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Lord Brennan: My Lords, I have asked the forgiveness of my noble friend Lady Whitaker for not being present in the Chamber to hear her opening remarks, because I was unavoidably delayed. I also apologise to the House. My noble friend has given me a broad outline of what she said. I rise to express my support for the amendment, which I believe illustrates an issue of great importance at the close of this freedom of information debate; namely, the way in which the Government will treat the scientific and technical data (and the analysis of it) that they possess.

On 20th July of this year the Chief Scientific Officer to the Government, speaking on behalf of his colleagues, issued a statement in which he declared it to be their wish that their scientific material should be disclosed to the public. There is always the proviso of a very good reason why not, but the general intent was that the public should know. On 26th October the Minister of Agriculture, Fisheries and Food in the other place said on some half dozen occasions that he wanted the public to know about the scientific material on BSE.

I am sure the House will agree that those two approaches were entirely commendable. They were not afflicted by any legal concerns. They were made without having to take into account the existence or purpose of a Freedom of Information Bill and their

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intent was obvious: within reason, what the Government know the public should know. In our society we are reaching a period of great complexity. The example of the BSE tragedy has horrified us all. The public debate on GM crops persists. The debate yet to come on human cell research will produce the most profound concerns for us all. In any of those debates or concerns do we not want the public to know what they ought to know in order to make their own decisions?

From what my noble friend Lord Winston said, I have the impression that what the Chief Scientific Officer said represents the views of science. I am sure scientists feel that they serve the community and that if they give information to the Government it is given for the benefit of the community. In time to come we shall have a triangle of power in these areas: government, commerce and the world of science and medicine. All three are not above us; they serve us. I can think of no cogent reason why scientific and technical data should not be in the public arena.

At the end of this debate it would be appropriate for my noble and learned friend the Minister to reassure the public that this Bill does not constitute some new barrier between them and the Government with regard to information, but is rather a new and effective bridge to ensure that they receive the information. Whatever the Government's view on the amendment, I hope that the Minister will take the opportunity to tell the world outside, "Never mind the Bill; never mind government interest, commercial interest or the amour propre of science, what we know you will know unless there is an extremely convincing reason why you should not".

Lord Mackay of Ardbrecknish: My Lords, this has been an interesting short debate. It is one in which those of us who have struggled with the Bill during its various stages have been involved before; namely, the question of the data, facts and analysis that are presented to government Ministers day after day in order to help them reach decisions. I believe that no one in the committee or the House would wish to see made public the mechanics of how Ministers reach their decisions and the papers that flow between them and their civil servants. Sometimes they are made public to the embarrassment of at least some of the parties concerned. However, it would not help the way government reach their decisions for everyone to know that they might read about the issues before them, the options they had and the way they debated them in the newspapers the next morning. No one has argued to the contrary.

However, we are arguing about much of the background material--sometimes that is vital material--on which the Government make their decisions. The noble Baroness, Lady Whitaker, has done us a favour in coming back yet again with another variation of the amendment to try to make it more acceptable to her noble and learned friend the Minister. I am not sure what the noble and learned Lord will say in response.

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I called the noble Lord, Lord Goodhart, the shadow Minister. Now that the noble Lord, Lord Winston, has appeared in the debate, I shall change that title. We have heard from the surrogate Minister. They come in twins which I gather is one of the problems with fertility treatment. We have heard a definition. I say to the noble Lord, Lord Lester, that I am not entirely satisfied with what he suggested; namely that the courts will decide what the measure means. I prefer Parliament to decide what it means and say what it means, or even the Government to decide what it means and say what it means. Then we would be clear. The people, through Parliament, would make it clear what they want to happen in this regard.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. I thought that under our constitution it was Parliament that made the law and the courts in their independent capacity that interpreted and applied the law. It is not the function of Parliament to interpret the law; it is the function of the courts to do so.

Lord Mackay of Ardbrecknish: My Lords, I shall not try to cross legal swords with the noble Lord. The courts apply the law. They interpret it if they have to, but we ought to make the law crystal clear when we pass it. The less interpretation the courts have to do, the better. I see that the noble Lord assents, so at least we agree on that.

The problem here is the one on which the noble Lords, Lord Winston and Lord Brennan, put their fingers. As someone who a long time ago studied science at a rather lower level than the noble Lord, Lord Winston, I know that scientific data can be almost meaningless, at least to everyone bar a small number of experts. It is the analysis of the data that is hugely important. The analysis of the data is important for Ministers who tend not to read the data but the analysis of the data. Occasionally they will study the data to see whether they can work out whether the analysis is correct. Great scientists do not do that; they read the data and then make the analysis. However, there are few scientists in government. That is perhaps a pity. Therefore the analysis is of vital importance. The amendment of the noble Baroness, Lady Whitaker, to which I have added my name, would improve the position.

