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Lord Bach moved Amendment No. 325:


The noble Lord said: This amendment was spoken to with Amendment No. 280B. I beg to move.

On Question, amendment agreed to.

Title, as amended, agreed to.

House resumed: Bill reported with amendments.

Lord Carter: My Lords, before we move on to the next business, I should like to offer my sincere thanks to the Opposition Chief Whip, the Opposition Front Bench, the Liberal Democrat Front Bench and the Back Benches of all parties. We reached the target that we were hoping for, which leaves us time to make progress on the next Bill. I am truly grateful for the co-operation that has been demonstrated by the whole House.

Freedom of Information Bill

9.12 p.m.

The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.--(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Elton) in the Chair.]

Clause 28 [Investigations and proceedings conducted by public authorities]:

9.15 p.m.

Lord Falconer of Thoroton moved Amendment No. 157:


    Page 15, line 42, leave out ("in the United Kingdom or elsewhere").

The noble and learned Lord said: In moving Amendment No. 157, I shall speak also to Amendment No. 158.

Amendment No. 158 would add both,


    "proceedings on dealing summarily with a charge"

under the three service Acts referred to, and,


    "proceedings before a court established by",

specified sections of those Acts, to the definition of "criminal proceedings".

The amendments are necessary to deal with the provisions of the Armed Forces Discipline Act. That Act amends the three service Acts to provide for summary appeal courts, which will hear appeals from findings made and punishments awarded by commanding officers on dealing summarily with charges. The amendments ensure that such proceedings are covered by Clause 28.

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I should like to take this opportunity to say a few words about Clause 28(1)(b). In our discussions last Thursday, I made the point that non-criminal investigations into safety matters or accidents, for example, were not covered by the class exemption in Clause 28. That is, of course, correct. However, subsection (1)(b) includes investigations by an authority into matters which may lead to a decision being taken by that authority to institute criminal proceedings, even if no such proceedings are eventually taken. To cite two examples: accident investigations where criminal proceedings are a possible outcome, or environmental health reports into compliance with food safety, would fall within this subsection.

Concern has been expressed that this would mean that the public may be denied information about serious health issues or the causes of accidents, even where criminal proceedings are not taken. I do not believe that this will be the case as the public interest test in new Clause 2 of the Bill would come into play. If there were no criminal prosecution in the case, I am sure that the public interest in knowing of health risks or the causes of accidents would outweigh the public interest in maintaining exemption. I am satisfied that the Bill will provide the correct outcome in such cases. But, in the spirit of the debate on this clause, I shall reflect further on this point.

While the Bill was in Committee in another place on Clause 28, a list of public authorities with a duty to conduct prosecutions was placed in the House of Commons Library. I shall place a similar list in the Library here.

Returning to this group of amendments, Amendment No. 157 would remove the term,


    "in the United Kingdom or elsewhere",

from the part of the definition which deals with courts martial. It is clear from the context that proceedings cannot be limited to those in the United Kingdom, and so the words are unnecessary. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 158:


    Page 15, line 46, at end insert--


("( ) proceedings on dealing summarily with a charge under the Army Act 1955 or the Air Force Act 1955 or on summary trial under the Naval Discipline Act 1957,
( ) proceedings before a court established by section 83ZA of the Army Act 1955, section 83ZA of the Air Force Act 1955 or section 52FF of the Naval Discipline Act 1957 (summary appeal courts),").

On Question, amendment agreed to.

Clause 28, as amended, agreed to.

Clause 29 [Law enforcement]:

[Amendments Nos. 159 to 163 not moved.]

Clause 29 agreed to.

Clause 30 [Court records, etc.]:

[Amendments Nos. 164 and 165 not moved.]

Clause 30 agreed to.

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Clause 31 [Audit functions]:

[Amendment No. 166 not moved.]

[Amendment No. 166A had been withdrawn from the Marshalled List.]

Clause 31 agreed to.

Clause 32 agreed to.

Clause 33 [Formulation of government policy, etc.]:

Lord Mackay of Ardbrecknish moved Amendment No. 167:


    Page 18, line 34, at beginning insert ("Subject to subsection (1A),").

The noble Lord said: In moving Amendment No. 167, I shall speak also to Amendments Nos. 169 to 171 and 175.

At the moment the Bill makes provision for a class exemption on policy formulation. This means that any information that falls within this category is covered by the exemption whether or not its release would be harmful. As the decision on whether exempt information should be released in the public interest is ultimately made by the public authority or the Minister, this exemption would mean that access to this kind of information could be severely limited.

