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Lord Goodhart: My Lords, I rise briefly because I remember that in Committee, the noble and learned Lord indicated that the Government were considering giving further thought to amending the code of conduct under what is now Clause 45 to ensure that public authorities did not accept information on a confidential basis unless that was strictly necessary.
Lord Mackay of Ardbrecknish: My Lords, I support the amendment moved by my noble friend Lord Lucas. In many cases, as my noble friend said, a legally binding obligation of confidence would arise merely because a third party and an authority agreed between themselves that a communication would be in confidence. That would make it remarkably easy for the two parties to ensure that their exchanges were exempt from any access, perhaps because they knew they would attract criticism or public interest, more than they would like to see.
So it seems to me that information subject to an obligation of confidentiality should be subject to a stronger public interest test than, as far as I understand it as a layman, would be the case under the common law of confidence. In Standing Committee in the other place, Mr Mike O'Brien, the Home Office Minister, on 1st February at col. 362, said:
Lord Falconer of Thoroton: My Lords, I have a few remarks to make at the outset. First, the word "actionable" does not mean arguable, as the friends of the noble Lord, Lord Lucas, appeared to have implied to him. It means something that would be upheld by the courts; for example, an action that is taken and won. Plainly, it would not be enough to say, "I have an
Secondly, on the code of practice, I said what the noble Lord has said. We shall return with an amended code of practice aimed at dealing with the area of accepting information in confidence only if it is necessary to obtain that information and it is appropriate so to do.
Thirdly, on the point raised by the noble Lord, Lord Mackay of Ardbrecknish, over the years the courts have been acutely aware that simply describing something as "confidential" is not of itself sufficient to show that there is an actionable breach of confidence for the reason that the noble Lord pointed out. Simply to describe something as "confidential" as a means of keeping it from people may not mean that in truth it is confidential. The court would look at the reality rather than at the way in which the parties describe information.
Fourthly, the noble Lord, Lord Lucas, said in Committee and again today, supported by the noble Lord, Lord Mackay of Ardbrecknish, that the public interest test in the field is different from the public interest test applied by the courts in relation to breaches of confidence. That is absolutely correct. The point made by the noble Lord, Lord Lucas, is that there is a narrower public interest basis on which one overrides confidence at law than there would be under Clause 2. As the noble Lord said on the previous occasion--this is not the only test--words like "iniquity" are used to describe it.
Broadly, I believe that we agree on the basic parameters of this debate. Knowing all that, the Government take the view that public authorities should not be placed between a rock and a hard place. They should not have to choose between failing in their statutory duties under the legislation currently before your Lordships' House and leaving themselves open to an action at common law for a breach of confidence which they owe to a third party. That is what could happen as a result of the amendment of the noble Lord, Lord Lucas.
The amendment would mean that the public interest test would be extended to cover information, the disclosure of which would amount to a breach of confidence by the public authority. Hence, where the public interest in maintaining the exemption in Clause 40 was equal to, or outweighed by, the public interest in disclosing the information, no matter how slight the margin, the information would have to be disclosed, notwithstanding the fact that it was being held in confidence. That would be to amend by statute the common law of confidence, albeit in an indirect and uncertain way. We do not accept that that is an appropriate course.
The law of confidence already provides that where the public interest requires disclosure of information, albeit, as I accept, on a more narrow basis, no confidence can arise. The fact that it is more narrow is
The effect of the amendment would be to apply a wider public interest test to information which is properly regarded as being confidential by the common law. Inevitably, that would lead to third parties being less trusting of public authorities and less keen to provide them with information which they would want to be held in confidence. We believe that that could have an adverse effect on the ability of public authorities to carry out their functions satisfactorily.
Because of the point raised by the noble Lord, Lord Goodhart, in Committee, to which I explicitly accede in the remarks that I have made this evening, we recognise that the code of practice must be so constructed that information is genuinely obtained in confidence only when it is necessary to obtain the information and that that is appropriate.
On the BSE point, which seems to be at the heart of many of these discussions, the code of practice, to which the noble Lord, Lord Mackay of Ardbrecknish, attaches such significance, came into force in 1994. Before the Statement on the NHS, he said in response to my question that a matter of timing may have led to the code of practice not producing any information. Not one document in relation to the BSE crisis came out under the code of practice.
Plainly there is a clear public interest, as the noble Lord, Lord Lucas, has said, in knowing the facts about BSE. I do not believe for one moment that if this Bill had been in force in its present form, or maybe as amended later on Report, the Government would have been able to sustain an argument that the information should have been withheld.
Our intention and purpose, which has been made clear by my right honourable friend the Minister of Agriculture, Fisheries and Food in another place, is that the culture of secrecy which has led to the suppression of material in relation to the BSE crisis, despite the existence of the code of practice, should no longer apply. There should be no inhibition about, for example, publishing research carried out within government that may relate to the BSE crisis.
I believe that this Bill makes the difference in its specific terms and provides no proper basis for non-disclosure of those facts. I believe that the constant reference to the BSE crisis is correct and proper. This Bill marks the real difference between what went before and what will happen once the Bill takes effect.
That was a slight digression, but from a number of discussions that I have had with the noble Lord, Lord Lucas, both privately and publicly, on how the government of the day reacted to the BSE crisis, I know that that is a benchmark against which he measures this particular Bill. If one measures the Bill against that benchmark, I believe that it stands excellent examination.
I have set out our reasons for not accepting the amendment to delete paragraph (g) of Clause 2(3). I appreciate that the noble Lord may not agree with the reasoning, but the reasoning is clear. On the bigger issue of whether it will provide adequate disclosure in respect of BSE, I believe that the answer is "yes".
The Countess of Mar: My Lords, the noble Lord, Lord Lucas, mentioned medicines and veterinary medicines. The Minister is aware of my interest in organophosphates. Can he tell me whether "commercial in confidence" information given to the licensing authority is covered by this clause? Occasionally chemicals are used that affect public health and, when questions are asked, often the answer is that the information cannot be given because it is "commercial in confidence".
Lord Lucas: My Lords, I can answer the noble Countess, Lady Mar. That is exactly the sort of information that is covered by this clause. It is also exactly the kind of problem that we ran into with BSE in relation to information about the enforcement of abattoir controls and how releasable that was because some of it had been obtained in confidence. The way in which the Government receive some of their information creates a real problem.
We understand the argument, but I do not believe that it is reasonable for the Government to take the view that civil servants should not to be asked to take decisions about such matters. Often in life we are faced with two rather uncomfortable alternatives and we have to make choices. It is important that there is a public interest test that is understood by everybody. It is not a matter of narrow balancing, exceeding one way or the other, and then landing ourselves with an enormous bill for breach of confidence.
As there is a possibility of action in relation to a breach of confidence, the public interest would have to be substantial in order to outweigh that. If my amendment were accepted, a point of minor public interest would not cause that kind of trouble. There would have to be substantial public interest to outweigh the possibility of damages being awarded in the courts against the agreed lower public interest test that would there be applied.
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