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Lord Archer of Sandwell: I am grateful to the noble Lord. I intervene only to say that I am relying on a very defective memory.

Lord Lester of Herne Hill: My memory is terribly bad. I am making the same point as the noble Lord, Lord Brennan. It is important that nothing in what is meant to be a freedom of information Act should curtail the powers of the courts as regard open justice and the disclosure of information under their own jurisdictions, criminal and civil. If necessary--unless we are clear about it--the Bill should say so.

Lord Falconer of Thoroton: There are four points here. First, as regards the amendment of the noble Lord, Lord Goodhart, he suggests making the absolute exemption subject to a harm test or a prejudice test in relation to the security services. We disagree with that as a matter of principle. To include such a test would give the impression that information of this kind could be disclosable. In reality, it is very unlikely that information relating to the work of those services could be disclosed without causing harm or seriously damaging the work they do or their purpose. The Government believe that it is more honest to give an absolute exemption. That is our present view in relation to that policy.

The noble Lord, Lord Lucas, raised the question of whether the Minister is obliged to sign the certificate. He is not obliged to sign the certificate. It is a matter for the Minister.

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The noble Lord, Lord Lucas, then raised the question of whether the exemption certificate could ever conceivably be itself exempt under any such exemption. I cannot conceive that that would be the case. The purpose of the evidential certificate proving the exemption is that it is intended to be produced in public to the information commissioner or to the appropriate authority. I cannot conceive that it could be exempt because it is intended to be made, in effect, public.

The fourth point was raised by the noble Lord, Lord Brennan, and supported by the noble Lord, Lord Lester. The circumstances in which the court will, in effect, override an assertion of public interest immunity are entirely matters for the courts. It is a regime entirely separate from the Freedom of Information Bill. The tests applied by the courts will be broadly different because they will be balancing the interests of a fair trial against whatever reasons are advanced for not producing the documents.

Moreover, the question about fair trial and production in the context of court proceedings is an issue between two parties, one of whom may be a state party--for example, because it is the prosecuting authority--but that issue is entirely separate from those raised by the Freedom of Information Bill.

The noble Lord, Lord Lester, suggested that we should put that on the face of the Bill. With respect, I do not think that that is either necessary or appropriate. The clarity with which the two are divided is sufficient without any need to amend the Bill. In the light of my remarks, I hope that the noble Lord will feel minded to withdraw his amendment.

Lord Goodhart: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 130 not moved.]

Clause 21 agreed to.

Clause 22 [National security]:

[Amendment No. 131 not moved.]

Clause 22 agreed to.

Clause 23 [Certificates under ss. 21 and 22: supplementary provisions]:

[Amendment No. 132 not moved.]

Clause 23 agreed to.

Clause 24 [Defence]:

[Amendment No. 133 not moved.]

Clause 24 agreed to.

Clause 25 [International relations]:

Lord Mackay of Ardbrecknish moved Amendment No. 134:


    Page 13, line 34, after ("to,") insert ("substantially").

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The noble Lord said: On page 13, line 34, of the Bill, Clause 25 states:


    "Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice--


    (a) relations between the United Kingdom and any other State"--

and so on. The amendment seeks to insert the word "substantially". The clause would then read,


    "would, or would be likely to, substantially prejudice".

The Committee seems to be full of lawyers at the moment, including the noble and learned Lord, Lord Falconer. I am reticent to wax too eloquent on this particular issue because I have no doubt that it will bring some interesting legal arguments with it.

Proposals for a freedom of information Bill were discussed by the Scottish Executive. In relation to a harm test, paragraph 4.11 of its consultation document states:


    "We propose that the harm test be demanding and that it be whether disclosure would, or would be likely to, substantially prejudice the matter set out in the exemption in question. Our use of 'substantial prejudice' is intended to make clear that information covered by a content-based exemption should be disclosed unless the prejudice caused by disclosure would be real, actual and of significant substance".

To the layman, therefore, there must be some difference between simple "prejudice" and "substantial prejudice".

The document continues:


    "The use of the term 'substantial prejudice' may of course not suit every circumstance and the wording of individual exemptions may need to be tailored to the specific subject matter at hand".

