It may be for the convenience of the Committee if I speak now. In this group of three proposed purpose clauses I have put forward my effort in Amendment No. 2 in which I indicate that,

"The purpose of this Act is to facilitate public access to information held by public authorities".

In 1994, the Conservative government introduced the Code of Practice on Access to Government Information, and in strengthening that code in 1997 there was a purpose clause. Although it was not a statutory code, it made clear that it required public authorities to make available information subject to a limited number of exemptions—a more limited number of exemptions than we have before us in this Bill.

The purpose clause in the code was located at the beginning of the document. It set out clearly that the approach of public authorities must,

"in all cases be based on the assumption that information should be released except where disclosure would not be in the public interest".

As drafted, the Bill contains no clear statement of the purpose of the legislation. Government Bills in this Parliament have contained purpose clauses. I have been reminded of that by the sad events of the past week. Section 1 of the Scotland Act says that there shall be a Scottish Parliament. That was a purpose clause. It was totally unnecessary to the Act but the purpose of the Act was clearly set out.

I do not say that my proposed purpose clause is the best. I shall not adjudicate between my noble friend and the noble Lord, Lord Lester of Herne Hill. I anticipate somewhat what the noble Lord will say, but I believe that we all want stated at the beginning of the Bill a clear declaration of its purpose. We are not alone in wanting that. The Public Administration Select Committee of another place said clearly in its report of July 1999:

"Purpose clauses can be used to indicate clearly which of two or more competing values should be uppermost when a decision is made. In this Bill, such a clause could have the effect of encouraging Commissioner, Tribunal and judges to lean towards disclosure. Perhaps more important, though, it could influence those people in departments and other authorities who actually have to operate the legislation.

In addition to the Public Administration Select Committee of another place, the Data Protection Registrar, Dame Elizabeth France—under the proposals she will become the information commissioner—has argued for a purpose clause. The Select Committee reported that,

"The Data Protection Registrar argued that a purpose clause was required to make clear the balance that should be struck between privacy and Freedom of Information, and especially to ensure that the inbuilt advantages which privacy possesses—from the European Data Protection directive and the European Convention on Human Rights—would not overwhelm the right to information".

These are tensions to which we shall return later.

"[Mrs France] argued that the balance should be defined in the Act, and not left to the Information Commissioner and Tribunal".

The Government responded. They amended the title of the draft Bill and made the clause relating to the right of access to information the first clause. However, I do not believe that that is a substitute for a purpose clause at the beginning of the Bill. Where other countries have freedom of information Acts—I look to New Zealand and Australia—they have purpose clauses. I believe that there is much merit in a purpose clause especially when we know that further down the track there will be considerable arguments as to whether a piece of information should be disclosed. If there were a clear statement of its aims at the beginning of the Bill, it would guide people. I hope that the Government will at least accept the principle of a purpose clause even though they may not like the specific wording of the amendments before the Committee today.

I welcome the Minister's consideration before Report of the three proposed new clauses—and even perhaps the Government's own suggestion of a fourth. As the noble Lord, Lord Lucas, indicated, I hope that the noble Lord will not cling to the absence of a recommendation by the committee, ably chaired by the noble and learned Lord, Lord Archer, of which I and the noble Lord, Lord Lucas, were members. He can only call us in aid if he accepts our other recommendations as well.

More importantly, there has been a 25-year commitment by the Labour Party and an initial White Paper which was universally acclaimed by those who had campaigned for freedom of information. There was then the long retreat by the Home Office. The issue was moved from the Cabinet Office to the Home Office. I do not know whether the noble and learned Lord's presence means that he has dragged it from the Home Office's scaly grip. Nevertheless, a purpose clause would restore confidence that the Government are sincere as regards freedom of information.

We have been aware from the beginning that the main danger was not whether the Bill would fail to be enacted—we shall get it through—but whether, once it had been enacted, the culture of secrecy that still pervades Whitehall would overwhelm it. Those who are aware of freedom of information Acts in other countries and who have studied the case for Britain often argue that a purpose clause would provide the confidence and guidance that is needed to overcome the culture of secrecy that we must overcome if freedom of information is to become a reality.

I want to put one further point to the Minister at the start of our debate. Today's Guardian mentions an opinion poll that contained one remarkable but encouraging finding. The poll asked whether Britain was becoming a more modern democracy, to which 64 per cent said "Yes". The Minister will recall from the Maclennan agreement, which was made before the election, that the Liberal Democrats and the Labour party were committed to trying to create a modern democracy. Several pieces of legislation that have already been enacted during this Parliament have made contributions in that regard. It is encouraging that public opinion recognises those efforts to modernise our democracy.

History will judge the Government by the quality of this Bill. If we can improve it in such a way that we are all proud of it—we shall be as constructive as we can be during the next few days in that regard—we shall have done a good few days' work. We are convinced that Clause 1, which clearly sets out the Bill's objectives, will counter the culture of secrecy and give confidence to those who want a proper working freedom of information Act.

I was not able to participate in the Second Reading debate because I was out of the country at the time. Had I been here, I should have welcomed the fact that at last the House is discussing a freedom of information Bill to which, as the noble Lord, Lord McNally reminded us, my party has looked forward for a long time. Unlike the noble Lord, Lord Mackay of Ardbrecknish, some of us on this side do not view with equanimity a proposal to defer the Bill yet further. I should also have welcomed the fact Clause 1 begins with a general declaration of principle. It states that a

"person making a request for information … is entitled … to have that information communicated to him".

However, my welcome might have been somewhat restrained because the Bill goes on to state that that entitlement is subject to Part II of the Bill, which adds up to a less than resounding declaration. But the general principle is that there is an entitlement subject to exceptions—the relationship is not the other way round.

Unhappily, the Bill does not fulfil that early promise. I understand why the three noble Lords who have spoken may want to redress the balance somewhat by spelling out a more enthusiastic sense of purpose than the Bill presently conveys. I am sorry that, at this early stage in our debate, I have the misfortune to differ from them.

Two noble Lords have already pointed out that the Select Committee, of which the noble Lord, Lord Lucas, the noble Lord, Lord McNally and I were members, considered the matter and decided not to recommend a purpose clause. We addressed the arguments that have been persuasively advanced this afternoon. We said that a purpose clause could serve one of two objectives—or perhaps I should say that an objects clause could serve one of two purposes. It could make a difference to the way in which those who have to construe the Bill approach their task, and it could redress the balance that the Bill was trying to strike between freedom and confidentiality. We thought that it was better to consider the balance that we want to achieve and to try to reflect that in clear drafting, which would help us to understand what we are enacting. I still hope that, with my noble and learned friend's co-operation, we may achieve that, thus making a purpose clause unnecessary.

Alternatively, the committee said, the object of a purpose clause is to resolve ambiguities. We preferred to eliminate those ambiguities if we could. We saw the point of having a provision which reflected the vision that we all shared of the changes that were necessary. We wanted, as my right honourable friend the Prime Minister said in the preface to the White Paper, to change the culture of secrecy. We therefore added that we wanted to amend the Bill's long title. We wanted to replace the phrase,

"Make provision for the disclosure of information"

with the phrase,

"Facilitate the disclosure of information"

because we believed that that was the Bill's purpose, and we did not want the trumpet to give an uncertain sound.

It may be too much to hope that my noble and learned friend has noticed my Amendment No. 368, which, admittedly, is a very long way ahead and which was tabled at a rather late stage. It would amend the long title in the way that I have described. I had ventured to hope that it might have been included in the grouping that we are currently considering, but I fully understand the reasons why it was not—I share part of the blame in that regard.

When my noble and learned friend replies, I hope that he will explain the way in which the Government propose to clothe the bare words of the Bill with a sense of purpose. I hope—the Select Committee made this suggestion in paragraph 58 of its report—that the Government will launch an intensive programme of training for the officials whose daily work we hope will be infused with a new readiness to open the windows, to let the public see inside and to blow away the cobwebs. We heard about how effectively the Irish Government had undertaken that project.

My noble and learned friend Lord Williams of Mostyn, who is not currently in his place, told us that the Home Secretary had invited him to chair a group on openness in the public service. The Government must share part of the vision that we adopted at that time. When my noble and learned friend replies, he may tell us whether that group has now reported or whether it has become entangled in the cloak of secrecy.

If my noble and learned friend does not agree with the three noble Lords who have already spoken, he may at least be able to show that he has caught our mood. I hope that the Government are enjoying the prospect of placing the Bill on the statute book. My amendment may, in its modest way, hold out a hand to him and help him to achieve that.

I congratulate the noble and learned Lord, Lord Archer of Sandwell, on achieving a first. This is the first instance I can recall of someone managing to introduce a reference to the last amendment on the Marshalled List during a debate on the first. I understand his reasons. There is a great deal of sympathy in the House for the idea of inserting a clearer statement of intention.

My noble friend Lord Mackay of Ardbrecknish referred to the clear statement in the code. On Second Reading, I reminded the Government that when Labour was last in office, in 1979, the government produced a Green Paper recommending a code rather than legislation. I take responsibility for the introduction of the current code and recommending its strengthening.

I always had in mind the clear understanding that as soon as we progressed to legislation we would need to list a huge number of exemptions. I was loath to allow that to happen because it would give the wrong impression of the purpose of such legislation. We now have a new government and a new intention to put a Bill on the statute book. I accept that. However, I hope that the Minister will consider ways in which he can make the purpose of the Bill clearer. Several points are made in the briefing papers we have received on the subject. The issue was aptly put by Public Concern at Work, who said:

"While the first five lines of the Bill clearly give the public a general right to information, the following twenty three pages set out a complex system of inter-related and overlapping qualifications and exemptions".

We need to listen carefully to my noble friends Lord Lucas and Lord Mackay and to the Liberal Democrats and try to find a way of demonstrating that the Bill is intended to promote greater openness and accountability.

My concern is shared by a number of outside commentators and a number of noble Lords. As it stands, the Bill would encourage less openness than is presently allowed for under the code. We cannot accept that.

We greatly welcome the fact that we are at last able to get down to line-by-line scrutiny of the Bill. We have waited a long time. If I have a criticism, it is that we are being asked to improve the Bill at the last moment, in the final days of the Session. I hope that the Government will allow us enough time to devote ourselves to the task in hand. Now that there is to be a Bill, let us make sure, as the noble Lord, Lord McNally, said, that once it gets on the statute book it is at least as effective as the non-statutory code. I support the idea of a purpose clause.

I do not know why some noble Lords insist on the amendments in the light of what they have said. It is important that we test whether the Bill is ambiguous or less open than we would like. The only way to do that is by looking at the information set out in the Bill, not by looking at the general information that noble Lords have mentioned. The noble Lord, Lord Hunt, did not welcome that.

I hope that we will look carefully at the Bill. I share to a great extent the views of the noble and learned Lord, Lord Archer of Sandwell. I have not disagreed with him about civil liberties issues in the past, so I see no reason to do so in this case. However, I hope that we get on to ensuring that the Bill conforms to what we have said about it in the past by opening rather than closing the channels of information that are available through government departments.

I worked in the Department of Trade between 1974 and 1979. It then became the Department of Trade and Industry, and I served there again in 1997. On neither occasion were the civil servants inclined to shelter the Government from the information that is set out. I hope that the House echoes my belief in opening rather than closing the avenues of information that are available.

I was unable to be present on Second Reading, but I was here on 11th December 1997 when I gave a strong and unequivocal welcome to the Government's White Paper. This is my first opportunity to congratulate them on the Bill. I shall explain briefly why a purpose clause matters and would make a difference.

I am not normally a fan of purpose clauses. I am in favour of them only if they serve a practical purpose. The problem is that we are asking public authorities, the information commissioner and the courts to interpret and apply this constitutional measure in a general constitutional vacuum. Unlike many countries, this country does not have a strong Bill of Rights. We now have the Human Rights Act 1998, which is very welcome, but it guarantees freedom of speech only in the narrow way in which Article 10 of the European Convention on Human Rights has been interpreted by the European Court of Human Rights. The Strasbourg court has said that there is no convention right of access to information about the workings of government. That is a narrow view.

We do not start with a strong constitutional value in law that gives a positive right of access to information, subject only to necessary exceptions. I am not wedded to any of the three versions of the purpose clause that have been put forward, including the one that stands in my name. Whatever version is put forward, we need a strong expression of a constitutional right for the citizen to have access to information about the workings of government and other public authorities.

That can be achieved in various ways. A purpose clause is one possibility. Alternatively, the Bill could specify an appropriate standard for weighing and balancing the right to free speech against other public interests and rights. So far the Government have resisted the idea of putting in an appropriate standard of significant or substantial harm, which would serve the same purpose. The Bill therefore needs a purpose clause to establish a strong constitutional right to free speech, subject to necessary exceptions. It would be helpful if the Minister could tell us that he agrees that, even though they are not expressly stated, the purposes of the legislation include facilitating public access to information held by public authorities and the purposes described in Amendment No. 3. If he cannot give us that assurance, I should be grateful to know why not. If we could put in a proper standard to enable weighing and balancing when we come to the harm tests, a purpose clause would be much less important.

Finally, if the noble and learned Lord, Lord Archer of Sandwell, will forgive me, I do not agree with his Amendment No. 368. I believe that amending the Long Title would weaken the Bill rather than achieve his objective. However, it will be many hours before we reach that point.

Perhaps I may add one further point. The noble Lord, Lord Mackay of Ardbrecknish, referred to the New Zealand Freedom of Information Act as an example with a purpose clause. I thought that the Committee might like to know that that has been of real practical value in the way that I have described. In a case called Commissioner of Police v. The Ombudsman (1988), 1NZLR 391, Sir Robin Cooke, sitting as President of the Court of Appeal of New Zealand, referred to the purpose clause in order to be able to interpret the New Zealand Act in an appropriate way. I hope that that example can be looked at before this matter is taken further.

I rise briefly to support the purpose clause in some form, and the form in which it has been presented from the Liberal Benches happens to attract me very much. There must be a purpose clause because this is a constitutional Bill. As a general rule, I am on record in your Lordships' House as having opposed purpose clause after purpose clause, but not on constitutional Bills. Such a clause will serve as an aid to interpretation and, in this circumstance, it is essential.

I do not want to go over the procedure, the difficulties and the arguments. The important point is that an avalanche of amendments have been tabled long after Clause 1, which is not really a purpose clause at all. We are in a total shambles and under considerable pressure. For it to be suggested that we can redress or deal with the situation wholly adequately by dealing with each qualifying amendment as it arises is asking a little too much. If we had a purpose clause, at least it would serve as a guide or beacon which may lead us out of the shambles or enable us to deal with it.

Before I sit down, perhaps I may make the point that, whatever was or was not agreed between the usual channels, it is the Back-Benchers on all sides of the Chamber who have to deal with the shambles. I am one of them. I spoke at Second Reading and I am not sure that as yet I have been able to get my mind round the amendments sufficiently to be able to speak to many of them in Committee.

In some Bills a purpose clause is appropriate. However, for the following reasons, I do not believe that this is such a Bill. First, I hope that the English language has not reached such a level of semantic poverty that the words "freedom of information" cannot be understood and their message be plain to read. We do not want a purpose clause in this Bill because its Short Title is explicit, and its longer Title is clear, that the intention is to make disclosure of information a positive purpose. That provides the key to our consideration of the rest of the Bill. By the Short and Long Titles we can ascertain the purpose of the Bill and, where we need to, have light thrown on its construction.

