§ [Relevant documents: The Third Report of Session 1998–99 on the Freedom of Information draft Bill (HC 570-I), and the Government's response thereto (Session 1998–99, HC 831); the Fifth Report of Session 1998–99 on the Freedom of Information draft Bill: The Committee's Response to the Home Office Reply (HC 925); the First Report of Session 1999–2000 on the Freedom of Information Bill (HC 78).]
Order for Second Reading read.4.33 pm
§ The Secretary of State for the Home Department (Mr. Jack Straw)
I beg to move, That the Bill be now read a Second time.
Calls for a freedom of information Act have been made consistently over much of the past 20 years. Unnecessary secrecy in Government and our public services has long been held to undermine good governance and public administration, and my party has long been committed to change. At the last election, our manifesto stated:We are pledged to a Freedom of Information Act, leading to more open government.The Bill will make that promise a reality.
The Bill, by its first clause, lays down for the first time in our constitutional history that the public have a right to know about the work of Government and all other public authorities. Again for the first time, that right of access to information will be enforced by an independent Information Commissioner and an Information Tribunal with clear powers to override the decisions of Ministers or any other public authority as to whether information should be released.
Moreover, the Bill will not only provide legal rights for the public and place legal duties on Ministers and public authorities, but will help to transform the culture of Government from one of secrecy to one of openness. It will transform the default setting from "this should be kept quiet unless" to "this should be published unless". By doing so, it should raise public confidence in the processes of government, and enhance the quality of decision making by the Government.
The process of developing the Bill—
§ Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross)
I am grateful to the Home Secretary for giving way so early in his speech.
The culture could be changed even now. We have had this Government for two years; have the Home Secretary and his colleagues already sought, by exhortation or memorandums, to elicit such a commitment within the Government?
§ Mr. Straw
I am pleased to tell the right hon. Gentleman that I have gone one step further than exhortation and memorandums. I have gone beyond the word to the deed. As I have made clear in evidence to Select Committees on two occasions, my approach as 715 Home Secretary has been far more open than those of any of my predecessors. For example, I have placed on the public record all sorts of internal operational documents—not only factual backgrounds and analyses—including all the manuals relating to the operation of the immigration and nationality directorate, save for those that cannot safely be published for reasons of law enforcement or security.
I have ensured that all research documents are published on time. As for statistics—[Interruption.] The right hon. Gentleman has asked me a question and I want to answer it. I have placed the issue of statistics in the Home Department at arm's length from Ministers, contrary to the way in which Conservative Ministers used to manipulate the date when statistics were to be published. I have ensured that dates are set well in advance of publication. We have brought in the Royal Statistical Society to advise us.
As for the inspectorate of Her Majesty's prisons, when I came to office, lying on my desk were more than a dozen reports of the chief inspector of prisons, some of which had been there for more than 12 months. They were still awaiting a decision on publication. I have established a protocol on publication so that they have to be published swiftly. If there is argument between the Director General of the Prison Service and the chief inspector, there is a procedure for resolving that. I am glad to have had the opportunity to answer the right hon. Gentleman's question.
§ Mr. Jones
Will my right hon. Friend continue with his good example and exhort his fellow Ministers in other Departments also to impart information? I have been trying for more than a month to get some information from my right hon. Friend the Secretary of State for Culture, Media and Sport about the sale of tickets for the millennium experience. I have not yet been able to discover why it is so difficult to obtain the information.
§ Mr. Campbell-Savours
I was astonished to hear what my right hon. Friend said earlier. Is he saying that the former Home Office Minister, who is now sitting on the Opposition Front Bench, the right hon. Member for Maidstone and The Weald (Miss Widdecombe), left for him to pick up 12 reports on prisons which were gathering dust, on which she had taken no decision while she was a Minister? She now has the cheek to come before the House and argue with my right hon. Friend on freedom of information issues.
§ Mr. Straw
I say that with one caveat. I do not know—I have no access to the advice given to the right hon. Member for Maidstone and The Weald 716 (Miss Widdecombe) and her former boss and friend, the right hon. and learned Member for Folkestone and Hythe (Mr. Howard)—whether the reports were resting on the right hon. Lady's desk or on the desk of the right hon. and learned Gentleman, my predecessor. I can only tell my hon. Friend that some of those documents had been outstanding for more than 12 months.
We need to judge people and we need to judge the extraordinary reasoned amendment, with which I shall deal in a moment. We must judge the Conservative party not by its vacuous words now but by its deeds when in government. We know that Conservative Ministers were practising a culture of secrecy even on issues that plainly should have been in the public domain.
§ Mr. Straw
I have given way on three occasions and I would like to make some progress. Then, as I always do, I shall give way again.
The process of developing the Bill has been open. My right hon. Friend the Member for South Shields (Dr. Clark), who I see in his place and to whom I pay tribute, produced a White Paper in December 1997. There was an inquiry into that White Paper by the Select Committee on Public Administration, and a public consultation exercise. The Government responded to the Select Committee's report and to the consultation, and produced a draft Bill in May this year.
We then had further public consultation and pre-legislative scrutiny on the draft Bill, again by the Public Administration Committee and by a Committee in another place. The Government responded to the reports of those Committees and amended the draft Bill in significant ways, as I shall set out later. A series of background papers to the Cabinet Committee's discussions has also been published.
As my hon. Friends know, I am always happy to engage in argument as to whether the Bill goes far enough, and I look forward to doing so this afternoon.
§ Mr. Straw
I shall give way when I have made some more progress.
The last people to make that criticism are the Opposition—hon. Members such as the right hon. Member for Maidstone and The Weald, who, for 18 years, set their face against any legally enforceable right to know.
When she was Prime Minister, Lady Thatcher said:A Freedom of Information Act is inappropriate and unnecessary.Lest anyone believes that that policy was jettisoned with her premiership, the Conservative party stated in 1997, at the time of the general election, in its campaign guide:The only group in Britain who are seriously interested in a Freedom of Information Act are inquisitive left-wing busy bodies.717 Incredibly, the Opposition are now posing as the defenders of open government. [Interruption.] Their amendment today is nothing short of Kafkaesque. If this goes on, the right hon. Member for Maidstone and The Weald will soon be coming to the House to criticise the Government for failing to nationalise the banks and Britain's top 100 monopolies, and claiming that that was Tory policy all the time.
§ Mr. Straw
I shall give way in a moment.
I tell Opposition Members that it is one thing sensibly to modify policies in the light of an election defeat. [Interruption.] It is quite another thing to do a complete volte-face, without explanation or apology. The public tend to notice and are not impressed—[Interruption.].
§ Mr. Deputy Speaker (Sir Alan Haselhurst)
Order. I am sorry to interrupt the right hon. Gentleman. I do not want calling out from a sedentary position from either side of the House during the Home Secretary's speech.
§ Mr. Straw
I am not surprised that the Opposition do not like what I say. Their position on freedom of information is laughable and incredible. Their claim that the Billwill result in greater secrecy than is the case under the existing"—non-statutory—Code of Practiceis demonstrably untrue. That code was legally unenforceable. In contrast, the Bill is replete with legal powers of enforcement. The harm test under the code, which prevented disclosure, was much easier to pass than ours in the Bill will be. The Opposition's test was merely a test of the possibility of harm; ours is a test of the probability of harm.
I may be conceding too much to the Opposition in claiming that they have changed their policy. They had changed their policy when they drafted their reasoned amendment yesterday, but today I received two documents. One is from the Widdyweb, the internet website run by the right hon. Member for Maidstone and The Weald, which states today:The shadow Home Secretary added that her party was content largely to see the status quo remain.The other document was from the Conservative research department's daily bulletin for today. Under the headingLines to take—Freedom of Information Bill",we read:We"—the Conservative party—believe it is for Parliament and for Ministers, not for judges or political appointees, to determine what information would be inappropriate in the public domain.There we have it—not a new policy, but the old policy, a defence of the circumstances under which the Conservatives operated before, which led to them covering up document after document. I hope that, when the right hon. Lady makes her speech, she will explain 718 which of the policies that she has enunciated in the past two days applies. Is she saying that we do not go far enough or that we go too far?
§ Mr. Bercow
Speaking as a right-wing inquisitive busybody, may I ask the right hon. Gentleman to tell the House, in the light of his veritable self-congratulation, why the director of the Campaign for Freedom of Information, Mr. Maurice Frankel, says that, in key areas, the Bill is weaker than the openness code introduced by the Conservatives?
§ Mr. Straw
The hon. Gentleman will have to ask Mr. Frankel that. I have discussed the matter with him, but he is demonstrably wrong about that. As I have already explained, the harm test operated in the code is a test only of the possibility of harm; the harm test to be operated under the Bill is the much higher test of the probability of harm.
§ Mr. Wardle
The Home Secretary knows that I have twice voiced concern in the House about freedom of information and the Security Service. When was he first told that Oleg Gordievsky confirmed Security Service suspicions that a prominent trade unionist had betrayed this country and NATO to the KGB for years, and why has he not made a statement to the House?
§ Mr. Hancock
I am sure that the Home Secretary agrees that there is widespread concern in the country about the way in which animal experimentation is cloaked in secrecy. What has he done in his Department to free up information about licences and experimentation, and what will the Bill achieve in bringing about greater openness in that area?
§ Mr. Straw
We are considering changes. The question of animal experimentation is central to the kind of freedom of information regime that should be constructed, where we have to balance the various interests of the right to know with the right of people lawfully to pursue their business, a right which all of us have to respect, and the need to ensure that, where it is necessary—only where it is necessary—for potential pharmaceutical products to be tested on animals in order to determine their safety, those experiments take place safely and securely. In addition, those who lawfully go about the business of testing pharmaceutical products, or those who are academics in that area, also have a right to their own personal safety, which right has often been put at grave risk.
§ Mr. Andrew Mackinlay (Thurrock)
I have been listening carefully to my right hon. Friend and I think that he needs to brace himself, both today and in Committee, for a litany of examples from hon. Members who have sought to probe the Government, but without success. Would I be helped under the Bill, as distinct from the ministerial code of practice, in my question to the Prime Minister about the frequency of Cabinet meetings since the general election and the duration of each, which he declined or was unable to answer? Would I be given that 719 information under the Bill or would it still be deemed to cause substantial harm—or would there be some other excuse?
§ Mr. Straw
It will not be deemed to cause substantial harm. This is a matter of speculation and these decisions lie primarily in the hands of the Information Commissioner. The first issue would be whether such information came within clause 33, which relates to the formulation of Government policy and so on. If it was found by the commissioner to be exempt, the issue would be whether, under clause 13, the commissioner would recommend to Ministers that they disclose that information, and, if they did, whether the commissioner would particularly apply himself or herself to clause 13(5), which states:In making any decision underthis clause regard should be hadto the desirability of communicating to the applicant factual information which has been used, or is intended to be used, to provide an informed background to decision-taking.Therefore, my answer to my hon. Friend the Member for Thurrock (Mr. Mackinlay) is—
§ Mr. Straw
No. I shall make progress, and then I shall happily give way. I have already given way many times.
Another major difference between the Government's approach and that of the Opposition is that the Bill forms a coherent part of our overall programme of constitutional reform, which is the most extensive such programme this century. Our programme includes devolution to Scotland, Wales and—now, happily—Northern Ireland; new standards of conduct for political parties; and—most importantly in the context of the Freedom of Information Bill—the Human Rights Act 1998.
§ Mr. Straw
I said that I shall not give way for now.
The 1998 Act sets out the European convention's statement of basic rights. Some of those rights are absolute—such as that provided in article 3, guaranteeing freedom from torture or degrading treatment. The rights with which we have had to wrestle in the Freedom of Information Bill are not absolutes, but have to be balanced one with another. Article 10 gives a right to freedom of expression, but that has to be set against article 8 on the right to respect for a private life.
We have therefore sought in the Bill to secure a balance between the right to information needed for the proper exercise of the freedom of expression and the—directly conflicting—right of individuals to protection of 720 information about themselves; the rights that institutions, including commercial companies, should have to proper confidentiality; and the need for any organisation, including the Government, to be able to formulate its collective policies in private.
Clause 1 states:Any person making a request for information to a public authority is entitled—
That right is overseen by the Information Commissioner and the Information Tribunal.
- (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
- (b) if that is the case, to have that information communicated to him."
I should like clearly to make this point, as there has been huge misunderstanding about the commissioner's powers. The commissioner and the tribunal have the last word on whether information is or is not exempt, and on whether any prejudice is caused sufficiently to justify non-disclosure. In the sphere of policy advice—dealt with in clause 34, and other than for central Government—the commissioner and the tribunal have the last word on whether the authorised person's opinion is reasonable.
Only if the commissioner and the tribunal agree that information is exempt, and that the public authority is therefore under no duty whatever to publish, does the discretionary disclosure power and duty under clause 13 arise. In such a case—for reasons that I shall be happy to explain—the power of the commissioner and of the tribunal is limited to a recommendation, albeit a very powerful one.
§ Mr. James Clappison (Hertsmere)
Will the Home Secretary explain why, in clause 33, central Government are exempting from the disclosure requirement information held by themselves, even when disclosure of that information would cause no prejudice to anyone? Why are the Government—to adopt the Home Secretary's own phrase—insisting on unnecessary secrecy?
§ Mr. Straw
We are not insisting on unnecessary secrecy. It has been accepted by people on all sides of the argument, and in all sensible freedom of information regimes of which I am aware, that policy advice and information on policy formulation—the way in which Ministers communicate with their private office, for example—should be exempt. We have therefore said that it should be exempt.
§ Mr. Straw
I am answering the question asked by the hon. Member for Hertsmere (Mr. Clappison), and then I shall give way to the right hon. Lady.
We are therefore saying that such information should be exempt. However, the issue of whether information should come within that exemption will be for the commissioner. If a Minister were foolish enough to say that a piece of information that should not be classified should be so classified, the commissioner would be able to see the information and to make a decision. Moreover, even when the commissioner, backed by the tribunal, decides that the Minister is correct in asserting that the information is exempt, the Minister is still under a duty, 721 imposed in clause 13, to consider whether—using the balancing test, which tips the balance strongly in favour of factual information—to issue it.
The commissioner will be able to make a recommendation in such cases, and my belief is that it would be very unusual—not impossible, but unusual—for such a recommendation to be overridden.
§ Miss Widdecombe
No one will argue—no one has ever done so—that internal advice in the form of a judgment submitted by a civil servant to a Minister should be published. That would rapidly make government unworkable. However, judgments and recommendations are made on the basis of factual material, which is sometimes statistical, and sometimes constitutes other sorts of information. By gathering all the information under the class exemption, it is possible to resist publishing not only the advice but the information on which it is based.
§ Mr. Morgan
On the harm test, the Secretary of State will know that his opposite number in Scotland, who is not in the same party, plans to introduce a test of substantial prejudice rather than prejudice. How will that affect clause 26, which covers the relations between the Westminster Government and the devolved Administrations? The Scottish Executive are not a public authority under the Bill. Could there be circumstances in which the Westminster Administration refused to publish details of their relations with Scotland because they considered such publication prejudicial, whereas the Scottish Executive published them because they did not believe that publication would be substantially prejudicial?
§ Mr. Straw
I doubt whether that will happen. The Scottish Executive document presents only proposals at this stage, and we await the small print, which is always important. While the commissioner has the power to order the publication of information when we can only make a recommendation, annexe C deals with the problem for Ministers in Scotland by providing for an Executive override—not once, not twice, but 15 times. We have not made such a provision. The whole document, not simply part of it, should be read.
722 On the hon. Gentleman's more substantial point about the transmission of information, it is settled that the copyright is in the hands of the originator, so the release of information that originated with us would be a matter for Westminster. The same would apply to Scotland.
§ Mr. Campbell
Imagine a civil servant who gives information to a Minister on a subject as important as BSE or guns to Iraq. During the deliberations of the Select Committee on Public Administration, its members said that we should try to discover hidden secrets, of which there were many under the previous Government, and get hold of information before it could be covered up. BSE was covered up under the previous Government. Will the Bill prevent such information from being concealed at the stage when discussions take place between civil servants and Ministers?
§ Mr. Straw
No freedom of information regime is a cure for bad government. America has the most extensive freedom of information regime, yet Government improprieties happen there more frequently than here. It is possible to make parts of a freedom of information regime self-defeating. We want to ensure that that does not happen here. In the United States, information is sometimes simply not recorded because people wish to avoid its exposure. Under those circumstances, the trail of accountability does not exist. When I was given bits of paper—they were hardly submissions—to sign late last year and early this year on what became known as Mitrokhin, I noted them, ticked them and recorded the date on which I had seen them. That is the way in which Ministers ensure that they are held to account. When I was asked when I had seen the information I could not immediately recall the exact date, although I recalled that I had seen it. The file was sent for and I was able to report—not to the House, because it was during the recess—within two days exactly what information I had seen. That is now being submitted in text to the Intelligence and Security Committee.
If we go too far, as we have seen with other Administrations, those ticks would not be on the documents, because the Minister would not be willing to say whether he had seen the information. I think that my hon. Friend the Member for Blyth Valley (Mr. Campbell) said that when he went to Australia he was told rather cynically by officials there that they had two devices for getting round what they thought was over-elaborate freedom of information legislation. One was to put documents on a trolley and wheel it into the Cabinet room. Those documents then became Cabinet documents and were exempt, as though they had been sprinkled with holy water. The second device was to make extensive use of post-it notes. That is a way of undermining the accountability of Ministers and I do not want it repeated here.
I have given an extensive answer to my hon. Friend, but I should like to deal with arms to Iraq and BSE as well. I have thought carefully about the issues and I do not believe that an FOI regime—that which we propose or any other that I have seen—would have guaranteed that either situation would not have come about. It is possible that in the arms to Iraq affair, the challenge on whether information should have been withheld on what turned out to be spurious national security grounds—which had to take place when there was a challenge to a public 723 interest immunity certificate in court—might well have taken place earlier before the Information Commissioner. That might have ensured that some of the injustices that followed did not happen or were halted earlier.
As for BSE, I draw to my hon. Friend's attention not just the provisions in the Bill, but the measures that the House has already passed under the Food Standards Act 1999. The Food Standards Agency has been given extensive powers on the disclosure of information, including aspects of policy advice.
§ Mr. Gill
The hon. Member for Thurrock (Mr. Mackinlay) challenged us to produce evidence of information being withheld and talked about allegations of torture. Last week, I asked the Foreign Secretary which member countries of the Organisation for Security and Co-operation in Europe, of which we are one, had failed to eradicate torture. The Minister who replied did not give me the answer that I was seeking. He would not say which countries had still not prohibited torture, but simply said that instances of abuse persisted in many parts of the region. I seek clarification from the Home Secretary. Does he believe that passing the Bill would alter that situation and would oblige the Foreign Secretary to tell me in which OSCE countries torture still persisted?
§ Mr. Straw
I cannot arbitrate in the matter of the hon. Gentleman's specific example. If he feels aggrieved as a result of the answer that he has been given, he should be aware that he would have significant powers under the Bill—greater than he currently has. I imagine that the Foreign Secretary would justify his refusal to make such a disclosure under clause 25, on the grounds that it would be likely to prejudice relations between the United Kingdom and any other state. The hon. Gentleman would then be able to challenge whether the information came within the exemption. Even if it did, he would be able to rely on clause 13, possibly backed by a recommendation in favour of disclosure by the commissioner, to require the Secretary of State to look again at the refusal to disclose the information. I am happy to give the hon. Gentleman that reassurance.
§ Mr. Giles Radice (North Durham)
Many Labour Members have been in favour of freedom of information legislation all our parliamentary lives, so we very much welcome the Bill—particularly in its strengthened form. As I understand it, the Information Commissioner has the right to recommend publication in almost all cases. However, in certain cases, the Minister is able to resist that recommendation.
§ Mr. Radice
Well, I would like it explained why that should be so.
In addition, we can all understand the case for keeping policy advice confidential. Is it not possible to separate policy advice from the information behind that policy advice?
§ Mr. Straw
On my right hon. Friend's second point, we have not yet found a formula which safely does as he asks, although I am happy to continue the search for one.
The question of the powers of the commissioner has been the subject of some misunderstanding. Clause 1 lays down the right to know for citizens. Part II sets out 724 circumstances in which information can be exempt from that right to know. In some cases, information is exempt as a class—the best example of that is national security. In many other cases, it is exempt where it is subject to a harm test. Generally, this is a test of prejudice, but in some cases—for example, in respect of health and safety—it is a matter of whether the release of that information would seriously endanger the health and safety of an individual.
In one case where policy advice is concerned, that, too, is exempt as a class. Under clause 34, the exemption is subject to certification by a qualified person. In each of those cases—as set out in clauses 50 to 55 and the schedules—the commissioner has not just a power to recommend, but a power to enforce the decision which he or she makes to require the publication of information.
So far as those areas covered by a class exemption are concerned—including clauses 33 and 34—if the commissioner says that he or she does not accept that the information comes within that class—[Horn. MEMBERS: "Ah!"] But the right hon. Member for Maidstone and The Weald has just accepted the need for a class exemption for policy advice and for national security. If she is saying that that is not needed, I look forward to hearing from her. That has always been the position that she has adopted in the past.
So far as a class exemption is concerned, it is for the commissioner to say whether or not the information comes properly within that class of information. So far as those areas covered by part II are concerned, and where there is harm test, the commissioner can substitute his or her judgment on whether harm will be caused for the judgment of the Minister. The commissioner's decision is final, subject only to appeal to the tribunal. There are extensive powers of enforcement and offences created for failing to comply with the orders of the commissioner.
It is only where the tribunal and the commissioner have themselves said that the Minister is not under a duty to release the information that the issue of discretion arises. However, even though the Minister or public authority is not under a duty to release the information, the Minister is under a duty to consider releasing information, and the commissioner can make a recommendation to that effect.
One of the issues that has been raised is whether the commissioner should have the final decision, even in respect of himself or herself. We can discuss that more in Committee. Scotland has said that the commissioner has the final decision, but has then said that the Executive can override that decision. I would suggest to the House that that is a distinction without a difference.
§ Mr. Straw
Since I have been on my feet for 34 minutes and I know that many other Members wish to speak, I will, if I may, make some progress. I will then happily give way to the right hon. and learned Gentleman.
I want to deal with some of the areas where we have moved away from the White Paper. The White Paper proposed a test of substantial harm but the Bill uses a test of prejudice. The consultation exercise is instructive here. In the end, of course, we have to weigh the quality of an argument, not the quantity of the responses to it, but, as it happens, of those who commented on the substantial harm test, the majority raised objections.
725 There may be some who say that the views of, for example, the Confederation of British Industry, can simply be brushed aside; but we do not. We do not always agree with it, but it set out an argument against the substantial harm test clearly and cogently. It said:We believe the test for disclosing information should be one of simple harm and not substantial harm … Any attempt to limit the ability to withhold information to that which may cause substantial harm to a business may prevent the voluntary disclosure of information to Government. Without proper assurances, we do not consider that the Government's approach will achieve the objective of two-way openness and trust.Similar arguments against the use of a relatively ill-defined adjective such as "substantial" can be made in respect of many other areas, not least law enforcement, so we moved away from the substantial harm test, but in other important ways the Bill is more open than the White Paper.
We have introduced the tribunal, so that an applicant has a quick and cheap way of appealing against the commissioner's decision. We have extended the coverage of the Bill beyond that proposed in the White Paper, to include the operational activities of the police and Parliament itself. Overall, although the package proposed in the White Paper has been changed, there are many instances in which the balance has moved towards a greater openness rather than in the other direction. That is well illustrated by the nine-page grid annexed to the latest report of the Public Administration Committee.
The proposals for Scotland are at an early stage and we look forward to the detail. It is of the essence of devolution that institutions do things differently. I am pleased to say that I enjoy constructive relations with Members of the Scottish Parliament and members of the Scottish Executive, both Labour and Liberal Democrat, and long may that continue, but, in the end, the separate institutions may come to different views, and we should not shy away from that. We should celebrate the fact that, in this United Kingdom, a Union of diverse nations, we can none the less accommodate such differences.
The Bill has been compared with the Irish Freedom of Information Act. Again, it is a matter for each state to determine for itself what legislation to enact, and Ireland has reached a view different from ours. The commissioner in Ireland can order disclosure in the public interest, although in key areas—as is proposed in Scotland—that is subject to ministerial override. In many areas, the Irish legislation is less open than the Bill. There is no access to information created before the Irish legislation came into force, whereas the Bill is fully retrospective, and the legislation in Ireland does not cover the police service at all.
The Bill will lead to cultural change throughout the public sector. There will be more information about how health authorities, local councils and the police deliver services. It will give citizens a right to know and a right to appeal to the commissioner if they do not get the information that they have sought. That is a fundamental change in the relationship between the citizens and the state.
§ Sir Nicholas Lyell
No doubt inadvertently, the Home Secretary mis-stated the law and what happened in relation to public interest immunity certificates in the 726 arms to Iraq matter. The issuing of the certificates was not misdone, as Sir Richard Scott subsequently informed the House on 6 May 1996. The tests for PII, introduced after consultation on 18 December 1996, were tests of real harm or serious harm. The test of prejudice is a much weaker test.
§ Mr. Straw
I do not accept the right hon. and learned Gentleman's point, because we are dealing with two very different sets of circumstances. He has had experience of advising on the signing of PIIs and I have had considerable experience of having to authorise or, in some cases, not authorise them. The issue is whether information that is relevant to an individual's defence should be disclosed to that individual and to the court.
In this case, we are talking of differing circumstances. If the right hon. and learned Gentleman wishes to deal with the test that we have established for law enforcement generally—not in relation to PIIs—my view, and that of the police service, was that we could get into dangerous circumstances if we released information that it was accepted would cause harm to law enforcement but that had to be released because it could not be shown that it would cause substantial harm. We have to make fine judgments about what would be fully in the public interest. Would it be the release of that information, even though we knew it would cause harm to the public, or would it be the withholding of that information, because it would cause harm to the public? My judgment is that it is better, in those circumstances, to withhold the information.
§ Mr. Kevin McNamara (Hull, North)
My right hon. Friend mentioned the Irish freedom of information legislation. He will be aware that, under arrangements made by both Governments, we now have cross-border bodies. Is he in a position to say what information will be available to members of the public in the United Kingdom about those cross-border bodies and their activities, and what further information may be available in the Republic of Ireland?
