HC Deb 05 April 2000 vol 347 cc981-1035 3.47 pm
Mr. Harry Cohen (Leyton and Wanstead)

I beg to move amendment No. 107, in page 7, line 28, leave out from "(e)" to end of line 31 and insert "section 38(1)".

Madam Speaker

With this it will be convenient to discuss the following amendments: No. 105, in clause 38, page 21, leave out lines 24 to 30 and insert—

  1. '(a) that the disclosure of information to a member of the public would be likely to result in a public authority breaching its obligation to respect the private life of individuals as set out in Article 8 of Schedule I to the Human Rights Act 1998, and'.
No. 106, in page 21, line 35, at end insert—
  1. (3A) When determining whether the obligation specified in subsection 3(a) is breached a public authority shall, in particular, have regard to—
    1. (a) whether the disclosure of information by the authority is likely to cause unwarranted damage or unwarranted distress to the private life of any individual who is identified by the information,
    2. (b) whether the disclosure of information by the authority is explicitly prohibited by any enactment other than a disclosure which may be required by this Act,
    3. (c) whether the disclosure of information by the authority is prohibited by the common law,
    4. (d) whether the substantial public interest would be served by the determination that the information should not be disclosed,
    5. (e) whether the information relates to other information of a similar nature which is readily accessible to the public, and
    6. (f) whether the disclosure of information by the authority would be likely to result in a public authority being in breach of an obligation under the Human Rights Act 1998, other than as specified in Article 8 of Schedule 1 to that Act.
  2. (3B) For the purpose of this section, any processing which is necessary to facilitate a disclosure of information by a public authority pursuant to a request under this Act shall be considered not to breach any data protection principle of the Data Protection Act 1998, and, for the avoidance of doubt, the data protection principles shall apply to any subsequent processing by any person to whom that information has been disclosed.'.
No. 108, in clause 69, page 35, line 21, at end insert—
  1. '(3) Subsection (1) shall not have effect in respect of any personal data obtained by a public authority after 23rd October 2007.'.
No. 109, in schedule 6, page 64, line 36, at end insert— '. In section 55 of that Act—
  1. (a) there is inserted after subsection (1)—
    1. "(1A) A data controller must not knowingly or recklessly obtain or disclose personal data in any way which causes a serious breach of any data protection principle.";
  2. (b) in subsection (2) the words "Subsection (1) does" are replaced by "Subsection (1) or (1A) do"; and
    3. 982
  3. (c) in subsection (3) the words "or (1A)" are inserted after "subsection (1)".'.

Mr. Cohen

The amendments deal with personal data and the complex interface between the Data Protection Act 1998 and the Bill, which taxed the Standing Committee considerably. I share the views expressed in Committee that the interface is overtly complicated and might not work effectively, and my amendments aim to deal with that problem.

First, I shall explain my understanding of the interface, to set the scene. If a request for information under the Bill relates to personal data, the clause 38 provisions are triggered. If the requester is the data subject and is seeking access to information about himself or herself, the request is treated, under clause 38(1), as a subject access request under the Act. Unless there is an exemption under that Act, the data subject will obtain access to personal data about himself or herself. If an exemption in the Act applies, the personal data become exempt information under the Bill.

Attention then turns to the provisions in clause 13(1)(a)(i) and clause 13(2)(e), which together mean that the exempt information is not considered for a discretionary disclosure. In summary, if an exemption under the Data Protection Act applies to the access request, that is the end of the matter, barring intervention from the courts or the data protection tribunal, and no disclosure takes place.

A similar procedure applies if the requester is not the data subject but is, for example, a journalist seeking access to the background papers associated with the decision not to extradite General Pinochet to Spain. Under clause 38(2), the public authority would consider the first condition in clause 38(3)(a). If the request was deemed to lead to a contravention of any data protection principle, the personal data would become exempt information. The provisions in clause 13(1)(a)(i) and clause 13(2)(e) would also apply and the exempt information would not be considered for discretionary disclosure.

I shall not repeat the points that were made in Committee; suffice it to say that the data protection principles are complex and the conditions in schedules 2 and 3 to the Data Protection Act present the public authority with difficult interpretations which relate to any processing operation. However, schedules 2 and 3 deal with only half of the first principle. One must also consider the application of the remaining seven and a half data protection principles, in particular the fairness rules of the first principle, which may mean that data subjects must be informed about freedom of information access. That would no doubt trigger the application of the right contained in section 10 of the Data Protection Act to object to the processing—in this case the disclosure under freedom of information rules.

A more critical way of putting it is that the application of the data protection principles presents a public authority with many arguments not to satisfy a freedom of information request. The authority could argue that a principle would be breached if personal data were involved.

As I have already said, the question of discretionary disclosure does not arise. We should take note of the view of the then Data Protection Registrar as expressed to the Public Accounts Committee in its deliberations on the draft Freedom of Information Bill. I have no doubt that my hon. Friend the Minister accepts that view as correct and it has not been denied. The then Data Protection Registrar said: there is a danger that you, (the requester), will get a limited amount of third party information. In Standing Committee, I noted that the Government refused amendments that sought to distinguish between an individual acting in a public capacity and an individual acting in a private capacity. Thus a request for access to personal data in relation to a public capacity is treated in exactly the same way as a request for access to personal data that is made in a private capacity. It follows that if the statement by the Data Protection Registrar is correct, there is considerable risk that a large volume of information could be exempt merely because it is personal data. If it is exempt information, access is likely to be withheld.

So what are personal data? Using the definitions in the Data Protection Act, personal data are any information which relates to a living individual—for example, decisions taken by officials and recorded as such. Other examples include minutes of meetings and papers discussed at those meetings, executive authority for action and attendees who discuss some public policy. As freedom of information requests for such documents will be from members of the public, it follows that the requests relate to personal data where the requester is not the data subject. It also follows that access to those personal data follows the clause 38 procedure, with the risks that I have already outlined, which could result in the information not being released.

It is my view that most freedom of information requests are requests for access to personal data: for example, someone might seek access to information on why my right hon. Friend the Secretary of State for Foreign and Commonwealth Affairs decided to allow jets to be sold to Indonesia. That might be deemed a request for access to personal data where my right hon. Friend is the data subject. That scenario is a simple example of why the current interface is fraught with difficulties in implementation. The loophole exists for information which should be in the public domain not to be released. That is against the spirit and the intention of freedom of information.

Let me provide a more likely example in which key papers relate to other living individuals. Let us suppose that there is a request for access to the minutes of a meeting between an IT supplier and a public authority to explore why a benefits computer system keeps failing. Such a request will involve access to personal data that relate to several people, including some who are public officials and others who are employees of the IT supplier. Clearly, word-processed documents that identify the authors of papers, the attenders at meetings or the opinions of identifiable contributors all constitute "personal data" as defined in section 1(1) of the Data Protection Act 1998.

I should like the Minister to clarify which condition in schedule 2 of the 1998 Act could legitimise the disclosure, in such a scenario, of all those personal data to a requester using the Freedom of Information Bill. I should also like to know what the fair processing implications are for private sector employees. If such details cannot be explained, it is easy to see how a public authority can claim a likely breach of the data protection principles, and thereby have the means to deny a freedom of information request.

Mr. Tam Dalyell (Linlithgow)

While my hon. Friend is on this subject, may I add to his question? Could we have the reflections of the Home Office on the effect on people in the public sector and people operating in the public sector—in particular Members of Parliament—given the celebrated case of George Strauss v. London Electricity Board? There is a problem here, I think.

Mr. Cohen

My hon. Friend makes a good point, which is also worthy of the Minister's response.

Several options are available to resolve some of the problems. For instance, any public official mentioned in the data could consent to the release of his personal data; but if a freedom of information request is dependent on such consent, it cannot really be called freedom of information. Of course, names, initials or identifiers of individuals can be removed from documents so that they are no longer personal data, but that might push up the cost of access towards the statutory limit. In addition, a public authority could turn a blind eye to the fact that the information is personal data, but the exercise of that blind eye is at the discretion of the public authority.

I am arguing that there are too many unanswered questions and that there needs to be a clear and uncomplicated exposition of how the interface will work. So far, none has been provided.

I shall now explain the benefit of my approach. It avoids the need to consider officials acting in a public versus private capacity and a "serious harm" test, which for some reason seems to strike fear into the Government. Instead of a breach of any of the data protection principles, my amendment makes the test of whether personal information is exempt information dependent on article 8 of the European convention on human rights, enshrined in our law in the Human Rights Act 1998. That approach also requires changes to clause 13 of the Bill.

First, I shall raise a quick point. My amendment does not affect the situation where the requester is the data subject; it deals only with access by an individual who is not the data subject.

My starting point is that before personal data about one individual can be released to another, a public authority must weigh many factors that define whether personal data should be exempt information. Most of those relate to the private life of an individual. By focusing on private life—the person's home, his family, his correspondence—my amendment draws the attention of a public authority to the fact that those private elements have a differential and greater weighting importance than decisions that relate to public life. It gives a clear steer that the protection of private life is the important factor that requires safeguards.

Those factors which protect private life are self-explanatory. They are whether the disclosure of information by the authority is likely to cause unwarranted damage or unwarranted distress to the private life of any individual who is identified by the information; whether the disclosure of information by the authority is explicitly prohibited by any other enactment; whether the disclosure—

Mr. John Bercow (Buckingham)

I am following the logic of the hon. Gentleman's argument closely. Is he advocating that Members of Parliament should have access to the personal data held on them by the respective Whips Offices?

Mr. Cohen

I had better not be drawn down that route for several reasons, not least the Whips' information; but of course there is information on the number of times we have voted and the number of times that we have rebelled, and that goes to our constituency parties. That is a welcome bit of freedom of information to our constituency parties.

4 pm

I wish to make some other points about the protection of private life. My amendment recognises that, in a case of disclosure of personal data to a requester who is not the data subject, other factors might have to be considered. Even when the request relates to exempt information, the amendment would ensure that the disclosure was weighed in the context of the provisions in clause 13. That means that the impact of the Government amendment, which will make personal data exempt from any discretionary disclosure under the clause, has to be removed. My amendment would allow the private life circumstances outlined in it to be considered in combination with the emphasis in the clause in favour of disclosure while allowing for a decision not to disclose where the impact on private life was proven to be unwarranted. That is the correct balance.

My amendment would ensure that the data protection principles would still apply to the subsequent processing by a requester of personal data disclosed by a public authority. That processing would still be subject to the Data Protection Act. Unless there is a Data Protection Act exemption, the transparency rules may oblige the requester to contact the data subject to alert him to the processing. My amendment would help the Government to get off the hook whereby proper freedom of information disclosures of public information could be blocked because of the current loophole in the Bill on personal data.

