DISCRETIONARY DISCLOSURES (Hansard, 4 April 2000)

Dr. Tony Wright
I beg to move amendment No. 1, in page 7, line 13, leave out from "authority" to end of line 34 and insert— 'which is to any extent exempt or whose disclosure is not required by virtue of section 11.'.

Mr. Deputy Speaker
With this it will be convenient to discuss the following: Government amendments Nos. 46 and 47.
916 Amendment No. 2, in page 7, line 36, leave out from "whether" to "to" in line 37.
Amendment No. 3, in page 7, line 42, leave out from "whether" to first "to" in line 43.
Amendment No. 4, in page 8, line 2, leave out from "shall" to end of line 5 and insert—

'(a) inform the applicant whether it holds information, and

(b) communicate the information to him,'.
Government amendments Nos. 49 to 51, 53, 72 and 73.
Amendment No. 41, in clause 75, page 37, line 21, at end insert— ', or the information is information which could be communicated to the applicant in accordance with section 13'. Amendment No. 42, in page 37, line 26, at end insert— 'or which could have been communicated to him in accordance with section 13'.
Government amendments Nos. 74 and 75.

Dr. Wright
Several times in our proceedings, the relevant Minister has said, "I am sure that there is not very much between us. We disagree only about the means; we are all together on the ends." It is pleasing to come to a part of the Bill about which there is genuine agreement. The Government have vastly improved clause 13. Indeed, by changing the clause, they have fundamentally rebalanced the Bill—not, unfortunately, entirely satisfactorily, but the changes to clause 13 are a good start.
I had intended to speak at some length, but I shall be brief because I suspect that the Home Secretary, who is now with us, will say something to us shortly about the connection between clause 13 revisions and new clause 6, which we shall discuss later. However, couple of points must be made. I have already welcomed the Government's amendment to the clause. They are moving from a discretion to a power for the Information Commissioner, and that is wholly positive.
We have tabled amendment No. 1 because clause 13 still exempts whole areas from the public interest test. Originally, the public interest test did not apply to six areas, and two more have been added to that list. Clause 19 exempts information that is already reasonably accessible to the public. Clause 21 exempts information supplied by bodies dealing with security matters and clause 30 exempts information supplied to a public authority by a court, tribunal or inquiry. Clause 32 exempts information that would infringe parliamentary privilege. Subsections (1) and 2) of clause 38 exempt personal data about the applicant and clause 39 exempts confidential information. Clause 42 exempts disclosures prohibited by statute, and clause 43(2) deals with information exempted by order.
It may seem necessary to exclude each of those areas from the Bill, but that is wrong for two reasons. It is wrong in principle because the public interest test should be universal. It is proper to have exemptions but it is also proper to have the public interest test apply across the board.
As I say, it is wrong in principle to take another category of material and to say that it is outside the public interest test altogether. It may seem an unexceptionable area, but it is not. If I had the time and inclination, I would bore the House with an explanation of why some of these things are more interesting than they seem.
917 I give simply a couple of examples. It might seem entirely sensible to remove the category of bodies dealing with security matters from any public interest consideration. The bodies that are listed include those with some security functions and other functions. For example, one of the bodies, the National Criminal Intelligence Service, has some security functions, but deals also with football hooliganism, credit card fraud and counterfeiting.
To make the point, I hope graphically, in the run-up to Christmas 1998, NCIS issued a press release warning shoppers about counterfeit toys, including fake Furbys. With the best will in the world, it is difficult to see why a whole spread of its activities should not be subject to a public interest test.
Similar considerations apply to clause 39. The legal obligation to confidentiality is said to be the reason for the exemption from a public interest test. That obligation has been thoroughly breached by the Government in relation to the Food Standards Act 1999, which gives the Food Standards Agency wide powers to obtain information about food premises, food businesses or commercial operations being carried out with respect to food. In pursuit of its functions, which include providing information to the public to assist them making "informed decisions about food" it is free to publish any information in its possession (whatever its source). In doing so, the agency must consider whether the public interest in the publication of the advice or information in question is outweighed by any considerations of confidentiality attaching to it. Therefore, the legal obligation to confidentiality is expressly over-ridden in the Food Standards Act. I could go through—happily for everyone here, I shall not do so—the other provisions, which would demonstrate something similar.
The point is that, although it may seem straightforward to take those rather large categories of information away from the public interest test, it is indefensible to do so. The public interest test should be universal and go across the board. That is the thrust of amendment No. 1. The other amendments in our joint names, as we have got used to describing them, simply take away remaining discretionary elements from clause 3.
I say again that I very much welcome the Government's amendments in that area. We now have a rather different Bill. Unfortunately, the good things that are given in clause 13 are taken away in new clause 6. No doubt the Home Secretary will tell us about that, too.

