Justice and Security (Northern Ireland) Bill

I am grateful to the Minister. The reason that I shook my head was not because I thought the Freedom of Information Act was not a good thing: it is a very good thing. But it is a curious way of tackling a practical problem in a reasonable period of time, which all of us moving these amendments are concerned about. I have not sought to argue, as have my learned friends, that there should be no restriction at all, although I fully sympathise with that view. I am concerned—I think the Minister agrees with me—about a situation in which documents that predate 1 August are relevant and necessary for an effective investigation. The commission, which is a public authority, should not have to use the Freedom of Information Act to obtain that material. The noble Lord, Lord Glentoran, and I are both seeking a common position. Those of us who have to deal with questions of discovery, as they used to be called or disclosure of documents as it is now called, have to deal with such things all the time. Let us suppose that I am pursuing an alleged sex discrimination case on behalf of a woman and I need documents from the past to show a course of conduct by the employer that indicates that the employer systematically treats women worse than men. I then seek disclosure of all relevant documents. If the document is not relevant, the employer will object and the judge will decide whether it is necessary in the interests of justice for that document to be disclosed. Otherwise, I cannot prove my case properly. In fairness to the employer, he would not be able to defend himself properly unless the relevant documents are all before the judge. The same applies here. I am making up these facts, but let us suppose that there was a gross abuse involving deaths and highly vulnerable women in custody in a particular place. I am trying to load this as emotionally as I can in the right direction. This is not at all amusing and I do not mean to make light of it; on the contrary. Suppose that there have been suicides on a very high rate in that place and there is a question about whether the prison authorities have been doing their job properly in monitoring, supervising and protecting. In addition, let us suppose that there is sheaf of documents showing in the past that what is now being investigated in the present has been going on for some time. The Bill is framed in absolutist terms. It states: "““The Commission may not exercise a power conferred by section 14 to require a person … to provide information recorded before [1st August 2007] … to provide information relating to a time before that date””," and so on, which is an absolute bar. All we are searching for is flexibility, a rule of relevance, and a way in which one can write into the Bill that the commission can use the power only if it is relevant or can go to a judge when there is a dispute, and the judge can decide in a perfectly ordinary way, as they do on disclosure and discovery cases now, whether it is relevant. There should be flexibility, which is the real safeguard. We are not arguing that there should be no safeguards, simply that a situation now should be able to be investigated in its context, but not some ancient grievance going back 20 years or so.