I wish to speak briefly to two other amendments in the group. Amendment No. 108 would ensure that all personal data, other than those relating to staff, that are collected by a public authority would be eventually subject to all the data protection principles. In effect, that would be from 24 October 2007 in the third consecutive term of the Labour Government.

My amendment would mean that all personal data have the same status as accessible records which are the unstructured, manual, personal files that are held for the purposes of housing, health and social work. In addition, not only would public authorities have until 2007 to prepare for the change, but my amendment would apply only to data collected after 23 October 2007. The change is minimal but important. The amendment probes why the Government have stepped back from their undertaking to subject all personal files to a data protection regime.

It is relevant to compare clause 69 with equivalent provisions in the consultation document "Your Right to Know", Cm 3818. That document stated: The Freedom of Information Act will be drafted so that it is compatible with the Data Protection principles. It gave the impression that all non-automated personal information would eventually be subject to some or all of the data protection principles. It did not say that a freedom of information Bill would be drafted so that it would be exempt from those principles, but that seems to be the case with this Bill. Clause 69 is a long way from the compatibility promised in the consultation document.

The Data Protection Act 1998 recognises four types of information about individuals as being personal data. They are information processed by automated equipment; information recorded so that it should be processed by such equipment; information recorded to be part of a relevant filing system, most notably information recorded in a highly structured manual filing system; and information recorded as part of an accessible record, which is that information open to access by previous Bills inspired by freedom of information, such as the Access to Personal Files Act 1987 which covered health, social service, housing and education records. It is noteworthy that such accessible records will, by 24 October 2007, be afforded the full protection of the Data Protection Act.

It should also be noted that unstructured information includes a significant file of personal information that many normal people would call structured. That includes papers in date order that all relate to an individual and perhaps have his name on the cover. That is made clear in the explanatory notes that accompanied the Bill and what was then the Data Protection Bill, which provide an example of the new variant of data. The notes refer to a case file about an individual which contains correspondence about a number of matters relating to that individual and is indexed by reference only to the dates of correspondence. That is why I believe that all personal data, irrespective of structure, should eventually be subject to the Data Protection Act 1998. That Act accords a good deal of protection to the information via its eight data protection principles.

Mr. Nick Hawkins (Surrey Heath)

I am following carefully what the hon. Gentleman has said. I shall, of course, have a chance to respond in detail. He has been talking about the contrast between the White Paper "Your Right to Know" and the Bill. Does he agree with what the Campaign for Freedom of Information has produced? It produced a sheet headed "Anger with the draft Bill as compared with praise for the White Paper?" Has the hon. Gentleman seen that, and does he agree with the campaign's analysis?

Mr. Cohen

That is a much broader issue that covers many aspects of the Bill. I would probably agree in some instances and not in others. However, as I have been drawn on a specific issue, I shall say that there is clearly a difference between the Bill and the consultation paper. I hope that my hon. Friend the Minister will take it up when he responds to the debate.

Simply put, the Government's approach has some undesirable consequences allowing for such unstructured personal data to be, for example, processed unfairly, to contain irrelevant and excessive personal data, to remain inaccurate and out of date, to be retained for ever and to be processed insecurely and transferred to any country, perhaps one where a tyrant is in charge. The purpose of the amendment is to place all personal data on the same basis as accessible records. From 2007—when accessible records have to comply with the data protection principles—I want other unstructured personal data to do likewise.

The objective of amendment No.109 is to correct an imbalance in the Data Protection Act. At present, if a member of staff deliberately sets out to flout the law, a number of punishments are available. Section 55 of the Act relates to unauthorised obtaining and disclosing. Alternatively, the provisions of the Computer Misuse Act 1990 may apply. In addition, Government often criminalise unauthorised disclosures directly in official secrets legislation, finance law and social security Acts.

We all recognise that if staff breach the rules, there should be the prospect of criminal sanctions if the situation merits it. I find it surprising that there is no counterbalance if an organisation or a data controller sets out deliberately to flout the same privacy rules. Let us suppose that a data controller knows that there has been a position established by the courts or a data protection tribunal on the need to inform individuals of all processing purposes in advance of any processing. What happens if that controller sets out to keep such details secret? Under the Data Protection Act or any other legislation, there is no effective criminal sanction.

The Data Protection Registrar can huff and puff and stop the processing, but he or she cannot apply a direct criminal sanction. It is a mechanism that allows some controllers to say, "We can process without any regard to data protection laws until we get caught."

If it can be established that an organisation has systematically and deliberately set out to invade privacy, a criminal sanction should be available. I am rather surprised that it is not. If an individual member of staff systematically and deliberately set out to invade privacy, a criminal sanction would be available. If my amendment were accepted, it would be an offence for a data controller deliberately to set out to process personal data in a way likely to cause a serious breach of a data protection principle. I am not defining any deliberate breach of a principle as being an offence, although I was tempted to do so.

As I have said, the matter must be serious. I inserted the word "serious" in order to reassure data controllers that the offence is not to apply too widely to minor indiscretions, and that it would not be used in an officious manner. An employee commits an offence if he breaches the Data Protection Act, but there are no criminal penalties if an organisation sets out deliberately to flout its data protection duties. My amendment would redress the imbalance.

I am sorry that I have taken so much of the House's time, but these are complicated matters. I think that it is important to get them on the record and to get a response from my hon. Friend the Minister.

Mr. Hawkins

The hon. Member for Leyton and Wanstead (Mr. Cohen) need not apologise to the House for the way in which he has just moved his amendments. I hope I do not embarrass him when I say that it is typical of the thoroughness with which he approaches all matters that he has gone through the amendments in detail and explained the seriousness of the issues involved. Not for the first time, I find myself agreeing with much of what he says. He has again provided a classic example of the reason why he is exceptionally popular among Members of Parliament on both sides of the House. He and I have, on occasion, disagreed about one issue—nuclear disarmament—but on almost all other issues, I find myself largely in agreement with him because I know the seriousness with which he approaches important matters.

The official Opposition have a great deal of sympathy with the hon. Gentleman's amendments. He describes them as probing amendments, and he is wise to do so, but I hope that the Under-Secretary of State for the Home Department, the hon. Member for North Warwickshire (Mr. O'Brien), is shortly to tell us that the Government are prepared to consider the issues with a view to making provision for them. The hon. Member for Leyton and Wanstead was present in the Chamber for much of yesterday's debates, so he will have heard me say that, quite separate from my Front-Bench responsibilities, I have a personal, long-standing interest, arising from my professional work, in the Data Protection Act and its operation.

The hon. Gentleman has made many good points. It is possible that the Minister might tell us that not all of the issues addressed by the amendments can be dealt with in the Freedom of Information Bill, but I hope that the Minister will be able to give his hon. Friend and the House an undertaking that the issues will be considered. Issues of protection of personal privacy are enormously important, and the hon. Gentleman is right to highlight the interesting overlap between the Bill and the Human Rights Act 1998. In due course, the Government might have to admit that they have got the legislative cost assessment completely wrong and that they have colossally underestimated the cost to the taxpayer of the new legislation. We might return to that matter later.

I do not want to detain the House. I simply wanted to express the Opposition's appreciation of the careful approach taken by the hon. Member for Leyton and Wanstead. We have a great deal of sympathy with his arguments. He has made it clear that he does not intend to press the amendment to a Division, but I hope that, either in another place or when the Bill returns to the House of Commons, we hear a great deal more on the subject. I shall be pleased if many of the hon. Gentleman's proposals are later incorporated in legislation, either in the Freedom of Information Bill or a later measure.

The Parliamentary Under-Secretary of State for the Home Department(Mr. Mike O'Brien)

Probably for the first time, I agree with the hon. Member for Surrey Heath (Mr. Hawkins)—that is, in his tribute to my hon. Friend the Member for Leyton and Wanstead (Mr. Cohen) for the thorough way in which he has addressed important issues.

My hon. Friend described the complex interface between the Data Protection Act 1998 and what will become the Freedom of Information Act; he might also have mentioned the complex relationship that is superimposed on that by the Human Rights Act 1998. Each of those pieces of legislation will interplay with the others in a complex way. My hon. Friend is right to say that we need to be sure that the juxtaposition of those measures does not cause unnecessary confusion.

I accept some of my hon. Friend's points, even though I cannot accept the amendments—I shall explain why not shortly. I accept his arguments about the need to examine precisely how the measures will interrelate and I undertake to consider, while the Bill goes through the other place, ways in which we can simplify and clarify the various relationships, especially that between the Data Protection Act and this Bill.

My hon. Friend has highlighted a difficulty: the Data Protection Act protects personal data, but some requests for information under what will be the Freedom of Information Act will be in respect of individuals, and so may affect personal data held by public authorities. Getting right the balance between the public's right to know, under freedom of information legislation, and the public's right to privacy, under data protection legislation, is a difficult matter. Struggle as we may, it is possible that we will not get that balance right for all time in this legislation. Over many years we may have to continue to adjust a complex balance.

4.15 pm
Mr. Dalyell

It would not occur to me to ask my hon. Friend to answer off the top of his head, but while he is making inquiries, will he look at the position of Members of Parliament and data, particularly in relation to the case long ago of George Strauss v. London Electricity Board, when the Privileges Committee was overturned and it was decided, rightly or wrongly, that Members of Parliament should not have the protection that many thought they had at the time? These are extremely complex matters, but in the due course of events they should be looked at.

Mr. O'Brien

I certainly undertake to my hon. Friend to look at these matters. As he says, they are complex. The best approach that I could take would be to take advice from our lawyers about how the legislation might operate. I shall then write to my hon. Friend setting out how I think it might affect Members of Parliament. In due course it may be appropriate to discuss that advice in a wider context.

I shall look carefully at what my hon. Friend the Member for Leyton and Wanstead says. He asks which part of schedule 2 of the 1998 Act can legitimise the processing of personal data about employees. Fair processing of data may take place where the data subject gives his consent, the processing is necessary for the performance of a contract to which the data subject is a party, and if it is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by a contract. Those are some of the circumstances in which information may be given.

My hon. Friend asked about extending the Data Protection Act to include non-structured personal files. As his contribution showed, he is aware of the way in which we have so far progressed the 1998 Act. Because of the nature of non-structured files—that is, files held neither on computers nor in a filing system—we have taken the view that it is not appropriate for the full impact of the DPA to apply to that information at this time.

By definition, such files are not easily searched. We have extended the principles of accessibility and accuracy to those files, but not other principles. These files are not covered by the DPA at present. It has been determined by the European Union that it would be too burdensome to business to extend full protection to that information. I was therefore a little surprised at the extent of agreement between the Conservative Front-Bench spokesman and my hon. Friend about extending such regulation to business. No doubt they can justify their wish to do so.

