§ Mr. David Lidington (Aylesbury)
I beg to move amendment No. 100, in page 1, line 7, at end insert'.—'.—(A1) The purpose of this Act is to facilitate public access to information held by public authorities.'.
§ Mr. Deputy Speaker(Sir Alan Haselhurst)
With this it will be convenient to discuss new clause 1—
Purposes—'.—(1) The purposes of this Act are to extend progressively the right of the public to information held by public authorities to the maximum extent possible, consistent with the need to protect interests specified in exemptions, so as to promote—
- (a) the accountability of public authorities;
- (b) informed public debate on public affairs;
- (c) public participation in the making of decisions; and
- (d) public understanding of the powers, duties and operation of public authorities.(2) This Act shall be interpreted so as to further the purposes specified in subsection (1) and to encourage the disclosure of information, promptly and at the lowest reasonable cost.'.
§ Mr. Lidington
It gives me real pleasure, and almost a sense of nostalgia, to participate for the first time in the House's deliberations on the Freedom of Information Bill. I recall that one of the very first Standing Committees on which I served as a newly elected Member, in 1992 or 1993, considered the Right to Know Bill, which was a private Member's Bill promoted by the hon. Member for Stoke-on-Trent, Central (Mr. Fisher). At various times in his parliamentary career—under Governments of red, of blue and of palish pink—he has been a doughty champion of the public's right to know and of greater access to information.
I think that there is a growing consensus both across the country and across the party political divide that a characteristic of a mature democracy is that we trust the people, and that that trust includes trusting people with access to information that previously might have been kept within the charmed circle of Whitehall and of parts of Westminster.
Amendment No. 100 seeks to establish a clear purpose to the Bill, by including in it a statement of aims that should govern the decisions of those who, when the Bill is enacted, will be charged with its interpretation and implementation. We believe that that is important because 831 the Bill includes a considerable number of tests that have to be applied to categories of information that, either wholly or partially, are exempt from the presumption that they should be disclosed. There should be a clear statutory direction from Parliament to those who will have to assess individual applications for disclosure that the overriding purpose of the legislation is to enlarge and enhance public access to official information.
The Conservative Government introduced the code of practice on access to Government information in 1994 and strengthened it in 1997. Although it was not a statutory document, it required public authorities to make information available, subject to a limited number of exceptions. The purpose clause was a significant element of the code. It was located at the beginning of the document and set out clearly that the approach of public authorities mustin all cases be based on the assumption that information should be released except where disclosure would not be in the public interest.The Bill is deficient in having no clear statement of its purpose. Our amendment would ensure that its principal objective was to give the public the right of access to information held by the Government. New clause 1 approaches that deficiency in the legislation from a different angle, using different language. It is a matter of fine judgment as to which form of words one prefers. We see no harm in the new clause. Those who have tabled it are approaching the issue in the same spirit as the Opposition Front Bench.
The debate is not simply about the Conservative Opposition pointing to deficiencies in a Labour Government's Bill. The Public Administration Committee report in July 1999 said:We recommend that the Bill should contain a clear statement indicating what it is intended to achieve and indicating a presumption in favour of disclosure.That view was also expressed by the Data Protection Registrar, Mrs. Elizabeth France, who is due to become the first Information Commissioner under the Bill. In her response to the consultation document on the draft legislation, she argued that a straightforward purpose statement in the Bill would be helpful to all, especially those making decisions about disclosure in relation to any exemption.
The Government responded to the Select Committee report with two minor amendments that changed the title of the draft Bill and made the clause on the right of access to information the first clause. The Select Committee, with its Labour majority, was not satisfied with those minor concessions. In a further report, the Committee concluded that there was still no presumption in favour of disclosure.
A purpose clause was included in the non-statutory code of practice on access to information. Purpose clauses are common in overseas Freedom of Information Acts, including those of New Zealand and Australia, and they have been used in United Kingdom legislation, including the Arbitration Act 1996 and the present Government's Crime and Disorder Act 1998. I can see no persuasive reason why the Government should resist the introduction of a purpose clause. Even at this late stage of proceedings in this House, I hope that Home Office Ministers will listen to the united call from Members of all parties and from distinguished people outside the House with an interest in these matters and will conclude that the Bill should be amended.
§ Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross)
The hon. Member for Aylesbury (Mr. Lidington) is entirely right to say that the issues adumbrated in amendment No. 100 are also central to new clause 1, which has been tabled in the names of hon. Members of all parties. We are seeking the same objective, which I should have thought would conform with the Government's stated wish to ensure that the enactment of the Bill will effect a climatic change in the business of administration. There should not be an adversarial procedure between those who seek information and want to open matters up, and those who hold that information and want to keep it back.
The Government's objective—enunciated in the White Paper preceding the Bill and in the statements by the Home Secretary and other Ministers—is to ensure that the public right to know is recognised in the code of practice and in law. In order to change the climate, it is very important that the Bill's purposes be set out clearly. That should not be done in narrow terms, or with a picky, legalistic approach to language. It should be done broadly, with the aim of carrying forward the right to know.
The hon. Member for Aylesbury described how the issue had been treated in other countries. The legislation in New Zealand and Australia has been established for quite a long time and contains provisions similar to those proposed in new clause 1. It has proved to be helpful in those countries, and I draw particular attention to the experience in New Zealand, which I think was in the mind of the right hon. Member for South Shields (Dr. Clark), the former Chancellor of the Duchy of Lancaster who originally brought forward the Government's policy on this matter. The provision has been invoked by the New Zealand courts in seeking to interpret the law, and that seems to be a very practical use of a declaratory principle in legislation.
The language of new clause 1 closely follows the Australian legislation, which has been tried and has not been found wanting. The new clause goes slightly further than amendment No. 100, in that it spells out in some detail the purposes of the Bill under four headings. Those purposes are to promotethe accountability of public authorities…informed public debate on public affairs…public participation in the making of decisions, and…public understanding of the powers, duties and operation of public authorities.Those objectives are all consonant with an open democracy.
§ Mr. Tam Dalyell (Linlithgow)
Has the provision often been invoked by the courts in New Zealand? I simply do not know, but it is an interesting point.
§ Mr. Maclennan
I do not know how often "often" is, but it has been invoked on a number of occasions. It has achieved its purpose, in that it has indicated where the balance of the legislation lies. If there is a discretion to be exercised, the authorities should lean in the direction of recognising the public's right to know. In a sense, even if this had been cited only once—and I know that it has been cited more than once—it would have established, or helped to establish, as a matter of jurisprudence, that the Bill was leaning in that direction.
New clause 1 also seeks to underline that the process is perceived as dynamic. We are not passing a law that will always be precisely reflected in the behaviour of 833 officials without change and without the benefit of experience. In cases in which discretions must be exercised, it can be used progressively, and perhaps more openly, once initial concerns about the consequences for administration of openness of government are mitigated by the evidence that it achieves the purposes set out in the new clause.
I hope that the Minister will be strongly sympathetic to the purposes of the new clause, and will embrace it, for there is no mischief in it. The Minister may argue—as it was argued in Committee when similar attempts to introduce such a provision were made—that this is not necessary. I put it to him that it is necessary to remove doubt as to how the Bill is to be interpreted when issues come up for decision, and against what general rubrics such decisions should be taken.
New clause 1 has perfectly good precedents in other British legislation. I will not repeat what the hon. Member for Aylesbury has said, but I will refer again to the evidence given to the Select Committee on Public Administration by Elizabeth France, who is to be the commissioner. Her evidence must be given the greatest possible weight, as she will have the task of policing the legislation and ensuring that it is effective. She has straightforwardly said, about the idea of having a purpose clause:I think it would be very helpful in making judgments about discretionary decisions…She said in her oral evidence given in June 1999, question 187:I would agree with Lord Burns that officials will look in detail at what is written in the statute unless a very clear lead is given from the top of the public bodies as to what action is appropriate. If there is nothing there that tells them to weigh in the balance a general interest in disclosure then they will not do so.It is for that reason, above all, that we would do well to follow the precedents established overseas and incorporate them into the Bill.
§ Mr. Mark Fisher (Stoke-on-Trent, Central)
It is a pleasure to follow the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) who contributed so much to the scrutiny of the Bill in Committee.
I urge the Government to be sympathetic to new clause 1 and amendment No. 100, both of which, as the hon. Member for Aylesbury (Mr. Lidington) said, seek to insert a general purposes clause in the Bill. I believe that to do so would set the tone of the whole Bill. That is what such clauses do in the legislation of New Zealand and in that of the other countries that we looked at for comparators.
I believe that the tone that I seek is the tone that the Government want to set. That tone would emphasise that the Bill aims to empower and liberate and to give people rights to be informed. It should give people the right to know what is going on in our society. Surely there can be no better way to frame such legislation than to include a simple purpose clause setting out its aims and objectives, establishing a presumption in favour of the right to know.
The Minister may say that the Bill is more complicated than that, which is true of such legislation in every country in which it has been introduced. There is a difficult balance between the rights of good government 834 and people's right to know, a point understood on both sides of the Chamber and by anyone who has studied freedom of information legislation. The principles are simple and clear, but achievement of freedom of information is difficult. To get the balance right while maintaining as the spine of legislation a presumption in favour of a right to know is the problem that a purpose clause would be valuable in tackling.
Sadly, I fear that that is precisely why the Government will resist the amendment, as they did in Committee. I remind the Minister of what he said then:We must assume that such a clause would be given legislative effect by the commissioner, the tribunal and courts, and that it would therefore change the balance of rights and put a gloss on the Bill as a whole. That may be unpredictable and uncontrollable.—[Official Report, Standing Committee B, 11 January 2000; c. 29.]Of course, a purpose clause would set a tone, but I think that it would put a constructive gloss on the Bill. I do not agree that it would be unpredictable and uncontrollable; plenty of controls are built into the Bill, and the commissioner will have plenty of powers.
The Bill is understandably and, in most instances correctly, hedged about with caveats. Over the next two days, we shall deal with many difficult matters on which the balance is fine. If we are to do right, however, we must hold in our minds a general presumption in favour of freedom of information and the right to know. A purpose clause at the beginning of the Bill would help us to do so.
The Minister may well be right to say that such a clause would change the Bill's balance, but I believe that it would do so constructively, ensuring that the Bill's thrust was positive and liberating, rather than reluctant. At present, I fear, the Bill has a grudging tone. That should not be so. The Government should be proud of it, and the people of the country should be liberated by it and proud of a Government who introduce it. However, wherever a balance must be struck between the rights of the public authority to withhold intellectual property—the information that it holds—and the rights of an applicant to have access to that information, the Bill comes down time and again in favour of the authority.
Sometimes, that is right. We shall hear of instances in which that is an understandable and justifiable position. However, it rings through the Bill like a tocsin that the balance falls in favour of the owner of information rather than the applicant. A purpose clause would be an attempt to correct that balance. If the Minister is correct to say that such a clause would add a gloss, I have to say that the Bill needs one.
There is much good sense in the Bill, and we want to get it into statute as soon as possible and in the best possible state, but if it is to be the liberating legislation that it ought to be, it needs a framework that states clearly that it is on the side of the applicant and of people's right to know. For that reason, I hope that the Government will think again about this issue and find a way to draft a purpose clause that will declare their interest, and the public's interest, in information at the very start of the Bill.
§ Mr. Quentin Davies (Grantham and Stamford)
I support the amendment moved by my hon. Friend the Member for Aylesbury (Mr. Lidington). I agree with him that new clause 1 would give us the same protection, so 835 it is right to discuss it with the amendment. Although it is not enormously important which one is passed, it is important that one or the other be included in the Bill.
Freedom of information represents the most strikingly unpredicted disappointment with the new Labour Government. There are lots of predictable disappointments, such as the fact that they have raised taxes even when they said that they would not and the fact that they have run the health service into an even worse crisis. I remember predicting those outcomes myself at the last election, but some disappointments were not predicted by anyone.
Perhaps naively, I took seriously the new Labour Government's commitment to freedom of information. I was struck by the strong language of personal commitment used by the Prime Minister in that connection. The year before the election, he said that freedom of information was absolutely fundamental to how Labour saw politics developing in this country over the next few years. He said that it would signal a new relationship between Government and the people. I did not realise that that was nothing more than political hyperbole and eyewash.
In many ways the Bill represents a retreat from the status quo and the previous Conservative Government's non-statutory code—which in my view was entirely inadequate—in important respects such as the obligation to state reasons for refusing information and the obligation that manuals issued by Departments of State should be made available to the public.
The Bill is a substantial retreat also from the White Paper drafted by the right hon. Member for South Shields (Dr. Clark). Although I understand Labour Members' reticence about being too offensive to Ministers, I have no doubt that many of them, and millions of people across the country, share my enormous disappointment that the new Labour Government did not live up to their undertakings. To give him his due, the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) has a long and honourable record on this matter, and I am sure that he is one of those disappointed Labour Members.
