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Lord Brennan: Perhaps I may ask for a little further clarification. Does that mean that, when Members of this House ask a parliamentary Question, they will not be faced by a Minister relying on the terms of this Act?

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Lord Falconer of Thoroton: As I said, the terms of this Act do not deal with the relations between a Member of Parliament and the Minister who is being questioned; they deal with a member of the public asking a public authority for information quite separately from Parliament. The Freedom of Information Bill has no part to play in that.

Lord Mackay of Ardbrecknish: This has been a complicated debate, especially for a layman. I sum this up with some trepidation.

The noble and learned Lord the Minister was reduced at one stage to having only "great" respect for the noble Lord, Lord Lester. That reminded me of the explanation given to us lawyers by the noble and learned Lord, Lord Simon of Glaisdale, as to what exactly "with respect", "with great respect", "with the greatest respect" and "with the very greatest respect" meant. The "very greatest respect" really meant, "Your arguments are absolutely useless". However, I have to be polite. I am sure that that is not what the noble and learned Lord meant; nor did he get near "the very greatest respect".

Lord Lester of Herne Hill: I wonder whether the noble Lord is aware of the other joke which I believe one is permitted to make, about the daughter who asked her father why they were hopelessly lost. "Shut up", he explained.

Lord Mackay of Ardbrecknish: We may have got near to that. I was quite surprised at the answer given to the noble Lord, Lord Brennan. I do not want to go over the Scott material--not that I was involved in that, although some of my friends were. However, it seems to me that if an MP asks a question, whether about that type of matter or about something else concerning relations between the UK and a foreign country, and the Government do not want that to become public, they do not give a proper parliamentary reply. They give a reply which relates to a similar subject or they find a neat way to evade the question. Therefore, I am not entirely sure that I understood what the Minister said.

If the MP went outside Parliament and used the Freedom of Information Bill, would he then be able to obtain some of the information which he had not been able to obtain via a parliamentary Question because of the clever way that Parliament manages to allow Ministers to answer Questions without giving information? I cannot remember--although I probably shall later--the expression about the best parliamentary answer. I believe that it is along the lines of answering the question without giving any information at all.

We have had an interesting debate and I believe that the subject is important. I did not introduce it at any great length because I was not sure when we would adjourn. I had a fair idea that the noble Lord, Lord Lester of Herne Hill, would get stuck into the argument. However, as a layman I am puzzled by the fact that this is not simply an argument between the noble Lord, Lord Lester, and the noble and

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learned Lord; it has been a much wider argument as to whether "substantial" is sufficient. The only outside evidence that I brought in was that of the Scottish White Paper on the open government proposals in Scotland. They were stating clearly that just saying "prejudice" was not enough. It had to be qualified and strengthened in some way. I left it at that because I thought that was sufficient.

However, it must be said that this argument was covered in the Government's own White Paper. The Government said in their White Paper that the tests of the previous code that we have talked about were insufficient. It was proposed that the Bill's tests should instead be set in specific and demanding terms. That would be done by allowing information to be withheld only where disclosure would be likely to cause substantial harm. So we go back to David Clark's original paper and my simple question--not looking for an argument between the lawyers about this--as to why the Government have changed their view between the David Clark White Paper and the Bill.

Then, of course, there are the two Select Committees, that chaired by the noble and learned Lord, Lord Archer, and the House of Commons Public Administration Select Committee. No doubt the Minister knows about those. I shall quote from the House of Lords Select Committee, as that seems to be appropriate in the House of Lords. That report stated that,


    "we believe that 'prejudice' alone is not sufficient to justify exempting information from public access. We would amend the draft Bill wherever 'prejudice' is the test for exemption, to require that disclosure 'would substantially or would be likely substantially to prejudice' a protected public interest".

The report then mentions in particular Clauses 21, 22--the one we are talking about--Clause 23, which we shall come to, Clause 24 dealing with the economy, Clause 26 dealing with the law enforcement and Clause 28 dealing with decision-making in general. The House of Commons Public Administration Committee came to the same sort of conclusion.

As a non-lawyer, I ask why those bodies--the Scottish body, the White Paper, the two Select Committees--think it is so important that prejudice should be qualified and yet the Government do not. The jury is still out on that. I shall withdraw the amendment for the time being but I suspect that we must return to this issue on Report.

Amendment, by leave, withdrawn.

Lord Mackay of Ardbrecknish moved Amendment No. 135:


    Page 13, line 41, at beginning insert ("Except in respect of information provided to a public authority by the European Union, its member states, institutions, organisations, or related bodies,").

The noble Lord said: I hope that we do not get into such deep waters on this amendment. It is a simple amendment which deals with the information provided to a public authority by the European Union, its member states, institutions, organisations or related bodies.