§ The Secretary of State for the Home Department(Mr. Jack Straw)
I am grateful to my hon. Friend the Member for Cannock Chase (Dr. Wright) for the manner in which he has moved the amendment and particularly grateful for the endorsement that he has given. He and his colleagues must claim some credit for the fact that, as he says, the Bill has been vastly improved and fundamentally rebalanced.
This is the first opportunity that I have had today to speak on the Bill. When the proper process of parliamentary debate and amendment has taken place on 918 the Bill—it is a very important part of the process on this Bill, as on any other—the House will end up with legislation of which it can be justly proud and which contains much greater access to information than many of those who had reservations about the Government's intention and Bill originally feared.
10.30 pm
My hon. Friend referred to remarks and proposed changes in respect of the basic scheme laid down in new clause 6, which I intend to bring to the House's notice in a moment, but first, as they are fresh in our minds, I shall deal briefly with the points that he raised on amendment No. 1 and describe how the basic scheme of the Bill works. Under clause 1, there is a statutory duty to disclose information. Under part II, there are a series of exemptions and exceptions. Some are class exemptions—for example, in respect of policy advice to Ministers—some are total exclusions, which, most notably, include the security and intelligence agencies, and there are others. Most are determined by a prejudice test.
The first and most important thing to say about that part of the scheme of the Bill is that where there is a dispute about whether information that is sought comes within the exemptions or exclusions under part II, the matter goes to the commissioner and—subject only to appeal to the tribunal and, in very limited circumstances, to a court—the commissioner's decision is final. Ministers have no discretion whatever—no veto, no override, nothing. If the commissioner orders a disclosure and says that the information is not exempt or excepted, it has to be disclosed. It is only when the commissioner or the tribunal have themselves said that information that is being sought is not required to be disclosed under clause 1 and part II that the question of the so-called discretionary disclosure under clause 13 kicks in. Amendment No. 1 relates to clause 13. I shall deal with the points made by my hon. Friend, but the background is important.
Originally under clause 13, we proposed that the commissioner would have a power to make a recommendation for disclosure, but not an ability to order it. The disclosure test, which is first on the public authority, is one of balancing the public interest in disclosure against the public interest in the information not being disclosed. As a result of many representations, not least those made on Second Reading by my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher) and many other hon. Members, I recognised the concern in the House about the fact that in the scheme of a statutory right to know it looked slightly odd that there should be provision only for the commissioner to make a recommendation. It was up to the public authority whether to accept it. Two objections were made to that: the first was that only a recommendation could be made and the second, which flowed from that fact, was that the level at which a decision would in practice be taken by the public authority as to whether to accept the recommendation might be quite low.
As a result of the representations, we have in many ways fundamentally changed the structure of clause 13, except in one respect. We have strengthened the tests—that is a matter for another debate in respect of factual information—but we have made it a duty, not a discretion, on the public authority to consider whether the public interest in disclosure outweighs the public interest in the matter not being disclosed. Where the public authority 919 decides that the balance of public interest is in favour of disclosure, it is under a duty to disclose. If it comes to a contrary view, the matter can go to the commissioner and he can order disclosure. That is the scheme of the Bill.
I shall come to whether there should be an Executive override, so-called, and at what level that should be raised, but before I do so let me come directly to the point made by my hon. Friend the Member for Cannock Chase in respect of amendment No. 1. As the House will see from subsection (2) of clause 13, those discretionary disclosures—which would be significantly changed by these amendments and new clause 6—cover every clause in part II, apart from those read out by my hon. Friend.
I understand my hon. Friend's concern and that any exemption might set off an amber light, if not a red one, for him. However, each exception to the disclosure regime in clause 13 has a straightforward explanation—one that I hope will meet the approbation of the House.
Under clause 19, if the information is already accessible through other means, the public authority should not be required to disclose it. For example, if people want information that is in the telephone book, they should go to British Telecom and not to a public authority. On the other hand, if the information is not reasonably available from the original source, but is available from a public authority, it would be possible—under further amendments that we are tabling—for someone to apply for it under the Bill.
My hon. Friend referred to provisions on information supplied by, or relating to, bodies dealing with security matters. He implied that he accepted that that was satisfactory in reference to the security and intelligence agencies per se, but that other bodies were included in the definition for the purposes of the measure. He mentioned specifically the National Criminal Intelligence Service.
I went into that matter in considerable detail and it will be apparent to the House that I have some day-to-day knowledge of the workings of NCIS. Although the service deals with intelligence gathered from the police, the Inland Revenue, the immigration and nationality directorate and the Department of Social Security as well as from the intelligence agencies, the sources of that information are not separately identifiable. To include NCIS under the clause while the agencies are excluded would thus be to provide those wanting access to information held not only by NCIS but by the intelligence agencies a direct route to such information. That would be far too dangerous for the operation of those agencies and for their intelligence gathering.
It is not widely understood—there is no particular reason why it should be—that the National Criminal Intelligence Service is that and that alone. It gathers intelligence; it does not prosecute.

§ Mr. Mackinlay
rose—

§ Mr. Straw
I shall happily give way when I have made my case. [Interruption.]
NCIS gathers intelligence, but at the point when an investigation could take place, the matter is passed over to, for example, the national crime squad, which is composed of seconded police officers and operates in a similar way to a normal police force.
Subsection (2)(f) of the clause applies to clause 39, which relates to information provided in confidence. My hon. Friend the Member for Cannock Chase referred to 920 the Food Standards Agency. There is a difference between information given in confidence under a statutory requirement to provide it, for example, to the FSA—where people are required to give the information in any event and it is for the agency to determine whether to make it public or to maintain confidence—and information that is supplied according to the common law duty of confidence. It is to the latter that subsection (2) refers. We cannot have a situation in which people provide information in confidence—with the common law obligation going both ways—but that confidence is inadvertently broken as a result of the operation of clause 13.
The other area, to which my hon. Friend did not refer, is the most worrying of all in terms of the overall effect of amendment No. 1. It relates to information that is protected by the Data Protection Act 1988. The Act protects private information while the Freedom of Information Bill is there to bring information out into the public. There is a natural and profound tension between the two and they are, in a sense, different sides of the same coin. If information is protected under the Data Protection Act, we cannot possibly get into the situation where there is, none the less, a discretion in the public interest to break what is a fundamental obligation not to disclose that information. That would not only be wrong and against the Data Protection Act, but against European Community law, a point that will appeal considerably to the hon. Member for Aldridge-Brownhills (Mr. Shepherd). In addition—this point will appeal to the whole House—disclosure of such information would break the European convention on human rights. I am happy to say that that convention has the genuine approbation of the whole House.

§ Mr. Dalyell
On the difficult issue of data protection and in relation to what my right hon. Friend has just said in the most careful language, what is the position in Scotland where, at the Mound, they are sailing off in a rather different direction? Are we to have two approaches in these islands to the same difficult matters?

