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Lord Mackay of Ardbrecknish: I have been listening to this exchange with interest. If the information was published in a newspaper, does the noble and learned Lord think that the public would draw the conclusion which he rightly and understandably invited us to draw? Having no information may be something we do not want to divulge either. I have a suspicion that the net result of the two questions will be that the public will come to the conclusion that there is information and the Government want to hide it.
Lord Falconer of Thoroton: What we are trying to address here is the policy. In the example I have given I do not think that the Committee would have much difficulty in understanding our approach. The fact that in certain circumstances the public draw certain conclusions may be unfortunate in some cases. But it may be necessary--for example, in relation to the defence of the realm--to deal with the question in that way. From time to time one may have to put up with misunderstandings. I hope that that is not the position.
I concede that this power could be used in both circumstances; first, when there is no information--I have just given an example--and, secondly, where one is trying to protect an informer and the question is, "Can you please provide all information you have by way of communications from X concerning Y?", X being allegedly an informer. In that case people, whose motives for making applications we cannot examine, are seeking to discover whether X is an informer. That is a good example of where one
What we are trying to do is to think through the policy and come to the right conclusions. That is the basis of the confirm or deny approach. I have set out the process that has to be gone through. I cannot give the exact words that will be used in every case. But the fact that on the face of the Bill there is an obligation to go through all those stages ensures that there will be clarity.
In relation to the specific points that were raised in our debate, Clause 20 concerns circumstances where there is no obligation to disclose under the freedom of information legislation because disclosure will be made at a future date. Various detailed points have been raised on that, but what the Bill states here is that,
So far as concerns the courts, Clause 29 aims to prevent parties to criminal proceedings attempting to secure information which would not be available to the court process. Whether such information exists might be relevant in certain circumstances.
Lord Lucas: I thank the noble and learned Lord for that answer. I should like to raise two points. First, the noble and learned Lord has advanced the interesting argument that the lack of any information is in itself information. In principle, I agree with that. I can see how, in the example put forward by the noble and learned Lord; namely, in Clause 24, the fact that there is no such report is information and of itself information which might be likely to prejudice matters mentioned in subsection (1).
However, I have more difficulty with that construction when we come to Clause 28. The duty to confirm or deny is phrased differently here. The duty does not arise in relation to information which is exempt information or, if it were held by a public authority, would be exempt information by virtue of the subsection. The absence of information is less
Perhaps I may return to the main question here; namely, how often will exemption be used and what will be the real controls on it? Obviously, occasions will arise when it ought to be used but, equally obviously, such occasions should be pretty infrequent. If a public authority takes to using this exemption clause frequently, what mechanism is in place to stop it from doing so?
Lord Falconer of Thoroton: I shall address first the court example cited by the noble Lord. If the provisions were not in place, where an investigation was being conducted, the defence would be able to find out precisely all the lines of inquiry that have or have not been followed by an investigating authority. That should be a matter for the court to decide, rather than any provisions under the Freedom of Information Bill.
On the point of how often exemption will be used, of course I am not presently in a position to say. It will depend on the nature and number of applications that are made. What is more important is that it is essential to ensure that a sensible approach is adopted here. To that end, I believe that the approach adopted by the Government in the Bill in relation to applications is sensible.
The exemption in this case applies regardless of whether disclosure would harm national security or the work of the specified bodies. Furthermore, it applies automatically merely because information has passed through the hands of those bodies. In fact, nowadays the various security services are, to an increasing extent, taking on work that would in the past have been the responsibility of the ordinary police services. For example, the security services have been involved in security audits of departments such as the
The National Criminal Intelligence Service deals with football hooliganism, among other things. I appreciate that certain information concerning football hooliganism might be such that it is in the public interest that it should not be disclosed. Football hooligans might then devise ways of getting round the restrictions imposed by the recent Act. However, it seems unlikely in the extreme that there is no information relating to football hooliganism which could not be disclosed without harm to the public. In those circumstances, it would seem right and proper that the exemption provided by Clause 21 should not be a simple blanket exemption, but that some form of harm test should be applied. I beg to move.
Lord Lucas: I have tabled two short amendments in this grouping which I believe are self explanatory. Amendment No. 130 picks up on the Scott affair. The noble and learned Lord will recall that the difficulties in which Ministers found themselves arose because they thought that they were obliged to sign ministerial certificates. I hope that I have made it clear that these are certificates to which that rubric should not apply.
Amendment No. 132 suggests that such certificates ought always to be matters of public record and should not in themselves be secret. I shall be interested to hear what the Minister has to say on that.
I wish to raise the matter of the relationship between this Bill and the administration of justice, both criminal and civil. I invite the Minister--either at this stage or on Report if that is thought to be more appropriate--to confirm and clarify that nothing in the Bill could affect the existing powers of a court, whether criminal or civil, to require the production or disclosure of documents or material relevant to the conduct of a defence or a prosecution.
Perhaps I may cite two examples. First, in the Matrix Churchill case, it was coincidental that a line of inquiry started into certain documents was the one that, in all likelihood, eventually led to the acquittal of the defendants. In that trial, the judge overrode ministerial certificates. Secondly, in the civil arena, in the HIV haemophiliac claims, children contracted HIV after being given, within our National Health Service, blood plasma tainted with the virus. Before it came to trial, that claim led to an application from the health ministry to disclose the material relevant to the circumstances in which it had decided to choose, and then to continue using, the affected plasma. The Court of Appeal in that case--one member of which was the present senior Law Lord, the noble and learned Lord, Lord Bingham--robustly rejected the idea that there could be any significant public interest affecting matters of health in a case like that such as would justify non-disclosure.
Those two examples illustrate, I hope, the need, not only during proceedings--where a judge may make an order before trial or at trial--but prior to proceedings, for those affected to find out relevant information in the interests of justice in conducting a case.
The present clause, the one following it and others, include the use of a ministerial certificate. I therefore invite the Minister to avoid any confusion among the lawyers who might have to deal with this. This Bill does not affect the administration of justice as I have analysed it.
Lord Lester of Herne Hill: The noble Lord, Lord Brennan, has raised an important issue. Perhaps in his reply the Minister will consider whether on Report we should include language similar to that in the Defamation Act, which makes it clear that nothing in that Act is intended to affect the common law. That has been a beneficial provision because it has enabled the courts to carry on their function of declaring the common law without being inhibited by anything in the statute.
I remember in the Spycatcher case, where I appeared for the newspaper, an attempt by the then Attorney-General to use the Official Secrets Act to cut down the law of confidence. He failed. I think in the Crossman diaries case a similar attempt was made--or floated anyway. I can see that the noble and learned Lord, Lord Archer of Sandwell, is not sure whether I am right about that.
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