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Lord Falconer of Thoroton: I find that comment extraordinary. Should the Government produce documents which might harm parts of the British economy? Of course examples can be cited where the Government might produce a document which states, "Having analysed the position, we can see that one would be better off investing in part X of the country rather than part Y." That is a perfectly sensible course of action. Equally, from time to time, it is perfectly sensible for a government to consider a situation along the lines of, "Look at what the Scottish/Welsh/Northern Irish body has done. We think that the consequences of this will be as follows. We think that these are bad consequences" for whichever part of the country the document refers to. It is a fair, objective analysis, but it would damage relations. It cannot be said by the noble Lord with any degree of seriousness that the Government should not produce such documents. That is a bad argument.
The other point that has been made all along is whether it is right; whether it is a legitimate interest to protect the relations between the United Kingdom Government and those assemblies. We think it is. We think it matters to the Union.
Lord Mackay of Ardbrecknish: I am not at all convinced by the debate. We started off with the fairly bad example of a thumbnail sketch of the Executive members. Harking back to a previous debate, one wondered whether the Government were going to confirm, deny or be totally neutral on this one. In any case, the Government need not keep the thumbnail sketch of the Executive members secret; a similar thumbnail sketch will probably be in every Scottish newspaper this weekend--certainly for one side--as the Labour Party looks for a successor to Donald Dewar. So that was not a terribly good example.
I fear that a lot of the other examples concentrated more on damage in the political sphere than in any other sphere. As to the example that it would be damaging if it came out in Scotland that the United Kingdom Government had decided that something should go to "A" and not to "B", and "B" was in Scotland, all I will say is that it will become a self-evident fact once the contract is placed. A good example is the question of the allocation of shipbuilding between the Clyde and the Tyne, an issue which is fairly current.
I am not sure what the damage will be. It will be political--I accept that--but the political damage will happen someday when the decisions are taken. I am hesitant. If the information should be kept confidential and falls within the Bill, it should be the same as between government departments. We are going a lot further with the test and introducing a political element. I refer to an element of political embarrassment.
Although it is so late in the evening that the author is no longer in his place, I jotted down the remark, "I have little doubt that the Treasury is writing about the Barnett formula". It has been writing about it for years; nothing should change. The real problem will occur if the Treasury writes its usual note about the Barnett formula--that is, "This has outlived its usefulness. Scotland gets too much money. We shall have to do something about it"--I paraphrase. I shall not ask the Minister to confirm or deny that any such papers exist, but I am sure that they do. I am sure that that note would have to be sent to the Scottish Executive for its comments. After all, with any decisions about public spending, the department involved--in this case, the Scottish Executive--would be asked to come into the argument.
However, the Scottish Executive may think that that is a document which should not be kept private. Members of different parties may decide that it would be to their political advantage to expose that document. It does not take too much imagination to work out what I am talking about. For either of our two parties forming a government in the United Kingdom, and for the Scottish National Party if it won an election in Scotland and formed a government there, nothing would give them more grist to their mill than a document suggesting that the Goschen formula should be reduced and the amount of money going to Scotland should decrease. The noble and learned Lord and I might agree that such a document should be kept confidential, but the Scottish government might not agree. They may feel that it falls within the freedom of information Act in Scotland to release that document.
Perhaps the Minister can answer this question. If there is a conflict between, say, the Scotland freedom of information Bill and the United Kingdom Bill because the Scotland Bill is more liberal, which one rules? Will the Government try to ensure that a clause similar to this clause will be placed in the Scottish freedom of information Bill?
Lord Falconer of Thoroton: The question of which Bill rules is not quite the right question. When the Bill becomes law in Scotland, it will govern the obligation of public authorities in Scotland to disclose information--similarly, in relation to the freedom of information legislation in England, Wales and Northern Ireland.
If there are differences between the two pieces of legislation--and we do not know what Act the Scottish Parliament will produce; presently, there is merely a set of proposals--and if a document is in the hands of both administrations, each will be liable to disgorge it in accordance with the law governing that
Lord Lester of Herne Hill: Am I right in thinking that the examples given by the noble and learned Lord would violate the Data Protection Act 1998--since to maintain personal data, especially of a sensitive nature, on members of the Scottish Executive in a databank in Whitehall without adequate safeguards against abuse would be in clear violation of the 1998 Act. Therefore, the only example that has been given would fall away.
Lord Falconer of Thoroton: I have given two examples. One is the thumb-nail sketch, which I see has caused great interest. The other is comment on a proposal of a devolved assembly or parliament. The example of the thumb-nail sketch might or might not offend against the Data Protection Act. That depends on the form.
Lord Mackay of Ardbrecknish: It occurs to me that an even more interesting example might be thumb-nail sketches held by the Scottish Executive of the Government here in London! I bet the Government would use the Freedom of Information Act from here to yonder to stop those being published.
Now I am really puzzled. If what I hear is correct, the two Acts may turn out to be different. The Scottish Act could go down the road of the Scottish White Paper. A piece of paper could move between two--the Goschen formula or anything else--and the Scottish government could decide, on receipt of a request, that they had to release that document under the terms of their freedom of information Act, but the UK Government could say that its release was not necessary and that they did not want it released. First, I can see a fair amount of additional paper being generated between London and Edinburgh. But there is a more important point. I may be over-suspicious, but I see a "heavy hand" coming from here to Edinburgh to make sure that the Scottish freedom of information Act is no more liberal than the one we are being asked to pass. I foresee a serious problem if something is not right.
This has been a pretty unhappy debate--especially as we are not to be given the thumb-nail sketches! But this is a serious point. I do not know the answer. All I know is that it is one of the problems that may be thrown up by devolution when it comes to looking at an entirely new Bill. I have not heard a genuine reason why the clause should remain part of the Bill. Therefore, I may be tempted to divide the House on the Question that the clause shall stand part.
Lord Warner: Does the noble Lord accept that there could be circumstances in which notes of meetings between the different assemblies were produced and exchanges of letters were frank in their assessments. Would this clause provide a safeguard for those kinds of negotiations and discussions? Does the noble Lord accept that that would be a legitimate reason for using this clause?
Lord Mackay of Ardbrecknish: The point was made much better by the noble Lord, Lord Goodhart, earlier. I do not know whether the noble Lord heard the noble Lord, Lord Goodhart, explain it. I bow to the noble Lord, Lord Goodhart, on legal opinions on Bills that are about to become Acts. It is our opinion that these kinds of issue are caught by other clauses in the Bill and that this particular clause is unnecessary and the Government have not justified it.
However, that does not detract from my main point that if the two freedom of information Acts turn out to be different and the Scottish one is more liberal, the kinds of problem I mentioned will certainly arise. They will arise by the spadeful if we have two administrations with different political views. I wish to test the opinion of the Committee.