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Lord Lucas: My Lords, Amendment No. 4 in this group stands in my name. The amendment seeks to write into the Freedom of Information Bill words which are contained in the code but which the Government have omitted from the Bill. There is a lot to be said for doing our best to make sure that the Bill is at least as good as the code. This is one respect out of several, I am sad to say, where the Bill falls short of what is contained in the current code.

The noble and learned Lord, Lord Falconer, has been kind enough to write to me twice on this subject. In his latest letter he has clearly set out how he sees the difference between fact and analysis. I hope that the noble and learned Lord will not object if I quote from the letter.

Lord Falconer of Thoroton: No.

Lord Lucas: My Lords, the letter states:



    "At the other extreme, the analysis of facts will require a public authority to determine or attribute a weight to the whole, or one or more component parts, to compare and contrast the merit of one part relative to another or to speculate on assumptions which may underlie or be evidenced by any statistical comparison. In such a case, it seems to me that the 'analysis' becomes much less dispassionate and is closer to opinion than fact".

I read that to say that if the noble and learned Lord were presented with a scientific paper, he would fillet it. He would leave in the tables, but anything which constituted the application of a lifetime's accumulated expertise to those facts would be eliminated. It would

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be opinion and therefore would not be freely available to the public. That is a terrible state of affairs. It would certainly have caused a great deal of difficulty if this had been the practice when we were faced with BSE and we were hoping that this new Bill would allow us to avoid its main consequences.

It is quite clear that the wording of the code encompasses the idea that the analysis of factual information by someone who is equipped to do so, rather than by someone providing mere speculation, is an integral part of that information being made understandable to the general public. If we have only a table of the results of some medical experiment and we are asked, as members of the public, to draw conclusions from it, we are set at a great disadvantage. We are deprived of the expertise of researchers, perhaps of the Chief Medical Officer or of someone who understands what is going on. That is not the way in which information should be treated and viewed.

I hope that the noble and learned Lord will reconsider this issue. At an earlier stage he described statistical information by sending me extracts from papers containing statistics. The extracts did indeed contain statistics, but they also contained a good deal of building on those statistics and drawing conclusions from them. Those statistics related to crime in a particular area of Britain and were being put forward to support a case for CCTV cameras in the area. Statistics are fine, but unless the arguments about what has been achieved elsewhere with CCTV cameras, the relevant statistics in other parts of the country and the comparisons and conclusions to be drawn from that are set out, you are left with a meaningless collection of data. People are then at a great disadvantage in understanding what the Government are at and in trying to reach the right conclusions, which is one of the underlying purposes of the legislation--at least, I believe it to be one of the underlying purposes of this legislation.

I hope that even at this late stage the noble and learned Lord will reconsider and accept either the amendment of the noble Baroness, Lady Whitaker, which is admirably succinct, clear and limited in its objectives, or my more general call for this matter to be put back onto the basis which exists in the code at the moment. That basis will not exist unless we make some amendment to this particular aspect of the Bill.

Lord Archer of Sandwell: My Lords, my noble friend Lady Whitaker and the noble Lord, Lord Lucas, have focused our minds on the dangers of exempting from the right to disclosure a wide category of information without differentiating between the various kinds of information and the various situations in which the question may arise. Information relating to,


    "the formulation or development of government policy"--

the words of the Bill--may concern a problem which falls to be addressed, what was said about it by someone, who provided the information, what statistics exist or how they may be analysed. The prejudice, if any, occasioned from disclosure of those various kinds of information in those various kinds of circumstances will be very different.

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The prejudice arising from disclosing to a totally unsuspecting public the first intimation that there may have been an outbreak of infected beef will be quite different from disclosing whether the number of cases is increasing or decreasing. If it is argued that it does not matter because everything is to be subjected to the balance of the public interest test in Clause 2, I hope that my noble and learned friend and the noble Lord, Lord Goodhart--both of whom have deployed that argument in previous debates--will forgive me if I say that that may require rather careful scrutiny.

Leaving aside the ministerial override in Clause 52--which we will debate later, but which, in any event, dulls the edge of that argument--I believe that it runs together a number of issues which should be considered separately. First, if there is no realistic danger that the disclosure of a particular category or sub-category of information would cause harm, then it ought not be in an exemption at all. The question of harm tests would not then arise and there would be no need for a balancing assessment under Clause 2. If there is a potential danger that its disclosure might cause harm, it should be subjected to a harm test. I do not believe that that is identical to the balancing of public interest in Clause 2.

