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Lord Lester of Herne Hill: My Lords, I apologise to the House for the fact that, for reasons given by the Select Committee on Science and Technology, air travel and health, I shall be even more difficult to listen to than normal. If at some point I choke, the House will realise that that is not on argument, but for other reasons!

I should like to try to explain, for the last time I am sure, why I believe that the Bill as it stands now provides a proper constitutional and legal framework for balancing the competing public interests. My starting-point is Article 10 of the European Convention on Human Rights, which guarantees the right to free speech, subject to necessary exceptions.

Article 10 does not segment information and ideas into little categories. What it does is to treat all information and ideas as being the subject matter of the right to freedom of communication and the receipt of information and ideas. It then subjects that right to necessary exceptions. Those exceptions are scrutinised carefully as exceptions to a fundamental right, using the well-known principles of proportionality.

The other relevant convention right in Article 8 is to personal privacy, which is one of the exceptions that has to be balanced against free speech. Again, it does not seek to segment the subject; it balances these two fundamental rights using proportionality. So if we had no freedom of information Bill but simply the European Convention on Human Rights as our framework, the information commissioner/the Data Protection Commissioner, being the same person, would be balancing free speech on the one hand covering information and ideas against personal privacy on the other.

But the great weakness of Article 10 as a touchstone is that it has not been interpreted by the European Court of Human Rights yet as giving a general right of access to official information. So, although it applies to the balance between free speech and a fair trial, free

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speech and copyright, or free speech and official secrecy, it does not guarantee a positive right of the public to government information.

One of the most important things that we have achieved in this House in relation to the Bill is that we have repaired the weakness in Article 10, effectively by writing in to Article 10 a right of public access to information and ideas--not subject to particular categories, but subject only to necessary exceptions. There are two kinds of exceptions: those that are absolute, where there is no balancing, and those that are qualified; for example, those that we are considering at present under Clause 35, which are not absolute but are subject to the public interest test.

It will not, ultimately, be for the Minister, for myself, for the noble and learned Lord, Lord Archer of Sandwell, or, indeed, for the Campaign for Freedom of Information to decide what Clause 2 means: it will be a matter for the information commissioner and, in the end, for the courts. I find it inconceivable that the information commissioner and the courts will apply a different standard to the freedom of information legislation from that to be applied to the Data Protection Act, which is the other side of the coin. It is possible that the Minister will say, as the Home Office will probably require him to say, that he does not necessarily accept everything that I say--I understand why he will say that. Thank heavens it will not be left to him, the Home Office or me to decide the matter. It will be a question for the judges to decide.

I find it inconceivable that the proportionality principle will not apply. There is no way in which that test is other than a harm test--a substantial harm or substantial prejudice test. What are the information commissioner and the courts doing when they weigh the right of access to government information against necessary exceptions? They are weighing whether there is a sufficiently substantial prejudice or harm to another facet of the public interest to justify, on an objective basis, curtailing the right of public access to information.

The noble Baroness, Lady Whitaker, and the noble Lord, Lord Lucas, both of whom deserve our gratitude for raising such issues in these amendments, are seeking to carve out as specially not capable of being qualified and balanced, information or analysis of particular kinds. I have great sympathy with what they seek to do. In the kind of cases covered by these amendments, I have no doubt that the Government would have a particularly hard time in justifying the withholding of the information for the reasons that they have given--and which I am sure other Members of the House will give--especially in the scientific area where there will be an overwhelmingly strong case in favour of disclosure.

In answer to the noble and learned Lord, Lord Archer of Sandwell, I also have no doubt that the Government would have an extremely hard time justifying the non-disclosure of whole categories of information on a hypothetical future basis, just as we found in the courts in the field of public interest

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immunity when what were called "class claims" were made. In the end, the courts said, "The game is up. You can't simply have very broad categories of information whose disclosure is completely and absolutely immune from disclosure in the circumstances of a particular case".

I apologise to the House for having taken so long with my remarks. As for some of those who have been strongly critical of those of us who support the general shape of the Bill as it now appears before us, I really believe that they continue not to understand that the terms of engagement are radically altered. The Home Office will deny that that is so; it will say that these changes are minimal. The Home Office will instruct its counsel in particular cases to argue the contrary, as is its right. However, it will be contrary to the whole of the decided case law of the Court of Appeal and of the House of Lords in a whole string of recent cases if those courts do not adopt the liberal principles that I believe we have succeeded in writing into the Bill.

As to the merits of the particular amendments, one awaits the Minister's response before forming a judgment. I believe that the object of the amendments would in fact be achieved in the way in which the issues are hammered out on the anvil of adjudication, if necessary. I very much hope that the Minister and his colleagues will have had that conversion, as will their officials, to the new culture that will make such disputes much rarer than would otherwise be the case.

Lord Lucas: My Lords, does the noble Lord agree that it was his amendment that placed subsection (4) in the Bill and that all my amendment seeks to do is to change, in a small way, the scope and emphasis of that amendment? I do not see that that qualifies for all the criticisms that the noble Lord has just made of me.

Lord Lester of Herne Hill: My Lords, I agree. I have not criticised the amendments; indeed, I hope that I made that plain. I sought to place both amendments into a context and to repeat the argument that my noble friend Lord Goodhart put forward on the previous occasion; namely, that the changing of a constitutional framework transforms this into a Freedom of Information Bill of which we should all be proud.

As I shall not be speaking again, perhaps I may also add my thanks to the noble and learned Lord, Lord Falconer, and his colleagues for having been open-minded enough to accept these changes.

3.45 p.m.

Lord Winston: My Lords, I rise tentatively to support my noble friend's amendment. Perhaps I may ask for a little clarification from my noble and learned friend the Minister. The noble Lord, Lord Lucas, has raised quite an important issue. Certainly to publish part, but not all, of a scientific paper can be very seriously misleading. There is an issue here, especially as regards scientists, about not publishing the discussion on data that is generated during scientific investigation. The best way for me to illustrate the

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dangers involved is to put forward an argument relating to a particular case that happened a few years ago.

Noble Lords will remember the publication on Dolly the sheep regarding the cloning of this animal in Scotland. Because the paper in which that information was published did not allow for discussion, the consequence was extraordinary and adverse publicity for what was a very important scientific achievement--publicity that has clouded a whole area of reproduction and developmental medicine. Had such discussion been included, it would have been very clear from the scientists' views based on their best evidence that the cloning of a human being--that is to say, reproductive cloning--would have been quite impossible. If the Government do not publish the whole data and the intention is to fillet papers, it seems to me that there may be a serious issue here that I hope my noble and learned friend can address in his response.

My other concern relates to the fact that much scientific research is carried out on the basis of funding that usually comes from one of our research councils, such as the Medical Research Council, or one of the other funding councils. It is often linked--it may or may not be through direct government funding--with other independent peer review funding because most scientists work with more than one single budget. Such grants are given as part of the public purse, not least because there is a public interest in devolving these grants to the individual scientist. Therefore, there is a serious question about withholding that information, except in the most extreme circumstances. It seems to me that that would clearly not be within the spirit of this legislation.

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