§ Mr. Straw
I was trying to find my copy of the Scottish White Paper. However, as far as devolved matters are concerned, what Scotland does is a matter for Scotland. Let me make it clear that devolution may mean similarity but, fundamentally, it means difference. If Scotland decides to do something different, I celebrate that fact—I do not regret it—even though that fact can sometimes be used in an argumentative to persuade me to do something similar. Although, as I read it, the Scottish Executive, to some extent, started from a different port and went in a slightly different direction, it is catching a similar wind to us. We may end up at roughly a similar destination.
I am grateful to my hon. Friend the Member for Linlithgow (Mr. Dalyell) for neatly allowing me to return to the point that was raised by my hon. Friend the Member for Cannock Chase, and that he touched on rather delphically. It relates to the issue of Executive override. As I said earlier, on Second Reading, a number of my hon. Friends suggested that the provisions in clause 13, as it then stood, were not satisfactory because too much discretion was in the hands of Ministers. In turn, my hon. Friends drew attention to the fact that there was no such discretionary regime proposed in the Scottish Executive's White Paper, which had helpfully come out just a few 921 days before. Instead, it had provisions for an Executive override, so that there would be an equivalent to clause 1 on the duty to provide information and then the equivalent to part II in which there are exemptions and exclusions and a duty to provide information if ordered to do so. There was also a discretionary provision in which there was a balancing test between the public interest in favour of disclosure and the public interest against. The commissioner would be able to order that. However, Scotland took the approach that there would ultimately be a right of Executive override in 15 areas where, notwithstanding a decision by the commissioner or his equivalent to order disclosure, the Scottish Executive meeting collectively could decide to issue a certificate overriding that order because they felt that it was in the public interest to do so.

§ Mr. White
Will my right hon. Friend give way?

§ Mr. Straw
May I finish my point? I will then happily give way. We have broadly—although not in every particular, for good reasons—adopted that scheme under new clause 6 and the other amendments. We have moved away from discretionary disclosure: we have placed a duty on the Minister to release the information if he or she judges that public interest is in favour of disclosure, not against it; and we have given the commissioner the power to order disclosure.
10.45 pm
The issue remains of what happens if, notwithstanding the commissioner's order, the public authority continues to believe, for sound reasons, that the information should not be disclosed. Most regimes that we have surveyed have some sort of Executive override of one sort or another, and we propose to have one. In the Bill, new clause 6 and the other Government amendments, we propose that the decision in respect of any public authority, other than a local government authority, should be made by a Minister of the Crown.
That category of public authority would include central Government Departments, national health service trusts and police authorities, which are partly local authority and partly not. Any Executive override decision in respect of such bodies would have to be made by a Minister of the Crown; but, in respect of a local authority, it would be made by designated local councils or council committees. That designation would be made by order because the precise form of local government organisation is in a state of flux, and arrangements have to be provided that take that into account.
However, I have received representations to the effect that decisions in respect of the Executive override both by central Government and, separately, in respect of local government, would not be made at a high enough level. Where central Government is concerned, I accept the burden of the argument that has been put to me. Therefore, I propose—it will have to be done in the other place, but it will be done—that those parts of the amendments that speak of Ministers of the Crown will be replaced by a definition of a Cabinet Minister; the House will readily recall that such a definition is already, for quite separate reasons, set out in clause 23(3) of the 922 published Bill. In future, such decisions will be made by a Cabinet Minister or the Attorney-General, rather than by any Minister of the Crown.
The second issue relates to collective responsibility. Ministers make two sorts of decisions. The vast range of decisions are made collectively and Ministers are collectively responsible for them in any event. However, some decisions are, by legal expectation and practice, made not collectively but in a quasi-judicial role; it happens that most of those decisions fall to be made individually by the Home Secretary of the day, but I make no claim as to the quality of the decision making. Each year, the Home Secretary has to make many decisions on, for example, setting tariffs for mandatory life sentence prisoners and their final release date, extradition matters, and other matters on which I could speak at length.
It is neither possible nor necessary to write into the Bill that the decisions made by a Cabinet Minister must be made only after consultation and agreement with all of his or her Cabinet colleagues—not least because some of the decisions are quasi-judicial. In practice, it would be an extremely unwise Cabinet Minister who chose to issue an exemption certificate amounting to a veto of a decision made by the commissioner to order disclosure without consulting his or her Cabinet colleagues. That might lead to that Cabinet Minister's speedy demise and the receipt of his or her P45 by return of post.
To reinforce those arrangements, I propose that there should be written into the ministerial code—which is a published document available in the Library of the House and, I believe, on the internet—guidance on how decisions relating to Executive exemption certificates should be made and the way in which other colleagues should be consulted, other than on quasi-judicial decisions. I hope that those two changes, one that will be written into the Bill and one that will be made public, are to the approbation of the House.
Before I take interventions, I shall detain the House briefly on the question whether local authorities at any level should have a right to issue exemption certificates.

§ Mr. Maclennan
I am extremely grateful to the Home Secretary for giving way before he leaves the subject of central Government. Why is he straining at a camel and sticking at a gnat? He speaks about Executive override as though there was no difference between the Scottish proposals and his proposals. There is a great difference, and there is a great deal of overseas evidence as to what that difference is.
Where there has been collective decision making about Executive override, as in New Zealand, there has not been a disposition on the part of Government to set aside the recommendation of the commissioner, but where the decision has been taken by an individual, as in New Zealand prior to the amendment of the law, there have been many cases of confrontation between the commissioner and the Government.
If the Home Secretary is prepared to set out rules for consultation with Ministers in an informal way, I find it difficult to understand why he should not go the whole way and simply follow the New Zealand pattern.