§ Mr. Straw
I cannot say exactly, but I will see whether the Under-Secretary, my hon. Friend the Member for North Warwick-Sline (Mr. O'Brien) is able to provide that information when he winds up. I refer my hon. Friend to the answer I gave earlier—that when one is dealing with two separate governmental institutions, the basic rule that applies is that the originating institution has ownership of that information.
The Public Administration Committee, in its latest report, made a number of proposals for changes to the draft Bill. In the Government's response, published on 19 October, we met some, although not all, of their proposals. The power of the commissioner has been expanded; the public interest test in clause 13 has been widened; the time limit for meeting applications for information has been cut by more than a third, from 40 calendar days to 20 working days; and the so-called cumulative harm test in clause 37 of the draft Bill has been removed, as has clause 44(7), against self-incrimination.
One area where so far it has not been possible to find accommodation for the Select Committee's views is in 727 identifying a robust formula that can safely distinguish between policy advice and what the Select Committee calledpurely factual information … and analysisused to inform policy decisions. I continue to wish to discuss that issue with right hon. and hon. Members. However, for reasons that I will now explain to the House, the difference between us and the Select Committee will in practice be much less than is imagined.
The assumption behind the recommendation of the Select Committee is that there is much purely factual information and analysis that informs policy decisions which is not published at all, or is published only by grace and favour of Ministers. In my experience, that is not correct. Let me illustrate that by taking two key areas of policy for which I am responsible—criminal justice, and asylum and immigration. The policy submissions I receive on both those areas do indeed contain much factual information, but almost all of it is already published; or if the data are provisional, it is about to be published. There is no separate set of statistics on police activity, criminal prosecutions and convictions or asylum applications to which I have access but Parliament and public do not. What is also frequently overlooked in this debate is that, by a separate White Paper, the Government will take additional steps to strengthen the independence of the Office for National Statistics and the integrity of its data.
§ Dr. Tony Wright (Cannock Chase)
For the avoidance of doubt on an issue that my right hon. Friend mentioned earlier, will he confirm that, when the issue of the disclosure of exempt information on public interest grounds arises, that decision will finally be taken not by an independent Information Commissioner but by a Minister or a public body? What sort of circumstances might arise in which an Information Commissioner might recommend disclosure but a Minister or a public body would still withhold the information?
§ Mr. Straw
In terms of the Bill, what my hon. Friend says is correct; but, as I have explained, the discretionary power comes into play only after the Minister has been told by the commissioner that he or she has no duty to release information. If the Minister has such a duty and the commissioner orders the release of information, that is the end of the matter: the information must be released.
§ Mr. Straw
No. I want to finish my speech.
My hon. Friend the Member for Cannock Chase (Dr. Wright) asked whether I could anticipate circumstances in which, after the commissioner had been advised under clause 13 that the information should be disclosed, the Minister refused to disclose it. I cannot immediately offer my hon. Friend an example, but there might be circumstances in which Ministers genuinely thought that the release of such information could be highly prejudicial to negotiations with another state, to negotiations within the United Kingdom, or to national security.
I feel that there would be few occasions on which a Minister would, or should, refuse to accept the recommendation of the commissioner, just as I believe 728 that there have been few occasions on which a Minister has refused to accept the recommendation of the ombudsman. None the less, I think it important to have a fail-safe mechanism. As my hon. Friend knows, many countries operate such a mechanism by way of Executive override, and that is what is proposed in Scotland. We are approaching the issue by what I consider to be a more straightforward route, but I expect the conclusion to be exactly the same.
This is a good Bill, which will transform the culture in which Governments operate. In particular, it will end the culture of secrecy in which the last Administration operated. For the first time, the people will have a right to know. The Bill compares well with legislation overseas. Each country must determine for itself where to set the balance between competing rights, such as the right to know, the right to privacy and the right to confidentiality. The balance of rights will be different everywhere.
The Bill is fully retrospective, unlike legislation in Ireland. It covers a wide range of organisations, including the police—again, not the case in Ireland—and provides access to a tribunal, unlike the proposals in the Scottish consultation paper. The Bill provides free access to the commissioner, whereas in Australia access to the administration tribunal requires payment of a fee. It also imposes strict limits on response times, unlike legislation in Canada, where many people have to wait for months to receive information.
The right to know, while it cannot be an unfettered right, has long been neglected in this country. The Opposition did nothing to promote a statutory right to know in 18 years of government; indeed, until now, they have consistently opposed such a move. Everyone will benefit from the Bill, which will help to deliver a more responsive, better informed and more accountable public service, and I commend it to the House.
§ Miss Ann Widdecombe (Maidstone and The Weald)
I beg to move, To leave out from "That" to the end of the Question, and to add instead thereof:this House declines to give a Second Reading to the Freedom of Information Bill because it will result in greater secrecy than is the case under the existing Code of Practice, because it fails to promote open government instead of secrecy or transfer from Ministers and officials to Parliament the final decision over the release of information, and because it represents a significant dilution of the proposals in the White Paper, Your Right to Know (Cm 3818), and disregards the recommendations from the Select Committee on Public Administration.If the Home Secretary is half as serious as he suggested about bringing greater openness to government, the Bill represents a missed opportunity. The right hon. Gentleman made tremendous virtue of the fact that he was putting openness on to a statutory footing, but all that he is putting on to a statutory footing is more secrecy than was contained in the code of practice. That is a backward step, rather than a step forward. A careful examination of what the House is really being asked to consider—behind all the smoke and mirrors—will show that the Bill takes us not forward, but back.
It is true that I have said that I would prefer the status quo to this Bill, which I believe will ultimately provide for less than is provided for by the status quo. I have said that, and I stand by it.
729 I have also said that Parliament has a vital role in holding the Executive to account. That role is completely ignored by the Bill. Had the Bill lived up to half the rhetoric that we have heard from the Government, we might have moved into a new era of openness. The Government claim commitments to open government and to freedom of information. At the general election, the Labour manifesto claimed:Unnecessary secrecy in government leads to arrogance in government and defective policy decisions.
§ Miss Widdecombe
I have hardly said the parliamentary equivalent of "Good afternoon", and I should like to make some progress.
As with so many Labour pledges, the Government's enthusiasm for what they said in Opposition has quickly waned. The manner in which they have treated Parliament and the public stands in stark contrast to the culture of openness that the Conservative Governments attempted to create. [Interruption.] On Sierra Leone—those words make the Labour Benches go quiet—the Foreign Secretary tried to refuse the Select Committee on Foreign Affairs access to relevant papers. On tax harmonisation, we had to wait until The Daily Telegraph published details of secret talks in which the Chancellor of the Exchequer had been engaged and which could give Brussels control of nearly 200 new taxes. It took another press revelation to tell us that the Prime Minister had intended to foist a coalition on us.
The Home Secretary himself is not whiter than white when it comes to openness in government. It took a leak of a Treasury letter—
§ Miss Widdecombe
I shall finish what I am saying before I give way.
It took a leaked Treasury letter before the Home Secretary would admit the truth about police numbers. As he is so keen to interrupt, I shall now give way. Come on; the right hon. Gentleman has the Floor.
§ Mr. Straw
As well as giving us her fantasy, will the right hon. Lady tell us about her record? How was it that I was presented with a great pile of reports from the prisons inspectorate that had lain either on her desk or on that of the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) for up to 12 months? Was that consistent with openness?
§ Miss Widdecombe
I was giving the House not a fantasy but a litany of the misdeeds of a Government who claim that they are committed to openness. It will not have escaped the House that, as ever, the Home Secretary spent the first half of his speech not presenting his proposals, 730 but going back endlessly over our term in government. Presumably, he is practising for Opposition again. He must be looking forward to it.
§ Miss Widdecombe
The Home Secretary does not seem to realise that he is in government, and that he must answer for what is being done by the Bill.
We published the code of practice on access to Government information in 1994, and strengthened it in 1997. What the Home Secretary has said today and what is provided for by his class exemption on the formulation of Government policy may therefore be contrasted with what we provided for and that was: to publish the facts and the analysis of the facts that the Government considered relevant and important in framing major policy proposals and decisions; and that such information would normally be made available when policies and decisions were announced.
That was a clear attempt to make the distinction that the right hon. Gentleman suggested this afternoon could not readily be made, between an internal judgment or recommendation and the information from which that judgment or recommendation was drawn.
I put it to the right hon. Gentleman—I hope that he will consider this seriously during the passage of the Bill—that if we could do it in our "Code of Practice on Access to Government Information", he too can do it during the passage of the Bill.
§ Dr. Gibson
In what year was the public information disclosure Bill enacted? It prevented workers from being dismissed and allowed them to be safeguarded against problems arising from their blowing the whistle on companies after two good trade unionists—one in a Leeds general hospital and one in British Biotech—lost their positions because they raised issues of fraud and misconduct and the health hazards to the public caused by the misrepresentation of cancer drug trials in one case and the falsification of information in a hospital in the other. In what year was that Bill enacted?
§ Miss Widdecombe
I might have been more convinced by that Bill's usefulness had not my time as shadow Secretary of State for Health revealed that the Government were most unwilling to confront information when it was unhelpful to their cause. Indeed, I listed many such instances.
The Home Secretary may not understand this, but I am trying to deal with some of the detail of the Bill because it is seriously flawed. I am trying to draw out the flaws 731 and to test whether the right hon. Gentleman is receptive to the Bill being amended. I may be wrong, but I thought that that was what scrutiny by Parliament was all about.
§ Mr. A.J. Beith (Berwick-upon-Tweed)
The right hon. Lady has suggested that the Bill ought to be amended in certain respects, and I agree. However, she is asking the House to accept an amendment that declines to give the Bill a Second Reading and that would prevent the House from reaching those parts and amending them. Is that her serious intention, or is it a device to enable those Tories who think that freedom of information is for left-wing busybodies to vote in the same Lobby as those who think that it is a good idea but that the Bill is defective in some respects?
§ Miss Widdecombe
We are used to a rather higher standard of intervention than that from the right hon. Gentleman. The position is extremely simple. We believe that the Bill is deeply flawed and that the Home Secretary has shown no willingness, during his analysis of it and in answering our questions, to ensure that it does not take us backwards in ways that I am endeavouring to illustrate. If he were prepared to give that undertaking, there might be some way forward. Until he is prepared to admit that, no, we do not want to give the Bill a Second Reading.
§ Miss Widdecombe
I will give way in a moment. I want to move on to my next argument to show that the Bill is flawed.
The document to which I referred—our code of practice—set a challenging target for the amount of information that should be released by Government and public authorities. It made it clear that the approach of public authorities should be to release informationin all cases … based on the assumption that information should be released except where disclosure would not be"—not "could not" or "might possibly be", as the right hon. Gentleman claimed—in the public interest.
§ Dr. George Turner (North-West Norfolk)
The right hon. Lady is saying that the information would be doing some harm. Will she illustrate using her own example what harm would have been done if the reports on the Prison Service that she did not publish had been published so that we all knew about the decisions that she was not taking as well as those that she was?
§ Miss Widdecombe
Let us hear about Wormwood Scrubs, shall we? The hon. Gentleman should know that I published scores of Prison Service reports, and that we then had in place a procedure that involved trying to get agreement on the facts—as opposed to the interpretation of the facts—between the chief inspector, the Director General of the Prison Service and Ministers. I am the first to acknowledge, and I acknowledged while in office, as the Home Secretary will find if he checks the record, that that sometimes led to cumbersome delays. I do not disapprove of the fact that there is now a different system. However, the idea that Prison Service reports were withheld because of some potential harm is absolute twaddle.
732 Perhaps we could now return to the detail of the Bill. For some reason, Labour Members are unwilling to buckle down and look at it. I sometimes wonder why Labour Members try to delay progress by going into extraneous highways and byways, when we are discussing things that apparently so exercised Labour Members that 195 of them signed a motion calling for amendments to the Bill, many of which have not been made.
§ Miss Widdecombe
The hon. Gentleman probably wants to make a point relating to earlier interventions. If his intervention is on the point that I am making, I will listen; but if it is on some extraneous matter, I will not.
§ Dr. Wright
Perhaps the right hon. Lady will listen and tell me whether my intervention is appropriate. I am trying to work out what she is inviting the House to do. The Bill has already been substantially improved through my right hon. Friend the Home Secretary's constructive engagement. He says that he wants to improve it further by engaging in further discussion on it, yet the right hon. Lady is inviting the House to reject it on Second Reading so that it cannot be improved. Is that not simply daft?
§ Miss Widdecombe
The hon. Gentleman is ever the optimist. I shall seek to demonstrate that, in most of its essentials, the Bill has not been improved. I do not believe that it will be. [HON. MEMBERS: "The right hon. Lady has not done her homework."] The unfortunate thing for Government Members is that I have done my homework. That is why I am trying to give the Bill a close analysis.
§ Miss Widdecombe
I will give way because I told the hon. Lady that I would, but this is the last intervention that I shall take until I have covered the next point.
§ Helen Jones
The right hon. Lady argues that the Bill has not been improved. I put it to her that, in the Select Committee report, which details the process of pre-legislative scrutiny, she will find a number of recommendations that were accepted by my right hon. Friend the Home Secretary and are now included in the Bill. Is the right hon. Lady seriously arguing that we should not continue that process and continue to improve the Bill?
§ Miss Widdecombe
I intend to argue that many of the most salient recommendations have not been incorporated. I shall now make progress in arguing that.
I have never claimed that the code of practice that we introduced was perfect, that it could not be expanded, that it could not be built on and that it did not have some flaws of its own. I do claim that what is now being written into statute represents a deterioration from the position that was set out in the code. For example, many bodies are exempt from the provisions of the code simply because they do not come under the remit of the parliamentary ombudsman. It is not possible for the ombudsman, who enforces the code, to compel the release of information, but the code remains a clear statement in favour of 733 freedom of information, unlike the Bill, which I hope now to demonstrate represents backwards movement.
The Home Secretary and the hon. Member for Warrington, North (Helen Jones) have made much of the consultation process that the Home Secretary undertook in formulating his Bill, but he has spent much of his time since the publication of his White Paper "Your Right to Know" backtracking from the original proposals. For example, he has included many more class exemptions such as the exemption of all information relating to policy formulation. That is a backwards step from his White Paper and from our code of practice. It will have the effect of making secret more information.
The Home Secretary has changed the test on whether information should be released from substantial prejudice, which would have been tough to meet, to simple prejudice, which is easy to meet. That will mean that it is harder for information to qualify for release. He has backtracked from the pledge in the Government's White Paper to give the Information Commissioner the power to force public authorities to release information. His constant retreat from proposals that would encourage real openness is indicative of the weakness of the Government's commitment to the cause that they theoretically espouse.
We know the reason for the Government's sudden and dramatic change of heart. The enthusiasm for openness and proper freedom of information waned at about the same time that responsibility for the Bill was transferred from the Cabinet Office, where it was under the auspices of the former Chancellor of the Duchy of Lancaster, the right hon. Member for South Shields (Dr. Clark), to the Home Office.
§ Dr. Julian Lewis
I thank my right hon. Friend for giving way. Does she feel that the provisions of the Bill will hinder or assist the right hon. Member for South Shields (Dr. Clark), who did a good job in preparing the Bill in the first place, in finding out who at No. 10 Downing street systematically rubbished him in the press in order to create vacancies for Liberal Democrats in a coalition with the Prime Minister?
§ Miss Widdecombe
I do not want to intrude on private grief.
It is clear that the Home Secretary does not share the enthusiastic feelings of many members of his party on this issue. It is surprising that he does not even agree with the former Chancellor of the Duchy of Lancaster who was previously responsible for the Bill. That became clear during the debate on the Address, when the right hon. Gentleman made it clear that he was not happy with the stance of the Home Secretary. He said:we still have to persuade him further. We are not there yet."—[Official Report, 17 November 1999; Vol. 339, c. 40.]The initial stages of the consultation process were characterised by the Government moving in the opposite direction from the views that they were receiving from interested parties. Indeed, they completely ignored many of the salient recommendations in the Select Committee on Public Administration's report on the draft Bill.
734 The Home Secretary made some minor proposals in respect of the Committee's findings but, in response, the Select Committee notedwith some disappointmentthatmost of the points we found unsatisfactory in our report of a few weeks ago remain part of the Bill.The Committee expressed concern that there was no clear presumption in favour of disclosure; that the Information Commissioner could not order release of information on the grounds of public interest; and that there were still too many class exemptions in the Bill. We share many of those concerns and will raise them in Committee.
It was significant that the main feature of the Home Secretary's consultation process was his unwillingness to include the views of others. The Law Society said:Instead of a presumption in favour of disclosure of information we seem to have one which favours secrecy.Charter 88 said:the legislation remains seriously flawed despite the concessions offered in October".
§ Miss Widdecombe
Only if the matter is not covered by an exemption. The commissioner has no power on the public interest, which will be one of the principal tests.
I was telling the House what other people have said. The National Union of Journalists said that itis deeply concerned at the failings in the Bill. After waiting decades for Labour to make good its promise of freedom of information we find a proposal which in some ways is a backward step".There are several key points on which we shall try to improve the Government's flawed proposals. The Bill introduces many more class exemptions than are found in the code of practice. That is an undisputable fact. We shall seek to remove from the Bill two significant class exemptions that are not found in the code of practice.
Possibly the most contentious of the new class exemptions contained in the Bill is the one that I have mentioned, which relates to the formulation of Government policy. As I have said already, and would always say, we agree that internal civil service policy documents, which are advice from civil servants to Ministers, should not be released. I accept that utterly; but it must be right that the background data that have informed policy making should be released in some, if not in most, cases. We began that process when in government—we did not complete it, but we began it—and we shall work to ensure that the Government do not try to row back from that now.
§ Mr. Desmond Browne (Kilmarnock and Loudoun)
On that very point, which the right hon. Lady has now covered twice, she will be aware of the evidence given by Lord Butler of Brockwell, the former Cabinet Secretary, to the House of Lords Select Committee appointed to consider the draft Bill, in which he said, at page 58 of that Committee's report: 735when we were coming up to the 1997 election, knowing what the government policy was in this matter, my senior colleagues and I gave some thought to how we could regularly structure submissions to Ministers in a way that would enable us easily to separate the background which was publishable from, as it were, the subjective advice which was confidential. It would take a bit of training and"—these are important words—changing practice to do that, but I think that people could very readily adapt to that.Can the right hon. Lady explain what was happening in her Government, that that change had to take place in anticipation of our Government?
§ Miss Widdecombe
The hon. Gentleman makes my case for me, because he has made a clear case that it is possible to separate the advice from the information on which it is based, and that is what we accepted in part 1, section 3(i) of our 1997 "Code of Practice on Access to Government Information" when we said that we shouldpublish the facts and analysis of the facts whichwererelevant and important in framing major policy proposals and decisions".[Interruption.] I am going to make this analysis because it is a crucial one. It is possible—the former Cabinet Secretary says that it is possible—to distinguish between advice and information, so why does the Home Secretary have one omnium-gatherum class exemption to cover all of it?
§ Helen Jackson
My logic may be flawed but it seems to me that, not longer than five minutes ago, the right hon. Lady said that she admitted to the House that she preferred the status quo. The intervention by my hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne) has just drawn from her a totally different interpretation—that she was perhaps trying to change the status quo.
§ Miss Widdecombe
I do not know whether it is the hon. Lady's logic that is flawed as much as her understanding.
§ Miss Widdecombe
I will not give way. I shall say this once more, and only once more. Our code of practice, which I have quoted so often that I cannot read out all the words again, clearly stated that not just the opinions and the submissions, but the facts and analysis of the facts that the Government consider relevant and important are to be published.
§ Miss Widdecombe
I very clearly said that that was the last intervention for some time.
736 In his evidence, the former Cabinet Secretary made it clear that it was possible to distinguish between advice and information, but the Home Secretary's class exemption does not distinguish between the two. The hon. Member for Sheffield, Hillsborough (Helen Jackson) seems unable to follow that elementary reasoning.
§ Miss Widdecombe
I shall now make progress.
We shall also oppose any class exemption on information relating to the investigation of accidents. Obviously, we would not countenance the release of documents that would prejudice criminal proceedings, but we do believe that the public should have access to some documents relating to incidents, such as—it is only an example—the recent tragedy at Paddington. In relation to certain types of information, there is an absolute need for a class exemption.
For example, we accept—there is no argument between us about this—that the Home Secretary is right to say that information received in confidence from a foreign Government should not be subject to the provisions of the Bill. However, the increased number of exemptions in the Bill will undeniably make more information secret than was the case under the code of practice. Therefore, we shall examine every class exemption that the Government propose to introduce and we shall evaluate whether the exemption rows back from the code of practice or, indeed, from the Home Secretary's own White Paper.
Another fundamental flaw in the Bill is the inherent weakness of the Information Commissioner, who will be set up by the Government supposedly to enforce freedom of information. Under their proposals, the Information Commissioner will not be able to compel disclosure of information where he deems release to be in the public interest. That is the difference between what we advance, which is that the Information Commissioner should be limited by what is in the public interest, and what the Home Secretary advances, which relates simply to what is not covered by an exemption. They are two completely different cases.
If a member of the public appeals to the commissioner after being denied information, the commissioner cannot order disclosure and nor can the tribunal, which is the appellate body, and nor can the courts, which can address only points of law and not the substance of whether the public interest is being served. Therefore, it is clear that Ministers will continue to decide whether information should be released or not.
§ Mr. Bercow
Is it not a source of disturbance to Conservative Members that the Bill offers no prospect in future of better ministerial performance at Question Time than we have witnessed in the past when, as my right hon. Friend will agree, obfuscation has been the norm and disclosure has been the exception? Will she cast her mind back 27 hours and tell me whether she thinks that, under the Bill, I am likely to get a better answer to the question that I posed to the Minister of State, Home Office, the right hon. Member for Brent, South (Mr. Boateng), about the effect on job opportunities of the manufacture by prisoners of 260,000 pairs of slippers between March 1997 and March 2000?
§ Miss Widdecombe
You might, Mr. Deputy Speaker, rebuke me if I endeavoured to rehearse yesterday's 737 Question Time, and I see nods from the people at whom I am not supposed to look. Therefore, I will not be tempted down that route. However, it would be high optimism to the point of folly to assume that any Freedom of Information Bill would improve ministerial answers at Question Time. Perhaps, now—[Interruption.]
§ Mr. Deputy Speaker
Order. I say again that I do not want to hear exchanges across the Floor when the House should be paying attention to an hon. Member.
§ Miss Widdecombe
I was saying that the final fundamental flaw in the Government's proposals is the side-lining of Parliament. The Bill contains no provision for ensuring that Parliament plays a role in ensuring openness. In decisions relating to the public interest, we believe that it is right for elected Members of Parliament to hold Ministers to account.
There are many other more detailed problems with the Bill. For example, under its provisions, it is up to the Home Secretary to decide which public authorities are subject to the legislation, and it can be noted from the Bill that he will do so by order. That is in contrast to the Human Rights Act 1998, in which it is for the courts to decide whether a body should be subject to legislation.
We shall also need to examine carefully the Government's proposals to merge the post of Information Commissioner with that of the existing Data Protection Registrar. I do not doubt in any way the excellent work done by Elizabeth France, the current Data Protection Registrar, to whom the House is very grateful. However, we shall need to consider carefully giving responsibility for ensuring openness to a post which at the moment ensures secrecy and privacy. We believe that they are two separate and distinct roles and that any attempt to confuse them could result in a less effective enforcement process.
§ Mr. Brian White (Milton Keynes, North-East)
If the right hon. Lady is suggesting, as she has done in press interviews, that going to the ombudsman is the better route, will she explain how the effectiveness of the ombudsman will interact with that of the Data Protection Registrar? The two posts are inextricably linked, as the evidence to the Select Committee showed.
§ Miss Widdecombe
I shall come to our proposals for the ombudsman if the hon. Gentleman will exercise patience.
§ Mr. Richard Shepherd (Aldridge-Brownhills)
Before my right hon. Friend comes to that important point, may I suggest caution? She has suggested two classes in which she absolutely accepts the exemptions. The first is information given in confidence between Governments. This country is part of the European Union and therefore ruled by the agreement of Governments. Information that is commonplace within our own self-rule area will not be available under the provisions. That is an important point.
The other exemptions that my right hon. Friend mentioned are those that relate to policy advice. She will recall that the former Chancellor of the Exchequer made available to the world advice on changes in interest rates—a practice continued by the present Government 738 and put in statute. That did not bring about the fall of British Governments, and many of us would argue that it improved the quality of judgment and reassured markets about the performance of the British economy. I suggest that my right hon. Friend takes account of that caution because the proposals in the Bill are draconian.
§ Miss Widdecombe
I agree with my hon. Friend's final point that many of the proposals in the Bill can be called draconian. I undertake to consider his first point carefully. However, on his second point, there may be occasions when Ministers, with the agreement of permanent secretaries, want to release policy advice. I am not saying that they should never under any circumstances release such information, but that there should not be a running requirement for them to do so.
Among our proposals would be the removal of many class exemptions. We would set up a powerful new information ombudsman with the power to compel public authorities to release information on a test of public interest. Members of the public could appeal directly to him if they have been denied information by any public authority. We would set up a parliamentary information Committee to oversee the work of the information ombudsman.
In summary, the Government's rhetoric and what they have presented to the House are not compatible. They say that they are in favour of greater openness, but their flawed proposals will make more information secret. The consultation period has been characterised by ignoring most of the major recommendations that they received. We are in favour of greater openness and our introduction of the code of practice and our strengthening of it three years after its introduction demonstrate our commitment. However, I have admitted that that code was not perfect, and I would have been perfectly happy for it to have been built on a great deal further.
The proposals that I have outlined today are simply common sense. If we are to have a Freedom of Information Bill, it must result in more information being released and it must give Parliament a role in ensuring openness. We shall continue along that path in our approach to the Bill. We shall endeavour to ensure through whatever mechanisms that are available to us that, by the end of its processes—if such processes the Bill is granted—it will improve the position and not cause it to deteriorate in the way that the Bill would at present.
§ Dr. David Clark (South Shields)
It is rather strange to participate in the debate and to consider the Opposition amendment. I am not sure whether I find it galling that the Opposition take the view that we should reject the Bill on Second Reading, and thereby, as the right hon. Member for Berwick-upon-Tweed (Mr. Beith) pointed out, obviate any possibility of improving the Bill, or whether I should put their view down to hypocrisy.
