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Lord Borrie: My Lords, I was going to intervene in my noble friend's speech because I had difficulty in ascertaining that the distinction which he suggested was entirely clear between serious criminal offences and matters relating to health, safety and the environment. I am not sure that I understood him. That distinction is not as clear to me as it obviously appeared to him. Some serious crimes do involve health and safety and, as is well known, the Government are seriously considering--they issued a consultation paper on the subject--extending the law and introducing something called "corporate manslaughter" to cover such serious crimes.
My noble friend Lord Brennan also indicated a distinction between subsections (1) and (2). To my mind, subsection (1), which is not at present subject to any prejudice test or to the limitation about information from confidential sources, nonetheless is limited because it is concerned with investigations conducted with a view to it being ascertained whether somebody should be charged with an offence or whether someone is guilty; whereas the exemption provided in subsection (2), which is concerned with those serious matters to which my noble and learned friend Lord Archer of Sandwell referred such as an inquiry into a railway accident, applies only, as I now more clearly understand because of the intervention of
I admit that I may have misunderstood the entire purport of my noble friend's argument. But because of the distinction between the purposes of subsections (1) and (2), the exemption is not as broad and sweeping as has been suggested.
Lord Goodhart: My Lords, I should like to put a point forward in response to the noble Lord, Lord Brennan. He argued the case for Amendment No. 36 extremely powerfully and cogently. But the question with which I am concerned--a point which perhaps the noble and learned Lord, Lord Falconer, may be reluctant to put but which I am not--is this. I do not believe that, particularly as a result of our amendment to Clause 2, there is now any significant difference between the public interest test under Clause 2 and the prejudice test which appears in this amendment and in a number of the other clauses in the Bill.
One must go back and look at the origins of the Bill to see why that is. If one looks at the draft Bill as first produced, which was in an extremely unsatisfactory form, there was a significant difference between the prejudice test and the interest test. If the prejudice test was not satisfied, there was clearly a right to disclosure. On the other hand, where there was no prejudice test but merely an interest test, disclosure was only made if the public authority took a decision that it should be disclosed and the information commissioner had jurisdiction only on a judicial review basis.
That is clearly no longer the case. Now we have a situation where the information commissioner can substitute her own discretion for that of the public authority if she disagrees with it in applying the public interest test and, as a result of the amendment accepted to Clause 2, the public interest test is satisfied unless at least some degree of prejudice is shown. If there is no prejudice, there is nothing to balance the public interest in disclosure. We feel therefore--this is why we did not press for an amendment to Clause 29--that the position for which the noble Lord, Lord Brennan, is pressing is already in being. Clause 29 is not subject to an absolute exemption and therefore the public interest test applies.
Clearly, there is a public interest test in not disclosing the identity of whistle-blowers or "grasses", but, equally, it seems that where there is no such argument the information must be disclosed. While the amendment proposed by the noble Lord, Lord Brennan, is in many ways admirable, we do not believe that it adds anything of real significance to what already exists.
We agree in principle with many of the points made by the noble Lord, Lord Brennan, and we believe that he has a scheme which delivers what he has outlined. Clause 29(1), first, provides an exemption in respect of material held by an authority which is investigating whether a criminal offence has occurred. Secondly, it provides an exemption in respect of an authority which is conducting an investigation that might lead to a criminal prosecution, even though the purpose of the investigation may be broader. Thirdly, it covers a public authority which is in the course of investigating existing criminal proceedings.
The purpose of the exemption, with which most people would agree, is that witnesses and people under investigation should not feel inhibited in relation to the material they provide. They should not feel that in addition to the risk of having to give evidence in court there may be an additional risk in relation to trial by press or whatever.
However, Clause 29(1) is subject to Clause 2, the public interest test. If an authority comes within any of the subsections of Clause 29, which is not to disclose under Clause 2, as I have said and as a result of amendments advanced by the Liberal Democrats, there must be a good reason for not disclosing. The noble Lord, Lord Brennan, rightly identified the health-and-safety-at-work-type situation where, for example, the body was not necessarily considering prosecution but might prosecute if it found something. It would therefore be covered by Clause 29 and would receive information about standards of care and safety in every case.
Jenny Bacon, balancing the public interest and disclosure in Clause 2 against any harm that may be done, is perfectly entitled under the provisions of the Bill as it is presently drafted to say that the public interest is plainly in favour of disclosure. But, as a result of the amendments tabled by the Liberal Democrats, it goes further than that. There must be a good reason for Jenny Bacon not to disclose the information. That good reason must be, for example, prejudicing an existing prosecution; deterring witnesses; or making it harder for them to obtain information subsequently in relation to investigations of important matters. But the Bill as drafted deals with the point made by the noble Lord, Lord Borrie, that--
Lord Brennan: My Lords, my noble and learned friend doing the best he could and looking this way, I was gratified to hear what he said. However, bearing in mind that we lawyers have been debating this arcane construction for the past 10 or 15 minutes, does he
Lord Falconer of Thoroton: I entirely agree with that, but I do not believe there is any doubt that that is what the Bill means. The question that arises is whether Clause 2, as amended in the way indicated by the noble Lord, Lord Goodhart, with the result that the burden is on the public authority to prove that there should not be disclosure, is materially adequate to achieve the end that my noble friend identified; namely, to ensure that in relation to health and safety and environmental matters the material emerges unless there is a good reason why it should not. We believe that that is the effect of the Bill as a result of the Liberal Democrats' amendments. I do not believe that my noble friend Lord Brennan and I are far apart, or that an amendment of the kind proposed by my noble and learned friend Lord Archer is now necessary.
The first part of the amendment tabled by my noble and learned friend Lord Archer introduces a prejudice test. I believe that the objectives are met in the structure that we have put forward. The second part of the amendment bites only if there is a prejudiced-based test in the clause. As I have outlined, I do not believe that that is either desirable or necessary.
I deal briefly with the point which arises on Clause 29(2); namely, the situation in which there is an informer. The subsection provides as much protection as possible for people who give information confidentially. The informer protection under Clause 29(2) goes wider than criminal matters and covers other forms of investigation. We believe that such protection is sensible where other kinds of investigation are being dealt with. It is very important to distinguish the Clause 29(1) situation dealt with by my noble friend Lord Brennan from the Clause 29(2) situation which focuses entirely on informers. I earnestly suggest to noble Lords that they consider what I have said. I am not sure that our basic objectives are all that different. I believe that as the Bill now stands, particularly having regard to the amendments tabled by the Liberal Democrats, broadly we have achieved the objectives.
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