Perhaps that is what the Minister will argue. But, reading the exemptions, it seems to me that if "substantial prejudice" is a more severe test than "prejudice", it should be applied in this case.

If it will bring the Liberal Democrat Benches to my side on this issue, dare I say that the signatory to this document is the Deputy First Minister--currently, I am afraid, acting as First Minister because of the circumstances--and Minister for Justice, Mr Wallace, who belongs to the Liberal Democrat Party? With that explanation, I beg to move.

Lord Brennan: I intervene not to support the amendment, but to invite the Minister, in responding, to clarify for my benefit, if I have not properly understood the Bill, the relationship between Members of this House and the other place when they request information compared with the ordinary citizen who requests information. That may occur by parliamentary Question, but it can often be done by correspondence. The Scott inquiry can be cited as an example to test how this clause will work.

Members of the Committee will remember that material was kept from the House by Ministers, particularly in response to parliamentary Questions.

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Lord Justice Scott described their Answers as "inaccurate", "inadequate" and "misleading". He went on to state in his report:


    "The answers ... failed to inform Parliament of the current state of government policy on non-lethal arms sales to Iraq. This failure was deliberate and was an inevitable result of the agreement between the three junior Ministers that no publicity would be given to the decision to adopt a more liberal, or relaxed, policy".

Lord Justice Scott said that he had,


    "come to the conclusion that the overriding and determinative reason was a fear of strong public opposition to the loosening of the restrictions on the supply of defence equipment to Iraq and a consequential fear that the pressure of the opposition might be detrimental to British trading interests".

That is a material example. I am grateful to the Campaign for Freedom of Information for pointing out to me that there are no fewer than six different ways in which the government at the time could have used this Bill to protect their position. My question to the Minister--one of several examples of which I have given him notice--is this. Using this example in relation to this particular clause, is he able to reassure the Committee--I am sure he can--that the circumstances of the Scott inquiry would not recur through a government being able to use the provisions of this Bill to protect their internal position?

Lord Bach: I beg to move that consideration of Amendment No. 134 be adjourned.

Moved accordingly, and, on Question, Motion agreed to.

Lord Bach: With gratitude to all sides of the Committee, I suggest that the proceedings be resumed at 8.30 p.m.

[The Sitting was suspended from 7.43 to 8.30 p.m.]

Lord Lester of Herne Hill: In speaking in support of Amendment No. 134, I wish to address Amendments Nos. 139 and 159 standing in the name of the noble Lord, Lord Mackay of Ardbrecknish, and also Amendments Nos. 216 and 361 standing in my name and that of my noble friend Lord Goodhart. If I make a single speech, that will dispense with the need to make others later.

I say at the outset that we on these Benches regard this as one of the two really important issues that will arise in the remainder of the debate this evening, and perhaps in the remainder of the debates in Committee altogether. I shall argue that for reasons of legal certainty and "changing the culture", to use the Government's helpful expression; helping the individual citizen to enjoy his or her right of public access; and giving sufficient weight to the right that is enshrined in this Bill, one should make clear in these amendments the nature of the harm that needs to be balanced against the basic right of access to information about the workings of government and public authorities.

I remind the Committee of the way that this pattern of amendments covers the matter. The amendment to which the noble Lord, Lord Mackay, has spoken deals

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with international relations and argues that there should be a substantial prejudice test in relation to that exemption. Amendment No. 139 deals with the economy and again argues that there should be a substantial prejudice test. Amendment No. 159 deals with law enforcement and again argues for a substantial prejudice test.

Amendment No. 216, which stands in my name and that of my noble friend Lord Goodhart, concerns commercial interests and again argues for a substantial prejudice test. Amendment No. 361 would define prejudice throughout the Bill as prejudice which is real, actual and of significant substance. As it stands the prejudice test used in the Bill is weaker than the substantial harm test that was proposed in the Government's 1997 White Paper, at paragraph 3.7. As the noble Lord, Lord Mackay, indicated, it is also weaker than the substantial prejudice test used in the Scottish Executive's proposals. The proposal of the noble Lord, Lord Mackay, reflects the key principle that restrictions on public access should be imposed only if they are necessary and proportionate. That is the definition proposed in the Scottish Executive's consultation paper, at paragraph 4.11, and, as I say, in the White Paper, Your Right to Know.