Secondly, I fear that a purpose clause in a Bill of this constitutional importance would be a recipe for unnecessary, expensive and unwanted litigation. There would be litigation, if I may say so, on both sides: from those who adamantly want the information and from the bureaucrats who do not want to give it; and the purpose clause would be their vehicle for contest and delay. I do not believe that a freedom of information Bill should be the source of litigation; I believe that exactly the opposite is true. It should be there to educate the public by their obtaining information and to discipline civil servants and politicians by their knowing that they may have to give it.

Thirdly, I do not imagine that, if the Bill is passed, the Civil Service of our country—enormous as it is numerically and in power—could implement it without a code of practice. It would surely have to be given direction. In the code of practice introduced by the previous government a key passage to the civil servants stated:

"The approach to release of information should in all cases be based on the assumption that information should be released except where disclosure would not be in the public interest",

or where it was exempted under the code. I do not imagine that this Government intend that the public will receive any less than that given to it by a Tory government.

I am grateful to the noble Lord. I wonder whether he will address the point that I was trying to raise: that there is no criterion in the Bill that enables the weighing and balancing to be done in a way that would avoid the kind of unnecessary litigation that he and I wish to avoid. Does he take on board the point that there is a reference to prejudice but there is no indication as to the standard to be applied by officials, courts or anyone else? That is why we need the purpose clause.

The noble Lord, Lord Lester, anticipated my final point: that the need for a purpose clause is obviated by the attention which we should pay to the construction of the rest of the Bill in determining in each clause, item by item, the proper balance between government interest and that of the public.

However, in examining in detail what we intend to do, I hope that we shall bear in mind the following. I was once taught by one of my legal elders, who tried to explain the difference between a Teutonic lawyer and a British lawyer, that, for a Teuton, everything is prohibited unless it is permitted, but for a British lawyer, everything is permitted unless it is prohibited. I intend, as I am sure do all noble Lords during the course of the Bill, to ensure that where the balance must be struck, our sympathies will go to the citizen except where it can be shown that they should not.

Like my noble friend who has just sat down, I am not a great lover of purpose clauses, nor, indeed, is the noble Lord, Lord Lester. Four arguments have been put in this case for the purpose clause. First, it is said that it is an aid to interpretation. Secondly, it is said that it would be a clear and definitive statement of the Government's commitment to freedom of information. Thirdly, it would be a goad to the civil servants to behave in the way in which the Bill guides them. Fourthly, I suppose that it would help to create a proper balance. Much has already been said today about the balance of the Bill.

Provided that the Bill is in reasonable form, I believe that the effect of the clause on interpretation is fairly peripheral. I do not say that it does not exist but it is peripheral. Frankly, I do not believe that it has a great deal of effect as a goad to civil servants. It is a purpose clause at the beginning of the Bill. What is important is the way in which Ministers and the Government as a whole direct the Civil Service to behave; in other words, it is the way in which the rules governing the way in which civil servants are supposed to behave, the way in which those are drafted and, more particularly, the way in which they are enforced that are important.

Nor do I believe that there is a great deal that a purpose clause can do to produce a proper balance in the rest of the Bill. It can be a declaration at the beginning of a statute as to what the statute concerns.

In relation to this amendment, the only argument that I find at all persuasive is that it would be a clear and definitive statement of the Government's commitment to a freedom of information regime. However, I do not believe that such a clause in the Bill is the only way to achieve that.

During the course of this Bill, today or subsequently, it is important that the Government make it absolutely clear that their presumption is that information that is in the hands of the Government is disclosable unless there are strong and good reasons why it should not be disclosed. That is not the case if the balance is the other way round: that information should be retained unless the person asking for it can make a good case for having it revealed. Therefore, during the course of the Committee stage, I hope that it gradually becomes clear that this Bill is concerned with such a situation: that the Bill is about creating a balance in favour of disclosure and not about creating a balance in favour of retention. Having said that, I am not in favour of the inclusion of the purpose clause.

At about half past three this morning, when I was going home by taxi, the driver, on discovering whence I came, asked me what we had been discussing. I told him we had been debating the Countryside and Rights of Way Bill. He said, "What is the purpose of that?" and I endeavoured to explain. However, I did not have the Bill with me or the benefit of the Long Title. If the same taxi driver were to take me home tonight—I sincerely hope at an earlier hour than 3.30 a.m., although that is up to the Opposition Benches and not the Government Benches—I hope that I can give him a clear answer.

I am bound to say that the debate on these amendments will not help me. I do not believe that anyone, whether a taxi driver or the man on the Clapham omnibus—if such buses were to run as late as that—would have a better understanding of what we are about having listened to or heard the substance of the debate today.

There may be other reasons for purpose clauses, but I am not persuaded. If we are talking about the persuasiveness of any particular clause—for example, Clause 13—we have to address that clause and not whether a purpose clause will somehow make matters clearer. However, I have some interest in the point raised by my noble and learned friend Lord Archer, who has tabled an amendment to change the Long Title. It seems that everything that has been said in favour of a purpose clause is an argument for a clear and sensible Long Title. If the Long Title does what it is supposed to do—with the amendment tabled by my noble and learned friend, I believe that it would—we would have no need for a purpose clause. The Long Title would be sufficient.

When the noble Lord, Lord Dubs, goes home tonight perhaps he should take the amendment in the name of the noble Lords, Lord Goodhart and Lord Lester, and show it to his taxi driver so that he can explain the purpose of the Bill in a few seconds.

I shall leave the noble Lord to do that.

The first group of amendments concerns the purpose of the Bill. It may be helpful if I begin my comments by saying that the Government's purpose in introducing this legislation is to ensure that the right to know is placed on a statutory basis and that, consistent with proper regard for privacy, confidentiality and the effective conduct of public affairs, the right is exercisable freely and easily throughout the public sector.

Such a right to know would promote,

"(a) the accountability of public authorities,

(b) informed public debate on public affairs,

(c) public participation in the making of decisions, and

(d) public understanding of the powers, duties and operation of public authorities".

Those are the purposes referred to in the proposed purpose clause put forward in the third amendment in this group.

There has been much debate in this House and in another place as to whether the Government have achieved their aim with this Bill. We believe that they have. We have listened carefully to the arguments put forward and I hope that your Lordships will recognise that in many areas we have amended the Bill or proposed amendments for debate that reflect concerns expressed.

Before turning to the purpose clause, I want to tell the Committee how we are approaching this stage of the Bill. Your Lordships have an opportunity to listen to the views of the Government on the Bill, virtually clause by clause, and I hope to be able to persuade the Committee, on at least some points, that the Government have got it right. I have no doubt that many noble Lords will aim to convince the Government that in some cases we have got it wrong, or at least some further tweaking or amendment of the provisions is necessary. I cannot give the Committee any assurance that we shall accept all or any of the arguments, but we are a Government who intend to listen carefully to the arguments put during the Committee stage. I hope that what comes out of this process will be a constructive experience for all involved and for the Bill.

I entirely agree with the noble Lord, Lord Lucas, that what is required is a culture change in relation to disclosure of information. The Government intend that the Bill should act as the catalyst for that culture change. I join with the noble and learned Lord, Lord Archer of Sandwell, in enjoying the prospect of there being a freedom of information Act on the statute book.

I turn to the three amendments in this group. They are each designed to introduce a purpose clause. The amendment tabled by the noble Lord, Lord. Lucas, states that the purposes of the Bill are to,

"enable and encourage the provision of information by public authorities to the public".

The second amendment, in the name of the noble Lord, Lord Mackay of Ardbrecknish, states that the purpose of the Bill is to,

"facilitate public access to information held by public authorities",

That amendment is the same as a Conservative amendment tabled in another place, and it echoes a recommendation that was considered by the ad hoc Lords Select Committee, chaired by the noble and learned Lord, Lord Archer.

As has been mentioned on a number of occasions, the committee decided not to recommend a purpose clause because it felt that it was far better to deal with the issues by detailed provisions in the Bill. The noble Lords, Lord Lucas and Lord McNally, were both members of that committee. That view was echoed by the chairman of the committee, the noble and learned Lord, Lord Archer, and in a number of speeches made in the House on this series of amendments, particularly by the noble Lords, Lord Brennan and Lord Clinton-Davis.

We accepted the recommendation, in part, of the Select Committee to change the Long Title. We changed it from,

"Make provision about disclosure of information",

to,

"Make provision for the disclosure of information".

We did not go as far as the noble and learned Lord, Lord Archer, in the last amendment in this group, because we were advised that that was going too far in a Long Title. We believe that by changing the word "about" to "for", we provide the steer that his committee was after in the Long Title.

I am loathe to include further clauses in the Bill that are not necessary. I do not believe that either Amendment No. 1 or Amendment No. 2 would make any material difference. In those circumstances, there is not much point in including them. I believe that Amendment No. 3 tabled by the noble Lords, Lord Goodhart and Lord Lester of Herne Hill, attempts to do much more than is attempted by Amendments Nos. 1 and 2. I do not believe that a purpose clause along the lines of this new clause is appropriate, particularly in the light of the indication that I gave at the outset of my speech.

One must assume that such a clause would be given legislative effect by the commissioner, tribunal and courts. Therefore, it would change the balance of rights which the Bill as a whole achieves in a way which we cannot predict or control. It is not possible to say that in every case one right should trump another. The right of access to information must be balanced against the other rights to which reference has been made. Too strong a presumption in favour of disclosure for certain purposes, however worthy, over other competing rights to privacy, confidentiality and so on, could lead us into conflict, for example with the Data Protection Act which is a particular problem in the Bill. Openness does not have a monopoly of righteousness because, plainly, everyone accepts that in certain cases data protection or, in other circumstances, the right to privacy should prevail. Equally, confidentiality has its proper place.

I am grateful to the noble and learned Lord whose response I find extremely helpful. He persuades me that my proposed new clause may well be unnecessary. Perhaps the noble and learned Lord can assist on one matter. As the Law Lords have increasingly decided in recent cases that there is a constitutional right to freedom of expression, does the Minister accept that that must be treated with very great importance, subject only to necessary and proportionate exceptions? If that is accepted as a proper approach to the framework within which we look at this Bill, bearing in mind other fundamental rights to protect confidential information, personal privacy, the interests of good government and so on, that has a great bearing on my attitude to this matter.

I accept that there is a right to freedom of expression. Equally, I accept that there are other rights as the noble Lord indicates. It would be wrong for me to seek to define with any degree of precision the ambit of those rights, but of course I accept their existence.

If we emphasised specific purposes in a purpose clause as proposed it might backfire. For example, if business were to be inhibited from giving commercially sensitive information to the Government on the basis that it might be released under freedom of information, effective regulation of the financial sector, trade and commerce would be undermined. The public interest in FOI could, therefore, conflict with the public interest in regulation. In the light of what I have said, I ask the noble Lord to withdraw his amendment. I also ask the noble Lords, Lord Mackay of Ardbrecknish and Lord Lucas, to withdraw their amendments.

Before my noble and learned friend sits down, is he able to tell the Committee what became of the report of the group chaired by my noble and learned friend Lord Williams of Mostyn?

If my noble and learned friend refers to the advisory group on openness, its report has been published and placed in the Library of the House of Commons by my right honourable friend the Home Secretary.

I am grateful to the Minister for that reply. We thoroughly understand each other's position. As we go through the Bill there will be an opportunity to determine whether in the end we agree with the noble and learned Lord or take the view that this matter should be pursued at Report stage. At this stage, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 4:

Page 1, line 14, after ("sections") insert ("Effect of exemptions,").

I am content if the noble and learned Lord chooses to cover the subject matter. At this stage I believe that Amendments Nos. 16 to 23 would be better debated singly, but it may be that the noble and learned Lord has such weighty opinions to deliver that I shall not find it necessary to move them. I do not discourage the noble and learned Lord from speaking to those amendments, but it is probable that I shall not refer to them.

The noble Lord's use of the word "weighty" perhaps overstates it. However, it may be convenient if I briefly set out the Government's view on the matter. The noble Lord can then take whatever course he believes convenient.

I agree with the noble Lord, Lord Lucas. As Amendment No. 10 stands in our names, we are content that Amendments Nos. 10 to 15 should be taken together with the initial new clause amendment. We also prefer Amendments Nos. 16 to 23 to be taken separately.

It is probably convenient if I briefly set out our position. I shall proceed on the basis that noble Lords will want to return to it, unless by mistake, as it were, we have a complete debate at this stage. The other amendments in the group are Amendments Nos. 75, 79 92, 96, 97, 270, 292, 329, 340, 343, 348 and 358.

The noble and learned Lord referred to Amendment No. 97 as forming part of this group. That amendment is grouped with Amendments Nos. 10 to 15.

Subject to the exclusion of Amendment No. 97 and Amendments Nos. 10 to 23 being effectively de-grouped, perhaps I may deal with the group of amendments that I have just described.

The Government have always been honest about the complexity of drafting freedom of information legislation. It involves a difficult balancing act between the citizen's right to know and the public interest in maintaining the right to confidentiality in appropriate circumstances. That difficult balancing act must be translated into legislative form. However, we also accept that as the drafting of this Bill has evolved in a number of respects it has lost its way in expressing the balance of those rights with adequate clarity. I am sure everyone accepts that clarity in this area is of great importance. That is particularly true of the provisions dealing with rights of access in Clauses 1 and 13. Therefore, I should like to speak to the following amendments which simplify the parts of the Bill which deal with the right of access. However, I stress that, save in one respect to which I shall refer, they do not alter the substantive effect of the Bill as far as concerns the right of access, except for some minor changes to which I shall come later.

The changes, which are intended simply to produce better drafting, include the omission of Clause 13(5) from the existing draft of the Bill. Clause 13(5) provides:

"In making any decision under subsection (3) or (4) in a case where the information is exempt information by virtue of section 33(1)(a), the public authority shall, in particular, have regard to the public interest in communicating to the applicant factual information which has been used, or is intended to be used, to provide an informed background to decision-taking".

That provision was intended to underline the public interest in the disclosure of factual information which informed the taking of policy decisions. It has been deleted by these amendments. I believe that the Liberal Democrats have tabled a subsequent amendment in which they seek to delete it as part of a package of amendments which also amend Clause 33. While we do not accept the wider amendment of Clause 33, we have concluded that Clause 13(5) has been omitted in error.

The noble Lord, Lord Lucas, has tabled Amendment No. 14 which proposes to insert a similar provision. Therefore, although the provision is deleted from the draft that I am dealing with, when we reach Report stage we intend to insert a provision similar to that proposed in Amendment No. 14. Perhaps the Committee should read Hansard to pick up the beauty of all of that, but it is an important point to make at this stage.

I now describe the principal amendments which restructure and simplify the provisions of the Bill. As currently drafted, the general right of access in Clause 1 is separated from the provisions of Clause 13 which give a right of access where the public interest in disclosure outweighs the public interest in maintaining the exemption. These amendments bring the rights of access together at the head of the Bill. They express more clearly the effect of the exemptions in terms of public interest disclosure by distinguishing between the provisions in Part II which confer an absolute exemption, where the need to balance the public interest in disclosure against the public interest in maintaining the exemption does not arise, and other exemptions whose application must be balanced against the public interest in disclosure. This is preferable to the current drafting where the relation between the general right of access, the duty on authorities to disclose information in the public interest and the effect of the various exemptions is not clear.

Amendment No. 9 makes certain other changes in respect of the following provisions which do not confer an absolute exemption. Those changes are as follows. I shall deal first with Clause 34. Amendment No. 9 includes the exemption in Clause 34—that relating to the effective conduct of public affairs—in the list of absolute exemptions in so far as it relates to information held by either House of Parliament. This is not a change of policy, merely of approach. The Bill as it stands already excludes the operation of Clause 13 in relation to such information—that is Clause 13(7). However, it does so by reference to the issue of a certificate under Clause 34(6). This approach we believe confuses the issue of a certificate, which is purely an evidential issue, with the substantive question of whether the public interest test should be applied.

