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Lord Mackay of Ardbrecknish: I shall withdraw the amendment but, first, I want to point out that the EU is completely different from another member state. We could have negotiations with another member state; we could agree to differ on something and that would be the end of it. If one is negotiating on a wide range of issues in the European Union, one could agree to differ, but if a provision requires a qualified majority vote, we would have to follow the road that the others chose. Therefore it is not another member state with whom one is negotiating; this is an entirely different matter.

I was perhaps not clear in my example of another government department. But in many ways the EU can be like another government department. It is involved in the decision-making on an issue and somehow or other it would be able to stop any of the information going out to the public even if that information would normally have been available because it would have fallen within this Bill and would have had to have been disclosed. For example, a huge amount of confidential paper will flow from one member state to another on agriculture and fishing. If that was flowing inside the UK Government, I suspect that under this Bill people could possibly access a lot more of it. I am concerned that, because a piece of paper originates in the European Union, the British public may not have the same access to it as they would to a piece of paper originating within the Government of the United Kingdom.

The Minister might have said that my fears were unfounded, and I would have been happy with that. But he was not able to do that. In fact the noble Lord, Lord Lester, rather let the cat out of the bag by saying it may well not be as liberal a regime as ours, but we shall just have to live with it. The Minister said we shall have to work to try to ensure that the European Union's system is more liberal. But it is rather frustrating that if, due to the fact that the European Union has a less liberal regime than ours, information which if it was entirely within the UK would be made available will not be made available. That cannot be right.

Lord Lester of Herne Hill: I am grateful to the noble Lord for giving way. Perhaps I can correct one impression I obviously created. I was not saying that we just have to live with it. I was saying that what we

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need to do, and the Government have said that they will do, is to ensure that the balance is in favour of disclosure and that we do not have a regime thrust upon us which is an illiberal regime. At the same time I was trying to say that we have obligations of loyalty and solidarity which means that we cannot allow our system to undermine the integrity of the EU system as a whole.

Lord Mackay of Ardbrecknish: I understand that. But interestingly enough, the very open American system has over the years undermined our system of secrecy in the case of shared material. People in this country have been able to obtain information from the United States, under their Act, which they failed to obtain in this country.

Lord Lester of Herne Hill: Again I am grateful to the noble Lord for giving way. The United States and the United Kingdom are not in the same kind of treaty obligation relationships as we are with the other partners in the European Union.

Lord Mackay of Ardbrecknish: I appreciate that. I still feel it would be unfortunate if citizens in this country were denied information that they would have got if it had not been for a more restrictive regime in the European Union with whom we are in some form of relationship. But I do not want to go on about this. I have made the point.

Perhaps I can sum the matter up like this. It is clear on all sides that if, in fact, this Bill is to work properly over the whole field of government, then we have to ensure that the European Union has the same sort of freedom of information regulations as we will end up with in this country. I do not believe there is too much disagreement on that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 136 not moved.]

Clause 25 agreed to.

Clause 26 [Relations within the United Kingdom]:

On Question, Whether Clause 26 shall stand part of the Bill?

Lord Mackay of Ardbrecknish: I gave notice of my intention to oppose this clause as a simpler way to debate it and probe it than tabling a series of amendments.

Clause 26 is not about our relationships with other countries, whether or not they be European Union countries; it is about relationships within the various administrations in the United Kingdom set up by the Government's devolution measures. Clause 26 would exempt information whose disclosure would prejudice relationships between any of the devolved administrations or between any of them and the UK Government. For instance, it prevents disclosure of any information which might prejudice relations between the Scottish Administration and the Northern

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Ireland Assembly, or between the Scottish Administration and the United Kingdom Government.

I am sure that the purpose of the exemption is to allow the UK Government to hold private internal discussions on matters which, if disclosed, might cause such offence to a devolved institution--or, more importantly, to the public opinion of that devolved institution--so as to prejudice relations between the administrations. I suspect that the argument over student fees made relationships between the two administrations a bit ropy behind the scenes but we never got behind the scenes. That is the point.

Ministers have suggested that we may need these exemptions because UK civil servants will be commenting to UK Ministers in critical terms on how the Scottish Parliament is dealing with some health matter, an outbreak of food poisoning or whatever. The UK Government's plans to deal with moves towards an independent Scotland, if that ever came about, would therefore be made public, which in the Government's opinion might be in no one's interests.

However, it is not clear why a special exemption for such matters is required. The combination of Clause 33, which is the formulation of government policy and ministerial communications, and Clause 34, which relates to the reasonable opinion of a qualified person, would inhibit frankness of advice or prejudice the effective conduct of public affairs. Clause 39, which relates to information exchanged in confidence between public authorities, would seem more than adequate for the circumstances.

The exemption also highlights the fact that both the Welsh Assembly and the Scottish Executive have introduced, or are proposing to introduce, more demanding openness regimes than the Bill provides. I have already mentioned that the Scottish White Paper--if that is what it is called--with the blue cover suggests a more open regime and demands a higher test than just prejudice.