In determining whether the Bill ends unnecessary secrecy in government, three competing interests have to be kept in mind: the public interest in the full and fair disclosure of information; the individual's privacy interest as regards personal information; and the Government's interest in non-disclosure to protect the integrity of their operations in governing on behalf of the people they were elected to serve or other public authorities. Those three interests and the need for a careful balance between them were recognised by the Home Secretary in his statement on freedom of information in the other place.

The Government, in my view, achieved the right balance of interests in their White Paper. The logic of the White Paper was that it contained few blanket exemptions and instead proposed a broadly applicable test of substantial harm to be used across the board and in a way that would take into account special factors in particular areas covered by some exemptions. The process is akin to that found in European Community law, European Convention law and domestic constitutional law where a general principle has to be applied to a specific factual context. It is also the approach used under the Data Protection Act, as confirmed by the noble and learned Lord, Lord Williams of Mostyn, in a Written Answer to me of 8th April 1998 where he made clear,


    "According to the consistent case law of the European Court of Justice, in the application of Community law the guiding principles, which include proportionality and legal certainty, must be observed by the courts".--[Official Report, 8/4/98; col. WA 129.]

Of course that is not what the Data Protection Act said, which is why I probed in the Question and received a clear and useful Answer. It is also the test used under the EC data protection directive. It is therefore incorrect for the Government to suggest--as they did in their consultation document, at

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paragraph 32--that a substantial harm test would be inconsistent with the directive because the directive expressly recognises the need to balance by way of a necessity test the right to receive and impart information with other fundamental rights.

We take issue with the Government's revised view that a single omnibus substantial harm test cannot work properly for the range of separate exemptions proposed because that is precisely what occurs here, in Europe and across the Commonwealth in determining a fair balance between the right to free expression, including the right to receive and impart information, and competing interests and rights. The substantial harm test was the equivalent of the well-known European principle of necessity and proportionality which has been applied by the courts in a body of European, Commonwealth and British case law.

In the interests of legal certainty we submit that the Government should write their intentions into the Bill rather than leaving it to the courts to reinterpret a vague test. In that way civil servants, public authorities, the ordinary public, the information commissioner and everyone else will know what the standard is. An adjective, whether it is "substantial", "significant" or "serious", needs to be placed before the word "prejudice" to ensure that disclosure is prevented only as the Government have said that they really intend. Without an adjective of that kind, the prejudice test is simply a harm test in another guise and gives no guidance either to the information commissioner or to public authorities on how to address the interests at stake in an information request.

Furthermore, the choice of a bare prejudice test does not sit well with other UK legislation in the information field. It does not sit well with the test that was put into the Contempt of Court Act in 1981 to give effect to the judgment of the European Court of Human Rights in the thalidomide case. It does not sit well with the Official Secrets Act 1989 which replaced the catch-all approach with specific harm tests. In other words, it is out of line both with European law and with our own statutory and common law approach.

I move from that general statement to the way in which, step by step, the Bill is now expected to work and to show why this is important. The first step--as I understand the Bill--is that there is a general right of access to information held by public authorities. The second step is that under Part II some information may be exempt. In some cases, in order that the exemption will apply, the information holder has to consider whether the disclosure of the information will cause prejudice to the grounds for exemption, such as defence, international relations or the economy. The third step is that if the information holder decides that disclosure is likely to cause prejudice, the authority may withhold the information unless the public interest override applies. It is only once the information is exempt that the public interest override will apply. The fourth step is to answer the question: is

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disclosure in the public interest? The fifth step is this: if disclosure is in the public interest, does it outweigh the public interest in maintaining disclosure?

I hope that I have those steps correct. There are a great number of reasons why a substantial harm test is necessary rather than this very open balancing test. First, civil servants and those working for bodies covered by the Bill, faced by the FoI request, will have first to consider whether any of the exceptions apply in principle. That means that in the majority of cases the first test to be examined will be prejudice. The word "prejudice" is very wide and could be given a number of meanings according to context and the intention of the information holder. It could mean any prejudice at all. If there is no prejudice, there is no need to consider whether disclosure is in the public interest. The public interest test is an override which kicks in only once prejudice has been established.