We have delivered the White Paper broadly as promised, but personal files will be covered by access, to some extent, under the DPA; other files may well be accessible via the freedom of information legislation.

I make no apology for going into a realm of some complexity as my hon. Friend did. It will take some time, but that is necessary in order to deal with an important and complex technical issue. The effect of amendment No. 107 would be to apply clause 13, the duty to disclose in the public interest, to information which is exempt by virtue of clause 38(2) in so far as it relates to the conditions referred to there—that is, disclosing personal information about a third party where disclosure is contrary to the data protection principles in the Data Protection Act 1998. A disclosure contrary to those principles would be contrary both to EU law and to the European convention on human rights, particularly in relation to article 8, as my hon. Friend identified. Despite that, the public interest could be taken into account when considering whether disclosure would contravene data protection principles. The amendment is unnecessary, because the public interest could be considered, but not to the extent that my hon. Friend the Member for Leyton and Wanstead seeks, through applying clause 13 to data protection principles.

If we extended the provisions of clause 13, as amended by our proposals, to the Data Protection Act, we would undermine the principles of the data protection directive. I am advised that that would place us in breach of European Union law. We would also be in serious danger of compromising our position in relation to article 8 of the European convention on human rights. My hon. Friend identified those issues.

If we are to get the complexities of the Data Protection Act 1998 and the Freedom of Information Bill right, it would be wrong to put ourselves in a position whereby we undermined European Union directives and possibly the Human Rights Act 1998, which comes into effect on 2 October.

It would be unwise to adopt the approach that my hon. Friend suggests. That does not mean that he has not raised substantive and important points. I want to consider the matter further. Perhaps I can advise him in due course about a method of proceeding. We cannot proceed in the way my hon. Friend suggests in the amendment, for the reasons I have given. Perhaps it might be helpful if he and I met to discuss the matter further.

Amendment No. 109 covers a slightly different matter. Section 55 of the Data Protection Act makes it an offence for a person knowingly or recklessly to obtain, disclose or procure the disclosure of personal data without the consent of the data controller. It would catch an employee of the controller who disclosed personal data about the controller's instructions. The data controller is not caught by section 55. The test of the legitimacy of his actions is whether they are consistent with data protection principles. If the data controller breaches the principles, the Data Protection Commissioner may issue an enforcement notice against him. Failure to comply with such a notice is an offence.

Amendment No. 109 would make it an offence for the controller knowingly or recklessly to obtain or disclose personal data in a way that would seriously breach data protection principles. The amendment therefore conflicts with the general approach to enforcing data protection principles that is already enshrined in the 1998 Act. I understand my hon. Friend's point that, nevertheless, there may be reasons for doing that.

The data protection legislation has operated relatively well so far, however. There have been no substantial problems. The arrangements have worked well, and the commissioner has tried to resolve problems without the need for formal enforcement. She issued only five enforcement notices in 1998–99. We do not know of any prosecutions for failure to comply with a notice.

My hon. Friend identified a genuine problem. The legislation is currently operating reasonably well, but my hon. Friend has raised a serious issue. We cannot accept the amendment because it would conflict with data protection principles. However, as the years pass, we can keep the matter under review and, if we need to enhance the procedures for protecting those who want to ensure that their privacy is not invaded, we shall reconsider the matter. At this point, we are not in a position to accept amendment No. 109.

In many ways, prosecution is a blunt instrument. A conviction is a punishment and it can influence behaviour, but it is not targeted on the specific problem that my hon. Friend identified. Enforcement notices, on the other hand, address the issue in question: they identify the precise steps needed to improve behaviour and they clearly work. Although we could not be persuaded that immediate criminal action would add to them significantly at the moment, we do not have a closed mind for the long term. On that basis, I hope that my hon. Friend will withdraw his amendment, which he has said he is able to do.

Mr. Cohen

I thank the hon. Member for Surrey Heath (Mr. Hawkins) and the Minister for their kind words. By way of a return compliment, they are both very able too, but that does not preclude a good oral punch-up when we disagree. I also thank my hon. Friend for his considered response and I appreciate what he said. I shall read his remarks closely. He is right that there is a balance to be struck between the right to know and privacy. I support both aspects, but a private-public distinction needs to be made. There should be no excuse in respect of personal data for a public authority not to disclose, nor should there be loopholes at the interface between the Data Protection Act 1998 and the Bill which get public authorities out of disclosure.

I appreciate my hon. Friend's saying that his mind is not closed to some of my amendments and that he is prepared to meet to discuss them. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 47, in page 7, line 35, leave out subsections (3) to (5) and insert—

  1. '(3) Where the duty to confirm or deny does not arise but it appears to the public authority that, in all the circumstances of the case, the public interest in disclosing the fact that the authority does or does not hold information of the description specified in the request outweighs the public interest in maintaining the exemption in question, the authority shall inform the applicant whether it holds the information.
  2. (4) Where—
    1. (a) the public authority holds information of the description specified in the request and has informed, or intends to inform, the applicant that it does so, and
    2. (b) it appears to the authority that, in all the circumstances of the case, the public interest in disclosing the information outweighs the public interest in maintaining the exemption in question,
the public authority shall communicate the information to the applicant.'.—[Mr. Mike Hall.]

Dr. Tony Wright (Cannock Chase)

I beg to move amendment No. 7, in page 8, line 8, leave out subsection (6).

Madam Speaker

With this it will be convenient to discuss the following: Government amendment No. 48.

Amendment No. 8, in clause 33, page 18, line 27, leave out "it relates to" and insert— 'its disclosure under this Act would, or would be likely to, prejudice'. Amendment No. 9, in page 18, line 29, after "(b)", insert— 'the candour and frankness of'. Amendment No. 10, in page 18, line 32, at end insert—

  1. '(1A) Information is not exempt by virtue of subsection (1) or section 34 insofar as it consists of factual information.'.
Amendment No. 11, in page 18, line 32, at end insert—
  1. '(1A) Information is not exempt by virtue of subsection (1) or section 34 insofar as it consists of the analysis of factual information or expert advice on a scientific, technical, medical, financial, statistical or other matter, unless its disclosure would, or would be likely to, substantially prejudice the formulation or development of government policy.'.
Amendment No. 91, in page 18, line 32, at end insert—
  1. '(1A) Information is not exempt by virtue of subsection (1) insofar as it consists of factual information or the analysis of such information.
  2. (1B) Information is not exempt by virtue of subsection (1) insofar as it consists of a description of the options which are or have been under consideration except to the extent that—
    1. (a) to reveal those options at the time of complying with the request for information would or would be likely to prejudice the formulation or development of government policy; or
    2. (b) it consists of the advice, opinion or recommendation of any person in relation to any such option.'.

Dr. Wright

We now come to the meat of the Bill.

Mr. Hawkins

It was pretty meaty last night.

Dr. Wright

I should put it on the record that the look delivered to me by my right hon. Friend the Home Secretary shows that he thinks that we dealt with the meat of the Bill last night, but I am afraid that today brings further meat.

On any test, clauses 33 and 34, with which the amendments begin to deal, are at the centre of the Bill. The more I read them, and I cannot count the times that I have been through them, the more astonished I become that the Government could have presented such an exemption in such a form. May I remind myself and the House of what they do? They begin in clause 33 with a huge and blanket class exemption, including one for the formulation or development of government policy… That is the first protection. They move on to a prejudice test exemption, which is the second category of protection. In providing that, they include in clause 34 a provision on the reasonable opinion of a qualified person… which produces a third layer of protection. In case it is still unclear that they are protecting absolutely everything that could conceivably be protected, they include a catch-all category called the effective conduct of public affairs. Four barricades have been erected against disclosure on policy formulation. That is a gigantic set of exemptions; no harm test would apply.

4.30 pm

Factual information underlying policy decisions would simply be exempt. I shall say more about that shortly. The commissioner could attempt to require the disclosure of any information to which clause 33 applies, including factual information, but Ministers could then veto any such disclosure. We began to discuss that last night.

I hope eventually to interest the House in amendment No. 10, which would remove factual information from the exemption altogether. I consider it the key element. It would bring the Bill into line with normal practice elsewhere—although we, the cross-party signatories, offer a number of alternative ways of approaching the same issue.

Let me briefly remind the House of the issues that are at stake. Clause 33(1) provides the blanket exemption. It excludes anything relating to the formulation or development of government policy…Ministerial communications…the provision of advice by any of the Law Officers or any request for the provision of such advice, or…the operation of any Ministerial private office. Clause 33(2) is particularly vicious, in that it permits Departments to refuse even to confirm or deny whether requested information exists.

The Government amendments would mean that the commissioner could order the disclosure of information relating to policy formulation in the public interest; but any order of that kind, including one relating simply to factual information, could be vetoed by Ministers.

It should be borne in mind that the provisions in clause 33(1) do not apply simply to high-level civil service advice and sensitive policy advice; they apply across the board. Nothing that crosses the desks of Ministers or their advisers in connection with policy would have to be disclosed, even after decisions had been made, announced and implemented. Factual information on which decisions are based and scientific advice, for instance, would be edited out. Submissions from lobbyists, enabling us to see what representations had been made to Government, would similarly be covered.

Clause 34 can be brought to bear on anything that is not already caught by clause 33. It applies both to Government Departments and to all other authorities. In so doing, it provides substantial additional grounds for withholding information, all of which, as I have said, will be established only by the reasonable opinion of a qualified person.

Only clause 13 provides any balance. If amended in the way proposed by the Government, it would require an authority to disclose information relating to policy formulation if it appeared to the authority that in all the circumstances of the case the public interest in disclosing the information outweighs the public interest in maintaining the exemption in question. However, there is no harm test, and therefore no description of the public interest that the measure is designed to protect. The absence of a purpose clause, which we discussed yesterday, is particularly important in this context. Such a clause is not available to frame a view on where the public interest might lie in relation to disclosure.

The point of clause 33(1) is to assert the belief that any insight into the working of Government—into the factual background against which policy decisions are made—is likely to be damaging. It takes no account of the fact that such limited disclosure might lead to more informed debate and to better understanding of some of the complex issues involved, and that it might reassure the public that issues are being thoroughly examined and settled after proper consideration.

The provision ignores the fact that more scrutiny may increase the rigour of the analysis. It even ignores the fact that when we have moved in that direction—as with publication of the minutes of meetings between the Chancellor and the Governor of the Bank of England—it has, on the whole, proved to be beneficial. When we have gone even further, by publishing the minutes of meetings of the Monetary Policy Committee, the sky has not fallen in. Such action has even been thought to be an act of strengthening generally helpful to policy making.

