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Lord Lucas: My Lords, I entirely understand that that is the process through which the information commissioner goes and that the commissioner will make her own judgment of the weight of public interest in disclosure. However, I am anxious to determine that the judgment of the weight of prejudice will be hers and not that of the authorised person, which is the other side of the balance.

Lord Falconer of Thoroton: Yes, my Lords. I confirm that that is the position. That is the effect of

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our present draft. With the greatest respect to the noble Viscount, the effect of his draft is more complicated, more open, more wide-ranging, less restricted and, in my respectful submission, would not deal with the problems that he identified in moving the amendment. Therefore, in the light of what I have said and in the light of the reassurances that I have given in relation to a number of points, I suggest that the noble Viscount does not move Amendment No. 5.

Viscount Colville of Culross: My Lords, I have moved Amendment No. 5, so I am afraid that we have to deal with it. I shall now respond to the noble and learned Lord, and I am grateful to other noble Lords who have taken part.

I am afraid that I do not understand the noble and learned Lord when he criticises the test that I have provided. As has now been clearly established--I am grateful to the noble Lord, Lord Lucas, for helping in this matter--in every one of those cases the information commissioner will have to ensure that the prejudice, which of course will have to be disclosed to the commissioner, is weighed against the public interest which is relied upon as part of the exercise in non-disclosure. She will have both parts of the equation in front of her.

Why the noble and learned Lord considers that his draft in paragraph (c) is clearer, better defined, more restricted and more ordered in every possible way than what I have put forward is beyond my comprehension. I do not want to prolong this debate. I understand that the noble and learned Lord does not intend to accept anything. Therefore, perhaps I may suggest to him that some device is produced whereby the information commissioner gives guidance to those 50,000 qualified persons who are to take the decisions.

Such guidance will not be provided under Clause 49 in the annual report or in any special report given to Parliament. It will come in case law. That will be difficult, and I do not understand how it will be achieved because the circumstances of individual cases may well be such that the details on the basis of which the information commissioner has reached her decision cannot be publicised. Nevertheless, some guidance will have to be given about the lines that the information commissioner will draw as to where the qualified person is allowed to exercise the powers that at present are set out in paragraph (c).

I am sure that the noble and learned Lord is listening to what I am saying. I hope that in a moment when I move my next amendment he may have the opportunity to respond to that matter. I believe that guidance in this field will be very important, not only to qualified persons but also to members of the public who seek information. At least they will then gradually build up some knowledge of how the system works and of what the information commissioner is likely to do in relation to the balancing act that will be her copious duty in future.

I am very disappointed that the noble and learned Lord gives no further examples, although I had not expected him to give any. I am afraid that it is clear

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from reading and listening to these debates that we shall never achieve any clarity in this matter. As I cannot do anything about it, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.30 p.m.

Viscount Colville of Culross moved Amendment No. 6:


    Page 22, line 21, at end insert--


("( ) For the purposes of paragraph (c) of subsection (2), the effective conduct of public affairs is not to be regarded as prejudiced or likely to be prejudiced insofar as disclosure of the information would, or would be likely to, result in any member of the public seeking, by lawful means, to influence the public authority in relation to any action or decision which that authority has the power to take.").

The noble Viscount said: My Lords, this amendment covers another aspect of the same point. What is,


    "the effective conduct of public affairs",

in the minds of 50,000 public authorities? One of the ways in which one can effectively conduct public affairs is by preventing people discovering what one is working on until it is too late for them to make any form of objection. I am quite certain that that is not what the Government intend; indeed, it is the opposite of what they intend. Nevertheless, that will not necessarily be the view of all public authorities.

I have in mind an incident in which I was involved not long ago in which a planning decision was being appealed. The planning authority was required under statute to publish--and it did publish--all the material that it had received in the form of advice from officers and others which would lead it to its decision. However, it disclosed that other public authorities which had been consulted, as is required under the procedure, had given a vague and dismissive reply. There was no means of discovering what those other public authorities really thought. The vague and dismissive replies were not open to further investigation. There was no means of extracting information relating to what they had considered, what they had rejected and why they had formed the view that they had. I assume that that was what they considered to be the effective conduct of public affairs. I do not believe that that is the right approach, and I believe that the noble and learned Lord, Lord Falconer, will tell me that I am correct in that.

However, let us look at the practicalities of the matter. This subject will arise not only in relation to affairs of state under Clause 35 and the issues which we were discussing a few moments ago; it will arise also in relation to all sorts of small decisions which affect individual members of the public as to their health, their environment, their children's education and all sorts of extremely important matters to them as persons and as families. The decisions do not necessarily hang around very long before they are taken.

I want the noble and learned Lord to tell me how the effective conduct of public affairs and disclosure of information about it fit into the timetable of the Bill.

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The timetable means that a person has to discover that a decision as to the effective conduct of public affairs will be taken by a public authority. Having done so, the request is made and, under Clause 10(1), there are 20 days in which the initial result is to be provided to him, although that can be extended. But that is only the first step.

The second step--and this is Clause 10(3)--is that when it comes to the issue about whether or not there is prejudice, which is where the Liberal Democrat amendments to Clause 3 bite, the period of time during which the public authority shall decide whether or not there is, in its view, prejudice is indefinite. There is no timetable at all and your Lordships have only to look at Clause 3 to see that.

Eventually the public authority may say that the balance has come down against disclosure. So the person who is anxious to know about the details of the matter says, "I will go to the information commissioner" but, of course, he cannot do that because the first thing that he must do is to go through the public authority's complaints procedure. That is set down under Clause 45(2)(e). Under the procedures organised by the public authority for the purposes of this Bill, there must be a complaints procedure. It is only when that has been completed that the information commissioner can start to look into the matter, because she is previously precluded from doing so by Clause 50(2)(a).

How long will that take? Let us suppose that the local authority or the other public authority is dealing with something which is comparatively urgent but, nevertheless, vital to the inhabitants of the area or people otherwise concerned. Will the Bill really give them the opportunity to find out in time what it is that is the basic material on which the decision has been taken? I suggest to your Lordships that it is not.

Therefore, I suggest that we need something in the form which I have tabled as Amendment No. 6 on the Marshalled List. That would make it possible for the public to try to influence the public authority, by lawful means of course, in relation to the decision that is to be taken. By implication, that means that the information must be made available in time to do so.

I am not sure that this matter has previously been discussed and it is a late stage of the Bill at which to do it. Nevertheless, it is implicit in the way in which paragraph (c) is presently phrased that there is really no recourse for the member of the public who wants information and wants it urgently, because the rest of the machinery of the Bill will provide indeterminate delay and it will not be available in time.

I hope that the noble and learned Lord can say something about that because not only will it be of assistance to those who are listening to this debate; it will be of assistance, because it will be in the Official Report, for those who wish to seek information; it will be of assistance to those who are in charge of public authorities and have to make decisions under paragraph (c); and I should have thought that it would be of great assistance to the information commissioner at the early stages, before she has established a code or

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a jurisprudence of the way in which she will deal with these matters. Therefore, this needs to be addressed by the Government and I look forward to hearing what the noble and learned Lord has to say about it. I beg to move.


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