we do not agree with the noble Lord, Lord Lucas, on all his amendments, we agree with him on a significant number of them.


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