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Lord Mackay of Ardbrecknish: My Lords, these three amendments deal with the important issue of statistical and factual information which, from my recollection, the Government have in barrow-loads, and how much of that can be made available to the public--and, more importantly, when it can be made available.

I was interested to hear that my noble friend Lord Lucas received an answer by letter regarding the definition of statistics. I was even more interested to hear that it was a two-page letter of which "on balance"--which is the noble and learned Lord's usual explanation--he decided to release one page but "on balance" decided not to release the other.

Lord Falconer of Thoroton: My Lords, I have further news of the attachments. I am told that they were placed in the pigeonhole of the noble Lord, Lord Lucas, at two o'clock this afternoon.

Lord Lucas: No, my Lords, they were not. I collected the mail from my pigeonhole at a quarter-to three.

Lord Mackay of Ardbrecknish: My Lords, I think I should give the noble and learned Lord some advice: he should be careful when crossing swords with my noble friend Lord Lucas on details of that nature.

I hope that my noble friend does not mind if I say that the other two amendments in the group are perhaps more important than his. It is to them that I now turn. The interesting point about Amendment No. 43--with which I have no argument--is that it reinstates a provision that appeared in the Bill, with the addition of the word "particular", which I noted the noble Lord, Lord Lester, was particularly keen to underline. I cannot think that it is a great triumph to ask the Government to restore to the Bill a reference which the noble and learned Lord, Lord Falconer, told us in Committee on 17th October had been deleted in error. It is not a huge advance to manage to persuade the Government to correct what they admit to be their own errors. That said, those who are interested in the Bill, including myself, see that putting this provision back into the Bill with the inclusion of the word "particular" is an important advance.

However, if the Government will take on board the amendment tabled by the noble Baroness, Lady Whitaker, they will have made a slightly greater advance. The noble Baroness explained her amendment perfectly well. I do not need to go over the matter again. If we leave the Bill where it is--even including the amendment tabled by the noble Lord, Lord Lester--most of the information whose suppression featured in the BSE crisis would still have been suppressed. It would not have been made public

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and people would not have been able to judge the science. I refer not only to the public but to other professionals who might have helped to identify the problem and bring information in to MAFF which might have helped its side to see the scale and nature of the problem confronting it.

It seems to me that the noble Baroness's amendment is a superior one. It is based on the exemptions in the Government of Ireland's Freedom of Information Act 1997, which, as she said, has not brought the world to an end on the other side of the Irish Sea. Ironically--if I may say this to noble Lords on the Liberal Democrat Benches--it would bring the Bill into line with John Major's open government code. I should have thought that they would be attracted to that, as they want to do better.

Lord Falconer of Thoroton: My Lords, I am sorry for interrupting the noble Lord. To what extent did the code of practice produce the disclosure of information referred to in the BSE inquiry by the noble and learned Lord, Lord Phillips?

Lord Mackay of Ardbrecknish: My Lords, it is dates that will be important in examining that issue--the timing of the code, how these matters came together and the information that ought to have been made public. I am not advocating that we carry on with the code; I am advocating that we have legislation. But if we have legislation, it should at least be as good as, if not better than, the open government code, where there was an exemption applying only to internal discussion and advice.

As I said, the amendment in the name of the noble Baroness is a superior one. Perhaps I can tempt the Minister to think about it as a balancing act. He would please his noble friends; he would please the noble Lord who has spoken from the Cross Benches; he would please the Conservatives. He might even please the Liberal Democrats by accepting the amendment. I do not think he would displease them, although they would prefer their own amendment. In this case, perhaps the "balance" of advantage might be that the noble and learned Lord pleases his noble friends and noble Lords on the Cross Benches. I am not sure that pleasing me is something that the noble and learned Lord worries about every day, but it would be sensible to signal to many of his noble friends who are concerned that the Bill does not go far enough that he is occasionally prepared to listen to them.

