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Baroness Whitaker: I support Amendment No. 174 for three reasons. In so doing, I welcome the amendment of the Minister which improves the position by proposing that the public have a right to statistical information relating to policy decisions. However, I respectfully suggest that Amendment No. 174 is better. The term "statistics" is narrow. As the noble Lord, Lord Goodhart, said, facts may not be statistical, and he gave an example. I should like to offer one or two others: the route of the smallpox bacillus through a ventilation system at the University of Birmingham which killed its last victim in the UK; new maps of the watercourse beneath a mine slag heap which was involved in the Aberfan disaster; and the level of training of an anaesthetist in a medical mishap, which was a concern revealed in a recent court case. Those kinds of facts may be instrumental in a policy decision.

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To permit the release of information only after the policy decision has been announced destroys an important function of freedom of information. That was reflected clearly in Treasury guidance to the 1994 voluntary code. That states:

    "The public interest in disclosure is particularly strong where the information in question would assist public understanding of an issue subject to current national debate".

It continues,

    "the emphasis is on assisting understanding, consideration and analysis of existing and proposed policy".

That function also makes possible the informed consent of citizens to the hard choices which governments have to make.

My final point will, I hope, reassure noble Lords who fear the alleged tendency to secrecy of bureaucrats. The trade union of senior bureaucrats--the policy advisers--the FDA, has publicly supported freedom of information legislation for many years. I confirmed the position last week. I was not made aware of any difficulty in implementing the present voluntary code which in some ways goes beyond the Bill. Incidentally, when I worked in the Civil Service, I cannot recall any advocacy for withholding information to protect an official. I say no more.

When I was with the Health and Safety Executive the culture was, to quote the evidence of its chairman to the Public Administration Committee, in 1998 that,

    "open access to health and safety information improves public understanding and strengthens confidence in the system".

Those who operate the system at Ministers' bidding can manage and would welcome access to factual background. Authoritative guidance states that this background should be released during debate and not after, and the citizen in a democracy worthy of the name both needs and is entitled to it. I therefore recommend the amendment.

Lord Brennan: I hope my noble and learned friend the Minister will forgive me if I give yet another example to test the way in which this distinction between statistic and facts might work. Let us suppose that the Minister of Agriculture, Fisheries and Food negotiates with a major firm producing genetically modified crops a series of tests to determine whether a product is of public value. The material upon which that decision will be made will involve fact. The resulting decision whether to implement a policy to promote such a product would involve policy. The recipients of that policy are the people who will consume the product. Those people will feel that they are entitled to know the facts upon which the product is put into the marketplace.

On reading the Bill it would appear that in that example the Government can rely on Clause 33(2) to say that the facts behind the matter are covered by the policy exemption; the company can rely on Clause 41 to say that the matter is of commercial interest; and the public can say nothing unless they look carefully at Clause 73. It says that under the Aarhus convention the Government are to allow for access by the public to environmental information and the public might be entitled to such information.

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I chided the Minister the other day with a reference to the Aarhus convention. But it is exceptionally important because its terms expect--indeed require--governments to allow the public access to information about the environment. Under Clause 73 the Government must make regulations to allow that to occur. I am back to my example. The Government claim exemption; the company claims exemption; and the citizen says, "Under the Aarhus convention I am entitled to know".

I hope that that is not too elaborate an example. The item is of current interest and graphically illustrates the difficulty of claiming that there is some difference to make between fact and opinion. The public will want to know the facts. I hope that the Bill will allow them to do so.

Lord Norton of Louth: Prompted by the noble Lord, Lord Brennan, who made an extremely important point, and following on from what he said, I invite the Minister to think of the matter not so much simply in terms of the principle of open government, important though that principle is, but in terms of what it may deliver for good government. The late Enoch Powell used to argue that one did not really need to be informed about the background material that led to a government decision; all one needed was the decision and then one could deliberate on whether it was a good decision. I share the Minister's scepticism about that and argued against it.

If people are to judge the decision, they should have access to the information on which it is based--not the internal deliberations, as the Government can present their reasoning for reaching a conclusion. But if there is to be a wider debate about that decision, the more information that led to it that is put into the public domain, the better the debate will be informed. If the material comes after the event, one is looking at it after the decision has been made and perhaps implemented. It is then too late. If one follows that line of reasoning, the onus should be on putting into the public domain as much information as possible to enable a proper public debate to take place. The Government would be the beneficiary because the debate would be that much better. If their reasoning is sound, people would be more likely to support them rather than, after the event, feel miffed that only then had they received the information.