Indeed, Clause 33 is a sweeping exemption for all information relating to the formulation of any policy. It is not restricted to Civil Service advice but includes the background information used in preparing policy, including the underlying facts and their analysis. There will be no right to know about purely descriptive reports of existing practices, research reports, evidence of health hazards, assumptions about wage or inflation levels used in calculating costs, studies of overseas practices, consultants' findings or supporting data showing whether official assertions are realistic or not. Departments would not have to confirm even whether any such information existed. Any request for information about the justification for a government policy could be refused under this exemption.

In contrast, the openness code, to which I have referred on previous occasions, introduced by the Conservative government in 1994, contains three relevant positions. It requires departments to publish an analysis of the facts underlying policy decisions and proposals once decisions are announced; it allows policy-related material to be held only if disclosure would harm the frankness and candour of internal discussion; and it requires information, the disclosure of which could harm frank discussion, to be disclosed if that harm is outweighed by the public interest in openness. However, under the Bill, there is no requirement to publish the facts and analysis behind government decisions. The relevant exemption contains no test of harm. The sole basis for any disclosure will be the Bill's public interest test. Under the code, this is a further obstacle to the withholding of information. Under the Bill, it may allow objections to be raised to the most elementary disclosure. These amendments introduce a harm test, changing the exemption from a class exemption to a context exemption. This means that information would be covered by the exemption only if it was proved that release would cause harm.

24 Oct 2000 : Column 276

It seems surprising that the Government are backing away from the code of practice and from their own White Paper. But that is usual when we are discussing this Bill. It gives the Minister carte blanche to deny access to information that is innocuous and uncontroversial. It could also mean that information that is currently available would actually be made secret. That is unacceptable. With this Bill the Government are taking away rights to information rather than ensuring them. I have no doubt that other Members of the Committee will wish to speak to this important series of amendments. I beg to move.

Lord Archer of Sandwell: The comments of the noble Lord were remarkable in their moderation in relation to Clause 33.

Lord Mackay of Ardbrecknish: That is probably because I have been speaking on the political parties Bill for the past six hours!

Lord Archer of Sandwell: My noble and learned friend must be thankful for small mercies!

In its present form, the clause falls foul of virtually every principle in the book. It is not wholly clear why the various amendments relating to Clause 33 are not grouped together. It fails as a package, and addressing its defects one at a time--as we are condemned to do--is rather like trying to remove a pile of dead leaves with chopsticks.

Clause 33 has the rubric:


    "Formulation of government policy, etc."

The exemption is of a number of categories. The one that possibly attracts the greatest criticism is that contained in subsection (1)(a). There is room for argument about the others, but they are marginal to what is at issue. Subsection (1)(a) sits rather oddly with the other paragraphs, (b) to (d). They are about the kinds of information which relate to the formulation of policy. But paragraph (a) relates to all information regarding policy. It is a blanket exemption, as the noble Lord said--and in three ways.

First, there is no distinction as to the source of the information, whether it is information about what happened in the department during the policy discussions, or information about the state of affairs in the industry, area or social situation which is the subject of the policy. Any information, whatever its nature or source, is within the net if it is held by a government department and if it relates to the formulation or development of policy. A letter to a Minister from a non-governmental organisation or a trade association containing information about the need for a certain course of action, or asking the Minister to take the action, all fall within the blanket exemption.

Secondly, as the noble Lord, Lord Mackay, pointed out, there is no harm test. Information is exempt whether or not its publication would damage the policy-making process.

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Thirdly, there is no attempt to distinguish between the kinds of information. There is a whole history of distinctions between information about recommendations and factual information, statistics, analysis and all other forms of information, as we shall discuss shortly. So I am slightly surprised that the criticisms are not grouped for the purpose of the debate, because they are very much a package.

If the distinction is made about the kind of information, it is easier to discuss whether harm will result from its publication. However, it seems that we are to debate the criticisms in isolation. For the present, we are debating the absence of a harm test. This is a long way from the White Paper, which expressly said:


    "We are prepared to expose government information at all levels to freedom of information legislation".

It went on to add that information about policy discussions would be disclosed, subject to a harm test.

In our report, the Select Committee addressed the whole principle of providing exemptions by category, instead of by reference to the damage that would follow from the disclosure. We pointed out that this is a retreat from the White Paper, and even, as the noble Lord pointed out, from the existing code. If the Government really intend to let go of nurse's hand and stride out into a world of openness and transparency, this clause is their opportunity to send out that signal.


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