I move amendment No. 26:
In page 51, between lines 5 and 6, to insert the following subsection:
"(9) ‘point of law' includes a determination as to the public interest.".
This relates to the appeal to the High Court allowed under section 42 in various circumstances but only on a point of law. It will be recalled that many decisions to refuse access will be justified on grounds of "the public interest", as in section 19(5) and section 20(1)(b). While it is desirable to protect the public interest it is not desirable that a determination of that interest should be made entirely subjectively by the body concerned. If the heads of public bodies knew that the High Court could hear appeals on a determination of what was or was not in the public interest, they would resist the overwhelming temptation to use the public interest defence when it would be inappropriate. It may be that an appeal on a point of law covers such cases but it would be safer to make it explicit in the Bill that there can be an appeal to the High Court for a determination of a claim of protection of the public interest by a particularly retentive body.
This relates to earlier discussions. Many statutes and public bodies use the public interest defence as an excuse to retain information. The Department of Justice, for example, uses it to refuse to disclose information on immigration policy. It is almost synonymous with the security of the State. It is a classic blanket defence of the authorities on any activity which they feel the State is justified to undertake without being called to account.
The public interest defence will be used freely by all these bodies if they wish to hold on to or refuse to disclose controversial information. This Bill does not concern innocuous information — the test of this legislation will be its ability to ensure the public's legal right to information which shall include controversial information. The public interest defence has been used on many occasions by the current and previous Administrations to refuse information sought by way of parliamentary questions. For example, when information was sought about alleged malpractice in the beef industry, a cry of national sabotage went up. The Department of Agriculture and Food, as it was then, said it was not in the public interest to reveal details of export credit insurance matters which turned out to be controversial. Likewise, if the BTSB had been asked to account for its refusal to make evidence available to the expert group looking at that scandal, it would have claimed it was in the public interest that the information not be given so that confidence in the blood supply could be maintained.
The public interest defence can be used as a cloak of secrecy by public bodies. If we are serious about this legislation we should not allow it to be claimed by public bodies without an appeal on that point to the High Court. If there was a facility for such an appeal to determine whether the public interest could properly be cited as a defence to a claim for information it would go some way to assuage my concerns about this defence being used in a wholly inappropriate manner by a public body which wished to protect information. The purpose of my amendment is to make it explicit in the Bill that the determination of the public interest will be appealable to the High Court.
