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Lord Lucas moved, as an amendment to Amendment No. 172, Amendment No. 173:

The noble Lord said: I do not intend to address my amendments at this stage. I should prefer to wait for the Government to answer them. I believe that they are fairly clear and simple in what they seek to achieve. I should like first to listen to the arguments on other amendments in this grouping before taking up the time of the Committee with my ideas. I beg to move.

Lord Archer of Sandwell: We have just debated the first of the shortcomings of Clause 33: the fact that it is not subject to a harm test. Now we are discussing the second shortcoming. As originally drafted, it made no attempt to distinguish between the various kinds of information.

My noble and learned friend has at last made an attempt to make some distinction. He said in fact that he had listened to representations which had been made about statistical information. The representations which I heard being made were not specifically addressed to statistical information. But my noble and learned friend says that he is prepared to release statistical information from the blanket of silence, but it is confined, first, to statistical information; and, secondly, even that only after the decision has been taken.

I am sure that we are all grateful for my noble and learned friend's attempt to move the colossus from its trench. But he cannot really be surprised if we do not break into a celebration dance. The minimum step we had hoped to see in the direction of openness was a distinction between policy advice and factual information.

During our last debate my noble and learned friend said, "Do not make a distinction between advice and factual information; just apply the 'public interest' test across the board". But that is not what the Bill does. It exempts by categories. That has been one of our complaints. If my noble and learned friend agreed that all information should be subject to a public interest test, we might be in the market for a deal. But he does not. He subjects it all to category exemptions and then, when we come to a category where he does not want to make that distinction, he says, "Do not bother about the categories. Just apply the public interest test".

If the Government believe that the distinction is difficult to make in practice, they reached that conclusion at a comparatively late stage because they made that distinction themselves in Clause 13(5). That is why I set down Amendment No. 174; the distinction is taken from the Government's drafting.

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As long ago as 1977, the Croham directive instructed officials to make that distinction. So far as I am aware, it seems to have been implemented without difficulty. The noble Lord, Lord Butler, gave evidence in July last year to the pre-legislation Select Committee on this Bill. He said,

    "when we were coming up to the 1997 election, knowing what the government policy was in this matter, my senior colleagues and I gave some thought to how we could regularly structure submissions to Ministers in a way that would enable us easily to separate the background which was publishable from, as it were, the subjective advice which was confidential. It would take a bit of training and changing practice to do that, but I think that people could very readily adapt to that".

The previous government, in 1994, introduced the openness code which has already been the subject of debate. It required departments to publish facts and the analysis of them which led to the policy decision. It said that information relating to the policy decision was to be published, subject to the harm test. The noble Lord, Lord Burns, told the Public Administration Committee on 22nd June 1999,

    "When I was preparing for the election and thinking about these issues, I had expected a bigger shift in that direction than we have, in fact, seen".

Amendment No. 175A was originally going to be tabled by the noble Lord, Lord Burns. I tabled it for two reasons. The first is that the noble Lord, for reasons of which we are all aware, was not able to do so; the second is that it represents an attempt to bring together the various criticisms of this clause. First, it is not clear why factual information should be withheld. Secondly, it is not clear why there should be secrecy as to the analysis which was made of factual information. The Irish Freedom of Information Act excludes not only factual information, but also the analysis and, so far as I am aware, they have not encountered problems about that. Thirdly, Amendment No. 175A provides that anything else within the category should be subject to the harm test.

I understand the arguments about belt and braces but this measure adds a bathrobe and curtain, too. I hope that my noble and learned friend will think again about the whole structure of the clause.

Lord Goodhart: Having heard the noble and learned Lord, Lord Falconer, addressing a meeting of the Bar about 10 days ago when he sought to defend the Government's proposals on legal aid, and having heard him in your Lordships' House defending the Dome, I have a feeling that whenever the Government want to defend the indefensible they send for the noble and learned Lord. I believe that this is such an occasion.