It is necessary to exclude the operation of the public interest test in relation to information held by Parliament and exempt by virtue of Clause 34 as, although disclosure of such information may not technically constitute a breach of parliamentary privilege, the effective conduct of Parliament is so closely connected with it that the same consideration applies. For example, something that might prejudice the conduct of parliamentary affairs but not be a breach of parliamentary privilege is advice from the Clerks of the House to the Speaker. Another example is advice from officials of the House to Members of the House. Neither of those would fall into the category of parliamentary privilege but disclosure under freedom of information could prejudice the affairs of Parliament. It is for Parliament alone to consider whether to disclose such information. That is the amendment to Clause 34.

I now turn to Clause 38. The approach in relation to Clause 38, to the limited extent I shall now set out, is a change of policy and a response to an issue raised in another place. In the Bill as currently drafted, disclosure to a "third party" of personal information could be prevented because of the data subject's right under Section 10 of the Data Protection Act 1998 to prevent processing—which in effect means disclosure—which was likely to cause him substantial damage or substantial distress. The public authority concerned would have no need to consider the public interest in disclosure because the public interest test in Clause 13 currently does not apply in such cases. Therefore, if one had a Section 10 Notice saying that disclosure of this information would cause a particular individual substantial damage or substantial distress, that is the end of it; you do not need to disclose it. That is what the present law prescribes.

Section 10 of the 1998 Act implements Article 14(a) of the 1995 EC Data Protection Directive. This Article requires, in certain specified circumstances, that the data subject be given the right to object at any time on compelling legitimate grounds relating to his particular situation to the processing of data relating to him, except where national legislation provides otherwise. If the objection is justified, the processing may no longer involve this data.

The Government have now reached the view that subjecting this right to the public interest test, in Clause 13 of the Bill as currently drafted, would be consistent with Article 14(a). The substitution of subsection 3(f) of the new clause in Amendment No. 9, for subsection (2)(e) of Clause 13, will mean that the disclosure to which the data subject objects under Section 10 of the 1998 Act, will nonetheless be made, where it is required in the public interest, provided that making it would not breach the data protection principles. So what one has now is that even though there is a Section 10 Notice saying that substantial distress or damage would be caused by disclosure, that does not any longer automatically mean no disclosure. The public authority has to balance that against the public interest in disclosure. So it is a step towards greater openness. Of course, the public authority's decision under the public interest test clause will be reviewable by the information commissioner. If she concludes that the information should be disclosed in the public interest, her decision is enforceable, subject to the provisions of Clause 52.

I now turn to Clause 43. Other amendments tabled in my name remove Clause 43 from the Bill. That is the power that would have allowed further exemptions to be made by order. That clause is going. That is a source of some pleasure to certain parts of the Committee. In anticipation of these amendments, Clause 43 has here been removed from the list of absolute exemptions in the new Clause 2.

The remainder of the Government's amendments are consequential on the restructuring of the provisions dealing with the right of access, and merely tidy up the rest of the Bill to reflect this restructuring.

Perhaps I may briefly touch on the other amendments tabled in the names of other Members of the Committee. Amendments Nos. 16 to 23—to which I shall return shortly—will require authorities to come to a decision on public interest disclosures for all exempt information. Amendment No. 96, tabled by the noble Lord, Lord Mackay of Ardbrecknish, also seeks to remove the list of absolute exemptions from the public interest test of the Bill. However, it also goes slightly further in so far as it seeks to include information which would be exempt under Clause 11—that is, exemption where cost of compliance exceeds certain limits—within the scope of the public interest test.

So far as concerns information exempt by virtue of Clause 11, it should be noted that nothing in the Bill actually precludes the disclosure of information by a public authority in response to a request, no matter what the cost of compliance with that request would be. Where an authority has the power to disclose information, it will have to consider disclosing this information. The Government expect such information to be released and so they have tabled a new Clause—Amendment No. 90—dealing with the issue of charging for such information. Therefore, Amendment No. 96 is unnecessary to that extent.

Amendments Nos. 16 to 23 deal with each of the absolute exemptions. Perhaps I may briefly say what the Government's case in relation to each of those is. The first of those is information under Clause 19; that is, information that is already accessible by other means. It would be a nonsense for authorities to have to provide information that would be reasonably accessible by other means. An example of that would be a request for a telephone directory. Authorities should not be obliged to have to consider whether to send an applicant a copy of a telephone directory. Clearly, the applicant can look at his own or approach British Telecom for one.

Alternatively, the authority may be obliged to provide the information under another regime. An illustration of that is the Local Government Act 1972. That Act requires local authorities to make certain information available, and so there is no need for the authority to consider disclosure under freedom of information. It is important to note that, under Clause 19, if the information is not reasonably accessible to the applicant, then the applicant may apply for it under FOI. Freedom of information will therefore operate as a "top up" to the other free-standing access regimes. The information commissioner will have the power to determine whether the information is in fact reasonably accessible to the applicant or not.

I turn now to Clause 13; that is, whether information supplied by or relating to bodies dealing with security matters should be an absolute exemption. As a matter of policy, the Government are committed to ensuring that the work of such bodies is not hampered by FOI. The Bill, therefore, excludes the bodies themselves. Moreover, because of the extremely sensitive nature of this information, disclosure of information related to the work of the bodies will also always be against the public interest. Therefore, if the information requested falls into this class, there should be no further need to consider whether or not to disclose it.

Court records are also excluded from what was Clause 13. Subject to the views of the Committee, that will be Clause 2. This is because the normal rules should apply to the release of court records, and when an applicant requires disclosure of information contained in them, it is for the courts to determine what should be made available.

For that reason, once an authority has established that the information falls into that class there is no reason for the authority to consider further whether or not to release it in the public interest. That is a matter for the courts to decide.

The next area where Clause 13, now Clause 2, does not apply concerns parliamentary privilege. This is for Parliament to decide, not public officials. Personal information is covered by Clause 38(1) and individuals have a right of access to information about them under the Data Protection Act. That Act sets out exhaustively the right to such information. There is no need to come to a further decision on the public interest in the disclosure of such information. Personal information about a third party is also outside the scope of the duty if its disclosure would contravene the data protection principles. Disclosure contrary to those principles would be contrary to EU law and the European convention and thus there is no room for a public interest test.

We also exclude from the new Clause 2 information supplied in confidence. The common law duty of confidence contains a public interest test, so that if the public interest requires that certain information should be disclosed a duty of confidence cannot attach to that information. In such a case the information would not be exempt and the information would be disclosable under Clause 1. There is therefore no need to apply the further public interest test. If a duty of confidence does arise it should not be put in doubt by the application of a further public interest test under what will become Clause 2.

Turning to Clause 42 and prohibitions on disclosure, where as a matter of law the authority may not disclose the information in question the Bill does not require its disclosure. The public interest in disclosing the information will already have been taken into account in establishing the prohibition, often by Parlament itself, and there is therefore no need for authorities to consider the question under FoI. However, the Government recognise that some statutary bars to the release of information have outlived their usefulness and therefore Clause 74 of the Bill provides a power to enable such bars to be amended or repealed to allow the information to be disclosed. A review of the 400 or so bars is currently ongoing, and the Government will in due course announce possible candidates for amendment or repeal.

I have already dealt with Clause 43(2), removing the power to increase exemptions. Amendment No. 20 seeks to remove Clause 34 to the extent that it refers to information held by the House of Commons or the House of Lords from the list of absolute exemptions. This is in response to the government amendment introducing Clause 34, to the extent that I mentioned, to the list of absolute exemptions. I have already set out why that aspect of the government amendment is necessary. I have gone very briefly through the reasons why each one is an absolute exemption. That touches on Amendments Nos. 16 to 23 and it is entirely in the hands of noble Lords who wish to put amendments as to whether to deal with them now or later.

Amendments Nos. 10 and 12 I will deal with when they have been raised. The same applies to Amendments Nos. 11 and 13 to 15. I think that is all I can usefully deal with at this stage. I beg to move.

I wish to speak to Amendments Nos. 10 and 12 as amendments to Amendment No. 9, moved by the noble and learned Lord. First, I should like to say that we welcome aspects of the new clause. We think that the new way in which the interface between freedon of information and data protection is to be handled is a significant improvement. There is one aspect, though, of the new clause as a replacement for Clause 13 which we believe to be an improvement but which the noble and learned Lord did not discuss. That is the question of the interaction between this new clause and Clause 49, which is the clause under which the information commissioner has power to make decisions.

Under Clause 13(3) and (4), it was for the public authority to decide whether in all the circumstances of the case information should or should not be disclosed or whether there should be confirmation or denial of its being withheld. Clause 13 (3) says:

"Where the duty to confirm or deny does not arise but it appears to the public authority that, in all the circumstances of the case,"

and so on. It appeared to us, arguably, that the effect of those words was that in Clause 49 the role of the information commissioner would be purely one of judicial review; that is, of deciding whether there were effects on the basis of which a reasonable public authority could have come to that decision. As we understand it—and I should like to hear from the noble and learned Lord whether this is a correct conclusion—the new wording does not refer to the opinion of the public authority. It simply says that the question is whether, in all the circumstances of the case, the public interest in disclosing outweighs the public interest in maintaining the exclusion.

On that basis, it is our understanding that the test is an objective one and if the information commissioner comes to the conclusion on an application under Clause 49 that she would herself have come to a different conclusion, then she is entitled to substitute her own conclusion for that of the public authority, even if it could not be said that the decision of the public authority was irrational.

That seems to me a very important point because the public authority is obviously an interested party. It cannot be regarded as an independent or impartial tribunal. It is taking a decision which is subject to review by the information commissioner, and it is obviously correct that the information commissioner must, as the first independent reviewer of the position, be entitled to substitute her own decision for that of the public authority. That certainly is something that we regard as a major bonus of the new clause but in view of the fact that the noble and learned Lord did not mention it in his speech it concerns us whether that is in fact the intention of the Government. We would hope to be comforted in that respect by hearing that it was the intention.

Perhaps it would be as well if I reply to that point now. There is good news and bad news in this respect. I think the noble Lord, Lord Goodhart poses the question whether the removal of the words "it appears to the public authority" means that the commissioner now has wider powers under Clause 49: that is, she can substitute her own view rather than being inhibited by something similar to a judicial review-type test. I think that that is the question. We say that it does not change the existing position. We say that the position has always been that the commissioner could substitute her own view for that of the authority. So the bad news has been replaced by the good news at the end, and the removal of the words we believe have made the position clearer. That is why I did not mention it as a change, because it was referring to a position that already existed. I am sure that that will satisfy the noble Lord.

The bad news has clearly been trumped by the good news. For that reason, I am happy with the assurance given by the noble and learned Lord.

I shall turn now to Amendments Nos. 10 and 12. As the noble and learned Lord, Lord Archer of Sandwell, pointed out in his contribution, Clause 1(1) states that anyone who requests information is entitled to receive it. That seems to us to be the proper and correct principle on which the Bill should be based. Of course we recognise that that principle cannot be unconditional. No freedom of information legislation anywhere in the world is completely unconditional, but the principle that the information held by an authority should be made available is most important. The new clause plainly contravenes this principle, as indeed did the original Clause 13. Under subsection (1)(b) of the new clause, the duty to confirm or deny applies only if,

"in all the circumstances of the case, the public interest in disclosing whether the authority holds the information outweighs the public interest in maintaining the exclusion of the duty to confirm or deny".

Similarly, under subsection (2)(b), the duty to disclose applies only if,

"in all the circumstances of the case, the public interest in disclosing the information outweighs the public interest in maintaining the exemption".

It is of course true that these provisions apply only to information exempted under the provisions of Part II and not to other information. However, that part of the Bill contains an extremely long list of exemptions. It includes no less than 24 clauses, each of which specifies a different type of exempted information. Indeed, eight of the 24 clauses provide exemptions even from disclosure under the proposed new clause. We shall need to look at those eight cases in more detail when we come to later amendments.

However, subsections (1)(b) and (2)(b) of the new clause are plainly inconsistent with the principle because they turn the wrong way round the burden of proof. It is possible to secure confirmation that information is being held, and subsequent disclosure of that information, only if the public interest in disclosing such information outweighs the public interest in maintaining the exclusion. Surely the principle to apply here should be that information must be disclosed unless the desirability of so doing is outweighed by the public interest in maintaining the exemption. If the balance is equal, disclosure should take place.

It is fair to say that I doubt whether, in practice, this will make an enormous difference. In most cases, it will be possible for whomever is adjudicating to come to a decision on whether one interest does in fact outweigh the other. But the fact that the statute calls for maintaining the exemption in cases of equality sends absolutely the wrong signal. The trumpet call for freedom of information in Clause 1 is muffled and muted by the inconsistent rule which has been proposed for inclusion in the new clause.

I believe that my Amendments Nos. 11 and 13 address much the same points just covered by the noble Lord, Lord Goodhart, although they do so rather less well. Under those circumstances, I prefer his amendments. However, my argument is exactly the same: when a close balance needs to be struck between disclosing information and not disclosing information, the disclosure of information should win. I agree very much with the noble Lord, Lord Goodhart, on this point. Whatever may be the legal implications of what has been proposed, the implication in plain English suggests that one will have to prove that information ought to be disclosed and that the balance must fall clearly in one's favour before such disclosure is to be allowed.

I accept that that may not be exactly how it could be interpreted legally but that is how it reads to me and clearly to the noble Lord, Lord Goodhart. I believe that the noble Lord's suggestion that the phrase should be turned around would—if it would make no legal difference—greatly improve its accessibility in terms of plain English. A great many people who will care deeply about the provisions in the Bill will wish to read them in plain English rather than in "legalese".

I am delighted that Amendment No. 14 may have some effect here. I shall be happy to wait to see what that is to be and I shall reserve my reaction until the appropriate time. As regards Amendment No. 15, I shall be much comforted to be told that that is to be dealt with in some other way. It is a difficult matter to address at this point in the Bill. However, it is clear that instructions to public authorities in some form must be included as regards how they are to deal with decisions to be reached under the provisions of the new clause in Amendment No. 9. We address that point elsewhere by suggesting in another amendment that the information commissioner should be given a role in instructing public authorities on how they should reach such decisions. Whether that is to be the case, it is clear that instructions in some form are needed here. I shall be content if I am told that the noble and learned Lord agrees with me that, where a matter is no longer under active consideration, in principle that should be construed as evidence in favour of it being disclosed.

The noble and learned Lord has given me food for thought as regards Amendments Nos. 16 to 23. I believe that it will be easier to deal with them separately and individually. In the light of what the noble and learned Lord has already stated, I may no longer bother to move some of them; indeed, to address them now would merely complicate matters. They will each require individual and practical attention.

Perhaps I may turn now to Amendment No. 79, tabled by the noble and learned Lord. I do not intend to address this in detail today, but I am distressed to see that the noble and learned Lord has not taken the opportunity to examine the matter of time limits. It seems to me that we have a lacuna in the proper operation of the Bill, in that in circumstances where a public interest test arises no time limit will be imposed on a public authority's deliberations. It could take three or even six months to consider the matter. As long as it is actively considering an issue under that heading, it entirely escapes the time limits imposed by the Bill—or at least that is how I read it. It may be that I have it wrong. If that is the case, I shall be happy to be corrected. Otherwise, the provisions of Amendment No. 79 will need to be revisited when we consider the Bill on Report.