The Government's approach in that particular sphere of freedom of information is so perplexing largely because it is quite distinctly at odds with what they are saying about the approach that they now want to apply to policy making generally. Ministers have only to read the modernising government White Paper and all its associated documents to see that the Government's overall emphasis is on more access to the information on which policy is made, so that we shall have better policy making.

A rather interesting document was produced recently by the Cabinet Office, entitled "Wiring it Up: Whitehall's management of cross-cutting policies and services." The document is all about—I am sorry to lapse into the jargon—cross-cuttingness, which has now replaced joined-upness as the way of talking about these issues. Conclusion 28 could not be clearer: The Government should: make available to Select Committees in both Houses, at an early stage in the policy process, information about the factual and analytical basis of cross-cutting policies, including joint appraisals. The Government themselves say that provision of that type of factual information contributes to more effective policy making, but in their freedom of information provisions, that whole category of information is to be exempt. I am not inventing contradiction here; there is contradiction here. On this issue, the modernising government initiative is the right one, and the freedom of information initiative is the wrong one.

As constructed, the exemption makes no sense either internationally or in policy making. It does not even try to distinguish between views, comments or opinions that have to be properly protected and the background—the factual basis—that has to be exposed to scrutiny and debate. The Government have taken that position—which is astonishing—but the weight of all the evidence, historical and comparative, is against it.

I shall not go through the whole long list, but I should like to remind the House of how we reached that position. In their White Paper, the Government promised: we are prepared to expose government information at all levels to FOI legislation, subject to a "test of simple harm".

The Home Secretary, in talking about these matters to the Select Committee on Public Administration, said that the issue of factual or background information…is important and…I think on the whole ought to be disclosed. Perhaps I could say in the margin that I do not at all think, and never have believed, that the Home Secretary represents the real obstruction in the matter. I am not sure how to put this—it may seem a preposterous suggestion—but I think that there are forces in the land that are even mightier than the Home Secretary.

The Secretary of State for the Home Department (Mr. Jack Straw)

Fact or opinion?

Dr. Wright

Probably both. I will not identify those forces, but we have to try to find an explanation for the current drafting of clauses 33 and 34. I do not believe that my right hon. Friend the Home Secretary is the origin of them, but he has to defend them. He has promised, as in the quotation that I have just given, that he will try to open up that area. So far that has not proved possible.

The open government code that we currently operate under is stronger than what is now being proposed. Under the code, information relating to policy can be withheld only if disclosure would harm the frankness and candour of internal discussion. The code also requires that facts and the analysis of facts that Departments rely on in reaching decisions must be published.

The important Croham directive back in 1977 provided that what it called "factual and analytical material" should normally be published as soon as decisions had been taken. The assumption was that, from that point, the civil service and the policy-making machine would proceed on that basis. If they made that distinction, such information would be available.

There is a further point that was mentioned on Second Reading, but it is worth mentioning again. In evidence to the House of Lords Select Committee, the former Cabinet Secretary Lord Butler said: When we were coming up to the 1997 election, knowing what the government policy was in this matter, my senior colleagues and I gave some thought to how we could regularly structure submissions to Ministers in a way that would enable us easily to separate the background which was publishable from, as it were, the subjective advice which was confidential. It would take a bit of training and changing practice to do that, but I think that people could very readily adapt to that. We cannot get a more authoritative view on the practicability of the matter than that of a Cabinet Secretary who thought that Whitehall was about to be asked to do that because of what we had said.

Mr. John Greenway (Ryedale)

In his role as the Chairman of the important Committee that deals with these matters, has the hon. Gentleman come across any evidence of difficulty with the existing code of practice? The Bill rows back significantly from that code of practice. I wondered whether the code of practice had created difficulties that might excuse those who have pressed for the Bill.

Dr. Wright

All who have taken an interest in the issue over the years, including those who have had to use the code—I refer in particular to the parliamentary ombudsman, who has had to oversee it—came to the conclusion that it was time to move from code to statute. They have decided that in this area we should have rights rather than simply an informal code.

There are examples from Scotland, Ireland and New Zealand. Other countries have proceeded in a way different from our Government's.

Clause 13(6) should be deleted. It requires authorities, when considering making a discretionary disclosure of information relating to what it calls the development and formulation of Government policy, to also have regard to the desirability of communicating to the applicant factual information which has been used, or is intended to be used, to provide an informed background to decision-taking. 4.45 pm

Government amendment No. 48 would retain clause 13(6) but strengthen it in a minimalist direction. It would delete the words also have regard to the desirability of and replace them with the words in particular have regard to the public interest in. Under that approach, factual information relating to policy formulation remains exempt. A legal draftsman might consider that there had been movement, but people interested in ensuring access to factual information will believe that the situation remains essentially the same. Clause 13(6) therefore has to go, which is what amendment No. 7 would accomplish.

Amendments Nos. 8 to 11—and, in a different manner, amendment No. 91—offer a variety of ways of ensuring that the Bill contains the provisions that we consider necessary. Amendment No. 8 would introduce a harm test into each of the four class exemptions set out in clause 33(1). Amendment No. 9 would qualify the interest that is prejudiced by ensuring that clause 33(1)(b) talks about the "candour and frankness" of ministerial communications, as opposed to the simple "Ministerial communications" now in the clause.

I draw the House's attention to amendment No. 10 in particular. It is the simplest and crispest of all the amendments in this group: Information is not exempt by virtue of subsection (1) or section 34 insofar as it consists of factual information. The amendment would remove factual information from the scope of the exemptions relating to the formulation of policy.

No one pretends for a second that there are aspects of government that do not have to be protected. In such areas, confidence has to reign, deliberation has to be private, opinions and views must be exchanged and advice given. There has never been a suggestion that hon. Members do not understand that good government could not proceed otherwise.

However, we insist that some necessary distinctions should be made, and I can do no better than to quote Lord Nolan. Reflecting on his experiences as chairman of the Nolan committee a few years ago, he said: One of the seven principles of public life which our committee propounded is openness. I am tempted to say it is the fundamental principle of the seven, because without it, in this age of scepticism, public confidence in standards of conduct will not flourish. He went on to say: There have to be limits on openness, of course, without which the process of discussion within government would become impossible. In this context, one can reverse C.P. Scott's famous dictum and say "facts are free but comment is sacred". That is the essential point—facts are free. The public right of access is to the factual basis on which policy is made. Amendment No. 7 begins the process of ensuring that we get that. Amendment No. 10—on which I hope we will get a chance to vote later—will enable us to secure it directly.

When this Bill was promised, there was never any indication, suggestion or belief that it would not differentiate policy background and policy advice, but that is what we are being presented with in clauses 33 and 34. In that sense, the amendments are only inserting provisions that we thought the Bill would contain in the first place.

Mr. Greenway

I will not detain the House. As the Home Secretary will have gathered and will have been advised by his hon. Friends, I had a great deal to say on these issues in Committee. I need only refer hon. Members and those outside this place to the Hansard reports of the fifth and ninth sittings of the Standing Committee.

Even though it was intimated in Committee that the Government would have some regard to what was said, nothing has changed. Not only is the Bill as it was, but nothing on the amendment paper would appear to alter it. I find that disappointing for two reasons. First, it will be obvious from the debate in Committee, from what the hon. Member for Cannock Chase (Dr. Wright) said and from the cross-party consensus in support of his group of amendments, that the House is dissatisfied with the Bill as drafted. The hon. Gentleman is right in saying that this matter is the meat of the Bill. While we may have differences about the regulatory and enforcement arrangements and about who should have the final say on whether information is released, the sort of information that is released is at the heart of the matter. If we cannot agree in this place that facts and information that support Government policy decisions should routinely be available, I ask the Home Secretary, what is the point of having the Bill?

I intervened as I did on the hon. Member for Cannock Chase not necessarily to restart the argument that the code of practice is better than the statutory basis that is the Bill and the fact that a right to information is being enshrined in statute, because I think that we have all accepted that that is probably the right way to proceed. I intervened because the code of practice provides for the release of information, facts and figures that support and underpin Government policy decisions. The hon. Gentleman alluded to the fact that it was not the Home Secretary who was the barrier to the matter being resolved, but others whose identity is more obscure.

I intervened because it seemed to me that something in the working of the code, which requires the release of those facts and figures, must have persuaded officials in various Departments that it would be a good idea to tighten things up and not to include the provision in the Bill, which underpins the code. I am not aware that there has been a difficulty, but I am not and have never been a Minister, although I hope that one day soon I shall be. However, that is for another day.

The second reason why I am gravely disappointed that the Government have not produced a change, having said that there is clearly a consensus in this place that the Bill is defective, is because it must be abundantly clear to Ministers that the other place will come to the self-same judgment. Notwithstanding the Prime Minister's attempts to ensure that he has a greater chance to overturn rebellion in the other place, I have a strong suspicion that this part of the Bill will be amended there and that we will have to debate this matter all over again, as we did with the Representation of the People Bill a few weeks ago. Then, we advanced our arguments on one issue after another and the consensus view clearly supported them, but we had to rely on the unelected second Chamber to ensure that some democracy in this Parliament was evident to people outside. That is a matter of profound regret.

Mr. Straw

Am I to take it from what the hon. Gentleman says that his idea of democracy is that the losers win?

Mr. Greenway

No. My idea of democracy is that when it is abundantly clear that the view of this House—the elected Chamber—is that Government policy is unacceptable, that view should prevail over the opinions that will ultimately prevail not because of votes in this place but because, as has happened so many times before, the Government are persuaded that they cannot get a Bill through the other place without changing it. How much better it would be if those of us who are elected to this House could frame the law as we all think best, instead of the Home Secretary and Ministers relying on the three-line Whip for the vote of Labour Members who are not here to listen to the arguments.

Mr. David Davis (Haltemprice and Howden)

Is it not also the case that one important aspect of democracy is that the party that is elected carries through what appeared to be a manifesto commitment to freedom of information?

Mr. Greenway

My right hon. Friend is right. In essence, not only was this a manifesto commitment, it was a White Paper promise. However, I do not want to stray beyond the parameters of the specific amendments before us. I am sure that there will be other opportunities to debate these issues in the wider context.

I cannot accept that the release of information that is available to Ministers and has informed their policy decisions should not be generally available to members of the public as well as to Members of this House under a statutory freedom of information arrangement. This is at the heart of what we are attempting to do. I am very disappointed that Ministers have completely ignored the views put forward in Committee, which are so clearly shared by right hon. and hon. Members on both sides of the House.