I am told that the existing open government code of practice is inadequate. As I have made clear, we now agree that an Act is a better way to proceed. The existing open government code of practice states that,


    "the facts and analysis of the facts which the Government considers relevant and important in framing major policy proposals and decisions",

should be proactively published. Unless we are clear that not only the facts but also the analysis of the facts will be published as a result of the provisions of the Bill, I suggest to the noble and learned Lord that that will be a step backwards which I am sure he does not intend. I look forward to hearing him accept his noble friend's amendment. If he cannot do that--it is sometimes difficult for government Ministers to accept

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amendments--I hope that he will at least put on record the simple proposition that it is not just the facts that should be published (because that expression can be narrowly interpreted) but also the analysis of the facts.

When the information is made public and people, and especially newspapers, can study the analysis of the facts, I hope that the debates which take place on the important issues which science will present to us will at least be based on an informed position on the data and that we shall not just be presented with the data and allow every Tom, Dick and Harry to peddle their prejudices. The point of the noble Lord, Lord Winston, about Dolly the sheep was well made. I hope that the Minister will satisfy those noble Lords who have taken part in the debate with regard to the current position of the Bill on that matter.

4 p.m.

Lord Falconer of Thoroton: My Lords, in this short debate noble Lords have gone over two pieces of ground that we have often gone over during the passage of the Bill. The structure of the Bill now involves exemptions but also, under Clause 2, provisions whereby the public authority should disclose the information unless there is a public interest in maintaining the exemption.

I do not intend to go over those debates which we have already had on a number of occasions save to make one point in response to the points made by the noble and learned Lord, Lord Archer of Sandwell. I hope that I have made clear on previous occasions--if I have not done so, I make it clear on this occasion--that, in the case of a piece of information to which an exemption applies but which also falls under the provisions of Clause 2, it is necessary for the public authority to consider in each case whether or not the Clause 2 discretion requires disclosure of the document or the information. It has to be considered on a case-by-case basis.

The second issue is of real concern to noble Lords and the Government: the publication of factual and scientific material and the analysis of scientific material. The noble Lord, Lord Lucas, has returned to the point again and again, in particular by reference to the BSE affair. In this House and in government we are all aware of the condemnation in the report of the noble and learned Lord, Lord Phillips, of the culture of secrecy. That is something we no longer wish to see exist.

The Bill has an important part to play but it is worth emphasising that the remarks by the Chief Scientific Officer and the Minister of Agriculture, Fisheries and Food, which the noble Lord, Lord Brennan, mentioned, referred not to the Freedom of Information Bill but to a policy adopted by the Chief Scientific Officer and the relevant Minister which does not depend in any way on the terms of this Bill. I wish to make that clear.

I turn to the specifics of the two amendments. Amendment No. 3 was moved by the noble Baroness, Lady Whitaker. I believe that the Government have already made provision for what I understand to be the

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concerns underlying the noble Baroness's amendment. It is difficult to see what information would come within the terms "scientific, medical or technical" which would not be covered by the provisions for factual and statistical information already in the Bill. Statistical information in relation to a government decision already taken has been taken out of the harm test in Clause 35 and is now subjected to the prejudice test in Clause 36. There is also a significant steer for public authorities towards the particular public interest which exists in the disclosure of factual information which has been used to provide an informed background to decision taking.

In moving the amendment, the noble Baroness was supported by the noble Lord, Lord Lucas, and my noble friend Lord Winston. They mentioned that the amendment does not extend to cover advice on policy given by government scientists and that it is limited to the scientists' opinion on the significance of the data. This is the analysis point. I believe that it is impossible satisfactorily to distinguish pure analysis of information from advice which is to be given based on that information. The noble Lord, Lord Mackay of Ardbrecknish, made that point. For example, analysis of data could relate to collation of statistical data or the expression of such data in other ways in order that it be more easily understood. The Government believe that it would be exceedingly difficult for a public authority to make a case for withholding this type of information. However, it is important to have protection for the provision of advice to Ministers in order that good governance be maintained. But the kinds of analysis to which I and other noble Lords have referred would, I think, be impossible to withhold in the vast majority of cases.

The noble Baroness also made reference to the Government being able to withhold information if they felt that there was a public interest in all ingredients of their internal discussion remaining confidential in order to allow the free and frank provision of advice. The Government believe that there is a public interest in keeping certain parts of internal discussions confidential for this reason, as reflected in the existence of exemptions in the Bill. However, balancing the public interest is a completely separate exercise to be conducted if an exemption applies. It is this exercise which will ensure that the legitimate concerns of the noble Baroness are met and that, where it is in the public interest, such information as is covered by her amendment will be released. I hope that these remarks reassure the noble Baroness and others who have spoken on this important issue.

With regard to Amendment No. 4, the noble Lord, Lord Lucas, expressed the same concerns as those mentioned by the noble Baroness, Lady Whitaker. I hope that I have dealt with them adequately in my remarks.

Before I sit down--I suspect that this may be the last opportunity to do so--perhaps I may pay a special tribute to the noble and learned Lord, Lord Archer of Sandwell, and the noble Baroness, Lady Whitaker, who have made substantial and influential

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contributions to the debates in the House during proceedings on the Bill and have contributed significantly to the changes which have been made.


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