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Lord Falconer of Thoroton: My Lords, the point which the noble Viscount makes is important and it is the first time that it has been raised in the course of our debates. It does not apply only to Clause 36. There is nothing specific to do with that clause. It simply makes the point: what happens when the information is needed urgently? That is the point which the amendment raises.

The position under the Bill is that a public authority must inform the applicant within 20 working days if it is not going to comply with the request. At the same time, if the public interest test applies by virtue of Clause 2, then the public authority must inform the applicant of its determination under that clause or it must indicate when it is going to determine that beyond the 20 days; and if the applicant disagrees with that length of time, the applicant can go to the information commissioner and complain about the length of time.

Obviously, under the Bill there must be a period of time within which the public authority has time to comply with the request. As regards appeals procedures, the noble Viscount is right to say that domestic complaints procedures must be exhausted first--for example, local authority complaints procedures--when there has not been a disclosure. Whether or not there is a provision in relation to those for urgency will depend upon the individual procedure.

The information commissioner's code of practice will say that applications should be dealt with promptly and, if there is good reason why it should be dealt with urgently, no doubt that will be taken into account in determining how quickly to deal with the individual complaint or appeal against a particular ruling by a public authority.

That is as far as I can take it. Inevitably, there must be some period of time within which both public authorities and information commissioners are allowed to deal with the applications. Of course, if the applicant has a particular reason for needing the information urgently, no doubt that will be taken into account when the application is being considered.

Viscount Colville of Culross: My Lords, I do not think that it will because, although the noble and learned Lord sets out what is in Clause 10 and says that there must be some test of urgency, there is still the stage which he did not mention at all--the complaints procedure under Clause 45. That must be gone through too and that is in the hands of the public authority itself. There is no timetable in relation to that and it is on the face of the statute that it is only after that process has been exhausted that the information commissioner can come into the picture.

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There is no guarantee that the person who seeks the information will have been able to overcome all those delays in order to obtain the information before the public authority makes the decision. There is no appeal to the commissioner until all the complaints procedures have been completed. Therefore, the noble and learned Lord has disclosed a very substantial gap in the way in which this Bill will be practicable from the point of view of ordinary people.

Again, it is no use my pressing this matter at this stage, particularly as it is the first time that it has been raised. But I trust that the Government and the information commissioner will apply themselves to the problem which I have tried to adumbrate; in other words, when an urgent decision is required and the procedures need to be very substantially curtailed in order that a decision can be taken upon the matter in time, before the decision is finally reached by the public authority.

Lord Falconer of Thoroton: My Lords, I apologise for interrupting the noble Viscount but what I say will provide him with some assistance. The commissioner will be able to hear complaints before the exhaustion of the authority's internal appeals procedure. Urgent cases would fall into that category. But that obviously does not deal with cases in which the 20-day period has elapsed.

Viscount Colville of Culross: My Lords, I am extremely grateful to the Minister for that clarification. However, it does not appear to me to comply with Clause 50(2)(a), which states:


    "On receiving an application under this section, the Commissioner shall make a decision unless it appears to him"--

which, of course, means "her"--


    "that the complainant has not exhausted any complaints procedure".

It appears to me that, if the complaints procedure has not been exhausted, the commissioner will be denied the opportunity to make a decision.

Lord Falconer of Thoroton: My Lords, perhaps I can assist the noble Viscount in relation to that. If he reads the remainder of Clause 50(2)(a), he will note,


    "that the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice under section 45".

That is a reference to the commissioner's code of practice, which will specify the circumstances in which the local or domestic appeals procedure must be complied with before the commissioner's role comes into play.

