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The Earl of Northesk: I am grateful for the explanation of the noble and learned Lord. I hear what he says. With the customary reservations, I am content to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 207 and 208 not moved.]

Clause 38 agreed to.

Clause 39 [Information provided in confidence]:

Lord Goodhart moved Amendment No. 209:

("(aa) before obtaining it the authority, in accordance with subsection (1A), gave notice in writing to the person from which it was obtained, that it was willing to receive it in confidence,").

The noble Lord said: In speaking to the amendment, I shall speak also to Amendment No. 211, standing in my name and in the name of my noble friend Lord Lester of Herne Hill. These amendments are amendments of some importance. What we are concerned with here, and what we wish by our amendments to try to rule out, is in the first place, and perhaps most importantly, what I might call collusive confidentiality; namely, where information is provided from a public authority in confidence, not because there is a genuine need for confidentiality but because it suits both the supplier of the information and the public authority to treat that information as confidential and therefore prevent it from getting into the public domain.

We are also concerned about what I might call unnecessary confidentiality. That is confidentiality which is not collusive, but which is allowed by the public authority simply on the grounds that, for example, that is the way things always have been done. That information has in the past been accepted on a confidential basis and the public authority has not considered, in the light of the Bill when it becomes an Act, whether that confidentiality is really necessary.

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One of the problems is that Clause 39 is one of those absolute exemptions. It is therefore not possible to rely on any balancing exercise under Clause 2 in order to extract that information from the public authority that holds it and puts it into the public domain. Therefore, confidentiality has to be looked at with particular care.

The draft code under Clause 44 gives some fairly useful guidance about contractual terms requiring confidentiality. Paragraph 24 states:

    "When entering into contracts public authorities should refuse to include contractual terms which purport to restrict the disclosure of information held by the authority and relating to the contract beyond the restrictions permitted by the Act. In particular, when entering into contracts, as when receiving information from third parties more generally, public authorities should not agree to hold information 'in confidence' which is not in fact confidential in nature".

That is expanded on in paragraphs 25 and 26. Paragraph 26 states:

    "Any acceptance of such confidentiality provisions must be for good reasons and capable of being justified to the Commissioner".

So far as it goes, that is fairly good. But the code says very little about information which is supplied on a non-contractual basis. There is the one sentence I have already read in paragraph 24 which states:

    "In particular, when entering into contracts, as when receiving information from third parties more generally, public authorities should not agree to hold information 'in confidence'."

But that is in a paragraph which deals substantially with contractual terms. It is under a cross-heading, "Freedom of Information and Public Sector Contracts". That is not in any way marked up and brought to the attention of a public authority. Certainly, the code needs to be strengthened considerably so that there is a separate paragraph under a separate or changed cross-heading which draws the attention of a public authority to the importance of excluding unnecessary confidentiality, not only in cases of contracts but outside contracts altogether. That is where the possibility of abuse exists in a non-contractual situation. Therefore, the situation could be improved by enlarging the guidance on non-contractual confidentiality--making it much plainer, stronger and clearer. However, the code is not itself law. In a case that is taken to judicial review, it may have some relevance in deciding whether a public authority has acted properly, but it is not directly enforceable. The exclusion of unnecessary confidentiality should be dealt with on the face of the Bill. Our amendments would require a public authority to give notice in writing to a potential supplier of information that it was willing to receive it in confidence. The supplier of the information would have to say, "We want you to take this information in confidence". The public authority would then have to consider whether it was willing to receive it in confidence; and it could not do so, under our Amendment No. 211, unless it either required that information in order to discharge its functions properly or it believed on reasonable grounds that the information would not be supplied to it unless it gave that notice.

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We believe that our amendments would cover what we see as a serious gap in the Bill which, as it now stands, is not nearly strong enough in preventing collusive or unnecessary confidentiality blocking access to information that ought properly to be made public. I beg to move.

Lord Lucas: I have a number of amendments in this group. I shall leave it to the Minister to reply to them. Their meaning is fairly straightforward. If he is able to satisfy me that they are not required, the Committee will be spared my explanation of why I think they are required, which will then have been rendered unnecessary.

Lord Archer of Sandwell: I am grateful to the noble Lord for giving way. I appreciate that my noble and learned friend cannot win. I lectured him in a previous debate for replying to arguments before he had heard them.

Lord Lucas: Unbeknown to the noble and learned Lord, Lord Archer, the noble and learned Lord, Lord Falconer, has already heard my arguments on these matters.

Perhaps I may raise one other subject in passing. At an earlier stage we discussed the way in which Clause 39 is an absolute exemption. It was then apparent that the Government wished not to have the public interest test that we have in the Bill but to have the rather weaker one of the law of confidence applying in this matter. That would not allow an applicant access to the information commissioner in relation to that determination of public interest. He would have to go expensively to the courts. I do not find that particularly comforting.

I should be grateful if the noble and learned Lord could at least enlighten me on the meaning of the word "actionable" in Clause 39(1)(b). I am not clear at what point a breach of confidence is "actionable". Does it mean that I have the ability to go to a lawyer and have a writ taken out, or does it mean that I have to have good grounds for taking out that writ that would succeed in court? I should be grateful for advice on that point so that I know exactly what scope we are looking at for this exemption.

Lord Williamson of Horton: Throughout this and earlier discussions I have been trying not to be too legalistic but to think a little about the actual operation of the Bill when it becomes an Act. I want to make one comment relating to the amendment tabled by the noble Lord, Lord Lucas. He came back again with the point that in relation to Clause 39 the public authority should consider whether the originator of the information should be asked for permission to release that information. We are talking here about information which passes from one public authority to another. Under the Bill, "public authority" is extremely widely defined. Schedule 1 is a list of public authorities. It includes the Wine Standards Board of the Vintners' Company and other authorities which pass information.

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The practical position is that many documents are classified "In Confidence" at some stage. It is extremely common in the public service to classify documents as "In Confidence". Shortly afterwards, that classification becomes rather ridiculous. Many senior managers in public service spend a good deal of time telling people to go through the documents and strike off "In Confidence" or "Confidential" because it becomes totally irrelevant with the passage of time. I have done it many times in my own life. If the public authority leaves documents as they are and does not consider whether the "In Confidence" is still relevant, we shall have the unnecessary exclusion of information from the public domain.

By one means or another we should ensure that there is proper consideration of whether a classification of "In Confidence" or "Confidential" is relevant at the time a document is requested. In very many cases it will not be relevant. We need to ensure that the classification is properly reviewed.

8.45 p.m.

Lord Norton of Louth: Perhaps I may add a few words in support of Amendment No. 211. It is an important amendment. The clause as drafted works against the intent of the Bill, as argued by the noble and learned Lord the Minister. The Minister has stressed on a number of occasions that he wants the Bill to achieve a culture shift--to move the emphasis from secrecy to openness. The clause militates against that. It constitutes a gift to those who want to circumvent the purpose of the Bill. I shall explain what I mean.

As the noble Lord, Lord Goodhart, said, third parties may not want the material they supply to be made public. Officials in the authority who believe that information is power may not want to reveal that information. The authority thus agrees to receive the information in confidence. It is therefore a closed relationship. Nothing in the Bill permits that closed relationship to be prised open. It may be prised open under common law in exceptional circumstances, but they are exceptional. That is the present position. Nothing in the Bill takes us beyond that. For those officials who want to resist the culture shift favoured by the Minister--the very people the Minister wants to get at when he talks about the culture shift--the clause is something of a godsend. If the Minister wants to achieve a culture change, I urge him to give serious consideration to the amendment moved by the noble Lord, Lord Goodhart.

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