The intention of the Government--it is entirely praiseworthy--is to initiate a culture change in the way in which government is conducted. The culture change has to start at the grass-roots level. If the first test faced by a civil servant is that of prejudice--a complex test--it is possible that he or she will err on the side of caution; and that will not promote greater openness. If the civil servant then has to consider the public interest--an even more complex test--that can give even greater scope for confusion. All the while, the requester will be awaiting a clear and quick response in order that the information may be used.

These amendments, requiring that the prejudice means prejudice that is real, actual and of significant substance--or substantial, to take the word used by the noble Lord, Lord Mackay--are useful because they clarify for the information holder that, in considering whether an exemption applies, openness should be the starting point, and exceptions imposed only when truly necessary. They provide greater guidance to those applying the test; and in making the test clearer in its intention, it will not only increase the likelihood that the move away from closed government will be successful, it will also give the public making the request greater certainty.

It was for those kinds of reasons, but not with such verbosity, that the two Select Committees took this approach. It is quite important; otherwise there will be great complexity and an unnecessarily obscure approach at the initial stage. It is much better that the decision taker understands that prejudice means something more than any prejudice. It means something real and significant, real and substantial. If the Minister replies, "Of course that is what it means", then that is what it should say.

8.45 p.m.

Lord Falconer of Thoroton: The amendment, in effect, adds the word "substantially" with regard to the vast number of exemptions which depend on a prejudice test to make them kick in. As the noble Lord, Lord Lester, said, it also contains a definition of what is meant by "prejudice".

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At the heart of the submissions of the noble Lord, Lord Lester, supported by the noble Lord, Lord Mackay, is this proposition: that "substantial harm" is easier to understand and apply than "prejudice", which is one of the vital steps before one reaches a conclusion on whether to disclose. Although the arguments were set out extremely well, perhaps I may explain why I think that there is a slight misunderstanding on the part of those who believe that that would be the right approach.

The way that the Bill works in relation to the exemptions which the amendments affect is that, first, the public authority has to determine whether or not disclosure would prejudice, for example, relations between the United Kingdom and any other state. The public authority asks itself the simple question, "If I disclose this document which indicates the greatest disdain being held for certain aspects of another country's activities, will that cause harm to my relations with that state?" That is a very simple question for a public authority to ask. The answer will be either "yes" or "no". If that were the end of the process, I could quite understand an argument which said, "You have to set the test at some level". But that is not the end in any of the exemptions which these amendments affect because the balancing act then has to go on between the public interest in disclosure and the public interest in maintaining the exemption. So, in the example given, does the harm to our relations with state X outweigh the public interest in the public knowing at that time what was going on in that country?

If you add in some qualifying adjective, you end up in the position where, in this example, you can do harm to international relations between the United Kingdom and the other state. There is no countervailing balance in relation to public disclosure when one examines the matter under Clause 13; and yet one discloses the information. One ends up with a situation where one has prejudiced one's relations with the other state when there is no reason to disclose the information.

That is the consequence of the arguments advanced by the noble Lord. I think that that is a wrong conclusion. The error that the noble Lord makes is that he forgets that you are determining the prejudice and then working out how it compares against the public interest in disclosure. It is not just a free-standing test; it has to be compared with something else.

I give three other reasons why I believe that the noble Lord is wrong. Secondly, I do not think that there would be any difficulty in employees of public authorities--civil servants, or employees of local government--understanding what is meant by "prejudice". Thirdly, the word "prejudice" without gloss is used in both the Local Government Act and the Data Protection Act. As far as we know, its application there has caused no difficulty. Fourthly, if you take a phrase or term in this Bill different from, in

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particular, the Data Protection Act, you will be saying in effect that there is some different test from that which applied in those Acts. That would be wrong.

For all those reasons, we believe that the right word is "prejudice". It is wrong to gloss it with the word "substantial". The word "prejudice" does not give rise to any problems in relation to its understanding. Indeed, if you did gloss it you would end up in the anomalous situation of sometimes having to disclose things even though they might prejudice international relations, the economy or the defence of the realm when there was no countervailing balance.

For those reasons, I am not persuaded by the arguments advanced by the noble Lord, Lord Mackay, or the noble Lord, Lord Lester.


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