In considering the extremely helpful new clause set out in Amendment No. 9 and questions such as the burden of proof, it would be most useful if the noble and learned Lord could indicate how he considers the phrase,

"the information outweighs the public interest",

is to be addressed. I take it from his earlier speeches that he would agree that the starting point is the right of the public to have access to information, subject to certain necessary exceptions. I take it also that he would agree that those exceptions should be necessary in the sense that they should apply only where the principle of proportionality operates. Thus the starting point would be access to information. We then come to exceptions, where they are necessary, with the application of the principle of proportionality.

This might be covered by the phrase, "the information outweighs the public interest in disclosure" and "outweighs the public interest in exclusion". However, this is the first example we have reached which demonstrates the absence of a legal standard or criterion. It would therefore be helpful if the Minister could indicate the Government's position here.

In some recent cases, in particular in R v. Secretary of State for the Home Department, ex parte Simms, which concerned restrictions on access to the media by a prisoner, and another, Reynolds v. Times Newspapers, which concerned how to balance reputation against free speech, the Law Lords indicated that the starting point always should be free speech, subject to any necessary exceptions. However, it would be undesirable if we needed to establish through litigation what ought to be plain and obvious. Either this should be dealt with by making the situation plain on the face of the Bill or at the very least by a Pepper v. Hart statement from the Minister—even though I do not particularly favour that.

Either now or at a later point in the passage of the Bill, will the Minister also address the issues of the legal test and burden of proof and how he sees these points being worked out in practice?

Some noble Lords were somewhat starved of sleep last night. I do not think that I am firing on quite as many cylinders as has sometimes been known. For that reason, I hope that my noble and learned friend will forgive me if I read carefully what he said when introducing the new clause. Meanwhile, silence does not necessarily imply assent.

Perhaps my noble and learned friend can assist me with one matter. We now have an expression in the Bill which, if I am not mistaken, was not there before—that is, "absolute exemptions". I take it that the expression is intended to distinguish those exemptions from exemptions which are subject to either a harm test or a public interest test. However, I wonder whether they have any other significance—whether they are intended to have some other meaning or whether it is simply an attempt to add emphasis, like heavy breathing. Perhaps my noble and learned friend could elucidate on that when he replies.

Before the Minister replies, perhaps I may invite him to deal with the practical application of subsection (1)(b) so far as concerns government employees and the public. The Committee has just listened to a classic example of the fear I expressed not more than half an hour ago that when you set lawyers onto this Bill they will have a field day. We have had one on this subsection, but that is not a proper state of affairs.

I anticipate a problem that, if the Bill becomes law in these terms, government civil servants will develop a frame of mind in which they think information can be withheld unless the applicant can convince the commissioner that the public interest outweighs the government interest. Much more importantly, the ordinary citizen who makes an application and is put in contact with the information commissioner will want to know the substance of that upon which he is about to embark. Will he be told, "It is for you to show the commissioner that your interests and those of the public outweigh the interests of the Government"? Or will he be told, "You cannot obtain disclosure unless you can convince the commissioner it is in the public interest"? That is an extremely important practical application of the Bill. It would be most unfortunate if the Bill came into legislative force without some practical direction being given to it in the way I have indicated.

During the previous debate, the noble Lord, Lord Dubs—who is unfortunately not in his place and cannot accept my challenge—said that he wanted to know what he could say to his taxi driver tonight when explaining what the Bill was about. I would happily pay the noble Lord's taxi fare home if I could hear him explain this Bill to the taxi driver in a way that he could understand it.

I am also reminded that when we were in government I had two namesakes—my noble and learned friends Lord Mackay of Clashfern and Lord Mackay of Drumadoon. I occasionally went to speaking engagements where it was perfectly clear to me that a good proportion of the audience had come along thinking that they were going to hear one or other of those learned gentlemen. I always said that I was sorry to disappoint them, but they knew that I came cheaper.

I hesitate to intervene in this debate between noble and learned Lords, whether they are technically learned in the phraseology of the House of Lords or learned because they are senior lawyers. I hope that not too many members of the public need to rely on the previous 39 minutes to work out whether or not they have rights under the Bill.

I have tabled Amendment No. 96, which covers, in a different way, the same ground as that covered by the amendments of the noble Lords, Lord Goodhart and Lord Lester, and of my noble friend Lord Lucas. They cover the whole question of the public interest test and the exemptions to it.

Moving the provisions of Clause 13 to the beginning of the Bill is a step in the right direction. It creates one point of access to the Bill instead of two. However, if I have understood much of the debate, the real point is that the Government have retained the provisions which exempt certain kinds of information from a public interest test as to whether or not it should be released.

We believe that, if we are going to have a freedom of information Act, as much information as possible should be released. It is right that a public interest test should be applied as to whether certain exempt kinds of information should be released. Amendment No. 96 takes us through the various sections originally contained in Clause 13 but which are now contained in government Amendment No. 9.

It is worth reminding the Committee of the absolute exemptions contained in the amendment. They will constitute a problem for an ordinary person, who will have to weave his way through the Bill to discover them. If ever a Bill needed to be written in plain English, it is this one—especially if it is to be used by plain people, like myself, who wish to understand the Bill and to obtain information from government departments without having to pay fees.

The first exemption is information which is accessible to the applicant by other means. One does not have to have worked very long in government with civil servants to know that that exemption could certainly be used to shut a good few doors once the clever people got at it. The next exemption concerns information relating to the work of bodies dealing with security. I understand the reason for that, although again that could cover a multitude of sins. Other exemptions include court records supplied to public authorities; information supplied subject to parliamentary privilege; and personal data—an extraordinarily complicated area that we shall go into later, in which we could find two well-meaning principles conflicting with each other. Further exemptions include information the disclosure of which would constitute an actionable breach of confidence; and information the disclosure of which is prohibited by statute, is incompatible with a Community obligation—I would not have thought that any information could be kept secret because it is inconsistent with a Community obligation, but never mind—and would involve contempt of court. Even I understand that one.

In addition, I have suggested—the noble and learned Lord has addressed this matter—that the public interest test relating to costs exceeding appropriate limits should be questioned. Government Amendment No. 90 may make that aspect of Amendment No. 96 unnecessary.

It seems to me that we should not exempt broad classes of information without a public interest test. I suspect that many people inside government will find Clause 13—which has now been moved to the beginning of the Bill by the noble and learned Lord—a mine where they can find excuses and reasons for not disclosing information. The people who have a close interest in this issue and have looked at it from a legal point of view are signalling the same kind of concern.

Once we see the new print of the Bill, with the noble and learned Lord's amendments in place and after we have had an opportunity to study what he said, we may well have a clear view of the Government's position. We may or may not like that and we may have to return to the issue. However, for the moment, I wish to lay Amendment No. 96 before the Committee as a suggestion for perhaps improving public access to information held by governments in the same way as other noble Lords who have spoken.

I agree entirely with the noble Lord, Lord Mackay of Ardbrecknish, that the Bill should be as clear as possible. We have sought to make it as clear as possible. I should emphasise that if noble Lords come forward with amendments designed to increase the clarity of the Bill, we shall certainly consider them. It is a difficult process to make the Bill as clear as possible because it is a Bill which will be used by citizens in exercising their rights to freedom of information.

Turning to the main points raised by Members of the Committee, the noble and learned Lord, Lord Archer of Sandwell, asked what is meant by an "absolute exemption". An "absolute exemption" means an exemption contained in new Clause 2(3)—that is, an exemption to which the public interest provisions do not apply. It has no meaning beyond that. It is simply a means of identifying which exemptions do not have the public interest test applied to them once it is established that the information is within the exemption.

In their separate amendments the noble Lords, Lord Mackay of Ardbrecknish and Lord Lucas, seek to remove all of those exemptions. In relation to the remarks of the noble Lord, Lord Mackay, in support of that aspect of the amendments, he began to indicate that there were some such as the security services that he might accept should be included. He did not seem to indicate that parliamentary privilege should be an absolute exemption. I am not sure what he was saying in relation to court records. Our point is that if it is a court record, surely the court should decide, not a public official.

In relation to personal information, the noble Lord said that the issue is very complicated. Indeed, it is. We are saying that there is a legal code dealing with personal information that has been enacted into law. We should stick with that. In relation to information supplied in confidence, that is not covered by a public interest disclosure test because material in confidence can be held back only if it can be established that the confidentiality outweighs the public interest in the first place—so one is effectively repeating the test that one has already applied to get the exemption in the first place.

I am grateful to the noble and learned Lord for giving way. Like the noble and learned Lord, Lord Archer of Sandwell, I do not have a wide-awake Renaissance mind about these matters. I should like the noble and learned Lord to clarify one point. Am I right in thinking that the new clause will not have an impact on Clause 33, dealing with information from private offices, government and so on, that there will be not an absolute exemption but that something will be brought back later in place of Clause 13(5) that will involve a balancing test? Is that the scheme being contemplated?

Yes. Clause 33 is not an absolute exemption clause. It means that, in regard to any information that is exempt because it relates to policy, the public authority has then to consider in relation to all of the information covered by Clause 33 whether the public interest favours disclosure. In considering that, it must have regard to the fact that there is a public interest in disclosing factual matter which forms the background of a policy decision. That is the structure.

The only other area raised by the noble Lord, Lord Mackay of Ardbrecknish, concerned information that is reasonably accessible by other means. That matter can be tested by the information commissioner.

Before my noble and learned friend proceeds, I should be grateful if he could resolve something that is puzzling me. Why is it so important to ensure that information which is already available by other means does not emerge, whatever other tests may be applied to it?

If the matter is reasonably accessible by other means—that issue is justiciable before the information commissioner without any possibility of ministerial override—it would not seem sensible to make it also susceptible to the public interest test. The information commissioner will have decided that the information can be obtained somewhere else. That is the factual issue which should determine whether one gets it through the freedom of information regime. That seemed to be the only area that the noble Lord, Lord Mackay of Ardbrecknish, pursued with any degree of vigour.

I have already explained why we say that there should be these absolute exemptions. They have been carefully thought out and they seem to us to be sensible.

Perhaps I may turn to the raft of amendments which address the—I think the term was used loosely—burden of proof point in relation to the exercise of the public interest test in what will become Clause 2. The amendments of the noble Lord, Lord Goodhart, would reverse the balance of the public interest test in respect of the exemption from the duty to confirm or deny. Instead of requiring that the public interest in disclosure must outweigh the public interest in maintaining the exemption, the amendments would require the public interest in maintaining the exemption to outweigh the public interest in disclosure.

How does it work in practice? I do not think that it is a burden of proof issue. This is not about fact and whether a case is made out. It is for the public authority to consider what weighs in the balance in favour of disclosure and what weighs in the balance in favour of maintaining the exemption. Whichever is the higher prevails in relation to whether there is disclosure. The courts have repeatedly said that that is not a burden of proof case. The public authority cannot say, "It's not proved where the balance lies". The public authority has to address the issue and come to a conclusion in relation to it.

The noble Lord's amendment would make a difference in a case where the balances were equal. In that case the position would be that the information would not be disclosed because of the way the provision is drafted. We believe that that is very unlikely to happen. The public interest is not susceptible to being weighed in such a way that it would lead to that. There will be an answer one way or another. The point I have identified is the one made by the noble Lord, Lord Lucas, in relation to his amendments. I recognise that there is strong feeling about this issue. I suspect that that feeling is not about what I think would be a very unusual case where the balance was very fine. I suspect that it is more about what message would be sent to authorities and to the public about creating a presumption of openness. That informed both the noble Lord, Lord Lucas, and the noble Lord, Lord Goodhart.

I hope that the remarks I made at the outset of the Committee stage have indicated where the Government stand in relation to these issues. However, in the light of the strong feeling that has been expressed, and without giving any assurances, I shall consider the arguments put forward and we shall reflect on what their effect may be.

I shall try not to make a habit of intervening unless I think it is really necessary to do so. I am grateful to the noble and learned Lord for what he has just said. In reconsidering the matter, will he look at the case law? In cases such as Spy Catcher and some of the other cases it would not be right to have an even-balancing in the scales in the way the noble and learned Lord has described. There should be a right of free expression subject to necessary exemptions. That has been clear going right back to the Thalidomide case in the European Court of Human Rights. Will he consider those cases? We are concerned to ensure that it is a question of exceptions to a positive right to free speech and access to information. I should be grateful if the noble and learned Lord would consider that point when he considers the debate.

We will look at the relevant cases, but I am trying to explain the effect of the existing legislation, which is plainly a different matter from, for example, the exercise of a judicial discretion in the Spy Catcher case, which concerns a different kind of legal framework.

The noble Lord, Lord Lucas, fairly said that he preferred the amendments of the noble Lord, Lord Goodhart, to his own amendments in this case. With respect to him, I shall not spend too much time on his amendments save to say that his amendments envisage there being a balance in favour of non-disclosure in certain circumstances. Yet because it is not a substantial balance in favour of non-disclosure, there would nevertheless be disclosure even though, whatever test one applied, the public interest was against it. That seems to us not to be a sensible conclusion to reach.

The noble Lord is absolutely right about Amendment No. 14. I have already indicated that we may well come back to that, or something like it, in order to restore what was previously Clause 13(5) of the Bill. I think that I have dealt with all the amendments in the group.

Perhaps I may raise one final point. I do so with some reticence given the number of people who are involved in this debate who must read through all these complicated clauses and amendments.

Perhaps I may explore the term "personal data" referred to in Clause 38, where the position is absolute. I understand that "personal data" may be, for example, my records of payments to the Inland Revenue. To be honest, the only thing that would embarrass me would be people knowing how little I have to pay to the Inland Revenue. Nevertheless, payments to the Inland Revenue ought to be fairly private and confidential, as should other matters of that nature.

But papers circulating inside government always have names at the beginning and end. The end usually tells me which official a paper is from, and the beginning usually tells me to whom it has been copied. I recall an awkward experience that I once had with some documents on policy matters—which would rightly be covered by this Bill—when they were leaked to the then Opposition, who did not seem to be too bothered about using them; indeed, they used them with alacrity. While I was not happy that policy papers were being leaked, what annoyed me above all was that the name of an official of the department who had written the document came into the public domain and he took a bit of a hammering from interest groups who were not pleased about what would be the effect of the policy.

Would a paper about statistics or whatever, which in all other ways would be available to the public, possibly some years after the policy had been decided, be covered by the term "personal data" because of the name at the end? Or would the name simply be blanked out? Would the names of the people to whom it was copied come under the heading "personal data"? Sometimes, the name of the person to whom a document is copied is a most important piece of information. People say, "I did not know anything about this". Yet the document states that it was copied to them: so either they knew about it and had forgotten; or, if they knew, they were not going to let on; or else they did not bother to open their Red Boxes that day. I wonder whether that will be considered personal information under Clause 38. Frankly, if it is, very few government papers will ever see the light of day. I do not know whether this is the appropriate point for the Minister to reply to this question; however, I hope that I have posed it clearly and I look forward to his reply.

I think the question is: are references to people who receive and send documents—the noble Lord refers by way of example to officials, but this could equally apply to Ministers—covered by the expression, "personal data"? In principle, they could be personal data, but the question then becomes: would the data protection principles apply to prevent disclosure? If they did not prevent disclosure, then they could be disclosed. If they did prevent disclosure, it would still be possible to delete the name of the individual concerned and make disclosure of the rest of the document.