§ Mr. Straw
The right hon. Gentleman is slightly ungracious about what I said. With regard to the principle, the effect of what I am proposing will be what happens 923 in New Zealand. I accept that there will be a significant difference, which I believe is why my hon. Friend the Member for Cannock Chase was good enough to say that the Bill had been vastly improved.
There will be a significant difference in the occasions on which public authorities would routinely have rejected a recommendation from a commissioner under clause 13, which may have been many, and the number of occasions under the new proposed structure, including the changes that I announced this evening, where a Minister would have decided to consult his or her Cabinet colleagues and then publicly have issued an exemption certificate.
The briefing that I have had about the position in New Zealand is that an individual decision was taken on seven occasions. Since decisions have been taken collectively, that figure is down to one. I do not believe that there will be many occasions when a Cabinet Minister—with or without the backing of his colleagues—will have to explain to the House or publicly, as necessary, why he decided to require information to be held back which the commissioner said should be made available. The changes that I am suggesting will make a significant difference in practice to the behaviour of Ministers.

Dr. Wright
Lest my approbation be misunderstood, let me say that I was registering the progress that had genuinely been made. I was not expressing contentment at the destination that we have now reached. Will my right hon. Friend explain the link in the chain of reasoning, to which he has not referred? Why does he think that he needs the override provision?
We celebrate the change to clause 13 and the power that the commissioner has been given. However, if a Minister does not like a decision made by the commissioner, he can still appeal to a tribunal, go to a court on a point of law, or have judicial review. Why, on top of all that, do the Government think that an override is required?

§ Mr. Straw
That is a point of detail. The possibility of an Executive override means that a Minister will not be able to appeal against a decision by the commissioner. Such a provision would otherwise be otiose. I accept that if we removed the Executive override, we would need to provide for an appeals mechanism.
I apologise for using a nautical analogy again, but we are in uncharted waters. Overseas experience is helpful but only up to a point. We are dealing with different systems. As I said on Second Reading, Freedom of Information Bills are no panacea; they cannot replace good government. My hon. Friend the Member for Blyth Valley (Mr. Campbell), who visited Australia with the Select Committee to examine freedom of information, pointed out that, if a regime goes too far, people in government wrongly take evasive action to avoid a trail of accountability or to prevent the existence of records that can be disclosed.
My hon. Friend said that the Select Committee was told about the extensive use of Post-it notes and a system whereby documents that Ministers and officials wanted to remain confidential were put into a trolley, sprinkled with holy water, ordained as Cabinet documents, wheeled into the Cabinet room and thus excluded from disclosure.
We want a system that works properly, with the grain, and in the context of this country, where there is higher observation in practice of legal requirements than in other 924 countries. Circumstances could arise in which Ministers genuinely considered—we are talking about fine judgments—that the public interest overrode the commissioner's judgment about disclosure or non-disclosure.
Ministers would have to be on firm ground to do that. They would have to acknowledge that it was only a matter of time before the information that they sought to withhold came out. They would also have to judge whether, when that inevitably happened, it would be easier to explain the original decision.
I have undergone a practical on the subject. It related to the medical reports of the thorough examination by four senior medical practitioners of General Pinochet. As the House knows, I made an obligation of confidentiality to Senator Pinochet. Notwithstanding that, I was asked to release the records to the requesting states. I refused to do that because I believed that my obligations to General Pinochet overrode the unquestionable public interest in the disclosure of the documents. Even though it was a matter of considerable debate and advice, I believed that because I had made a solemn pledge of confidentiality, I could not override it in the public interest.
It would have been convenient for me to release the reports because their contents significantly added to the public understanding of the reasons for my decisions in the case. As the House knows, the divisional court held that I had made the right decision, but the Court of Appeal decided that the public interest in publication overrode my decisions to abide by the obligations that I had made.
To continue with the analogy—[Interruption.] At no stage in the array of legal advice that I received—

§ Mr. Shepherd
What about data protection?

§ Mr. Straw
The hon. Gentleman speaks from a sedentary position. I promise him that none of the legal advice that I received about General Pinochet's medical report referred to data protection.
My hon. Friend the Member for Cannock Chase has asked me for a specific example. That is the most real example I can think of, because we are dealing with a new regime for the future. As it happens, because of the exceptions covered by clause 13(2), to which his amendment refers, that is information given in confidence and would not be covered by discretionary disclosure. But for that, the commissioner might have felt that the information should have been made available. I am sure that, in extradition proceedings, there will be requests for information held by the Secretary of State to be made available. In that case, the relevant Secretary of State could have come to a decision off his own bat, because it was a quasi-judicial decision that the public interest in not disclosing information overrode the public interest in disclosing it.
11 pm
I can give my hon. Friends two reassurances. First, although the degree varies, most FOI regimes, although not all, have some Executive override. Secondly, with the changes that are already before the House in the form of amendments and new clauses, and those that I have specified this evening—

§ Dr. David Clark
rose—

§ Helen Jackson (Sheffield, Hillsborough)
rose—

§ Mr. Straw
May I go on? This regime will not be used all that often, and only in extremis.

§ Dr. Clark
As my right hon. Friend knows, I am not a great enthusiast for Executive overrides. He has heard me put that argument before. However, given the Government's strong feeling that there should be some form of Executive override—I welcome the concessions that have been made this evening—my right hon. Friend is making rather heavy weather of it. One of the raisons d'etre of this legislation is to put the code on a statutory basis. We felt that that was vital as the codification and advice was unsatisfactory. The Secretary of State is now proposing to move the Executive override up from a Minister to a Cabinet Minister and by code—not by law, but by the ministerial guidance—suggest that he consults his colleague. That is unsatisfactory.
We have the example of New Zealand. I know it is a smaller country and its Parliament is unicameral, but it has had some years' experience and it is based on the Westminster model. May I suggest to my right hon. Friend—

§ Mr. Deputy Speaker (Mr. Michael Lord)
Order. May I suggest to the right hon. Gentleman that this is a very long intervention?

§ Mr. Straw
I am not making heavy weather of this issue, but, with great respect to my right hon. Friend, I think that he is. I have put on record what we are proposing to do by way of an amendment. I have also said that these decisions are a matter of collective responsibility, except if the Secretary of State or other Cabinet Minister has a quasi-judicial function, and that will be specified in the ministerial code.
We are different from New Zealand and other countries in that, unlike them, we do not have a written constitution.