The right hon. Member for South Shields sacrificed his career for this issue. He probably does not want to say that this afternoon, but he may do. I have no doubt that he genuinely stood behind his White Paper and, when he was in the Government, said, "The new Labour Government must live up to our undertakings and the expectations that we have aroused. We must introduce radical freedom of information legislation to make real change, as the Prime Minister promised we would. We must therefore be prepared to take risks, if necessary, to change the inward-looking culture of the public service and bureaucracy in general, which is suspicious of the public." I have no doubt that he went on saying that and battling up to the point at which the new Labour Government got rid of him because that point of view was extremely unwelcome.
The White Paper was buried and the right hon. Gentleman was fired, which is a pretty remarkable and memorable state of affairs. I do not think that anybody in this country who follows this matter, whether or not they are a supporter of a political party, can fail to have been struck by that and to share our serious disappointment.
Nothing is more important than how a Bill starts. How it starts, its title and, in this case, an introductory clause or statement of intention not only alert the public to 836 its aim, but could give guidance to the courts, the commissioner and, indeed, the bureaucracy—to the executive government machine—about the Bill's real purpose. If the Government fail at that first fence and are not prepared even to take on board the reasonably worded amendment or new clause, those of us who have already suffered great disappointment will find that it has been thoroughly confirmed.
That is particularly so because the argument for having words along the lines of the amendment and new clause has been pressed on the Government not from any party political point of view, but, as the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) said, by many people with a dispassionate, entirely non-party political interest in the matter, including Elizabeth France, the person who will be responsible for implementing the Bill.
The Government will have to find incredibly good reasons to resist the amendment and new clause. Until we hear those reasons, many of us, in all parties, will continue to feel great disappointment and scepticism.
I fear that the Government are planning to rip up their promise, not explicitly—as they have on taxation, tuition fees for students, the referendum on electoral reform and all the other matters—but subtly. They have introduced legislation that has been so emasculated that it is merely a facade with no substance, structure or reality behind it.
I fear that that is a sign that, within the Government, where there are two tendencies—on the one side, the right hon. Member for South Shields, who has seriously argued for the opportunity for real change to be made, and on the other Alastair Campbell and the No. 10 media manipulation machine. The cause of manipulation of the media, being too clever by half and trying to fox and bamboozle the public by sophisticated modern spin-doctoring and public relations techniques, has won: in the Faustian conflict for the soul and character of the Government, the devil has won the day.
§ Dr. Tony Wright (Cannock Chase)
Following the previous contribution, perhaps we can agree to get it all out of our system to start with—we might then have a serious discussion about some of the issues. It is tiresome to have to repeat the argument, but we are here because the previous Government did not introduce a freedom of information Bill. We are here because, even after the Scott report, they refused to introduce such a Bill. We are here because, even though a Select Committee with a Government majority in the previous Parliament recommended such a Bill, they still refused to introduce one, so let us get that out of the way to start with.
§ Mr. Quentin Davies
I much resent the hon. Gentleman saying that my remarks should be put out of the way and then referring to the previous Government's record. I was one of those who lobbied hard during their time in office for a freedom of information Bill. We got the very inadequate compromise of the non-statutory code. He may remember that I and my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) were among those who refused to support the previous Government. Indeed, we voted against them on the Scott report, so the hon. Gentleman's remarks about several of us on the Conservative Benches are distinctly offside.
§ Dr. Wright
I pay warm and singular—or perhaps plural—tribute to the hon. Members who behaved in the 837 way that the hon. Gentleman describes in the previous Parliament. I have mentioned that on many occasions in the House. Unfortunately, there were not enough of them to persuade their colleagues to do the decent thing. The record is clear. I was prompted to mention it only because of the way he introduced his remarks, but it would be helpful to put all that to one side and concentrate on the matters at hand.
There is a genuine mystery about why the Government have been so reluctant to proceed on purpose clauses. Had I been able to pick out an example on which I would have thought them most happy to move, it would have been that. A form of words—a declaration—at the beginning of the Bill would have indicated a direction and an intention, and the cost to them would not have been much beyond that. Why have we not made more progress? A Committee of this House and a Committee of the House of Lords have considered the matter, and the overwhelming evidence from all directions is that purpose clauses would be useful. Overseas examples showed that, and we were able to give examples of domestic legislation in which they have been used, although they are not common.
We took devastating evidence from a number of sources. Perhaps the most devastating came from Lord Woolf, who is quoted in the Public Administration Committee report:As I understand it, one of the things that the Government is seeking to do, and on which they should be complimented, is they are seeking to change the culture with regard to freedom of information and I think that in that sort of situation a signpost at the beginning as to the general intent of the legislation can be very important.Quite simply, that is the point. A signpost at the beginning, as described by Lord Woolf, can be immensely important—my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher) got close to getting this just right—because so much depends on discretion and on judgment.
The Bill, in all kinds of examples, requires people to exercise discretion in respect of weighing whether there is a public interest in disclosure. The purpose clause has been discussed in relation to the Information Commissioner or the tribunal or a possible court, but it would have most impact in changing the culture of public bodies and departments and the way in which officials think. The one universal opinion from around the world on the introduction of legislation of this kind is that the change of culture has been the most important consequence. That was said to me in Australia and New Zealand. If one wants to change a culture, one has to say that one is engaged in a cultural change. That is profoundly important.
The culture of secrecy in this country has become a dreadful cliché, but it goes deep and wide in the public service because that is what it has been brought up on. With respect to the Minister, if a Government are saying, "We genuinely want to change all that", that is not a gloss but a profound and intended change of direction. We are asking public officials to balance withholding against disclosure in a way that they are not accustomed to, and stating at the beginning of the Bill where that balance is to be struck, wherever possible, would represent not simply a form of words but the animation of the exercise's 838 intention. That would send out a signal to people in every department in every public body as to what the Bill is about, what the Government intend and how the balancing exercise has to be carried out.
A purposes clause would not be a gloss. It would set a genuine tone and represent a culture, and our proceedings would get off to a splendid start if the Minister set the right tone by saying that he was persuaded of some of those arguments.
§ Mr. Richard Shepherd (Aldridge-Brownhills)
I am happy to follow the distinguished Chairman of the Public Administration Committee—the hon. Member for Cannock Chase (Dr. Wright)—and I shall not bicker with him too much about what happened to a White Paper that never came into existence. However, my hon. Friend the Member for Grantham and Stamford (Mr. Davies) was right to point out that the expectations as expressed in that White Paper were held by many Labour Members of Parliament. That is important; it was not just the extraordinary work of the right hon. Member for South Shields (Dr. Clark). We must remember that the White Paper was signed by the Prime Minister and approved by the Cabinet. The world and his wife would like to know what happened between that great expression—sought by many for a long time—and the Bill.
A purpose clause was one of the central reforms called for in Committee. Amendment No. 100 and new clause 1 are important for the reasons adduced by other right hon. and hon. Members. If I had to choose between the two provisions, I would argue for the new clause, because it sets out the key principles behind the reasons why we need and want freedom of information in this country.
The new clause states:The purposes of this Act are to extend progressively the right of the public to information held by public authorities.It lists four reasons why that right is needed. The first is the accountability of public authorities, which is one of the most important justifications for freedom of information.
In that context, I have often quoted Pope to the House:What can we reason, but from what we know?How can we reason if we do not know the substance or the essence of the issues that confront our public policy? As the Prime Minister pointed out, the Bill is about the stakeholder—about the relationship between the Government and the governed. That is an extraordinarily important proposition.
There is an innate secrecy—no doubt, a culture formed by two world wars—and a climate formed by the fact that sections of the Official Secrets Acts marched through the life of our nation for most of the 20th century. We want to reverse those principles. Why are we the most backward of the advanced democracies—ancient and considerate of liberties and so on—in continuing to want secrecy in the conduct of public business? That has consequences for us all.
The accountability of public authorities and those who hold office in them is an important interest. It certainly informed the White Paper, the Prime Minister's speeches before the election and much of the passion in the House.
839 The second reason for the right to information under the new clause isinformed public debate on public affairs.I might almost call that an Alastair Campbell provision, because he constantly calls for informed public debate. Unfortunately, few of us live up to his standards of what is constituted by such debate. By and large, it is true that Governments do not fear ill-informed, uninformed or off-the-issue public debate, because they are the masters of information. What they find more difficult is equality of argument—where people are apprised of information available to the Government and there is thus reasoned, intelligent questioning and proper argument as to the best course for public affairs. That is why the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) supported the new clause: it will enable certain purposes.
The new clause would have the benefit, which the Government claim to want, of making the public more generally educated as to what government is about. Why do we have a Government? What are the difficulties that confront them? What is the purpose of public society in general? As previously set out, the aims for the Bill were consonant with the Government's arguments of not so long ago, with the White Paper and, I think, with what every freedom of information Act strives for. The White Paper was such that it inspired the commissioner in Canada to say that the Government's proposals left Canada trailing in Britain's dust. Now that claim is simply risible and the Bill, as an end product, appears to be a deceit. It is designed to defeat the very purposes that we understood were the Government's intent when they introduced such an important Bill.
All the arguments that I heard in the Select Committee on Public Administration, under the distinguished chairmanship of the hon. Member for Cannock Chase, were for a purpose clause. We heard from Elizabeth France, whose views are not to be put lightly to one side because she is commissioned with the job of data protection, not freedom of information. How do we weigh this matter? Should it be completely consumed in the protection and privacy provisions? We need a public interest provision, but we need a foundation that helps to guide people in their interpretation of the Bill and assists them in understanding the purpose that lies behind it.
Many of the phrases in the new clause derive from New Zealand's experience of freedom of information and from its Act. Eagles, Taggart and Liddell have written an important book, "Freedom of Information in New Zealand", in which they observe that the purpose provisionensured that the number, tenor and the generality of the exemptions would not overshadow the raison d'etre of the Act.The truth is that the Bill contains a strikingly huge number of exemptions, which eat away at the very principle of making available the information that is in the Government's gift. It is therefore important that we signal the tenor and the purpose of the Bill, so that those who interpret it do so in the understanding that the House of Commons sought to make available information and that the public interest lies in the availability of information rather than in its concealment.
§ Mr. Dalyell
The hon. Member for Aldridge-Brownhills (Mr. Shepherd)—I am tempted to call him my 840 hon. Friend on this matter—may recollect that, on a lovely spring morning in March 1998, he and I went to the office of the then Chancellor of the Duchy of Lancaster, my right hon. Friend the Member for South Shields (Dr. Clark). We were in the company of Maurice Frankel, who has contributed so much to this issue. It is not a distortion to say that we came away from the meeting, if not elated, at least extremely pleased at what we had heard. We thought that, at long last, we would get a meaningful and significant—although perhaps not perfect—freedom of information Bill of the kind that had been promised to the electorate in 1997. We thought that that contract with the electorate was about to be fulfilled through the hard work of my right hon. Friend.
I was not able to be on the Committee that considered the Bill, but that was not for the want of trying. By some alchemy, as has happened before, I was not selected. [Laughter.] My hon. Friend the Member for Workington (Mr. Campbell-Savours) laughs knowingly. We shall not go into the reasons for that decision.
I should like to ask two questions. The first follows on straightforwardly from the arguments of the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan). What is Ministers' assessment of how the proposed amendment could be used by the courts? If it is important in terms of legal interpretation, it is a significant and important amendment.
My second question is of a slightly different nature. By what alchemy—by what magic—did responsibility for these matters ever fall into the clutches of the Home Office? That is an important question. It was one thing to have the matter in the charge of the Chancellor of the Duchy of Lancaster, but it is quite another to put it into the clutches of that Department, which has, over the years, done more than any other to suffocate freedom of information. Now is the right moment to ask that question, and I am curious to hear the answer.
§ Mr. Andrew Mackinlay (Thurrock)
If the Government are to resist new clause 1, which I believe should be inserted into the legislation, the Minister faces a considerable burden—the need to overcome the arguments and to persuade people that the Bill will not be improved by its inclusion. It will not be sufficient to say that the new clause is not necessary: he will need to explain both why it is unnecessary and why it would cause mischief if it were included.
My hon. Friend the Member for Linlithgow (Mr. Dalyell) posed a question that I had rehearsed in my mind before rising. The new clause would greatly assist the courts in determining Parliament's intention when they have to consider some challenge to the legislation—as sure as night turns to day, such a challenge will arise. Even if one reads the new clause again and again, it is hard to discover any purpose that could be served by resisting its inclusion, other than the desire to leave matters vague in the hope that, as a result, there will in future be some judgments in favour of deep conservatism in respect of disclosure of information.
I hope that the Government will reflect, both now and if the matter arises in the other place, on how the Bill would be improved by the amendment. My hon. Friend the Minister has a hurdle to overcome, in that the provision appears in comparable statutes of countries around the world, and that the commissioner-elect has 841 indicated that it would be useful. I hope that my hon. Friend will not rely merely on winning the vote, but will either win the argument and persuade us that the provision is unnecessary, or make a name for himself by indicating the Government's willingness to accept the new clause.
§ Mr. Simon Hughes (Southwark, North and Bermondsey)
I shall be brief. I was not a member of the Standing Committee and, unlike the hon. Member for Linlithgow (Mr. Dalyell), I did not have a claim and seek to exercise it. However, I pay tribute to colleagues on both sides of the House who have combined to ensure that the important arguments are advanced in unison. We owe a duty to Parliament and to citizens outside this place to recognise that, on freedom of information above all other issues, if there is a choice to be made between the view of Back Benchers and that of the Government—regardless of which party is in government—one should trust the Back Benchers. Furthermore, if a case is backed by a coalition of senior and respected members of all three great parties of this country, the argument must be extremely strong.