I apologise for not dealing with Amendment No. 15 tabled by the noble Lord, Lord Lucas. In effect, it examines whether or not the fact that a matter is closed should be a relevant consideration in regard to whether or not the public interest required disclosure or whether it is under active consideration. I can quite understand why the noble Lord should have selected the currency of information as a relevant factor; but it will be only one factor among many. Public authorities will inevitably have regard to a wide range of factors when deciding on the balance between the public interest in disclosure and the public interest in maintaining an exemption. Whether or not a matter is under active consideration by that authority will be one of those factors. But the legislation requires public authorities to consider applications on their own merits, including all of the prevailing circumstances of the case, when determining that balance and when deciding whether or not it is right to disclose the information. We believe that it would be wrong to highlight one specific factor to which the authority must have particular regard, as this may give the impression that there is an overriding factor in the process when clearly that cannot be the case.

The noble and learned Lord did not cover my comments on Amendment No. 79 and on the lack of a time limit. That seems to provide for a public interest consideration to take place. I should be grateful for a reply on that point.

It also occurs to me in the light of other remarks by the noble and learned Lord that when he is considering the redrafting of the old Clause 13(5), it appears that we need some understanding of what the Government mean by "factual". On many occasions facts are processed. A statistician will collect a great many facts and will then produce some form of statistical paper containing conclusions, graphs and summations. Am I to understand that that kind of processing of facts to produce something that is arguably still fact, but is arguably opinion, is covered under the general heading "factual", or is all that is covered the raw material?

The position regarding the time limit is that there must be consideration of whether it is within an exemption of 20 days. So far as concerns the public interest decision under what will become Clause 2, that decision must be made "within a reasonable time". That comes from Amendment No. 105 dealing with Clause 15. We think it right that there should be a different approach to the two, because the public interest factor may take longer than that of the exemption, but there is still an obligation to do it within a reasonable time, which will depend on the circumstances of the case.

As regards the term "factual", we shall deal with it in some detail when we debate Clause 33 and the policy decisions issue. What is "factual" and what is opinion is difficult to define. But there is a line to be drawn somewhere, and it is a matter of judgment in each case. Perhaps we can return to the issue when we debate Clause 33, where it arises four-square. I commend the amendment to the Committee.

On Question, amendment agreed to.

moved Amendment No. 5:

Page 1, line 21, leave out subsections (4) and (5).

moved Amendment No. 6:

Page 2, leave out lines 9 to 12.

I have a small amendment in this group, Amendment No. 8, which I believe would probably be better dealt with by some form of guidance rather than being included on the face of the Bill. When dealing with public authorities over the years, it has been my experience that you are asked why you want to know the information and, on occasion when you refuse to say why, the information is not forthcoming. That is not a desirable practice. I do not believe that there is, or should be, any right under this legislation for the public authority to know why someone wants the information. It is sufficient that the person has made a request.

However, it is frequently pointed out that it may actually be helpful for an authority to ask someone why he wants such information because in that way those concerned may be able better to choose what information he may require or, indeed, provide such information in a form that is more appropriate to his particular requirements. I cannot see any way of drafting a clause in the Bill that would cover those two opposing sides. But it is important that public authorities should be told quite clearly that they do not have the right to ask that question and that the provision of information is not dependent upon the use that anyone wishes to make of it.

I support in principle the points set out in Amendment No. 24. It is too easy for a public authority to say that the documents have been destroyed. I do not know whether that can be dealt with by way of instruction to public authorities rather than by way of the suggested new clause.

I may be wrong, but it seems to me that an indication by my noble and learned friend Lord Falconer about the policy of the public authorities in this respect would be appropriate on this occasion. However, I do not know whether the noble Lord, Lord Lester, will go as far as amending the Bill's provisions. It is very important that the protection of records is at least dealt with in the way that I have suggested.

I rise to comment on Amendment No. 8, tabled in the name of the noble Lord, Lord Lucas. I agree that it would probably be better to deal with it through guidance. The reason I intervene now is that I had responsibility for running a scheme in the European Commission under which officials could not require the applicant to justify his request—that is to say, the same objective sought by the noble Lord, Lord Lucas. None the less, there was a temptation on the part of officials from time to time to think it very reasonable to ask the applicant to justify such a request. That was particularly true where there were forthcoming legal cases for jurisdiction of one kind or another. It is important for us to stick with the principle set out in Amendment No. 8; namely, that, in one way or another, we should insist on this point. I do not insist on it being included in the Bill, but it is an important point because people will try to bypass the arrangement unless it is set out very clearly.

Perhaps I may add my support to the principle enunciated by my noble friend Lord Lucas and suggest a way that it might be approached. I should link Amendment No. 8 with Amendment No. 29, tabled in the name of my noble friend Lord Mackay which imposes a duty on a authority to be helpful to the applicant. It is possible that the words of my noble friend Lord Mackay should appear on the face of the Bill, but there could also be a provision in the code of practice to meet the point raised by my noble friend Lord Lucas. If there is an imposition on the authority to be helpful, this could involve asking for what purpose the information is intended. However, there should also be an indication of some prohibition in terms of intrusion or as regards officials seeming to be unhelpful in some way to the applicant. That may be a way of dealing with my noble friend's extremely important point.

As my noble friend Lord Norton said, some of the points mentioned in the amendment of my noble friend Lord Lucas will be addressed in my later amendments. My noble friend has rightly explored the real point: officials must not be able to require someone to say why he wants the information. If the person requesting the information does not say why he wants it, officials should certainly not be able to refuse it.

However, I can understand that there may be circumstances where the official is asking why the person wants the information in order to help the person find the exact information required; for example, the person may not have phrased the request properly. This is a difficult issue. We must ensure that both points are dealt with either in the Bill or in guidance. I shall probably have more to say on the matter when we deal with a later amendment relating to authorities assisting applicants.

I turn now to the amendments put forward by the noble Lord, Lord Lester. I am somewhat puzzled. Someone may ask for information that is a little old; indeed, it may well be out of date and have been superseded. However, the important point is that at the time that that information was used the new information was not available. I am in some doubt as to whether one should, so to speak, "doctor" a record. It may be reasonable to put an addendum on it, but events move on in many fields, new information becomes available and new discoveries are made—that is certainly so in the health field.

The information on which a decision was taken some years before may turn out to have been inadequate but it may not have been inadequate at the time. Therefore, it would be wrong for people to update information. It might look as if the officials or Ministers who took the original decision did not read the information given to them. I hope that I am making myself clear. The noble and learned Lord indicates that I am not. I invite him to be in my shoes, especially during his explanation of the last group of amendments. I am just getting my own back.

Certain officials may have had to make a decision about an issue and would have done so on the best scientific and medical advice available. However, in two or three years' time that may have been overtaken by other information which, if it had been available at the time, might have caused those officials to take a different decision. If someone is trying to look at decisions taken two or three years previously, he should only be provided with the information that was available at that time. He should not have "hindsight", which, as noble Lords know, is the best kind of vision to have.

I shall not mention the vision of hindsight that the noble and learned Lord might like to have about a certain project in which he is involved, but I can certainly bring to mind one or two issues with which I was involved when I was health Minster at the Scottish Office more than a decade ago. Those decisions were taken on the best possible information available at the time. With the passage of time, and with medical advances, that information was not wholly accurate. However, it would be quite wrong if someone could point the finger today at the officials—and, needless to say, the Ministers—and say that they made the wrong decision. Indeed, they might have made a different one if all the information had been available; but it was not. That is why I am sympathetic to the noble Lord's amendment. We should not be in the business of updating—that is to say, changing records—years after they were created.

The intention of the amendment of the noble Lord, Lord Lucas, is that one's motive in making the application should be irrelevant to the issue of whether or not one gets the information. Officials dealing with the application should not be able to seek to determine the motive because the question of whether one agrees with it is irrelevant. The Government agree entirely with that approach. They do not believe that an amendment is required to make it clear.

The way the Bill operates is that once one establishes a right under Clause 1—unless it is in an exemption and one is not entitled to it—and what is presently Clause 13 one is entitled as of right to that information. I do not think that we need to put that on the face of the Bill. I hope that saying that here makes it clear that the Bill is intended to be applicant blind.

I should take up and endorse the point made by the noble Lord, Lord Mackay of Ardbrecknish. It is perfectly legitimate for the official to have a discussion with the applicant with a view to helping the applicant refine the request he or she is making so as to use better the provisions of the Bill. That is only for the purpose of assistance, not for examining motive with a view to determining whether to proceed with the request because that is quite irrelevant in the context of the Bill as drafted.

That is a very satisfactory answer but I would be grateful for guidance as to what happens if there is a public interest test involved. If an official has to decide if there is a public interest in disclosure, presumably there is a strong temptation to inquire into what use is going to be made of the information because that is what he would like to use to establish the public interest in disclosure. I would be grateful to know how that conflict is resolved.

As far as public interest between disclosure on the one hand and the maintenance of exemption on the other is concerned, it has to be looked at objectively. One looks at the impact of disclosure, that is, making it public. What is the impact of the exemption being maintained? That should be looked at objectively rather than in terms of whatever the motive may be of the person applying. That does not mean that the motive of the person applying may not coincide with factors that could be relevant to what damage may be done and what assistance could be served by making the matter public. But individual motives will not be relevant to that.

I turn to Amendments Nos. 6 and 24 proposed by the noble Lords, Lord Lester of Herne Hill and Lord Goodhart. Amendment No. 6 removes from Clause 1(6) the provision that although the information that should be communicated is the information held at the time when the request is made, the authority may take account of any amendment or deletion made between that time and the time the information is to be communicated. The amendments or deletions may only be those that would have been made regardless of the receipt of the request. Amendment No. 24, tabled by the same noble Lords, instead provides that an authority, having identified a record that contains or may contain information the subject of a request, shall take all reasonable steps to protect the record from alteration or destruction until the request has been finally determined including the determination of any appeal. I agree with the intention behind the amendment. Authorities should not be permitted to evade their responsibilities under the Bill by altering or destroying information that ought properly to be disclosed. Obviously, that is why the Bill contains the offence in Clause 75 of altering or destroying records with the intention of preventing disclosure.

As is implicit in what the noble Lord, Lord Lester of Herne Hill, said, that deals with the "bad faith" type case. There are practical considerations why the wider proposals that go beyond bad faith will not work and why the Bill is drafted as it is. In the first place, the amendments would prevent the authority from updating information it held. In many cases the information may be of a type that changes rapidly; statistical information, for instance. This sort of information will be updated frequently. The amendment would prevent this happening with the result that the applicant would be supplied with out-of-date information. The authority would also be prevented from carrying on its work as normal because the file was, in effect, frozen. This is of particular significance in relation to electronic data.

In the second place, freedom of information should not hamper authorities from carrying out normal records management procedures. The Lord Chancellor's code of practice made under Clause 45 of the Bill will set out desirable practices for authorities to follow. This will include the regular disposal of irrelevant or ephemeral records in accordance with the disposal policy. The amendment would prevent such routine good management, and particularly where an authority received high volumes of requests it could find many of its files constantly frozen. I repeat that where it does it deliberately, that is caught by Clause 75.

Having said all that and subject to the need to update records and the need not to hamper normal records management procedures, where a request is made and the authority knows that it is made it should be told that it is good practice to keep the information for the purposes of answering the request. That provision will be added to the appropriate codes of practice. I suspect that it is best dealt with under codes of practice rather than by any amendments to the Bill. In those circumstances I invite the noble Lord not to pursue the three amendments.

Speaking to Amendments Nos. 6 and 24, I am grateful to the Minister for what he said. I appreciate that we are dealing with good practice. It may be undesirable to create legalistic restraints, and it is not our purpose to hamper good administration. It seems that we have a common purpose on all sides of the House. The point raised by the noble Lord, Lord Mackay of Ardbrecknish, about the need to ensure that records are not rationalised ex post facto in a way that distorts the true record of the time seems very compelling. No doubt, that will need to be addressed in some way in the code of practice, as will the need to ensure that even where there has not been a request for information important records are not inadvertently destroyed. There needs to be some safeguard of an administrative kind that ensures that that is so because of the importance of history and of the need for historians and others to find out exactly the basis of particular decisions made by governments and public authorities.

I am persuaded that it is not necessary to pursue these issues. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No.7:

Page 2, line 15, at end insert—

("(8) In this Act, the duty of a public authority to comply with subsection (1)(a) is referred to as "the duty to confirm or deny".").

moved Amendment No. 9:

After Clause 1, insert the following new clause—

I must advise the House that should Amendment No. 10 be agreed to, I cannot call Amendment No. 11 due to pre-emption.

had given notice of his intention to move Amendment No. 10:

Leave out lines 8 to 10 and insert ("maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the authority holds the information").

moved, as an amendment to Amendment No. 9, Amendment No. 16:

Line 21, leave out paragraph (a).

I shall speak to the matter briefly as later we shall discuss more detailed provisions that relate to electronic access. Clause 19 provides that if the information is reasonably accessible, the freedom of information regime is not instituted. The question of whether information is reasonably accessible through other means is to be decided in the first instance by the relevant public authority. If the applicant does not accept its conclusion, the information commissioner can decide the matter. No Minister will override that decision. It seems sensible that where the issue does not concern whether someone should gain access to information, but rather whether it is reasonably accessible through other means, the matter should be decided under the provisions of one part of the Bill. There should not be an overlapping set of provisions.

I do not know whether other provisions might apply in the case that the noble Lord mentioned. I believe that in that case the information commissioner would have to decide whether the fact that the noble Lord was denied the information he requested meant that it was not reasonably accessible. The Bill establishes an independent person; namely, the information commissioner, to decide such matters. Under those circumstances I suggest that the noble Lord withdraws the amendment.

I shall read with care what the noble and learned Lord said. I beg leave to withdraw the amendment.

Amendment No. 16, as an amendment to Amendment No. 9, by leave, withdrawn.

moved, as an amendment to Amendment No. 9, Amendment No. 17:

Line 22, leave out paragraph (b).

The policy conclusion reached by the Government on this matter was that the security services should not be hampered by the Freedom of Information Bill. That is why the Bill is drafted in the way that it is.

I perfectly understand the Government's policy decision on this matter. However, I point out that there could be extreme cases where, if the measure were rigid and absolutist in its application, the courts might have to deal with the matter. Even in the security area one can imagine a whistle-blowing situation in which, if the matter has been completely immunised under the terms of the clause from freedom of information access, it would have to be dealt with at common law due to an abuse of power. I simply mention that because one should not assume that just because something has absolute exemption under the Bill it would have absolute exemption either as a matter of common law or even under the Human Rights Act.

The Bill deals with the right of the citizen to extract information from the government machine. Whistle-blowing activities are not dealt with at all under the Bill; I accept that that is a matter for the common law.

Does that mean, for example, that the cost of repair of the security services building damaged in a recent terrorist attack would be considered to be information which should not be divulged?

Before the Minister replies to that point, I hope that he will consider my next point. Does this mean that where the security services are engaged in non-secret activity such as the construction of a new building and that building runs over budget they can still hide behind their secrecy? Perhaps the noble and learned Lord should have asked the security services to look after the Dome.

The more often the Dome is discussed the better as that generates more publicity for it. The Government have taken a policy decision to exclude completely the activities of the security services from the terms of the Bill. The kind of matters to which the noble Lords, Lord Mackay of Ardbrecknish and Lord McNally, referred are subject to parliamentary scrutiny. Detailed arrangements have been put in place to deal with expenditure and other such matters.

I beg leave to withdraw the amendment.

