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Lord Mackay of Ardbrecknish: My Lords, I rather fear that the Minister has been both helpful and worrying. He has confirmed the point that I put to him: our openness laws, which we are discussing this evening, would not operate in any decision on whether to comply with a request for information about matters relating to the EU. They would take second place to the EU ones. If the EU ones were of a lesser order, then of course the doors to open government would be closed somewhat. I find that worrying.

I also find it worrying that the Minister seems to believe that our membership of the EU is of the same order as any other international organisation. I do not believe for a moment that it is. No other international organisation has so much control--I do not make that as a negative point--over what happens in this country. I take as examples the agricultural and fishing fields. In this country we can do little without the agreement of the European Union. For good or ill, we are very much bound to the decisions and style of government of the European Union. The relationship is quite different. Our relationship with the other

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member states is also quite different. They have rights in our country and we have rights in their countries which no one else outside the European Union has.

Therefore, I believe that, in our association with the Union itself and with the individual member states, our membership of the European Union is significantly different from our relationships on any other level; for example, with the United Nations, the Commonwealth, and so on. None is so closely involved with the detail of what we in this country would otherwise decide entirely on our own. That is what worries me.

The Minister has been very clear about the proposition but he has made me feel more concerned about it. I fear that many people in certain fields who believe that they will be able to use this Freedom of Information Bill, when it becomes an Act, in order to extract information which is collected on an EU level, including information collected in Britain, will find themselves up against a closed door. I am most concerned about that. It is very worrying.

I accept that my amendment may not be terribly well drafted. I shall withdraw it this evening. However, I may discuss it with people who understand these matters better than I do to see whether we can produce an amendment which is worded more tightly and which will address what I believe could be a worrying loophole in our freedom of information laws. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 [Investigations and proceedings conducted by public authorities]:

8.45 p.m.

Lord Archer of Sandwell moved Amendment No. 36:

    Page 16, line 34, at end insert ("and its disclosure would, or would be likely to, prejudice any such investigation or proceedings.

( ) For the purpose of subsection (1), in considering whether a disclosure would, or would be likely to, prejudice any investigation or proceedings, a public authority shall in particular have regard to whether the disclosure would be likely to deter any witness from making a statement or giving evidence in connection with any such investigation or proceedings.").

The noble and learned Lord said: My Lords, one of the exemptions from the right of the public to be given information relates to information held by a public authority if it is held or if it has been held at any time for the purpose of conducting an investigation to ascertain whether someone should be charged with an offence or whether someone is guilty of an offence or in connection with criminal proceedings or if it is obtained or recorded for the purpose of certain other investigations.

Therefore, the exemption relates to two categories of information. The first is information which may lead to decisions relating to criminal proceedings. The second concerns decisions about informing the public as to a wide spectrum of investigations. Reference is made to the long list of purposes set out in Clause 30(2). It is an interesting list. I take from it at random,

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    "the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise".

The letters "BSE" seem to rise before one's eyes at the very sight of those words. Or,

    "ascertaining a person's fitness or competence in relation to the management of bodies corporate".

Therefore, an investigation into the conduct of a children's home or into the way in which a hospital is being managed seem to be included in the list. Or,

    "the purpose of ascertaining the cause of an accident".

Therefore, railway accidents, accidents relating, for example, to the "Marchioness" or those relating to a nuclear installation are included. Or,

    "the purpose of protecting charities against misconduct".

I do not propose to read out the whole list. However, it is substantial. Your Lordships will have noticed that many of these matters are precisely those on which the public wants and needs information because they most closely concern the public. They relate to inquiries into food contamination, the causes of railway accidents, the falsification of reports on nuclear quality control, the way in which Westminster City Council conducted its affairs, and the manner in which other inquiries have been conducted, such as the way that the police dealt, particularly in the initial stages, with the murder of Stephen Lawrence.