The second argument is legalistic. Legislation, even under new rules of interpretation, sometimes goes to the courts and is interpreted on the basis not of what we say in Parliament—although that can be taken into account more than it used to be—but of what is written on the page. Therefore, when it is necessary to establish what is behind the words, what is intended by the phrase, and what is meant by the clause or the Act, unless there is a purposes clause, there may be a legalistic interpretation, not an explained, intended interpretation.
That is a good reason for including a purposes clause, especially in this sort of legislation. A judge or an information commissioner will be in no doubt about the intention of Parliament. Although the formulation may not be perfect, better a formulation that points him in the direction of the intention than no formulation, which leaves him to guess and gives the courts the power to make a restrictive interpretation.
The third reason reflects the pertinent, though mischievously put, point made by the senior and persistent hon. Member for Linlithgow (Mr. Dalyell). The Bill has ended up with the Home Office as its captain, steering it through this place. We must be suspicious of government by Home Office on such an issue—as will be reflected in the debates on amendments today and tomorrow—because the Home Office is above all the Department of the security services, the Department of the police, the Department of the prisons, the Department of some of the courts, and the Department of the electoral system.
If ever we ought to be suspicious that a Government Department will want to find ways of not opening up government, that Department is the Home Office. However enlightened are the people in it, the combination of civil servants, advisers and Ministers will in the end say, "We must be careful here. We are the Department that is looked to to preserve the interests of the state." The move from Minister who is free-standing and much more accountable to Parliament to Minister in the Home Office, whoever the holder of that office is, is bound to take with it some suspicion that we are confusing the duties of government with the proper assessment of Government.
842 I hope that we will heed the voices from the three parties that have argued coherently and effectively, and experiences elsewhere. I have not seen the Minister's brief, but whatever it contains, I hope that he will be brave, as I once saw a colleague of his, now the Deputy Prime Minister, be. He ripped up and threw away his brief, saying "I am not reading this rubbish. I am going to say what I think." I hope that the Minister will make a great a name for himself by liberating himself from the brief, and liberating Parliament from the Home Office.
§ Dr. David Clark (South Shields)
I shall be brief. I did not intend to speak on the amendment, but I have been provoked so to do. When I introduced the White Paper to the House way back in December 1997, I felt that it was the right vehicle, and that it contained the right tone to create a new relationship between the citizens of this country and the Government.
I did so in the knowledge that, just six months previously, the citizens had indicated, by the representatives whom they sent to this legislature, that they wanted change. I was conscious also that we were entering a new millennium and that we were one of the worst countries among western democracies for giving access and information to our citizens.
That was the philosophy behind my intent. The purpose of the White Paper, in essence, was to change the culture of our political elite. I had no illusions about how difficult that would be, not only in central Government, but in all public administrations. However, I thought that it was the right thing to do.
We devised a system that was set out in the White Paper. There has been talk this afternoon about lawyers and legal interpretation. They are important matters and good reasons why we may need a purpose clause. More important, however, is the need to get the message across from the House that with this legislation, we want to change the political culture of our society. We want to renegotiate the relationship between our citizens and our Government, and that can be done only by ensuring that the interpretation of the Bill is that the presumption must be in favour of openness and not of secrecy.
I believe that new clause 1 is very much better than amendment No. 100. However, whether the new clause is accepted or not, it is important that the message emanate from this legislature loud and clear that we want a change of culture.
§ The Parliamentary Under-Secretary of State for the Home Department(Mr. Mike O'Brien)
I thank all colleagues who served on the Committee that considered the Bill and those who have contributed to this debate. These are important issues, and in many ways they are difficult to get right. The Government have been listening with a great deal of care throughout the debates.
§ Mr. Jon Owen Jones (Cardiff, Central)
Will my hon. Friend give way?
§ Mr. O'Brien
Perhaps I might make a little more progress before I give way to my hon. Friend. I thought that I had been fairly uncontroversial. Actually, I am fascinated by how controversial I can be, so I shall give way to him.
§ Mr. Jones
I thank my hon. Friend for his patience in allowing me to intervene so early in his reply.
843 I have been in the Chamber since the beginning of the debate and I have not heard a contribution to it that supports the Government's line in opposing the new clause and the amendment. Will my hon. Friend comment on why the Government do not appear to have any support that will be vocalised in the Chamber?
§ Mr. O'Brien
I thank my hon. Friend for making what he will know is a helpful intervention. He was about to hear the arguments that are deployed against the new clause and the amendment. If there is a Division, he will find that my right hon. and hon. Friends will feel able to support the Government. That is how they will express their views.
I was in the process of saying that we have listened carefully, particularly to the contributions that have been made by my hon. Friends and by Liberal Democrat Members, who made a number of constructive suggestions. As we continue to consider the Bill, I think that we shall find areas where the Government have listened to the Liberal Democrats and, on some occasions, even to Conservatives. It is all about getting the balance right and it is appropriate to debate how we do so. It is about balancing the needs for individual privacy, confidentiality and efficiency in government with the right of a citizen to have a statutory right to know what is going on. That applies not only to the Government but to other public authorities too.
I am asked, "Why the Home Office?" by my hon. Friend the Member for Linlithgow (Mr. Dalyell). He may well have joined the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) in setting out a list of various reasons why he thinks that the Home Office is not the appropriate Department. They will know that the Home Office is the relevant Department in terms of the Human Rights Act 1998, the Data Protection Act 1998, the Race Relations (Amendment) Bill and the electoral procedures Bill, which has now become the Representation of the People Act 2000. It is the Department that introduced the Political Parties, Elections and Referendums Bill to clean up the sleaze in politics in Britain. The Home Office, which has strongly improved our citizens' rights, is the right Department to make the constitutional change that we are considering.
I always pay great attention to the comments of my right hon. Friend the Member for South Shields (Dr. Clark). I usually agree strongly with them. He is right that we need to change the culture of our political elite. We must get the message across, through the debate and the Bill, that we want to change that culture and renegotiate the relationship not only between the citizen and the Government but between the citizen and all public authorities. However, that requires not a purpose clause, but a Bill.
§ Mr. Mackinlay
Will my hon. Friend give way?
§ Mr. O'Brien
I shall give way shortly, but I want to proceed with the argument.
I have described the alchemy whereby the matter was appropriately referred to the Home Office. The Bill will ensure that we can renegotiate the relationship between the citizen and the state on freedom of information.
844 The hon. Member for Shrewsbury and Atcham, who opened for the Conservative party—
§ Mr. Lidington
§ Mr. O'Brien
The hon. Member for Aylesbury (Mr. Lidington) said that we should trust the people. For 18 years, the previous Conservative Government had no such wish to trust the people or to create a statutory right to know. That had to wait for a Labour Government. Conservative Members did not want a Bill; their amendment on Second Reading would have denied the measure a Second Reading. Some Conservative amendments, which we will consider later, try to restrict parts of the Bill. I shall therefore take no lectures from the hon. Member for Aylesbury about trusting the people.
I want to deal separately with amendment No. 100 and new clause 1, which is a more serious proposal that I would like to consider at length. Amendment No. 100 is a purpose clause, which adds nothing to the Bill. The long title already explains more comprehensively than the amendment the purpose of the Bill, which is toMake provision for the disclosure of information held by public authorities or by persons providing services for them and to amend the Data Protection Act 1998 and the Public Records Act 1958; and for connected purposes.The amendment is therefore unnecessary. It achieves nothing and I oppose it mainly because it is pointless. The Bill's purpose is already stated in the long title.
New clause 1 proposes a different, more ambitious purpose clause. Its supporters have argued for it in a different way.
§ Mr. Dalyell
My hon. Friend believes that the amendment is pointless and adds nothing to the Bill. Does he believe that the courts would share his opinion?
§ Mr. O'Brien
I suspect that the courts would take that view. They would probably say that such an amendment merely created a confusing approach to the Bill. They would ask why we had a long title and a purpose clause that replicated each other. They would have to work out Parliament's purpose in including such a duplication. It would confuse interpretation of the statute.
New clause 1 has a more ambitious purpose.
§ Mr. Shepherd
On the long title, the Government weighed up representations for a purpose clause. They heroically changed the original formula, which read:Make provision about the disclosure of informationto "make provision for". Intellectually, if they can change such a big word as "about" to "for", why can they not embrace an amendment that sets out clearly and indisputably the purpose of the Bill?
§ Mr. O'Brien
I thought that I had just explained that to the hon. Gentleman. I listen with great care to his views on this subject, because unlike most Conservatives he has a long and strong record of supporting freedom of information, and I pay tribute to him for that. We want the Bill to express our view that the citizen should have a right to know, and I do not think that we need a purpose clause to make the Bill do what we want it to do.
845 I want to make some progress, but I shall take some interventions after I have set out the main body of my argument. I have heard the arguments, including the recommendation of the Select Committee on Public Administration, that a purpose clause can be used to show clearly which of two or more competing values should be uppermost when a decision is made. However, I do not think that a purpose clause along the lines of new clause 1 is appropriate, and I shall set out precisely why.
One must assume that such a clause would be given legislative effect by the commissioner, the tribunal and the courts, so it would change the balance of rights that the Bill seeks to achieve. It is not possible to say that in every case one right should trump another. The right of access to information must be balanced against the right to privacy and confidentiality. Too strong a presumption in favour of disclosure for certain purposes, however worthy, over other competing rights to privacy or confidentiality could lead us into conflict, perhaps with the Human Rights Act.
§ Mr. Maclennan
§ Mr. O'Brien
I shall give way to the right hon. Gentleman later, but I want to make some progress.
The Bill must be set in the broader context of the Government's wider agenda for reform, including the Data Protection Act and the Human Rights Act. It must be considered as a whole. We do not want to create provisions through a purpose clause that disturb the balance in the Bill and that may—we know not—bring us into conflict with the Human Rights Act.
Openness does not have a monopoly on righteousness. Privacy and confidentiality have their proper place, and the right of the public to know must not place an unnecessary burden on business or undermine the proper and efficient running of government in the public interest.
We know that a weak confidentiality clause in the United States legislation allows companies to use the freedom of information regime to obtain information about competitors. Up to 60 per cent. of requests under the US freedom of information legislation are from companies trying to find out what the Government know about their competitors. We must have a balanced approach to these provisions.
§ Dr. Tony Wright
Will my hon. Friend give way?
§ Mr. O'Brien
Not at the moment. I want to go through my argument, and then I will happily give way to hon. Members.
Such an emphasis on certain purposes could backfire. If business were inhibited from giving the Government commercially sensitive information, on the basis that it might be released under freedom of information legislation, it would affect the effective regulation of the financial sector, trade and commerce, which could be undermined. The public interest in freedom of information could conflict with the public interest in regulating business.
The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) rightly referred to Elizabeth France's comments on this issue. We want her to be 846 the Information Commissioner. I am familiar with the arguments that Mrs. France put to the Select Committee on Public Administration when she gave evidence on the draft Bill in June last year. She argued for a purpose clause on the basis thatit would be very helpful in making judgments about discretionary decisions,and went on to say that a purpose clausefits also with my view that discretionary decisions should be reviewable in substance, the two are a package, if you like.
It is important to remember that, when Mrs. France gave evidence, the draft Bill only permitted the Information Commissioner to specify the circumstances that an authority could take into account when determining the public interest. The draft Bill gave the commissioner no power to order or even recommend disclosure in the public interest. Moreover, it did not explicitly require authorities to comply with a requirement to balance the public interest in disclosure against the public interest in maintaining an exemption. Mrs. France's arguments were therefore based on the understanding that a purpose clause would indirectly strengthen the provisions relating to discretionary disclosure, and underpin the commissioner's power to specify to authorities the matters that they should take into account.
The discretion has gone, or will, I hope, have gone very shortly, when the Bill is amended. The Information Commissioner will have sweeping powers under our new provisions. The Government, however, accepted many of the criticisms made during the Bill's earlier stages. As a consequence, right of access was made the subject of clause 1, and the then discretionary disclosure provision in clause 13 was amended to give an express balancing of the public interest in disclosure against the public interest in maintaining an exemption. The discretion to which Mrs. France referred, and for which she required a purpose clause, has been replaced by an entirely different statutory duty that will not, in my view, require that purpose clause. The long title of the Bill was also amended in response to what was said by the Committee in the Lords.
The Government intend to strengthen further the provisions dealing with disclosure in the public interest. The Government amendments tabled at this stage remove the discretionary element from decisions under clause 13, and oblige authorities to communicate requested information to applicants when the public interest in disclosure outweighs the public interest in maintaining the exemption. That is a new statutory duty. The commissioner will also have power to issue decision and enforcement notices in respect of decisions under clause 13.
§ Dr. Tony Wright
Will my hon. Friend give way?
§ Mr. O'Brien
I will in due course. Perhaps my hon. Friend will wait until I deal with what he said earlier.
