Derek McDowell (Labour)

My difficulty is that it is impossible to know whether the head actually considers the public interest or not. In effect this cannot be appealed as one does not know that the information was withheld. If the response one gets neither confirms nor denies that there was information there, then one is not really in a position to appeal it and obviously one cannot scrutinise in any way how the public interest provision weighs with the person who made the decision. We should be very slow to go down this road because it allows something very close to a class exemption. We have already given class exemptions to the Departments of Foreign Affairs and Justice, Equality and Law Reform on pretty much everything they do, as they are effectively allowed to neither confirm nor deny that they hold particular information and are therefore not open to scrutiny.

We are now bringing this provision into three other areas and I make these points so trenchantly because it is not at all clear to me why we need to do so in the three areas set out in the Bill – third party information, information in confidence and commercially sensitive information. Surely it is sufficient to allow the current position, where the deciding officer can use discretion on where the public interest lies rather than a provision which neither confirms nor denies.