§ Mr. Giles Radice (North Durham)
New Zealand does not have a written constitution.

§ Mr. Straw
I bow to my right hon. Friend's superior wisdom, but I hope that I have dealt with the point.

§ Helen Jackson
Does my right hon. Friend acknowledge the extreme defensiveness of public authorities when they have made a mistake? When they make a little mistake, they are a little defensive, but when something big goes wrong their defensiveness is significant. I am concerned about their defensiveness when a big mistake is made, such as at the disaster at the Hillsborough football ground. The commissioner may issue an order and be absolutely clear that information on that disaster should be made public, but the public body may naturally be so defensive that it appeals for a ministerial override to give it time. Does my right hon. Friend believe that his proposal will do what those of us who have been concerned with the Hillsborough tragedy would like it to do? We would like to feel that this Bill 926 would not have led to the years and years of unsatisfactory disclosure of reasonable facts that ought to have been made available quickly.

§ Mr. Straw
I understand my hon. Friend's concern about what happened at Hillsborough. As she will know, I arranged the scrutiny of events there, under Lord Justice Stuart-Smith.
I said earlier that no freedom of information regime anywhere in the world was a panacea for bad government. I also agree with my hon. Friend that when mistakes are made, public authorities become defensive, although there is one exception to that rule—the Home Office. Over the centuries, the Home Office has become so used to human error that it just gets on with things and improves situations.
I also believe—this is probably the wisdom of Home Secretaries past and present—that it is the worst thing of all to end up being defensive if mistakes are made. That just makes life more difficult. If a mistake is made, the best thing to do is, in Lord Healey's famous phrase, stop digging.
Let me return to the point made by my hon. Friend the Member for Sheffield, Hillsborough (Helen Jackson). A freedom of information regime cannot be a panacea, and people should not believe that it can be; but, in the case of Hillsborough and in many other cases that have been raised, a regime such as that in the Bill would have helped—and if, God forbid, such a terrible tragedy occurred in the future, would help—to ensure the provision of much more timely information. Much of the information about Hillsborough that has subsequently emerged would have had to be made available much earlier, up to the point at which it would not prejudice an investigation.

§ Mr. Radice
My right hon. Friend's proposal is clearly an improvement, in that the decision will be taken at a higher level than that of a Minister who is concerned with protecting his or her own reputation or the narrow interests of a specific Department. That is crucial. According to the New Zealand model, involving a collective decision by the Cabinet, a decision about the public interest is indeed a decision about the public interest. That is what we want to put in the Bill.
As I have said, my right hon. Friend's proposal is a great improvement. I suggest that he now try to find a form of words such as "collective responsibility" or "collective action". An explanation can be made elsewhere, but the requirement for a collective decision should be in the Bill, because it is the collective element that will ensure the proper balance of the public interest.

§ Mr. Straw
An amendment in respect of Cabinet Ministers will have to be tabled in the other place. I shall reflect on what my right hon. Friend says, although I am advised that there are complicated reasons why it is not possible to enact it. Sometimes complicated reasons turn out to be no particular reason at all. My right hon. Friend must, however, bear in mind my point that some functions are quasi-judicial.

§ Mr. Mackinlay
I am grateful to the Home Secretary, and I apologise to him and to the House for my sedentary remarks about him not allowing us to intervene later.
927 A few moments ago, the Home Secretary said that the National Criminal Intelligence Service was not covered by the provisions, but I should like to explain to him why some of us want to push the envelope on the matter. NCIS has an interface with our security and intelligence services, but—unusually in a principal western democracy—there is no parliamentary oversight of the jurisdiction of any of those services. If we were able to subject NCIS and some of the security and intelligence services to the Bill's provisions, it would go some way to mitigate the fact that there is no proper parliamentary oversight of them. If we had proper parliamentary oversight, we probably would not have to push the envelope. However, we have to deal with that double deficiency.
Before the Home Secretary says that we have the Intelligence and Security Committee, under the chairmanship of the right hon. Member for Bridgwater (Mr. King), I should point out that the membership of that Committee is selected by the head of the security services—the Prime Minister. It is selected not by Parliament, but by the man who is in charge, and that just cannot be right.

§ Mr. Straw
My hon. Friend's last point is his worst one. There are arguments in favour of having a Select Committee on intelligence and security agencies. However, selection of members of the Intelligence and Security Committee, which has been established by an Act of Parliament, is done through the usual channels. In case he has not noticed, selection for Select Committees is done by the same people, through the usual channels. He therefore made a distinction without a difference.
My hon. Friend also mentioned other western democracies, but I do not know which ones he had in mind. When I think of paradigms of transparency in terms of the relationship between intelligence and security agencies and Ministers and Parliament, many European countries do not come to mind as being at the top of the league table. Our security and intelligence agencies necessarily have to work in secrecy, but, in practice and in statute, they are subject—

§ Mr. Mackinlay
What about Australia and the United States?

§ Mr. Straw
I thought that my hon. Friend was perhaps thinking of some of our closer neighbours, such as France.

§ Mr. Shepherd
What about parliamentary democracies such as Canada?

§ Mr. Straw
Yes. There are slightly strengthened arrangements in some countries, but less strong arrangements in others. However, I think that our arrangements are pretty satisfactory.
My hon. Friend the Member for Thurrock (Mr. Mackinlay) should remember that NCIS was established by an Act of Parliament that Labour Members supported, and that there is a service authority that operates very similarly to the police authority.