Amendment No 17, as an amendment to Amendment No. 9, by leave, withdrawn.

moved, as an amendment to Amendment No. 9, Amendment No. 18:

Line 23, leave out paragraph (c).

Perhaps I may explain that I am not an enthusiast for the amendment. We are in a judicial area, including all tribunals, arbitrators and so on. The right body or person to decide on how the public interest should be weighed in these cases should be the judge, the chair of the tribunal or the arbitrators. That applies especially in the case of public interest immunity. We shall start crossing wires and producing a very complicated situation if, using a balancing and harm test, the Freedom of Information Bill begins to intrude into those other areas. The courts are pretty astute to ensure that restrictions in those areas are not unnecessarily imposed and that the public has access to information, where necessary, where it will not infringe, for example, fair trial. For that reason I should not be in favour of the amendment.

The reasoning given by the noble Lord, Lord Lester of Herne Hill, reflects the reasoning of the Government. Where the matter is in the hands of a court—and in Clause 30 a court,

"includes any tribunal or body exercising the judicial power of the State"—

it should be for that body to decide when it is appropriate to release that information.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved, as an amendment to Amendment No. 9, Amendment No. 22:

Line 32, leave out paragraph (g).

Clause 13 refers to a public interest in disclosing a particular fact. In relation to the common law test and confidentiality, the courts say that on the face of it someone has a right to keep that information confidential but ask, despite that confidentiality, whether there is a public interest in disclosing the information at large. I am sure that lawyers could fine tune the differences between the two tests but they are in substance sufficiently close. In order to establish whether the exemption applies, consideration must be given as to whether common law public interest applies. Having decided that it does not, it would be absurd to have to consider again a similar test under the current Clause 13. That does not seem sensible to us. That is why we have excluded the matter from Clause 2, which was Clause 13.

I thank the Minister for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved, as an amendment to Amendment No. 9, Amendment No. 23:

Line 33, leave out paragraph (h).

I do not support the amendment for reasons similar to those given in debate on an earlier amendment on judicial powers. The amendment seeks to override Community obligations or something forbidden under another statute or punishable as a contempt of court, treating the Freedom of Information Bill as trumping it. But that would not produce clarity but confusion.

I take the examples covered by Clause 42. There is already a fair recognition of the importance of free speech. For example, in Community law in the Community obligations the European Court of Justice would vindicate the right to free speech subject to necessary exceptions. The same applies to contempt of court. The Contempt of Court Act 1981 was introduced specifically to ensure that free speech was not trumped unnecessarily by fair trial; and the same as regards common law in relation to contempt. I cannot say the same as regards,

"prohibited by or under any enactment".

However, under Section 3 the Human Rights Act would come to the rescue of that by re-reading an enactment in a way which was narrow if it unnecessarily interfered with free speech.

Therefore, safeguards are built in although one cannot read them on the face of the Bill. One probably has to be a lawyer to advise on the issue, which is a regrettable necessity for most people—if not for lawyers. I do not think that the lawyer problem would go away if the amendment were accepted by the Government.

Clause 42 identifies that there are other legal bars on disclosure. In effect, it states that they should survive. However, it is worth drawing attention to two matters in the Bill. First, Clause 74(1) states:

"If, with respect to any enactment which prohibits the disclosure of information held by a public authority, it appears to the Secretary of State that by virtue of section 42(1)(a) the enactment is capable of preventing the disclosure of information under section 1 or 13, he may by order repeal or amend the enactment for the purpose of removing or relaxing the prohibition".

The Secretary of State has power to deal with the point on Clause 42(1)(a). He cannot deal with a Community obligation in that way. Nor can he deal with a contempt of court problem. It is right that he should not be able to do so by order. To some extent, the Bill gives some comfort on the point the noble Lord raises.

At present 400 bars would fall within Clause 42(1)(a). A review of the bars is ongoing. I hope that the Government will announce in due course possible candidates for amendments or repeal. I believe that we are dealing with the matter in a sensible way. I respectfully suggest that the noble Lord withdraws the amendment.

I am grateful for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Amendment No. 9 agreed to.

moved Amendment No. 25:

After Clause 1, insert the following new clause—

My noble friend asks two interesting questions, one of which involves a large document, part of which was clearly exempt but other parts of which were not. As my noble friend said, it would be useful to have clarification about whether public authorities would be under an obligation to release those parts that were not caught by the Bill, although they would have to remove those parts that were caught by it.

My noble friend's second point may be more difficult to achieve, although if some records cannot be made public because of information in them—perhaps the names of the people involved—it is fair to ask whether there would be an obligation on authorities to produce a summary that excluded those names. The two interesting points that were raised by my noble friend need clarification.

This may be an appropriate moment to recall the point that was raised by the noble and learned Lord, Lord Archer of Sandwell, and in the Select Committee, namely, that the Irish Government have invested much time and money preparing public servants and helping them to think constructively about how to make the Bill work. The amendment involves a classic case. If there had been proper training, requests that could be partially satisfied would be approached in that positive manner. Do the Government already have in mind a programme of training, such as that which was explained to us by the Irish commissioner? That programme has had an impact on the culture of the Irish public service and on its efforts to respond constructively to requests.

We have been discussing whether the Bill in effect permits partial disclosure. It will in fact require that when some of the information that is requested is exempt but other information is not. The right of access in Clause 1 involves information that is recorded in any form. That means that the right of access attaches to the content of documents or records rather than to the documents or records themselves. When a document contains a mixture of disclosable and non-disclosable information, the disclosable information must be communicated to the applicant.

On the point about summarisation, Clause 10 states that when applicants have a preference for one of certain specified means in which they wish the information to be communicated to them, the authority shall, so far as is reasonably practicable, give effect to that preference. The means specified involve copying of the information, inspection, or a digest or summary of the information. If the applicant requests a copy of the document that contains the information or to inspect the actual document, Clause 10 requires the authority to give effect to that preference so far as is reasonably practicable to do so. That includes "blanking out" information, such as names that cannot be disclosed. Similarly, if the applicant has requested a digest or summary of the information, the authority must also comply with that request, if it is reasonable to do so. I hope that that deals with the points that were raised by the noble Lords, Lord Lucas and Lord Mackay of Ardbrecknish.

Training, we accept, is vital. That is already in hand across government and in particular in the Home Office, which is responsible for the freedom of information provisions. The commissioner will have a role in disseminating advice on the Bill's operation. We fully expect the commissioner to provide training materials. Clause 45 contains obligations to produce codes of practice which, I believe, have already been made public. With regard to training —although this will apply to every public authority—the code of practice states:

"All communications in writing to a public authority fall potentially within the scope of the Act if they seek information and must be dealt with in accordance with the provisions of the Act. It is therefore essential that everyone working in a public authority … is familiar with the provisions of the Act, of the codes of practice issued under its provisions and any relevant guidance on good practice issued by the commissioner. Authorities should ensure that proper training is provided."

The process has started, its importance is recognised and the commissioner will have a role to play. There is obviously a long way to go, but we fully recognise the importance of the process.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 26.

Page 2, line 16, at end insert—

("( ) any Minister of the Crown, government department, local authority, government appointed task force, quasi-autonomous body, any body carrying out public administration at a national, regional or local level or any other body where either—

(i) more than half of its funding is received either from government or from bodies that in turn receive more than half of their funding from government, or

(ii) a majority of the members of the managing body of the body is appointed by government or where it is subject to management supervision by another public authority;").

I am sympathetic to the aims of the amendment. We had a similar problem on the Race Relations (Amendment) Bill, which imposes a duty on public authorities not to discriminate. The question was how to define the public authorities that were caught by the new duty. There have been great arguments about whether to set down a list, as under the data protection legislation, or to have a more inclusive definition, as under the Human Rights Act 1998. After a good deal of discussion in this House, the Home Secretary accepted both. He agreed that a specific list would give legal certainty, but he also agreed to a general catch-all provision. I should have thought that that was desirable in this case, although I am not wedded to the specific amendment.

I have a more basic inquiry. I know that the noble Lord, Lord Mackay of Ardbrecknish, is concerned about what the noble Lord, Lord Haskins, does. Is he confident that the catch-all would enable him to find out at last?

Am I right in understanding that even as the Bill stands, let alone under the amendment, a number of charities will fund themselves subject to the requirements if they receive substantial government support to deal with issues such as people who sleep rough on the streets?

I have been caught up in various voluntary and quasi-voluntary bodies. I cannot help being surprised by the Treasury's generosity in funding and part-funding so many bodies. All too often, when someone feels that the information that they may be handling or discussing should not be revealed to the public gaze, their colleagues tend to comply with the suppression of such information for the sake of peace and harmony. The amendment is desirable. I know that the Minister will listen sympathetically, as usual. I hope that at some stage he will table an amendment in line with the proposals of the noble Lord, Lord Mackay of Ardbrecknish.

The amendment has potentially very wide implications. It would automatically include within the definition of "public authority" certain groups or classes of body that the Government have provided should be considered individually and covered only if appropriate.

We do not disagree in principle about many of the groups that the noble Lord, Lord Mackay, wants covered. I entirely agree that government departments and local authorities should be brought within the freedom of information requirements. However, the amendment is unnecessary because it would list government departments and local authorities generically as public authorities. Parts I and II of Schedule 1 already do that.

It is also unnecessary to list Ministers of the Crown as public authorities separately from their departments. For the purposes of the Bill, Ministers are covered in respect of their statutory responsibilities within the definition of a government department. In practice, they will hold little information that is not held by their department.

I also depart from the noble Lord in the way in which the amendment would treat other classes of bodies. The issues are reasonably straightforward. We believe that it is right to use a generic description to cover a class of bodies when possible. We have done so for a large number of such classes or groups in Parts I to V of Schedule 1. Those generic descriptions include many bodies that carry out public administration at all levels of public service. However, in many cases it is not possible to identify a generic description that properly or effectively describes the bodies that may need to be covered at any time. The amendment has fallen into that trap.

We have looked long and hard at the definitions of non-departmental public bodies, quangos—or quasi-autonomous bodies, as the amendment calls them—and other similar titles. We concluded that such definitions were too vague or unreliable to be of practical use in freedom of information legislation. Clarity is essential for the bodies themselves, because the public will want to know which bodies are included, and for the information commissioner, who will be responsible for enforcing the requirements.

Similar concerns of definition arise for the term "government appointed task forces", which is also used in the amendment. Are they different from working parties? Should a working party be considered within the same generic description as an advisory group?

All such bodies are different from bodies that carry out public administration, but who is to say what functions are contained within the general description of "public administration"? Should it matter that only a small part of the functions of a body carrying out public administration might be on work of a public nature? The amendment would not allow such a fine distinction. Any such body would be automatically designated for freedom of information purposes and all the information that it held, whether it related to work of a public or private nature, would be brought within the disclosure requirements.

The Government's approach is more considered and more focused. We have included any public body that we are aware of that carries out functions that ought to come within the scope of the Bill either under a generic description or by listing it in Parts VI and VII of Schedule 1.

We do not claim that the lists are exhaustive, although we have consulted widely to ensure that they are as comprehensive as we can make them. We recognise that some bodies may be missing and have provided that the Secretary of State may amend the schedule using the powers granted in Clause 3. To allow sensible flexibility, Clause 6 provides additional powers to enable an order to apply the Bill only to limited descriptions of information or to amend an entry in Schedule 1 to apply the Bill only to limited descriptions of information held by a public authority.

The Secretary of State has powers under Clause 4 to bring within the scope of the Bill private bodies that carry out public functions or provide a public service under contract. That includes voluntary organisations and charities. However, an important qualification is that any order made under Clause 4 must follow a process of consultation with the appropriate person or persons and must specify the functions of the public authority designated by the order. That is a better way of addressing the concerns about the propriety and effectiveness of coverage of such bodies under the Bill.

The final part of the amendment would automatically bring within the scope of the Bill any body that receives a majority of its funding from the Government or from a body that receives more than half of its funding from the Government. What would happen if the funding changed? Would the body cease to fall within the meaning of the amendment? The provision would also cover organisations in which the majority of members of the managing body were appointed by the Government or subject to management supervision by another public authority.

The Bill has been criticised for its complexity of drafting, but the amendment might win a Pulitzer prize for opacity. I understand the desire to ensure that no stone is left unturned behind which a body carrying out a public function might hide from the spotlight of the legislation, but we need to stress again the importance of clarity about which bodies are brought within the scope of the Bill and which functions are covered. I venture to suggest that the amendment fails against either test.

The Government have proposed a sensible way of ensuring the widest possible coverage commensurate with the need to be clear and fair. The Bill provides for the Secretary of State to have the flexibility to bring relevant bodies within its scope when appropriate. I commend our approach and I invite the noble Lord, Lord Mackay, to withdraw the amendment.

I am grateful to the Minister for that detailed reply. I thought that he was about to accuse me of tabling a "cumbersome and bureaucratic" amendment—the words that he uses to describe the Political Parties, Elections and Referendums Bill. Did he feel that I would be lonely without him at the other Dispatch Box after all the days that we have had on that Bill—and with all the days that we still have to come?

I have listened with some care and I shall read Hansard with some care. There is a problem. If a body receives public funds and the public wish to find out what has happened to those funds, they could come up against a brick wall the moment that the money goes to the body in question if it is not listed in the schedule.

I shall have to study carefully and discuss with others the exact consequences of what the noble Lord has said. If a member of the public who tries to find out how public money is spent by a body finds that it is not covered by the Freedom of Information Bill—or Act, as it will be—that member of the public rightly may be concerned that something which should not be hidden is being hidden.

I fully accept that my definitions are not as they should be. However, at least they address the point that a body which receives more than half its funding from the Government cannot be considered to be entirely non-public, because clearly it is. Equally, if more than half the members of a body have been appointed by the Government, clearly it is not a public body, at least in part.

If the noble Lord, Lord McNally, reads Appendix 1, he will see that I may even achieve my objective and have the noble Lord, Lord Haskins, come to the House to answer for his task force. However, frankly I believe that that is fairly unlikely; it will probably be the Minister who answers. None the less, we should be able to find out a great deal about what that task force does. It would not be able to hide from us its activities and the papers that it produces because it would be caught by this Bill.

As I said, I believe that this issue contains a problem which we shall have to pursue. I even believe that if a charity receives more than half its money from the Government, the public have a right to know what is going on in that charity. However, I fully appreciate that such access would apply only to that part of the charity's work which is funded by government money and not to other parts of its work which are not funded by such money.

It is clear that we shall have to consider this matter further. I am grateful to the Minister for his explanation. We shall read it with care and decide whether we need to approach the matter in a slightly different way and return on Report with another amendment to deal with those issues. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 27:

Page 2, line 26, at end insert ("on a contractual or agency basis").

I am grateful to the noble Lord for explaining what he means by this amendment and for explaining that he seeks clarity. I hope that I can provide that.

This amendment would have the effect of limiting the definition within the Bill of when information is considered to be held by a public authority. If left as it is at present, Clause 2 would provide that information is so held either if it is held by the authority, unless it is holding it on a third party's behalf, or if,

"it is held by another person on behalf of the authority".

The amendment seeks to alter the latter instance to the extent that it must he held by the third party on either "a contractual or agency basis".

I say immediately that we agree that the usual situation will be that the basis on which information is held by a third party on behalf of a public authority will be contractual or as an agent. The clause covers that at present and, to that extent, the amendment is unnecessary.

At first it was not clear to us what was behind the noble Lord's amendment. Of course, now that the noble Lord has moved it, it is clear. We feel that if the amendment were carried forward—I now know that that is not the intention today—its implications might be quite serious.