I have to say, when I consider the history of openness and Government action in this country, that I accept that the previous Government took steps in the right direction when they introduced the code of practice. However, I do not accept the point made by the right hon. Member for Maidstone and The Weald (Miss Widdecombe) that the Bill is weaker than the code. It is a psychological as well as a statutory point that, if the Bill becomes law, it will give the people of Britain a right of access to information that they have never had before. That is a mammoth step forward.
739 If I am a little indiscreet, it will be in the name of freedom of information, but I recall sitting down, on the first Saturday in May, with my permanent secretary and discussing what was in the manifesto. As my right hon. Friend the Home Secretary stated, it contained a clear commitment to introduce a freedom of information Bill. My permanent secretary indicated that there had been almost no work to prepare for such a Bill, for the simple reason that the previous Administration had explicitly—I emphasise the word "explicitly"—decided that there would be no such legislation, so there was no need for any preparation.
I was faced with the opportunity to introduce a Bill or to put the code into statute. I studied the code very carefully and I saw that it had virtues, but also weaknesses, and I did not think that it was appropriate to proceed with the code. My Cabinet colleagues and I therefore set about drawing up a White Paper. It was two years ago, almost to the day, that I stood at the Dispatch Box apologising to the House because—surprise, surprise—somebody had leaked the freedom of information White Paper. That document was a major step forward that took many hours of work and involved almost every other Cabinet Minister. That work enabled us to proceed with preparing the legislation.
Like everyone who has wrestled with this problem, I have found that it is not easy to solve. It involves many issues, such as privacy, to which the right hon. Member for Maidstone and The Weald referred when she was talking about the Data Protection Registrar. There are two sides to the coin, and it is difficult to get things right. Almost every Member of the House accepts that there are parts of public administration about which information cannot safely be released to the general public, and our citizens clearly understand that.
Having said that, I strongly believe that, as we move into the new millennium, we must start building a new concordat with our citizens. If we are to be modern and progressive, we must be bold. My view is that there is obsessive secrecy in Britain. Secrecy is almost endemic in senior levels of the civil service, and that must be changed. That is why I was so keen to put forward a radical White Paper, and I was delighted that all my Cabinet colleagues, including the Prime Minister, endorsed it.
I read the draft Bill published by my right hon. Friend the Home Secretary. I am delighted that he took that to a pre-legislative stage. I read very carefully the work of the two Select Committees—the Public Administration Committee in this House and a Select Committee in the House of Lords. I am pleased that my right hon. Friend saw fit to accept a number of recommendations by those Committees, and this Bill is certainly an improvement on the draft Bill that was before us six months ago.
I was encouraged to hear my right hon. Friend say—or at least I thought that I heard him say—that his ears are not completely closed to further improvements to the Bill, if we can determine what improvements should be made. That is why the official Opposition, in seeking to defeat the Bill, have deeply flawed logic. I hope that we can use the good will that exists on both sides of the House to improve the Bill in Committee. I shall make one or two suggestions that I believe will strengthen the Bill.
First, I shall make a general point. One problem, which is not the fault of my right hon. Friend the Home Secretary, is that the Bill has become incredibly complex.
740 As I listened to the speeches of my right hon. Friend and the right hon. Member for Maidstone and The Weald, I began to wonder whether I had understood the Bill, because it is clear that there is confusion about the power of the Information Commissioner compared with that of a Minister. I am not sure whether Ministers' interpretation of that power is the same as mine, but I shall return to that important point.
When I considered overseas examples, I was determined that a freedom of information Bill should be written for the benefit not of Ministers, civil servants, business men or journalists, but of the ordinary citizens of this country, who I believe have a right to know much more of what goes on behind the closed doors of bureaucracy.
§ Sir Nicholas Lyell
To pick up the right hon. Gentleman's point, does he agree that we need to address the sheer complexity of the way in which this Bill—and far too many other Bills in recent years—has been drafted, and that we could learn a thing or two from European legislative methods, even if, for many of us, that might stick in the throat?
§ Dr. Clark
The right hon. and learned Gentleman makes a serious point. I know that a number of people feel that, in devolving certain powers to other Assemblies, we have missed an opportunity to take a bold initiative and use a different form of language. I accept his point because I, too, wanted a system that was easy to understand and easy to use. One should be able to enter a system that begins with the White Paper and goes right through to the appeals process. The system that I wanted was clear. There were no class exemptions and, although there were some exclusions, access to other information was based on the issue of substantial harm; that would have been a better way to proceed.
§ Dr. Gibson
Is my right hon. Friend aware of how many amendments have been made since the 1966 Act was passed in the United States and how that Act has changed?
§ Dr. Clark
My hon. Friend makes a salient point. I have always argued that the Bill will change; it will change for the better and make the system more open as society changes. We must recognise that and, to accommodate it, we need to include a form of words that gives the Home Secretary various powers to make orders under the affirmative procedure. I note that such provisions are made in the Bill. I was keen that opportunities for litigation, which is so prevalent in the United States, should not be too easily available under our system, and I hope that we can pursue that point.
I am pleased that the Bill is broad and covers a wide range of public administration. That is correct. I wanted the Bill also to be deep—it may be lacking in certain substantive rights, but perhaps we can put right some of those points. I was encouraged by the rhetoric used today by my right hon. Friend the Home Secretary. I pay tribute to his openness, because he is one of the Ministers in this Administration who has been very open.
I remember sending a missive to my Cabinet colleagues asking which were the oldest documents held by their Departments. I will not regale the House with 741 the responses; perhaps my right hon. Friend will do so on another occasion. However, he referred to a document which went back to 1874. He was able to release it with the names of the individuals crossed out. It was important that that was done, otherwise there could have been criminal activity. That was an example of a Minister who tried to be more open.
A key point made by all hon. Members is that there are opportunities for openness for members of the Government and members of other public bodies, but they do not avail themselves of them. If we are to change the culture, it is important that we change the approach within public administration. I wonder whether—this point was picked up by the Select Committee, and the Government half addressed it by moving clause 8 to a different place in the Bill—it would be sensible to have a purpose clause at the beginning of the Bill. Such a clause would get across to the ordinary man and woman in the street that he or she had the right to access. At the same time, it would inculcate into the administration—into our senior civil servants and public bureaucrats—that there is a responsibility to be open.
That responsibility exists in the code, which states: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".That point was made fairly by the right hon. Member for Maidstone and The Weald, and perhaps it is something that we should consider writing into the Bill in Committee.
Perhaps we should again be considering whether it is possible to play around with "prejudice", "harm", "simple prejudice" and "substantial prejudice". I would be happy to see different categories. In the White Paper, we accepted that advice to Ministers would be subject to a simple harm test. We argued that, for the general release of information, there should be a substantial harm test. There may be gradations and perhaps we could include "serious" in front of "prejudice". It is something that the Select Committee considered.
The power of the Information Commissioner concerns many hon. Members on both sides of the House. Having considered overseas examples, especially that of New Zealand, I recognise that it is an important issue. If we are serious, as an Administration in the new millennium, about forming a new concordat with our citizens and trying to rebuild trust with them in an increasingly individualistic world, it is important that, on occasion, we trust other people—I am talking of people who will have been chosen carefully and who are experts—to take decisions. As I understand it, when it comes to public interest, it is Ministers, not the Information Commissioner, who will have the final word.
I know that my right hon. Friend believes that the issue is being exaggerated; he feels that the power will not be used. I point out to him that such a clause was originally in the New Zealand freedom of information legislation, and, in the first six months, there were seven occasions on which individual Ministers overruled the Information Commissioner. The legislation was then changed and the power was given through an Order in Council to, in effect, the entire Cabinet. The power has never been used since. I consider this to be a strong point. I ask my right 742 hon. Friend to reconsider the matter before Committee to see whether there is a way forward. It would be a great step forward in rebuilding confidence among our citizens on this issue.
§ Miss Widdecombe
The right hon. Gentleman is making an extremely helpful speech. He talks about the power of the commissioner. Perhaps he suggests that a limitation of that power would be somewhat equivalent to an Order in Council. Our suggestion is for a very senior and carefully balanced parliamentary Committee. Will he comment on that before he brings his remarks to an end?
§ Dr. Clark
I was keen, when drawing up the White Paper, that we should try to involve Parliament. I also wanted a simple procedure. I felt originally that, if there were any appeal system to the Information Commissioner, it should involve a Select Committee. I eventually rejected that approach for the simple reason that it was pointed out to me that data protection operated through a tribunal system, and that, in any event, there might be appeals from the Select Committee to the legal system. I do not have a completely closed mind on the issue, but I feel that Ministers should not have the final say. I hope that my right hon. Friend will consider the matter.
On the issue of policy advice, I take hope from my right hon. Friend's initial statement. I believe that the people of this country elect a Government to govern; therefore, it is important that the Government can govern. It is equally important that not every decision is taken in a goldfish bowl. I can understand why advice on current issues between Ministers and their advisers should not be made public. However, I do not understand the exemption of background material—by introducing an exempt category, we are possibly defending publicly weak Ministers and weak advisers. I find that strange, because I am of the view that the Home Secretary is an efficient Minister. I have already said that he is an open Minister. He is also on top of his job.
I am sure that my right hon. Friend would have no hesitation in making available much of the background, analytical and factual information. Not only should Ministers do that, but such information should be available much more openly across government. I would have no hesitation in accepting that every paper relating to my time in the Cabinet Office should be made available. I have nothing to hide. If Ministers and their advisers felt that, at some time in the future, their advice—honestly and openly given—together with the background papers that they drew up, should be made available—this has been the experience overseas—there would be a better quality of advice. That relates to both factual and analytical material.
I know that my right hon. Friend has said that he might be prepared to move on this issue if we can put forward sufficiently clear wording and a sufficiently cogent case. The right hon. Member for Maidstone and The Weald has said that the code came up with a form of words. It may not be appropriate, but it could probably be adapted.
Another powerful point was made by my hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne). In the Select Committee in another place, Lord Butler, who has a great deal of experience of these issues, said, "It can be done." We take encouragement from my right hon. Friend's words and I hope he will listen to the House. We want this Bill to work. It will last us well into the next millennium and it gives us a new opportunity.
743 The Government rightly take a great deal of credit for the major constitutional changes that they have made through devolution and right across the gamut. The constitutional change represented by the Bill is probably more important and will probably affect more of our citizens than any other legislation that the Government are likely to introduce.
My right hon. Friend the Home Secretary has moved the Bill a long way forward. There is just a little further to go before he has a very, very good Bill. I hope that he will listen to the House, and that the result will be legislation of which we are all proud. I hope that the House will vote against the official Opposition's motion and in favour of the Bill. I hope that we can then perfect the Bill in Committee.
§ Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross)
It is a great pleasure to follow the right hon. Member for South Shields (Dr. Clark) in the debate. All those concerned about freedom of information would wish to pay the warmest tribute to him for his role in introducing the legislation. In the name of freedom of information, he revealed that he had won the hearts and minds of his colleagues in Cabinet for the White Paper for which he was responsible. In the discussions that he had with the Liberal Democrats following the election, he had no difficulty in reaching a consensus about what should be done.
Like the right hon. Gentleman, I am puzzled by the transformation that has come over the Government on the issue. Many of the points to which he drew attention mirror our concerns and are matters on which we wish to make progress during the passage of the Bill. I hope that the Home Secretary is as open-minded as his right hon. Friend suggested about the possibility of doing that.
We recognised from the start that the Bill has good points. We welcome the establishment, for the first time, of a statutory right to information in place of the previous effective presumption in favour of secrecy. We also welcome the scope of the Bill, which goes much further in its coverage of public authorities than any of the non-statutory codes or guidelines for which the previous Government were responsible.
We appreciate the Government's offer of consultation, which led to some changes in the Bill. That was preceded by discussion in Select Committees in both Houses and an extensive trawl of public opinion. That has resulted in a reduction in the time within which public authorities will have to reply to requests for information. We welcome the fact that reasons for refusals must be given, and we welcome the removal of some of the more ridiculous clauses such as the proposed gagging clause that sought to control the further use of information by those to whom it was disclosed.
However, that welcome must be heavily qualified by the fact that the Bill for which the Home Secretary was responsible and, which has been considerably amended, appeared to be almost paranoid in its approach to official secrecy and would have been counter-productive to its stated objective of promoting openness.
What has replaced it may not have the same characteristics, but in some significant respects it is deeply disappointing. It bears no comparison with the Government's progressive White Paper, or with the 744 principled rhetoric that the Government deployed in support of openness while in opposition. Many of us feel baffled and mystified about how such a timid measure could have resulted from 25 years of Labour party commitment—not to speak of the commitment of my party and others—to effective freedom of information legislation. Some 80 or 90 organisations support the Campaign for Freedom of Information. The Home Secretary is aware of the extent of the disappointment that the Bill provokes.
§ Mr. Gordon Prentice (Pendle)
I have in my hand the Prime Minister's answer to a written question, which gives me information on how many times the Cabinet Joint Consultative Committee has met. What was on the agenda falls within the ambit of the Official Secrets Act 1911. When the Liberal Democrats had discussions with the Prime Minister after the general election about setting up the new Joint Consultative Committee, what strictures were placed on the Prime Minister by the Liberal Democrats with regard to open government considerations?
§ Mr. Maclennan
Following the election, responsibility for such matters lay with the right hon. Member for South Shields. We were entirely ad idem, if I may use a lawyer's expression, with him. As he spoke for the Government, we were delighted to think that we were of one mind.
It is difficult to take seriously the rather bizarre motion tabled by the official Opposition, who have been staunch opponents of freedom of information legislation for as long as I can remember. No significant Conservative voice has been raised in support—[Interruption.] I exempt the hon. Member for Aldridge-Brownhills (Mr. Shepherd), who is to some extent a semi-detached member of his party. He is scarcely enough to provide the Opposition with a fig leaf for the consistency of their opposition to the possibility of such legislation.
Perhaps the incident that created the greatest public awareness of the importance of the issue was the nexus of events connected with arms to Iraq and the Scott report. Even at the time, when the then Government were under enormous pressure, the then President of the Board of Trade stated during the debate in the House on the Scott report that it was the Government's view that a freedom of information Act wasnot the right way towards a fundamental opening up of government."—[Official Report, 26 February 1996; Vol. 272, c. 594.]Following the speech of the right hon. Member for Maidstone and The Weald (Miss Widdecombe), I am left in no clarity of mind about the official Opposition's attitude. She seems to be twitting the Home Secretary for not having gone far enough, but fundamentally her position and that of her party seem not to have changed. The official Opposition are hostile to the idea of a freedom of information Act and will therefore vote against the Bill tonight. We shall have great pleasure in voting against the right hon. Lady.
Before considering the detail—I shall follow closely the line of argument of the right hon. Member for South Shields—it is important to consider the purpose of the Bill. The Home Secretary has spoken of the legislation transforming the relationship between citizen and state, and I go along with him in seeking that.
745 Confidence in the relationship between Government and the citizenry is declining. In particular circumstances, it is right that, in their dealings with the state, people should be able know why public authorities make the decisions that they make. Parents applying for a place in a local school, people applying for a grant or benefit, or business people tendering for a public contract should know the criteria against which they are being judged and, as a result of openness, should know that those criteria are being applied fairly.
At higher levels of government, real openness could play a significant part in rebuilding people's faith in government and in increasing participation in debate. Plainly, the public, Parliament and the organisations that represent the public should know more about the factual foundations upon which policy decision are based.
We do not contend that thousands of interested citizens will pore over the background reports to Government decisions, but we do say that interested organisations, such as the Consumers Association, Shelter and the Patients Association, should be able to judge whether the Government base their decisions, policies and actions on sound information. They should be able, through their campaigns, to inform the public what is going on and the reasons for it.
That would help to increase the Government's responsiveness and the fact that such factual information is being made available would enhance the carefulness with which it was presented to Government and so improve the quality of government. That view has been stated again by Lord Butler, someone not notably open in his approach. I well remember his appearances before the Public Accounts Committee, which considered him one of the less communicative permanent secretaries. Even he seems to have been willing to recognise not only the possibility but the desirability of opening up factual information.
Once again, there has been talk about the possibility of openness bringing about a new political culture. If there is to be a new political culture, it will have to come about as a result of something much more remarkable than the Bill. I endorse what has been said about the complexity of its drafting, although I disagree with the former Attorney-General's view that responsibility lies with the Home Secretary. Responsibility for parliamentary draftsmanship used to lie rather more with the Law Officers, and there was no notable improvement in the standards of parliamentary draftsmanship when the Attorney-General was a Law Officer.
The Bill is peculiarly serpentine and byzantine in its construction. It does not lend itself to being described as a clarion call for greater openness. The point that I made in an intervention, to which the Home Secretary was kind enough to reply earlier, about the attitudes of Government and what they are doing about it is not wholly answered by the listing of some particular examples of his own openness. I have known the Home Secretary long enough to know that he is anxious to ensure, and has made a personal contribution to ensuring, that statistical information is provided in an objective and open fashion, but he must know that that is not sufficient to bring about the change in culture to which he hopefully referred.
746 Civil servants throughout the entire machine require something along the lines of a Cabinet secretary memorandum encapsulating the Government's philosophy of openness—if it is a philosophy that they embrace—a philosophy that has the imprimatur of approval from the head of the civil service and goes wider than the woolly statements about cultural change that have come from those on the Government Benches tonight.
The Government's White Paper contained language that showed an impressive level of vision and commitment, but the sight of the Government in full flight from that White Paper provides a less-than-convincing inspiration for change. A grudgingly conceded enactment is scarcely the clarion call that is needed.
I am genuinely puzzled by why the Home Secretary has backed off from the Government's broader commitments and watered down the measure in the manner that he has. I do not know what he thinks he has to fear from enacting the kind of measure that would have been consonant with the White Paper. He is perfectly capable of dealing with criticisms flowing from greater public knowledge of the factors being considered in policy making. His colleagues are as capable as any Ministers in the 32 years that I have been a Member of the House, and those that are not will quickly and properly be extruded from the system. The Government are quite capable of standing up to such debates and arguments, which would be fortified because they revealed the true basis of policy. The Home Secretary's approach is genuinely inexplicable. It leads me to hope that he may be susceptible to argument during the Bill's passage.
One of the points mentioned by the right hon. Member for South Shields was the purpose clause. I welcome the rejigging of the Bill to set out the rights in clause 1, which gives them a certain primacy. However, that does not go nearly far enough; nor does it reflect the thinking that was present in such a clause in New Zealand in particular, from which the right hon. Gentleman clearly drew inspiration. In clause 4 of their legislation, the New Zealand Government undertook progressively to increase the availability of official information to the people of New Zealand. That was a rubric against which Government measures could be judged and which could be of assistance to the ombudsman in interpreting particular circumstances in the courts.
The small changes that the Home Secretary has made to the Bill's long title and the movement of the right-to-know clause do not go far enough, and I hope that more can be done along the lines of the Public Administration Committee's recommendation to bring forward an explicitly stated presumption in favour of disclosure.
There has already been some debate about the powers of the Information Commissioner. It is perfectly possible for the Home Secretary to develop his interventions to point out the extent to which he has powers. We shall no doubt consider that in detail during the Bill's passage. It is also true that the commissioner is a moral force in favour of openness at the heart of public administration. It is her role—we know that it will be Elizabeth France— to advocate the cause of freedom of information, and push and prod reluctant Governments and public servants towards that goal. That moral role needs to be backed by effective legal authority. Where there is a question about where the public interest lies, she should be the person who is enabled to order disclosure in most circumstances.
747 I have heard the Secretary of State say that Governments and Ministers are elected to take decisions and that such decisions should not be put into commission, but to take that principled stand is to knock fatally the possibility of there being an independent reference point for judgment of where the public interest lies in respect of disclosure. Ultimately, it makes it a matter of discretion for Ministers. It makes it a political case that their right not to disclose should be more powerful than the public interest in disclosure.
It is true that Secretaries of State have the constitutional right to decide issues, but they do not have the constitutional right, even under the conventions of our system, to wrap up those decisions in such a way that they cannot be called to account for their decisions. Any decisions that they make should be made in the full light of knowledge about how those decisions have been reached. I believe that, in addressing that issue, it would be sensible for the House to follow the New Zealand example.
The Scottish Executive has come to the same conclusion, and relevant proposals have been made in Scotland. Although the Home Secretary might dislike those proposals as much as he disliked the White Paper, at which he has whittled away, I hope that he is not proposing to intervene in Scotland, to claw back in any way the devolved power to decide. I take it from his extolling of the virtues of devolution, when asked about the subject earlier in the debate, that he would regard such intervention as improper. It is perverse to do as the Bill suggests—to leave the power of deciding where the public interest lies with those who might be at most risk of criticism if disclosure were to follow. It is extremely unlikely that the public interest in disclosure would be the conclusive factor for those who might fear being caught out for squandering public funds, breaking promises, ignoring reports of child abuse or endangered patients because of incompetent cancer screening, to take some of the examples mentioned by the Campaign for Freedom of Information.
The proposal to limit the Information Commissioner's power seriously reduces the worth of freedom of information as a means of scrutinising the public service. Moreover, the power to order disclosure in the public interest is even more essential because of the way in which the Bill has been structured, particularly the very broad and numerous exemptions to the right to information that it provides.
Obviously, freedom of information legislation must protect certain sensitive information that might harm the national interest: on the detection and prevention of crime; national economic interests; information given in confidence; and various other interests. However, it was the White Paper that said:we do not propose that the Act should contain exempt categories at all, but rather that disclosure should be assessed on a contents basis.If there has been one U-turn more spectacular than all the rest, it has been the structuring of the Bill in that manner, with those exempted categories, completely reversing the thrust of earlier proposals.
§ Sir Nicholas Lyell
There has been some mention in the debate of Matrix Churchill and Scott matters. As the right hon. Gentleman will recall, those matters—with the 748 strong support of the then Opposition—did away entirely with the idea of class claims, which the Government are now resuscitating.
§ Mr. Maclennan
I remember that, but I do not recall the right hon. and learned Gentleman being very enthusiastic about the proposals.
§ Sir Nicholas Lyell
I am afraid that the right hon. Gentleman's power of recollection is rather poor. I refer him to Hansard, 18 December 1996, column 949.
§ Mr. Maclennan
I pride myself on having quite a good memory, but I cannot remember that particular column. Nevertheless, I shall refresh my memory of it.
The debate on exempt categories has gone backwards. The White Paper proposed seven exempt categories and the draft Bill proposed 22—incidentally, the previous Government's non-statutory code had 15—but the Bill has 24 exempt categories. Furthermore, the Bill provides a power to increase the number, which, given the rate of multiplication that we have seen, must concern us all.
The class exemption applicable to all investigations that might lead to criminal prosecutions may entail that, in future, other families such as the Reels and the Lawrences who want information about the investigation of their child's death could be turned away. That is only one potential problem. One could think of many worrying possibilities in which public health and safety would not provide sufficient reason for opening up access to important information.
Some people may recall the food poisoning outbreak in 1996 in Lanarkshire. I wonder whether the facts in that case could have been kept under wraps because of the possibility of a prosecution. I wonder, similarly, whether Health and Safety Executive investigations into rail accidents will be kept confidential because they might lead to prosecutions.
A report detailing the sale of substandard or dangerous products might also be concealed, under the exemption category of prejudice to a person's commercial interest, on the mere evidence that customers might switch manufacturers if they became aware of the danger.
Another investigation is being conducted into the 1994 Chinook crash in the Mull of Kintyre. The journalist Tony Collins has suggested that the crash might have been caused by software failure. Will such information be wrapped up and not made generally available because it might conceivably prejudice our defence? Those seem to be serious deficiencies in the Bill.
The right hon. Member for South Shields mentioned the shift from substantial harm to prejudice. That shift is particularly important in the context of category exemptions. The draft Bill spoke of prejudice beingactual, real or 'of substance'",and the Home Secretary has said in evidence to a Select Committee that that is broadly what he has in mind. However, that is not what the Bill says. The Bill should state what the Home Secretary really wants to say—if that is what he wants to say. We shall undoubtedly have to return to that issue at great length in Committee.
On the aspiration that the Bill might change public attitudes, the most seriously objectionable class exemption is that which relates to policy development. It is 749 nonsensical for a party that has for years said that it wants to promote more open government to propose excluding all information, regardless of how innocuous, by using the category test. The Home Secretary himself mentioned the Labour party's manifesto, which stated thatunnecessary secrecy in government leads to arrogance … and defective policy decisions".Evidence on the experience of other countries demonstrates how disclosure of information on policy development does nothing to damage governance. I detected from the Home Secretary's comments on the United States' experience that he thought that that experience had not been helpful. However, comparison with the United States is not sensible. Its system of government—a federal one, with a separate executive and legislature—is so different from ours that comparisons simply cannot sensibly be made.
Developments in Australia, Canada and, particularly, New Zealand—which seems to have had the most success in working out an effective system—should be persuasive. Ministers should read the 1996 report of the Select Committee on the Parliamentary Commissioner for Administration on the operation of freedom of information legislation in those countries. I remind the Home Secretary that the report stated that operation of freedom of information in those countries hadencouraged objective, reasoned and defensible decision makingand thatthe dire forecasts as to its effect on the candour of advice had not been borne out by events.Ireland's legislation has been enacted too recently for us to judge its results, but it resembles that of the other countries that I mentioned.
As others have said, dividing policy advice and the factual foundations for that advice is practicable. Lord Butler spoke about that in general terms. If the Home Secretary is willing to tackle the matter, others will help to devise suitable definitions.
On advice, I remind the Home Secretary that our starting point in the recent round of debate was the Scott inquiry. Ministers have a right to define their view of where the public interest lies and to use their democratic mandate to back their claim. However, they do not have the right to erect a wall of secrecy to shield their mistakes from public scrutiny. We have a duty to try to avoid their mistakes. We will be helped by the Bill's improvement. I profoundly hope that improvement will be the consequence of its passage.
Everyday contact with all levels of public administration should become more open and easily understandable. If that happens, we may change the conduct of public business and relations between the citizen and the state. I ask the Secretary of State to recapture the spirit that informed the White Paper and to seek carefully and deliberately to amend the Bill, which we shall support in principle tonight, to achieve that end.