§ Mr. Fisher
Before the Home Secretary finishes, will he say something more about local authorities? In the past half hour, he has moved a great deal, and it has been an 928 extraordinary experience for the House to see a Home Secretary reshaping a central part of the Bill while on his feet, and doing so with considerable confidence. Many of us also think that he is moving in the right direction, although I agree with my right hon. Friend the Member for North Durham (Mr. Radice) that much work will have to be done, after today, in drafting those provisions.
The Home Secretary will appreciate, however, that he is leaving local authorities in a very strange position. He has now qualified the Executive veto that was proposed in new clause 6, but he has left local authorities with the ability to exercise precisely such a veto. Local authorities can exercise a veto unrestrained by anyone else, so that they are put in a position unlike that of Departments or public authorities. Is that really what the Home Secretary intends to do? Does he really intend, for example, to provide whoever succeeds in becoming London mayor with the ability to veto a decision of the Information Commissioner? I cannot believe that that is what he intends to do. While he is in this very inventive and constructive mood, I urge him to find some way of dealing with the problem of local authorities.

§ Mr. Straw
I take my hon. Friend's compliment as intended. It is in the nature of Home Office Bills, particularly constitutional ones, that they are subject to amendment. That is an important part of the process. That was true of the Human Rights Act 1998. The debates were less well attended because the issues were less controversial, but there were some distinguished contributions from both sides. The Bill was improved by the dialectical process on the Floor of the House. As a result, those on the Opposition Front Bench formally supported its Third Reading. It is important that the Act has such all-party support.
My hon. Friend invited me to talk about local authorities. I was trying to do that about 20 minutes ago, but I thought that it was important to take interventions first. In the arrangements for Executive certification, we decided that it was important that only elected individuals—Cabinet Ministers at central Government level and councillors at local government level—should be able to issue certificates. Any way of judging the public interest other than through a commissioner has to be carried out through systems of democratic accountability, not indirectly through the decision of an official, however well qualified that official may be. There is consistency between our proposals for central Government and local government.
For reasons that I explained earlier, because the systems for running local government are in a state of flux, with different authorities choosing from the range of options with which my hon. Friends will be only too familiar—I shall come to the London mayor in a second—we have had to provide that the level at which decisions are made by councillors will be specified by order. The Local Government (Access to Information) Act 1985 and other legislation already make extensive arrangements for information to be made available to local authority voters. The arrangements are different, because local authorities operate differently from central Government Departments and non-departmental public bodies. In many respects they are already more extensive.
929 My hon. Friend should not have too many worries about the Greater London Authority, because the Greater London Authority Act 1999, passed with the approbation of the House, provides extensive arrangements for access to information.
On my hon. Friend's direct point, we have three options. The first is to keep the arrangement as it is; the second is to prevent local authorities from issuing exemption certificates because the decisions are not of the same level as would arise for central Government; and the third is to accept that an exemption certificate might be needed in certain circumstances, but to say that the decision should be taken by a Minister rather than the local authority. I am pleased to tell the House that I have ruled out the third of those options, because if exemption certificates are issued the individual or body with an interest in the information being withheld should be prepared to stand up and answer for it. I am not in favour of Ministers making the decision for local authorities.
I understand the strength of the arguments, but I am not in a position to give a definitive answer on the other two options tonight, because this is more complex than the other issues that I have referred to, important matters of principle though they were. What I will say to my hon. Friend is that we will take the proposal away for consultation, both within and without Government, and we will return to it in another place.

§ Mr. Quentin Davies
I wish to take the Secretary of State back to the response that he gave to the right hon. Member for North Durham (Mr. Radice). He has promised to take advice about including in the Bill an obligation to make Executive override a matter of collective Cabinet responsibility. Will he ask those advising him why it has been possible in New Zealand for that obligation to have statutory force, given that New Zealand has the same system of common law and very much the same constitutional traditions as this country?

§ Mr. Straw
The answer is yes, I will.
I have been on my feet for quite a long time, but I hope that my explanation will prove useful to the House. I urge Labour Members to support the Government amendments in the group but—with respect to my hon. Friend the Member for Cannock Chase—not amendment No. 1.

§ Mr. Shepherd
On a point of order, Mr. Deputy Speaker. This is just a point of inquiry really. Much of the Home Secretary's contribution was addressed to new clause 6, which is a very important element in respect of the reform of clause 13. When will the House be allowed to discuss those remarks—now, or when we reach that section of the list of selected amendments that covers discretionary procedure and the role of the Information Commissioner?

§ Mr. Deputy Speaker
The Home Secretary's remarks were relevant to the matters discussed by the House in the past few minutes. There will, of course, be an opportunity to discuss new clause 6 when we come to it.

§ Mr. David Heath
We have witnessed an extraordinary spectacle this evening. The Home Secretary has spoken to 930 a group of amendments to fillet out one that he or his colleagues intend to put before the House at a later stage. He has given ground at such a rate that one wonders whether he has gone beyond his own try line—or even beyond his own dead-ball line.
The right hon. Gentleman is moving in the right direction, and long may it continue: it is a direction that Liberal Democrat Members have pressed on Ministers throughout the Bill's progress through the House. However, he has not gone far enough, so we must press him further.
When I first thought about speaking to this group of amendments, I anticipated that I would echo the comments made by the hon. Member for Cannock Chase (Dr. Wright) in proposing amendment No. 1. I entirely support the hon. Gentleman's comments, but that is not surprising, as the amendment is also in my name. However, I also support the Government amendments in this group, as they recognise some of the arguments made in Committee and in subsequent weeks. The Government have moved to remove some of the extraordinary discretionary powers originally contained in clause 13.
Clause 13 is the crux of the Bill. It aroused the greatest controversy in Committee, for the very good reason that it could have undermined the entire thrust of the Bill and all the good elements in it. As I said, I was intending to support the Home Secretary's conversion to that view.
What worried me was new clause 6. It was an Executive veto and, as such, entirely unacceptable in the context of the Bill. I suspect that it will still be unacceptable even when we see it in its final form, as outlined by the Home Secretary. It will still substitute an Executive opinion for that of an independent observer—the commissioner—and for one from a court or tribunal. A court or tribunal could consider the matter in the way that the right hon. Gentleman described. I was surprised that he used the case of General Pinochet as an analogy, because he described a process by which the courts overturned the right hon. Gentleman's instinct and decision not to release information. The new clause substitutes that approach for the application to the courts, which would be far more satisfactory.
I question the right hon. Gentleman when he ascribes to Ministers in this situation a quasi-judicial function. I do not believe that Ministers have a quasi-judicial function. This is an administrative function. If it were quasi-judicial, Ministers should immediately disqualify themselves from consideration because they are party to the decision. It is they who will be put at an advantage or a disadvantage.

