Health and Social Care Bill

Debate between Lord Pannick and Lord Clement-Jones

Wednesday 7th December 2011 Lords Chamber

[Lord Pannick]

My Lords, I understand the wish of the Government to appeal against the decision of the commissioner because of the general issues of importance raised under the freedom of information legislation, but the issue raised today by the amendment does not depend on the proper answer to the question that was before the commissioner and which will be before the tribunal. That is because the issue before the commissioner and the tribunal was the proper balance of interests—a very difficult balance of interests, as the noble Baroness, Lady Williams, has said—between the public interest in having this information and the very real need to ensure that risk registers in general are not disclosed. But the issue before the House is different. It is the issue of whether the Members of this House should be given information that the commissioner in his judgment, having seen that information, has said will be of considerable importance in enabling the Members of this House to perform our scrutiny function in relation to this vital Bill.

I cannot share the opinion of the noble Baroness, Lady Williams, that this is the same issue as will be before the commissioner. It is a matter for the judgment of this House how best we perform our scrutiny function. Whatever the balance may be, in general, between the public interest in disclosure and the very real interest in not disclosing confidential information that is on a risk register, the balance is surely very different in principle when we have before the House a Bill that we are scrutinising and considering. It would, I think, require an overwhelmingly strong argument to justify non-disclosure to this House of information that is relevant to our scrutiny function. I therefore hope that the Minister will be able to say today that he is prepared to disclose to this House at least the substance of the information that is contained in the risk register, so that we may fully perform our scrutiny function in relation to this vital Bill.

[Lord Clement-Jones]

My Lords, I am very interested in the argument of the noble Lord, Lord Pannick. He seemed to be setting a rather different standard, well above that imposed by the Freedom of Information Act 2000. I have no doubt that the Minister will deal with that argument when he comes to it. However, I believe that the question for the House today is whether we support the Department of Health’s right to appeal against the Information Commissioner’s decision. This has been a much more finely balanced decision than I believe the noble Baroness, Lady Thornton, is prepared to credit, which I find somewhat surprising given her recent role in government. In this kind of situation, with a qualified exemption under the Freedom of Information Act, it is all about whether the balance of public interest is served by disclosure or non-disclosure. The arguments put forward to the commissioner were in relation to two essential aspects. First, there is the “safe space” argument: the importance of government having the freedom to debate policy and make decisions,

“without being hindered by external comment”.

Secondly, there is the “chilling effect” that disclosing information relating to a particular policy, while that policy is still being formulated or developed, could have on,

“the frankness and candour with which relevant parties make future contributions to that particular policy debate”.

These are perfectly respectable arguments and that is why the commissioner found that the factors are finely balanced, as my noble friend Lady Williams said. In the light of the particularly strongly held views of the department—and I believe that these are genuinely held—it seems that it is entirely valid for the department to appeal to the First-tier Tribunal.

However, I agree very strongly with my noble friend that time is of the essence in this case. There is little point on a decision on appeal not being made until March or April; because, as my noble friend has pointed out, the Bill will probably have passed through this House entirely by then. To mitigate the possibility of that kind of delay, my noble friend’s suggestion is entirely right and sensible. The Department of Health and the complainants should apply to the First-tier Tribunal for an expedited hearing. This is well within the tribunal’s case-management powers under paragraph 5 of the procedural rules, which were last set out in 2009. Of course, this is a discretionary power, but I believe that any tribunal would recognise the need to resolve these matters quickly, particularly in the light of the debates we have had in this House. I believe it would be extremely helpful in the circumstances if the Minister indicated the department’s willingness to proceed along these lines. I hope that my noble friend can give a positive response today, even if further time is needed to prepare the case on both sides.