We shall be confronted with a Scottish freedom of information Act which in certain aspects will go beyond the present Westminster Bill; for instance, substantial prejudice. It will also go beyond it as regards ministerial veto because Scotland's information commissioner would be able to make binding rulings on public interest disclosure of information covered by the harm test exemptions. There would be no form of ministerial veto over these, whereas the UK Bill allows a ministerial veto over all public interest notices applying to government departments, whether the exemptions involve a harm test or a class exemption.

Factual information relating to policy decisions would have to be disclosed unless it would substantially prejudice collective responsibility or frankness and candour. In the UK Bill, that information is subject to the class exemption for policy formation. Furthermore, as regards the reasonable opinion of a qualified person, the Scottish proposals have no equivalent to Clause 34, which allows UK authorities to withhold information which in their

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reasonable opinion would prejudice collective responsibility, inhibit frank advice or prejudice the effective conduct of public affairs. Those decisions would be immune from challenge unless they were unreasonable to the point of irrationality. None of the Scottish exemptions give legal weight to an authority's opinion.

However, the Scotland Act will not allow direct access to information which Whitehall departments supply to the Scottish Executive. In that regard, it is a little like the previous clause we discussed. The Scotland Act precludes the Scottish Parliament from attempting to establish such a right of access. The memorandum of understanding between the UK Government and Scottish Ministers, and between the UK Government and the National Assembly for Wales, states that each administration will respect the confidentiality of information supplied to it by the other. Of course, the concordats are designed to reinforce that approach.

The Scottish Executive's consultation paper states:


    "It is not expected that the majority of information passed to the Scottish Executive by Whitehall will be deemed to be held in confidence".

I am not sure that that will turn out to be the case. It would be interesting to know whether it will. I should think that possibly everything passed by UK Government departments to their Scottish counterparts, other than what is published, will be supplied in confidence and it will not become publicly available in Scotland.

In some respects, the issue is the same as the previous one. We have a more open system in the UK, a less open system in the EU and the documents which flow will be ruled by a less open system. There is a more open system in Scotland than in the UK Parliament. What happens to documents which flow between them? I believe that Clause 26 almost shuts the door on a good deal of the interesting documents which pass between the various constituent parts of the UK.

I accept that at the moment that is probably not a very difficult problem because there is a Labour government here and in Scotland, with the help of a few Liberal Democrats. However, the Labour Government in Scotland still has a good deal of contact with Westminster in that a number of its Members have also been Members and Ministers in another place. This argument is perhaps less valid than it was two weeks ago when Donald Dewar was both a former Cabinet Minister at Westminster and First Minister in Scotland. Therefore, the relationship was close. That relationship will not in future be as close, even if a Labour Member becomes First Minister. His relationship with colleagues will not be as a former member of the British Cabinet.

The Committee will appreciate that if in future another party gains power either here or in the Scottish Parliament the complexities as to the flow of information will increase. It may be that there will be good party political reasons for one or other of the participants wanting a piece of paper to reach the

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public domain. There may be a considerable argument between the two as to whose freedom of information regime should rule. Whatever this Bill provides, I envisage circumstances in which that may damage the whole fabric of the Union.

I should like to hear from the Minister how he justifies the clause, how it will work, whether he appreciates that further down the road--not today when he and his colleagues in Scotland are in government--different parties may be in power, perhaps with different objectives in certain fields, and how confident he is that huge clashes over Clause 26 will not arise.

9.30 p.m.

Lord Goodhart: We too are seriously concerned about Clause 26 and what it is intended to achieve and why the Government believe that it is needed. If one considers constitutional theory, it is very odd that a clause of this kind should be included. After all, it is well accepted that in international relations a degree of secrecy is necessary. That is duly dealt with in Clause 25. However, in Clause 26 we are not concerned with relations with foreign governments.

As a matter of constitutional theory, though not in practice, the Parliament at Westminster is still supreme and the Scottish Parliament and the Welsh and Northern Ireland assemblies are not even parliaments of federal states but regions, in the sense of the United Kingdom as a whole, with their own devolved government: so too, although obviously with less powers, are the councils of England. One would not have dreamt of giving exemption on the ground that disclosure of information by one government department might prejudice its relations with another; nor would one expect to find an exemption for information in the possession of one county council on the ground that its disclosure by that authority would prejudice its relations with neighbouring county councils. In this case one would expect not to find any special provision such as Clause 26. In order to justify its retention, there must be some special reason. It is hard to see what that reason could be.

The noble Lord, Lord Mackay of Ardbrecknish, suggested that a problem might arise if, let us say, the Government in Whitehall were to consider what reaction it should take to pressure for independence in Scotland. That is clearly and legitimately within the scope of Clause 23 of the Bill. It is the formulation of government policy. A great deal of information--probably far too much information--may be the subject of confidentiality. Indeed, as the noble Lord pointed out, the concordats between Westminster and the administrations of the devolved assemblies and parliament already provide the possibility for extensive confidentiality.

Therefore, one wonders what the Government have in mind. Unless they can give a very clear explanation of why Clause 26 is necessary, then it should be removed from the Bill. It is certainly not self-evident why this particular exemption is required.

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