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Lord Mackay of Ardbrecknish: I think I shall satisfy myself by going along in the wake of my noble friend Lord Lucas and the noble Lord, Lord Goodhart, on this issue. Both noble Lords have posed some fairly difficult questions to the Minister. In certain cases of security and the like I understand why confirming or denying might be information enough for whoever was looking for it.

I can also understand--as my noble friend pointed out--that in the run-up to a Budget people might jump to conclusions if the Treasury were forced to confirm that it had a paper on some kind of tax. Even if the paper concluded that there was no way on earth one should be paying that tax, people would spring to the conclusion that the Government were about to introduce it. So I can understand that. But, as the noble Lord, Lord Goodhart, illustrated, there are some parts of the Bill where the justification looks pretty thin. Perhaps thinnest of all is Clause 20 which deals with information which may be about to be published. If you are not going to confirm or deny its existence, it is quite hard to prove that it is about to be published. I think that the Government should look seriously at the blanket they seem to be imposing on various aspects of the Bill when they say they will neither confirm nor deny information.

Lord Norton of Louth: Perhaps the Minister would indicate how we are to proceed following the comments of the noble Lord, Lord Lucas. Given all that is encompassed in this grouping, there is the danger of the debate becoming misshapen. I thought I would raise that point before the Minister responds. The debate on Clause 26 stand part is probably best taken in the normal order rather than the Minister responding to that now.

Lord Falconer of Thoroton: I understand the concern and agree with it. The noble Lord, Lord Lucas, said

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that Clause 26 stand part should be dealt with entirely separately. We agree. It raises completely different issues.

Perhaps I may deal with the points which have been raised. I think that Members of the Committee understand what the purpose of the "confirm or deny" provision is. The essential obligation created by Clause 1 is that where an applicant asks for information, the public authority first of all is obliged to tell him whether or not the information exists and if it does to communicate that information to him.

The public authority is not obliged to communicate the information if it falls in any one of the exemptions. Each one of the exemptions has its own justification. We shall discuss that justification when we come to each one of them. But they are there. The exception to the duty to confirm or deny in every case is a logical adjunct of the existence of the exemption.

The clearest and easiest example is endangering the defence of the realm. You do not have to communicate information which endangers the defence of the realm. Nor do you have to confirm or deny whether such information exists when, if you did confirm or deny its existence, that in itself would endanger the defence of the realm. I give the obvious example. "Do you have detailed information concerning the chemical warfare capacities of the following countries?"; and then a list of countries is given. It could well damage the defence of the realm if one indicated the extent to which one had that information.

That is the structure of the Bill. Whatever one thinks of the individual exemptions, it is a plainly sensible structure. In each case one can debate the merits of the exemptions, but that is the way it is cast. The noble Lord, Lord Lucas, had already alerted me to the fact that he was concerned about how this would operate in practice. That was the burden of his speech to the Committee. He was concerned, first, about how often it would be used, and, secondly, about the extent to which it would cause difficulties in relation to applicants applying for information. The structure of the Bill is such that an individual public authority is obliged under Clause 15 to state, if it is relying on any exemption, that it is relying on that exemption and why the exemption applies. Equally, it must say whether it is relying on the confirm or deny exception in relation to that exemption. So there will be no doubt in the mind of the applicant whether the position is that he is being told that it is an exempt document or he is being told that it is a case where the public authority does not have to tell him whether the document exists. In each case the applicant has to be told why that is the position.

In respect of those exemptions where what was Clause 13 applies--public interest balancing--in the same notice or in a subsequent notice, the public authority has also to say that it has exercised that discretion. If the discretion falls down in favour of disclosure, it has to explain that. If it says that the balance comes down not in favour of disclosure, it has to say why. Likewise, where exercising that discretion in relation to the question, "Should it confirm or deny

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that the document exists?", it has to explain why the public interest in not answering the question outweighs the public interest in answering the question. There is a clear obligation on the face of the Bill for the public authority to indicate whether an exemption applies or whether it is the exception; namely, the public authority does not have to say whether the document exists. In relation to what was Clause 13, it has also to explain, if it does not intend to override the exemption, why it does not intend to override the exemption. If it is a case where it has decided not to say whether the duty to confirm or deny arises, it has to explain why it does not intend to override the exemption in relation to the obligation to say whether the document exists.

So there will never be confusion. I cannot give the Committee the exact words because there is no prescription in relation to the exact words. But there is a duty to go through all those stages clearly. There is no need for the information commissioner to come in at any stage if the answer is favourable. The applicant can make up his own mind on the basis of the reasons given when he sees the reasons given. If he is not satisfied with any of the answers given, he can apply to the information commissioner.

Lord Lucas: I am grateful to the noble and learned Lord for giving way. The difficulty arises under Clause 15(2). Let us suppose that we have an exemption which is not an absolute exemption. The first reply of the public authority is, "We have no duty to confirm or deny whether there is any such information". But then, under Clause 15(2), it goes on to say, "But we are considering whether to release the information under the public interest clauses". If it says, "We are considering whether to release it under public interest clauses", it is saying that the information exists. It cannot say, "But we are continuing to look at the public interest side", if there is no information. By saying that it is continuing to look at the public interest, it is admitting that the information exists.

Lord Falconer of Thoroton: The public authority says in relation to stage one, "I am entitled not to answer the question about whether or not the information exists". Either it then says, "Under Clause 13 I am not going to depart from that for the same reasons", or it says it in a different notice.

Lord Lucas: Clause 15(2) is worded:


    "Where, at the time when the notice under subsection(1) is given".

At the moment the public authority gives the notice that says that it neither confirms nor denies, it has to say whether it is continuing to consider the matter under the public interest terms. But it cannot possibly be considering the matter under the public interest terms unless there is something to consider. Therefore it is saying that the information exists. There is a problem here. If there is no information, there can be no public interest question. But if there is information, there can be a public interest question. So if the public

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authority answers that there is a public interest question still to be resolved, it is admitting that there is information.

7.15 p.m.

Lord Falconer of Thoroton: I simply do not understand that. Let us suppose that the question is, "Can you please provide all information you have on the chemical warfare capacity of country X?" Let us suppose that there is no information in relation to that. Let us suppose that, because there is no information, that in itself is damaging to the defence of the realm. I say at stage one, "I am not obliged to say whether I have that information", as it is clear that it would damage the defence of the realm. Then, at the Clause 13 stage, I have to decide whether, although it might damage the defence of the realm, the damage is sufficiently insignificant to allow me to answer the question. The fact that I say that I am going on to consider the question under Clause 13 but I have not yet come to an answer does not indicate whether there is any information. So I simply do not understand the noble Lord's example. The fact that there can be a pause between the two--other interests might need to be consulted before one could decide whether Clause 13 applied--is a perfectly legitimate way to proceed. Although, with the greatest respect to the noble Lord, what he said sounded neat, if one thinks it through, there are circumstances where the pause is both sensible and worth while.


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