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Lord McNally: I remember the evidence given by the noble Lord, Lord Butler of Brockwell. Indeed, when giving evidence to our Select Committee, he took some pride in saying that he had actually cracked this. Therefore, I hope that the noble Lord will read this exchange in Hansard and that he may intervene in the matter on Report. That would be most helpful.

Lord Falconer of Thoroton: Indeed. When I repeated to the Committee what I had been told by my officials, I hope I signalled that I knew it was inconsistent with the evidence that had been given to the committee of my noble and learned friend. Therefore, it would be very interesting to hear what the noble Lord says. However, if we go on to consider the principle, we must realise that the directive has not been implemented. I suspect that that is because of the question whether it would be a productive use of time to be drawing such distinctions.

Lord Lucas: Before he concludes, I hope that the noble and learned Lord will touch on the point of when a fact is a statistic and when it is just a fact.

Lord Falconer of Thoroton: It is pretty easy to identify what is a statistic: you know a statistic when you see it. As to what is a fact or an opinion, that is a much harder question to answer.

Lord Norton of Louth: Before the noble and learned Lord sits down, I am still a little unclear from what he said as to what is the objection to Amendment No. 174 tabled in the name of the noble and learned Lord, Lord Archer of Sandwell. The Minister dealt with the other amendments in the group, but I am not quite sure that he dealt with that one. Further, the noble and learned Lord did not deal with an absolutely crucial point made by the noble Lord, Lord Williamson of Horton, as regards the difference between how he and, say, the noble Lord, Lord Armstrong of Ilminster, would interpret something. I believe that to be a crucial point in the context of this debate.

Lord Falconer of Thoroton: Amendment No. 174, tabled in the name of my noble and learned friend Lord Archer of Sandwell, says:


It takes us straight into the issue regarding what is and what is not a fact. It does not matter in terms of how we approach the matter, because it is dealt with by what was Clause 13 and what is now Clause 2. I should be interested to hear the noble Lord's response as to why that is not an effective approach to the problem.

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Lord Norton of Louth: That relates to my final point, which was initially made by the noble Lord, Lord Williamson of Horton.

Lord Archer of Sandwell: Does not my noble and learned friend appreciate that, in Clause 13(5), the Government distinguished between what is and what is not a fact?

Lord Falconer of Thoroton: I do appreciate that; indeed, I dealt with that point. Clause 13(5) referred to the factual background. It indicated that the public interest is served by disclosure. However, because it did not need to do so, it did not seek to define the difference between fact, on the one hand, and, on the other hand, things that are not facts. Clause 13(5) gives a steer in relation to the exercise of a discretion where you do not need to be as precise as you would be if you were defining what was and what was not exempt.

Lord Williamson of Horton: I have been slightly challenged on this point, so I shall rejoin the debate. I should say, first, that I hope the Government do not announce what the noble and learned Lord has just stated; namely, that they do not always know what is and what is not a fact.

The second point is that there is a difference between the proposal in Amendment No. 174 in the name of the noble and learned Lord, Lord Archer of Sandwell, and the situation presented in the Bill by the noble and learned Lord. Under Amendment No. 174 the factual information would be outside the class exemption and there would be no further argument about it. It would be available to the public, full stop, whereas under the position presented with some brilliance by the noble and learned Lord, the decision on whether the information would be available would be taken by the public authority under Clause 33, now Clause 2. So it would be in the hands of the public authority to decide whether or not this factual information would be available. Frankly, that difference is fundamental and it has not been covered by the noble and learned Lord.

Lord Falconer of Thoroton: The effect of Amendment No. 174 is like that of Amendment No. 175A. There is no exemption at all as regards the former amendment. So it follows from what the noble and learned Lord is proposing in Amendment No. 174, that even if it were to cause harm to disclose the information, it would nevertheless be produced. As I understand it, even the noble Lord, Lord Goodhart, does not go along with the idea that, even if were to cause harm, that information should be disclosed. It is not what the noble Lord, Lord Williamson is suggesting is the position, namely, that it might be disclosed under Clause 33 rather than being put into Clause 2 because it comes out irrespective of whether there is harm.

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Lord Goodhart: As regards harm, would the noble and learned Lord agree that it could be exempt by virtue of other provisions such as damage to the economy?

Lord Falconer of Thoroton: It might be, but we are debating in the context of Clause 33, which depends on what the information was.

Lord Armstrong of Ilminster: Perhaps I may follow the earlier point made by the noble Lord, Lord Norton of Louth, about before and after. I very much agree with him that the requirement to publish factual and statistical information is likely to improve the quality of government. But the knowledge that that information will have to be published once a decision has been taken would exercise a very powerful degree of discipline on those making the decision. Knowledge that that information would emerge after the event would cast its shadow before, if I may put it that way. Therefore, I do not believe that that is a conclusive argument in favour of prior publication.

Lord Lucas: I very much hope that the noble and learned Lord will not rest on his suggestion that one will know a statistic when one sees it. I do not believe that that is a good basis for using the word in legislation. If I asked the noble and learned Lord how many hours of sunshine there had been today, he would quote me a number and that is a statistic. It is also a fact. But perhaps he does not mean "statistic" in that sense.

Perhaps he means it in the rather more limited sense that a statistic is a number which cannot be verified because all traces of the original facts which made it up have been expunged. Is that what the noble and learned Lord means by "statistic"? If that is so, then a statistic inevitably contains a large element of analysis, because one cannot reach that stage without having taken some decisions as to how the facts should be analysed. Are those not to be revealed as part of the statistics or are we just to be presented with bald numbers and not the basis on which they have been arrived at? It we are presented with that basis, then we are getting into the realms of analysis under the heading of "statistics". It is a very difficult question to settle. Even if we do not arrive at a final answer, I believe that we should be presented with a considered view by the Government of what is a statistic under the new provision and what is not.

Lord Norton of Louth: Perhaps I may briefly comment as well and take the opportunity to respond to the noble Lord, Lord Armstrong. I completely agree with the point he made because, if one knows that the information is going to be in the public domain, that is an important discipline on government and therefore highly desirable. My point is that while that may be necessary, it is still not sufficient in terms of the quality of decision-making.

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I understand the point that the Minister makes about the harm test in relation to Amendment No. 174. I can see the argument he makes against Amendment No. 174. However, I do not think that that is sufficient to justify what is in the Bill. It is perhaps a case for reworking Amendment No. 174, but it is certainly not a case for justifying the existing provisions of the Bill.

Lord Falconer of Thoroton: Enjoyable as this is, I think that we should now consider another amendment. I say to the noble Lord, Lord Lucas, that I think that most people would recognise a statistic when they saw it. It would be wrong for me on my feet, as it were, to try to give a statutory definition of a statistic. I shall write to the noble Lord. However, I assert that it is not too difficult to recognise a statistic when one sees it.

Lord Lucas: I disagree fundamentally with the noble and learned Lord on that. I have spent too much of my life among statistics to have any reason to believe that a line can be drawn between a statistic and a fact on one side and statistic and analysis on another. The three blur into each other in a way which admits no firm lines. If we are to see this word in legislation, at least we ought to have a government opinion and some examples as to what constitutes a statistic for us all to go on. I shall be content with a written response from the noble and learned Lord. Therefore I beg leave to withdraw the amendment.

Amendment No. 173, as an amendment to Amendment No. 172, by leave, withdrawn.

On Question, Amendment No. 172 agreed to.

[Amendments Nos. 174 to 177 not moved.]


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