By limiting the definition, as the amendment seeks to do, only to information held on a contractual or agency basis, too rigid a stricture would be placed on the type of information which public authorities would have a duty to disclose under the Bill. Perhaps I may point out to the Committee that a danger arises from the possibility that bodies may exist whose relationship with a public authority does not come within the strict legal definition of either a contract or an agency but they may hold information to which access should be afforded under the Bill.

Perhaps I may provide the Committee with an example. Were an NHS trust to transfer some of its records to a body such as the Wellcome Institute for the History of Medicine, there may be some uncertainty as to the basis on which the latter body held that information. Any such uncertainty in the coverage of the Bill would be unwelcome. That is why we cannot accept the amendment as it stands.

With regard to the noble Lord's question as to whether the contracted-out functions of public authorities are covered, the answer is that they can be covered by an order under Clause 4. The amendment that he has moved in order that we may have a brief discussion does not strictly cover that point. I invite the noble Lord to withdraw his amendment.

I thank the noble Lord, Lord Bach, for his reply. This begins to look like a replay of the political parties Bill with, first, the noble Lord, Lord Bassam, and then the noble Lord, Lord Bach. I had better resist the temptation to introduce a political parties (amendment) Bill.

I am grateful to the noble Lord for his explanation. I am surprised that his officials did not understand at what the amendment was aimed. However, I believe that he has made it clear that the concerns of the Law Society are not well founded and it can rely on the comments that the noble Lord has just made. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

moved Amendment No. 28:

After Clause 2, insert the following new clause—

Amendment No. 81, standing in my name, says much the same as that of my noble friend. I share with him a conviction that this is a crucial change to make to the Bill; that there must be an obligation on public authorities to help if ordinary citizens are to feel that they have the rights that are provided for under this Bill.

There is a potential danger in these amendments in that they may make it impossible to answer parliamentary questions in the way that Ministers have become accustomed and in the way that I was accustomed to answering them, which is the unhelpful answer which studiously avoids giving the crucial piece of information that would help the inquiring noble Lord on to the next awkward question.

If there were a duty to assist included in the Bill, we would have a right to contact the Ministry and say, "What question should I ask?" One would have a right to receive the kind of information one sought and the Ministry would have to help. Fortunately, Clause 19, under which there is no such right, comes to the rescue. We have a right to ask parliamentary questions, therefore we will not be able to use the Freedom of Information Bill and Ministers will continue to give us blocking answers to parliamentary questions while helping the public. This amendment is without danger to proper ministerial practice and should be adopted.

I believe that the two noble Lords who have spoken have drawn attention to a genuine problem. My concern goes a little wider than theirs. In order to lay a foundation for exercising the rights under the Bill, a member of the public has to make a request in the form set out in Clause 7. It is not a demanding requirement, but members of the public may be less familiar than your Lordships will be by the end of our deliberations with the provisions of this Bill. It is not a usual topic of conversation in the clubs and pubs of my former constituency.

Someone who meets a member or an official of a public authority on the steps of the town hall and simply asks a question may have no idea that he is purporting to exercise rights under any Act at all and he may not know what chain of events he is setting in motion. He may not know that under Clause 7, unless he makes a request in writing, it will not be a request under the Act, still less, that if he were to scribble it on the back of an envelope that he would totally transform matters because all the consequences of the Bill would come into force. If the public authority did not wish to be troubled with the matter, it may not inform such a person of the situation.

If a public authority does not intend to answer a question, it would not be asking too much to say that in the Bill there should be guidance about what it should do. Perhaps there could be a small booklet that sets out the rights and how to enforce those rights. If the Government have plans to produce such a booklet, perhaps my noble and learned friend will tell the Committee. I believe that we would be wrong to leave the matter in the air.

These amendments are designed to promote a cultural change, away from the culture of secrecy to which the Minister referred earlier. As long ago as 1982, as the noble Lord, Lord Mackay of Ardbrecknish, pointed out, the New Zealand parliament found it appropriate to introduce a similar provision into its freedom of information Act, as did the Commonwealth of Australia.

Perhaps most strikingly of all, again as the noble Lord, Lord Mackay, has said, in 1997 in Ireland, in a country that was—I say with affection—at least as full of the culture of secrecy as this country, Ireland's parliament dealt with this matter not once but twice: in the Long Title and in a substantive provision in the Bill. Kevin Murphy, the admirable Information Commissioner, to whom my noble friend Lord McNally has already referred, speaking on 19th November 1999, at the University of Glasgow said:

"At first sight it might not seem that deepening the public awareness and understanding of the Act is of great relevance to changing the culture of secrecy in the public service. However if people really understand their rights then they will be able to exercise them wisely. Judicious exercise of the rights conferred by the FOI Act can encourage public bodies to change their practices".

Preferably that needs to be dealt with in the Bill, but certainly in a code of practice in a way that makes it quite clear that officials are to be user-friendly and to help people who make requests under the Bill so as to avoid the continuation of the bad old past with which we are all familiar.

I support the amendments. On the face of it, they are extremely sensible and they are central to realising the intent of the Bill. Without them it is possible for an authority, in effect, to frustrate the whole intention of the Bill.

Clearly, someone who knows the process, understands his rights and is determined to acquire the information will do so—the measure provides for that—but what about those who do not understand the process and who are not determined? One can envisage an authority frustrating them by asking why they want the information and not volunteering what is available and not assisting them.

My noble friend Lord Lucas mentioned that we have touched on this point in earlier amendments. In responding to Amendment No. 25 the noble and learned Lord, Lord Falconer, referred, quite properly, to Clause 10(1)(c) under which an applicant can request information in summary form. However, if the information is not requested, there is no obligation on the authority either to volunteer or to indicate that that information may be usefully provided in that form. The amendment would embody the spirit of the Bill and I believe that without it problems would arise.

The noble Lord, Lord Lester, touched upon the argument that there may be a case for not including it on the face of the Bill, but for putting it in the code. I see the argument for that, but my preference would be for something to be on the face of the Bill, perhaps in the form of the amendments before the Committee, and for the code of practice to flesh out the matter and how it should be given effect.

The amendments touch on an important point. I believe that the amendment in the name of my noble friend Lord Lucas goes more to the spirit of the Bill, although in terms of drafting I believe that the amendments of my noble friend Lord Mackay are preferable. Those are important points and there is a case for putting something on the face of the Bill.

I also support the general idea behind these amendments. Noble Lords have talked about public authorities and government departments, but of great concern to the scientific community is the fact that a huge amount of information is issued by agencies. Government agencies are not listed as such. I presume that organisations such as the Ordnance Survey, the Meteorological Office, many health departments and so on are included in government departments. Clarity on that matter would be helpful.

There must be greater encouragement to openness. New Zealand, which is often lauded as an open country, was the first in the world to introduce exorbitant costs for certain kinds of data. It required great protests by other countries to make New Zealand take a more sensible view. Therefore, cost as well as openness is very important.

Another feature about which the scientific community is extremely concerned is the ready electronic access of information. The point made earlier by the noble Lord, Lord Lucas, was extremely important. This should be seen as part of making assistance very easy. I am trying to do something about the fact that the House of Lords does not receive meteorological forecasts and data from one of its own agencies in an easy and open fashion. One has seen recent reports from the United States that people are able to obtain information from government electronically very quickly in a way that is not possible in this country. That is all part of our expectation of how the Bill will impact on people. I hope that the way that the Bill is presented, including this clause, will assist that.

The Government recognise that these amendments are well meaning.

Each in its own way seeks to place a duty on public authorities to assist applicants either to understand or exercise their rights under the Bill. The noble Lord, Lord Lester, put his finger on it when he said that it was all about a cultural change. I agree with that. Amendment No. 81 moved by the noble Lord, Lord Lucas, seeks to achieve that by placing a duty on the authority to give reasonable assistance to an applicant, having regard to the relevant guidance in the Secretary of State's code of practice. The two amendments moved by the noble Lord, Lord Mackay of Ardbrecknish, seek to achieve a comparable result, although in this case the duty to assist a member of the public in making a request for information is to be unlimited, while the public authority is required to provide such assistance as is practicable in assisting the applicant to understand the access and appeal procedures within the Bill.

I well understand the good intentions which have informed both noble Lords in moving these amendments. It is an understatement to say that I have considerable sympathy with the desire to ensure that the public is able to enjoy the rights which this Bill will provide. However, we do not believe that the amendments as drafted necessarily offer a sensible way forward.

When we replied to the report of the Select Committee on Public Administration on the White Paper, the Government accepted the need for authorities to give such assistance as set out in the amendments. However, on reflection, the Government decided that the best way to ensure that was not through the creation of statutory duties along the lines proposed by either of the noble Lords. The reason for this is that statutory duties must be clear and definite if they are to have genuine meaning, not only so that authorities are clear as to how to follow them but so that the enforcement body, in this case the commissioner, can be sure when duties have been breached.

The proposed amendments would place a duty on authorities which would be vaguely defined and therefore difficult to enforce. What are reasonable steps in one situation may be very different in another, depending on the type of request, the type of authority and the type of questioner. The kind of assistance that a large government department might reasonably give to an individual requester would be different from the kind of assistance that a GP might reasonably be able to give to a multinational drug company that made a request. It is all rather vague. The Government believe that these good intentions might well lead to bad law. The amendment moved by the noble Lord, Lord Lucas, would help in seeking to give guidance as to what might be considered reasonable by referring to the provisions set out in the code of practice which my right honourable friend the Home Secretary will issue.

Clearly, it is good practice for authorities to give help where it is appropriate and in a manner that is appropriate. I am certain that the code is the correct place for such advice to be set out. We have, therefore, drafted the Bill to include a requirement that the Secretary of State's code of practice under Clause 44 should include guidance on the provision of advice by public authorities to persons who propose to make, or have made, requests for information from them. But we have gone further than that. Clause 46 of the Bill places specific duties on the information commissioner to provide advice to the public and, importantly, to perform her duties under the Bill in such a way as to promote good practice and the observance of the requirements of the legislation and the provisions of the codes of practice by public authorities.

I have a problem, however, with the noble Lord's amendment which would introduce a requirement that those aspects of the code should be mandatory. The strength of the Government's proposals is precisely that they leave the code as a flexible medium. This means that the code can set out the kind of assistance authorities should give in broader terms than is possible in a statutory provision. It also means that the commissioner, when issuing practice recommendations to authorities which have failed to comply with the code, can have regard to current best practice in making her decision, not just the strict letter of a statutory provision. I shall have more to say about enforcement of good practice in a moment.

It would assist the Committee if it could see the draft code during these debates to see whether some statutory provision is needed or whether it is well taken care of in that code. Is it possible for the draft code to be made available before Report stage so that the Committee can consider its contents?

I believe I am right in saying that a copy of the draft is in the Libraries of both Houses. If the noble Lord wishes to have it, I undertake to provide a copy to him and other Members of the Committee who have taken part in the debate.

I need to say a word about Amendments Nos. 28 and 29 spoken to by the noble Lord, Lord Mackay of Ardbrecknish. The first of those amendments would introduce a statutory duty on public authorities to assist applicants to make a request for information, which is a very desirable outcome. To that extent the amendment echoes the intention behind the earlier amendment moved by the noble Lord, Lord Lucas. Strangely, the amendment in the name of the noble Lord, Lord Mackay, makes that statutory duty an open-ended one by missing out the qualification that the noble Lord, Lord Lucas, thought appropriate; namely, that the assistance offered should be "reasonable".

If Amendment No. 28 were accepted every public authority would be under a statutory duty to make available an unspecified amount of its resources and energies at the behest of an applicant to assist that applicant to make an application. When would that duty be fulfilled—only when that applicant had framed his or her "ideal" request? Clearly, in the circumstances that would be over the top because of the burden which it could place on such authorities, many of which, we should recall, would be small bodies or even individuals. They could be school governing bodies, my favourite small local authority, Adur District Council, a primary care group or a general practitioner. The burden on some of those public bodies could he quite disproportionate.

The second amendment of the noble Lord, Lord Mackay, requires that a public authority should be under a duty expressly to assist an applicant to understand the procedures for making an application for information or appealing against a refusal to disclose information. I welcome the recognition in this amendment, if not the earlier one, that any duty should be qualified—in this case by what is practicable—and not open-ended. However, while I welcome the amendment I cannot commend it to the Committee for reasons that I have already explained; namely, in essence the duty is inappropriate in such circumstances.

I said that I would return to the issue of enforcement. I fully accept that compliance with the published codes of practice would not be enforceable in the courts in the same way that a statutory duty might be. As the provision is drafted, the information commissioner has the power to look at compliance and issue practice recommendations. I believe it would be an exceptional authority which wilfully ignored such a recommendation, particularly given the commissioner's powers to name and shame in any report that she might make to Parliament. An additional point is that the code of practice could be referred to in any test case which was the subject of judicial review. The powers of naming and shaming should not be underestimated in regard to public sector bodies keen to keep the confidence of the public they serve.

Perhaps I may pick up one or two points that have been raised in the debate.

Before my noble friend leaves that point, may I ask him a question on what he has said already? He said that there will be a duty on public authorities to advise. That is contained in the code. Is there any duty to assist as well as advise?

My understanding is that they will have a duty to both advise and assist. I think the two come together.

It would cover both?

Yes, I think that is right.

My noble and learned friend Lord Archer asked a simple question; will the Government produce a booklet? It will not be a matter for the Government, it will be a matter for the information commissioner. But we expect to prepare information for the use of both authorities and applicants. The noble Lord, Lord Lester, asked whether there will be any provisions in the code of practice? The answer is yes. The draft code—as I said earlier—is published and it contains provisions on good practice as regards providing assistance.

That covers most of the questions that were asked earlier.

Before my noble friend sits down, perhaps he will answer the other question which I put to him. Will the code recommend that authorities give assistance to people whose request for information does not fall within the Act—for example, because it is not in writing? They may not know that they have to put the request in writing. Will authorities be required to point them in the right direction?

The answer is yes.

I am grateful to the Minister for his replies. I shall read them with great interest. However, I think the Government are missing the fundamental importance of this area; namely, the confidence required by an ordinary member of the public when dealing with local authorities or whoever, in knowing that that authority is under a duty to do its best to assist him, rather than, as has been our common experience—particularly for Members of the Committee opposite in their long years of Opposition—dealing with a source of information who is half the time doing his very best not to give any information or advice in a helpful way. If we wish to end that culture, or at least if we wish not to duplicate that culture with members of the public, which is extremely frustrating and off-putting for them, we need to have something firmer in the Bill.

The noble Lord, Lord Richard, asked whether there is presently on the face of the Bill any mention of assistance as well as advice. At present there is not. It should be there in Clause 44(2)(a) or thereabouts. I hope my noble friend will agree that, given the advice that the Minister has given us, we need to give thought to how we can anchor that with some clarity on the face of the Bill in order to make absolutely obvious to a member of the public that a public authority is under a duty to assist him.

I am grateful to the Minister for his fairly long reply. I thought it was stronger on the textual analysis of my amendments than it was on actually addressing the principles behind my amendments, which were backed by the noble Lord, Lord Lester, and indeed by noble Lords behind him. I was not at all convinced by the argument about codes of practice. My memory is not so short that I cannot recall the phrase,

"If pressed, promise a code of practice",

and that keeps it out of the Bill.

Under the Bill, will the noble Lord have to turn over his speaking notes so that we can see the advice on the matter?