§ Mr. Straw
indicated dissent.

§ Mr. Heath
The right hon. Gentleman shakes his head, but what worries the public is that a public body or a Minister will be tempted to avoid disclosure in order to disguise embarrassment. That was the point made by the hon. Member for Sheffield, Hillsborough (Helen Jackson). The public are worried that the motivation for not releasing information that is described as being in the public interest is because of an underlying factor which the public body or the Minister in question considers outweighs public responsibility. We must address that point if we are to reach a satisfactory conclusion.
There should be no question of the mayor of London having the authority to sign such a certificate. There should be no question—[Interruption.] The right 931 hon. Gentleman is making strange grimaces. I heard him say that he was considering the matter. I am putting to him something that he should consider—that it should not be for a local authority to issue that certificate. It should not be for a committee of the local authority or—in terms of the amendment that is to be debated either later tonight or tomorrow—an individual within that authority to make that decision. That cannot be right. I hope that the right hon. Gentleman will listen to his colleagues who have indicated their support for that approach, because it is an important issue. I hope that he will also listen to the intimations that this should be a collective responsibility. That is the only safeguard within an Executive veto that may arrive at the right result. Otherwise, his proposal will be wholly objectionable.
The right hon. Gentleman said that no freedom of information legislation guarantees good government—it is not a panacea. He is absolutely right, but it sure as hell helps. That is the thrust of all the arguments that right hon. and hon. Members have been making during the Bill's progress. Of course we are delighted that there is to be freedom of information legislation, but we want it to work. We want it genuinely to provide freedom of information. Many of us still have strong doubts that clause 13 in particular, even as amended in the way that the right hon. Gentleman suggests, will achieve that result.
To a certain extent, the debate has been hijacked by the Home Secretary's mini-statement. I am delighted that it has, because it moved the debate forward. However, I have one small and specific point for Ministers: why is amendment No. 46 in this group? It is the odd one out.
The other amendments move in the right direction, but amendment No. 46 goes to the contrary, and I should be grateful for some explanation of the rationale behind what seems a retrograde step. I welcome many of the amendments, but we must have a substantive debate on new clause 6 when we reach it. Serious questions remain to be answered about whether the Bill will do the job that we want of it.

§ Dr. David Clark
You quite rightly pulled me up, Mr. Deputy Speaker, when I trespassed on your generosity in my intervention. I shall detain the House for only a few sentences to conclude what I was saying in a more appropriate form.
Many of us welcome the way in which the Home Secretary has moved away from having an individual Minister with Executive override powers to having a Cabinet Minister and a collective ministerial decision. Perhaps we could formalise matters in statute rather than a code. When my right hon. Friend considers how to change the Bill in another place, perhaps he will consider what happens in New Zealand, where decisions on Executive override are made formally by an Order in Council. The Cabinet takes a collective decision, and the result is published in the official gazette.
Because of the existing legislative model in New Zealand, we know that that process works. It provides a longstop in cases in which a Cabinet feels that it should intervene, and it formalises decision making in a way that would meet the objections of many hon. Members.

§ Mr. Hawkins
I, too, shall be brief. It struck me as extraordinary that the Home Secretary, taking his first part 932 in these proceedings, should spend so long on convoluted rituals before addressing the points raised by his hon. Friends. A long way into his speech, he referred to Lord Healey's remark about people who are in a hole stopping digging, but I felt that he was speaking autobiographically. As he came under more pressure from his hon. Friends, there was undoubtedly, in his own words, a natural and profound tension.
I noted how long it took the Home Secretary to reach his main point. The further change of policy was not mentioned until he was 19 minutes into his speech, most of which, as my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) said—

§ Fiona Mactaggart
Will the hon. Gentleman give way?

§ Mr. Hawkins
No, I said I would be brief, and I shall certainly not give way to an hon. Lady who was conspicuously absent from our proceedings until a very late stage.

§ Fiona Mactaggart
I have not. Will the hon. Gentleman give way?

§ Mr. Hawkins
No. I said that I would be brief. I certainly shall not give way to the hon. Lady.

§ Fiona Mactaggart
On a point of order, Mr. Deputy Speaker. I have not been conspicuously absent. I was absent while the previous group of amendments was discussed because I had no interest in it, but I have participated in the rest of the debate.

§ Mr. Deputy Speaker
Whether Members attend debates is not a matter for the Chair.

§ Mr. Hawkins
It struck me that the Home Secretary was indulging in convoluted rhetoric in an attempt to satisfy his hon. Friends. I was reminded of the sophistry that gave us angels dancing on the head of a pin.
The Secretary of State referred to victims of Executive override and Ministers who might get P45s by return of post. It struck me as particularly significant that he was responding to the right hon. Member for South Shields (Dr. Clark), whose work on this legislation was so sadly ignored by the Government when they introduced the Bill, and who was himself a victim of Executive override.
The hon. Member for Somerton and Frome (Mr. Heath) wanted a specific answer about Government amendment No. 46, which he said did not fit with the rest of the group. I want to ask the Home Secretary about a different amendment, No. 74, which seeks to delete clause 77 on copyright, designs and patents. Unless I missed the mention of it during his lengthy remarks, I do not think that he referred to it at all. I am puzzled about why that clause should suddenly be deleted, and I hope that the Home Secretary will deal with that.
Clearly the Home Secretary has failed to convince the hon. Member for Cannock Chase (Dr. Wright) and many of his other hon. Friends, and the minor change that he has introduced tonight is obviously extremely unsatisfactory.