Viscount Colville of Culross: My Lords, I understand that point, for which I thank the Minister. I do not invite him to say anything further at the moment, but I ask him to listen to my next point. The commissioner would need a code of practice that would enable her to take on board appeals against refusals to disclose in cases of urgency, which have to bypass the complaints procedure. I know that that will be laid down in her

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own code of practice but, nevertheless, the code of practice will then be applicable to the public authorities, which will have to set up a procedure. She will have to ensure that, where an applicant can make out a case for an urgent decision, the whole process of the complaints procedure would not need to be gone through before her jurisdiction started. I shall leave it at that. The Minister nods his head--I hope to me. I hope that he will ensure that some such provision is included in the code of practice so that public authorities can be required to make timely decisions, or the commissioner allowed to make decisions on their behalf.

In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 [Issue of code of practice by Secretary of State]:

[Amendment No. 7 not moved.]

Clause 53 [Exception from duty to comply with decision notice or enforcement notice]:

Lord Falconer of Thoroton moved Amendment No. 8:


    Page 31, line 26, leave out from ("information") to ("that") in line 27 and insert ("which falls within any provision of Part II stating").

On Question, amendment agreed to.

4.45 p.m.

Lord Mackay of Ardbrecknish moved Amendment No. 9:


    Page 31, line 36, at end insert--


("( ) Where the accountable person gives a certificate to the Commissioner under subsection (2), the Secretary of State shall as soon as is practicable thereafter arrange for details of the certificate to be drawn to the attention of each House of Parliament.
( ) In any case where a certificate under subsection (2) relates to a decision notice or enforcement notice which has been served on a Northern Ireland department or any Northern Ireland public authority, the accountable person shall as soon as is practicable thereafter arrange for details of the certificate to be drawn to the attention of the Northern Ireland Assembly.
( ) In any case where a certificate under subsection (2) relates to a decision notice or enforcement notice which has been served on the National Assembly for Wales or any Welsh public authority, the accountable person shall as soon as is practicable thereafter arrange for details of the certificate to be drawn to the attention of the National Assembly for Wales.").

The noble Lord said: My Lords, I can deal briefly with this group of amendments, two of which stand in my name and one in the name of my noble friend Lord Norton of Louth. Before doing so, I thank the Minister for the courteous way in which he has conducted this debate. I also thank other noble Lords, learned and not learned--only because they are not office-holders or have not attended the legal teach-in which we non-lawyers have undergone as we have proceeded with this Bill. I now understand that the most important thing in the law is a balance of "this" against "that".

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These amendments deal with the veto that a government Minister is allowed to have on the publication of information. This is a kind of nuclear option for the Government. When all else has failed and they do not believe that it is in the public interest to divulge this information, they are allowed to take the steps outlined in the clause and impose a veto.

We had an interesting debate on the last occasion when I suggested that Parliament should be informed of the use of the veto. I shall not quote the noble and learned Lord extensively. However, I am sure that he will agree that he made much of the fact that Ministers could not abuse the veto system because, if they did, Parliament would soon become irritated and would call them to account. I identified a slight problem. I suggested that there was no real means by which Parliament could know that the veto had been used unless they waited for publication in the commissioner's annual report of the use of the veto--perhaps 10 or 11 months following the event. That would not be very satisfactory.

I proposed what I freely admit was a fairly elaborate method of reporting to the House and having the House debate the issue before the Minister was allowed to comfortably tuck away the veto in his back pocket; perhaps that was a bit too much. But I have now considered how we can achieve a situation in which the Minister would have to inform Parliament. I have two options, one of which is more elaborate than the other, and my noble friend Lord Norton of Louth has another option. I would be satisfied with the usual inspired question that is asked in the other place, to which the Minister is quite keen to give an answer. On any reading of Hansard, your Lordships will see that inspiration for many of these questions usually comes from the Whips. I would be quite satisfied with that. That is a legitimate, sensible and open way of keeping Parliament informed. While one of my amendments does not specify it, that method of informing Parliament would be satisfactory. I very much hope that the Minister will be able to give me some words of comfort. In addition, so that I can be upsides with noble Lords on the Liberal Democrat Benches and have some amendment accepted in this piece of legislation, I hope that he will feel able to accept one of the variations in this menu. I beg to move.


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