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Baroness Kennedy of The Shaws: I rise to support the amendments and to express my concern about the way in which the exemption is drawn. It is a wide class exemption and it goes against the spirit which the Government are seeking to introduce with the legislation.
About five years ago, I chaired a public inquiry for Reading County Council into health and safety issues at Aldermaston. It was an interesting experience. The inquiry arose out of the concerns of local communities
What came out of the inquiry for me was precisely what the noble Lord, Lord Hunt, referred to: the sense in which people feel that they want to have access to information. Such information is often in existence and is held by bodies such as the Nuclear Installations Inspectorate or other health and safety bodies. However, the public do not feel that the information is readily available to them. I am concerned that the way in which the wide class exemption is drawn will prevent people who have genuine cause for alarm having access to material to which they should have access.
Like other Members of the Committee, I should like an assurance from the Minister about the whole purpose of the legislation, which was a source of celebration when the Government came into office as part of the great range of constitutional change. I was heartened that one of our most eminent judges, the noble and learned Lord, Lord Steyn, said that public information was part and parcel of the success that the Human Rights Act would enjoy. Freedom of information must walk hand in hand with other aspects of constitutional change. I encourage the Government to look again at the set of clauses to which the Committee is turning its attention and to be somewhat more generous than currently is the case on the basis of the drafting of the legislation.
Lord Lester of Herne Hill: As several Members of the Committee have observed, this clause has come under heavy criticism from a wide variety of sources, including the Select Committee of the other place and consumer groups of one kind or another. Many of the examples given by noble Lords illustrate those concerns. My noble friend Lord Goodhart and I tabled some amendments to reflect some of those concerns. If our understanding is correct, on close scrutiny Clause 28 does not carry with it the mischief that some have suggested; it is a narrower class category. On the other hand, it suffers from some defects. To explain, Clause 28(1), as with part of Clause 28(2), deals with the need to preserve the integrity of prosecuting authorities--the DPP, the Serious Fraud Office and the police--as far as concerns information in their possession relating to criminal investigations. Clearly, there is a strong case in the criminal sphere for a category exemption to cover those matters. The problem is that, in view of the way that Clause 28 is structured, the provision covers not only that important area but to an extent the kinds of inquiries to which the noble Baroness, Lady Kennedy, referred.
How does it do it? On our reading, Clause 28(2)(iii) covers information obtained in the course of other non-criminal investigations, civil proceedings, and so on. The crucial word is "and", because paragraph (b) is concerned with,
If we are right to believe that it is concerned only with protecting the confidentiality of sources, what is wrong with the provision is that there will be some circumstances in which the identity of the source will be a matter of public interest. For example, a middle manager in a nuclear power station reports that the pipes are cracking owing to metal fatigue and a week later there is a meltdown. The fact that it is the middle manager who has reported the matter is a matter of overwhelming public interest. That would be dealt with if our Amendment No. 154 were to be accepted. That is to say, there would be a harm test to ensure that there might be some circumstances in which the confidentiality of the source would be able to be disclosed without even reaching Clause 13.
The other vice which has been referred to by the noble Lord, Hunt of Wirral, is Clause 28(3). It states that the duty to confirm or deny is excluded in relation to not only criminal matters, but a wide range of non-criminal investigations as well. On our reading--we may be wrong--of Clause 28, it is much less controversial than we and the world outside have assumed. We believe that any defect in it can be dealt with by comparatively minor amendments. We do not think our amendments--apart from Amendment No. 154--really deal with that issue. The problem with Amendment No. 154 is that it covers criminal matters as well as civil matters. It may be that slightly different considerations would apply, although we think not. We believe that a harm test could be applied in both areas.
It is a pity that the Government have swept up into a single clause the core of criminal investigations and these wider consumer matters. I think that is what has given rise to much of the opposition to the amendments. Therefore, we support the spirit of the amendments that have been put down. We shall not be moving our own amendments tonight. But we are very anxious that the noble and learned Lord the Minister should clarify exactly what it is that this clause does and does not need.
Lord Brennan: I apologise for taking up the time of the Committee so late in the evening, but this is a matter of great public concern. Many of us think that Clauses 28 and 29 are at the heart of the Bill. I do not wish to engage in a legal debate on the meaning of these clauses but to ask the Minister a plain series of questions by examples as to whether the Bill would allow access by the public to information about safety.
Paddington and Southall were both cases that involved long-term investigation by the HSE of failures in respect of each crash which might have been avoided had there been discovery and a public debate about these matters before they ever occurred. Under Clause 28 the use of the phrase "at any time", and the use of the word "may" lead to a prosecution, provide an exemption of far too wide a character. It may be that the commissioner will eventually decide that the public interest should permit disclosure of material from the HSE, but we do not want disclosure of this sort of material after disasters; we want the opportunity of finding out about it before they ever occur. In those circumstances, as my noble friend Lord Hunt confirmed, the Director-General of the HSE felt--she gave evidence before a committee of this House--that an exemption of this kind was not necessary.
In working for the Bar and trying to reform our profession in the light of the Lawrence inquiry, I had occasion many times to see Mr and Mrs Lawrence speak in public. I was gratified to see the award they received earlier this week in the European Parliament. After that terrible event, do we really want the law to mean that Mr and Mrs Lawrence could never have found out about the delays which were so condemned by the Macpherson inquiry? I hope that the Government do not underestimate the strength of feeling on their own Benches about Clauses 28 and 29.
Lord Mackay of Ardbrecknish: I shall be extremely brief. I have some amendments in this group. In some ways they impose a lesser test than is imposed by the amendment of the noble and learned Lord, Lord Archer of Sandwell, but all of our amendments address the question of the length of time during which these clauses could be used by various authorities. I have nothing to add to what other noble Lords have said. In fact, if I may be presumptuous, I concur with my noble friends on this matter.
Lord Falconer of Thoroton: This is an important part of the Bill. Perhaps I may deal with what my noble and learned friend Lord Archer said. We are delighted to be putting a Freedom of Information Bill on the statute book. During the course of the Committee stage I have made clear, in answer to a number of amendments proposed by the noble Lord, Lord Lester, the purpose of the Bill. We stick by that. We are prepared to go through in some detail the precise effects of all of the exemptions. It is right that the exemptions should be looked at with care. However, Clauses 28 and 29 have been slightly misinterpreted--perhaps significantly misinterpreted--by a number of noble Lords who have perfectly legitimate concerns. I very much hope that I can put those concerns to rest.
The noble Lord, Lord Lester, pointed the way to what the clauses mean. Clause 28(1) covers only criminal investigations. It is in the Bill because the two leading prosecuting authorities in this country--the
The DPP and the Serious Fraud Office came to the House of Lords on Wednesday. There was an open meeting for all Peers. I know that Peers from the Liberal Democrat side and from our own side came. Unfortunately, no Conservative Peers were able to come. The DPP and the Serious Fraud Office expressed in detail their concerns on this issue. That is why they said they supported the exemption in relation to criminal proceedings.
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