I believe that our amendments remove the difficulties that Mrs. France experienced with the draft Bill, and also remove the need for a compensatory purpose clause.
§ Mr. Fisher
§ Mr. Maclennan
§ Mr. O'Brien
I am facing a number of demands. I shall give way to the right hon. Member for Caithness, 847 Sutherland and Easter Ross first. I shall then give way to my hon. Friend the Member for Cannock Chase (Dr. Wright), and after that I must make progress.
§ Mr. Maclennan
The Minister has tried to deal with some of the points that I have raised, but he has seriously misrepresented the views expressed by Elizabeth France to the Committee. She was not speaking about the discretion that she was exercising in the discharge of her duty, which has perhaps been affected by the Government's redrafting of the Bill—although I beg to suggest that the Government's own retained power to veto her suggestions vitiates the Minister's point. She was clearly referring to the discretions being exercised by others. She said that when, as the potential authority, she examined the Bill it would be helpful to knowwhat I could use to hang a view that a discretionary decision had been improperly taken.
Throughout his speech, the Minister has changed the whole emphasis of the Government's approach as set out in their White Paper "Your Right to Know". The presumption of openness—that was the language used by the Government in the White Paper—has become a balance that must be struck. There is no presumption of openness in anything that the Minister has said.
§ Mr. Deputy Speaker
Order. That was quite a long intervention, albeit one on a technical matter.
§ Mr. O'Brien
I have certainly not sought to misrepresent Mrs. France's views. Mrs. France was explicit about them, and the right hon. Gentleman must take it from me that I have done my best to reflect them. She was speaking of decisions made by others, particularly public authorities and Ministers.
The right hon. Gentleman appears not to realise that we are not just changing the balance, but creating a new statutory duty of openness. When there is a public interest in a matter's being open, and when an exemption applies, the public authority will be obliged to make the information public, if it is outside the remit of proper secrecy in the public interest.
We all agree that, in some circumstances, an element of secrecy may be necessary: I do not think any hon. Member would dispute that. Such secrecy may sometimes be in the public interest; but the balancing decision must be made, and when the balance comes down in favour of the public interest in terms of the right to know, no public authority will retain any discretion. There will be no discretion for Ministers either: they, and public authorities, will have to disclose the information. We have made a radical change in the law, and our amendments are, in substance, entirely different from what was in the Bill when Mrs. France spoke to the Committee.
§ Dr. Tony Wright
I am interested by what my hon. Friend is saying, but I am not sure that he has got to the heart of what some of us were arguing.
Clause 33 deals with the formulation of Government policy, an area in which there is no harm test. We have been told that the Bill is about changing the culture of Whitehall. Whitehall is here being asked to consider the public interest in relation to the formulation of Government policy. How are those in Whitehall to understand what the public interest is? How are they to 848 decide what can properly be withheld on a discretionary basis? How can they decide what is to be disclosed? What reference point is available to them?
One of the aims of a purpose clause is to give those people the necessary information. It is there to tell them the purpose of the Bill, so that, when engaged in the balancing exercise, they can operate within a framework of intention; otherwise, the clause is vacuous.
§ Mr. O'Brien
My hon. Friend is wrong. We shall come to this later, and I shall heed any strictures from you, Mr. Deputy Speaker; but clause 13 draws attention to the need to create a balance. It establishes a statutory duty to give the public information when the public interest in that information being made public outweighs the public interest in its remaining confidential. Precisely what my hon. Friend wants is being done, not in a purpose clause but in clause 13.
We introduced the provision in clause 13 because we feared that, in its operation throughout the realm of the Bill, the purpose clause might disturb a careful balance that we have sought to create between the various issues that I mentioned at the outset. I am not sure that there is a great deal of difference between my hon. Friend and me on this point. We want to bring about circumstances in which information is disclosed when that is in the public interest. When the public seek such information, they should have a right to request it, and the public authority will have a statutory duty to disclose it, provided that it judges that the public interest in disclosure outweighs the public interest in not disclosing.
That is being done in clause 13. My hon. Friend wants it to be done in a purpose clause, but I hope he will see that, because a purpose clause could well apply to the whole Bill, there is an unpredictability about the way in which it would affect the other clauses. That is why we are reluctant to adopt his suggestion. I am not sure that we want different things, in practice: I suspect that we seek much the same end, but in different ways.
§ 6 pm
§ Fiona Mactaggart (Slough)
Perhaps the Minister would recall that, in discussing this type of issue on Second Reading, he advocated the approach that he said had been taken in New Zealand, which he believed hadconcentrated less on the wording of the legislation than on the cultural changes and…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.—[Official Report, 7 December 1999; Vol. 340, c. 789.]
My view is that the people who are pressing new clause 1 are concerned that, in the four months since the Minister made that statement, that new culture of openness has not been seen. Perhaps he could tell us what the Home Office has done in those four months to create a culture of openness, and why we should not request a legislative framework that forces it to create such a culture?
§ Mr. O'Brien
I am very happy to tell my hon. Friend how we have set about doing that. We published—at the beginning of February—the report of the working party on freedom of information in the public sector, which demands that public authorities begin now, before the Bill is passed, to open up their procedures to the public and to 849 ensure that they comply with a statutory right to know. If they wait until the Bill is passed, many of them will be caught out.
The Government want to do precisely what I said in Committee, and precisely what my hon. Friend the Member for Cannock Chase is seeking to do: to change not only the culture in which Whitehall operates—it is a culture of much too much secrecy—but the types of culture that operate in far too many public authorities in the United Kingdom. Changing that culture is not only about passing laws, but about getting inside the organisations and changing them, as Canada has tried to do.
The Canadian information commissioner has said that, after Canada's 15 years of freedom of information legislation, although it had strong laws, it had not achieved the cultural change. We want to achieve that cultural change not only in institutions of government, but beyond government. We are aware, however, that simply passing laws is not good enough: we have to change the culture as well.
§ Mr. Mackinlay
Will the Minister give way?
§ Mr. O'Brien
I should like to make some progress, as I have been speaking for quite some time.
§ Mr. Mackinlay
The Minister promised.
§ Mr. O'Brien
I did. I shall give way, one last time, to my hon. Friend, and then I want to finish.
§ Mr. Mackinlay
The Minister talked about unpredictability. However, unpredictability will be precisely the product of our failure to include a purpose clause in the Bill. The effect of omitting such a clause would be similar to throwing things up in the air and hoping that they fall in the right place. We could have enormous good luck and see the first freedom of information case being decided by a very radical judge—in which case there could well be weeping and gnashing of teeth in Government and in some public bodies. Conversely, a deeply Conservative judge could decide the first case. Hon. Members have a duty, when we can, to be precise in our legislation, and that is precisely what we are being invited to do in this debate.
As for the Government always knowing best about legislation, on some occasions, are not the authors of legislation perhaps the legislators themselves? There is overwhelming support for some precision in this matter, and that support is buttressed by what has happened successfully elsewhere.
§ Mr. O'Brien
The reason we are not prepared to go along with the new clause is that we are concerned that its very vagueness—my hon. Friend expressed his concern about vagueness—will affect the Bill in a manner that we cannot predict. Neither he nor I know how this purposes clause might be interpreted, but we do know how clause 13 could be amended.
§ Mr. Fisher
Will the Minister give way?
§ Mr. O'Brien
I have said that I shall not give way.
§ Mr. Fisher
The Minister has not given way to me.
§ Mr. O'Brien
I shall give way to my hon. Friend, but it is the last time.
§ Mr. Fisher
Does the Minister understand that it is very clear how the purposes clause will be interpreted? It will be interpreted precisely as the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) explained when moving it—in favour of a presumption for openness—and it is precisely for that reason that we wish the Government to consider it. The Minister pays tribute to himself for his amendments to clause 13—[Interruption.] I concur with the tribute to those changes. Although, unfortunately, the changes are undermined by Government new clause 6 and the veto, they are in themselves admirable.
The Minister said that there was no difference between those who support new clause 1 and the Minister's position—but there is. He said that the new clause might apply to the whole Bill, and that is precisely right. Those of us who support new clause 1 want the presumption to run seamlessly through the Bill, so that it operates in the whole Bill. If the Minister cannot understand that, we have not prosecuted our case in the debate. However, he should be able to listen to his own words. Although he said that he wants a cultural change, almost everything that he has said in replying to the debate has been apprehensive about freedom of information and fearful of what will happen. He has been reluctant—
§ Mr. Deputy Speaker
Order. I understand that this is a closely reasoned debate, but the art of an intervention is that it be succinct. We have had some very long interventions, which I really am no longer prepared to countenance.
§ Mr. O'Brien
I tell my hon. Friend that the Government's amendments to clause 13 will change the entire basis on which the Bill operates, and that they will do so in a manner that is careful, calculated and predictable. Good law needs to be careful, calculated and predictable. What is not predictable is to have a purposes clause that, with all its worthy ambitions, is somewhat vague. I simply do not know what the impact would be if we were to allow new clause 1 to become part the Bill, and I would rather not take that risk. It may not have the effect that either my hon. Friend or I wish it to have.
There are places for purposes clauses, but I suggest that this particular Bill—which is carefully balanced—for all the reasons that we discussed in Committee, is not the place for one. That is our view. As I said, I do not think that there is a great issue of principle in the matter, because I do not think that the legislation's eventual outcome is much in dispute between most hon. Members and me. We should ensure that we create a Bill that works and starts to change the culture.
I should like to deal with some of the points made by other speakers in the debate. The right hon. Member for Caithness, Sutherland and Easter Ross asked whether I have any sympathy for the principles of the new clause. 851 The answer is yes. I have much sympathy for his objective, but I do not think that there is a great difference between his objective and ours. I also think that we achieve the objective, but in a different way, in clause 13.
My hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher) said that the Bill's aim was to empower the citizen to obtain information. He is right. Although I understand his views on the Bill, I believe that we can achieve his objectives by passing the Bill with the Government amendments.
In a speech that amounted to little more than party political badinage, the hon. Member for Grantham and Stamford (Mr. Davies)—the sage of Grantham and Stamford, who seems to have left the Chamber—said that he had predicted all the faults of the new Labour Government. Although he seemed to criticise us for not going far enough, undoubtedly he also supported Conservative Front Benchers when they suggested that the Bill should not be given a Second Reading. The fact is that most Conservative Members do not want a Freedom of Information Bill at all.
In the 1997 Conservative campaign guide for candidates, as a possible reply to those who ask for a Freedom of Information Bill, Conservative Members advised:The only group in Britain who are seriously interested in a Freedom of Information Act are inquisitive left-wing busy bodies.That tells us the extent to which Conservative Members believe the Bill necessary.
The Freedom of Information Bill is an important Bill. Although I have enormous respect for the very strong views represented by the right hon. Member for Caithness, Sutherland and Easter Ross and by many of my hon. Friends, I do not think that there is a great deal of difference between us. Clause 13 will achieve most of what hon. Members want from the new clause and will do so with predictability, which is very important.
§ Mr. Maclennan
With the leave of the House, I should like to respond to the Minister.
§ Mr. Deputy Speaker
Does the right hon. Gentleman have the leave of the House?
§ Mr. Maclennan
I am most grateful.
I found the Minister's answers wholly unsatisfactory. We shall wish to divide separately on new clause 1 at the appropriate stage if there is an opportunity to do so.
The hon. Member for Linlithgow (Mr. Dalyell) spoke about an alchemical process. Alchemy was the search to transmute lead into gold. We have witnessed the reverse process. The gold was in the White Paper produced by the right hon. Member for South Shields (Dr. Clark), who was entirely clear about the process. It was not a difficult balancing process in which every possible exercise of discretion was measured against particular tests of public interest. The idea was to change the balance and introduce a new presumption of openness—not just a presumption set out in a code, but a presumption of law.
The Minister's central argument was about the balancing act. He used the word "balance" about 10 times. Because balance, rather than the presumption of openness, 852 has become the underlying principle of the Bill, we are right to be very suspicious about what the Government are minded to do.
§ Mr. Lidington
The unanimity of the views expressed on both sides has been the remarkable feature of the debate—or perhaps I should say the near unanimity. The one discordant note has come from the Minister, who had to make his case without any support from his hon. Friends or from any other quarter of the House. That fact more than any other shows the weakness of the ground on which the Government are standing.
As the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) has reminded us, the Minister said many times that it was all a question of getting the balance right. That is hardly the most controversial statement. He then repeatedly asserted that accepting the amendment or the new clause would impinge in some way on other rights and liberties of British citizens. However, he was far less forthcoming when it came to any detailed explanation of how that might come about.
§ Mr. Mike O'Brien
I did not suggest that inserting the hon. Gentleman's amendment would impinge on the rights of citizens. If he is suggesting that I said that, he is wrong. I merely said that it would do nothing.
§ Mr. Lidington
The thrust of the Minister's remarks was that inserting any purpose clause would put difficulties in the way of those charged with interpreting and implementing the legislation, because they would have to give priority to the duty of openness over their other duties on personal privacy or other forms of confidentiality.