§ Mr. Straw
With permission, Mr. Deputy Speaker, I shall reply briefly to the points that have been raised.
933 The hon. Member for Somerton and Frome (Mr. Heath) asked me about amendment No. 46, which removes from the scope of clause 13 information that is exempt by virtue of clause 11. The exemption in clause 11 applies where the cost of complying with a request under clause 1 would exceed an appropriate limit, which we are minded to set at £500. The cost of complying with a request is the cost of locating information, plus disbursements, but authorities may charge only up to 10 per cent. of those marginal costs. I can continue that explanation if the hon. Gentleman wants me to do so.
The hon. Member for Surrey Heath (Mr. Hawkins) asked about amendment No. 74, which removes clause 77 on copyright. Section 50 of the Copyright, Designs and Patents Act 1988 provides that where the doing of a particular act is specifically authorised by an Act of Parliament, the doing of that act does not infringe copyright. Clause 77 was necessary because section 50 would clearly not have applied to disclosures under clause 13, as such disclosures would have arisen out of a discretion rather than a statutory duty. However, as a result of the changes to clause 13, which alter the discretion to a duty, disclosures under that clause will now be made under a statutory authority, so clause 77 is no longer needed.

§ Mr. David Heath
I return the Home Secretary to Government amendment No. 46. I have not yet heard why information under clause 11 should be exempt from the public interest test. Why is he saying that cost is the only relevant test?

§ Mr. Straw
There is a perfectly sensible arrangement, which is accepted by the House, that there is no duty on the public authority to provide information that can be provided only at a genuinely disproportionate cost. Most information is plainly available and the question of cost does not arise. Amendment No. 46 will ensure that the other provisions relating to disproportionate cost also apply to clause 13. That is the top and bottom of it.

§ Mr. Heath
rose—

§ Mr. Straw
I shall give way once more to the hon. Gentleman.

§ Mr. Heath
I am grateful to the Home Secretary; we are after all considering a serious amendment on Report. I agree with him about disproportionate cost, but surely the exemption should be contingent on the public interest not outweighing that cost. There may be circumstances in which what would normally be a disproportionate cost would be outweighed by the public interest. Why cannot the two considerations be weighed in the balance?

§ Mr. Straw
We did not think that there would be such circumstances. It will be open to the commissioner. If she encounters a series of situations in which she genuinely believes that the arrangement is wrong, she may make representations for change. However, if it is accepted by the House, as I think it is, that there must be some limit to the cost of complying with an information request—bearing it in mind that there is also a limit that will be 934 much less than the gross cost of complying: what is charged to the person who is seeking the information—that must apply to clause 13 as much as to the rest of the Bill. It is for the hon. Gentleman to decide whether he accepts that argument or not.
I will look at what my right hon. Friend the Member for South Shields (Dr. Clark) says, but I do not wish him to hold out too much hope that we will be able to achieve that. I do not profess to as much familiarity with the arrangements in New Zealand as some of my hon. Friends. I profess to considerable familiarity with arrangements here.
I honestly say that what I have said today will certainly ensure, as a matter of law, that certificates are formally made by a Cabinet Minister. The law will require that to be the case. Then, with the exception of matters that are within the quasi-judicial category, where an individual Minister must make that decision, the other decisions are made collectively. Typically, they have been made by Cabinet committee, not by Cabinet. This country is about 15 times the size of New Zealand. Government is, therefore, significantly more complex. Decisions must be made at that level, but it will be a collective decision.
As I have said, I hope that what I have said has the approbation of the House. It is not directly germane to it, but I hope that, in the light of the detailed explanations that I sought to provide to my hon. Friend the Member for Cannock Chase (Dr. Wright), he will consider withdrawing amendment No. 1.

Dr. Tony Wright
I can immediately put my colleagues out of any discomfort by saying that we never intended to divide the House on that part of the Bill. Indeed, we came here largely to celebrate the changes that the Government have made to clause 13.
We were not prepared for the extraordinary parliamentary spectacle that we have just enjoyed. I think that the hon. Member for Surrey Heath (Mr. Hawkins) struck the wrong tone. We have experienced not, to use his phrase, convoluted rhetoric, but Parliament doing its job and a Minister responding to Parliament doing its job. It is all too infrequent that a Minister responds to concerted and, I hope, intelligent pressure.
It has been interesting to watch, as it were, the oral redrafting. We have enjoyed it. To be frank, I am not sure whether, on reflection, we shall think that enough has been said yet. I am not sure yet that those of us who dislike the idea of the veto are persuaded that a veto of any type is acceptable. Some of us might be persuaded if we could toughen the hurdle: raise it sufficiently, so that it became a collective Cabinet hurdle, rather than a ministerial hurdle. I am grateful for my right hon. Friend the Secretary of State's comment that he will go away and think about that.
While my right hon. Friend is being so generous, I would add one more consideration: when other systems retain an override or a ministerial certificate in such cases, they confine it to areas of what might be called key state interests: for example, defence and international relations. The problem is that the override goes across the board. As we have heard, it takes in local authorities, too.

§ Mr. Gordon Marsden (Blackpool, South)
My hon. Friend mentions local authorities. Does he agree that that is a crucial element of what we are talking about? If the 935 Home Secretary has been gracious enough to bump the executive veto up from Minister to Cabinet Minister, he might also reflect that the decision should be bumped up to cabinet in local authorities, or at least to their leadership.

Dr. Wright
Of course I agree with my hon. Friend, but we have some loose ends to attend to. Until tonight, we had none and that counts, in parliamentary terms, as progress. My right hon. Friend the Home Secretary has guaranteed us a sleepless night. I congratulate him on the progress that we have made so far and look forward to progress resuming tomorrow. I beg to ask leave to withdraw the amendment.