§ Dr. Tony Wright (Cannock Chase)
On any test, we have taken a long time to reach this point. The Labour party has been committed to legislation on freedom of information since 1974. It is a subject that Oppositions 750 tend to embrace with relish and on which Governments have found reasons to postpone legislation with equal relish. However, this time it is different, and we should celebrate that.
Talking about Oppositions reminds me that today's Opposition ask us to decline to approve Second Reading of the measure. I sat through the last Parliament and watched the then Government decline to accept the Scott report's recommendations on information. They not only declined to support, but ruthlessly destroyed, the Public Interest Disclosure Bill, which was designed to protect public interest whistleblowers. In 1996, I was a member of the Select Committee on the Parliamentary Commissioner for Administration, to which the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) referred. The Committee had a Conservative majority, but recommended that there should be freedom of information legislation. The previous Government rejected that recommendation. Thus, the Opposition do not have much of a track record on which to lecture the House on the virtues of freedom of information. The Opposition have elevated collective amnesia to a political strategy, and made shamelessness their second nature.
Hon. Members have referred to the code, which was introduced rather casually and as a means of diverting the argument about the need for legislation was not considered significant at the time. The code became effective in its way, not because of its founders' intentions, but through the robust activity of the ombudsman and his successor who presided over it. It became more effective than anyone believed that it would. However, it remained a code. When the Select Committee visited New Zealand and we told people in Australia and New Zealand that we simply had a code, they laughed at the idea that a mature democracy could have an informal code to govern the information rights of citizens in relation to the state. We had to move from a code to legislation. That is happening now.
§ Mr. John Hayes (South Holland and The Deepings)
The hon. Gentleman criticises the code that the previous Government introduced, but will he acknowledge that, because it focused on content rather than classes of exemptions, and because, as a code, it was less restrictive than legislation, it allowed greater access to information than the Bill will grant?
§ Dr. Wright
I said that the code had virtues, and I shall mention more of them shortly. However, the House should understand its origins and context.
We have travelled a long way from the White Paper. There is always a distance between a White Paper and a Bill; they are different projects. However, there is a difference in tone between the Bill and the White Paper of only two years ago. I re-read the White Paper last night, and its tone reflected that of a Government who were determined to break down the culture of secrecy and ensure maximum disclosure of information. By contrast, the Bill exhibits a determination to ensure that freedom of information legislation is accompanied by barricades of protection against disclosure.
On any test, the Bill is an historic measure and marks an important moment. For that reason, it should have a whiff of history about it; it should even sing a little. We 751 have heard convoluted talk about purpose clauses, but they are simply ways of making a document as significant as its founders intend it to be. The Bill should not represent a sultry and churlish monotone. We should try to recapture at least some of the spirit of the White Paper.
The Home Secretary has suffered a good deal of opprobrium. Much of it was unfair for at least two reasons. First, the opprobrium should be more widely spread. The fact that The Guardian claims that the Bill is unsatisfactory does not mean that it is satisfactory. Secondly, the Home Secretary has shown absolute openness in his approach to consultation throughout the draft Bill process. It would have been impossible to approach it in a more robustly open and engaging spirit. That is shown by the fact that we have been able to make improvements.
The endless reports of the Select Committee on Public Administration, including the most recent, which was published a few days ago, draw to the House's attention the fact that we have travelled a good way from the draft Bill. That vindicates the scrutiny process and the draft Bill process that have been applied to the measure. The Bill would be the poorer had it not undergone the process. Without it, indefensible provisions might have been passed, and the measure would have been much weaker.
Some people say that the Government have made concessions, but that is the wrong way to look at it. The question is whether the House has made improvements. Those who talk about Government concessions do not understand what is going on or the importance of the process. This is not the moment to remind the House or my right hon. Friend the Home Secretary of some of the embarrassing features of the original proposals that fortunately no longer exist, but they were defended at the time and no doubt they would have been voted for if the Bill had been dealt with in the normal way. Thank goodness it was not. Scrutiny has been effective and the Bill is being improved.
This is a Bill of historic importance, with many exemplary features, not least of which is its scope. Some of its earlier defects have been removed, but the question is whether it is now satisfactory and incapable of further improvement. I believe that it is not. We are left with some fundamental issues that have been clarified by the process that has been engaged in. The House simply has to come to a view on those fundamental issues.
The issues that have already been mentioned touch on the fundamentals of the argument. There is no excuse for finding the issues terribly complicated and difficult. The approach to information should be straightforward: it should be disclosed except when disclosure would cause identifiable harm to a specified significant interest. There should be minimum class exemptions and as much disclosure as possible, subject to a harm test.
The issue of who decides is also fundamental. The more I think about it, the more I am persuaded of that. We can pass measures, we can have forms of words and we can define exemptions, but it comes down to particular cases. Who will weigh the public interest? Who will decide whether there is a public interest in disclosure that outweighs an interest in withholding? Someone has to 752 have the last word in each case. Whether it is to be a Minister, a public authority or an independent person goes to the heart of our approach.
§ Mr. Patrick Hall (Bedford)
Does my hon. Friend agree that one feature of the previous Government that was widely perceived as arrogance was how they identified their interest with the public interest? That is how they operated, but it may also be the British system of governance. Does my hon. Friend agree that the Bill provides us with an opportunity to put the balance of power back with the citizen, where it should be?
§ Dr. Wright
I agree that the behaviour of the previous Government was characterised by arrogance, particularly in their dire closing period. There was a suggestion that their interest was the same as the public interest. All Governments have a vested interest on the issue; they all have a taste for secrecy. It is the job of the House to ensure that it is not satisfied. That is what we are being asked to do.
I should like to relate those approaches to our arguments about the key issues. Policy formulation is dealt with in clauses 33 and 34. I do not believe that the House will allow those clauses to stand in their present form. They deal in blanket exemptions for categories of Government activity, most fundamentally the formulation or development of policy, as well as the operation of any ministerial private office. There is to be a blanket exemption for information about how many people work in a ministerial private office.
In case a blanket exemption is not enough, there is a second defence: the test of whether disclosure would prejudice certain interests, including the extraordinary category ofthe effective conduct of public affairs".In case that is not enough, there is also a third defence, which is that the reasonable opinion of a qualified person is sufficient to say whether the second defence provides an exemption. That gives legal weight to what can be political opinion.
Three defences are organised around policy development. That is unsustainable. I do not think that the House will think that that is the proper way to proceed. The barricades have gone up with a vengeance. Nobody denies that the Government need a thinking, deliberating space. They need a confidential arena in which policy discussion can take place and policy decisions be made. However, equally, nobody should deny that there is also a public interest in knowing the background information that shapes those policies. That is the key distinction which the Bill fails to recognise.
§ Mr. Hayes
The hon. Gentleman is making a balanced and well-reasoned contribution. The code that he criticised earlier did not deal with the broad issue of prejudice, but talked about substantial harm. Had the code been introduced as a Bill, presumably it would have satisfied his demand for a narrower definition of exemption, rather than the broad definition in the Bill.
§ Dr. Wright
To be accurate, the code did not talk about substantial harm. I shall tell the hon. Gentleman in a moment what it said, but I should like to proceed with my argument.
753 We are dealing with a crucial distinction. There is no novelty about it. It was first made in the so-called Croham directive back in 1977. It said that "factual and analytical material" would be published once decisions had been taken. The 1994 code said that policy information was to be withheld only if disclosure wouldharm the frankness and candour of internal discussion".There was a presumption of disclosure under the code. On top of that, the ombudsman could recommend disclosure of exempt information on public interest grounds. There was also a provision forfacts and the analysis of factsto be disclosed. The code continued the tradition begun with Croham back in 1977.
The 1997 White Paper gave us what it called a simple harm test. That was less than the substantial harm test that applied to the rest of the provisions, and was simply a question of whether disclosure would harm something that ought to be protected. We then had discussions about the draft Bill, and the Home Secretary told the Select Committee on Public Administration that theissue of factual or background information is important … and I think on the whole ought to be disclosed.Unfortunately, the Bill does not convert that desire into legislative provision, but I am heartened by the fact that it might still do that.
We have had important testimony from people such as the former Cabinet Secretary Lord Butler, who has said that it is perfectly possible to make distinctions of this kind. The civil service will do it if Ministers tell them that that is how they should proceed. We have a cumulative body of evidence which says that it is both desirable and practical to have such distinctions. However, the distinction is not made in the Bill—contrary to the developing practice to which I have pointed, and contrary to freedom of information regimes elsewhere, notably in New Zealand and Ireland.
Hon. Members should be clear about what that means. It means that all information relating in any way to the development of policy—including purely factual background information—stands exempt. I simply do not believe that the House will allow that to be sustained. Clauses 33 and 34 represent the hole in the centre of the Bill. At the very least, we need the facts, and an analysis of them. We must explore whether that needs to be only after decisions are made, as is the case in some other places. It is probably better to have a harm test, as we have with the code and as was proposed in the White Paper. However, we have to do something to fill the gap that clauses 33 and 34 now open up.
We must ask, "Who decides?"—the clause 48 question. The Bill has a tortuous two-stage process governing how we move to discretionary decisions after a first stage of looking at exemptions. We have made progress on the question of who has the last word and who decides on whether, on public interest grounds, there should be disclosure of exempt information. Originally, there was no provision for any role for the Information Commissioner.
I put on record the fact that we have made progress, and we now have a Bill which gives a recommendatory role to the commissioner. In the unlovely language of the Bill, we have a "discretionary disclosure 754 recommendation". I am bound to say that that is not enforceable. It remains unsatisfactory. The Information Commissioner has to have the power to order disclosure in the final resort.
I asked the Home Secretary earlier whether he could think of examples where the Information Commissioner might use this discretionary recommendation provision to recommend disclosure and a Minister or public body would still refuse to disclose. I do not think that he could think of any compelling example, nor is it likely that he could. Remember—behind the commissioner stands a tribunal. Behind the tribunal stands a court on points of law. It is not as though public bodies or Ministers stood frailly exposed to the power of the Information Commissioner.
We have reached an unsatisfactory halfway house. If we are going to legislate, we have to legislate. That means moving from the mentality of codes to a mentality which says that we must give an enforcement and order power to an Information Commissioner. This is what happens elsewhere. It happens in Ireland and New Zealand, and it should happen here.
Knowing that the Information Commissioner has the last word is the real discipline; knowing that someone can get the information out and that it cannot be finally withheld is the crucial discipline. That removes the possibility that public authorities can seek to hide their failures, their incompetence and their shortcomings. It also gives a real underpinning of public confidence if it is known that the Information Commissioner can have the last word in terms of getting information out.
This is one of the issues which go beyond the normal exchanges between the parties. It is about the information rights of citizens and the quality of our democracy. It is too important to entrust to the judgment of the Government alone, because any Government can think—and find reasons for thinking—that they have an interest in withholding rather than disclosing information.
Although I am a long-term enthusiast for this measure, I have never claimed that it will be a panacea, or that it will be a remedy for all the ills of Government. I have never denied that there is a balance to be struck at all times between disclosure and privacy and confidentiality. All that is true.
At the same time, it is not the case—as Governments tend to believe—that the sky will fall in if we move in this direction. The sky did not fall in when the minutes of the Monetary Policy Committee of the Bank of England were published. Indeed, government was strengthened, rather than weakened, because of that. That is the kind of example to hang on to; it is where confidence is to be found.
This is a genuinely historic Bill, and it deserves a Second Reading. It already has been improved, and should be improved further. Already, nearly 200 Members of Parliament—including most of the Chairs of Select Committees—have indicated that they would like the Bill strengthened. That is also the overwhelming opinion of people outside the House. The task now for the House is to ensure that that happens.
§ Sir Norman Fowler (Sutton Coldfield)
I agree with a great deal of what the hon. Member for Cannock Chase (Dr. Wright) has just said—particularly that this matter is for the most part beyond the normal conflicts of party politics. I agree also with what he had to say on clause 33.
755 I wish to congratulate two people. The first is my hon. Friend, and neighbour, the Member for Aldridge-Brownhills (Mr. Shepherd) who, contrary to the opinion of the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan)—who is just going and who made a long, boring speech—is a significant member of the Conservative party. My hon. Friend has espoused this cause with enormous skill and persistence against some formidable opposition.
I congratulate also the right hon. Member for South Shields (Dr. Clark), who produced an impressive White Paper which, in many ways, changed the debate, particularly as we now know that, at the time, he was under threat of the biggest political insult of all—being replaced in the Cabinet by a Liberal Democrat.
I do not regard it as a step forward that responsibility for freedom of information should now reside with the Home Office. The point has been made that the culture of the Home Office is one of control—police, prisons, immigration and issues of that kind. Officials are sometimes good in that area. However, I am not sure that it is the ideal background as far as freedom of information is concerned.
The Home Secretary, who is not here, talked about his own deeds. I remember that it was in the name of freedom of information that this Home Secretary placed an injunction on the whole of the British press after a few paragraphs had been reported in The Sunday Telegraph which pre-empted what the Macpherson report was going to say only a couple of days later.
The Home Secretary has a lot to prove on freedom of information, but so has virtually every Minister who has sat round the Cabinet table in the post-war years. We should show some humility in this exercise. I am personally prepared to say that not every action that I took as Secretary of State for various Departments met the spirit of the White Paper or the code of practice of my right hon. Friend the Member for Huntingdon (Mr. Major). I hope that I learned from that experience. It is better to be a sinner who repents than one who keeps on sinning without thought or regret.
My attitude has changed because I, like the hon. Member for Cannock Chase, have come to believe that an atmosphere of openness is in the interests of good government. That is the fundamental point. It may mean that a Government cannot push things through and cannot so easily disguise what they are doing. It will certainly allow the public to play a bigger part in policy formulation. That is good, not bad news for government.
I disagree with what the White Paper says about the 30-year rule. It says:We have examined carefully the case for change and concluded that on balance it is preferable to retain the 30 year rule which is in line with international practice.That is not the most convincing defence. It makes it sound like some sort of European regulation.
When the White Paper said that, I am sure that Whitehall collectively heaved a great sigh of relief. The rule is utterly outdated. There is a wide range of arguments against it. As a former Cabinet Minister, I want to be around when the papers come out so I can reply to them; I do not want that to be left to some civil servant in the future.
As it happens, because of my exceptional youth when I went into the Cabinet, I will be only just over 70 when the papers are released, but the Home Secretary will be 756 well over 80; he is not very good with police figures now, so goodness knows what he will be like then. When the papers come out on the Government's transport policy—I use the term loosely—the Deputy Prime Minister will be over 90.
There is another practical reason for change, as the 30-year rule has broken down. These days, former Prime Ministers, ex-Chancellors and former Secretaries of State, including myself, all write their memoirs. We all trail either to the Cabinet Office or to our old Departments to look at the papers, the minutes and the decisions, and we all publish as much as we can get past the Cabinet Secretary. The civil service checks the script for accuracy, which in reality means that one cannot make offensive comments about old civil servants with whom one has served—that, at least, is one aspect of the check—and an account is published perhaps 20 years before the official 30-year limit expires.
If that were not bad enough, other Cabinet Ministers publish their diaries, which are certainly much more revealing than any Cabinet minutes that I have seen. Dick Crossman started it, the right hon. Member for Chesterfield (Mr. Benn) has, I believe, published five volumes of diaries, and now we have a new variation, with the wives of Cabinet Ministers keeping diaries of their husbands' reactions to Cabinet meetings. Lady Richard provides us with a fascinating portrait of the band of chums who make up the present Labour Cabinet.
For all I know, the Home Secretary's wife is keeping a diary. One can imagine the entry, "Jack came home depressed last night, beaten over the head again by that woman from Maidstone." I do not complain about the situation—what with Lady Richard's diary and that of the right hon. Member for Yeovil (Mr. Ashdown), Conservatives are having a field day—but it shows the absurdity of the rule.
One of the hopes of politics is that one can learn from mistakes and, having learned, make better policy, but the idea of the 30-year rule is to confine any lessons to irrelevant and dusty history. If some time restriction is needed, a 15 or 20-year rule is much more appropriate.
I am also concerned about clause 33, which covers the formulation of Government policy. Ministers talk of the need for free, unreported discussion and development of policy. I understand that, and I remember how it was, but I also remember cases in which the secrecy of policy formulation led to injustice, especially in relation to relatively technical issues. There were cases which, if the public and Members of Parliament had understood what was happening, would have led to the measure being kicked out.
On the previous occasion when the Conservative party was in opposition, Lady Castle was Secretary of State for Social Services—the Home Secretary was her adviser—and Lord Barnett was Chief Secretary. The Government wanted public expenditure savings. Inflation had been sky high—it was more than 20 per cent.—but it was coming down. At that time, pensions were uprated on an historic measure of inflation: past inflation was validated.
The bright idea was then proposed that pensions should instead be updated by a forecast of inflation. With inflation coming down, a period of past inflation was excluded altogether and pensions were not increased by the amount that they otherwise would have been. That may sound like a technical detail but the result was a 757 major public spending saving that would now be worth more than £4 billion a year. When the Chancellor of the day announced the policy, he dressed it up for the House in such a way that, as Lady Castle reports in her diaries, some Labour Back Benchers cheered.
I do not want to make an entirely party political point, as I am sure that comparable issues could be found under Conservative Governments, but the whole intent in that example was to suppress information because the Treasury—I do not blame Lady Castle—feared that, if the public knew what it was about, the policy would be defeated. There would certainly have been a hell of a row, to put it mildly.
I am not convinced that the habits of Whitehall or the Treasury—I bear the scars of public spending round after public spending round when I was responsible for social security and for health—or, indeed, of Ministers, have suddenly changed.
§ Sir Nicholas Lyell
My right hon. Friend speaks of the scars that he bears. Does he not remember that it was under his aegis at the Department of Health and Social Security that spending was increased in favour of the long-term sick and disabled by £6 billion a year?
§ Sir Norman Fowler
That is very kind of my right hon. and learned Friend and I am glad that he is still in training to support his old boss. However, I will not prolong the point.
I do not believe that the habits of Departments, officials and Ministers have changed to such an extent that they suddenly want the public to be given the maximum amount of information. To believe that would be wishful thinking. When the Treasury wants to make a public spending cut, it does not go for something obvious, clear and simple. No, it chooses pensions or social security because it hopes to get away with it, given the complexity of those issues.
Another example comes from the Home Office—the Department sponsoring the Bill. The House will remember that, after the injunction on the media that I mentioned, the Home Secretary set up a leak inquiry. It was clear that the leak came from a tight circle of people, because not many people had seen the draft report. I asked the Home Secretary whether Ministers who had access to the Macpherson report before 21 February would be interviewed in the leak investigation. I asked him whether the same applied to officials and ministerial advisers. I did not ask him to name them, but I wanted to know whether they would be interviewed. The reply I received from the Home Secretary, who is now in charge of freedom of information legislation, stated:It would not be in the interests of the leak investigation now under way to give these details."—[Official Report, 4 March 1999; Vol. 326, c. 855W.]That is not a heartfelt endorsement of freedom of information. Indeed, it provides the absolute minimum of information.
My fear about the legislation is that it leaves too much to a civil service that is not a great believer in open government and it leaves too much to the decisions of Ministers, who are often no better. I fear that, when the 758 policy was finally given to the Home Office, there was an enormous sigh of relief all the way down Whitehall because people knew they were safe.
One of the fascinating features of the debate has been how many voices have been raised against exemptions such as the one afforded by clause 33, including not only the Campaign for Freedom of Information but the CBI. The Campaign for Freedom of Information makes a good point when it says that one of its main concerns are the many class exemptions that protect all information in a particular class, regardless of whether disclosure would cause harm, and that they should be amended to apply only when disclosure could be shown to be harmful. It is difficult to argue against that case.
Secrecy is not generally in the interests of good government. Openness can remove unjustified logjams. When I carried out my social security review in the mid-1980s, I held public meetings—contrary to the practice of this Government—at which interested parties gave evidence openly. In effect, Ministers acted like a Select Committee. Let us take the example of the death grant. No Government would increase the death grant from about £25 or £30. No Government would reform it or do anything else with it, because the advice was that that would cause an enormous public reaction. It was allowed to continue, even though it was unsatisfactory. When we asked the public, they took the common-sense view that it was better to pay more to those who needed it, instead of paying an inadequate general grant to everyone.
The more open we can make a Government, the better that Government are likely to be. The public have something to contribute, but they cannot do so if the information on policy formulation is withheld. My concern is that the Bill does not guarantee that that contribution can be made. Freedom of information is about being as open as possible and recognising the public's right to know, but above all it should be about making the process of government of this country better than it is.
§ Mr. Mark Fisher (Stoke-on-Trent, Central)
I congratulate my right hon. Friend the Home Secretary on giving the House the chance to legislate, at long last, on freedom of information. Other right hon. and hon. Members have noted that we have waited a long time—it is 20 years since Sir Clement Freud first introduced a substantive freedom of information Bill, which was prevented from reaching the statute book only by the 1979 election.
More crucial than the long wait is the fact that tonight we are discussing a matter of historic and great constitutional importance. We are determining one of the key elements of the relationship between the citizen and the state—the right of the citizen to know and the powers of Parliament and the Executive to disclose or withhold information. That is the nub of why and how we represent the interests of those who send us to this House. If we can get it right and truly empower the individual citizen and strengthen Parliament in its scrutiny of the Executive, we will have done something of great importance that will last long after most of us have left this House.
Seen from that perspective, the Opposition's position is even more extraordinary. Others have said that the Conservative Government's record was poor. They lurched 759 from open hostility to the whole principle of legislating on this matter to passive resistance to the private Member's Bill on the right to know that I introduced in 1993. Ministers sat and watched the Bill go through its entire Committee stage without engaging in the argument. At a time when the press was sympathetic to the Conservative Government, that Government were nonplussed to find that every single national newspaper was in favour of that Bill and agreed with the need for legislation. It was that shock that led Lord Waldegrave, as he is now, to introduce a code of practice which contained many good ideas—not least its operation by the Parliamentary Commissioner for Administration. It was a sensible and good code, but its main weakness was that it did not have the force of statute. We now have the opportunity to ensure that we get the best Bill we can.
The speech by the right hon. Member for Maidstone and The Weald (Miss Widdecombe) was sad and confused. It was difficult to tell whether she was saying that we were not going far enough or whether she would rather we did not leave the station at all. She got herself into a difficult position. The only hope that I gleaned from her demeanour today was from the fact that she listened intently to my right hon. Friend the Member for South Shields (Dr. Clark). From her nods and facial reactions to what he was saying, she seemed to be sympathetic to much of my right hon. Friend's powerful, thoughtful and reasoned contribution to the debate.
My right hon. Friend made two especially strong points. He said that the Bill as it is now drafted—it is much improved since it was first published, to the credit of my right hon. Friend the Home Secretary and his colleagues—has become too complex and too convoluted, as my hon. Friend the Member for Cannock Chase (Dr. Wright) illustrated when he talked about the three layers of protection to prevent disclosure on something as simple as the size of a Minister's private office.
If hon. Members need to be further convinced about the complexity of the Bill, they should recall the reply that my right hon. Friend the Home Secretary gave my hon. Friend the Member for Thurrock (Mr. Mackinlay) to a simple question that my hon. Friend has asked before—"How often, and for what duration, does the Cabinet meet?"
The Home Secretary's answer was byzantine in the complexity with which it dealt with the various stages that would have to be gone through before a simple answer could be given to a very simple factual question—an answer along the lines of, "The Cabinet has met on so many occasions, and meets typically for 20 minutes." I think both those examples demonstrate that, to some extent, the Bill has lost some impulsion in its drafting, and has become complex and convoluted. It will be difficult to try to simplify and clarify it in Committee, rather than adding barnacles in the form of additions—albeit helpful ones. I think that the major challenge in Committee will be the need to return simplicity and clarity to what, in some respects, should be a relatively simple Bill.
A purposes clause could help. I am baffled by the Home Secretary's continued refusal to introduce such a clause, given that it would be easy to introduce it in the form of a new clause in Committee. The drafting of the New Zealand clause is clear and helpful. Such a clause would cost the Government nothing, and would not cause them to weaken their strong position in preventing the 760 disclosure of information. It would clarify the Bill, and would send a strong message not only to adjudicators but to the general public.
My right hon. Friend reminded the House that the prime purpose of freedom of information legislation was to empower the citizen. That can be done in two ways. It can be done directly, through the granting of rights to the individual, and indirectly, through the granting of rights and powers to the House of Commons and to outside organisations that campaign on behalf of individual citizens. I believe that, in respect of the direct empowerment of the individual citizen, the Bill will have an amazing effect on people: it will genuinely give them power in regard to information that affects their lives.
When I was steering the Right to Know Bill through its stages in 1993, I received hundreds of letters from members of the public all over the country, telling agonising stories of the destruction of marriages, jobs, careers and income because those concerned could not obtain crucial information. I believe that the present Bill will resolve many difficulties for individual citizens, if we can get the message across—and that means that the Government must promote it.
The Home Secretary has often said that the legislation is not everything, and that its implementation, and the enthusiasm and commitment of Departments in putting it across, will determine whether it is effective. The Government have done a good job: the potential is there, if the message can be conveyed. It is less clear, however, that the Bill in its present form will improve the position in respect of rights exercised through Parliament and campaigning groups. If it is to live up to the aims of the Home Secretary and the Government, we need to do a great deal more work.
As many have said, there are too many "class exemptions". "Class exemption" is a piece of jargon that members of the public may not fully understand; in fact, it refers simply to a class of information that can be withheld even if disclosure would not be in any way harmful. When we hear a class exemption described in that way, we must conclude that it is bizarre that it should exist. Surely, if a piece of information is entirely harmless to government, to the public interest, to the security of the state and to any person, it is nonsensical that it should be withheld, but it is to achieve the withholding of certain information in that category—along with the scoop of other information—that a class exemption is deemed to be necessary.
It is agreed in freedom of information legislation throughout the world that there should be large areas of exemption which, although uniform, apply to different measures, but class exemptions are very different from the test of harm—whether it is a simple test of prejudice or the more important test of substantial harm specified in the White Paper. The Government really ought to consider the matter again; otherwise, the Minister will have a hard job in Committee in trying to justify the scoop of class exemptions that will lead to the gathering of information which—as he will have to acknowledge—is entirely innocuous.
