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Lord Henley: I hate to intervene on these occasions, but although the Whips' Office may have been told about the meeting, I most certainly was not informed and I am not sure that my own Whips' Office was told. I shall check on the matter. I am grateful to my noble friend Lord Lucas who has confirmed that he, too, was not told.
Lord Falconer of Thoroton: I am able to convey to the Committee what was said by the DPP and the Director of the Serious Fraud Office. They gave the same evidence to the Select Committee on Public Administration in the other place. Their comments form the reasoning behind The first clause. However, I must emphasise that this is restricted solely to criminal proceedings.
The noble Lord, Lord Hunt of Wirral, and my noble friend Lady Kennedy of The Shaws both made the legitimate point that consumer and community groups are concerned about their ability to secure information as regards inquiries that do not have anything to do with criminal proceedings, such as that in Reading chaired by my noble friend, or the examples cited of
As the noble Lord, Lord Lester, pointed out, Clause 28(2) does not provide any blanket exemption in relation to information resulting from such inquiries. All that it does is provide an exemption in respect of information provided in confidence. I shall use the phrase loosely, but this is in effect the "informer exemption". It has been put in place because, just as in criminal proceedings, it can be difficult to persuade people to give evidence because they fear the consequences. Therefore, in relation to matters such as near misses and care home inquiries, informers must be given a degree of protection. That is what is achieved by Clause 28(2). It is not aimed at any kind of blanket exemption as regards non-criminal investigations.
Perhaps I may turn to Clause 29(1). Putting aside our earlier debate on what precisely should comprise the prejudice test, the material emanating from non-criminal inquiries is not subject to a blanket or class exemption. It is subject to exemption only where disclosure would cause prejudice.
One category of case remains; namely, matters relating to the Health and Safety Executive. The executive undertakes two separate tasks. First, it investigates individuals with regard to whether they should be prosecuted. Secondly, it undertakes a whole range of activities not related to prosecutions. As regards material which might fall under the "informer" category, such material acquired by the HSE for non-criminal investigations is not subject to a blanket exemption. It is subject only to the prejudice test under Clause 29.
If the HSE undertakes a criminal investigation and then considers the possibility of instituting criminal proceedings, the Director-General of the Health and Safety Executive will be able to exercise her discretion as she thinks appropriate under Clause 13 of the Bill. She can balance the public interest in disclosure against the public interest in maintaining an exemption where criminal proceedings are concerned.
Although deeply felt concerns have been expressed on this, I believe that, on closer examination, the provisions do not have the effects so legitimately expressed by many noble Lords. Furthermore, the provisions both meet and attempt to deal with the points which have been raised.
Finally, I turn to deal with the point raised by the noble Lord, Lord Lester. He said that we still need to amend Clause 28(2) because it provides a blanket exemption in relation to identifying confidential sources. He asked about the situation where it might be relevant to say, "There are senior managers of a chemical plant who are repeatedly telling us that there are problems with the safety aspects of that chemical plant." Should you not be able to say, "Senior management sources--I am not going to name them--are making these complaints." Again, Clause 13 provides the answer to that.
In the light of what I have said I hope that noble Lords will reconsider their positions in relation to Clauses 28 and 29. I earnestly ask the Committee to accept that we have sought to deal with many of the points raised.
Lord Archer of Sandwell: I am grateful to the Members of the Committee who have participated in the debate and to my noble and learned friend for his careful exposition in reply. I suspect that the lateness of the hour has spared him a longer debate than might otherwise have taken place. Speaking for myself, I was less loquacious than I might have been on some other occasion.
Clearly, there is a difference in the arguments to be addressed to subsections (1) and (2). It may well be that between now and Report stage some of us may bring forward amendments which seek to elaborate on the difference. As to subsection (2), I agree with the noble
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