Lord Falconer of Thoroton: My Lords, all three amendments in this group deal with the issue of factual information underlying policy decisions.

The proposal of the noble Lord, Lord Lucas, says that,

    "particular weight shall be given to the desirability of making factual information freely available to the public".

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The noble Baroness, Lady Whitaker, and those who support her amendment say that factual or statistical information should in effect not be exempt,

    "unless its disclosure would be contrary to the public interest by reason of the fact that the applicant would thereby become aware of a significant [policy] decision",

yet to be made. The noble Lords, Lord McNally, Lord Goodhart and Lord Lester, say that, when exercising discretion under Clause 2,

    "regard shall be had to the particular public interest",

in disclosing the informed background to decision-taking or information "intended to be used" before a decision is made. All three amendments deal with the same issue. We are all concerned to try to reach the same result.

The Government support Amendment No. 43. It reflects the provision that was already in the Bill but goes further because of its reference to the "particular public interest" in the disclosure of factual information.

The result of including Amendment No. 43, along with the amendment to Clause 2, which in effect shifts the burden of proof, is that factual information has to be disclosed unless there is a good reason not to do so. It is possible to envisage occasions--which will be very rare--when such factual information might not be disclosed. An example is where a government department decides to sell off an asset; it has advice as to what the asset is worth; it is going to negotiate for the sale of the asset; the policy decision is taken; it would be wrong to disclose advice in relation to the value of the asset. I should have thought that anyone would agree with that. That situation would not be covered by Amendment No. 42; it would be covered by Amendment No. 43. It would also be covered by Amendment No. 6; however, I believe that Amendment No. 43 is more appropriate. We believe that Amendment No. 43 should be supported. It achieves that which all sides of the House wanted to achieve in the course of the Committee stage of the Bill a few weeks ago.

The important consideration is not as the noble Lord, Lord Mackay of Ardbrecknish, suggests, "Who is one pleasing?". It is what best promotes the freedom of information--for example, on BSE, on signals passed at danger, or, in relation to rail safety, on the number of tracks that were defective. Although it is not possible to give a cast iron guarantee, we believe that the amendments now in place provide a clear basis for disclosure on all of those matters. That was not achieved by the Conservatives' code of practice, particularly in relation to the BSE inquiry. So when the time comes, the Government will support Amendment No. 43. I invite the noble Lord, Lord Lucas, to withdraw his Amendment No. 6, and I invite the noble Baroness, Lady Whitaker, not to move her Amendment No. 42.

Lord Lucas: My Lords, before the noble and learned Lord sits down, will he answer my question about the definition of "factual"?

Lord Falconer of Thoroton: My Lords, I have missed a number of questions raised by the noble Lord. He

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asked why the provision does not apply to Clause 35 as well as to Clause 34. This factual issue has always been debated in the context of policy decisions. That is why it is being dealt with in relation to Clause 34 rather than Clause 35. The noble Lord asked: what is a fact and what is a statistic? I have always said in the course of our debates on freedom of information that it is difficult to draw the line between a fact, a statistic and advice. That is why, when looking at Clause 34, we have never sought to define the exemption by reference to any definition that requires a clear line in relation to it. That is why it has always been dealt with under the discretionary provisions in relation to Clause 2.

I should be loath to attempt a definition of "factual" on my feet. I shall write to the noble Lord. But again it seems to me that such a definition will never be sufficiently clear cut as to form the firm basis of an exemption.

4.30 p.m.

Lord Lucas: My Lords, I am grateful to the noble and learned Lord for that response. However, my question was: does fact include the analysis of fact? Today we have the recitation of a code, which separates the two as concepts--namely, facts and the analysis of fact. My understanding was that the noble and learned Lord understood "factual information" to include analysis of those facts, as long as that did not move on into speculation or recommendation. Does the noble and learned Lord agree with my understanding? Again, I shall obviously be happy to receive a response by letter, but it is crucial that we understand the meaning of that phrase before Third Reading.

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