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Lord Falconer of Thoroton: The effect of the amendment is that those words apply only to paragraph (c), not to paragraphs (b) and (c). As I understand the effect of Amendment No. 175A, there is no exemption at all in respect of paragraphs (a) and (b); the information automatically comes out, irrespective of harm.

Lord Archer of Sandwell: Yes.

Lord Cope of Berkeley: Yes. But the harm test is nevertheless important.

Lord Falconer of Thoroton: It does not apply here.

Lord Cope of Berkeley: Other information is not exempt unless its disclosure would prejudice--

Lord Falconer of Thoroton: The noble and learned Lord, Lord Archer, has confirmed the effect of paragraphs (a) and (b) of the amendment: even if the information were to cause harm, it comes out.

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Lord Cope of Berkeley: In that case, perhaps I may record that I believe that the frankness and candour of internal discussion is of extreme importance. If the business of government is to be carried on properly, that is essential.

Lord Archer of Sandwell: I intervene only because I am slightly puzzled by the paraphrase of my noble and learned friend. I think he understands what we are saying. But if it will prejudice the frankness and candour of internal discussion, it will cause harm, will it not? That is the harm test.

Lord Falconer of Thoroton: I may have got it wrong, but I understand that the effect of the amendment is that information is not exempt if it consists of,


    "(a) factual information".

Therefore, if it is factual information, there is no harm test of any kind applied.

Lord Archer of Sandwell: That is right.

Lord Falconer of Thoroton: So any factual information, even if it were to cause harm if it was published, must be disclosed. That is the effect of the amendment. Paragraph (c) is in a different category.

Lord Cope of Berkeley: Once again I find myself at a disadvantage because I am not a lawyer. I am not able to analyse as precisely, as it seems others can, the precise effect of Amendment No. 175A, which is proposed by one leading lawyer and opposed by another.

Lord Archer of Sandwell: At the risk of trying the Committee's patience, perhaps I may have one more try. It is my noble and learned friend who has insisted on exempting by categories. It is perfectly right that it would be exempt from this category.

Lord Cope of Berkeley: I return to the fact that frankness and candour in internal discussion remains of the highest importance in achieving good government decisions.

Lord Falconer of Thoroton: Perhaps I may return to my basic theme in relation to Clause 33. The clause provides an exemption in relation to the material covered by Clause 33(1), which is a class exemption. That includes factual material. The public authority does not need to trouble itself as to whether it is a fact or not; it simply looks to see whether it is within Clause 33(1)(a). It then applies the public interest test under Clause 2.

Perhaps I may apply that approach to the examples that have been given. In regard to information relating to GM foods, environmental information regulations will give a right to some of the information referred to by the noble Lord, Lord Brennan, in his example. To the extent that the information is not available under those regulations, and in so far as the information

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would be exempt under Clause 33, it would then be for the public authority or the Minister to decide whether or not the public interest in disclosing the information outweighed the public interest in maintaining the exemption, the purpose of the exemption under Clause 33 being to give space in the making of a decision. That approach leads to a sensible result being reached.

Similarly, in relation to the example given by the noble Lord, Lord Goodhart, of a broken rail beside the track, if that was a fact in the possession of a public authority for the purpose of making a policy decision, it would be exempt under Clause 33, but it would then be for the public authority to decide where the public interest lay in relation to disclosing that information. It would have to balance suppression against disclosure, and decide where the balance lay. That is a perfectly sensible approach. With respect, not one Member of the Committee has said why it is not sensible.

I also emphasise that the Government believe that factual information used to provide an informed background to decision-taking will normally be disclosed. As I indicated when this matter was before the Committee two days ago, we have agreed to bring back into new Clause 2 the steer towards the disclosure of such information that had been provided in Clause 13(5). So again, we are at one with those Members of the Committee who want to see greater openness in relation to factual information.

There will be occasions when it will not be in the public interest to disclose facts that have been under consideration, as to do so would, for example, disclose advice which is properly protected by the exemption in Clause 33. To ensure, as the noble Lord, Lord Cope, eloquently described it, the protection of the frankness and candour that is required for good government to take place, we need to allow some leeway so that, in these admittedly exceptional circumstances, factual information could be withheld. We believe that the right approach is for the public authority to address that by asking itself the question, "Where does the public interest lie?", not on the basis of some fine legal question as to what is or what is not a fact.

Amendment No. 175A would provide no protection whatever for facts or analysis under Clause 33 or Clause 34, even if it would be prejudicial to disclose that information. I believe that the noble and learned Lord, Lord Archer, accepted that. Furthermore, the effect of paragraph (c) in the amendment is to convert the test in Clause 33 into a prejudice-based one, except in relation to information relating to Law Officers.

This information is of a sufficiently sensitive nature to warrant a class exemption as its disclosure would almost always entail harm to the formulation of government policy. This being the case, it would be dishonest to have a prejudice test in this clause. Information of this nature should be disclosed only where it is in the public interest to do so, which is already provided for in the Bill.

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Perhaps I may deal with a number of other points that have been raised. The first is the "before or after" question. Again, let us remember Clause 2, which allows the public interest to be weighed. Secondly, the noble Lord, Lord Goodhart, said that the Irish Act dealt with factual information in a better manner. Perhaps I may repeat what I am told the Irish Act provides for. Section 19 of the Irish Act has an exemption relating to information submitted to Ministers for their use in transacting government business. This exemption does not apply to factual information relating to decisions already published or made more than five years before the request was made; hence the exclusion from exemption does not cover facts before a decision is made. As I understand it, there is a five-year pause before the factual material becomes available.

Secondly, it is said that we ourselves have sought to draw a distinction between fact and opinion in what was Clause 13(5) which will come back when we produce our amendment. That is not right. The subsection did not purport to define a fact; it did not need to. If we are to separate fact and opinion in Clause 33, which is what is sought, it will be necessary to have a precise definition of what a fact is--which leads us into the minefields that we want to avoid.

Finally, the noble and learned Lord, Lord Archer, referred to the Croham directive, given shortly before the anticipated change of government in 1979. That directive required submissions to Ministers to be set out so as to distinguish between factual information and advice. I am told by my officials that this may be different from the evidence that was given. The directive was not in fact implemented because there was a difficulty in establishing what is factual information and what is advice. I understand the point about the evidence given to the Select Committee but, speaking for myself, I should have thought that it would not be a productive use of officials' time to work out what is a fact and what is opinion. It would be far better to give advice to Ministers and others on the basis of the best way to give advice, rather than on the basis of trying to comply with the Croham directive. I address those remarks to my right because a response could be forthcoming from that direction--

10.45 p.m.

Lord Norton of Louth: Surely civil servants have to make that distinction all the time when they are appearing before Select Committees in the other place.

Lord Falconer of Thoroton: I cannot believe that civil servants appearing before a Select Committee must decide, on the one hand, what is precisely a fact and, on the other, what is precisely opinion. The line would be one where they can make sensible judgments in that respect.

Lord Archer of Sandwell: I am grateful to my noble and learned friend, but my information about the Croham directive differs from his. Unless the

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Government are prepared to disclose some information about it, I suppose that we shall never know.


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