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First, does he agree with me that if you simply put in the word "prejudice", which would cover any prejudice however trivial or insignificant, it follows automatically that the decision-taker at that first stage will almost certainly find in almost every case that there is some prejudice, however trivial? If that is right, it hardly ensures a culture of openness. If prejudice can be trivial rather than substantial, the Act invites the decision-taker to be negative at the first stage and move the balance.
Lord Falconer of Thoroton: "Prejudice" is an ordinary English word, defined against the Act and to be judged ultimately by the information commissioner. The application of the word will be precisely determined over time by an interaction between the public authorities and the information commissioner's views on their approach.
As I said to the noble Lord, Lord Lucas, on an earlier amendment, each public authority must define why it thinks that an exemption applies. Individual applicants will be able to see the whole process, as the public authority goes through whether the exemption applies and, if so, whether the information should be released under Clause 13. With respect to the noble Lord, he is wrong to suggest that the instinct will immediately be to latch on to any harm, no matter how trivial. The public authority simply has to ask whether there is prejudice, applying the word in an ordinary English way. The information commissioner will bring her views to bear on where the line is to be drawn.
Lord Lester of Herne Hill: I am not sure whether the Minister accepts that the word "prejudice" must mean something that is not trivial, but real and substantial. I think that he accepted that it would be a misuse of the legislation and would fetter unduly the right of public access if an official were to say that revealing information about the colour of the wallpaper in the Cabinet Office would cause some prejudice--I am thinking of a Home Office official who once said that to me--because there were other countervailing considerations of secrecy. There are other trivial examples such as information about the food served in
Secondly, if that is left undefined, no particular weight is given to the public right of access in the balancing process. The data protection legislation gives a particular weight to the right to personal privacy. It applies the principle of proportionality, as the noble and learned Lord, Lord Williams of Mostyn, said in the answer that I was talking about. A countervailing public right of access has to be given enough weight, so that the balancing process at the second stage--if matters have to go that far because the issue is substantial--is guided by a fundamental constitutional right, subject to exceptions, that has to be applied proportionately. In other words, exceptions should not be taken to excess.
I am sure that that is common ground, because it would not fit in with any of the other legal concepts that I have summarised. It therefore needs to be expressed in some way. That can be done by using an adjective such as "significant" or "substantial" to qualify the prejudice, or by specifying that at the second balancing stage, special weight should be given to the public's right to know. If that is common ground as a general approach to the Act, we can discuss the wording later.
Lord Falconer of Thoroton: I shall have to check, but it sounded as though the noble Lord gave exactly the right series of steps that have to be gone through. He said--accurately, in my view--that there was an open balance to be struck at the Clause 13 public interest test stage. The public interest in disclosure is put on one side of the scale and the public interest in maintaining the exemption is put on the other side. That is how the Bill is drafted. It goes back to the point that we discussed on Tuesday when we considered the amendments tabled by the noble Lord, Lord Goodhart, which were intended to shift the balance the other way to deal with cases in which the balance was equal. Under the Bill as drafted, there will be no disclosure if the balance is equal.
The Bill provides for an equal balance. The factors in favour of maintaining an exemption are to be weighed against the factors in favour of disclosure. The noble Lord is suggesting that an authority should disclose unless there is a very good reason not to do so. That is not how the Bill is drafted. The only factors to be considered are what is on one side of the scale and what is on the other side.
Prejudice must be real. Of course I accept that there is no prejudice in revealing the colour of the wallpaper or the canteen food. However, I come back to the point that nothing is achieved, legally or in principle, by adding an adjective that glosses the word "prejudice" when the Bill envisages a balance between the public interest in disclosure and the public interest in maintaining the exemption. There is no difficulty in applying that test, not just because it has been applied before in the statutes that I have referred to, but because the courts are well aware of the concept. They have to consider the possibility of prejudice to a fair
Lord Lucas: Does the Minister agree that, when the public interest is measured, some weight should be given to the general public interest in disclosure? It is in the public interest that the Government should generally be open.
Lord Falconer of Thoroton: I most certainly agree. I made it clear when I dealt with the purpose clauses at the beginning of our consideration in Committee that the right to know, as we have defined it with all the checks and balances, exists partly in order to promote openness of government, because that is good.
With the greatest respect to the noble Lord, Lord Lester, there is an error in his argument that because harm, no matter how small, is enough to trigger the exemptions, that could lead to problems. If the harm is comparatively light, it will not be difficult for the public interest in disclosure, which is explicitly referred to in Clause 13, to outweigh it.
Lord Lester of Herne Hill: This is an important matter. I know that there must be an end to this dialogue--or polylogue--in a few moments, but I should like to try once more. I think that the Minister said that I was mistaken in thinking that there was a right of public access unless there was some good reason for not giving it. He cannot have meant that. Surely we can agree that, if there is no good reason for withholding information, it should be provided. The principle of proportionality--that none of the countervailing interests should be taken to excess--governs that. We may not call it the principle of proportionality, but we are trying to get at the notion that there is a public right of access and countervailing rights and considerations.
The process starts with the public right in Clause 1. That is balanced against the exemptions. When it is appropriate, necessary, proportionate or reasonable in all the circumstances, if the prejudice is trivial or the public interest in maintaining the exemption is much less important than the public interest in the right to free expression and access to the information, the balance comes down in favour of disclosure. Therefore, if there is no good reason not to disclose, inevitably the balance will come down on the side of disclosure; otherwise, we shall be cheating the public in telling them that Parliament has given them a right to disclosure of information which they cannot enjoy, even though there is no good reason for withholding it. Surely there is common ground on those propositions.
Lord Falconer of Thoroton: We must be very careful to stop this dialogue because it seems to me that we shall simply confuse the world at large. We say that there is a right to disclosure of information but certain circumstances exist when information should not be
Lord Archer of Sandwell: At the risk of being tiresome, I wonder whether my noble and learned friend can assist me. This is an issue which will arise on another group of amendments a little later. Is he really saying that this is an argument about semantics because, in any event, the exercise will be carried out at the balance stage, or is he saying that it may make a difference because it would be a tie-breaker? If it makes no difference at all, is he saying that it does not matter whether the amendment is made or not?
Lord Falconer of Thoroton: As I said to the noble Lord, Lord Goodhart, it could make a difference, although not substantially, in the application of the balance, as in the tie-breaker case. However, I said to the noble Lord, Lord Goodhart, that I did not believe that that would occur often. I indicated to the noble Lord that I would reflect on what he said. However, I also made it clear that I would give no assurances of any kind in relation to what would happen. However, it is in the tie-breaker case, which I believe is unlikely to arise, where it is not the word "substantial" that will make a difference but the way in which the balance is set out in Clause 13.
Perhaps I may turn to the question raised by the noble Lord, Lord Brennan, in relation to the Scott Inquiry. The Freedom of Information Bill obviously does not deal with relations between Members of Parliament, whether in this House or in the other place, and Parliament as a whole. Therefore, it is for Parliament to regulate the information that should be given in answer to parliamentary Questions.
The Scott inquiry covered a huge range of documents and material. If it had been law at the time, the Freedom of Information Bill would have allowed a series of questions and requests for information which would have accessed much of the material in the Scott inquiry. That would have been a test. I cannot say that such questions would have accessed every piece of material because I do not know (because it is so voluminous) whether every part of that material would have been unexempt or whether part of it would have been exempt but then released under the discretionary test under Clause 13. I can say that it provides a different regime from parliamentary Questions, but that regime provides a useful means for members of the public, whether MPs or not, to test the Answers given by Ministers in the House.
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