Clause 33, to which Members on both sides of the House referred, deals with the whole question of factual information. Of course, the question of whether factual information behind the development or formulation of policy should be released is crucial. I am thinking of data, 761 analysis, the scientific and technical facts on the basis of which Ministers and their civil servants debate and make decisions; of the cost, and the legal balance of opinion. Only if we as a Parliament, the public and the press can understand such matters will we be in a position to judge whether we are being well governed.
If our role of scrutinising the Executive is to be fulfilled—a role that many people have claimed is being weakened by much of the legislation that has been passed over recent years—we must have the necessary information. Nothing is more depressing than hearing ill-informed debate in the House, and the exchanging of party political slogans across the Chamber. Such debates take place because we cannot engage with the detailed realities of whether a decision has been well made or not well made.
This is a crucial issue, which we must get right. It was encouraging to hear that the Home Secretary would leave the door open to discussion in Committee: he implied that, if we could come up with a form of words that would distinguish between factual information that was helpful to informed debate and scrutiny and would still leave the Government the ability to formulate policy in the privacy of Departments, he would be sympathetic to that. I think the Home Secretary needs to deliver on his assurance, and that we, together with Government, need to find a way of making that possible.
It is interesting that all the matters that we are discussing—the importance of better-informed debate, the need to increase public confidence in the political process and the testing of weakness in government—feature in the Government's White Paper on modernising government. The Government have advocated all those things: they have said that they want to bring about such developments to modernise the way in which we govern ourselves. They say that we must involve other people in policy making as early as possible.
Those are laudable ambitions, but they will be negated if we cannot get at the facts on the basis of which Governments make their decisions. No one denies that there is a difficult balance to be struck, but no balance has been struck in the Bill so far: Ministers will determine all, and that is wrong.
The Home Secretary is an intellectually honest politician, and he accepts that that is not satisfactory. I believe that he has left the door open today. At the moment, the Bill is less good than the code, which has a harm test for facts and analysis, and it is much less good than the Irish legislation, under which factual information can be withheld only if it is contrary to the public interest in the opinion of the independent commissioner. It is also less good than the proposals—albeit provisional—for Scotland, in which facts are not covered by a class exemption. This area must be scrutinised in Committee, and progress must be made, but I am encouraged by the Home Secretary's attitude.
Two more areas of the Bill are weak. The first is part III on the power of the commissioner. He can recommend disclosure, but, unlike in Ireland and New Zealand, and unlike what is proposed for Scotland, he cannot order it. What is the point of a commissioner if he is not sufficiently independent, having come to his conclusions, to make a decision rather than a recommendation?
762 For 20 or 30 years—indeed, for ever—we have had to accept that all information is given by grace and favour of the Government. The shift from that to legislation should, if we get it right, remove ultimate discretion from the hands of Ministers, except where there is an important prejudicial point to preserve. The Bill fails to harness the potential of legislation in that way. Ultimately, power will remain in the hands of Ministers. There is much declaration in the Bill, and many improvements. However, by leaving crucial decisions to Ministers, the Bill does not significantly change the position that pertains today.
The Home Secretary is never shy about saying that he is a good Minister when it comes to releasing information, and he is correct to say so. He demonstrates that information can be released under the present regime, but only by the grace and favour of Ministers. In many ways, the Bill will not change that, and we must help the Government to amend the Bill so that there is a real change and so that Ministers trust the commissioner and their own Bill to protect what must be protected, rather than trusting only themselves.
Finally, where should the Committee conduct its scrutiny? I believe that the Bill must be taken on the Floor of the House. It is a Bill of enormous constitutional importance, and constitutional Bills are traditionally taken on the Floor of the House. We are sent here by our constituents to represent their interests. The provision of information that would allow us to speak for them on an informed basis goes to the heart of why we are Members of Parliament and how Parliament should operate.
I hope that the other political parties will join some of us in requiring the Government to take the Committee stage on the Floor. The Bill relates to the powers of the Executive and Parliament and is of enormous constitutional importance. The fact that we have reached the legislative stage means that we should give two strong cheers for the Government, but we should withhold the third cheer until we see the final Bill. Within our grasp lies the ability to change the quality of scrutiny and government. We must not fail.
§ Sir Nicholas Lyell (North-East Bedfordshire)
I am happy to follow the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) who maintained the tenor of a debate in which we have heard much cross-party melding of opinion in addition to the views of the Government and the admissions of those of us who have been in government that we have not always got matters right.
Disraeli said—I think it was Disraeli; much is attributed to him—that what people want in politics is information. That is absolutely true. The fundamental principle in a free society must be that, unless there are powerful reasons to the contrary, the information necessary to decide and legislate on an issue should be as freely and fully available as possible.
As we have done some party politicking in the debate, I should mention the question of the difference between the Bill, which will put the right to freedom of information on a statutory basis, and the code of practice introduced by my right hon. Friend the Member for Huntingdon (Mr. Major) in 1994, when he was Prime Minister, possibly in response to the Bill introduced by the hon. Member for Stoke-on-Trent, Central in 1993. 763 The code, which was updated by the Conservative Government on 1 February 1997, was a positive step forward, as the right hon. Member for South Shields (Dr. Clark) acknowledged in his distinguished speech.
There is a question as to whether the Bill makes any significant advance on the code of practice, which gave a positive right to facts and analysis that the Government considered relevant in framing major policy proposals. That was valuable. The Bill contains a raft of exemptions—12 detailed pages—between clauses 19 and 43, and one must doubt whether there will be any improvement. When the Select Committee on Public Administration asked journalists for their opinions recently, they said that they could detect scarcely a hair's breadth of difference between the code and the Bill. I suspect that the Bill may even go the other way.
Those who read or hear our debate should understand the point of a "reasoned amendment." The Opposition have been criticised for tabling an amendment that says that the Bill should not receive a Second Reading. This aspect of parliamentary procedure needs modernisation. It is ridiculous that an Opposition cannot criticise a Bill on the Order Paper without demanding that it should not be given a Second Reading. That is one of the fatuities that sometimes arise from procedural developments that grow up in the House. One goes to the Table Office to be told that that is how the amendment has to be. Until that problem is resolved, we shall have no more sensible formal procedure for saying that we welcome a Bill but wish to record by vote that certain changes should be made to it.
§ Mr. John Greenway (Ryedale)
Not having been a Minister in the previous Government, I have just discovered precisely that point. We felt that we should put down a marker tonight to show that we were dissatisfied with the Government's performance over key aspects of the Bill.
§ Sir Nicholas Lyell
I found out the point when I tabled a reasoned amendment to an earlier Bill in this Parliament.
The defect of the Bill is that it is too restrictive and has too many exemptions. There must be a significant number of exemptions. No one would disagree that defence, foreign relations, criminal prosecutions and some areas of the economy require substantial exemptions. However, the harm test provided is much too loose. The Home Secretary obviously realises that, because he avoided referring to it as prejudice during the first 10 minutes of his speech. As he spoke, I fumbled through the Bill to try to find the word "harm". I challenge Ministers to do so. I think that it is always called "prejudice" or "likelihood of prejudice", which is even weaker.
The Matrix Churchill case and the Scott report have been discussed. I have an exceptional knowledge of that case, for obvious reasons. The Scott inquiry was held in public and the report was published. If one reads it, one can be well informed about the matter. The difficulty is that, rather like the Bill, the report was infinitely too long, with the result that no one can read it—there is not enough time in a lifetime to read much of what it says. That report made it clear that the public interest test is whether there is real harm or serious harm to the public interest. I doubt whether any lighter test really means anything. One can always argue that something is prejudicial.
764 The second point to be made, when comparing with this Bill matters that were rightly matters for public debate at that time, is that I agree with Sir Richard Scott about the candour argument—I did not agree with him about everything and we did not agree about the law, so it is nice for me to be able to say that I was right and he was wrong. But it is true that there must be opportunities for Ministers and officials to talk candidly and in private to each other. Those matters should not be widely reported—they should not necessarily be reported at all. However, one should limit as much as possible any restricting of the background information that surrounds such candid discussions.
Without breaching Cabinet secrecy, I will give one example of the sort of candid discussions that must be able to take place. On an extremely important matter—which hon. Members would have approached from very much the same point of view from whichever side of the House they came—one of our senior and distinguished colleagues said exactly the opposite thing on two successive days and gave powerful reasoning for each view. Both arguments were valuable parts of the debate that led to what I think was the right decision in difficult circumstances. Had they been reported, however, it would have looked pretty stupid. There is a genuine right to protect candour to that extent, but it should be to the minimum extent necessary. All the surrounding facts that can be brought into the public domain without serious harm to the public interest should be.
It is difficult to know exactly what powers should be given to the ombudsman who is to supervise, but the powers in the Bill are too weak. One of the interesting aspects of the Committee and Report stages will be to decide how much to leave to the commissioner or the ombudsman.
I do not like the idea of taking away ministerial responsibility, because one of the advantages of Ministers' having responsibility—this is a constitutional point—is that they can be questioned about their opinion in a way that officials cannot. Unless a Minister is put under huge pressure to divulge information, however, his Department will be on his back urging him to be as secretive as possible, and he may be inclined to be secretive.
If the commissioner says that something should be divulged but the Minister thinks that it should not, perhaps the matter should come before the House on a motion similar to that on an order, so that the House can express a view. I suggest that for consideration, rather than as a final conclusion.
Certain aspects of secrecy which will be continued by the Bill worry me greatly. Clause 30, which deals with court records, require that any document served by a public authority for the purpose of court proceedings is automatically exempt. That is dangerous. Since we passed the European convention on human rights into our domestic law—indeed, since European law came into our domestic law—and since judicial review became such an important part of public administration, and I am now going back 25 or 30 years, what is argued in the courts needs to be more openly available to the public and better understood by them.
Valuable documents are produced for every case nowadays. They are known as the skeletons of argument and are put forward by counsel on behalf of one party or 765 another and, in particular, on behalf of Government. In a recent case, the Crown v. Keberline, the Lord Chief Justice thought it right effectively to strike down anti-terrorist legislation. That was a big step, but he would not have done it if he had not thought it necessary. The skeleton of the argument that was put forward—on behalf of the Crown on that occasion—would be extremely valuable for public debate. Indeed, it is an entirely public document, as it has been used and referred to in court.
Thirty years ago, the right hon. Member for Camberwell and Peckham (Ms Harman) was battling on behalf of what is now called Liberty but was then the National Council for Civil Liberties I think, to be allowed to reveal or justify herself for having revealed documents that had been used in court. No lesser person than the present Lord Chief Justice—as a recently appointed High Court judge—conducted a public inquiry into the matter and made recommendations. The point of those recommendations, which the House subsequently enacted into law, was that documents that had been used in court should thereafter be in the public domain.
I have been asking parliamentary questions—I still await the answer to one—about whether the Minister responsible for transport will put in the Library the skeleton of argument in the great fisheries case of Factortame. The question has been shifted to the Ministry of Agriculture, Fisheries and Food and I am waiting to find out whether that Department will cough up the answer.
Those documents, which are produced for a public purpose, should be in the public domain. The courts are getting more political powers. Journalists and Members of Parliament should be able to see, and the public should be able to read, what they are saying. That is an important part of open government.
I agree with those who have said that the Bill is incredibly complex. It is only an 80-clause Bill. If I had not been sitting here for the past three hours, I would have been in the Standing Committee considering the Financial Services and Markets Bill, which has 350 clauses. Neither Bills need be anything like as long. The Financial Services and Markets Bill could probably have been dealt with in 100 clauses maximum, and in 50 rather than 200 pages. It would have been a much better Bill for that.
As the right hon. Member for South Shields said, these provisions could probably have been dealt with in 15 or 20 clauses—then it would have been possible to read it. Bills such as this are impossible for a layman to read, and no lawyer would read them without being paid. It is plain wrong that we should continue to legislate in this way. I hope that there will be more and more complaints about that, and that the message will get through to the Cabinet Office and to the parliamentary draftsmen. Ultimately, it is the Government's responsibility and, with their help, the parliamentary draftsmen will put their heads together and we will get a new style of drafting.
Yes, the situation was getting worse while the Conservatives were in power and I will not deny that, but it has got gallopingly worse in the past couple of years. I do not particularly blame the Government—except that 766 they were not alert to what was happening. They should wake up and let us have simpler, clearer and briefer legislation—and that applies to this Bill.
§ Mr. Maclennan
As a matter of historical record, will the right hon. and learned Gentleman clear this up? Which Ministers are responsible for the parliamentary draftsmen? When I had a lowly position in government, it was certainly a matter over which no departmental Minister had control.
§ Sir Nicholas Lyell
It is a good question. In my experience, the Attorney-General and Solicitor-General had a close relationship with parliamentary draftsmen. We regarded ourselves as the Ministers who should speak up when they felt beleaguered, as they sometimes did. The usual reason why they feel beleaguered is that they receive instructions for Bills far too late and are then expected to have done it by yesterday. I do not think that there is a Minister with responsibility for the parliamentary draftsmen. If there is, I ask the Minister in this Government to put his hand up. I think that the Minister in charge of each Bill is responsible in some way for the parliamentary draftsmen of that Bill. The problem is one of overall ethos, and it needs to be corrected.
I welcome the Bill, but it has serious faults, which have been rightly identified by hon. Members on both sides of the House. When the Conservatives come back into Government—everyone knows that we have to contemplate that imminent possibility—we do not need to be scared about strengthening the Bill. That is what we should do.
§ Helen Jackson (Sheffield, Hillsborough)
I am delighted to participate in the debate because freedom of information and the right to know is something to which I have been committed all my life, especially since I have been involved in politics. The first sign of maturity in small children is when they ask the question why. We carry on from there to the days when I was a member of the Committee that considered the Right to Know Bill introduced by my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher) in the previous Parliament. I welcome the opportunity to be the Labour Member to speak after him.
We have had an interesting debate so far. I hope that I shall not tread over the ground that other people have trodden very adequately, but I want to make a few specific points. The first is about the Bill's scope. We have become slightly bogged down with it as a Bill relating to Government and Ministers. I was impressed by schedule 1, which lists almost 500 bodies to which the Bill relates. They range from the adjudicator for the Inland Revenue, through the BBC, the Countryside Agency, the Environment Agency and, going down the list in alphabetical order, to the Tate gallery and the Zoos Forum. We sometimes mistakenly think that we are talking simply about Ministers' commitment to a presumption of openness. I want a Bill that lays down that presumption of openness for the whole scope of the establishment that runs our lives.
Still on the matter of scope, I was interested that the 500 organisations did not include the Child Support Agency, the Benefits Agency or what I might call the 767 Of-family—Ofwat, Oftel, Oflot and so on, the regulatory agencies. Why are they not on the list? My constituents seek information about the reasons for decisions that affect their lives taken by the CSA, the Benefits Agency and the regulators as often as they do about decisions taken by Ministers. It is important to get it right.
I appreciate that my right hon. Friend the Home Secretary believes in openness. He has done a magnificent job in putting openness into legislation, being open to suggestions, improving his Bill and introducing it in this first Parliament—something that Labour members have argued for. However, the Bill has to affect the other bodies to which I have referred, which may not have a presumption of openness and will take their lead from Ministers. So we come back to why it is so important to get it right and put an assumption of openness in every clause.
It is something of a lost opportunity that so much emphasis is placed on exemptions. I suspect that the public bodies affected by the Bill and which dominate our lives are not making representations about the Bill to Ministers because they think, "Oh, we need not worry about it. There are all these exemptions. If something crops up, we can always say that we do not need to make something public because to do so might affect the efficiency of our organisation or prejudice the effective conduct of our affairs." They may quote clauses 33 and 34, which relate to Government Departments. Other bodies may take those clauses to apply to them when they want to be less than open about a mistake that they have made.
In 1984, the Conservative Government introduced the access to information code. At that time, I chaired a local government committee in Sheffield city council. I was even then committed to openness so I welcomed the code. I remember standing up and saying that it was probably the only thing that that Government had thought up with which I had any sympathy.
As chair of the committee, I used to examine the care with which officers had placed their reports in part 1 or part 2 of the committee agenda. I could not help noticing that when the timetable had slipped, spending was over budget or a department had not performed as well as a council department ought to, there was more inclination to place a report in part 2, which was not open to public scrutiny, than in part 1. That brings me back to the general point of the legislation. We are talking about a Bill which will have to deal with public authorities with their backs to the wall, fighting not to disclose something that inadvertently, for either a small or a big reason, has gone wrong.
Other hon. Members have contrasted the code, which attempted to separate facts and information from policy guidance, with the Bill. From my experience in local government, I do not believe that it is impossible for my right hon. Friend the Secretary of State to find a perfectly adequate way of arranging the submission of policy advice so that a distinction is made between the information on which officials present their advice and the informal interpretation of that information, which they may want to talk through with a Minister in the light of a party's policy. It is clearly not appropriate for those discussions to be held in public, but the information and the facts on which they are based should be public. With a presumption of openness in Departments and public 768 authorities, that would not be impossible—indeed, it is desirable. Without it, the ground will be cut from under the worthy aspirations of the Bill.
One example of a public authority with its back to the wall occurred in relation to the tragedy at Hillsborough. I mention that because the tragedy took place in my constituency and was important to the people whom I represent. I have told my right hon. Friend the Home Secretary of my genuine concern about the exemption clauses on potential criminal prosecution. The two senior police officers at Hillsborough on that day are facing private criminal prosecutions, although they are no longer members of the South Yorkshire police force. There was a huge desire, not just in Sheffield but in Liverpool, that the full facts and the detailed information held by the police on every aspect of their management of that terrible tragedy—whether video cameras were running and so on—should be open to the public and made available. The Bill must be cognisant of such circumstances and cover them.
That leads me to the powers and role of the commissioner. In especially sensitive circumstances, there will be disagreement—although not frequently—in respect of the discretionary provisions of the Bill and the balance as to who should have the final say. It would be better to view the establishment and the public authorities as Goliath and ordinary citizens as David, with the Members of Parliament who represent them trying to err on the side of David. As other hon. Members have pointed out, we should trust an independent person to make the final decision, even though, as Members of Parliament, we might find the decision embarrassing.
Several hon. Members said that we live in a secret society where matters are closed to us. That is not true. In this country, we live in an incredibly free society. We vote often; we have a free press; we do not have a big illiteracy problem; and we can demonstrate, like the farmers at the Labour party conference—even Tommy Archer was acquitted of destroying a field of genetically modified crops.
Despite all that, however, individuals often find themselves at the mercy of the establishment. I would like some assurances from my right hon. Friend the Home Secretary and Home Office Ministers that they will take the Bill slowly, that they will not get entrenched in their own arguments but will be prepared to listen to the arguments of hon. Members, and of those outside this place, and that they will be prepared further to strengthen the Bill.
I have made those points for two reasons. The first is political, almost romantic: this country needs to defend its freedoms. This Parliament needs to defend those freedoms on behalf of the country; and the Labour party, which has taken so many steps forward on minority rights and human rights, and now on freedom of information, needs to defend its proud tradition.
The second reason is purely pragmatic: we do not want to pass a Bill that will be out of date almost before it reaches the statute book. We need to acknowledge the power of the internet and of communications, and the rapidity with which information goes international. Information is on the internet; it is open to Europe and to the world. Commercial confidentiality may become a thing of the past, when so much commerce is carried out on the internet. Injunctions to stop publications have 769 already become almost worthless, because before we know where we are, we can read all about it on the internet.
Let us get this important measure on to the statute book in a state that takes us into the next century.
§ Mr. Richard Shepherd (Aldridge-Brownhills)
The hon. Member for Sheffield, Hillsborough (Helen Jackson) did her constituents proud. We do indeed live in a land of liberty where none of us fear to express what we feel. The essence of a freedom of information Bill is to give us the information with which to focus the expression of our arguments. After 20 years as a Member of Parliament, I realise that it is not freedom of speech that Governments fear, but freedom of the equality of argument—where the other side knows the facts as well. That is when the public—through us, as their elected representatives—begin to appreciate the dimensions of an argument.
I have noticed a subtext in the House tonight: the truth is that the Bill is pretty awful. However, it can be amended. Indeed, an early-day motion, supported by at least 140 Labour Members, expressed a wish for amendment of two aspects of the Bill. That seems to be a reasonable request.
The House also seems to be expressing something wider. It is saying that it understands the difficulties of Government. "Heaven alone knows", some Labour Members are saying, "we suffered nearly 18 years of Conservative Government", but they have set their backs resolutely to a more rational, forward-thinking Bill and Parliament.
After less than two years, a Government and a Prime Minister proclaimed something about freedom of information in which I profoundly believe. They reached out to many beyond this House—beyond the narrow confines of the politicians who sit here. They said that we, as a people, have a right to the information that forms public policy and thus helps to shape our lives. Indeed, the laws that we make in this place can impose criminal sanctions on those who do not obey them. That is why the process of law making and the central functions of government are of crucial importance in the evaluation of any freedom of information legislation.
I do not mock the Government for the width of their Bill. I have heard no evidence to the Public Administration Committee that has criticised the Government for extending the provisions across an extremely broad front. However, the activities of central Government are at the heart of freedom of information, and in that area the Bill is notably deficient—I use strong words because I can see the gentle pushing of the Government's supporters to turn the Bill round and make it something substantial, and I would not want to say or do anything that harms a wholly proper, intelligent and sensible course of action, to which I hope the Government will accede.
My right hon. Friends who have spoken have tried to give expression to the practical experience of Ministers, and, in suggesting what needs to be done, they have centred on some of the common ground shared by those of us who believe in freedom of information. It is true that the Bill is inordinately complex. The principle of freedom of information—the presumption that 770 information should be available—is fairly simple. All information should be available unless it causes serious harm. The question that follows from that is, how do we weigh that serious harm? People like me have, for a long time, advocated that decisions should be taken on a case-by-case basis—not by classes, because those, as has been pointed out by hon. Members from both sides of the House, produce absurdities.
The Home Secretary was speaking as though any information about the formation of policy would cause the Government to collapse and would do irreparable harm, but then he was probed and tested on the truth of something that, for many years, was held to be the most sensitive area of central Government information—interest rate changes. For many years, Ministers resigned if they leaked such information. Governments trembled at the thought that the reasoning that had led to decisions on interest rates should be known to a wider public. Yet my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) instituted a system whereby that information—that policy advice, no less—was made available after a short time.
I believe that the judgment of the world at large, and of most Members of the House, would be that that process turned out to be not only appropriate, but successful. The two things do not often go together at times in our post-war history, but that is what happened—and when the new Government, elected in 1997, came to office, they placed that system on a statutory footing, and the Monetary Policy Committee now publishes its deliberations after a time.
I cite one instance to show why decisions should be taken on a case-by-case basis. There will be, and there are, matters that cause every one of us, on a prima facie reading of the information, to think that that information may touch upon the security of the state, which is one of the blanket exemptions. As a consequence, all information on MI5 and MI6 is exempt for the purposes of the Bill—and I see hon. Members nodding in absolute agreement that those bodies should be beyond an inquiry. All information would be exempt, including the fact that someone is fiddling the books, or the fact that someone—well, we all know the history of section 2 of the Official Secrets Act 1911.
The hon. Member for Stoke-on-Trent, Central (Mr. Fisher), promoter of the notable Right to Know Bill, said that the measure should be debated by a Committee of the whole House, and that must be right. The Home Secretary said that the Bill was a Government Bill of the first importance. He laboured the point about the Bill's importance by saying that it was a constitutional Bill and was part of the Government's pledge. I accept all that; it is just one those things. However, what issue was he addressing? He was not dealing with the point that the Bill should be considered on the Floor of the House—he was repudiating something that had happened before, and this House moves by precedent. However, the Official Secrets Act 1989 is the other side of the mirror and it was discussed on the Floor of the House. As a constitutional measure, that is where this Bill should be considered. I start from the confused position that this is a much lesser Bill than all the proclamations surrounding it have suggested. However, it can be made something of, and I hope that the Government will listen to that plea.
771 I return to the words of the Prime Minister, to the Campaign for Freedom of Information and to the arguments adduced. In the evidence given to the Public Administration Committee, we heard a wonderful justification for the Bill from Lord Lester and I have always argued with a little rubric of my own. First, to honour the hon. Member for Hillsborough, we should remember who we are as citizens of a free, great democracy; ours is a fine system of government by and large. Secondly, how can one have accountable government if one does not know what the Government are doing? Freedom of information is absolutely essential to accountable government. Thirdly, do we not all think that, if a question is considered and more widely debated, the quality of the decisions will be better? Fourthly, freedom of information reinforces ethical government and ethics in government.
I do not believe that the Scott inquiry or the circumstances of the non-disclosure of the relaxation on the export of armaments would have come about if there had been wider discussion. There is an odd contradiction in our system. It is only when we are in crisis and when something goes badly wrong that we resort—to cover our backs for whatever reason—to a public inquiry. What does a public inquiry give us? It does not give us the pretensions and presumptions of this very limited Bill. Instead, all the facts are brought out to the discomfiture of every element that has combined to create the very repressions and restrictions in the Bill.
In the Scott inquiry, we saw the lack of ethical conduct by civil servants, the shortchanging, the blind eyes turned to the law of the land, and the conduct of Ministers exposed. Do we seriously believe that that system of conduct of government could have been maintained if we had had proper freedom of information legislation? The very fact that people know that their conduct and the way in which they have conducted their office may be open to scrutiny keeps them, as often as not, on the straight and the narrow.
I do not know whether the House thinks that my remarks are a cheer for the Bill or a damnation of it. I know, however, that Members of the House of Commons can make this a proper Freedom of Information Bill.
§ Helen Jones (Warrington, North)
It is a pleasure to follow the hon. Member for Aldridge-Brownhills (Mr. Shepherd). Although I may disagree with him about some aspects of the Bill, he has a long and distinguished track record in arguing in the House for proper freedom of information legislation.
I come to the debate as a relatively new Member, who began to consider the issue as part of the Select Committee on Public Administration. I confess that I started off partly infected by the belief that freedom of information was an issue for the chattering classes—for politicians and journalists, but for no one else. Having considered the draft Bill and taken part in the Select Committee's inquiries, I have to say that nothing could be more profoundly wrong, because the importance of freedom of information legislation is in the rights that it gives to individual citizens.