The right hon. Member for South Shields (Dr. Clark) made the powerful point that the purpose of the reforms of which he was the author was to change the institutional culture of Whitehall. No one who has supported the amendment or the new clause is criticising the professional civil service in Whitehall by agreeing that the institutional culture needs to be changed. Any Member of Parliament who has sought to craft a series of parliamentary questions to extract information that an unwilling Department did not wish to divulge is aware of the problem. The only people who are even more aware of the culture that needs to be changed are those of us who have ever been on the other side of the fence, sitting in Whitehall and having a share in drafting the answers to parliamentary questions.
The case for a purpose clause remains strong. The Government have not provided an adequate explanation of their reluctance to accept such an amendment. I hope that when the Bill goes to another place, the members there will note the near unanimity of support for a change in this House from the Back Benches and from all Opposition parties. In the light of the Government's refusal to take seriously the concerns that have been expressed this evening, I intend to press the amendment to a vote.
§ Question put, That the amendment be made:—
§ The House divided: Ayes 167, Noes 339.856
|Division No. 141]||[6.16 pm|
|Ainsworth, Peter (E Surrey)||Heathcoat-Amory, Rt Hon David|
|Allan, Richard||Hogg, Rt Hon Douglas|
|Amess, David||Horam, John|
|Ancram, Rt Hon Michael||Howard, Rt Hon Michael|
|Arbuthnot, Rt Hon James||Howarth, Gerald (Aldershot)|
|Ashdown, Rt Hon Paddy||Hughes, Simon (Southwark N)|
|Baldry, Tony||Hunter, Andrew|
|Ballard, Jackie||Jenkin, Bernard|
|Beggs, Roy||Johnson Smith, Rt Hon Sir Geoffrey|
|Beith, Rt Hon A J|
|Bell, Martin (Tatton)||Keetch, Paul|
|Bercow, John||Kennedy, Rt Hon Charles (Ross Skye & Inverness W)|
|Beresford, Sir Paul|
|Boswell, Tim||Key, Robert|
|Bottomley, Peter (Worthing W)||King, Rt Hon Tom (Bridgwater)|
|Bottomley, Rt Hon Mrs Virginia||Kirkbride, Miss Julie|
|Brady, Graham||Kirkwood, Archy|
|Brake, Tom||Laing, Mrs Eleanor|
|Brand, Dr Peter||Lait, Mrs Jacqui|
|Brazier, Julian||Leigh, Edward|
|Breed, Colin||Letwin, Oliver|
|Brooke, Rt Hon Peter||Lewis, Dr Julian (New Forest E)|
|Browning, Mrs Angela||Lidington, David|
|Bruce, Ian (S Dorset)||Lilley, Rt Hon Peter|
|Burnett, John||Livsey, Richard|
|Burns, Simon||Lloyd, Rt Hon Sir Peter (Fareham)|
|Burstow, Paul||Llwyd, Elfyn|
|Butterfill, John||Loughton, Tim|
|Campbell, Rt Hon Menzies (NE Fife)||Luff, Peter|
|Lyell, Rt Hon Sir Nicholas|
|Chope, Christopher||MacGregor, Rt Hon John|
|Clappison, James||MacKay, Rt Hon Andrew|
|Clarke, Rt Hon Kenneth (Rushcliffe)||Maclean, Rt Hon David|
|Maclennan, Rt Hon Robert|
|Clifton-Brown, Geoffrey||McLoughlin, Patrick|
|Collins, Tim||Madel, Sir David|
|Cotter, Brian||Malins, Humfrey|
|Cran, James||Maples, John|
|Davey, Edward (Kingston)||Mates, Michael|
|Davies, Quentin (Grantham)||Maude, Rt Hon Francis|
|Davis, Rt Hon David (Haltemprice)||May, Mrs Theresa|
|Dorrell, Rt Hon Stephen||Michie, Mrs Ray (Argyll & Bute)|
|Duncan, Alan||Moore, Michael|
|Duncan Smith, Iain||Moss, Malcolm|
|Evans, Nigel||Nicholls, Patrick|
|Faber, David||Norman, Archie|
|Fabricant, Michael||Oaten, Mark|
|Fallon, Michael||O'Brien, Stephen (Eddisbury)|
|Flight, Howard||Öpik, Lembit|
|Forth, Rt Hon Eric||Ottaway, Richard|
|Foster, Don (Bath)||Page, Richard|
|Fowler, Rt Hon Sir Norman||Paice, James|
|Fox, Dr Liam||Pickles, Eric|
|Fraser, Christopher||Portillo, Rt Hon Michael|
|Gale, Roger||Prior, David|
|George, Andrew (St Ives)||Randall, John|
|Gibb, Nick||Redwood, Rt Hon John|
|Gillan, Mrs Cheryl||Robathan, Andrew|
|Gray, James||Robertson, Laurence|
|Green, Damian||Roe, Mrs Marlon (Broxbourne)|
|Grieve, Dominic||Ruffley, David|
|Gummer, Rt Hon John||Russell, Bob (Colchester)|
|Hague, Rt Hon William||St Aubyn, Nick|
|Hamilton, Rt Hon Sir Archie||Sanders, Adrian|
|Hammond, Philip||Sayeed, Jonathan|
|Harvey, Nick||Shephard, Rt Hon Mrs Gillian|
|Hawkins, Nick||Shepherd, Richard|
|Heald, Oliver||Simpson, Keith (Mid-Norfolk)|
|Heath, David (Somerton & Frome)||Smith, Sir Robert (W Ab'd'ns)|
|Smyth, Rev Martin (Belfast S)||Trend, Michael|
|Soames, Nicholas||Tyler, Paul|
|Spelman, Mrs Caroline||Tyrie, Andrew|
|Spicer, Sir Michael||Viggers, Peter|
|Spring, Richard||Walter, Robert|
|Stanley, Rt Hon Sir John||Wardle, Charles|
|Steen, Anthony||Waterson, Nigel|
|Streeter, Gary||Webb, Steve|
|Stunell, Andrew||Wells, Bowen|
|Whitney, Sir Raymond|
|Swayne, Desmond||Whittingdale, John|
|Syms, Robert||Willetts, David|
|Tapsell, Sir Peter||Winterton, Mrs Ann (Congleton)|
|Taylor, Ian (Esher & Walton)||Winterton, Nicholas (Macclesfield)|
|Taylor, John M (Solihull)||Young, Rt Hon Sir George|
|Taylor, Matthew (Truro)|
|Thomas, Simon (Ceredigion)||Tellers for the Ayes:|
|Tonge, Dr Jenny||Mr. Stephen Day and|
|Tredinnick, David||Mr. Peter Atkinson.|
|Abbott, Ms Diane||Clark, Rt Hon Dr David (S Shields)|
|Ainger, Nick||Clark, Dr Lynda (Edinburgh Pentlands)|
|Ainsworth, Robert (Cov'try NE)|
|Alexander, Douglas||Clark, Paul (Gillingham)|
|Allen, Graham||Clarke, Charles (Norwich S)|
|Anderson, Donald (Swansea E)||Clarke, Eric (Midlothian)|
|Armstrong, Rt Hon Ms Hilary||Clarke, Tony (Northampton S)|
|Ashton, Joe||Clwyd, Ann|
|Atherton, Ms Candy||Coaker, Vernon|
|Austin, John||Coffey, Ms Ann|
|Banks, Tony||Cohen, Harry|
|Barnes, Harry||Coleman, Iain|
|Barron, Kevin||Colman, Tony|
|Bayley, Hugh||Connarty, Michael|
|Beard, Nigel||Cook, Frank (Stockton N)|
|Beckett, Rt Hon Mrs Margaret||Cooper, Yvette|
|Begg, Miss Anne||Corbyn, Jeremy|
|Bell, Stuart (Middlesbrough)||Cousins, Jim|
|Benton, Joe||Cranston, Ross|
|Bermingham, Gerald||Crausby, David|
|Berry, Roger||Cunningham, Rt Hon Dr Jack (Copeland)|
|Betts, Clive||Cunningham, Jim (Cov'try S)|
|Blackman, Liz||Dalyell, Tam|
|Blair, Rt Hon Tony||Darling, Rt Hon Alistair|
|Blears, Ms Hazel||Darvill, Keith|
|Blizzard, Bob||Davidson, Ian|
|Blunkett, Rt Hon David||Davies, Rt Hon Denzil (Llanelli)|
|Boateng, Rt Hon Paul||Davies, Geraint (Croydon C)|
|Bradley, Keith (Withington)||Dawson, Hilton|
|Bradley, Peter (The Wrekin)||Dean, Mrs Janet|
|Bradshaw, Ben||Denham, John|
|Brinton, Mrs Helen||Dismore, Andrew|
|Brown, Rt Hon Gordon (Dunfermline E)||Dobbin, Jim|
|Donohoe, Brian H|
|Brown, Rt Hon Nick (Newcastle E)||Doran, Frank|
|Browne, Desmond||Dowd, Jim|
|Buck, Ms Karen||Eagle, Angela (Wallasey)|
|Eagle, Maria (L'pool Garston)|
|Burden, Richard||Edwards, Huw|
|Burgon, Colin||Efford, Clive|
|Byers, Rt Hon Stephen||Ennis, Jeff|
|Caborn, Rt Hon Richard||Field, Rt Hon Frank|
|Campbell, Alan (Tynemouth)||Fisher, Mark|
|Campbell, Mrs Anne (C'bridge)||Fitzpatrick, Jim|
|Campbell, Ronnie (Blyth V)||Fitzsimons, Lorna|
|Campbell-Savours, Dale||Flint, Caroline|
|Caplin, Ivor||Follett, Barbara|
|Casale, Roger||Foster, Rt Hon Derek|
|Caton, Martin||Foster, Michael Jabez (Hastings)|
|Cawsey, Ian||Foster, Michael J (Worcester)|
|Chapman, Ben (Wirral S)||Foulkes, George|
|Chaytor, David||Galbraith, Sam|
|Clapham, Michael||Galloway, George|
|Gardiner, Barry||McAvoy, Thomas|
|Gerrard, Neil||McCabe, Steve|
|Gilroy, Mrs Linda||McCartney, Rt Hon Ian (Makerfield)|
|Godman, Dr Norman A|
|Godsiff, Roger||McDonagh, Siobhain|
|Goggins, Paul||Macdonald, Calum|
|Golding, Mrs Llin||McDonnell, John|
|Gordon, Mrs Eileen||McFall, John|
|Griffiths, Jane (Reading E)||McGuire, Mrs Anne|
|Griffiths, Nigel (Edinburgh S)||McIsaac, Shona|
|Griffiths, Win (Bridgend)||McKenna, Mrs Rosemary|
|Grocott, Bruce||Mackinlay, Andrew|
|Grogan, John||McLeish, Henry|
|Gunnell, John||McNulty, Tony|
|Hall, Mike (Weaver Vale)||MacShane, Denis|
|Hall, Patrick (Bedford)||Mactaggart, Fiona|
|Hamilton, Fabian (Leeds NE)||McWalter, Tony|
|Hanson, David||McWilliam, John|
|Harman, Rt Hon Ms Harriet||Mahon, Mrs Alice|
|Heal, Mrs Sylvia||Mallaber, Judy|
|Healey, John||Marsden, Gordon (Blackpool S)|
|Henderson, Doug (Newcastle N)||Marsden, Paul (Shrewsbury)|
|Henderson, Ivan (Harwich)||Marshall, Jim (Leicester S)|
|Heppell, John||Marshall-Andrews, Robert|
|Hesford, Stephen||Martlew, Eric|
|Hill, Keith||Maxton, John|
|Hinchliffe, David||Meacher, Rt Hon Michael|
|Hodge, Ms Margaret||Merron, Gillian|
|Hoey, Kate||Michael, Rt Hon Alun|
|Home Robertson, John||Michie, Bill (Shef'ld Heeley)|
|Hoon, Rt Hon Geoffrey||Milburn, Rt Hon Alan|
|Hope, Phil||Miller, Andrew|
|Hopkins, Kelvin||Moffatt, Laura|
|Howarth, Alan (Newport E)||Moonie, Dr Lewis|
|Howarth, George (Knowsley N)||Moran, Ms Margaret|
|Howells, Dr Kim||Morgan, Ms Julie (Cardiff N)|
|Hoyle, Lindsay||Morley, Elliot|
|Hughes, Ms Beverley (Stretford)||Morris, Rt Hon Ms Estelle (B'ham Yardley)|
|Hughes, Kevin (Doncaster N)|
|Humble, Mrs Joan||Mountford, Kali|
|Hurst, Alan||Mowlam, Rt Hon Marjorie|
|Hutton, John||Mudie, George|
|Iddon, Dr Brian||Mullin, Chris|
|Illsley, Eric||Murphy, Denis (Wansbeck)|
|Ingram, Rt Hon Adam||Murphy, Jim (Eastwood)|
|Jackson, Ms Glenda (Hampstead)||Murphy, Rt Hon Paul (Torfaen)|
|Jackson, Helen (Hillsborough)||Naysmith, Dr Doug|
|Jenkins, Brian||Norris, Dan|
|Johnson, Alan (Hull W & Hessle)||O'Brien, Bill (Normanton)|
|Johnson, Miss Melanie (Welwyn Hatfield)||O'Brien, Mike (N Warks)|
|Jones, Rt Hon Barry (Alyn)||O'Neill, Martin|
|Jones, Jon Owen (Cardiff C)||Organ, Mrs Diana|
|Jones, Dr Lynne (Selly Oak)||Osborne, Ms Sandra|
|Jones, Martyn (Clwyd S)||Palmer, Dr Nick|
|Jowell, Rt Hon Ms Tessa||Pearson, Ian|
|Kaufman, Rt Hon Gerald||Perham, Ms Linda|
|Keeble, Ms Sally||Pickthall, Colin|
|Keen, Alan (Feltham & Heston)||Pike, Peter L|
|Kelly, Ms Ruth||Plaskitt, James|
|Kemp, Fraser||Pollard, Kerry|
|Kennedy, Jane (Wavertree)||Pond, Chris|
|Khabra, Piara S||Pope, Greg|
|Kidney, David||Pound, Stephen|
|Kilfoyle, Peter||Prentice, Ms Bridget (Lewisham E)|
|King, Andy (Rugby & Kenilworth)||Prentice, Gordon (Pendle)|
|King, Ms Oona (Bethnal Green)||Prescott, Rt Hon John|
|Laxton, Bob||Primarolo, Dawn|
|Lepper, David||Prosser, Gwyn|
|Leslie, Christopher||Purchase, Ken|
|Levitt, Tom||Quin, Rt Hon Ms Joyce|
|Lewis, Terry (Worsley)||Quinn, Lawrie|
|Liddell, Rt Hon Mrs Helen||Radice, Rt Hon Giles|
|Linton, Martin||Rammell, Bill|
|Lock, David||Raynsford, Nick|
|Love, Andrew||Reed, Andrew (Loughborough)|
|Reid, Rt Hon Dr John (Hamilton N)||Sutcliffe, Gerry|
|Robinson, Geoffrey (Cov'try NW)||Taylor, Rt Hon Mrs Ann (Dewsbury)|
|Roche, Mrs Barbara|
|Rooker, Rt Hon Jeff||Taylor, Ms Dari (Stockton S)|
|Rooney, Terry||Taylor, David (NW Leics)|
|Ross, Ernie (Dundee W)||Temple-Morris, Peter|
|Rowlands, Ted||Thomas, Gareth (Clwyd W)|
|Roy, Frank||Thomas, Gareth R (Harrow W)|
|Ruane, Chris||Timms, Stephen|
|Ruddock, Joan||Tipping, Paddy|
|Russell, Ms Christine (Chester)||Todd, Mark|
|Ryan, Ms Joan||Touhig, Don|
|Salter, Martin||Trickett, Jon|
|Savidge, Malcolm||Truswell, Paul|
|Sawford, Phil||Turner, Dennis (Wolverh'ton SE)|
|Sedgemore, Brian||Turner, Dr George (NW Norfolk)|
|Shaw, Jonathan||Turner, Neil (Wigan)|
|Shipley, Ms Debra||Twigg, Derek (Halton)|
|Short, Rt Hon Clare||Twigg, Stephen (Enfield)|
|Simpson, Alan (Nottingham S)||Vaz, Keith|
|Singh, Marsha||Walley, Ms Joan|
|Skinner, Dennis||Ward, Ms Claire|
|Smith, Rt Hon Andrew (Oxford E)||Wareing, Robert N|
|Smith, Angela (Basildon)||Watts, David|
|Smith, Rt Hon Chris (Islington S)||White, Brian|
|Smith, Miss Geraldine (Morecambe & Lunesdale)||Whitehead, Dr Alan|
|Smith, Jacqui (Redditch)||Williams, Rt Hon Alan (Swansea W)|
|Smith, John (Glamorgan)|
|Smith, Llew (Blaenau Gwent)||Williams, Alan W (E Carmarthen)|
|Snape, Peter||Williams, Mrs Betty (Conwy)|
|Soley, Clive||Wills, Michael|
|Southworth, Ms Helen||Wilson, Brian|
|Spellar, John||Winnick, David|
|Squire, Ms Rachel||Winterton, Ms Rosie (Doncaster C)|
|Starkey, Dr Phyllis||Wood, Mike|
|Steinberg, Gerry||Woodward, Shaun|
|Stevenson, George||Woolas, Phil|
|Stewart, David (Inverness E)||Worthington, Tony|