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The point about this is that I do not believe that, when we come to our dealings with the European Union, we are dealing with another state in the conventional way. We are dealing with a body (a) of which we are part and (b) which has a considerable influence over what happens in this country. One could almost say that it is a sort of department of government because it has an influence of fisheries, agriculture, trade and industry, economics and almost everything. It has a significant interest not in freedom of information but in various confidentiality issues, working practices and all those matters.

Therefore, it seems to me that the public should be able to gain access to those matters in relation to the European Union to which they would have access within the United Kingdom. There is a great deal of concern about excessive secrecy in European Union institutions. I do not think that anybody would argue about that. This amendment provides that information obtained from the EU and its institutions could not be reasonably withheld. Clause 25(1) would still apply to information whose disclosure was likely to prejudice--or substantially prejudice--the UK's relationships with the EU or with a member state. Otherwise, a lot of that information should be available. That is the purpose of my amendment.

As we become increasingly more enmeshed in the European Union and those intra-EU debates and papers become much more the background on which decisions are made, the public have a right to know about those papers in the same open way as they have a right to know about government documents inside our own country. I beg to move.

Lord Lester of Herne Hill: This amendment raises an interesting and important issue. My noble friend Lord Goodhart and I are both members of Sub-Committee E of the European Communities Select Committee of the House. In the 16th report dealing with the draft EU public access regulations, we face an extremely interesting problem, which this amendment is partly about; namely, what happens if, when the EU draft regulation comes into force, it is more restrictive to the flow of information than national law would be?

The Swedish Government are particularly concerned that their very liberal regime may be eclipsed or limited by a less liberal EU regime in relation to information about the workings of the EU. We thought about that carefully. Paragraph 177 of our 16th report stated:


    "some modus vivendi will be necessary to prevent leakage by national administrations of documents which would undermine the EU system".

We noted that member states are already bound by a duty of loyal co-operation and that specific reference to the duty in the regulation was unnecessary. The report stated:


    "There should be no opportunity for leakage which would undermine the EU system. There may be situations where the national authority, if its domestic system is more liberal, should seek the views of the institution. That said, the community system should not create any unnecessary restrictions, especially where the national FOI regimes are more liberal".

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That means that we should put our energy, through our Government, into ensuring that the EU regime is not unduly restrictive. However, what we cannot do, compatible with our duty of loyalty to the EU institutions, is to allow our own regime to undermine the integrity of the EU system. Therefore, I do not believe that this amendment is desirable because it is not the right way to tackle the problem. We should make the EU system as liberal as our own regime, but it seems to us that we have a duty of co-operation.

9.15 p.m.

Lord Bassam of Brighton: I hesitate to try to put the matter better than the noble Lord, Lord Lester, but perhaps I should repeat the argument. The Government feel that the importance of maintaining good international relations for the United Kingdom is paramount, and as such it is essential that the Bill, as the noble Lord suggests, protects confidential information in this area.

I was slightly intrigued by the comparison by the noble Lord, Lord Mackay, when he referred to the EU as being not another state, but rather more like a department of government. That is not an argument that I have heard advanced from the other side of the Committee before. It is an interesting point and perhaps one on which we need to reflect.

Looking at the Bill holistically, one sees that it is drafted on the understanding that freedom of information will respect duties of confidence because such disclosure will always be prejudicial. In the area of international relations, the confidentiality of diplomatic documents is universally recognised. The removal of the presumption of that protection would itself prejudice our relations with the European Union, no less than with other states and organisations, which is the kernel of the argument of the noble Lord, Lord Lester. I can see no logic in treating the European Union differently from any other international organisation of which the United Kingdom may or may not be a member.

I appreciate that the intention behind the amendment may arise partly from a concern that the institutions of the European Union are particularly secretive. I stress that the Bill does not automatically exempt documents from the other states or organisations. Clause 25(2) applies only where the terms on which the information has been obtained require the information to be held in confidence or where the circumstances make it reasonable for the state or organisation--in this case, the European Union--to expect that it will be so held, as provided for in Clause 25(3). Moreover--we keep returning to this point--the public interest test will also have to apply to such information.

Finally, the European Union is committed to increased openness by virtue of Article 255 of the Amsterdam Treaty. That goes back to the point that the noble Lord, Lord Lester, made: that if it is felt that in the end our FoI legislation is better than that within the European Union as a whole, it is for us to go into

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those international fora and argue for improvements across the board. Trying to do the job through this amendment is not the right approach, although I suppose that the noble Lord opposite could argue that that may be one of the levers.

Implementation of Article 255 will mean that more documents relating to the working of the European Union will be disclosed by European Union institutions themselves. It is probably worth reassuring the Committee that we shall seek to ensure that the scales are balanced in favour of openness in the way that we are trying to achieve in the Bill.

I trust that having heard that argument, the noble Lord will feel able to withdraw his amendment.


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