I can tell that it says "resist" without even looking. It seems odd that the Government should set their mind against the proposition that we should have something on the Bill. I accept the textual analysis of my amendments. But I remember being told by Members of the House, when I was leading for the government, that the idea of reasonableness in all the circumstances was well-known in legal circles and was not a problem for the courts to resolve and so on. So it seems to me that it will not be difficult to devise a clause which will meet the requests made by noble Lords.

I shall not read them out, but perhaps I may commend to the Minister Section 13 of the Official Information Act 1982 in New Zealand; Section 15(3) of the Freedom of Information Act 1982 in Australia; and Section 6(2) of the Freedom of Information Act 1997 in Ireland. They all deal with this problem on the face of the Bill. Those of us who think that this should be on the face of the Bill will probably read what the Minister says, regroup and return with an amendment which even his textual analysis will not be able to knock down. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 29 not moved.]

moved Amendment No. 30:

Page 44, line 11, leave out paragraph 6.

Amendment No. 30 deletes paragraph 6 of Schedule 1. Paragraph 6 states:

"An Assembly subsidiary as defined by section 99(4) of the Government of Wales Act 1998".

That in turn means any body corporate or other undertaking, of which the National Assembly is a parent, any trust of which the Assembly is a settlor and any charitable institution of which the Assembly is a founder. Will he explain why there has been that change of mind on the part of the Government? Will he also explain why in paragraph 5 of the schedule the National Assembly for Wales is listed as a public authority, but Clause 3(8) of the Bill states that,

"'government department' includes the National Assembly for Wales"?

Furthermore, Clause 81 states that "government department" does not include the National Assembly for Wales. Is it not clear that there is still a considerable amount of confusion in the Bill with regard to the position of the National Assembly and of other bodies related to it or subservient to it in Wales? Will the noble and learned Lord clarify the position?

The Bill requires amendment in relation to the National Assembly for Wales. In group 10 on the groupings list, to which we shall come later, there is a whole series of amendments which deals with the noble Lord's point. Perhaps I may deal with his specific point then because there is a whole structure of amendments in relation to the position of the National Assembly for Wales.

I indicated that the entry relating to the Local Government Commission for Wales is clearly a confusion for the Welsh Local Government Boundary Commission. As a result, an amendment has been made in that respect. The police function of the Port of London Authority has been transferred to the Port of Tilbury (London). This latter body will be consulted with a view to being brought into the scope by an order under Clause 4.

Finally, the amendments make some minor changes to the names of bodies already listed. Taken together the amendments update the schedule and maintain its accuracy. The Government intend that Schedule 1 will be reviewed regularly and kept up to date. Clauses 3 and 6 make provision for any further updating to be done as and when necessary. I beg to move.

I am slightly hesitant to intervene in these debates as I did not take part in the proceedings at Second Reading. However, as the Minister knows, my noble friend Lord Mackay of Ardbrecknish has left to go to Scotland in order to assist at the funeral of the right honourable gentleman Donald Dewar. Those who heard my noble friend the other day when the tributes were paid will fully realise why. I have therefore undertaken to take over his role for the remainder of the evening, however long that may prove to be.

What interests me is that it takes 25 amendments to put right a straightforward list, one would have thought, of government bodies. Those of us who have become alarmed about the huge proliferation of government bodies are interested, although not surprised, to see that the Government initially did not know what bodies they were responsible for, got the names of some of them wrong and have had to correct them. It is a frighteningly long list when one looks at it from that point of view. But the fact that the Government got some of the names wrong is a cause for worry. It is a little like a company not knowing what subsidiaries it owns. That would be extremely worrying in the private sector.

However, I certainly do not wish to stop the Government correcting the list. I note what the noble and learned Lord said about it having to be corrected in the future. That was an accurate prediction.

I said "kept up to date". I beg to move.

On Question, amendment agreed to.

moved Amendments Nos. 31 to 55:

Page 45, line 29, at end insert—

(" . The London Transport Users Committee.").

Page 46, line 11, at end insert—

(" . A Community Health Council established under section 20 of the National Health Service Act 1977.").

Page 47, leave out lines 4 to 23 and insert—

(" . The governing body of a maintained school, within the meaning of the School Standards and Framework Act 1998.

.—(1) The governing body of—

(a) an institution within the further education sector,

(b) a university receiving financial support under section 65 of the Further and Higher Education Act 1992,

(c) an institution conducted by a higher education corporation,

(d) a designated institution for the purposes of Part II of the Further and Higher Education Act 1992 as defined by section 72(3) of that Act, or

(e) any college, school, hall or other institution of a university which falls within paragraph (b).

(2) In sub-paragraph (1)—

(a) "governing body" is to be interpreted in accordance with subsection (1) of section 90 of the Further and Higher Education Act 1992 but without regard to subsection (2) of that section.

(b) in paragraph (a), the reference to an institution within the further education sector is to be construed in accordance with section 91(3) of the Further and Higher Education Act 1992,

(c) in paragraph (c), "higher education corporation" has the meaning given by section 90(1) of that Act, and

(d) in paragraph (e) "college" includes any institution in the nature of a college.").

Page 47, leave out lines 25 to 36 and insert—

(" .—(1) The managers of—

(a) a controlled school, voluntary school or grant-maintained integrated school within the meaning of Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986, or

(b) a pupil referral unit as defined by Article 87(1) of the Education (Northern Ireland) Order 1998.

(2) In sub-paragraph (1) "managers" has the meaning given by Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986.

.—(1) The governing body of—

(a) a university receiving financial support under Article 30 of the Education and Libraries (Northern Ireland) Order 1993,

(b) a college of education maintained in pursuance of arrangements under Article 66(1) or in respect of which grants are paid under Article 66(2) or (3) of the Education and Libraries (Northern Ireland) Order 1986, or

(c) an institution of further education within the meaning of the Further Education (Northern Ireland) Order 1997.

(2) In sub-paragraph (1) "governing body" has the meaning given by Article 30(3) of the Education and Libraries (Northern Ireland) Order 1993.

.—(1) Any person providing further education to whom grants, loans or other payments are made under Article 5(1)(b) of the Further Education (Northern Ireland) Order 1997.").

Page 48, line 9, leave out paragraph 73.

Page 48, line 34, at end insert

("The Advisory Committee on Consumer Products and the Environment.").

Page 49, leave out line 9.

Page 49, line 15, at end insert—

("The Airborne Particles Expert Group.").

Page 50, leave out line 7.

Page 50, line 23, at end insert—

("The Commission for the New Towns.").

Page 50, leave out line 43.

Page 51, line 2, at end insert—

("The Council for Professions Supplementary to Medicine.").

Page 51, leave out line 33.

Page 51, line 48, at end insert—

("The General Chiropractic Council.

The General Dental Council.

The General Medical Council.

The General Osteopathic Council.").

Page 52, line 1, leave out ("Fund").

Page 52, line 38, at end insert

("The Insurance Brokers Registration Council.").

Page 53, leave out line 4.

Page 53, leave out line 18.

Page 54, leave out line 18.

Page 54, line 21, leave out ("Relations").

Page 54, line 33, at end insert—

("Resource: The Council for Museums, Libraries and Archives.").

Page 55, line 38, at end insert—

("The United Kingdom Central Council for Nursing, Midwifery and Health Visiting.").

Page 56, line 36, at end insert—

("The Civil Service Commissioners for Northern Ireland.").

Page 57, line 28, at end insert—

("The Northern Ireland Civil Service Appeal Board.").

Page 58, line 5, at end insert—

("The social fund Commissioner appointed under Article 37 of the Social Security (Northern Ireland) Order 1998.").

moved Amendment No. 56:

Page 2, line 27, leave out ("may") and insert ("shall").

Amendments Nos. 56 and 60 would have the effect of removing the Secretary of State's discretion in respect of making orders bringing bodies within the remit of the Bill. If they satisfied the criteria, they would have to be brought in. If we were to accept the amendments it would mean that the Secretary of State would have to include in Schedule 1 bodies such as the security and intelligence agencies, even though it has been a matter of common agreement between the parties that it is necessary to exempt all information held by these agencies from the scope of the Bill in order to preserve their ability to carry out their duties effectively in the interests of the nation.

The amendments could also lead to administrative nonsense. They take no account of the life-span of any body. it is possible that a body may come into being, perform its functions and be almost at the point of completing its task before the Secretary of State has had a chance to make an order. Nevertheless, under these amendments he would have to make an order which would have the effect of bringing the body within the scope of the Bill for only a very short period before it was wound up. Although it is a point to which I shall return later, I should perhaps note that under Amendment No. 64 the Secretary of State would then be under a duty to make a further order removing the entry in respect of that body from the list in Schedule 1.

I want to be clear about the Government's intentions in respect of coverage under the Bill. We have produced a Bill which provides rights of access to information held by an astonishingly wide range of public sector bodies. It is right that the public should have that access. It is our intention that the normal and proper course of action would be that, whenever the Secretary of State becomes aware of the creation of a new public authority, he should seek to ensure that it is brought in as quickly as he reasonably can. In some cases that would be achieved through the primary legislation setting up the new body. In other cases there will be no need to take action because it will be covered by one of the generic descriptions in Parts I to V of Schedule 1. In some instances the Secretary of State would need to use the order-making powers in Clauses 3 and 4, but as the lists in Parts VI and VII of Schedule 1 show, many of the bodies which might be brought in under the order-making power of Clause 3 may be relatively or absolutely small bodies and offices. Many others which will fall to be considered under the Clause 3 powers may be working groups or task forces set up with a limited lifespan or having no real independent character from their parent or sponsoring department. Comparable considerations are likely to apply in the exercise of the Clause 4 powers.

We believe it is sensible that in those circumstances the Secretary of State should have some discretion to consider the full facts and implications of listing for FoI purposes before proceeding to make an order—not so that information can be withheld from the public, because in almost every case it is likely that the information will be available from another authority, but because it would be irresponsible to designate all those meeting the broad criteria as public authorities without regard to other relevant considerations.

These amendments could impact disproportionately in particular on those authorities which are to be brought within the scope of the order-making power in Clause 4. The criteria under Clause 4 are relatively broadly drawn and have at the margins some areas for debate as to whether a body is performing public functions. A statutary requirement to include all bodies ultimately held by a court to fulfil the criteria could well lead to the Bill's coverage extending far into what would generally be regarded as purely private areas. A discretion on the part of the Secretary of State would avoid that risk.

Furthermore, the amendment would effectively negate the requirement at Clause 4(3), which requires the Secretary of State to consult any person in respect of whom he proposes to make an order. These amendments would require the Secretary of State to make the order irrespective of the outcome of the consultation. That would be an obvious nonsense.

Amendment No. 64 would require the Secretary of State by order, to remove the entry in Part VI or Part VII of Schedule 1 which relates to any body which no longer meets the criteria to be designated as a public authority by virtue of the conditions set out in Clause 3. I can understand that this amendment would be argued as complementary to those we have just looked at and in effect no more than a reassurance that the lists at Schedule 1 would all be kept up to date and that no body would be inappropriately required to fulfil the duties of a designated public authority for the purposes of this Bill.

The order-making power in Clause 3(5) is necessary so that the lists may be routinely updated to remove dead wood: that is, bodies which no longer exist or no longer meet the necessary criteria for listing as public authorities. However, in truth this amendment adds nothing to that purpose. No amendment is required to ensure that such dead wood is removed in order to be satisfied that the scope of the Bill is not exceeded because of a public authority's changing circumstances. The Bill already achieves exactly that form of housekeeping.

Clause 3(4) ensures that Parts VI and VII are self-regulating by providing that a body or office ceases to be a public authority by virtue of its inclusion in the schedule if it ceases to satisfy the conditions in subsections (2) or (3) of that clause. Therefore it is quite unnecessary to provide a relevant duty for the Secretary of State. The Government recognise the importance of ensuring the widest possible coverage of public service functions within this Bill, but placing inflexible duties on the Secretary of State in the way these amendments propose would be wrong. I would urge the noble Lord to withdraw these three amendments.

If I may now turn to Amendment No. 65, it would have the effect of requiring the Secretary of State to consult the commissioner in every case before making an order under Clause 4. I can understand the noble Lord's concern to ensure that Ministers make a decision to designate a person or body under the powers in Clause 4 only after the most careful consideration. However, I wonder just how the noble Lord could conclude that placing a duty on the Secretary of State to consult the commissioner in each and every case would assist in delivering that outcome.

It may be that in some cases the commissioner has detailed knowledge of the kinds of information which a body holds and will have taken a view as to whether and to what extent that body ought properly to be considered to be exercising functions of a public nature. In such circumstances I accept there would be value in consulting her but in many instances there is no reason to believe that the commissioner will have any knowledge of the relevant circumstances. In other cases there might, and would, be no dispute as to whether the body should be designated for FoI purposes and therefore little would be gained by imposing an obligation to consult where the result is obvious and the information commissioner may have nothing to add.

I cannot see what is gained by quoting this duty. That does not mean that the Secretary of State ought never to consult the commissioner. I have set out circumstances in which that might be sensible but an across-the-board duty does not look at all sensible.

I turn now to the second part of the amendment which would introduce a requirement to allow 20 working days for any response to the statutory consultation required by Clause 4(3) before any order to designate a public authority can be made. I understand the noble Lord's concern not to see organisations bounced into responding to a consultation, but I can assure him that the Government have no desire unnecessarily to increase the burden on private sector organisations and that we shall not do so in this respect either.

As your Lordships will be aware, government guidelines already provide that a reasonable period shall be allowed for responses to any public consultation exercise. Of course we will need to be flexible in how we apply these guidelines, but as a general principle we shall look to ensure that the normal guidelines of a minimum eight weeks' response timetable are followed for consultations in respect of any proposal to make an order under Clause 4 of the Bill. I would suggest that is a more appropriate way of dealing with a particular problem and the question of representations than setting out a statutary timetable. I would therefore urge noble Lords to withdraw their amendments.

Before the noble Lord sits down, on Amendment No. 56 I understand completely the argument he is advancing against inserting the word "shall". I also appreciate that in effect what he is doing is reading into the record that the expectation is that the Secretary of State shall normally schedule a body but will not do so in all circumstances, for the reasons given. Would the noble and learned Lord be amenable if an amendment were proposed which provided a form of words placing the onus on the Secretary of State to do that without making it a requirement, rather than just leaving it on the face of the Bill, where it is simply at the Minister's discretion, in a way through shifting it in the direction the Minister has clearly indicated he would expect the Secretary of State to go?

I do not think that would necessarily be appropriate because I have indicated what the reasons are. I have done it in some detail precisely for the reasons indicated by the noble Lord. Flexibility, I believe, is quite important as long as one sets out the intention, as I have done, of creating discretion. If one does it in a different way one is in a sense unnecessarily and possibly damagingly limiting the discretion. I think the way we have proposed is the most effective way of achieving the purpose.

I have some sympathy with what the noble and learned Lord said although some points did slightly alarm me. There is no intention on my part or that of my noble friend to include the security services in the provisions of this Bill. I must admit that I thought that Clauses 21, 22 and so on were sufficient to ensure that and therefore that this amendment did not go against that principle. Of course I may be wrong about that.

I was slightly alarmed by the idea that government bodies might be born, live and die without ever being in existence long enough to get enmeshed in these provisions. That does seem to suggest a huge proliferation of government bodies of an extremely short-term nature and also that the Secretary of State does not have in mind to be all that nippy in inserting new bodies into this list.

Nevertheless, as my noble friend Lord Norton indicated, the Minister has given us food for thought on these matters. We shall duly—I shall not carry the analogy too far—think about them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move that the House do now resume. In moving this Motion, I suggest that we return to the Committee stage on the Bill not before half past eight.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.