I look forward to catching your eye in a few weeks' time, Mr. Deputy Speaker, and speaking on this measure once changes have been proposed in the other place. I hope that, on that occasion, Ministers will eat humble pie, accept the change and not force through a reversal. I cannot believe that a Freedom of Information Bill worthy of the name does not provide for the release of information on Government policy, but this Bill clearly does not do so.

Mr. Tony Benn (Chesterfield)

First, I congratulate the Members of the House on both sides who have fought this campaign. I regard this as the beginning of a recovery of power by the legislature in dealing with the Executive. This debate and its conclusion will be seen as very significant in the development of parliamentary democracy.

Of course, there have been some moves towards this. The Government of whom I was a Member introduced Green Papers to allow consultation. However, the Bill is a disappointment. The older I get, the more I realise how difficult past reforms were. I am not sure that the Home Secretary would encourage the publication of Hansard. He might well say—[Interruption.]—Hon. Members laugh, but there was a battle; Hansard was put in prison. I am not joking. The argument would be that it would not be in the public interest for the public to know what was said in Parliament.

5 pm

We are approaching the heart of the democratic deficit. Ministers say, "The democratic deficit means that I must decide, not the House of Commons". However, the fault line in democracy does not lie in what Ministers say. When we first arrive at the House as MPs, we all have to take an Oath of Allegiance to the Crown. As this is the High Court of Parliament, I always assumed that I should take an oath to tell the truth, the whole truth and nothing but the truth. That seems to be an appropriate oath for a Member approaching the High Court of Parliament. Privy Councillors take another oath. The truth is that, at that moment, the Executive, in the form of Ministers, are standing against Parliament and the public interest. That is what the matter is really about.

Ministers are often kept in the dark. When I was in the Cabinet, I once said that I wished we had freedom of information for Cabinet Ministers—but that was seen as an inappropriate joke. However, I should be very surprised if the Home Secretary knows much about what the security services are doing. If he does, he is the first Home Secretary ever to do so. He is a manager and we are representatives. The division between the Government and the House is the real division.

The longer I served in Government—I was a Minister for 11 years—the more I found that it was easy for people to confuse the public interest with the convenience of Ministers. That is easy to do; if it embarrasses Ministers, it cannot be in the public interest—but in fact, it is not in the interest of Ministers.

That argument leads to another point: I cannot think of any secrets that I ever knew. I do not want to disappoint those Members who are hoping for office, but those of us who have held office know that there are few secrets in government. I knew what would be in the Budget 24 hours before it was announced, and was afraid that I should sleepwalk and tell somebody. I knew that we were going to devalue the pound 48 hours before we did so. I knew the Government's position on negotiations with foreign Governments—that all came out when the negotiations took place. I knew what would be in the honours list before it came out—but everybody knows that.

In the old days, if the fact that a man was to be given a peerage was leaked, that ruled it out completely. Nowadays, the immigration laws have been amended; if one agrees to live here, one is put in the House of Lords. However, that is another question.

The real reason why I want to contribute to the debate is because of the nuclear industry, for which I had responsibility for many years. Recent events at Sellafield confirm what I learned by experience; even as a Minister—let alone a Member of Parliament—I was never told the truth by the nuclear industry. For example, I found out about the fire at Windscale—now called Sellafield—only when I visited Tokyo. My officials had never told me about it. When I asked them why they had not done so, they said, "It was before you were a Minister".

When the Americans discovered that there had been an explosion at Khysthm, the major Soviet reprocessing plant, I was never told. I asked the chairman of the Atomic Energy Authority, "Why didn't you tell me?" He replied, "We were told by the Central Intelligence Agency not to tell British Ministers, because it could create concern about the safety of nuclear power".

It was not until I left office that I discovered that, while I had been making honest speeches about atoms for peace, all the plutonium from our civil nuclear power stations was going to America to make the bomb. The atoms for peace power stations were bomb factories for the Pentagon. I felt affronted by that. Had people known the facts at the time, the development of the debate on nuclear power and the nuclear industry would have been much better informed. We should not have had the problem at Sellafield, because the matter would probably have been dealt with earlier.

These provisions are probably the most important in the Bill. After 30 years, we can find out at the Public Record Office what Ministers have done, but if we want the public to have an influence on their Government, they must know about the debate before it is concluded. I realise that there are arguments about fact and advice, but I have never believed that information about the nature of Government policy making was damaging. What is damaging are leaks, malice and so on. If the public know that the Cabinet is considering how to respond to the BMW crisis, for example, and about the various options, that is extremely sensible. People with knowledge of the situation could contribute. The trouble with the official secrets that surround the Government is that they lock Ministers in with their officials.

Some Ministers are rather like constitutional monarchs. They can say yes or no to their permanent secretaries. However, once we let it be known publicly that we are considering a matter, we make available to Ministers a range of advice that they would not be able to get from within Whitehall and that allows them to become umpires between their civil servants and public expertise outside. I therefore make the case—I hope that it does not shock anyone—that open government and freedom of information are good for Ministers, not just for Parliament and the public. That argument needs examination.

I had always been in favour of freedom of information, but my experience of ministerial office made me even more convinced of the need for amendments of the type that my hon. Friend the Member for Cannock Chase (Dr. Wright) has introduced. Therefore, I hope that the campaign succeeds. I think that it probably will. Whether we have to depend on the House of Lords is a slightly painful thought for me because, as a representative of public opinion, the House of Lords is very shaky.

I will not go into the democratic credentials of the other place, but at least we are sure that its members will all be there after the next election, so they are more secure than any of us. I never thought that they spoke for the people, but they provide a pause to allow public opinion to form itself. I hope that public opinion makes it clear to the Home Secretary and others that we are not prepared to accept that we should be treated as children and left outside the inner knowledge of what happens. It denies Ministers the advice that they need and the public the opportunity to participate in some way in their future, rather than being just spectators of their fate.

Mr. David Heath (Somerton and Frome)

It is always an enormous privilege to follow the right hon. Member for Chesterfield (Mr. Benn). Indeed, it is a privilege to take part in the debate because it slightly restores one's confidence in the Chamber doing its job of testing and trying to improve legislation.

I have listened with care to what hon. Members have said, particularly the hon. Member for Cannock Chase (Dr. Wright). He advanced all the arguments on the amendments that stand in his name, to which I have added my own. My only regret is that I appear to have omitted to add my name to amendment No. 91. Had I noticed that earlier, I would have added it, because I agree with it, too.

The hon. Member for Ryedale (Mr. Greenway) said two things that gave me concern. He expressed a sense of defeatism that the measure had to go to the other end of the corridor before it could be put right and brought back. Last night, there was a conversion of almost Pauline proportions from the Home Secretary during his long speech. I still hope that he will listen to the debate and realise that there is a serious flaw. Amendment No. 10 is simple and concise, and he could easily concede to it. It would immeasurably assist the Bill. Therefore, I still have a slight, perhaps desperate, hope that, even today, we will see a result on that important issue.

Mr. Greenway

The hon. Gentleman tests my credulity. We spent some 18 sittings in Committee making similar comments day after day, but concessions came there none.

Mr. Heath

The hon. Gentleman is right. I remember every one of those sittings, as he no doubt does. There was a tendency to feel that one was developing a rather flat patch on the front of one's forehead as one banged one's head against a solid wall. Nevertheless, we have had movement in the past two days. Let us celebrate that and look for more.

The hon. Gentleman sought evidence from the experience of operating the code to suggest the need for the amendment. I do not believe that there is any need for evidence.

Mr. Greenway

The need was not for the amendment, but for what is in the Bill.

Mr. Heath

Precisely. The hon. Gentleman sought evidence from the operation of the code to indicate the need for what is in the Bill. He need not look for evidence, because the instinct of any bureaucracy is not to want to release information that it does not have to release. That is no criticism of the civil service; it is simply a fact that it is always easier to maintain secrecy than to divulge information. I am tempted to call these provisions the Sir Humphrey provisions, except for the fact that they extend well beyond Sir Humphrey and the permanent civil service into areas of policy formation.

Mr. Simon Hughes (Southwark, North and Bermondsey)

Following the point made by the hon. Member for Ryedale (Mr. Greenway), is not it frustrating that, although there have been small but welcome concessions, what we expect to happen at the other end of the building will mean that more concessions will inevitably be needed before the Bill is passed? It is nonsensical for the Government to be on the defensive all the time so that it looks as if concessions are having to be dragged from them, when they could have accepted a good proposal and looked as if they believed in it.

Mr. Heath

My hon. Friend is absolutely right; it is undignified for any Minister to have to be dragged, with his heels digging into the sand, every inch of the way towards a destination that he declared to be his aim.

I have not heard any hon. Member who has spoken in support of the amendments suggest that there is no need for a degree of protection for policy formation in government. No one has suggested that it is possible to conduct government in a goldfish bowl and that there would not be an inherent difficulty if every piece of policy advice given to Ministers were released. That would make it impossible for the mechanisms of government to work. We all recognise that because we live in the real world, not in an imaginary one. However, that is a long way from saying, as the amendments do, that factual information and expert analysis should not be released as a matter of course.

The Home Secretary suggested last night that facts would have to be communicated throughout Departments of State on Post-it notes to avoid coming under the Bill's provisions, but that is nonsense. That does not happen in overseas legislatures that have freedom of information legislation, and it would not happen here.

The right hon. Member for Chesterfield (Mr. Benn) is absolutely right to say that the best way to improve governmental and legislative mechanisms is to have an informed debate. In this country we often cannot have such a debate, as those who want to engage in the argument do not have the facts at their disposal because of the absurd culture of secrecy that has been fomenting for so long. The Bill is intended to address that. The amendments, particularly amendment No. 10, are crucial in that regard. I agree with hon. Members who have said that we need to test the opinion of the House if the Home Secretary is not minded to accept it, or a variation on it.

The Home Secretary might help the House on another matter. The workings of clauses 13, 33 and 34 will depend on his announcement last night. It would greatly assist us in considering the Bill if we knew whether the Government intended to proceed with new clause 6. The amendments that the Home Secretary announced last night, and his preparedness to consider other amendments, mean that it would stretch the loyalty of even the most credulous Back Bencher to suggest that new clause 6 was a credible amendment to the Bill and for the Home Secretary to assert that he does not intend to maintain it in its current form or anything recognisably like it. It would assist the House if he made an announcement on new clause 6 today, so that we could consider it in the light of the amendments.

The Home Secretary has shown courage and fortitude, as have the Government, in introducing the Bill, but if he is not prepared to be tough on Ministries, tough on civil servants, tough on secrecy and tough on the causes of secrecy—which are very often those same civil servants—the Bill will have failed. I hope that he will listen to the arguments of hon. Members on both sides of the Chamber because they are cogent and are intended to improve the Bill.