|Stewart, Ian (Eccles)||Wright, Anthony D (Gt Yarmouth)|
|Stinchcombe, Paul||Wright, Dr Tony (Cannock)|
|Stoate, Dr Howard||Wyatt, Derek|
|Strang, Rt Hon Dr Gavin|
|Straw, Rt Hon Jack||Tellers for the Noes:|
|Stringer, Graham||Mr. David Jamieson and|
|Stuart, Ms Gisela||Mr. David Clelland.|
§ Question accordingly negatived
§ The Parliamentary Secretary, Lord Chancellor's Department(Mr. David Lock)
I beg to move amendment No. 44, in page 1, line 15, leave out subsection (3) and insert—'(3) Where a public authority—
- (a) reasonably requires further information in order to identify and locate the information requested, and
- (b) has informed the applicant of that requirement,the authority is not obliged to comply with subsection (1) unless it is supplied with that further information.'.
§ Mr. Deputy Speaker
With this it will be convenient to discuss the following: Government amendments Nos. 45, 54, 89 and 90.
New clause 3—Duty to assist—
- '.—(1) A public authority shall take all reasonable steps to assist any person in seeking to exercise any right under this Act.
- (2) For the purpose of subsection (1) a public authority shall have regard to any relevant guidance contained in the code of practice issued under section 44.'.
§ Mr. Lock
This group of amendments deals with various procedural matters relating to requests for information. The first amendments to which I shall speak impose duties in various ways on authorities dealing with requests.
857 Amendment No. 44 clarifies the situation where authorities require further information from the applicant in order to identify and locate the requested information. In such a situation, the Bill does not require the authority to comply with clause 1(1) unless such further information is supplied. It was already implicit in the Bill that authorities had to inform applicants of what further information they required. However, the amendment makes it explicit in the Bill that in such circumstances, authorities are obliged to ask the applicant for such further information. If they do not inform the applicant of their requirement for further information, their obligation to comply with clause 1(1) still stands.
The Government have tabled amendment No. 44 in response to an earlier amendment to clause 1, moved in Committee by my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher), and I am happy to clarify the effect of the Bill in this regard. This is related to the Data Protection Act 1998, under which data controllers receive requests from members of the public for data that they hold. Amendment No. 89, therefore, inserts a new paragraph into schedule 6, which deals with further amendments to the 1998 Act, to make similar provision in that Act in respect of requests for personal information that fall within the scope of that Act.
Amendment No. 90 is designed simply to tidy up the drafting of paragraph 1 of schedule 6 as a consequence of amendment No. 89. Because amendment No. 89 inserts a new first paragraph into schedule 6, it is no longer necessary for the existing paragraph 1 to refer to the Data Protection Act 1998 in full.
Amendment No. 54 concerns the obligations that authorities have when refusing a request for information. The amendment will oblige authorities, when refusing an application for information, to inform the applicant of any internal review procedure the authority may have—or, indeed, to inform the applicant that the authority does not have such a procedure—and also to inform the applicant of their further right to apply for a decision by the Information Commissioner under clause 50.
The amendment makes explicit in the Bill what was already implicit. The Government have brought it forward in response to one moved by the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), while taking into account any internal review procedure that an authority may have. It is, of course, important that any internal review procedure be first exhausted before the application is made to the commissioner. The amendment therefore addresses all relevant aspects of the issue, and clarifies applicants' appeal rights in the Bill.
Amendment No. 45 deals with the time for compliance. It places an upper limit on the Secretary of State's power by regulation to extend the statutory time limit for responses to applications beyond the 20 working days set out in clause 9(1). That upper limit—the longstop—is 60 working days from the day following the date of receipt of the application.
The 20 working day time limit for responses set out in subsection (1) was introduced following the Government's acceptance of a recommendation of the Select Committee 858 on Public Administration. Let me be clear from the outset that the Government believe that 20 working days is the right period within which a response should normally be given to an application. I will go further—subsection (1) provides specifically that a public authority must comply promptly with a request for information. We consider that 20 working days is the maximum that it should take, but we shall look to public authorities to respond earlier than the 20th day when an application is straightforward.
At present, the Government have no intention of extending the statutory time limit under regulations, but there should be provision in the Bill to do so if, at some future time, there is a genuine case for it. The power in subsection (3) is in reserve, and I repeat that the Government have no intention that it should be used except in exceptional circumstances. Regulations made under this subsection would not be appropriate, or indeed necessary, in respect of isolated cases, in which the Information Commissioner already has discretion to agree a different date. What is, however, needed is a power to prescribe a different day in the sort of situation in which, because of unforeseen circumstances, it would be unreasonable or impossible to deal with applications within the existing statutory deadlines.
I can understand why right hon. and hon. Members have tabled new clause 3. It would place public authorities under a statutory duty to assist applicants and to have regard to the guidance contained in the Secretary of State's code of practice in so doing. The Government sympathise fully with the desire behind the new clause to ensure that applicants are helped to exercise their rights rather than obstructed or hindered. That is an important part of the change of culture to which the Under-Secretary of State for the Home Department, my hon. Friend the Member for North Warwickshire (Mr. O'Brien), referred to before the Division.
When we replied to the report of the Select Committee on Public Administration on the White Paper, the Government accepted the need for authorities to give such assistance. I hope that the amendments that I have outlined have convinced those who tabled the new clause that, where appropriate, the Government are prepared to impose statutory duties on authorities to give reasonable help to applicants. However, after reflection we concluded that the best way to do that was not through the creation of a general, and somewhat vague, statutory duty along the lines proposed. Statutory duties must be clear, definite and enforceable if they are to have legal meaning, which they must if they are included in the Bill. In that way, not only will authorities be sure how to follow them, but the enforcement body can be sure when duties have been breached and has a route to provide a remedy. When a specific action can be identified, a duty may properly arise. That is why the Government have brought forward amendments to impose duties on authorities in the specific instances that I have just outlined—for example, the duty to request further information, or the duty to inform the applicant of their rights of appeal.
The new clause goes considerably further, and seeks to place a general, but insubstantial, duty on authorities that would be difficult to monitor and is so vague as to be difficult, if not downright impossible, to enforce. The content of the obligation is also so unclear as to leave authorities in an invidious position. What are reasonable steps in one situation may be different in another, depending on the type of request, the type of authority, 859 and the type of questioner. The sort of assistance that a large local authority or police service might reasonably give to an individual requester is different from the sort of assistance that a school governing body might reasonably be expected to give a parent-teacher association, and rightly so. Clearly, any duty in the Bill will apply to every public authority, however small, in whatever circumstances.
It is good practice for authorities to give help where appropriate, in ways that are appropriate. That is why we have drafted the Bill to include a requirement that the Secretary of State's code of practice made under clause 44 includes guidance onthe provision of advice by public authorities to persons who propose to make, or have made, requests for information to them.This means that the sort of assistance that authorities should give can be described more broadly than is possible in a statutory provision. It also means that the commissioner, when issuing practice recommendations to authorities which have failed to comply with the code, can have regard to current best practice in making decisions, and not just to the strict letter of a statutory provision.
In the light of the contents of the code and of the other amendments, I cannot invite the House to accept the new clause.
§ Mr. Nick Hawkins (Surrey Heath)
Apart from the new clause, this is a group of Government amendments. Many of them are technical matters which the Government are using to amend their own legislation. We frequently find, with the pressure of time that the Government have imposed on themselves, that, at various stages during a Bill's proceedings, they say that they have got something wrong and have to tidy it up in response to pressure in Committee. My hon. Friend the Member for Ryedale (Mr. Greenway) raised a number of issues in Committee, not least in relation to data protection, as did many other members of the Committee.
I know that there are many lawyers in the House, but I may be unique in having conducted data protection cases in the courts. I do not know whether the Minister has. He shakes his head. Having dealt professionally with data protection issues before I came to the House—and afterwards, when I was still on the Back Benches—I know how complex they are. On this occasion, perhaps we should accept that the Government have been sensible to realise that certain changes needed to be made to the Bill as it overlaps with data protection issues. There was much discussion in Committee about the views of the Data Protection Registrar.
I do not want to detain the House on this group of amendments, among which are none from the Opposition Front-Bench team. However, I look forward with great interest to the speeches of those in the cross-party group which tabled new clause 3.
There has been some concern. I have tabled written questions to Home Office Ministers asking when we might see the final code. The cross-party group is undoubtedly right to ask about the code. A draft code was placed before Committee members, but—by no fault of the Minister—even at this late stage, we have not seen the final code, which is of concern to the cross-party group, the Opposition, the Campaign for Freedom of Information, business, commerce, industry and representative organisations such as the Confederation of British Industry.
860 I hope that we shall hear about the code, but it is perhaps an issue best left to the cross-party group which tabled new clause 3.
We do not propose to raise any further questions on these amendments, but shall have much to say later about other data protection issues.