The argument of the noble Lord, Lord Goodhart, in particular, appears to be--I hope I paraphrase him correctly--that it does not matter whether there is a prejudice test in a specific clause defining an exempted category because, even if the information in question falls within the exemption, the balancing of public interest is identical with the prejudice test. I wonder whether his rather cheerful optimism is justified.

Let us suppose that, in applying the public interest test, the Government were to argue, "We agree that there is no specific harm which would be occasioned by disclosing this particular information, but we believe that there is a public interest in maintaining the integrity of this whole category of information. It would do no harm to disclose the results of the tests conducted on this beef herd by this veterinary surgeon, but it might inhibit vets from passing on to the Government the results of their tests on other occasions".

The public interest test may well exclude from the right to disclosure information the disclosure of which would cause no specific harm because, it may be said, there is a public interest in maintaining the principle. That is not an academic supposition; it is an argument that has been used by Ministers in the course of our debates on the Bill.

3.30 p.m.

Lord Goodhart: My Lords, I am grateful to the noble and learned Lord for giving way. He is right. The public interest test could result in a decision against disclosure on the grounds, not of the consequences immediately following the disclosure of the particular facts of that case, but from the wider harm that might be done, for instance, by making it harder to obtain information in subsequent cases.

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The flaw in the noble and learned Lord's argument is that that point could equally be raised where there is a prejudice test. The prejudice does not have to be absolutely specific to the information the disclosure of which is sought; it could apply also to a wider harm that would be caused consequentially on disclosure of the particular facts of that case.

Lord Archer of Sandwell: My Lords, it might be. If I were drafting the Bill afresh--which, ipso facto, I shall not be allowed to do--I should want to make the distinction between those two tests very much clearer. But the psychology--the way in which someone's mind would work in addressing those two tests--might be very different. I shall argue that it might be too easy to introduce the test about maintaining the integrity of the whole category.

Perhaps I may give two instances where that has been cited by Ministers in the course of debates. Addressing this question in Committee in another place, my honourable friend David Lock, said:


    "It is generally acknowledged that the Government must have time and space to evaluate policy options. That view is shared by all Committee members. The premature disclosure of information in those areas can only hamper, and in some--perhaps even most--instances, prejudice the effective conduct of public affairs. It follows that, for a significant proportion of the information falling into that category, disclosure will never be justifiable, even under a harm test ... certain categories of information will always prejudice the effective conduct of public affairs".--[Official Report, Commons, Standing Committee B; 27/1/00; col. 293.]

On 24th October, my noble and learned friend said that the amendment then under discussion,


    "would mean that the difficult questions, the uncomfortable options and unthinkable scenarios would not be debated as frequently or as clearly. Governance would suffer. That is why a class exemption rather than a harm test is the right way to achieve a balance for good and open government".

He went on to say:


    "Cabinet papers and minutes would always be likely to prejudice the effective conduct of public affairs".--[Official Report, 24/10/00; cols. 282-3.]

Even where there is to be a public interest test, the category exemption is not the same as the harm test. That is a point of view, but it is certainly not the same as arguing that because of Clause 2 we already have a harm test.

It is too easy for a government or a public authority to decide that disclosing information in a particular category is always against the public interest. Some of us believe that the Government should have to undergo the discipline of actually directing their mind to the harm that would result from the disclosure of the particular information in question; or at least, where they seek to exclude by category, that the definition of that category should be subject to careful scrutiny, as my noble friend seeks to bring about.

What is certain is that, for that reason, a balancing of public interest is not a complete substitute for a harm test. That was the argument of my noble and learned friend himself. The object of the amendment is to compel Ministers and public authorities to focus their minds on the question of whether disclosure would occasion a specific form of harm. To argue that

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that exercise is superfluous because there is always a balancing of public interest at the end of the course is to circumvent the whole scheme of the Bill. If that were the whole test, we should not have needed to trouble with all the clauses defining the exemptions.

If the Bill is to achieve its objective, a request for information should be considered in three stages: first, does it fall within a category of information which has a potential for causing harm--we should define the category with some care; secondly--and only if it does--is there some specific harm which may be caused in this particular instance; if so, thirdly--and only then--where does the balance of public interest lie? My noble friend's amendment is directed to the first of those questions. It is on that question that the debate should focus.

Perhaps I may seize this opportunity--since it will be my last opportunity in the course of our debates--to thank my noble and learned friend for the care with which he has addressed our arguments throughout and for his unfailing courtesy.


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