5.15 pm
Mr. Mark Fisher (Stoke-on-Trent, Central)

I am an optimist, so I hope that we are simply getting the tone of the debate slightly wrong, because colleagues on both sides of the House seem to have forgotten what happened last night. As hon. Members have said, we had the remarkable sight of my right hon. Friend the Home Secretary, when tested, beginning to recognise the huge imperfections of the Bill that he was defending and rewriting the clause that is at the heart of the Bill as he stood at the Dispatch Box. Rightly, he got credit for that. Let us be clear: last night the Home Secretary eased the grip of the powers at the centre of the Bill and effectively transferred them to the Information Commissioner rather than allowing new clause 6 to give him and his ministerial colleagues a veto.

In answer to the hon. Member for Somerton and Frome (Mr. Heath), of course my right hon. Friend will not move new clause 6; he tore it up in front of our eyes last night and the bits of paper were at his feet by the end of his speech. That new clause no longer exists. Of course we trust the Home Secretary's word, and as my right hon. Friend the Member for Chesterfield (Mr. Benn) said, his remarks are in Hansard and we can clearly see that he redrafted the provisions—and all credit to him.

If the Home Secretary can redraft a clause that was at the heart of the Bill's powers, these amendments, which are about the scope of the Bill and areas of exemption, particularly those relating to formulation of policy, should not present such a problem, although with the powers that were discussed last night they are one of the twin pillars on which the Bill is constructed. The Home Secretary has said on Second Reading and on many occasions since, inside and outside the House, that he accepts the point addressed by the amendments.

The neutral but important facts and data that the Government use to make decisions ought to be in the public domain so that the public, the press and hon. Members can scrutinise them and judge whether the Government are behaving wisely and well. There is a crucial and obvious distinction between those facts and the debate, to which the hon. Member for Somerton and Frome has just referred, between Ministers, and between Ministers and civil servants, about how policy will work. No freedom of information legislation in the world gives access to that debate, because the Government's progress would be impeded if that dialogue were not free to be speculative and political.

The Home Secretary understands that distinction, and he has said many times that the only impediment to his accepting the amendments is that he could not find the right form of words to make the distinction between fact and opinion. We hope that we are helping him to do so by tabling the amendments. The amendment in the name of the right hon. Member for Haltemprice and Howden (Mr. Davis) is excellent, which is why my hon. Friend the Member for Cannock Chase (Dr. Wright) and I have put our names to it. There are various ways of making the distinction between fact and opinion, and the Irish Freedom of Information Act contains a clear, simple way of doing so. It is crucial that such a distinction is made.

Last night, the Home Secretary addressed the much more difficult political problem of the commissioner's powers vis-a-vis his powers and those of other Ministers, so I live in hope that he will be able to solve this problem about the Bill's scope. He understands and accepts that it does not make sense to say that the facts on which Ministers base judgments should not be available, so this is a molehill for him to climb, although it is important because it goes to the heart of the Bill, as my right hon. Friend the Member for Chesterfield said.

We are talking about policy. That word, from its Greek origins, has the same root as "politic" and "politics". The debate relates to the formulation of policy, and that is why it is so important. We cannot do our job on behalf of our constituents and on behalf of this country unless we are on a level footing with the Government and have access to the same factual information. Only then can we judge whether or not they are making wise decisions and wise use of Government money. It is impossible for the press to make that judgment unless it is on that footing.

Ministers have often provided information. However, they also hold back information that is perhaps arguable and can be read in two ways. That is why the legislation is so important. We must make it absolutely clear that Parliament and individuals have the right of access to information so that we can be treated as grown-ups on a level footing with the Government. We need to know what they know so that we can judge whether they are acting properly and well on our behalf.

In looking at the Bill, one has to agree with my hon. Friend the Member for Cannock Chase, who set out the background to clauses 33 and 34 very well, that the parliamentary draftsmen have done a superb job. They have erected an amazing defensive edifice for the Government. They have built a virtually impregnable fortress; it is a high place, an acropolis. My hon. Friend described its architecture, which includes the factual class exemption; the prejudice test; the extraordinary concept that only certain people are qualified, which is extremely dangerous and worrying if it does not include the Information Commissioner—and according to the Minister it does not—and the effective conduct of public affairs.

The provisions are a mound, a rampart, a bailey, a keep to protect the Government—but from what? At one level, they are protecting the information that the Government have at their disposal and wish to share with the rest of us only by their grace and favour and on their own terms. That is an unacceptable basis and it is at the heart of the Bill. It is why we have needed such a Bill for the past 20 years and why some hon. Members have been arguing for one for so long and on such terms.

If it maintains that enormous defensive rampart around Government policy, the Bill will cease to be a freedom of information Bill, and will become instead a protection of information Bill. That is not what it is about. It contains a huge class exemption that has to be changed and the means of doing that are at the disposal of my right hon. Friend the Secretary of State. As the hon. Member for Somerton and Frome has just said, there is nothing threatening about what we propose: every piece of freedom of information legislation in the world makes a distinction between fact and discursive opinion.

As my right hon. Friend the Home Secretary says that his great problem is not being able to find a form of words that would tease out the distinction between fact and subjective advice, let me quote from the Irish legislation, which is the most recent as it is only two years old. It states that materials that should be released include matter used or intended to be used by a public body for the purpose of making decisions, determinations or recommendations and factual, including statistical information and analyses thereof and the reasons for the making of a decision by a public body. Those are simple words and concrete concepts. If the Secretary of State is listening, he must surely realise that there lies salvation. There must be a way in which he can grasp something or adapt it and get the excellent parliamentary draftsmen who have done so well at creating defensive ramparts to do something constructive. If my right hon. Friend does not like our amendments or those tabled by the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), which we shall discuss in a moment, he has here the means at his disposal.

It is inevitable that the Bill has to change. We cannot seriously pass freedom of information legislation that will not allow the public the right of access to the same factual information as the Government. Factual information is innocent; it is without bias and without weight. Undoubtedly, there are certain areas where one category of information merges into the other, which is why the Bill needs to be clear and why it contains plenty of provisions to protect the Government. As my hon. Friend the Member for Cannock Chase said, they are hedged around. Even if we get round this point, the ramparts and baileys will still exist. There is no danger that the Government will be embarrassed, but they should recognise that we should have access to the same facts as they have. I find that not a revolutionary concept, but one of common sense.

My right hon. Friend showed last night that he had the great good sense and the courage to adapt the Bill as he stood at the Dispatch Box. I hope that he will do so again on this group of amendments.

Mr. David Davis

It is a pleasure to follow the hon. Member for Stoke-on-Trent, Central (Mr. Fisher). Like the hon. Gentleman and the hon. Member for Somerton and Frome (Mr. Heath), I am optimistic about the progress of the Bill. I commend the Home Secretary for his comments last night. I hope that they will be reflected in his not moving new clause 6, and tabling a new clause in another place to reflect what he said last night, subject to legal advice.

It is also a pleasure to speak in the same debate as the right hon. Member for Chesterfield (Mr. Benn). It is nice that even in his 75th year he is still a fount of dangerous ideas, although when the Home Office finds that Hansard fails the harm test and classifies it, I shall hold him personally responsible.

I want to speak to amendment No. 91, whose aim is clear cut. It is wider than some of the other amendments in the group, all of which I support, in that it seeks to bring into the open facts, options and analyses relating to any decisions, but not advice. I shall not read out the full text of the amendment, but I should like to thank Maurice Frankel and his staff at the Campaign for Freedom of Information for helping me to draft it, particularly considering the risk of collective seizure when someone with my hard-edged reputation in these matters rings them up and asks for help.

At the risk of being tedious, let me repeat what I said today about my attitude to the amendments. They are proposed not just for the sake of freedom of information, but for their effect. The test is threefold: does it inform debate; does it reinforce democracy; and does it improve government? By improving government, as the right hon. Member for Chesterfield said, I do not mean making government more expedient, smoother or more comfortable either for the Ministers or the Sir Humphreys who serve them, no matter how well intentioned, capable and public spirited they are. The test is whether it helps the delivery of good government for the citizens of this country. In my judgment, amendment No. 91 passes all those tests. Indeed, it would significantly improve the position.

The amendment would explicitly exclude direct advice to Ministers. As a former Minister, I feel strongly that that should be properly protected. First, it should be protected because Whitehall believes that its inclusion would affect the candour of advice. The policy civil servants who generate and deliver advice believe that they would be jeopardised if that advice were brought into the open. I have some sympathy with that view. I well remember the pain that I felt during the general election when I was attending a negotiating conference and I read a newspaper saying that Sir Stephen Wall, our ambassador in Brussels, would be moved or dismissed by an incoming Government because they did not approve of his views. That did not turn out to be the case. Whoever put those ideas about, the Government very sensibly kept Sir Stephen, and kept him in that job, where he does an excellent job for the present Government, as he did for the last.

5.30 pm

Similar rumours float around about other senior, and very capable, civil servants. I suspect that they all come from the kindergarten—I think that that is the correct collective noun—of special advisers that now populates Whitehall. However, the following is not meant as a party political point—it is meant to apply to any Government. If policy advisers believed that they could not give clear, candid advice without risk to their own career, it would be a very bad thing and would undermine proper government.

There is a second reason for protecting the privacy of such advice. I believe that, as the right hon. Member for Chesterfield expatiated, the Bill, if properly amended, would change the power balance in Whitehall between Ministers and their civil servants. It would reinforce the position of Ministers, just as it reinforces the position of the House with respect to Ministers, and the public with respect to all of us. However, if the advice area was brought out into the open, it would have the reverse effect.

I speak as someone who, as a Minister, probably turned down or reversed about a third of the advice given to me. That would have been much more difficult had it been possible for that advice then to be used against me in a debate. Therefore I believe that it would be a bad thing to bring advice into the open. It would reverse the power balance and make the advice of individual civil servants too much of a bind on Ministers. For two reasons, then, I strongly defend the advice area, as has every hon. Member who has spoken.

However, that is not to say that the exemption should be used to protect all the other areas that amendment No. 91 addresses. As the hon. Member for Cannock Chase (Mr. Wright) said in his eloquent opening to the debate, the Bill as it stands falls short of the 1977 Croham directive—Lord Croham was probably one of our greatest permanent secretaries—and falls short of the 1994 code, in which I had a brief involvement, although all the credit for that code falls to William Waldegrave. The Bill falls short of the allowance for facts and analysis in both of those prior decisions in Whitehall.

