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Lord Goodhart: I have listened to the debate with interest. I remain totally unpersuaded by what the noble and learned Lord the Minister said. This is likely to be an issue to which we shall want to return on a future occasion. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 185 not moved.]

Lord Falconer of Thoroton moved Amendment No. 186:



(iii) the work of the executive committee of the National Assembly for Wales,").

On Question, amendment agreed to.

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Lord Archer of Sandwell moved Amendment No. 187:


    Page 19, line 35, leave out paragraph (c).

The noble and learned Lord said: I notice from the Marshalled List that it is suggested that the Committee may wish to discuss with this amendment the Question that Clause 34 stand part of the Bill. I am bound to say that in my experience it is normal for clause stand part to be debated after the amendments have been considered, then we know the final form of the clause we are considering. However, I have no strong views on the matter and am in the Committee's hands.

Perhaps I may speak to Amendment No. 187. We have discussed one of the complaints about Clause 34. Now we come to another. Having immunised the harm test from objective scrutiny, the Government now provide a longstop. Having listed the kinds of mischief which appears to occasion the Government such anxiety, just in case they may have forgotten something, they have a catch-all expression which is breathtaking in its all inclusiveness:


    "which would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs".

There is virtually nothing in the whole domain of public administration which could not fall within that expression if some qualified person chose to consider it as falling within it.

That is a perfect example of what the Select Committee on the parliamentary commissioner for administration meant when, in its second report on open government in paragraph 111, it referred to the propensity of some departments to,


    "scatter excuses like so much gunfire in the hope that some exemption might hit the target. That is to undermine the spirit and purpose of the Code and to show disregard for the rights of the individual requester".

That is a very long cry from the culture of openness of which my right honourable friend the Prime Minister spoke in his preface to the White Paper. Someone has gone overboard. I do not expect my noble and learned friend to agree with all we say in this Committee, but surely he recognises a total absurdity when he meets it. I beg to move.

Lord Mackay of Ardbrecknish: The noble and learned Lord, Lord Archer, rightly points out that the clause stand part debate is grouped with this amendment. I do not have any intention of developing that; it was added as a kind of backstop--rather like the backstop we are discussing in this amendment.

Perhaps I can pose this suggestion. This clause could do without paragraphs (a) and (b); paragraph (c) alone would do fine. The provision would then read,


    "if, in the reasonable opinion of a qualified person, disclosure of the information under this Act ... would otherwise prejudice, or would be likely otherwise to prejudice the effective conduct of public affairs".

That would cover the whole lot. It seems to me that there is not going to be much left for that qualified person to allow out without considering whether or not it is reasonable to do so.

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I will not even get into the discussion, with all these learned lawyers around, as to what is and what is not reasonable. But what I may think is reasonable as a Minister of the Crown may not be all that reasonable. It may be that I am attempting to protect my bad decision-making, although I may think it is good decision-making. Therefore, I will be reasonable and qualified. Obviously the draftsmen decided, just in case something escaped and there is one last fish in the sea, let us get it with a grenade; and this is the grenade.

I know the noble and learned Lord likes to tell us it is all about openness,.but I am not very sure.

Lord Goodhart: My name and that of my noble friend Lord Lester of Herne Hill is attached to this amendment. At this time of night all I propose to say is that I agree with every word said by the noble and learned Lord, Lord Archer, and by the noble Lord, Lord Mackay.

Lord Norton of Louth: I basically agree with what has been said. But since we are debating the clause stand part Question as well, I should say that it strikes me as a strangely constructed clause if we look at the provisions in relation to one another. We are left wondering, for example, what information held by a public authority is likely to prejudice,


    "the maintenance of the convention of the collective responsibility".

The way that provision is drawn strikes me as being distinctly odd.

In terms of paragraph (c), I agree completely with the amendment. I made a note that this is basically a sweeping-up provision, not dissimilar to a discussion we had earlier on Clause 26, which again struck me as a sweeping-up clause to take care of anything that was not covered by other clauses. I am sure the Minister could give examples that would be caught by the provision that may well be justified. But it is so broadly drawn that, as the noble and learned Lord, Lord Archer, mentioned, it can cover anything in the realm of public affairs. We only need some official seeking to protect himself to delay the process. In other words, it may be used as a delaying tactic. But it is so broadly drawn that it encompasses anything to do with public affairs. It needs to be taken away, completely redrawn and narrowed considerably.

Lord Falconer of Thoroton: As has been made clear in the debates two days ago in Committee, this is a catch-all. Does anybody disagree with the proposition that if information,


    "would, or would be likely to, prejudice


    (i) the maintenance of the convention of the collective responsibility ... or


    (ii) the work of the Executive Committee of the Northern Ireland Assembly ...

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    (b) would, or would be likely to, inhibit


    (i) the free and frank provision of advice, or


    (ii) the free and frank exchange of views for the purposes of deliberation",

that material needs to be weighed in the balance against the public interest in disclosure? That is the way the Bill works.

Clause 34 establishes exemption, but only if those tests are satisfied. Once those tests are satisfied, it is for the public authority to decide, when weighing the public interest in disclosure against the reason for the exemption, which of the two should prevail. That is perfectly sensible. Nobody would dispute those provisions. Again, subsection (2)(c) says that if the disclosure of information,


    "would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs",

it is exempt; and that needs to be weighed against the public interest in disclosure.

It is important to note that in the course of the debate no one considers the effect of Clause 2; they consider only the effect of the individual exemption. It is perfectly possible to identify items which will be caught by Clause 34 which would not be caught by other exemptions; for example, communication between chief examiners of examining boards and people drafting exam questions. Such material should not be disclosed. One would have thought that people knowing what was in exam papers before they came out would not be good for the effective conduct of public affairs.

The Bill is designed to promote freedom of information but it must be sensible to define a catch-all by things which reasonable people would regard as preserving; for instance, the free and frank exchange of advice or the effective conduct of public affairs. It sets what is to be on one side of the balance and Clause 2 sets what is to be on the other side. I therefore suggest that noble Lords withdraw their amendment.

11.30 p.m.

Baroness Whitaker: Perhaps I may clarify an aspect of the healing properties of the balancing act of the new Clause 2. Is it that either the public authority or information commissioner, when judging where the balance of public interest lies, will act on the basis that the presumption is against disclosure, unless it is in the public interest to do so?

Most of the amendments, including that to Clause 33(2), argue that the presumption should be in favour of disclosure, unless there is a public interest against it. During our debate on Clause 33, the noble and learned Lord said that there was not much between us on this point and why, therefore, not have it "our" way: that the presumption is against disclosure, unless it is in the public interest, rather than in favour of disclosure, unless there is a public interest. Have I understood the balancing act correctly?

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Lord Falconer of Thoroton: The way it works is to ask whether it is within an exemption. If it is, the public authority asks itself whether, in the circumstances of the case, the public interest in disclosing the fact outweighs the public interest in maintaining the exemption. As I said to the noble Lord, Lord Goodhart, that means that one must see which is higher in the scale. If they are equal, as I made clear to the Committee on the previous occasion, one does not disclose. That is how it works.


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