In Committee the noble Lord, Lord Lester, accepted that there may be a case for the exclusion in relation to criminal proceedings. However, linked with the list in Clause 30, it is, as the noble Lord expressed it rather moderately, unattractive. The argument at that time largely concerned the need to protect sources. The noble Lord, Lord Lester, pointed out that there may be occasions when the identity of the source is very much a matter of public interest; for example, did the information come from someone qualified to pronounce on the subject or from someone in a position to know the facts? As I recollect, the noble Lord tabled an amendment which sought to introduce a harm test.

It may be worth adding that a matter about which the public may be concerned is not simply the content of an investigation but the way in which it is conducted. The content of an investigation may depend to a great extent upon the way in which the investigation is carried out.

In reply, my noble and learned friend pointed to the need to protect confidentiality. As he explained, there are occasions when witnesses will come forward only if confidentiality can be guaranteed. I understand that. However, I should have thought that that would be dealt with as a separate matter in Clause 29(2)(b). It is not clear why that problem, which I accept is real, requires such an all-embracing soundproof wall.

The second point which my noble and learned friend raised in reply was that decisions about disclosing--

Lord Goodhart: My Lords, I am most grateful to the noble and learned Lord for giving way. I am becoming a little puzzled by the direction of his argument. It is clear that in Clause 29(2) paragraphs (a) and (b) are

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cumulative; in other words, both conditions must be satisfied before information is exempt information. It seems to me that the gist of the noble and learned Lord's argument is that they are distinct heads under which exemption can be claimed.

Lord Archer of Sandwell: My Lords, as I read Clause 29(2), paragraph (b) is cumulative in relation to sub-paragraph (iv). I do not think that it is cumulative in relation to the others. It may be that my noble and learned friend is able to assist because this is perhaps not the moment to read this and analyse it more carefully.

Lord Falconer of Thoroton: My Lords, in relation to Clause 29(2), information is exempt information only if it satisfies both paragraph (a) and paragraph (b) in subsection (2). I believe that was the point which the noble Lord, Lord Goodhart, was making but I do not know whether that is contrary to the understanding on which the remarks of the my noble and learned friend Lord Archer of Sandwell are being made.

Lord Archer of Sandwell: My Lords, I have now grasped the point. I believe that I probably did misread it in the first instance because I thought that it went only with sub-paragraph (iv). But my noble and learned friend is probably right that it goes with the whole of paragraph (a). If we are dealing with the matters set out in paragraph (a), then I understand the point which the noble Lord makes.

I am grateful for that intervention. I was probably going down the wrong path at that point in the argument.

The second point which my noble and learned friend raised was that decisions about disclosure are subject to the public interest test in Clause 2. I might have been minded to accept that argument--I am not so convinced as the Government are of the need for belt and braces in these matters--but for one thing: the public interest test in Clause 2 is subject to the provisions of Clause 52. So the final judgment on where the public interest lies is not with the commissioner but with the accountable person. As Clause 52(7) impresses on us, an "accountable person" is a Cabinet Minister or a senior Member of the Government or of the Northern Ireland or Welsh Assembly--presumably, those who may have an interest, or at least may be suspected of having an interest, in evading responsibility for the problem which is the subject matter of the inquiry.

Many of us have regarded Clause 52 as a major flaw in the Bill. But since the Government's mind is clearly made up on that matter and rather beyond argument, we have not sought to amend the Bill in that respect. But it seriously dulls the edge of an argument to say that the absence of a harm test does not matter because a decision on disclosure will have to pass the public

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interest test when it will be a public interest test in relation to which the Minister will be judging his own cause:

    "'I'll be judge, I'll be jury', said cunning old Fury;

'I'll try the whole cause, and condemn you to death'".

So my amendment is quite modest. It holds out a hand to the Government in the hope that it still may be possible to build a bridge.

If all this is to protect the confidentiality of witnesses and if the Government are not prepared to confine it to that purpose, would the Government be interested in having as a possible solution an interest in having regard to the problem which is the subject of the inquiry? I beg to move.

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