We live in an increasingly complex society, where public authorities hold more and more information and often base on it important decisions that profoundly affect 772 the lives of our citizens. If democracy is to function effectively, it is essential that citizens have access to that information and can scrutinise and challenge those decisions. They should also be able to play an effective part in the decision-making process. They should be partners in the process of change, not simply passive subjects. A proper freedom of information regime ought to facilitate that.
Such a regime is essential to the functioning of a modern democracy, the exercise of citizens' rights and their participation in that democracy. That participation should be continuous and should not be limited to exercising the right to vote at the ballot box every four or five years. Used properly, the Bill should be an instrument to achieve that. Despite some of my caveats about the Bill, it represents a great step forward in giving citizens rights.
Of course, such scrutiny of information by the public will never be comfortable for an Executive of any party. It is right that scrutiny should be a little uncomfortable; otherwise it would not be working effectively. The Government are to be commended for having brought to the House for the first time proposals for a statutory right to freedom of information. That is the big change that we are debating today. As hon. Members have said, the code of practice had many points to recommend it, but it did not give people a statutory right to freedom of information, whereas this Bill does.
Properly used, the Bill should lead to more informed debate and more open and better decision making. There is too much unnecessary secrecy in this country, and that secrecy is the enemy of good government and proper decision making.
The Bill is not perfect—no Bill is—but it has been greatly improved by the pre-legislative scrutiny that it has undergone. In that connection, it is only right to pay tribute to my hon. Friend the Member for Cannock Chase (Dr. Wright), who, as Chairman of the Select Committee, guided those deliberations and evidence sessions with great skill. It is right also to say that my right hon. Friend the Home Secretary demonstrated a great deal of commitment to that process and a willingness to spend time with the Select Committee and engage in that debate. He has not accepted all of our arguments, which, on any objective assessment, are entirely right, but we live in hope of his conversion on one or two points.
None the less, it would be wrong to underestimate the great strides and vast number of improvements that have been made since the draft Bill was published. The time for compliance with requests for information has been reduced from 40 days to 20 working days, as the Select Committee suggested. The Information Commissioner has been given much greater powers in respect of publication schemes, which will in themselves start to change the culture within which public authorities operate. Steps have also been taken, as the Committee suggested, to prevent authorities from using the exemptions relating to future publication to avoid disclosure.
It is particularly noteworthy that two of the provisions in the draft Bill that were most criticised—clause 37, which was the so-called "jigsaw exemption", and the provision to allow local authorities to refuse to disclose information on the grounds of self-incrimination—have been completely removed from the Bill that is now before the House. That represents a great stride forward.
773 We have made some progress on the discretionary provisions in the Bill. The Select Committee requested that there should be an explicit provision that, unless there was a compelling argument to the contrary, public interest should always be regarded as coming down in favour of disclosure. That was right and proper. Although we have not got there yet, clause 13 contains a requirement that any public authority should balance the public interest in disclosure against the public interest in maintaining an exemption. Together with the Information Commissioner's right to consider those decisions and make recommendations when an authority decides not to disclose information, that is a major step forward in ensuring that public interest is part of an authority's deliberations.
That, however, highlights one of the flaws in the Bill. Where possible, freedom of information provisions should contain statutory enforceable rights and the presumption should be in favour of disclosure. The Bill has moved some way towards that position. We have clause 1, and the title of the Bill has been changed from that of the draft Bill, which made provision about disclosure of information, to one making provision for disclosure of information. However, it does not yet go far enough.
My right hon. Friend the Member for South Shields (Dr. Clark) said that the Bill would be improved by a purpose clause, and I agree with that. The argument has been advanced that that would tip the balance of the Bill wrongly. I am convinced by the evidence given by the Data Protection Registrar to the Select Committee that such a purpose clause could be drawn up properly to ensure that the balance between individual privacy and the right to know is preserved. It would also make it clear that the presumption in interpreting all parts of the Bill should be in favour of disclosure. I hope that my right hon. Friend the Home Secretary will consider that further in due course.
We have heard too much about the exemption for policy making. I welcome the fact that my right hon. Friend the Home Secretary has said that he will reconsider it. There is a balance to be struck, and the Select Committee heard about the post-it notes philosophy that is prevalent in some regimes where there is total disclosure. I am sure that we can produce a form of words that will allow factual advice to be disclosed while ensuring that Ministers and others can discuss policy and advice without fear of that getting into the public arena too soon.
The Bill could be improved in respect of the commercial confidentiality exemption. It is right and proper that there should be a class exemption for trade secrets. I doubt whether any of us would argue against that. However, the Bill as drafted allows far too much commercial information to remain confidential because it would be deemed to prejudice a firm's commercial interests. There should be an explicit public interest test to balance the test of whether something would prejudice a firm's commercial interests. Where a commercial interest should properly be protected, public safety should come before that. As drafted, the Bill would prevent disclosure or allow firms to avoid disclosure of information about defective products or products that cause harm to the public. That cannot be justified.
774 The powers of the Information Commissioner have been mentioned frequently in the debate. I agree that, with regard to the discretionary provisions in the Bill, the Information Commissioner should have powers to order disclosure. To maintain otherwise is not consistent with moving from a code of practice to a Bill that gives people statutory rights. I am not convinced by the argument that Ministers are accountable to Parliament, whereas an Information Commissioner is not. The Information Commissioner will be a Crown appointee responsible to the House. The line of accountability could be maintained in that way.
I welcome the Bill, but I ask my right hon. and hon. Friends to reconsider those provisions. It seems hard that we should pick out what is wrong with the Bill, but I hope that they will accept that we do so in a constructive spirit. Despite its flaws, the Bill represents a major step forward in citizens' rights. It is a landmark piece of legislation.
I fail to understand the argument of the Opposition, who would vote against the Bill rather than constructively amend it in Committee. That is a step backwards indeed. It is tantamount to telling citizens, "You have information at the discretion of Government, but you have no statutory rights." It is an argument that cannot be maintained. I urge hon. Members to reject the Opposition motion and vote for giving the Bill a Second Reading, so that we can improve it still further.
§ Mr. David Davis (Haltemprice and Howden)
I propose to follow some of the points made by the hon. Member for Sheffield, Hillsborough (Helen Jackson), who made an admirable speech, full of common sense.
I do not approach the issue from the perspective of a freedom of information enthusiast—not for its own sake, in any event. For any measure that comes before the House on that subject, my test is whether it makes democracy and government work better. It is a simple test and, in some respect, the Bill fails it.
I agree with those who say that our present system is too secretive. One of the reasons Whitehall takes on so many first class brains and occasionally turn out second-class results is that much of our policy consideration is too secret. There are plenty of proper exclusions. Anyone who, like me, has worked in the Foreign Office as a Minister, particularly at security command or in negotiations, would know that many subjects should not appear in the public domain instantaneously.
However, that should not be applied across the board. The class exemption applying to all information relating to formulation and development of Government policy, including factual information, is a ludicrous blanket exemption.
§ Mr. Peter Bradley (The Wrekin)
I am grateful to the right hon. Gentleman and interested in what he said about his experience at the Foreign Office. He will remember that, earlier this year, I wrote to him and asked him to release papers relating to his conduct as a Minister at the Foreign Office, in the interests of freedom of information and transparency of government, and he declined to do so. Can he explain why he has changed his mind, if that is what he has done?
§ Mr. Davis
It is a pity that the hon. Gentleman brings the debate down to that level. He was not seeking freedom 775 of information at all. First, no one made any allegation about my behaviour. If the hon. Gentleman wants to do so outside, we can test it in the court. Mr. McGilligan, the ambassador at the time, made it clear that I behaved entirely honourably.
Secondly, the papers to which the hon. Gentleman refers cover sensitive matters. Thirdly, they are past Government papers and therefore subject to strong limitations. Fourthly, that intention comes as hypocritical in the extreme from a supporter of a Government whose Prime Minister does not even publish a transcript of a meeting with Bernie Ecclestone, which is not a sensitive matter, and then goes on to claim that he supports freedom of information.
On the substantive issue—the blanket exemption that applies to factual and other information relating to policy matters—there are two areas in which the civil service security blanket could be removed: first, with regard to factual matters, and secondly, with regard to the options available to Ministers. Most Ministers do not make decisions entirely on the basis of their own experience. They are offered a series of options by civil servants. Broadly, those options should not be secure. It would be useful for Parliament to know what the Government were choosing between, what other options were available and whether all the options had been presented to the Minister. It is a rare Minister who invents options of his own unless he knows the subject well.
Information about the options available and the factual basis on which decisions are made—not the recommendations themselves; the civil service does not have to defend itself—will improve the whole basis of public decision making. The public will have a better understanding of decision making at ministerial level, there will be a better policy debate at the time and, after the event, there will be a better review of ministerial performance. For all those reasons, it would be worth while to amend the Bill to include such a provision.
Such a measure would undoubtedly also lead to better advice. Robin Butler made that point when giving evidence earlier on the matter. Civil servants, knowing that the judgments would be much more exposed to public consideration, would give better and more considered advice. It would also be practical. Both Robin Butler and Terry Burns have argued that the provision of advice, evidence and options could be separated out. For all those reasons, this would be a worthwhile addition to the Bill and would pass my test by improving democracy and government.
I missed part of the speech made by my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell). I would specifically reduce the exclusion relating to Law Officers' advice. Having been a Minister, I know that Law Officers' advice is virtually set in tablets of stone. It would be greatly to the advantage of Parliament to know precisely what the Law Officers' advice was, because that sharply constrains Government's decision making and options. All that information should be available.
Quite a strong harm test would have to be applied. One of the weapons that Ministers employ when negotiating with other countries, be it on Europe or security matters, is to look hard at the modus operandi of other Governments. If matters were opened up, extra 776 information would be given to those negotiating against us, so the harm test would have to be subtle and thorough. Nevertheless, that should be achievable.
Who will decide what should and should not be released? One group of people who should not decide are those who are affected by disclosure. If we are not careful, that is what will happen in many circumstances. Even the best of intentions can lead to the wrong outcome. As a Cabinet Minister, I asked the chief medical officer why we could not publish hospital performance data. His response was that a certain tabloid newspaper would have the headline "House of Death" over the picture of a hospital. Sadly, I moved on before I was able to pursue the matter. I hope that I would have resolved it in favour of publication.
Given what has happened in Bristol and elsewhere since, I regret enormously that I was not able to stick with the issue. The chief medical officer was making a well-intentioned argument. He did not want to destroy the morale or the management of the NHS, which was his responsibility, but one can see only too clearly how such a well-intentioned aim is not always to the advantage of the public at large.
§ Mr. Mackinlay
In the recent Kosovo conflict, we understand that the Attorney-General advised the Government on the legality of NATO's action, and that that advice cannot, and will not, be disclosed. However, it is material to us in politics to know what that advice was, and that is the sort of thing that could, and should, be disclosed.
§ Mr. Davis
That is a very good example of the type of legal advice—equivalent to the Law Officers' advice—that I was describing earlier, and I can think of no reason why such advice should not be disclosed. Although I appreciate that, over time, the Law Officers and other lawyers have made the current arrangements to suit themselves, I do not think that it is necessarily worth while for us to continue with those arrangements.
Recently, the Intelligence and Security Committee had a press conference on the matter of the MI5 and MI6 buildings. Just before the previous general election, the right hon. Member for Ashton-under-Lyne (Mr. Sheldon), my predecessor as Public Accounts Committee Chairman, recommended that spending on those buildings should be put into the public domain. Immediately after the election, I made the same request. The Intelligence and Security Committee has also made the request. Although we have not received a reply, I suspect that we shall receive one.
When we do receive a reply, hon. Members should ask themselves what harm has consequently resulted. There will be no loss to the national interest, but there may some loss to individual interests. Cui Bono will be a good test to apply in making that assessment.
Time and again, Public Accounts Committee members have come across matters that should have been put in the public domain long before the National Audit Office got to them, but which were not put in the public domain because the people deciding on disclosure were also involved in the matter. If the decision on disclosure were not strictly for the commissioner, the people involved in resignations—such as those of the heads of various education institutes, of English Heritage, and of the South Birmingham health authority—would be the ones who were influential in a 777 decision on disclosure. The proper outcome, therefore, is that the Commissioner should have the power to decide—not only to recommend—disclosure, subject only to appeal to the information tribunal.
There is a subtle implication in the proposal, and it is for whistleblowers. Now, properly and rightly, we have protection for whistleblowers, but it is still a risky exercise for whistleblowers to rely entirely on that protection. Current protection might protect one in one's current job, but it will not protect one's career prospects. It is therefore brave—sometimes perhaps even idiosyncratic or eccentric—to be a whistleblower.
If the Bill's provisions on disclosure operate properly, a whistleblower would simply have to say to someone, "Ask this question," and the risk to the whistleblower would be eliminated. That is a very important element of the legislation.
In my role as Public Accounts Committee Chairman, I am for ever coming across matters that the National Audit Office has discovered and that, in the public interest, we have subsequently exposed. Unless a whistleblower acts, that is the only way in which problems, improprieties and injustices might be exposed. If those matters are not exposed, the public interest will not be served. If nothing else, the Bill will help us in pursuing that objective.
§ 9.2 pm
§ Mr. Peter Bradley (The Wrekin)
It is a privilege to participate in a debate that has consistently been of a high standard. I have also agreed with much of what has been said by hon. Members on both sides the House. Nevertheless, the shadow Home Secretary would have done better to read the Bill before coming to the House to castigate it.
I welcome the Bill—whatever its deficiencies, it is a major step forward. Although much has been said about the code of practice, the code is limited in scope and, ultimately, is voluntary. The Bill will confer new and statutory rights on citizens. As my hon. Friend the Member for Warrington, North (Helen Jones) said very clearly, the Bill will give citizens new rights of access to information about the way in which their daily lives are administered—the bread and butter issues that really affect how millions of British people live.
People will be able to obtain information on the way in which local government makes its decisions and health authorities and hospitals develop their priorities; on the conduct of police and the Prison Service; and on how local schools are run, admissions policies are operated, and further education is managed. Even more than central Government—and certainly more than the internal workings of Whitehall and ministerial offices—those are the institutions, agencies and organisations that dominate the daily life of the people whom we represent, and it would be a big mistake to overlook that fact.
When the Bill is passed, it will enfranchise and empower millions of people across the United Kingdom. I am more interested in the men and women whom I represent in my constituency than in the journalists on The Guardian and other distinguished newspapers who would like to know every last bit of tittle-tattle that passes between advisers in a Minister's office, important and titillating as that might occasionally be.
778 The Bill must be considered in the context of a broad and radical programme of constitutional reform. Power has been devolved to Scotland, Wales, and—historically—in the past week to Northern Ireland. A strategic authority for London is about to be established. At last, we have incorporated the European convention on human rights in our legislation. We have made an important start on reforming the House of Lords, and the Government have introduced the Representation of the People Bill. All those measures give up power from the centre and yield the Government's power to the people. Giving up information is another way of yielding power. It is no coincidence that Governments who exercise the greatest control over information tend be the most repressive Administrations—those who most eagerly and efficiently deny power to the people.
The process is not without difficulty and the translation from White Paper to draft Bill and then to Bill has not been easy. However, the Government should be commended for tackling challenges from which previous Governments of all parties have shied away, and for admitting, as the Home Secretary did this afternoon, that further amendments could improve the Bill and strengthen the rights that it confers on citizens. That process demonstrates the exercise of democracy. It is the dialectic of a proposition that is argued, criticised and improved. The process involves the exchange of ideas, to find common ground and consensus and to identify and isolate important issues of principle about which we cannot agree. In great matters of constitutional reform, all parties should strive together to find a solution.
I commend the process that has already been undertaken. As other hon. Members have said, the new and welcome practice of introducing draft legislation, especially to Select Committees, has been vindicated. There was widespread consultation on the White Paper. The Select Committee on Public Administration let the Government know its views. The draft Bill that followed was, in some ways, a retreat from the principles of the White Paper, but in others, it strengthened the Bill, not least by providing for tribunals. The Select Committee commented constructively on the draft Bill. Dialogue between the Select Committee and those who framed the legislation proceeded. The Bill that we are considering is better than the draft Bill in many respects, but it is capable of further improvement.
For all the dialectic, exchange of views and continual modification, the Bill remains flawed. The Home Secretary sets great store by the need for the culture of secrecy to be changed, and by his expectation that that will happen. He is right to say that that there is a culture of secrecy and control in Whitehall and Westminster and that it should be changed. We need to shift the presumption in the way that we are governed from secrecy to openness. That will create a radical change in the relationship between the citizen and the state. It will shift the balance between the rights of the citizen to demand that the Government be accountable at all times and the state's ability to control information and the administration of daily life.
It is essential that that cultural change puts the citizen at the centre of the process of government and make Ministers and civil servants truly accountable. If we are to restore the citizen's trust in government, the Government must trust their citizens more than at present. The Bill does not place the Government's trust sufficiently in the people whom we represent.
779 When the Home Secretary appeared before the Public Administration Committee, he bridled somewhat when I suggested that information was the oxygen of democracy—without information it is impossible for democracy to flourish—but that he seemed sometimes to regard it as the carbon monoxide of democracy. I did not mean to insult him or denigrate his commitment to the legislation. I was suggesting that he was over-protective of the citizen, as if the inhalation of the oxygen of information might harm them.
That is a slightly paternalistic approach. It is well intentioned, but wrong. It shows a laudable commitment to open government, but it is not the same as conferring the right to know on the citizen. It is not the same as giving up the Government's monopoly on information and accepting that citizens may come upon information that others would be eager to keep from them.
If freedom of information is to be truly effective, Governments have to be prepared to make mistakes in disclosure. The change of culture to which my right hon. Friend the Home Secretary refers is a leap of faith. All leaps of faith involve risks and hazards, but in a truly mature democracy, we should accept those risks freely. That is what happens in a free society based on a mature relationship between the governed and their Government.
Three principal shortcomings in the Bill go to its heart. The first is the absence of a purpose clause, about which others have spoken. The second is the existence of blanket exemptions. The third is the limit on the Information Commissioner's powers. The purpose clause, more than any other, should signal the cultural change that we all seek. It should leave civil servants in no doubt that power has shifted from the panjandrums to the people. The Bill allows civil servants to manage change without being subject to it. That is a weakness in the proposals. The absence of a purpose clause leaves Whitehall in charge, leaves citizens' rights abridged and weakens the rest of a Bill that its presence should inform and illuminate.
A great deal has been said about the exemptions. I concede that some areas of public administration are sensitive and it would not be sensible to divulge information about them. Every speaker has accepted that the right to know is no more absolute than the right to freedom of speech. James Madison, the American president who gave us Madison Square garden, also said:Knowledge will for ever govern ignorance and a people who mean to be their own governors must arm themselves with the power which knowledge gives.The class exemptions that remain in the Bill disarm the citizen. They close off vast territories of information and knowledge, irrespective of whether disclosure would cause harm. That is the key point. I take little comfort from a commitment that today's Ministers will always err on the side of disclosure. They may well do that, or set out intending to do that.
I apologise to the right hon. Member for Haltemprice and Howden (Mr. Davis), as I did not mean to tweak his tail in my intervention. However, I elicited from him the kind of response that I might have expected—although not because it was he who gave it. He reeled off at least three or four reasons why the information that I was 780 seeking from him should remain concealed. There may be good reasons for that—there may not. I am not in a position to judge.
§ Mr. Bradley
Frankly, that is not good enough. I do not make this point ad hominem, because other Ministers in previous Administrations, in the current Administration and in Administrations to come have made, and will make, the same special pleading when faced with disclosures that they would rather not make.
I take little comfort from a commitment that today's Ministers make and that tomorrow's Ministers may not. Legislation that does not foresee the possibility of a change of Government, and does not provide rights that can withstand such change, is flawed legislation. I would argue that the provisions of the Bill should be founded not on good intentions, but on statute.
According to the Consumers Association, 69 per cent. of people polled do not trust Ministers to disclose information when it is sought. This Bill is as much about trust in Government and restoring people's faith and confidence in the way in which they are governed as it is about the freedom of information. That is precisely why Ministers should not be given the last word. It is also why Ministers should not seek to have the last word.
For all information, in my view, the only test should be whether its release would cause harm and whether its disclosure would prejudice the public interest. That judgment itself should be open to contest by the Information Commissioner, whose own decision, after all, is subject to appeal. In that way, both the citizen's right to know and the public authorities' need, on occasion, to withhold information are preserved.
Thus, authorities will not be seen to have an automatic right to conceal their mistakes or wrongdoings. Nor will commercial interests have the opportunity to conceal, for example, the dangerous goods that they are seeking to market for commercial profit.
The central issue is the limitation that the Bill places on the powers of the Information Commissioner. The commissioner is not, and should not be, merely a cipher. She will be the advocate of openness. Sometimes, she will support and acknowledge the need to withhold information, but she must be—and must be seen to be—the citizen's champion. She will be able to exercise that onerous responsibility only if she has powers that are enforceable on the citizen's behalf, and if she has the power to enforce those decisions without fear or favour.
The ombudsman's experience of the code—this is the weakness of the voluntary code—has been that recalcitrant Departments and public bodies have too often exploited the ombudsman's lack of enforcement powers by challenging not just the ombudsman's judgment, but his interpretation of the code. Successive ombudsmen have commented on this matter. I am indebted to the Campaign for Freedom of Information for providing those sources. We should all pay tribute to the campaign for its extraordinary work over a long period. The fact that the Bill has been introduced is much to its credit, its major problems with some of its central planks notwithstanding.
781 In 1995, former Ombudsman William Reid said of the code:there is a tendency in some departments to use every argument that can be mounted, whether legally-based, Code-based or at times simply obstructive, to help justify a past decision that a particular document or piece of information should not be released instead of reappraising the matter in the light of the code with an open mind.Two years later, when the code had been in operation for three years, Mr. Reid's successor Michael Buckley said that departmentsfear that they are setting a precedent … they do not want to say yes, that the department accepts this interpretation of the Code. It turns into a process almost of negotiation".
Somewhat more colourfully, he said:if the Government wants me to act as referee we cannot have a situation in which every time I award a free kick everyone troops off the field for an elaborate investigation of the rule book and to telephone the FA.Those well-chosen words illustrate amply why a voluntary code, well intentioned though it may be, is ultimately ineffective.
If the Bill is to bring about the culture change in Whitehall that we seek; if it is to lead to a better understanding of, sympathy for, and commitment to, the way in which we are governed; if Ministers are truly to be held to account; if there is to be transparency in public administration; and if we are to restore public confidence in Government, the citizen must know that the Information Commissioner can, and will, enforce his or her rights.
I commend my right hon. Friend the Home Secretary for the concessions that have been made by, for example, reducing the response time from 40 to 20 days, removing rights to restrict the way in which information gained by citizens can be used, removing the jigsaw clause and the protection from self-incrimination, and limiting Ministers' rights to create new class exemptions.
A very few more significant amendments will make a good Bill immeasurably better. It will, if he wants it, provide my right hon. Friend with a lasting testament to a truly radical, reforming Government, prepared to reinvigorate our democracy and to redefine and extend citizens' rights, not only in principle but in practice.
§ Mr. James Clappison (Hertsmere)
This has been a good debate. Somewhat to my surprise, I found myself deriving some pleasure from the speech of the hon. Member for The Wrekin (Mr. Bradley). The main feature was a lot better than the trailer that we had during the speech of my right hon. Friend the Member for Haltemprice and Howden (Mr. Davis). Perhaps it is best to draw a veil over that.
I agree strongly with what my right hon. Friend said about the policy side of the Bill and the ill-fated clause 33. I also agree strongly with my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd). He spoke compellingly and has some political and moral capital that he can expend on this cause, as has the right hon. Member for South Shields (Dr. Clark), to whom the whole House listened with great interest and who spoke, as he saw it, for the interests of the man in the street.
782 There is a mood in the House—among all parties—in favour of greater openness in government. There is also a general feeling that the Bill as it stands falls short of being what the hon. Member for Cannock Chase (Dr. Wright) characterised as an all-singing, all-dancing Bill. I hope very much that the Government will listen carefully to the excellent points made not only by Conservative Front Benchers but by Government Members too.
I want to identify the Bill's biggest deficiencies. I agree with the comments made by my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) about the extent of the exemptions, and those exemptions that rely on the prejudice test. I am also dubious about that test. It will leave England in a different position from Scotland, and I am not as relaxed about that as the Home Secretary.
The Bill's biggest deficiency lies in the way in which it treats the workings of central Government. I agree with the House of Lords Select Committee, which said:It is fundamental to Freedom of Information law and practice that government information is seen as belonging to the people, who have a right to see and use the information unless there are good reasons for exempting it.If the Government cannot set a good example on freedom of information, what can we expect from others? As it stands, the Bill is defective, because clause 33 would impose a wide exemption on matters relating to Government policy. My hon. Friend the Member for Aldridge-Brownhills made some good points about class exemptions, and clause 33 contains a class exemption par excellence. It does not require a test of prejudice: information can be withheld purely because it falls within the class described in clause 33. That is a wide exemption from the requirement for disclosure.
I am grateful to the Campaign for Freedom of Information for an overview, which I share:The exemption is not limited to sensitive civil service advice, or to information whose disclosure would harm the decision-making process or the frankness of internal deliberations. It applies to all information considered during the development of a policy, including purely factual information, analysis of the facts, scientific advice, mundane exchanges between officials, extrapolations from existing trends or simple descriptions of existing practice.Those would all be outside the freedom of information requirement because they fall within clause 33. Anything that would not be caught by clause 33—although it is hard to envisage what that could be—would be caught by clause 34, which contains a harm test.
A "qualified person" has to decide whether one of the various forms of prejudice described in clause 34 arises. Who is the qualified person? It is none other than a Minister of the Crown. As the hon. Member for Cannock Chase rightly said, the tortuous process has two stages. The Minister's decision can be examined to see whether he got it right. Who examines that decision? Under clause 13, it is the Minister himself, again. I am not sure how a Minister should go about that process. Perhaps he should take his decision under clause 33, go to bed, and see whether he is in a better mood the next day to examine it under clause 13.
The Minister has to decide whether the public interest in disclosure outweighs the public interest in maintaining the exemption in question. However, the key point in clause 13, which covers the whole area of Government advice and many other issues, is that it is a purely 783 discretionary disclosure. Indeed, that is the title of the clause. Ministers decide. My right hon. Friend the Member for Sutton Coldfield (Sir N. Fowler) wrote a very good book called "Ministers Decide", but when the Home Secretary leaves office he will have to call his book "Ministers Decide Everything". Ministers will be judge and jury in their own cause.