As I understand it, the aim of this class exemption is to protect the process of policy formation. There can be no harm to the process of policy formation in exposing the facts. The facts cannot be altered; in fact, such a provision will be advantageous because the people presenting the facts will be more rigorous, in the knowledge that the facts will enter the public domain. If the facts are available during the debate, some of the facts—I am especially thinking of scientific data—may be open to some challenge, and that, too, would inform and enhance our debate and, as such, improve our government. Those reasons should lead us to common ground on the subject; they should lead us to believe that such freedom of information will advance the cause of the Government and of Ministers.

There is another consideration here—the attitude of the public to the Government. It can only reassure the public if they know the factual basis of policy—if they are not treated as though they were a group to be patronised by the Government, to be told what is good for them, but can see for themselves that they have access to the facts on which decisions are taken.

Much of what I have said applies to all the amendments that have been debated so far, but I also believe—this is the point of amendment No. 91—that, in most cases, the process will not be harmed by airing the options. In fact, there is a benefit because it would lead the people drawing up the options for the Minister to be more complete and leave nothing out.

It was my experience as a Minister—I am sure that others will have the same feeling—that one often felt that one was given the choice of options Nos. 1, 2 and 3 and one wondered, "What about Nos. 4 and 5?" The amendment would lead to options Nos. 4 and 5 being put to the Minister; it would lead the options to be better developed than they currently are. That would be a benefit to Government, and it would inform debate. Think of the difference of the debate in the House if we were not simply saying across the Floor of the House, "Yah-boo sucks; we do or do not like that option", but were talking about the various options that were available to the Government and could be developed and could be pursued by the country.

Mr. Tony Benn

I agree with absolutely everything that the right hon. Gentleman is saying, but is it not also a fact that the acceptability of Government decisions to the public would be greatly increased if the public knew that all the options had been considered, and that even the ones that had been rejected had at least been considered? The absolute unanimity of Ministers on everything actually makes Government lack credibility, whereas the opening up of the options, the debate about them and the publication of the conclusion is reassuring to people who otherwise think that their arguments might never even have been examined at the top.

Mr. Davis

As ever, the right hon. Gentleman is ahead of me and about three sentences ahead of my comments, so he has shortened my speech, which is no doubt to the pleasure of the House. He is absolutely right in that respect. My proposals cannot be a bad thing for a Labour Government or any other Government in that respect. It must be to the benefit of our democracy for the public to have greater confidence in the decisions taken on their behalf.

Of course, there will be times when the options are not appropriate to be aired. I worked in the Foreign Office for three years, and I had to deal with negotiations in which there were options that one perhaps did not want to play out in the public domain before they turned up in the European Council or NATO or wherever we were negotiating; but such times are quite limited.

Mr. Greenway

There are exemptions for them.

Mr. Davis

My hon. Friend, from a sedentary position, says that there are exemptions for them. I encompass a harm test in amendment No. 91, and the harm test should be rigorous, but it will not greatly limit freedom of information.

For three years during a European negotiation leading up to the treaty of Amsterdam, I appeared almost once a month before the Select Committee on European Legislation and discussed as openly as possible with its members what was happening, and from time to time I had to say, "I am sorry; I cannot tell you that" and it was understood on all sides. Therefore I doubt that the harm test will be a controversial issue. Most of us would accept that it would work easily, work well and work with the support of the House.

In practical terms, the hon. Member for Cannock Chase—the leader of what is now, I suppose, the Cross-Bench group of Members of Parliament—laid out the point that Lord Butler—Robin Butler, as he was then—made when he was Cabinet Secretary, when he told the House of Lords Select Committee that his senior colleagues and he had given some thought to how they could…structure submissions to Ministers in a way that would enable us easily to separate the background…from…subjective advice. In that context, "the background" means both facts and options. And he is not alone. Terry Burns—now Lord Burns—said something very similar in that respect. Two of the most senior of our previous permanent secretaries, once free of the shackles of Whitehall and free of the close mafia of the Sir Humphrey club, actually say, "This is possible. This can be done, and done in a way that will not harm—indeed, will improve—the process of government in this country."

Therefore, it can be done here, on the basis of the facts as they exist, and on the basis of the experience of many of us in government; and it has also been done readily elsewhere. Consider some of the exclusions from the exemptions that exist in other countries' freedom of information legislation, such as Canada's Access to Information Act and similar legislation in Ireland, Australia and New Zealand. Such exclusions include factual and statistical material—in Ireland, there is an exclusion for the analysis of factual or statistical material—the reasons for a decision, or information publicly cited as the reasons for a decision; scientific research or field research; expert scientific or technical reports or analysis; expert opinion or analysis; the advice of external consultants or persons other than a Government official, which relates to the point that has been made today about lobbyists; a commissioned report of a Government body or interdepartmental committee, other than one reporting to the equivalent of the Cabinet; a feasibility or other technical study or plans and budgetary estimates relating to new or existing programmes; efficiency studies; economic forecasts; public opinion polls; environmental impact studies; product testing results; appraisals and valuators' reports. I cannot imagine how any of that would lead to a problem for government, and my amendment seeks to make such information available.

In New Zealand, the provisions go further. The legislation there says that advice itself can be brought into the open. There are problems with that but, in many cases if not universally, New Zealand publishes advice at a post-decision stage. That goes further than I or the House would wish. However, that shows that my amendment is not at the cutting edge of the argument; it is in the firm, safe centre ground.

Mr. Jon Owen Jones (Cardiff, Central)

I thank the right hon. Gentleman for giving way, especially as I wanted to intervene on him in yesterday's debate. He has considered whether the release of information to the public could cause any conceivable harm to government. Let us consider the BSE crisis. For a period, the then Government believed that there would be damage to the industry if the public were made aware of the facts that were before the Department about the levels of BSE in cattle. Releasing such information would have caused harm to the Government or their policy of the day, but it would have demonstrably been of great benefit to the public. That is the purpose of the Bill.

Mr. Davis

I agree entirely with the hon. Gentleman. I do not know enough about the information available on BSE in that period, but he is exactly right. We should separate a judgment about the public interest from a judgment about political or personal interest.

As Chairman of the Public Accounts Committee, I deal with cases in which—to put it bluntly—blame is apportioned. The simple fact is that it is human nature to try to avoid blame. Even when we think that we are making impartial decisions, such supposedly impartial decisions are influenced by an instinct—a comfort factor—that relates to our own position. When I was in government, I had to make decisions that I would have preferred to have been made by someone who was entirely independent of the government process. I agree with the hon. Gentleman that it is much better to have a provision in the Bill to cover such decisions.

I support the amendments for three reasons. They would properly inform public debate, significantly enhance our democracy and materially improve our government.

Mr. Gordon Prentice (Pendle)

I wish to speak briefly on this group of amendments on the formulation of Government policy. I do not know whether you will rule me out of order, Mr. Deputy Speaker, because I am not sure whether Liberal Democrats are involved in the formulation of Government policy. However, much information that should be freely available is withheld not just from the public but from Members of Parliament, to avoid embarrassment and for reasons of party management.

About 18 months ago on 10 November 1988, a declaration was made by my right hon. Friend the Prime Minister and the right hon. Member for Yeovil (Mr. Ashdown) that we could expect ever closer union between the Labour party and the Liberal Democrats. The two parties are in coalition in Scotland and, in the past few days, we have learned that my right hon. Friend the Prime Minister—there is no great secret about this; it has all come out—has said that his greatest regret was that he did not bring the right hon. Member for Yeovil into the Cabinet in May 1997. We know from newspaper reports and the right hon. Gentleman's book that that option was discussed. Two Labour members of the Cabinet would leave, and two Liberal Democrats would come in.

5.45 pm

I decided to find out a bit more about this new constitutional innovation, the Joint Consultative Committee with the Liberal Democrat party. Over a year or 18 months, I tabled any number of questions about it and met a brick wall. I wanted to know when the committee met and I was told, "Secret. Ruled out." I wanted to know not who said what but what was on the agenda, and I was told, "Secret. Ruled out." I wanted to know who from the Labour side and the Liberal Democrat side participated in the Committee and I was told, "Secret. Ruled out."

That is ludicrous when I can pick up a newspaper and find out, as I did on 14 December 1999, because Liberal Democrats tell the world what is discussed at the meetings. However, when I go to the Table Office, I see wrinkled brows and people there consult their tomes to see whether I should be allowed to table a simple parliamentary question about what is on the Committee's agenda. In The Independent on 14 December, I read that at a meeting of the Committee, the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan)—

Mr. Deputy Speaker(Mr. Michael J. Martin)

Order. I remind the hon. Gentleman that he must keep to the amendment. He is telling us that he was seeking information, but he is going into detail that has nothing to do with the amendment. He can tell these stories outside the Chamber.

Mr. Eric Forth (Bromley and Chislehurst)

Oh no!

Mr. Deputy Speaker

I inform the right hon. Gentleman that I am in the Chair.

Mr. Prentice

Let me move rapidly on to a simple point. Will Ministers tell me whether the Bill, as unamended, would allow me to obtain the information that I seek on what happens in the Joint Consultative Committee should it make proposals for voting reform and reforming the European Parliament, the European Commission and so on? If not, should I rely on the amendments? I want an answer to my questions.

Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross)

This has been an extraordinarily good debate, but I wanted to latch on to the speech of the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) who suggested that we had misjudged the nature of the occasion and that we were about to see a revelatory conversion from the Home Secretary. All of us who are anxious to see the amendments accepted—they lie at the heart of the Bill—have suffered a little from the right hon. Gentleman's quite deliberate attempt to put us off the scent early in the debates by telling us that the matter is a question of drafting and designing words that would express what he so much wanted to do.

I know that the right hon. Gentleman is a highly intelligent man and not a disingenuous Home Secretary. However, his argument stretches credulity a little. The hon. Member for Stoke-on-Trent, Central suggested that factual information was neutral, but facts are knowledge and knowledge is power. If power is distributed to the people, the people will have the power. Those who exercise power in the name of the people draw a clear distinction in their own minds between the people participating in the decisions and taking the decisions in the name of the people.

We are engaged in a fundamental constitutional argument about the role of the House and the Executive. It is not a little problem of definition or of finding the right words.

Mr. Hawkins

In the right hon. Gentleman's analysis, which I am following carefully, of what the Home Secretary was trying to do last night, does he agree that a particular phrase used in one of the memorandums to the Select Committee on Public Administration is particularly apposite to what the Home Secretary was trying to do and to what the right hon. Gentleman is rightly criticising? The phrase was there is no sop like an old sop.

Mr. Maclennan

I was focusing not so much on what the Home Secretary did last night as on what he did on Second Reading, when we were considering the matter that is now under discussion.

I am also on the alert. The Home Secretary's intervention on the hon. Member for Ryedale (Mr. Greenway) amounted to this: "We will know what the House wants when it has voted on the issue." I suppose that that is a conventional view of the way our parliamentary democracy works. However, I think that it is a gross distortion, and one which we should recognise for what it is.