On that line of argument, as much material should be pushed out into the public domain as possible and only in the most exceptional circumstances should it be withheld. If one takes that approach, it points one to go further than the amendment in the name of the noble and learned Lord the Minister, Amendment No. 172, and leads one far more in the direction of the other amendments that are before the Committee. The quality of government would benefit if there were that degree of openness.

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10.30 p.m.

Lord Cope of Berkeley: I hesitate to intervene again at this stage of the Bill, but not sufficiently so to stop me talking. When I was a Minister and was involved in looking at statistics and factual information in order to make decisions, I had the advantage, at least at one point, of being advised by the noble Baroness, Lady Whitaker, in her previous capacity. Based on that experience and others, I believe that I can make a contribution to the debate.

The noble Lord, Lord Goodhart, paid a great tribute to the noble and learned Lord, Lord Falconer, in saying that he is the Government's preferred choice for defending the most difficult of cases. Perhaps that is part of the qualification for being a senior silk at the Bar. It seems to me that he has a rather difficult case to defend, but it depends on a number of considerations. The first is the difference between statistical information and factual information; the second is the question of information before and after the decision being released; and the third is the issue of the harm test.

On the difference between statistics and facts, the Committee will be aware that I am an accountant and might be presumed to prefer numbers to other facts. But I am well aware that numbers, either as statistics or accounts, do not necessarily present the whole picture. A great deal of information cannot be represented by numbers, but is nevertheless necessary if a good decision is to be reached.

Indeed, the whole point of a political or ministerial decision is that it cannot be reduced to numbers or, for that matter, to facts. It requires an element of judgment. If we are dealing with an expert decision, then the experts in a particular field--such as the civil servants in a government department, the generals and admirals for matters related to defence or the doctors and surgeons for a medical problem--do not need politicians to intervene. However, where a gap appears between the facts and the matters to be decided, or, to put it another way, where an element of guesswork must be incorporated, then the politicians have to step in and come to the decision. However, they must do so only on the basis of the best possible statistical and factual information that can be produced for them.

The question we need to consider is whether statistical information has a different character from other factual information. In some senses, of course it does. It is possible to add up one column of figures, then another column of figures, and conclude that one total will be greater than the other. One or the other may then be preferred. However, we all know that statistics can mislead as well as tell the truth. Numerous examples exist which I shall not develop because it is sufficient simply to state the case. The basis on which statistics are produced can profoundly influence the final outcome.

The same is true of other factual information. For example, opinion polls--other than on easy questions

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such as "Would you vote Labour, Conservative or Liberal Democrat?"--on more difficult topics, such as issues of the day, often present problems of interpretation. It has long been noted that how a question is expressed can bring about a different statistical response, one that would not necessarily reflect what should be ultimately the correct decision. I do not believe that any great advantage may be gained or objectivity achieved by relying on statistics over other "factual" information. I refer to "facts" in inverted commas here because all facts which are brought to bear when reaching a political decision, such as the one I have described, are open to doubt. So I do not think that it is valid to make a distinction between the emphasis placed on statistical information in government Amendment No. 172 as opposed to the emphasis on factual information in the opposition Amendments Nos. 174 and 175A.

The second question to consider is that of "before" and "after". The government amendment states that,

    "Once a decision as to government policy has been taken",

information should then be released. The difficulty here is that it is well known that once a government policy has been announced--namely, the decision has been reached and made public--the question of saving face enters into the process. It is difficult for a government to change their original decision. That may be desirable or undesirable, but it is the fact of the matter. It is easier for a government to change their mind before they make any public declaration of their intentions than it is afterwards. We see this all the time in the course of the practice of government and when observing government. I think, therefore, that leaving the release of information, whether it be factual or statistical, until after a decision has been reached, has a disadvantage over the release of information in advance.

At the same time, this has to be measured against the third aspect, which is summarised by the harm test. Paragraph (c) in Amendment No. 175A expresses this as,

    "other information, unless its disclosure would, or would be likely to, prejudice the frankness and candour of internal discussion".

That is extremely important.

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