The noble and learned Lord had no support whatever from those on the Benches behind him. Indeed, the noble and learned Lord, Lord Archer, and the noble Lords, Lord Borrie and Lord Brennan, made extremely effective speeches the other way. The only support he received came from the noble Lord, Lord Armstrong of Ilminster, on the Cross Benches. When the noble Lord was speaking I thought for a moment

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that I was hearing the voice of Lord Appleby, whom I believe was elevated to your Lordships' House a few years ago in the resignation honours of Sir Jim Hacker!

We on these Benches accept that advice, position papers and so forth written by civil servants or other advisers should not be disclosed as of right. We accept that they should be exempt, subject to a harm test. But we want the factual background information to be made available without an exemption.

In their Amendment No. 172, the Government have stated that they will release statistical information. But that gives the whole game away because there is no logical distinction between statistical information and factual information. Statistics are simply a collection of facts. Saying that general statistical information can be released but that specific facts cannot seems to me absurd.

Perhaps I may take an example with which everyone will be familiar; the Hatfield rail accident. The number of broken rails discovered on the rail track in this country during the previous 12 months is a statistic. The discovery of a single broken rail at the site of the crash is not a statistic but a fact. As it happens, those matters are already in the public domain but one could well imagine similar circumstances in which that information was not currently in the public domain. If the facts, not merely the statistics, on which the Government rely to formulate their policy are not protected by other exemptions, we believe that they should be available to the public.

As was said during our debate on the previous group, the Bill is far more restrictive than the existing non-statutory code of practice. That code requires departments to publish facts and the analysis of facts which the Government consider relevant and important in framing major policy proposals, admittedly after the decisions have been taken, subject to a harm test and the balancing exercise. As the ombudsman--the Parliamentary Commissioner for Administration who administers the code--said, the code is intended to protect advice not factual information.

Irish freedom of information legislation specifically excludes any exemption for factual and statistical information and analysis of that information. Proposals for a freedom of information Bill in Scotland do not give an exemption to factual information. Even with the concession which the Government have made in Amendment No. 172, we are concerned with the absence of any right to obtain statistical information before the Government's decision is taken. That deprives a person who requests the information of the ability to use it when it is likely to be of use to him or her. For example, a person who makes the request may believe that the statutory evidence is misleading and incomplete and may want to refer the Government to further evidence of which they may be unaware, but there is no way in which he or she can do that if there is no access to the information before the decision is made.

The Government's proposals mean that factual information which would not be protected under any other clause would be exempt merely because it was

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used as background information in policy-making. The Government's proposals draw an illogical and indefensible distinction between one kind of factual information--statistics--and other kinds. I believe that this group of amendments will be as unpopular as the previous one. There are a number of alternative amendments from which to choose and, having seen them, we strongly support Amendment No. 175A in the name of the noble and learned Lord, Lord Archer.

10.15 p.m.

Lord Williamson of Horton: I do not return to the question of the harm test, although it arises on Amendment No. 175A. However, I should like to intervene on the choice of amendments in the current grouping that is before the Committee. One may choose the exclusion of statistical information from the class exemption once a decision on government policy has been taken; or the exclusion of factual information, which is the amendment in the name of the noble Lord, Lord Lucas; or the exclusion of factual information and analysis of that information without the condition about timing.

I believe that the government amendment should be welcomed, perhaps mildly, since it improves the position in comparison with the Bill as presented. My mother always taught me to be thankful for small mercies. There is a suggestion that we should deal with factual rather than statistical information. There might be some contention in this matter. Generally speaking, however, I believe that that formulation can operate. It is possible to differentiate factual information. Leaving aside for the moment the harm test, on balance I also support the amendment moved by the noble and learned Lord, Lord Archer. It is possible to operate that provision which would be more in keeping with freedom of information.

Among these amendments one sees the expression "in the reasonable opinion of a qualified person". That is deleted from the final amendment in the group, but we may return to that later. I am tempted to point out that this evening there are two Members of the Committee sitting on the Cross Benches who may be considered to be qualified persons but they disagree on a number of points.

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