§ Mr. Simon Hughes
I shall speak to the Government amendments as a surrogate member of the so-called cross-party group, as my right hon. Friend the Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) has temporarily gone elsewhere and will return shortly.
Government amendment No. 44 groups logically with new clause 3, and I shall deal with those provisions last. I heard what the Minister said about amendment No. 45, and I accept that it is intended to set wide parameters although the Government intend a 20-working-day compliance period. The amendment provides an outer limit—a welcome fall-back position, which we understand and do not oppose.
Amendment No. 54 effectively requires that public authorities who refuse to furnish an applicant with details must explain the appeal procedure. That is clearly welcome, and provides the citizen with access to pursue his or her rights where applicable.
Amendment Nos. 89 and 90 amend schedule 6, and will, in opening the compliance procedure on personal information, have an effect similar to that of amendment No. 44 on general information. It is logical to amend the Data Protection Acts in addition to making provision in the Bill. The Data Protection Registrar, who will perform the balancing act on the public's behalf, should also have a duty not simply to say that information cannot be provided, but to put a case on the record. We accept that logical clarification.
All three amendments benefited from debate in Committee, which is exactly how the Bill has been improved in small ways. I pay tribute to the Government for responding in that way.
I shall leave it to other hon. Members, particularly the hon. Member for Stoke-on-Trent, Central (Mr. Fisher), who is part of the leading and drafting team, to speak to new clause 3, but I have one point to make which links it to amendment No. 44. I understand the logic of the Minister's argument that specific obligations, such as providing that simply to say no to a request should be inadequate, must be clarified. Specific duties are better where possible. Amendment No. 44 is welcome for that reason, but the Minister implied that there was a difference of scale between small amendments in the right direction, such as amendments Nos. 44 and 54, and new clause 3.
The hon. Member for Surrey Heath (Mr. Hawkins) made one point about new clause 3; I shall make two. Today's Order Paper contains a written question for answer today about the code of practice. The answer has not yet reached me, but I understand that more information may be available as a result.
§ Mr. Lock
May I draw the hon. Gentleman's attention to clause 44(4), which provides thatBefore issuing or revising any code under this section, the Secretary of State shall consult the Commissioner?861 Does the hon. Gentleman agree that it would be impossible to finalise a form of the code before Royal Assent, and, therefore, before the formal appointment of the commissioner, because the required consultation could not have taken place?
§ Mr. Hughes
I understand that point, but the Government have been helpful to Parliament in establishing the practice of publishing draft Bills and codes where possible. [Interruption.] If I read the Minister's lips correctly, he is saying, "We have." Certainly, today's written question implies that that is so. The hon. Member for Hove (Mr. Caplin) askedthe Secretary of State for the Home Department when he will publish the draft code of practice to be made under Clause 44.Miracle of miracles, the draft code has doubtless been published this afternoon, just in time for our debate.
§ Mr. John Bercow (Buckingham)
The strength of the parliamentary question.
§ Mr. Hughes
Indeed it is, although this one happens to be a planted parliamentary question, which is never quite so good, even if it is a convenient hook.
Our slight difficulty is that, as parliamentary questions are answered from 3.30 pm and our debate began at about 4.30 pm, not many hon. Members can have found, read, marked, learned and inwardly digested the draft code in time to tell the Minister whether it is just as we like it. I accept that there has been progress; and I take the technical point that we cannot have a code of practice until the commissioner has been appointed, and that requires enactment of the Bill. However, I am not entirely comfortable about being asked to accept an argument that counters new clause 3, which was tabled several days ago, by use of a draft code that we have not yet seen. I am not being over-aggressive about that point, but it is unfortunate that we could not have seen the code earlier in order to decide how far it addressed the concerns in new clause 3. The other place can of course deal with these things, but we should have the maximum information available to us.
My second point about new clause 3 is that it obliges hundreds of public authorities listed in the schedules to ensure that people are assisted rather than having difficulties put in their way. I have been in the House long enough to recall various Bills to open up local government or give access to medical and local government records. They are all about giving people rights to go to the town hall, ask for a photocopier, have copies made, and so on.
All that is fine, and the small print is important. However, the new clause proposes that steps should be taken. I do not think that it is necessarily bad law or flawed to make a general proposition simply because, say, a patent agency will clearly act differently from, say, a water authority. The point is similar to one made during our debates on the purpose clause. The new clause would establish—much less controversially or complicatedly than the purposes clause would have done—an obligation across public authorities to help the citizen. We would be using statute to remind public bodies that they are 862 agencies of the public, not authorities over the public. "Public authority" is sometimes an unhelpful term for agencies intended to be systems that support the public.
§ Mr. David Davis (Haltemprice and Howden)
They are public servants.
§ Mr. Hughes
Indeed, they are public servants, funded by public money and answerable to the public. In this age, when the Government divest themselves of functions, that often makes it more difficult to get access to information. We must all be aware of that problem and I am sure that we all come across it regularly in our constituency work.
I understand, but do not accept, the proposition that we cannot, in the Bill, assert the duty on the public authority to provide information. It is not impossible to take public authorities to court and to arbitrate, either internally through a commissioner or externally through a court. This country has come a long way in administrative law in the past 30 years, and courts are used to dealing with it.
We hope that the Bill will reduce litigation; one of its purposes is to ensure that people do not have to hunt for information through the courts because they will automatically have access to it. I fear that there may be a series of legal battles ahead to establish those rights. Around the world, access to information from the state has not been achieved without such battles. However, it is not sufficient for Ministers to say that a general proposition and duty cannot be added to the Bill or that such a proposition and duty could not, when coupled with guidance, be adapted to different public authorities, large or small, or broad or narrow in their remit.
§ Mr. Hawkins
Does the hon. Gentleman recognise that we share his concern that the Government's alteration of their stance and, in particular, their approach to the matter that he has raised, will not only increase complexity, which was discussed at great length in Committee, but lead to more litigation, at least in the first few years after the Bill becomes an Act?
§ Mr. Hughes
The hon. Gentleman helpfully takes me to my next point. One of the problems is that, following the history of the parliamentary drafting mechanism, we still legislate in a complicated way. As somebody who, like others, has trained as a lawyer but who tries to make sure that the law is accessible, I have to say that it is still difficult for citizens to find out what rights they have. One of the best ways to ensure that they know their rights is to have a proposition and an explanation of how they can avail themselves of their rights.
That argument holds water for the reason that most countries in the world have a written constitution: such constitutions do not include every minutiae of right and entitlement against every agency of the state; they assert a proposition to which people respond. That proposition is a statement of the balance of power.
I entirely accept the hon. Gentleman's point that, despite having tabled amendments that we welcome, the fact that the Government are not yet willing to accept new clause 3 means that we will none the less end up with legislation that is more specific and particular. To assert different rights, one has to follow different procedures with different remedies and different appeals processes. 863 We are trying to make sure that we have a better educated and informed public who take more cognisance of the public debate, and that is not the way to go about it.
This will be the first United Kingdom-wide Freedom of Information Act, so it should clearly tell people what their rights are without them having to go round the houses finding clues about how to exercise those rights, and it should not require a degree in law or parliamentary draftsmanship to understand the legislation. The hon. Gentleman makes a good point. I hope that, on reflection, even if we and the Government have to do more drafting work—which we are happy to do—by the time that the Bill gets to the other place, the Government will have included not only a purposes clause, such as the one that we debated earlier, but a clause similar to new clause 3.
§ Mr. Fisher
I am grateful for the opportunity to speak to new clause 3, which stands in my name and those of my colleagues. I was emboldened to table the new clause, which is similar to an amendment that I moved in Committee, because, at that stage, the Under-Secretary, my hon. Friend the Member for North Warwickshire (Mr. O'Brien), said that he thought that the amendment was a good idea and he was sympathetic to its concept. However, he rejected it because he thought that, in spite of being a good idea, it would make bad law. I invited my hon. Friend to find out whether he could turn what he agreed was a good concept into decent law, and I am not sure whether he has been able to take up that challenge. When my hon. Friend the Parliamentary Secretary replies to the debate, we will find out whether he agrees with his ministerial colleague that the idea would make bad law.
There is an important concept behind the new clause, which follows from our previous debate about a purposes clause. The duty to assist in the new clause is aimed to help with the Bill's implementation. In our previous debate, hon. Members on both sides of the House agreed that the Bill was breaking new legislative ground and would require a new culture to be engendered throughout government and public authorities, and that it would try to promote a new culture of confidence, curiosity and self-empowerment among people. The new clause is particularly directed at individuals.
The Bill addresses different problems; it empowers individuals to gain control of their lives by finding out what information about them is held by public authorities. At the moment, they do not have the right of access to that information, and the lack of information often leads to enormous problems in their lives. The inhibition of not knowing the state of one's health and what is on one's medical records can curdle one's whole life.
When I introduced the Right to Know Bill nine years ago, people throughout the country wrote to me with specific, tragic stories of having been denied access to their medical records. A woman had been under a misapprehension about her health because of a conspiracy between her general practitioner and her husband. They had the well-intentioned aim of protecting her from knowing about the state of her health but, for 10 years, she had been denied the knowledge of her medical condition and how she could deal with it. When she gained access to that information, her whole life changed, and she was able to view her condition and her life in a different context.
The help that this Bill can give to individuals is very important, but it will be realised only if people genuinely have access to information and can make the legislation 864 work. All hon. Members know how complicated is the wording of Acts of Parliament, and the lawyers who advise companies, Departments and public authorities have difficulty enough interpreting the law, but individuals will find the Bill particularly unfriendly and difficult to understand. That is in the nature of legislation, so we should be doing everything that we can to make the Bill user-friendly and open.
Even if the Minister is not able to accept the new clause, I hope that he will today announce a commitment by the Government to put new resources into promoting it. Whatever form the Bill takes when it finally gets into statute, we should be proud of many aspects of it, and we need to promote it and make sure that people understand its aims and what it can do to change their lives and their grasp of their future. We must make it as easy as we can for them to realise the goods that could flow from the Bill.
I hope that the Minister will announce a programme similar to the one with which the previous Government backed their charter mark. They were very proud of that and put resources into advertising it. We need exactly that commitment from our Government to promote the Bill.
§ Mr. Hawkins
On behalf of my right hon. Friend the Member for Huntingdon (Mr. Major), the former Prime Minister, I greatly appreciate the hon. Gentleman's genuine tribute to my right hon. Friend's citizens charter. I recognise the importance of the hon. Gentleman's points.
I read carefully what the hon. Gentleman said in Committee, and he will know that my hon. Friend the Member for Ryedale (Mr. Greenway), who was the Front-Bench spokesman in Committee, was sympathetic to the hon. Gentleman's points on these issues. However, when I was reading the report of the proceedings, it seemed to me that the Under-Secretary appeared to give pretty clear indications that the Government were sympathetic to those points. Does the hon. Gentleman not find it somewhat disappointing that the Government have not yet, despite those indications—they were not firm undertakings—accepted his arguments?
§ 7 pm
§ Mr. Fisher
I live in hope that, when the Minister replies, there will have been a Pauline conversion on the road to the Report stage, but I am not holding my breath.
The Government have both a duty and an opportunity to promote the Bill. Placing a duty on the large number of public authorities, Government Departments and local government departments that are covered in the Bill to assist the applicant, is the least that we can do. It is the most sensible thing that we can do to ensure that the good things in the Bill are available to individuals. Throughout the Committee stage, the Minister was at great pains to say that we must make the Bill practicable. He is right, but one of the ways to make the Bill practicable for individuals is to include a duty to assist. It is partly a matter of the attitude of those authorities, but it also has to do with some specific problems in the Bill. There are many hoops to be gone through and barriers to be climbed before we give people the information that they want.
§ Mr. Bercow
Despite the hon. Gentleman's persistence and the eloquence of his advocacy over a long period, does he agree that a relatively small proportion of people 865 are, as yet, aware of the Bill? Would he care to hazard a guess as to the proportion of the good burghers of Stoke-on-Trent, Central who are aware of its imminent passage?
§ Mr. Fisher
I agree. The subject has not yet grabbed the imagination of people. We do not have a curious, demanding culture in this country. Colleagues on both sides of the House who travel to the United States will know that the attitude of individuals there is to ask, "Why not?" They ask questions and are aggressive towards the state and authority. They demand their rights. There is no such attitude here. It is something in the water supply or, perhaps, in our culture—our zeitgeist. We do not have such an aggressive attitude towards life.
By being much more passive and quiescent about the problems of the state, our citizens are denied their rights. The Bill seeks to address that, but the hon. Gentleman is right. I have had hardly a letter on the subject in 10 years. In fact, in 17 years in the House, I have hardly had a letter on it. It has not caught the public imagination, which is not to say that it is not important.
To look at the matter in a different way, many specific pieces of legislation on information in local government and medical records were passed under the last Conservative Government. They have not been grasped and taken up by individuals. That does not mean that they are not important. It just puts greater onus on us to make the Freedom of Information Bill, which is the parent of all those Acts and brings them together, work; to learn the lessons at last of why the other Acts have not been taken up by people, as they should have been; and to ensure that the Bill is taken up.
