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Lord Williams of Mostyn: My Lords, I imagine that the noble Lord, Lord McNally, is sick and tired of being told by the noble Lord, Lord Cope, that he is not surprised that he has jumped into bed with the Labour Party and thought he would trump the observation. I have every sympathy.
My noble friend Lord Clinton-Davis has much greater experience than I of the environmental information area in the European as well as the domestic context. He is quite right. The environmental information regulations implement in our law the provisions of an EC directive on access to information. The Aarhus Convention is a further development in this area. It was signed in June 1998. We are trying to match to and marry our obligations in those contexts to make sure that we are not falling behind in the delivery of material to our citizens through our domestic FoI regime.
I am grateful to my noble friend Lord Clinton-Davis for saying that there are comparisons to be drawn between our regimes in prospect and those abroad. If one studies it with care, one realises that we have not made a bad fist of it; for instance, we are providing an information commissioner. That commissioner will be able to assist the citizen, without recourse to litigation--and that is not a feature one finds in all other jurisdictions. We have therefore made an important step forward.
I can understand why the Government feel it necessary to impose some sort of ceiling on the information available for a £10 application fee. Again, I recognise also that under Clause 14 an authority which is not required by virtue of Clause 12 to provide information must, notwithstanding, consider whether or not to exercise its discretion to do so. But if the applicant is willing to pay the full cost of providing that information, should not the authority be required to produce it?
I have in mind in particular the position of the press. It is likely that the principal effect of the freedom of information Act will be that information will get to people not directly, but through the press as an intermediary. Unless the information is extremely expensive, the press will be in a position to pay the full cost of obtaining it. Should not there be an automatic right, therefore, for applicants to obtain whatever information they seek within the limits of the Act, if they are willing to pay for it?
Lord Williams of Mostyn: My Lords, that is an extremely telling, well made point and one that I discussed with representatives of the newspaper publishers. We took the two figures--first, the £500--as representing the amount at which it becomes unreasonable to answer a parliamentary Question. We then set the prospective fee quite low because we do not want to discourage people. The prospective fee is not intended as a revenue-gathering exercise; it could not be. It is to exclude the completely vexatious, of which we are all well familiar, which is normally written in green ink, heavily underlined in red and with more exclamation marks than one could shake a stick at! That is covered by Clause 12.
We should take forward this question. If the press have a legitimate request to make that is not vexatious or frivolous (that is covered in Clause 12) and it would cost £5,000, should not they be able to say to the authorities in question, "We are willing, as part of our public service function, our public information function and Article 10 duties as well as privileges, to pay the full amount?" I should welcome that in principle although I cannot make any further commitment because it may well be the outcome.
Lord Simon of Glaisdale: My Lords, will the right to know extend to the result of inquiries into the deplorable leaks that there have been in breach of confidence from public bodies in circumstances other than the intelligence agencies being involved? Or will they continue to be masked, in the words of the noble
Lord Williams of Mostyn: My Lords, there is no global answer to that pertinent question put by the noble and learned Lord, Lord Simon of Glaisdale. Self-evidently, if there is a leak in a department--for instance, the Ministry of Defence--it might be impossible to publish the full report because one would thereby be jeopardising a legitimate interest. It is quite different in other cases.
One comes back to this: we must stress the importance of the presumption of disclosure in favour of openness. It must then be demonstrated, except in the excluded cases, that there is something by way of prejudice which must be of substance which would, or would be likely to, inure. The noble and learned Lord cannot expect me to say that all reports of investigations into leaked inquiries will be published in full. In some cases they could do serious harm. They may bring about a prejudice which was of substance to an interest which ought to be safeguarded.
But I take the noble and learned Lord's point. I am in favour of openness because it is a useful discipline to concentrate the mind before one comes to conclusions; and if conclusions have been badly reached or sometimes properly reached, at the end of the day it is public information; in other words, it is public property.
Baroness Pitkeathley: My Lords, does my noble friend agree that at its best freedom of information goes far beyond simple access? It is about empowering citizens. For example, the more patients know about the diagnosis of their illness, its treatment and prognosis, the more they can be involved in their own care and thus help their recovery. That information is also of great value to the families and carers of such patients. Can the Minister give an assurance that the need for families to have such information will be addressed in the Bill?
For many of the people described by my noble friend, this kind of information will matter to them more than anything, and they will never be interested in freedom of information on any other occasion in their lives. One then has to ask whether patients are entitled to patient/doctor confidentiality, and the answer is plainly that they are. I would not be able to say that families and carers would be entitled to information as of right, information which perhaps the patient did not want to be disclosed. That is a legitimate balance to be drawn. If I were ill, I might want to know the situation, but I might not want my relatives to know because it might be burdensome or harmful, or it might be none of their business.
My wife, who was brought up as a civil servant and is very much opposed to freedom of information, quite naturally, also welcomes the Bill because a great deal has been done since the White Paper to weaken the effects of the Government's intent and to make it possible for the Government to avoid disclosing information that it finds inconvenient. The wording of the Bill in relation to departmental information exempts information from disclosure where it would be likely to inhibit free and frank provision of advice or prejudice effective conduct of public affairs. That is a very Sir Humphrey way of saying, "anything I say shall not be disclosed--shall not be disclosed".
I cannot see any presumption of openness in the Bill that applies to that, or balance of public interest, or the words "on balance". Had those words been applied to the information which MAFF had on BSE, which is the case that I know most intimately, it would have resulted in greater disclosure and in avoidance of the harm which occurred. I hope the Minister can give me some comfort in relation to that matter.
(a) to be informed by the public authority whether it holds information of the description specified in the request and,
(b) if that is the case, to have that information communicated to him."
That links, in two ways, to the very important position of the information commissioner. He or she can substitute his or her own view as to the propriety of the exemption, in other words decide whether it is made out. The important question is this: if the authority in question fails to exercise discretion, the information commissioner can come to the conclusion that it was not done on any rational ground.
It is critical that there is an information commissioner to assist; there are then the statutory powers and a further right of appeal to the tribunal. Thereafter, quite properly, there is a right of appeal on legal grounds only to the court.
There is the bold statement in Clause 8, subject to exemptions, and there is further protection: if they have upheld the exemption they are nevertheless obliged to exercise their discretion about release of the information.
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