Clause 33 contains a wide exemption. I asked the Home Secretary about that, and why information that was wholly innocent and did not cause any prejudice to anybody would be excluded by that clause. I was not convinced by his answer and, without wishing to be too partisan, I must say that I caught the odd whiff of smoke and glimpse of a reflection when I heard the Home Secretary's reply. The clause must be reconsidered and the feeling on both sides of the House is that we need more objectivity and impartiality.
As it stands, the clause would require Ministers to show impartiality and wisdom of almost saintly proportions. Set against the presentational needs that face all Governments and Ministers, it would expect a lot of them. It would be much more realistic if we were to have a true override—not a discretionary one—with Ministers' decisions being examined by someone else. My right hon. and hon. Friends have made some good suggestions about the role that Parliament could play in that.
As it stands, the Bill does a great deal to protect officials—rightly, in some instances—but it is, I fear, a Bill with which Sir Humphrey would feel far too comfortable, and of which he might even be a little proud. At present, the Home Secretary is in danger of seeing his photograph take pride of place in Sir Humphrey's office.
§ Mr. John Greenway (Ryedale)
Greater openness in Government is one of those issues that can always be expected to stimulate a lively argument in the House, and today's debate has certainly lived up to that expectation. We have been treated to many fine speeches, but I shall single out those of the right hon. Member for South Shields (Dr. Clark), my right hon. Friend the Member for Sutton Coldfield (Sir N. Fowler), my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell), the hon. Member for Sheffield, Hillsborough (Helen Jackson) and my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd).
More to the point, the debate has confirmed the Government's difficulty in persuading many of their own side, as well as Conservative Members, of the merits of the Bill as it stands. That should come as no surprise to the Home Secretary—who, I am sorry to say, has not yet arrived—because, for all his bluster, mingled with his customary charm, he cannot seriously have expected seasoned campaigners for greater openness to swallow his argument that a statutory framework would in itself guarantee a culture of openness.
In its current form, the Bill is not a guarantee that more information would be released than is released now. What matters is that the provisions cover as much information as possible, and are enforced by a strong independent body with the ability to compel public authorities to release information. The Bill conspicuously fails to meet that test, as anyone who has listened to the debate will conclude.
We are being asked to approve a Bill that manages to make more information secret than is the case now. Several Members have referred to its failure to provide a 784 proper mechanism for the release of information, data, facts and analysis providing advice for the purpose of ministerial decisions. Too much discretion is left in the hands of Ministers and officials. One after another, my right hon. Friends the Members for Sutton Coldfield and for Haltemprice and Howden (Mr. Davis), the right hon. Member for South Shields and for Caithness, Sutherland and Easter Ross (Mr. Maclennan), the hon. Members for Hillsborough, for Cannock Chase (Dr. Wright) and for Stoke-on-Trent, Central (Mr. Fisher) expressed dissatisfaction with the Bill in that important regard.
The right hon. Member for South Shields supported the contention of my right hon. Friend the Member for Haltemprice and Howden that Lord Butler had it right when he said that an arrangement could be made to segregate information from advice, but the Home Secretary, as ever, seems unconvinced. We know that 195 Members, in the last Session, signed an early-day motion tabled as recently as 19 October, referring to the Government's failure in this respect. They also expressed concern about the fact that the Information Commissioner would have inadequate powers to release information on the grounds of public interest. That, too, characterised the debate: speaker after speaker made the point that there must be a degree of compulsion that is sadly lacking in the Bill.
This, we believe, is the litmus test of a commitment to greater openness. The debate has demonstrated that the Government have failed miserably in that regard. Conveniently, it will still be Ministers and officials—the Sir Humphreys to whom my hon. Friend the Member for Hertsmere (Mr. Clappison) referred—who decide whether information should be released. That is not progress.
The Home Secretary's detailed explanation of the Information Commissioner's powers to require release managed to confuse even the right hon. Member for South Shields, who probably knows more about this subject than anyone else. The Home Secretary was uncharacteristically disingenuous—
§ Mr. Greenway
I am being kind to him. He knows full well that many hon. Members are concerned that the commissioner will have no power to have the final word on whether information should be released in the public interest. Nor does the Bill offer real progress on the kind of information that should generally be available. Hon. Member after hon. Member has confirmed that the Bill represents a step back from the code of practice on access to Government information, which we published in 1994 and strengthened in 1997.
The hon. Member for Stoke-on-Trent, Central said that the code had virtues. My right hon. and learned Friend the Member for North-East Bedfordshire said that it was a positive step forward. The hon. Member for Hillsborough was good enough to say that she had welcomed it. In the White Paper, Ministers criticised the code for having too many exemptions. There were 15, but the Bill contains more than 20–12 pages of them—and provides no proper test of harm. Too many exemptions will make it more difficult for people to get hold of information. The Bill therefore represents a significant 785 shift of attitude from what Ministers said both in opposition and in a White Paper that promised a king's banquet rather than a Bill that delivers a dog's breakfast—and a complex one at that.
§ The Minister of State, Home Office (Mr. Paul Boateng)
The hon. Gentleman has to do better than that.
§ Mr. Greenway
The right hon. Gentleman has not been listening to the debate. Speaker after speaker has expressed disquiet about the Bill. The hon. Member for Hillsborough called it a lost opportunity. We have heard time and again that it does not go far enough. We are prepared to give the Bill a Second Reading and to take it on trust—"hope" was the word used by the right hon. Member for South Shields—that we will be able to amend the Bill in Committee. However, what the Home Secretary has said is only marginally encouraging. We heard his usual noises about listening to arguments, but the Bill falls significantly short in many key areas.
The right hon. Member for Caithness, Sutherland and Easter Ross hoped that the Home Secretary would be susceptible to change, but talked about the Government's being in full flight from the proposals of the White Paper. He said that the Bill was timid, and that the power of Ministers to decide the public interest was perverse. He supported the right hon. Member for South Shields and the hon. Member for Warrington, North (Helen Jones) on the need for a purpose clause, which the code covers.
How bad would the Bill have to be before the Home Secretary and his colleagues would support a reasoned amendment that seeks to censure the Government's approach, asks the Government to reconsider and recognises that the Bill makes more information secret than our code did? Although they agree with our unresolved criticisms of the Bill, many hon. Members have criticised our reasoned amendment.
§ Mr. Greenway
I do not have time.
What is wrong with asking the House to ask the Government to reconsider the Bill and produce a better one? The Bill is less effective than the code, and we are being asked to take a great deal on trust.
The Home Secretary referred to the two devices used in Australia to delay publication of information. His own device is remarkably transparent: publish a Bill, knowing that he has to give ground on some issues, allow lots of consultation with a Select Committee and pre-legislative scrutiny, then publish a revised Bill, which his hon. Friends can say today is much improved. Throughout the debate, however, one speaker after another has expressed continuing fundamental concerns about the Bill.
That is why the House is entitled to ask the Government why they are in retreat from their White Paper proposals. Why have they changed their mind? Have they lost their nerve, or has the experience of power blunted their enthusiasm for greater transparency? Or is it, as the hon. Member for The Wrekin (Mr. Bradley) said, because civil servants have managed to introduce change without giving up control? That says it all.
786 Perhaps the right hon. Member for South Shields, for whom I have the highest regard as he well knows, will follow the example of some of his right hon. Friends and publish his memoirs at an early date, so that we can be enlightened further as to why the Government have had such a remarkable change of heart.
While we have serious criticisms of the Government's revised approach, which are reflected in our amendment, we want to stress our commitment to strengthening the provisions in the Bill if the House gives it a Second Reading—[Interruption.] The Home Secretary should calm himself and wait and see. Had he listened to the entire debate, as I have, he could not feel comfortable as a senior Minister in a Government when one after another of his Beck Benchers has criticised the key elements of the Bill. Had they more courage, they would be joining us in the Lobby.
Our approach to the Bill will reflect the positive attitude displayed in our code of practice, so that the emphasis is clearly one of a presumption in favour of release of information, rather than in secrecy. The hon. Member for Warrington, North spoke in support of a statutory right to disclosure. That is not what is in the Bill. We will try to remove several of the class exemptions, some of which do not sit easily with a supposed culture of openness. We will also work to ensure that the provisions of the legislation are enforced by a body that can force public authorities—that has been the demand in the debate—and Governments to release information in the public interest.
As my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) explained in her opening remarks, our preference would have been for an information ombudsman and a role for Parliament—for this House—in overseeing the release of information. The hon. Member for Hillsborough said that, in reality, it will be a David and Goliath situation and that we ought to trust the independent arbiter. We agree and, to ensure that the Bill is strengthened in that regard, we shall seek support from Labour Members in Committee and on Report—which will be an interesting event judging by what we have heard tonight. It cannot be right that Ministers and officials have the final say on whether information is released.
The hon. Member for Stoke-on-Trent, Central and my hon. Friend the Member for Aldridge-Brownhills asked that the Bill be committed to a Committee of the whole House. I have much sympathy with their argument. Having heard so much opposition to the Government's measures from their Back Benchers, we would relish such a Committee.
The Home Secretary claims that the Bill represents a sea change in providing access to information, and that the culture of secrecy is over. He asserts that introducing a statutory right heralds a new era of openness. The debate has shown that many of his hon. Friends, as well as Conservative Members, are not fully convinced of that. They have demonstrated serious reservations about key aspects of the Government's proposals. The general mood of the debate demands that the Home Secretary should think again. Right hon. and hon. Members can reinforce that concern by supporting our reasoned amendment.
§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien)
The hon. Member for Ryedale (Mr. Greenway) has some brass 787 neck. In 18 years, the Tories failed to create any statutory right to know. Their code of practice was non-statutory and effectively unenforceable. The hon. Member for Aldridge-Brownhills (Mr. Shepherd) said from the Conservative Benches that the Conservative Government set their face against freedom of information legislation. Now they have the unmitigated gall to criticise a Government who are creating a statutory right to know. The Tory party is without credibility on freedom of information. Tory Members' pious posturing is a case of, "Do as I say and not as I did for the past 18 years".
My hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher) described the speech of the right hon. Member for Maidstone and The Weald (Miss Widdecombe) as a sad and confused affair. I chide him. He was too harsh. Let me defend the right hon. Lady. She has a difficult brief. Having done nothing to end the culture of secrecy in Whitehall for 18 years, she now opposes a Government who are acting to tackle it. It is difficult for her. At one point, she favoured keeping things as they were—the old inadequate code. Then she wanted to amend the Bill to strengthen and support it. Then she wanted to deny the Bill a Second Reading and prevent any amendments being tabled.
The right hon. Lady told us that she had done her homework and that there was some logic to the various U-turns. By the end of her speech, I thought that they had become S-bends. I am sure that there was logic somewhere, but she could not explain it to us, just as she could not explain why she kept secret a pile of prison reports on her desk for a year. At least when criticisms come from the Liberal Democrats or from our own Back Benchers, they have the merit of coming from those who have a record of supporting a statutory right to know. We have the opportunity in the weeks to come in Committee to deal in depth with criticisms of the Bill, but I will deal with some of the main ones today, including the main Conservative ones.
Disagreements about a Bill containing such detail are inevitable, but let us set out the common ground between the Government and many of my colleagues on the Back Benches who expressed concerns and made excellent contributions to the debate. It was a very good debate. The speech by my right hon. Friend the Member for South Shields (Dr. Clark) received warm and deserved tributes from many hon. Members. It was an important contribution to the debate. Excellent speeches were also made by my hon. Friends the Members for Stoke-on-Trent, Central, for Sheffield, Hillsborough (Helen Jackson) and for Warrington, North (Helen Jones). A thoughtful speech was made by the right hon. Member for Haltemprice and Howden (Mr. Davis).
The level of agreement is profound. We all agree that the Whitehall that we inherited is too secretive. It is unnecessarily secretive. It is secretive by culture, and unnecessary secrecy can be profoundly undemocratic and corrosive, as my hon. Friend the Member for Warrington, North said.
As the hon. Member for Hertsmere (Mr. Clappison) said, there is a mood for greater openness in the House. The Government and Whitehall recognise that there is a need to be more open, but I say to our critics that the advocates of freedom of information do not have a monopoly on righteousness. There is a tension between 788 the right to know and other values. If we were debating a right to privacy today, many of those who advocate freedom of information might also advocate a right to privacy for Britain.
The Government hold information about individuals. They usually have no consent to make that public. Journalists may well want access to information held by Government, but it is not always right to hand it over. What may be suitable for The Guardian is not necessarily right for Britain.
Companies give substantial amounts of information to Government about commercially confidential matters—such as their financial intentions, their approach to their competitors and the internal affairs of their business. Interestingly, under United States freedom of information legislation, companies made up to 60 per cent. of the requests for information because they were trying to find out about the commercial secrets held by their competitors. If British-based companies believed that, under freedom of information legislation, our Government would unnecessarily hand over commercially confidential information to the press or competitors, it would restrict our ability to obtain otherwise sensitive information about financial movements, the environment and health and safety issues.
My hon. Friend the Member for Warrington, North suggested that an explicit public interest in disclosure should be referred to in the exemption for information. I point out to her that clause 13 contains a requirement to consider the public interest in disclosure.
People also expect Government to be run according to the principle of collective responsibility. Parties are the basis of democratic government. By their nature, parties are coalitions and there must be room for legitimate discussion within any Government. There must also be room for senior officials to advise Ministers without their advice appearing on the front page of national newspapers a little later.
My hon. Friend the Member for Cannock Chase (Dr. Wright) rightly referred to the need for a legitimate area for policy formation—limited, yes, but necessary. Government is still too secret, but the public interest is also served by some recognition of a right to privacy, some rights to commercial confidentiality and the right to develop an efficient policy advice system within Government—as well as the right to know.
None of those values is absolute. There can be no absolute right to privacy, confidentiality or internal Government debate, any more than there is an absolute right to information in all circumstances. Those are rights for the balancing. There is a natural and creative tension. It is perfectly legitimate and proper for each country to determine how, within its culture and history, it gives different weight in its laws to each of those values. Ireland, New Zealand, Canada, the United States and other countries have struck the balance in their own way. They may all be useful examples, but they should not be regarded as templates forcing us down a particular route. We must seek our own solution in robust debate in this House and in this country.
Some people have a tendency to point to all the most liberal propositions in the legislation in other countries. They then add up all those points and say that a failure to meet the test of being the most liberal on all counts is a betrayal. That is not what we promised in our manifesto.
789 The Bill delivers a sensible and balanced package, reflecting the importance that we attach to freedom of information, as well as to privacy of the individual, while not permitting the abuse of our legislation for commercial advantage; it will enable effective democratic government.
We welcome the chance to debate those issues with colleagues. We have shown that we are willing to listen and we shall continue to do so. The recognition of the need for balance is essential. I welcome that recognition, especially in the contributions made by my right hon. Friend the Member for South Shields and my hon. Friend the Member for Cannock Chase. I point out to my colleagues that, although various newspapers—including The Guardian—have orchestrated a principled campaign on this matter, what is right for journalists is not necessarily right for us.
My hon. Friend the Member for Hillsborough asked whether Ministers were entrenched. I assure her that we are not. We are convinced that we have found the right balance. We do not have a monopoly on wisdom in these matters, but we are prepared to engage in vigorous debate and we are not afraid to listen.
Freedom of information is a three-stage process. First, hon. Members should remember that, in the Data Protection Act 1998, the Government have already granted the right to access to personal files held by public authorities. Many other countries regard that as the core of what they call freedom of information. In a sense, we already have in place provisions that enable members of the public to look at their files.
In the Bill, we are in the process of implementing the second stage—access to wider Government information. The third stage has also begun, with the publication of yesterday's strategy to begin opening up the culture of Whitehall and other public authorities.
Some countries have tough FOI laws but have had limited changes in the culture of the bureaucracy, so FOI has had limited success in creating openness. Other countries, such as New Zealand, have concentrated less on the wording of the legislation than on the cultural changes and have achieved a greater degree of openness. Legislation is only part of the process. It provides the essential legal base, but creating a new culture of openness is in many ways the real test.
Yesterday, the Home Office published the report of a working party on openness in the public sector, which demanded that public authorities now start the process of putting in place that culture of greater openness. To some extent, as has been said, my right hon. Friend the Home Secretary has already published a large amount of information previously held secret. We are in the process now of creating a new culture in Whitehall and among public authorities. [Interruption.] The right hon. Member for Maidstone and The Weald says that it was done under her code of practice. It was not under her code of practice; it was a decision by Ministers that they wanted to be more open, unlike the previous Government. The present Government were prepared to publish these things.
A classic example, which the right hon. Member for Maidstone and The Weald should remember, is the seven piles of documents on the guidance given to immigration officers, which she wanted to keep secret and which my 790 right hon. Friend the Home Secretary and I decided to put into the public arena. That information has done no damage to immigration controls. That was an example not of the right hon. Lady's code of practice, but of moving forward on freedom of information voluntarily.
However, we need to do more than give Ministers the right to move forward voluntarily. We need a new culture in Whitehall and among all public authorities. Some have asked, as did my right hon. Friend the Member for South Shields, what if the Government should change? What if there should be some other Government who were not as open as the present Government are? That is why the cultural change is necessary. We intend to push forward this agenda, building stage upon stage to create a new openness in Government, which will remain for decades to come. That is what the Government are committed to, and that is what we intend to deliver.
The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) voiced several criticisms about the number of clauses dealing with exemptions. He claimed that there were 24 exemptions in the Bill. There are in fact 25 clauses dealing with exemptions, but most of the subject areas remain largely the same as they were in the White Paper "Your Right to Know"—national security, defence, international relations, law enforcement and others with which the right hon. Gentleman is familiar. However, we have added Parliament and other bodies, such as the National Audit Office, to the exempted area. We must protect parliamentary privilege, so we have had to add some exemptions for them. Because we have broadened the Bill, we have had to add some narrow exemptions.
The Bill will deliver a statutory right to know in Britain for the first time ever. There will be more information about health authorities delivering services, about the police dealing with burglaries and thefts, about schools, about local councils and about every area of government, including local government, and how our public authorities work.
My hon. Friend the Member for The Wrekin (Mr. Bradley) said that the Bill marks a fundamental shift of power from the state to the people. Indeed it does. The Conservatives talked about FOI; we shall deliver it. All that they came up with was a non-statutory code. I confess that I did not even know about it, and I suspect that most people did not. The Conservatives' FOI code was kept secret; we need to ensure that we are now public. The Bill will deliver openness and deserves support. I commend it to the House.