As I said in my previous contribution, the general tone of the Bill is grudging and reluctant. That is not just rhetoric. It contains specific barriers. Clause 1(3) entitles a public authority legally to turn down an inadequately identified request.
Many requests for information are by people who are learning how to use legislation. They will not be adequately identified. People will not always know how to be clever enough to phrase their request in the right terms, but that does not mean that the request is not valid. The information might be available to them, but the clause allows authorities to turn the request down. Far from being given a duty to assist, they have an opportunity to refuse.
Clause 7(1)(a) and (b) allow requests to be rejected if they are made orally, or if a correspondence address is not given. Those seem nitpicking reasons to turn down an otherwise valid application. The whole tone is against the applicant, rather than for him.
Clause 11 deals with cost. No cost is given or defined, yet if an applicant makes a request that will cost more than the Bill eventually determines, that will allow the authority to turn it down.
Under clause 15, a body from which information is sought is under no obligation to inform applicants of their right to appeal. Clause 50 allows requests to be rejected if an applicant is slow to complain, or suffered because of undue delay. Those are all specific things in the Bill that make it more difficult, rather than easier, for applicants to access information.
866 Given that those things remain in the Bill, surely they need to be balanced—I return to the Minister's earlier statement—by a duty to assist, so that, when authorities are presented with an application for information, they must be positive. They must go with the spirit of the application and help the applicant to get the application in order, if they possibly can.
The code of practice, which is mentioned later in the Bill, is a welcome development, but it is not statutory, so it will not be enforceable. The new clause would put a statutory duty on public authorities to be positive and to help an applicant to get information. Surely, that is what is behind the Bill—what we all want to be behind it.
I hope that the Minister will think again and give us some indication, if he cannot accept the proposal today, that between now and a later stage in the parliamentary proceedings on the Bill, the Government will see that it is a small gesture towards individuals who use the Bill. A statutory duty to assist would, however, send a big message that we were serious about getting the benefits of the Bill to all people.
§ Mr. Shepherd
The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) uttered a great truth: this is, indeed, about the balance of power. That is why it is a particularly important occasion for the Commons itself. The Bill tries to draw a line between the responsibilities and rights of Government but, ultimately, these decisions are ours.
The hon. Member for Stoke-on-Trent, Central (Mr. Fisher) reprised some elements of a powerful debate that took place in the Standing Committee. There is a reason to commend it. Having read the Bill, the man or woman in the street would come away bewildered and in a state of incomprehension. It is not easy to read. People cannot read it casually and understand what information they can get hold of, what they may not get hold of, what their rights are or what routes are open to them. New Clause 6 adds greatly to the confusion.
I experienced a brief moment of ecstatic delight when I saw the Home Secretary come into the Chamber to speak to the Minister. I wondered whether he was inquiring about the meaning of some of the clauses. I do not say that glibly.
The hon. Member for Southwark, North and Bermondsey referred to the balance of power. The hon. Member for Stoke-on-Trent, Central then talked about the climate in the United States and the view of citizens there about their relationship to Government. It made me reflect, but, in truth, in Aldridge-Brownhills the citizens' view of Government is not very different from that in America. It just so happens that the House of Commons is the last repository of deference in this country.
The Bill would not stand serious examination for more than two minutes by those who believe in freedom of information. It has great swathes of exclusions and all the rest of it, which make it very difficult to understand the Bill's purpose—hence, we wanted a purposes clause, clear and undiluted—or to find one's way through it. The grouping of amendments under the title "Procedural matters relating to requests for information" gives an intimation of how difficult it is to pursue a consistent theme.
The Government are rightly amending clauses 1, 9 and 15 and, through Government amendments Nos. 89 and 90, schedule 6. Changes are being made throughout the Bill 867 and a swathe of amendments has been tabled to deal with access to information, although I do not disagree that some of them are more or less useful. New clause 3 would create a binding duty on public authorities to assist people in exercising their rights. That is all. What is the big deal about that? In view of how extraordinarily difficult it is to understand the Bill, why would anyone oppose such a noble measure? It would assist the Government in the change of culture that they claim to seek.
In truth, I do not know why I bother to talk to Ministers as if they had any role to play. Somehow, the Bill has been removed from them and from the House of Commons to suit the demands of an unstated body, whether that be bureaucracy or Whitehall in general. As has been said in previous discussions, we have undertaken an extraordinary journey during our consideration, which started with sunshine and light and no one dissenting. A White Paper was proposed, we had a debate in Parliament and everyone congratulated the right hon. Member for South Shields (Dr. Clark) and commended the Public Administration Committee for the worthy and deliberative report that was produced under the chairmanship of the hon. Member for Cardiff, West (Mr. Morgan)—that splendid Member of the House who is now the leader in Wales, God bless him—but here we are, in reduced circumstances.
So many compliments were heaped on the Government that they were embarrassed, but somehow, after a consultative process in which no one seemed to raise any substantial objections to the outline of the White Paper, we have ended up with this miserable little Bill. As well as being miserable, it is almost unintelligible to the people to whom it is meant to mean something.
§ Mr. Deputy Speaker (Mr. Michael Lord)
Order. I hesitate to interrupt the hon. Gentleman, but his remarks are rather general. He would do well to be a bit more specific with regard to the amendment.
§ Mr. Shepherd
Gladly, Sir, and I accept that rebuke.
I was referring to clauses 1, 9 and 15, schedule 6, Government amendments Nos. 89 and 90 and new clause 3. The need for assistance—a guide through the difficulties of the Bill—is implicit; indeed, it is self-evident. I would have thought that the Minister could have said, "We do not need to delay progress on Report. We gladly accept that our intention was to make such assistance available and we shall provide all the help we can to the citizens of the United Kingdom with what we think of as a flagship Bill." However, we have a mouse of a Bill before us. I recommend that the Minister read new clause 3, overthrow the view expressed in Committee by my good friend the Under-Secretary of State for the Home Department and accept our proposal.
§ Mr. Lock
I thank the hon. Member for Aldridge-Brownhills (Mr. Shepherd). How could I resist such an invitation?
The issue is not and never has been whether public authorities shouldtake all reasonable steps to assistpeople who want to exercise their rights under the Bill. My hon. Friend the Under-Secretary of State for the Home Department, my right hon. Friend the Home Secretary and I have said repeatedly that the Bill is being passed to 868 create a culture of openness, to give people a right to know and in order that it shall be used, not to set up barriers to prevent its use. We are not going through the motions without establishing a proper system for allowing freedom of information.
The issue between the Government and my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher) and the hon. Member for Aldridge-Brownhills—both of whom have worked for many years, and for much longer than I have been a Member of the House, to promote freedom of information—is whether that is best achieved through either a statutory duty of the sort described in new clause 3 or the operation of a code of practice, as described in clause 44.
There are a number of simple and, I am afraid, technical reasons why the drafting of new clause 3 leads to one of two conclusions: either it is so vague that it would not achieve the laudable aim that we all share, or its vagueness would result in a duty being imposed that may be appropriate for some public authorities but disproportionate for others. What does "all reasonable steps" mean for a primary school that has to respond to a parent's request for information? The duty on that public authority, or on a single-handed general practice, would clearly be different from that on a Department dealing with a complex request. A code of practice issued by the Information Commissioner under clause 46 would set out, cope with and reflect the assistance and the degree of flexibility required better than would a statutory duty.
I heard what my hon. Friend the Member for Stoke-on-Trent, Central had to say. I have some sympathy for the way in which he put his case and I shall certainly reflect on it. I shall also ensure that my hon. Friend the Under-Secretary and I consider whether the duty to co-operate and to promote the underlying purpose is sufficiently reflected in the current drafting, whether the right way forward might be to strengthen the code of practice and whether there might be a way to introduce the issues that he raised, although not in that form due to the inflexibility that I mentioned.
§ Dr. Tony Wright
When my hon. Friend reflects on those matters, will he also reflect on why it is possible for many other, if not most, freedom of information systems around the world to include some kind of duty to assist? Usually, a commitment to reasonable assistance is expressed. If everyone else can do that, why cannot we?
§ Mr. Lock
We must operate within our own legal system, which is a common law system.
One purpose of the amendments, inasmuch as they point to specific occasions on which there is a need to respond—for example, when inadequate information is given—is to ensure that the way in which a public authority responds to a particular situation is defined and is adequate to provide assistance.
§ Mr. Fisher
Can my hon. Friend not see the irony in the fact that we are discussing the new clause because we found the code of practice introduced by the previous Government insufficient to address the problem, although it was well intentioned and had many laudable elements? 869 On the crucial matter of accessibility for the public, he is saying that he prefers a code of practice to providing a statutory duty. There seems to be an inconsistency.
§ Mr. Lock
My hon. Friend sums up the defects of the previous code of practice. What lies between us is not the end, but purely the means. Clause 44 already contains the requirement to include in the code of practice guidance on assisting applicants. We must consider whether that is the right place to direct a public authority to assist applicants, or whether that requirement should be taken from the code of practice and included in the Bill.
I have explained why a general duty in the Bill would not go any further than the code of practice and would cause problems for all types of public authority, whereas the code of practice itself is a more appropriate mechanism: it offers greater flexibility and can reflect the different types of public authority to which the Bill applies—a much wider category than that in the code.
My hon. Friend suggested that there was a defect in the system in that, to date, few people knew of their rights to apply under the code; we should thus do more to ensure that freedom of information was publicised; and that should be a duty on the commissioner. However, I point out that it is already a duty on the commissioner under clause 46(2).
My hon. Friend suggested that perhaps there was something in the water in Britain that prevented the public from knowing their rights. His constituents and mine are served by Severn Trent Water plc. However, although I certainly blame the company for overcharging and probably for making excessive profits, even I—as a critic of Severn Trent—could not go so far as to claim that it was dulling the inquiring minds of the populace.
I agree with my hon. Friend that we need to do much work over the coming years, but he should not minimise how radical the measure is. One way of ensuring that people will not know of, or exercise, their rights would be to undersell the measure—to minimise the rights that it will grant by talking it down. I urge him not to do that.
§ Mr. Bercow
I am grateful to the hon. Gentleman for giving way. However, it is pitiful to observe him being obliged—as I suppose he is—to spout such transparent nonsense in opposition to the new clause. Does he not agree that the fact that the interpretation ofall reasonable steps to assistwill vary from case to case does not invalidate the notion that the Bill should include an obligation to take all reasonable steps? Is not the hon. Gentleman arguing that he is in favour of public authorities taking all reasonable steps to assist so long as they are not statutorily obliged to do so?
§ Mr. Lock
I am astonished that the hon. Gentleman calls for a burden of regulation to be imposed on small authorities. We argued that the burden of regulation should be flexible and appropriate to the individual authority, not that it should apply uniformly to all authorities. If the hon. Gentleman understood the nature 870 of the imposition of statutory duties, he would realise that it is far more effective to ensure that the right amount of regulation is applied to authorities—an amount appropriate to their size and resources. That can be undertaken properly and flexibly only through a code of practice, not through a uniform statutory duty applying to all authorities in any circumstances.
§ Mr. Fisher
Will my hon. Friend clarify this matter for the House? Is he saying that the code of practice will specify the reasonable steps in each case—for a general practice, a primary school or the Health and Safety Commission? That would be a most voluminous and impossible document. Surely all we need is a duty to assist. We can argue about whether it is a code of practice or a statutory obligation—by now, my hon. Friend will have a clear idea of which direction the House wants the Government to take—but he cannot seriously be telling us that the code of practice will specify the degree of duty to assist for every authority of the 200-plus listed in schedule 1. That cannot be true. Before he digs a deeper pit for himself, I beg him to reconsider.
§ Mr. Lock
The code of practice will give broad guidance on what public authorities of different sizes and with different resources and obligations are required to do to give practical effect to the rights afforded in the Bill. That is a more flexible, appropriate and balanced way to ensure that those rights are enforced. I urge my hon. Friend to accept that that is better than imposing an all-embracing duty such as that set out in new clause 3.
§ Mr. Simon Hughes
Will the Minister imagine that he is a first-year A-level student who is asked to state the rights and duties that flow from the Bill? If we consider clause 1(4), for example, we see that an answer cannot be given without huge complexity. Clause 1 includes a statement of rights, but there is no statement of duty. Will he reflect on the fact that the new clause offers a statement of the duty on public authorities? That could then be illustrated in the lovely code of practice, which everyone could have as an extra Christmas present.
§ Mr. Lock
I appreciate what the hon. Gentleman is saying. However, the important point is that there are duties on authorities to comply with requirements and requests and that the authorities should ensure that they open themselves up. There is a statutory right to know and a duty on local authorities, schools and health authorities—all public authorities—to comply.
The narrow question between us is whether the duty to assist in all circumstances for all the authorities covered by the Bill is better expressed flexibly through a code of practice or through an all-embracing, one-size-fits-all statutory duty in the Bill. We may disagree on that point. However, even though the hon. Gentleman may not agree with the route, I hope that he will accept that the outcome—by virtue of the commitments made by my right hon. Friend the Home Secretary, my hon. Friend the Under-Secretary and me—will be the same, and that it might be in a form that is slightly better for all types of authority to handle.
§ Amendment agreed to.