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Lord Mackay of Ardbrecknish: My Lords, it is interesting that I have brought the noble Lord to his feet. We have a strong Whip today. These matters are supposed to be confidential, but they never are in your Lordships' House. All noble Lords are aware that there is a strong two-line Whip today. I suppose that when this material appeared in the newspapers earlier in the week most of my noble friends wondered whether it was worth it. Last week we were confident that the Liberal Democrats and ourselves would be on the same side. We shall know what to do next time.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, it is interesting to hear the noble Lord, Lord Mackay of Ardbrecknish, having been part of a government who for 18 years did not introduce any kind of freedom of information Act, move from being a pragmatist to becoming, as it were, a purist in relation to freedom of information. He now wants to support only the most extreme Bill. I think that is a purely opportunistic change in his position and in those noble Lords behind him.
I turn to the amendments in the group. I speak first to Amendments Nos. 2 and 4, tabled by the noble Lords, Lord McNally, Lord Lester and Lord Goodhart. We make it clear, and made it clear in Committee, that what we are interested in seeking to achieve is a change of culture in relation to freedom of information.
Amendments Nos. 2 and 4, and the other amendments in different groups to which the noble Lord, Lord Lester, referred in his remarks, will result in an important and significant shift towards greater openness. They will put beyond doubt the Government's resolve that information must be disclosed except where there is an overriding public interest in keeping specific information confidential. Perhaps I may repeat that: information must be disclosed except where there is an overriding public interest in keeping specific information confidential. The amendments--not just Amendments Nos. 2 and 4 but the wider amendments referred to by the noble Lord, Lord Lester--seek to ensure that disclosure takes place more promptly than would otherwise be the case.
The amendments include placing a duty on the Government to assist applicants in relation to the freedom of information purpose. The one thing that noble Lords agreed on in Committee was that the change in culture was the important thing; to give a message that what was sought was that we should strive to give the information unless there was a good reason not to. One can argue about the details until one is blue in the face; but it is giving that signal that is the important thing.
We believe that the four Liberal Democrat amendments which we have agreed to accept make a significant difference. They significantly contribute to the change in culture. They contribute significantly to ensuring that the public authority must make out the case for non-disclosure before there is non- disclosure. That is why we have agreed to accept them. That is why there is agreement that once those changes are agreed to, or made, this is a Bill that makes a significant change to the culture and this is a Bill that is worth supporting. So we welcome the four amendments I have identified and we shall support them.
I return to Amendments Nos. 2 and 4. These amendments would have the same effect as the noble Lords stated in Committee. Quite apart from making it clear that the position is that there must be disclosure except where there is an overriding public interest in keeping specific information confidential, they also deal with the "tie-breaker" situation, to which the noble Viscount, Lord Colville of Culross, specifically referred. If there is a tie-break, disclosure has to take place. The amendments give a further push to openness; so the Government have concluded that they will support them.
Amendments Nos. 23, 29 and 65 are consequential to Amendments Nos. 2 and 4. We support those as well. Amendments Nos. 3 and 5, which were tabled by the noble Lord, Lord Lucas, are clearly intended to have the same effect as Amendments Nos. 2 and 4. As I have made clear, I accept the principle behind the amendments and I thank the noble Lord for tabling them. However, I believe that Amendments Nos. 2 and 4 better reflect the way the Bill is structured and are technically more compliant. I therefore ask the noble Lord, Lord Lucas, not to press his amendment.
Lord Lucas: My Lords, I merely put my name to amendments tabled by the Liberal Democrats. I thought that they were consequential amendments. At that time, I was merely supporting the amendments of the noble Lord, Lord Goodhart.
Amendments Nos. 26, 27, 63 and 64 are similarly complementary to Amendments Nos. 2 and 4. They clarify the relationship between the provisions in Part II of the Bill, which provide that the duty to confirm or deny does not arise, and Clause 2. They make it clear that the fact that one of the provisions applies does not mean that the duty to confirm or deny is excluded. It is excluded only if the provision is one that confers absolute exemption, or the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the authority holds the information. These amendments are complementary to wording at the beginning of Amendment No. 2. Therefore, the Government support these amendments as well.
The noble Lord, Lord Peston, quite legitimately asked the question: what is the difference in this menu of changes? The noble Lord, Lord Mackay of Ardbrecknish, accurately as ever, identified what the difference is. The amendment of the noble and learned Lord, Lord Archer, contains the word "clearly". That is really the only significant difference. We would oppose the inclusion of the word "clearly" because one could end up in a situation where there was a public interest in not disclosing information. Where the public authority had made out the case for not disclosing, but only by a short head, even though it was by a short head--because it was not clear--one would end up nevertheless having to make disclosure. We think that the better amendments are Amendments Nos. 2 and 4.
Lord Peston: My Lords, I am desperately keen to understand this. My question was even more naii ve than that. I simply was asking the question: do I as an ordinary person get more freedom of information from my noble and learned friend Lord Archer than I do from the noble Lord, Lord Lester? The noble Lord, Lord Lester, chose not to answer my question. But since my noble and learned friend the Minister understands what this is about, I should like to know which product, if I buy it, gives me more freedom of information.
Lord Falconer of Thoroton: My Lords, the appropriate amount of freedom of information comes from Amendments Nos. 2 and 4 which the noble Lords, Lord Lester of Herne Hill and Lord Goodhart, propose. I invite the noble and learned Lord, Lord Archer of Sandwell, to withdraw his amendment. I invite noble Lords to supports Amendments Nos. 2 and 4 and the consequential amendments which come later in the Bill. I ask noble Lords not to move any other amendments in the group.
Lord Archer of Sandwell: My Lords, it would be a pity if the message which went out from this debate were to mislead those who read it. What has happened in the course of this debate has improved the Bill. My noble and learned friend is to be commended on his response.
My noble friend Lord Peston and the noble Lord, Lord Mackay, tried to tempt me into entering into a competition. That was not my purpose. My noble and learned friend on the Front Bench tried to tempt me into racing terminology. That is not something with which I am perhaps as familiar as he. I am content that my noble and learned friend has accepted Amendment No. 2 and the accompanying amendments. They improve the Bill. For that reason, I shall not press my amendment.
That does not necessarily mean that I have adopted a pacifist stance in relation to the whole Bill. We may reach more controversial matters at later stages. I do not propose to enter into controversy at this stage.
It may help if I try to eliminate what appear to be two misunderstandings, although it may be that I am being more than usually thick. In Committee, the noble Viscount, Lord Colville, said, if I understood him correctly, that there is no provision for a tie; that it left the matter in the air with no guidance to the person who has to take the decision. My understanding is that it is much worse than that. It actually means that if there is a tie, the balance is against disclosure.
Viscount Colville of Culross: My Lords, that is exactly what I understood. I thought that was elicited by the noble Baroness, Lady Whitaker, in Committee. It is for that reason that I thought that it was the wrong way round. I am prepared to support whichever of these two amendments gets the general favour of the House.
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