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Lord Borrie: I apologise to the Committee for not being present at the beginning of the debate on the amendment. I broadly support the amendment of the noble Lord, Lord Mackay of Ardbrecknish.

I am concerned that the assumption underlying Clause 33 as drafted is that somehow it is invariably against the public interest for information as to the formulation of government policy to be disclosed to the public. I suggest that that disclosure of such information can often be desirable especially to enable consultation with the public to take place and thereby to improve the quality of government decision making.

Information as to the formulation of government policy should be exempted from disclosure only if harm can be demonstrated to the frankness and candour of internal discussion, as Amendment No. 169 in the name of the noble Lord, Lord Mackay, proposes.

I illustrate my argument by reference to a High Court decision in April this year. A charitable body, Public Concern at Work, of which I am a patron, was successful in obtaining judgment which entitled the public and this charity access to a summary or copy of claims made under the Public Interest Disclosure Act so that it could monitor the legislation of which it had been the principal sponsor. The High Court ordered that the public should have access to such information, stressing that open justice should apply as much to employment tribunals as it does to the ordinary courts. In other words, litigation should be subject to critical scrutiny.

Three months later, in July (running into August) this year, the Government made regulations to override the High Court decision and remove the public's right to know the gist of the decisions of the employment tribunals. There was no consultation before this policy was formulated. The Minister's response to expressions of concern from the charity gave three reasons for the regulations overturning the High Court decisions. The three reasons for overriding the decision were respectively that the arguments were factually wrong; legally wrong; and disregarded the High Court's view as to the merits of open justice.

I suggest that had there been discussion involving not just the charity with which I am concerned but other interested bodies--trade unions, the CBI and so on--those errors could have been readily corrected. In the scale of things, my illustration is a fairly minor matter of policy. However, I put it forward because it demonstrates how poorly constructed formulation of policy made in secret during the parliamentary Recess may involve a quality of decision making which leaves

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much to be desired; and I suggest that it was worse because policy was formulated without any disclosure of information or consultation.

Lord Falconer of Thoroton: This is an important clause in the Bill. It has been the subject of considerable debate. The Government believe strongly that information relating to the formulation of government policy, ministerial communications, the operation of ministerial private offices and advice by the Law Officers must be properly protected. The Government believe that a careful balance between the rights of access to information, privacy, confidentiality and the Government's need for room to think and plan needs to be struck.

I should make it clear that the purpose of this Bill is to increase openness to Government. As I made clear at the beginning of the Committee stage, what is required is a culture change, and this legislation is an important contributor to the culture change. I should also make clear that many people on both sides of the debate consider that it is appropriate that policy making should not take place in a goldfish bowl: that there should be a process which allows Ministers, public authorities and civil servants to exchange views in a way that they feel will be private to give them that space to think and make decisions.

The question is: how does one achieve that appropriate space consistent with the desire for greater openness and greater freedom of information? That is the issue that we addressed in this Bill. We conceived that the best way to do that was by Clause 33 providing a class exemption in relation to the interests identified in Clause 33(1) but also with the public interest test in relation to what is now Clause 2. In that way, when you are considering what to disclose you do not have to make fine distinctions about what is a fact and what is an opinion. That will be covered by the exemption, as long as it relates to policy formulation or any of the other interests in Clause 33 (1). But then you balance the public interest in disclosure against the public interest in maintaining the exemption. The test for the public authority is quite simple when it is deciding whether or not to disclose under Clause 2. Is the public interest in knowing this information greater than the need to preserve the exemption to provide that space in which Government can take decisions?

I do not think that is very far from an approach that most noble Lords would regard as an acceptable approach. It is clear, it avoids fine legal distinctions and it comes to a result we would all regard as desirable. Amendment No. 170 would introduce a harm test in place of the present class exemption in Clause 33. That introduction would mean that the difficult questions, the uncomfortable options and the unthinkable scenarios would not be debated as frequently or as clearly. Governance would suffer. That is why a class exemption rather than a harm test is the right way to achieve a balance for good and open government.

This does not mean matters on internal discussions about, say, national emergencies. It is conceivable that a government receives from a pressure group a

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proposal for a policy change that would be quite unacceptable for whatever reason. It would still be necessary for officials, including possibly law officers, to set down a reasoned analysis of the effects of the proposal and the reasons for rejecting it. It would cause unwarranted public alarm simply to learn that such a proposal was under consideration, even though the government had concluded at an early stage that there was no prospect of its becoming government policy.

Amendments Nos. 167, 171 and 175, to which the noble Lord, Lord Mackay, has also spoken, seek to move from a class exemption to one based on a harm test, although in this case the test he proposes is one of substantial prejudice to the formulation or effective implementation of present or future government policy. Within that overall prescription, this amendment would provide separately that the test of substantial prejudice would itself become relevant only if the disclosure of information relating to ministerial communications would "materially detriment the frankness and candour of those communications".

At the risk of repeating myself, let me say again that the Government believe that the disclosure of certain types of information, such as ministerial communications, Cabinet papers and minutes would always be likely to prejudice the effective conduct of public affairs. That is why the Bill provides a class exemption for the interests set out in Clause 33(1). I will not go over the arguments about substantial prejudice because we have discussed them already.

I turn now to Amendment No. 169, which proposes a slightly different approach although it is again linked to a harm test. It would substitute for the present class exemption an exemption in respect of internal discussions, which would include,

    "proceedings of Cabinets and Cabinet committees; internal opinion ... projections and assumptions relating to internal policy analysis ... [and] confidential communications between departments".

Perhaps I may say just a word about the code of practice and compare it with the Freedom of Information Bill. The code of practice is discretionary; it is a policy statement. It creates no statutory rights. Its enforcement mechanism is the ombudsman. The ombudsman's views are not binding but the commissioner's decisions will be. The Bill's coverage is vastly wider than the code. The code refers only to central government departments, whereas the Bill covers all public authorities.

Most importantly of all, the code of practice is underused. It is not regarded as a mechanism for providing freedom of information as the Bill will be, if, as we expect, it is accompanied by a culture change. The publicity given to the Bill will ensure that the public are aware of their rights.

Amendment No. 169 would remove the specific provisions currently proposed to protect the Law Officers' advice and the operations of ministerial private offices. That would lead to less effective and efficient development and delivery of government business, because it would restrict the free expression

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of views at the policy formulation stage without significantly increasing the amount or quality of the information that could be released into the public domain.

I earnestly ask your Lordships to think about what I have said, just as I will think about what your Lordships have said. The Bill needs to be considered in the context of the whole scheme, not just in relation to Clause 33.

If I may, I shall leave the extent to which facts should be covered until the next group of amendments, where it will fit in more easily. I ask the noble Lord to withdraw the amendment.


Lord Brennan: I should like to ask my noble and learned friend a question that tests Section 1A by example. Let us suppose that the forthcoming report on the BSE inquiry concludes that government policy was wrong and caused or contributed to the damage done to the beef industry, let alone the potential effects on human life. Many of us are concerned that, should such an event recur under the Bill the public would have no means of finding out about relevant policy considerations until the disastrous events had happened. Can the Minister reassure us that such fears are not justified?

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