Question put, That the amendment be made:—
§ The House divided: Ayes 138, Noes 377.794
|Division No. 12]||[9.59 pm|
|Ainsworth, Peter (E Surrey)||Brazier, Julian|
|Amess, David||Bruce, Ian (S Dorset)|
|Arbuthnot, Rt Hon James||Burns, Simon|
|Atkinson, Peter (Hexham)||Butterfill, John|
|Beggs, Roy||Cash, William|
|Bercow, John||Chapman, Sir Sydney (Chipping Barnet)|
|Body, Sir Richard||Clappison, James|
|Boswell, Tim||Clarke, Rt Hon Kenneth (Rushcliffe)|
|Bottomley, Peter (Worthing W)|
|Bottomley, Rt Hon Mrs Virginia||Clifton-Brown, Geoffrey|
|Brady, Graham||Collins, Tim|
|Colvin, Michael||Malins, Humfrey|
|Cormack, Sir Patrick||Maples, John|
|Cran, James||Mates, Michael|
|Curry, Rt Hon David||Maude, Rt Hon Francis|
|Davis, Rt Hon David (Haltemprice & Howden)||Mawhinney, Rt Hon Sir Brian|
|May, Mrs Theresa|
|Donaldson, Jeffrey||Moss, Malcolm|
|Dorrell, Rt Hon Stephen||Nicholls, Patrick|
|Duncan Smith, Iain||Norman, Archie|
|Evans, Nigel||O'Brien, Stephen (Eddisbury)|
|Faber, David||Ottaway, Richard|
|Fabricant, Michael||Page, Richard|
|Fallon, Michael||Paisley, Rev Ian|
|Right, Howard||Paterson, Owen|
|Forth, Rt Hon Eric||Pickles, Eric|
|Fowler, Rt Hon Sir Norman||Portillo, Rt Hon Michael|
|Fox, Dr Liam||Prior, David|
|Gale, Roger||Randall, John|
|Garnier, Edward||Robertson, Laurence|
|Gibb, Nick||Roe, Mrs Marion (Broxbourne)|
|Gill, Christopher||Ross, William (E Lond'y)|
|Gorman, Mrs Teresa||Ruffley, David|
|Gray, James||St Aubyn, Nick|
|Green, Damian||Sayeed, Jonathan|
|Greenway, John||Shephard, Rt Hon Mrs Gillian|
|Grieve, Dominic||Simpson, Keith (Mid-Norfolk)|
|Gummer, Rt Hon John||Soames, Nicholas|
|Hamilton, Rt Hon Sir Archie||Spelman, Mrs Caroline|
|Hammond, Philip||Spicer, Sir Michael|
|Hawkins, Nick||Spring, Richard|
|Hayes, John||Stanley, Rt Hon Sir John|
|Heald, Oliver||Steen, Anthony|
|Heathcoat-Amory, Rt Hon David||Streeter, Gary|
|Heseltine, Rt Hon Michael||Swayne, Desmond|
|Hogg, Rt Hon Douglas||Tapsell, Sir Peter|
|Horam, John||Taylor, Ian (Esher & Walton)|
|Howard, Rt Hon Michael||Taylor, John M (Solihull)|
|Howarth, Gerald (Aldershot)||Taylor, Sir Teddy|
|Hunter, Andrew||Thompson, William|
|Jack, Rt Hon Michael||Townend, John|
|Jackson, Robert (Wantage)||Tredinnick, David|
|Jenkin, Bernard||Trend, Michael|
|Key, Robert||Tyrie, Andrew|
|King, Rt Hon Tom (Bridgwater)||Viggers, Peter|
|Kirkbride, Miss Julie||Wardle, Charles|
|Laing, Mrs Eleanor||Waterson, Nigel|
|Lansley, Andrew||Whitney, Sir Raymond|
|Letwin, Oliver||Whittingdale, John|
|Lewis, Dr Julian (New Forest E)||Widdecombe, Rt Hon Miss Ann|
|Lidington, David||Wilkinson, John|
|Lilley, Rt Hon Peter||Willetts, David|
|Lloyd, Rt Hon Sir Peter (Fareham)||Wilshire, David|
|Loughton, Tim||Winterton, Mrs Ann (Congleton)|
|Luff, Peter||Woodward, Shaun|
|Lyell, Rt Hon Sir Nicholas||Yeo, Tim|
|McIntosh, Miss Anne||Young, Rt Hon Sir George|
|MacKay, Rt Hon Andrew|
|Maclean, Rt Hon David||Tellers for the Ayes:|
|McLoughlin, Patrick||Mr. Stephen Day and|
|Madel, Sir David||Mrs. Jacqui Lait.|
|Abbott, Ms Diane||Ballard, Jackie|
|Ainger, Nick||Barnes, Harry|
|Ainsworth, Robert (Cov'try NE)||Barron, Kevin|
|Alexander, Douglas||Battle, John|
|Allan, Richard||Bayley, Hugh|
|Allen, Graham||Beard, Nigel|
|Anderson, Janet (Rossendale)||Beckett, Rt Hon Mrs Margaret|
|Ashdown, Rt Hon Paddy||Beith, Rt Hon A J|
|Ashton, Joe||Bell, Martin (Tatton)|
|Atherton, Ms Candy||Bell, Stuart (Middlesbrough)|
|Atkins, Charlotte||Benn, Hilary (Leeds C)|
|Austin, John||Benn, Rt Hon Tony (Chesterfield)|
|Baker, Norman||Bennett, Andrew F|
|Benton, Joe||Dawson, Hilton|
|Bermingham, Gerald||Dean, Mrs Janet|
|Berry, Roger||Denham, John|
|Betts, Clive||Donohoe, Brian H|
|Blackman, Liz||Doran, Frank|
|Blears, Ms Hazel||Dowd, Jim|
|Blizzard, Bob||Drew, David|
|Boateng, Rt Hon Paul||Dunwoody, Mrs Gwyneth|
|Borrow, David||Eagle, Maria (L'pool Garston)|
|Bradley, Keith (Withington)||Edwards, Huw|
|Bradley, Peter (The Wrekin)||Efford, Clive|
|Brake, Tom||Ellman, Mrs Louise|
|Brand, Dr Peter||Ennis, Jeff|
|Breed, Colin||Etherington, Bill|
|Brinton, Mrs Helen||Ewing, Mrs Margaret|
|Brown, Rt Hon Nick (Newcastle E)||Feam, Ronnie|
|Brown, Russell (Dumfries)||Reid, Rt Hon Frank|
|Browne, Desmond||Fisher, Mark|
|Bruce, Malcolm (Gordon)||Fitzpatrick, Jim|
|Burgon, Colin||Fitzsimons, Lorna|
|Burnett, John||Flint, Caroline|
|Burstow, Paul||Flynn, Paul|
|Butler, Mrs Christine||Follett, Barbara|
|Byers, Rt Hon Stephen||Foster, Rt Hon Derek|
|Caborn, Rt Hon Richard||Foster, Don (Bath)|
|Campbell, Rt Hon Menzies (NE Fife)||Foster, Michael Jabez (Hastings)|
|Foster, Michael J (Worcester)|
|Campbell, Ronnie (Blyth V)||Foulkes, George|
|Campbell-Savours, Dale||Fyfe, Maria|
|Cann, Jamie||Gapes, Mike|
|Caplin, Ivor||Gardiner, Barry|
|Caton, Martin||George, Andrew (St Ives)|
|Cawsey, Ian||George, Bruce (Walsall S)|
|Chapman, Ben (Wirral S)||Gerrard, Neil|
|Chaytor, David||Gibson, Dr Ian|
|Chidgey, David||Gilroy, Mrs Linda|
|Church, Ms Judith||Godman, Dr Norman A|
|Clapham, Michael||Godsiff, Roger|
|Clark, Rt Hon Dr David (S Shields)||Golding, Mrs Llin|
|Clark, Dr Lynda (Edinburgh Pentlands)||Gordon, Mrs Eileen|
|Griffiths, Jane (Reading E)|
|Clark, Paul (Gillingham)||Griffiths, Nigel (Edinburgh S)|
|Clarke, Eric (Midlothian)||Griffiths, Win (Bridgend)|
|Clarke, Rt Hon Tom (Coatbridge)||Grocott, Bruce|
|Clarke, Tony (Northampton S)||Grogan, John|
|Clelland, David||Gunnell, John|
|Coaker, Vernon||Hain, Peter|
|Coffey, Ms Ann||Hall, Mike (Weaver Vale)|
|Cohen, Harry||Hall, Patrick (Bedford)|
|Coleman, Iain||Hamilton, Fabian (Leeds NE)|
|Colman, Tony||Hancock, Mike|
|Cook, Frank (Stockton N)||Hanson, David|
|Cooper, Yvette||Harman, Rt Hon Ms Harriet|
|Corbett, Robin||Harvey, Nick|
|Corbyn, Jeremy||Heal, Mrs Sylvia|
|Cotter, Brian||Healey, John|
|Cousins, Jim||Heath, David (Somerton & Frome)|
|Cox, Tom||Henderson, Doug (Newcastle N)|
|Cranston, Ross||Henderson, Ivan (Harwich)|
|Crausby, David||Hepburn, Stephen|
|Cryer, Mrs Ann (Keighley)||Heppell, John|
|Cryer, John (Hornchurch)||Hesford, Stephen|
|Cummings, John||Hewitt, Ms Patricia|
|Cunliffe, Lawrence||Hill, Keith|
|Cunningham, Rt Hon Dr Jack (Copeland)||Hinchliffe, David|
|Hodge, Ms Margaret|
|Cunningham, Jim (Cov'try S)||Hoey, Kate|
|Curtis-Thomas, Mrs Claire||Hoon, Fit Hon Geoffrey|
|Dalyell, Tam||Hope, Phil|
|Darvill, Keith||Howarth, Alan (Newport E)|
|Davey, Edward (Kingston)||Howarth, George (Knowsley N)|
|Davey, Valerie (Bristol W)||Hoyle, Lindsay|
|Davidson, Ian||Hughes, Ms Beverley (Stretford)|
|Davies, Rt Hon Denzil (Llanelli)||Hughes, Kevin (Doncaster N)|
|Davis, Rt Hon (B'ham Hodge H)||Hughes, Simon (Southwark N)|
|Hutton, John||Morgan, Rhodri (Cardiff W)|
|Iddon, Dr Brian||Morley, Elliot|
|Illsley, Eric||Morris, Rt Hon Ms Estelle (B'ham Yardley)|
|Jackson, Helen (Hillsborough)|
|Jenkins, Brian||Morris, Rt Hon Sir John (Aberavon)|
|Johnson, Alan (Hull W & Hessle)|
|Johnson, Miss Melanie (Welwyn Hatfield)||Mountford, Kali|
|Mowlam, Rt Hon Marjorie|
|Jones, Rt Hon Barry (Alyn)||Mudie, George|
|Jones, Helen (Warrington N)||Mullin, Chris|
|Jones, Jon Owen (Cardiff C)||Murphy, Denis (Wansbeck)|
|Jones, Dr Lynne (Selly Oak)||Murphy, Jim (Eastwood)|
|Jones, Martyn (Clwyd S)||Norris, Dan|
|Jowell, Rt Hon Ms Tessa||Oaten, Mark|
|Kaufman, Rt Hon Gerald||O'Brien, Bill (Normanton)|
|Keeble, Ms Sally||O'Brien, Mike (N Warks)|
|Keen, Alan (Feltham & Heston)||Olner, Bill|
|Keen, Ann (Brentford & Isleworth)||O'Neill, Martin|
|Keetch, Paul||Öpik, Lembit|
|Kemp, Fraser||Organ, Mrs Diana|
|Kennedy, Rt Hon Charles (Ross Skye & Inverness W)||Osborne, Ms Sandra|
|Palmer, Dr Nick|
|Kennedy, Jane (Wavertree)||Pearson, Ian|
|Kidney, David||Pendry, Tom|
|Kilfoyle, Peter||Perham, Ms Linda|
|Kumar, Dr Ashok||Pickthall, Colin|
|Ladyman, Dr Stephen||Pike, Peter L|
|Lawrence, Mrs Jackie||Plaskitt, James|
|Laxton, Bob||Pond, Chris|
|Lepper, David||Powell, Sir Raymond|
|Leslie, Christopher||Prentice, Ms Bridget (Lewisham E)|
|Levitt, Tom||Prentice, Gordon (Pendle)|
|Lewis, Ivan (Bury S)||Primarolo, Dawn|
|Linton, Martin||Prosser, Gwyn|
|Livingstone, Ken||Purchase, Ken|
|Livsey, Richard||Quin, Rt Hon Ms Joyce|
|Lloyd, Tony (Manchester C)||Quinn, Lawrie|
|Llwyd, Elfyn||Radice, Rt Hon Giles|
|Lock, David||Rammell, Bill|
|Love, Andrew||Rapson, Syd|
|McAvoy, Thomas||Raynsford, Nick|
|McCafferty, Ms Chris||Reed, Andrew (Loughborough)|
|McDonagh, Siobhain||Reid, Rt Hon Dr John (Hamilton N)|
|Macdonald, Calum||Rendel, David|
|McDonnell, John||Roche, Mrs Barbara|
|McFall, John||Rogers, Allan|
|McGuire, Mrs Anne||Rooker, Rt Hon Jeff|
|McIsaac, Shona||Rooney, Terry|
|McKenna, Mrs Rosemary||Ross, Ernie (Dundee W)|
|Mackinlay, Andrew||Rowlands, Ted|
|Maclennan, Rt Hon Robert||Roy, Frank|
|McNamara, Kevin||Ruane, Chris|
|McNulty, Tony||Ruddock, Joan|
|Mactaggart, Fiona||Russell, Bob (Colchester)|
|McWilliam, John||Ryan, Ms Joan|
|Mahon, Mrs Alice||Salter, Martin|
|Mallaber, Judy||Sanders, Adrian|
|Marsden, Gordon (Blackpool S)||Sarwar, Mohammad|
|Marsden, Paul (Shrewsbury)||Savidge, Malcolm|
|Marshall, David (Shettleston)||Sawford, Phil|
|Marshall-Andrews, Robert||Sedgemore, Brian|
|Martlew, Eric||Shaw, Jonathan|
|Maxton, John||Sheerman, Barry|
|Meacher, Rt Hon Michael||Sheldon, Rt Hon Robert|
|Meale, Alan||Shipley, Ms Debra|
|Merron, Gillian||Short, Rt Hon Clare|
|Michie, Bill (Shef'ld Heeley)||Simpson, Alan (Nottingham S)|
|Michie, Mrs Ray (Argyll & Bute)||Smith, Rt Hon Andrew (Oxford E)|
|Milburn, Rt Hon Alan||Smith, Angela (Basildon)|
|Miller, Andrew||Smith, John (Glamorgan)|
|Mitchell, Austin||Smith, Llew (Blaenau Gwent)|
|Moffatt, Laura||Smith, Sir Robert (W Ab'd'ns)|
|Moonie, Dr Lewis||Snape, Peter|
|Moore, Michael||Sotey, Clive|
|Moran, Ms Margaret||Southworth, Ms Helen|
|Morgan, Ms Julie (Cardiff N)||Spellar, John|
|Squire, Ms Rachel||Twigg, Derek (Halton)|
|Steinberg, Gerry||Tyler, Paul|
|Stevenson, George||Tynan, Bill|
|Stewart, David (Inverness E)||Vis, Dr Rudi|
|Stewart, Ian (Eccles)||Walley, Ms Joan|
|Stinchcombe, Paul||Ward, Ms Claire|
|Stoate, Dr Howard||Wareing, Robert N|
|Strang, Rt Hon Dr Gavin||Watts, David|
|Straw, Rt Hon Jack||Webb, Steve|
|Stringer, Graham||White, Brian|
|Stuart, Ms Gisela||Whitehead, Dr Alan|
|Stunell, Andrew||Wicks, Malcolm|
|Sutcliffe, Gerry||Williams, Rt Hon Alan (Swansea W)|
|Taylor, Rt Hon Mrs Ann (Dewsbury)|
|Williams, Alan W (E Carmarthen)|
|Taylor, Ms Dari (Stockton S)||Williams, Mrs Betty (Conwy)|
|Taylor, David (NW Leics)||Willis, Phil|
|Taylor, Matthew (Truro)||Winnick, David|
|Temple-Morris, Peter||Winterton, Ms Rosie (DoncasterC)|
|Thomas, Gareth R (Harrow W)||Wise, Audrey|
|Timms, Stephen||Wood, Mike|
|Tipping, Paddy||Woolas, Phil|
|Todd, Mark||Wray, James|
|Tonge, Dr Jenny||Wright, Anthony D (Gt Yarmouth)|
|Trickett, Jon||Wright, Dr Tony (Cannock)|
|Truswell, Paul||Wyatt, Derek|
|Turner, Dennis (Wolverh'ton SE)|
|Turner, Dr Desmond (Kemptown)||Tellers for the Noes:|
|Turner, Dr George (NW Norfolk)||Mr. David Jamieson and|
|Turner, Neil (Wigan)||Mr. Greg Pope.|
§ Question accordingly negatived.
Main Question put forthwith, pursant to Standing Order No. 62 (Amendment on Second or Third Reading), and agreed to.
Bill accordingly read a Second time.
Motion made, and Question put forthwith, pursuant to Standing Order No. 63 (Committal of Bills),
That the Bill be committed to a Committee to the whole House.—[Mr. Greeway.]
The House divided: Ayes 178, Noes 327.
|Division No. 13]||[10.15 pm|
|Ainsworth, Peter (E Surrey)||Burstow, Paul|
|Allan, Richard||Butterfill, John|
|Amess, David||Campbell, Rt Hon Menzies (NE Fife)|
|Arbuthnot, Rt Hon James|
|Ashdown, Rt Hon Paddy||Cash, William|
|Atkinson, Peter (Hexham)||Chapman, Sir Sydney (Chipping Barnet)|
|Ballard, Jackie||Chidgey, David|
|Beggs, Roy||Clappison, James|
|Beith, Rt Hon A J||Clarke, Rt Hon Kenneth (Rushcliffe)|
|Bell, Martin (Tatton)|
|Bercow, John||Clifton-Brown, Geoffrey|
|Blunt, Crispin||Collins, Tim|
|Body, Sir Richard||Colvin, Michael|
|Boswell, Tim||Cormack, Sir Patrick|
|Bottomley, Peter (Worthing W)||Cotter, Brian|
|Bottomley, Rt Hon Mrs Virginia||Cran, James|
|Brady, Graham||Curry, Rt Hon David|
|Brake, Tom||Davey, Edward (Kingston)|
|Brand, Dr Peter||Davis, Rt Hon David (Haltemprice & Howden)|
|Breed, Colin||Donaldson, Jeffrey|
|Brooke, Rt Hon Peter||Dorrell, Rt Hon Stephen|
|Bruce, Ian (S Dorset)||Duncan Smith, Iain|
|Bruce, Malcolm (Gordon)||Emery, Rt Hon Sir Peter|
|Burnett, John||Evans, Nigel|
|Burns, Simon||Ewing, Mrs Margaret|
|Faber, David||Moore, Michael|
|Fabricant, Michael||Moss, Malcolm|
|Feam, Ronnie||Norman, Archie|
|Flight, Howard||Oaten, Mark|
|Forth, Rt Hon Eric||O'Brien, Stephen (Eddisbury)|
|Foster, Don (Bath)||Öpik, Lembit|
|Fowler, Rt Hon Sir Norman||Ottaway, Richard|
|Fox, Dr Liam||Page, Richard|
|Gale, Roger||Paisley, Rev Ian|
|Garnier, Edward||Paterson, Owen|
|George, Andrew (St Ives)||Pickles, Eric|
|Gibb, Nick||Portillo, Rt Hon Michael|
|Gill, Christopher||Prior, David|
|Gorman, Mrs Teresa||Randall, John|
|Gray, James||Rendel, David|
|Green, Damian||Robertson, Laurence|
|Greenway, John||Roe, Mrs Marion (Broxboume)|
|Grieve, Dominic||Ross, William (E Lond'y)|
|Gummer, Rt Hon John||Ruffley, David|
|Hamilton, Rt Hon Sir Archie||Russell, Bob (Colchester)|
|Hammond, Philip||Salter, Martin|
|Hancock, Mike||Sanders, Adrian|
|Harvey, Nick||Sayeed, Jonathan|
|Hawkins, Nick||Shephard, Rt Hon Mrs Gillian|
|Hayes, John||Simpson, Keith (Mid-Norfolk)|
|Heald, Oliver||Smith, Sir Robert (W Ab'd'ns)|
|Heath, David (Somerton & Frome)||Soames, Nicholas|
|Heathcoat-Amory, Rt Hon David||Spelman, Mrs Caroline|
|Heseltine, Rt Hon Michael||Spicer, Sir Michael|
|Hogg, Rt Hon Douglas||Spring, Richard|
|Horam, John||Stanley, Rt Hon Sir John|
|Howard, Rt Hon Michael||Steen, Anthony|
|Howarth, Gerald (Aldershot)||Streeter, Gary|
|Hughes, Simon (Southwark N)||Stunell, Andrew|
|Hunter, Andrew||Swayne, Desmond|
|Jack, Rt Hon Michael||Syms, Robert|
|Jackson, Robert (Wantage)||Jenkin, Bernard|
|Tapsell, Sir Peter|
|Taylor, Ian (Esher & Walton)|
|Keetch Paul||Taylor, John M (Solihull)|
|Taylor, Matthew (Truro)|
|Kennedy, Rt Hon Charles (Ross Skye & Inverness W)||Taylor, Sir Teddy|
|Key, Robert||Thompson, William|
|Tonge, Dr Jenny|
|King, Rt Hon Tom (Bridgwater)||Townend, John|
|Kirkbride, Miss Julie||Tredinnick, David|
|Laing, Mrs Eleanor||Trend, Michael|
|Lansley, Andrew||Tyler, Paul|
|Letwin, Oliver||Tyrie, Andrew|
|Lewis, Dr Julian (New Forest E)||Wardle, Charles|
|Lidington, David||Waterson, Nigel|
|Livsey, Richard||Webb, Steve|
|Lloyd, Rt Hon Sir Peter (Fareham)||Whitney, Sir Raymond|
|Llwyd, Elfyn||Whittingdale, John|
|Loughton, Tim||Widdecombe, Rt Hon Miss Ann|
|Luff, Peter||Wilkinson, John|
|Lyell, Rt Hon Sir Nicholas||Willetts, David|
|McIntosh, Miss Anne||Willis, Phil|
|MacKay, Rt Hon Andrew||Wilshire, David|
|Maclean, Rt Hon David||Winterton, Mrs Ann (Congleton)|
|Maclennan, Rt Hon Robert||Woodward, Shaun|
|McLoughlin, Patrick||Woolas, Phil|
|Madel, Sir David||Yeo, Tim|
|Malins, Humfrey||Young, Rt Hon Sir George|
|Maude, Rt Hon Francis|
|Mawhinney, Rt Hon Sir Brian||Tellers for the Ayes:|
|May, Mrs Theresa||Mr. Stephen Day and|
|Michie, Mrs Ray (Argyll & Bute)||Mrs. Jacqui Lait.|
|Abbott, Ms Diane||Atherton, Ms Candy|
|Ainger, Nick||Atkins, Charlotte|
|Ainsworth Robert (Cov'try NE)||Austin, John|
|Alexander, Douglas||Barron, Kevin|
|Allen, Graham||Battle, John|
|Anderson, Janet (Rossendale)||Bayley, Hugh|
|Ashton, Joe||Beard, Nigel|
|Beckett, Rt Hon Mrs Margaret||Eagle, Maria (L'pool Garston)|
|Bell, Stuart (Middlesbrough)||Edwards, Huw|
|Benn, Hilary (Leeds C)||Efford, Clive|
|Benn, Rt Hon Tony (Chesterfield)||Ellman, Mrs Louise|
|Bennett, Andrew F||Ennis, Jeff|
|Benton, Joe||Etherington, Bill|
|Bermingham, Gerald||Field, Rt Hon Frank|
|Berry, Roger||Fisher, Mark|
|Betts, Clive||Fitzpatrick, Jim|
|Blackman, Liz||Fitzsimons, Lorna|
|Blears, Ms Hazel||Flint, Caroline|
|Blizzard, Bob||Flynn, Paul|
|Boateng, Rt Hon Paul||Follett, Barbara|
|Borrow, David||Foster, Rt Hon Derek|
|Bradley, Keith (Withington)||Foster, Michael Jabez (Hastings)|
|Bradley, Peter (The Wrekin)||Foster, Michael J (Worcester)|
|Brinton, Mrs Helen||Foulkes, George|
|Brown, Rt Hon Nick (Newcastle E)||Fyfe, Maria|
|Brown, Russell (Dumfries)||Gapes, Mike|
|Browne, Desmond||Gardiner, Barry|
|Burgon, Colin||George, Bruce (Walsall S)|
|Butler, Mrs Christine||Gerrard, Neil|
|Byers, Rt Hon Stephen||Gibson, Dr Ian|
|Caborn, Rt Hon Richard||Gilroy, Mrs Linda|
|Campbell, Ronnie (Blyth V)||Godman, Dr Norman A|
|Campbell-Savours, Dale||Godsiff, Roger|
|Cann, Jamie||Golding, Mrs Llin|
|Caplin, Ivor||Gordon, Mrs Eileen|
|Caton, Martin||Griffiths, Jane (Reading E)|
|Cawsey, Ian||Griffiths, Nigel (Edinburgh S)|
|Chapman, Ben (Wirral S)||Griffiths, Win (Bridgend)|
|Chaytor, David||Grocott, Bruce|
|Clapham, Michael||Grogan, John|
|Clark, Rt Hon Dr David (S Shields)||Gunnell, John|
|Clark, Dr Lynda (Edinburgh Pentlands)||Hain, Peter|
|Hall, Mike (Weaver Vale)|
|Clark, Paul (Gillingham)||Hall, Patrick (Bedford)|
|Clarke, Eric (Midlothian)||Hamilton, Fabian (Leeds NE)|
|Clarke, Rt Hon Tom (Coatbridge)||Hanson, David|
|Clarke, Tony (Northampton S)||Harman, Rt Hon Ms Harriet|
|Clelland, David||Heal, Mrs Sylvia|
|Coaker, Vernon||Healey, John|
|Coffey, Ms Ann||Henderson, Doug (Newcastle N)|
|Cohen, Harry||Henderson, Ivan (Harwich)|
|Coleman, Iain||Hepburn, Stephen|
|Colman, Tony||Heppell, John|
|Cook, Frank (Stockton N)||Hesford, Stephen|
|Cooper, Yvette||Hewitt, Ms Patricia|
|Corbett, Robin||Hill, Keith|
|Corbyn, Jeremy||Hinchliffe, David|
|Cousins, Jim||Hodge, Ms Margaret|
|Cox, Tom||Hoey, Kate|
|Cranston, Ross||Hoon, Rt Hon Geoffrey|
|Crausby, David||Hope, Phil|
|Cryer, Mrs Ann (Keighley)||Howarth, Alan (Newport E)|
|Cryer, John (Hornchurch)||Howarth, George (Knowsley N)|
|Cummings, John||Hoyle, Lindsay|
|Cunliffe, Lawrence||Hughes, Ms Beverley (Stretford)|
|Cunningham, Rt Hon Dr Jack (Copeland)||Hughes, Kevin (Doncaster N)|
|Cunningham, Jim (Cov'try S)||Hutton, John|
|Curtis-Thomas, Mrs Claire||Iddon, Dr Brian|
|Darvill, Keith||Illsley, Eric|
|Davey, Valerie (Bristol W)||Jackson, Helen (Hillsborough)|
|Davidson, Ian||Jenkins, Brian|
|Davies, Rt Hon Denzil (Llanelli)||Johnson, Alan (Hull W & Hessle)|
|Davis, Rt Hon Terry (B'ham Hodge H)||Johnson, Miss Melanie (Welwyn Hatfield)|
|Dawson, Hilton||Jones, Rt Hon Barry (Alyn)|
|Dean, Mrs Janet||Jones, Helen (Warrington N)|
|Denham, John||Jones, Jon Owen (Cardiff C)|
|Donohoe, Brian H||Jones, Dr Lynne (Selly Oak)|
|Doran, Frank||Jones, Martyn (Clwyd S)|
|Dowd, Jim||Jowell, Rt Hon Ms Tessa|
|Drew, David||Kaufman, Rt Hon Gerald|
|Dunwoody, Mrs Gwyneth||Keeble, Ms Sally|
|Keen, Alan (Feltham & Heston)||Prentice, Ms Bridget (Lewisham E)|
|Kemp, Fraser||Prentice, Gordon (Pendle)|
|Kennedy, Jane (Wavertree)||Primarolo, Dawn|
|Kidney, David||Prosser, Gwyn|
|Kilfoyle, Peter||Purchase, Ken|
|Kumar, Dr Ashok||Quin, Rt Hon Ms Joyce|
|Ladyman, Dr Stephen||Quinn, Lawrie|
|Lawrence, Mrs Jackie||Radice, Rt Hon Giles|
|Laxton, Bob||Rammell, Bill|
|Lepper, David||Rapson, Syd|
|Leslie, Christopher||Raynsford, Nick|
|Levitt, Tom||Reed, Andrew (Loughborough)|
|Lewis, Ivan (Bury S)||Reid, Rt Hon Dr John (Hamilton N)|
|Linton, Martin||Roche, Mrs Barbara|
|Livingstone, Ken||Rogers, Allan|
|Lloyd, Tony (Manchester C)||Rooker, Rt Hon Jeff|
|Lock, David||Rooney, Terry|
|Love, Andrew||Ross, Emie (Dundee W)|
|McAvoy, Thomas||Rowlands, Ted|
|McCafferty, Ms Chris||Roy, Frank|
|McDonagh, Siobhain||Ruane, Chris|
|Macdonald, Calum||Ruddock, Joan|
|McDonnell, John||Ryan, Ms Joan|
|McFall, John||Salter, Martin|
|McGuire, Mrs Anne||Sarwar, Mohammad|
|McIsaac, Shona||Savidge, Malcolm|
|McKenna, Mrs Rosemary||Sawford, Phil|
|Mackinlay, Andrew||Sedgemore, Brian|
|McNamara, Kevin||Shaw, Jonathan|
|McNulty, Tony||Sheerman, Barry|
|Mahon, Mrs Alice||Sheldon, Rt Hon Robert|
|Mallaber, Judy||Shipley, Ms Debra|
|Marsden, Gordon (Blackpool S)||Short, Rt Hon Clare|
|Marsden, Paul (Shrewsbury)||Simpson, Alan (Nottingham S)|
|Marshall, David (Shettleston)||Smith, Rt Hon Andrew (Oxford E)|
|Marshall-Andrews, Robert||Smith, Angela (Basildon)|
|Martlew, Eric||Smith, John (Glamorgan)|
|Maxton, John||Smith, Llew (Blaenau Gwent)|
|Meacher, Rt Hon Michael||Snape, Peter|
|Meale, Alan||Soley, Clive|
|Merron, Gillian||Southworth, Ms Helen|
|Michie, Bill (Shefld Heeley)||Spellar, John|
|Milburn, Rt Hon Alan||Squire, Ms Rachel|
|Miller, Andrew||Steinberg, Gerry|
|Mitchell, Austin||Stevenson, George|
|Moffatt, Laura||Stewart, David (Inverness E)|
|Moonie, Dr Lewis||Stewart, Ian (Eccles)|
|Moran, Ms Margaret||Stinchcombe, Paul|
|Morgan, Ms Julie (Cardiff N)||Stoate, Dr Howard|
|Morgan, Rhodri (Cardiff W)||Strang, Rt Hon Dr Gavin|
|Morley, Elliot||Straw, Rt Hon Jack|
|Morris, Rt Hon Ms Estelle (B'ham Yardley)||Stringer, Graham|
|Stuart, Ms Gisela|
|Morris, Rt Hon Sir John (Aberavon)||Sutcliffe, Gerry|
|Taylor, Rt Hon Mrs Ann (Dewsbury)|
|Mudie, George||Taylor, Ms Dari (Stockton S)|
|Mullin, Chris||Taylor, David (NW Leics)|
|Murphy, Denis (Wansbeck)||Temple-Morris, Peter|
|Murphy, Jim (Eastwood)||Thomas, Gareth R (Harrow W)|
|Norris, Dan||Timms, Stephen|
|O'Brien, Bill (Normanton)||Tipping, Paddy|
|O'Brien, Mike (N Warks)||Todd, Mark|
|Olner, Bill||Trickett, Jon|
|O'Neill, Martin||Truswell, Paul|
|Organ, Mrs Diana||Turner, Dennis (Wolverh'ton SE)|
|Osbome, Ms Sandra||Turner, Dr Desmond (Kemptown)|
|Palmer, Dr Nick||Turner, Dr George (NW Norfolk)|
|Pearson, Ian||Turner, Neil (Wigan)|
|Pendry, Tom||Twigg, Derek (Halton)|
|Perham, Ms Linda||Tynan, Bill|
|Pickthall, Colin||Vis, Dr Rudi|
|Pike, Peter L||Walley, Ms Joan|
|Plaskitt, James||Ward, Ms Claire|
|Pond, Chris||Wareing, Robert N|
|Powell, Sir Raymond||Watts, David|
|White, Brian||Wise, Audrey|
|Whitehead, Dr Alan||Wood, Mike|
|Wicks, Malcolm||Woolas, Phil|
|Williams, Rt Hon Alan (Swansea W)||Wray, James|
|Wright, Anthony D (Gt Yarmouth)|
|Williams, Alan W (E Carmarthen)||Wyatt, Derek,|
|Williams, Mrs Betty (Conwy)|
|Wills, Michael||Tellers for the Noes:|
|Winnick, David||Mr. David Jamieson and|
|Winterton, Ms Rosie (Doncaster C)||Mr. Greg Pope.|
§ Question accordingly negatived.
Bill committed to a Standing Committee.