The issue before us was debated extensively on Second Reading. It was then debated lengthily in Committee. During these debates, not one voice has been raised in the House in support of what is in the clause. Following the vote, whatever the Home Secretary may say about the House having spoken, I advise our colleagues in another place, however they may have got there, that the opinion of the House should be judged by what it has said. In this instance, it has said in unmistakable terms that if factual information is not to be made available as a result of the Bill, the Government are performing a monumental U-turn. They are betraying the White Paper produced by the right hon. Member for South Shields (Dr. Clark), going back on their undertaking to the electorate in the Labour party's manifesto and repudiating the agreement entered into with the Liberal Democrats prior to the election, which was one of the reasons that led to the setting up of the Joint Consultative Committee with the Liberal Democrat party, to which the hon. Member for Pendle (Mr. Prentice) alluded.

This is a matter of major importance and not one that allows for nice distinctions to be drawn and for difficulties with parliamentary draftsmen to be alluded to as the only reason why the Government cannot move from their position. I am optimistic that the Home Secretary, if he is to intervene in the debate, will not rely on drafting, for to do so would take us all for suckers.

Dr. David Clark (South Shields)

I shall be brief because so much has been said this afternoon on these issues in such an eloquent way, with such clarity and in such a comprehensive manner. The case against the Government's proposals and for the amendments has been made comprehensively.

I find myself mystified by all three Ministers. They are all highly intelligent men. They understand the arguments and I sense that there is a certain empathy with the points that we are trying to make. My right hon. Friend the Home Secretary and I, over a number of years, have shared platforms, and at no time more regularly than the 1997 election when it was our desire to modernise the United Kingdom. We wanted to build a new compact with our citizens and to have better government.

I submit that the Bill and the amendments do just that. I have told the House previously that on my first day in office, when faced with the responsibility of trying to chart the course for the Government's freedom of information legislation, I was faced with the choice of putting the code of practice on a legislative basis or doing the job properly, even if that meant waiting 12 months. I opted for the second course and the Cabinet backed me in that choice. I am therefore concerned when some clauses appear to be weaker than the code which I and the rest of the Cabinet had rejected. I tell my right hon. Friend the Home Secretary that it is incumbent on us to ensure that the clauses are at least as good—in my opinion they should be better—as what was provided by the code.

I reiterate that we are not talking about advice to Ministers and the confidential relationship that is essential between Ministers and civil servants. We are talking about background, factual information which, if it were available to our citizens, would empower them. I believe that if such information were made available, it would change the manner in which civil servants conducted their work. It would therefore provide better government for our country. That is a point well worth taking.

Like the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), I am mystified by the Government's continuing retreat. They have empathy with us and they understand what we are trying to do, but the difficulty is the form of words. That is a telling point, but it was answered by my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher) when he provided us with some words, as do the amendments.

The amendment would increase better government and rebuild confidence between the Government and the general public, our citizens. At the same time, it is essentially practical. We have the form of words and what we are asking to be done can be done because it has been done. I insisted that after we published the White Paper in December 1997 we would publish thereafter all the background papers leading up to the White Paper. All the factual information was available in printed form. I insisted that it was on the internet as well. That which we are asking for can be done and should be done.

Yesterday, I was proud to be in the House and to be a part of it as it was doing its job properly. My right hon. Friend the Home Secretary was acting in a way that Secretaries of State should act. He was listening to the arguments, appreciating them and making his own points. At the end of the day he weighed up the case and answered the debate by changing position. I hope that he will show that stature, statesmanship and maturity again today.

Mr. Richard Shepherd (Aldridge-Brownhills)

I wish that a wider world could read the propositions that sometimes come before the House. I do not think they would survive a moment of the public's scrutiny. As I said yesterday, perhaps the House is the last great deferential place in the United Kingdom.

Good friends on both sides of the House have in a sense thrown aside party and said how the clause should be amended. It is not a modest little clause. Indeed, it is an overreaching and firm assertion of who is in control, and it is not the House. No such clause could have been tabled by a Government who thought that they had to convince and win arguments in this place. It is the product of the power of the Whip.

Clause 33 states: Information held by a government department is exempt information if it relates to the formulation of development of government policy, Ministerial communications, the provision of advice by any of the Law Officers or any request for the provision of such advice, or the operation of any Ministerial private office. In truth, little has been left out.

6 pm

In all the years since I came to believe profoundly that one of the keys missing to the operation of our parliamentary system is equality of argument, equality of information and the ability to discuss rationally, cogently and on the basis of the facts, there has been a shadow behind Parliament: the Campaign for Freedom of Information. It has tried to advance those arguments based on the common law that sprang from this island, the understanding of arrangements in other countries—parliamentary democracies such as Canada, New Zealand, Australia, and the Republic of Ireland—and the system of law that runs like a thread through their constitutions. However, for some reason, the Executive of this country have brought forward clause 33.

All the arguments relating to the formulation and development of Government policy have been presented in the House, year after year. I can see present in the Chamber Members of Parliament who supported me in the attempt to reform section 2 of the Official Secrets Act 1911. I see individuals—I admit, most of them are facing me—who supported that attack on the Official Secrets Act because they believed that there was a public interest in Government being more open and less covert. Ministers would have to be extremely busy formulating policy not to be aware of the arguments.

The people who really know the arguments are the clerisy—the repository of wisdom, the bureaucracy itself, without beginning or end, always there. They have heard, recorded and understood the arguments each time the House has groped towards reform—once, on the initiative of no less a person than a Prime Minister, through a directive issued to Lord Croham. I sat through debates in which the right hon. Member for Chesterfield (Mr. Benn) engaged with one or two of his colleagues in discussion of the genesis and fullness of information available to members of the Cabinet—ministerial advice—on Chevaline. Those debates were a revelation to me: for the first time, I heard the House debate issues relating to policy.

The Home Secretary, knowing all those facts, knowing about Croham, after William Waldegrave's exercise in formulating a code, and understanding all the processes that go into the making of the law, produced a draft Bill. That was nearly nine months ago. The elements of that draft Bill were considered by two Committees of the House of Commons and one of the House of Lords—in short, both Chambers had a go. The issue of the formulation of Government policy was not secret or unknown; right from the start, it was a question of judgment.

Each Member of Parliament present has a thread in that process. When we ask what is happening, the clause is our answer: it tells us, "Thou shalt not know." That is the message that emanates from all parts of the Bill. Small advances are made—how generous, how grand, how nice of the Government to nourish us with the suggestion that we might be entitled to information. In the end, however, the message is, blow the dialectic, the argument, counter-argument and synthesis, for the net result is the Bill. There is only one fact: the synthesis lies in the hands of the Government. Despite all the representations on the particulars of the amendments made in Standing Committee, in Select Committee and on the Floor of the House, on 5 April we have before us a clause that washes away any prospect of debate.

The answer lies within ourselves. We know that. There is no argument about it. The Government—the Crown in Downing street, as the right hon. Member for Chesterfield calls it, and rightly so—is like the emperor: it takes a little boy to say, "But he has no clothes." It is for the House to say that the Bill has no clothes; only then will we see clearly.

Yesterday, we were treated to an extraordinary performance by the Home Secretary, but I know the devices that lay behind it—softly, softly here, concede there, do this, say that, talk about drafting difficulties, and so on. The truth is that, even with the amendments, the clause would allow only minimal access. We are still rehearsing the arguments; we are not conceding, but we know that the Government's synthesis is, "I'm listening, I'm engaged." Well, Governments in this country are always listening, but in this case only to themselves and their echo chamber.

We spend all our time running to become the Government, and we forget that government is the mechanism by which the lives of all of us and those whom we represent are ruled. Today, on 5 April 2000, after all these years and all the good fights, we face a Bill that contains the same monstrous claim—the British Government cannot succeed unless they have the security embodied in clause 33. Our amendments, our arguments are rejected. It will not do. [Interruption.] I see that the hon. Member for Linlithgow (Mr. Dalyell) is eager to speak. I shall finish soon.

The clause shows the heart of what the Government are up to. We ought to shout about it. I am using the device—amendments—used by others who have participated in the debate. The shame lies not in our efforts but in the knowledge that, despite the feelings of their own supporters, the Government have included such a clause in the Bill, without debate or dialogue.

I do not think I am betraying a secret when I tell the House that, after a sitting of the Select Committee on Public Administration, Lord Burns—a man who has been through everything that my party got up to at the Treasury and who knows a thing or two about what the Treasury gets up to—told me, "The only thing that has to be protected from exposure is rows between Ministers—that is the really sensitive area." I know that a great academic to start with, afterward a bureaucrat, might have other lines to run, but, in truth, what are those great secrets? What needs such absolute protection?

The clause, if unamended, amounts to our saying that we, as a Parliament and as a people in relationship to our Government, are less than the Canadians and the Australians—we are small.

Mr. Dalyell

Following once again the tour de force of—as I must call him in this matter—my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), I am overcome by my curiosity about one point. What will Douglas Allen—or Lord Croham as we must now call him—say, following his guidelines, if he participates in debates in another place?

I have a foreboding that we shall be discussing important matters at some ungodly hour of the morning, when we are all too tired to give them their due. I shall therefore confine myself to a single question, albeit a convoluted one. It relates to scientific evidence. Will the Home Secretary let us into the little secret of what his Home Office advisers have told him in respect of scientific evidence and whether or not it should be made available?

My experience, and it is long, of scientists is that they are absolutely desperate to get their papers published—they adore getting their papers published. I cannot believe that those who are desperate to be published in Nature or some technical magazine will have any inhibitions whatever about their evidence to the Government being published in suitable form, so that their peers can judge it.

I ask the Home Secretary this: what discussions have there been with scientists on the matter of scientific evidence about the publication of items and advice that would be covered by the clause?

Mr. David Davis

The hon. Gentleman is gracious in giving way. Does he agree that that desperation to be published is one area in which personal interest serves the public good? The process of science consists of conjecture and refutation, and much new science is not well developed and gains from the disputation that comes from publication. Such exposure would advance and assist government policy.

Mr. Dalyell

I dissent from that and give as an example the evidence on BSE presented to the Ministry of Agriculture, Fisheries and Food over the years. That generally makes the point.

I said that I would be brief, and I will stick to that. I hope that the Home Secretary will address my question at his convenience.

Dr. Lynne Jones (Birmingham, Selly Oak)

It is a great pleasure to participate in the debate, when so much consensus has emerged from all parts of the House. I wholeheartedly agree with my right hon. Friend the Member for Chesterfield (Mr. Benn) that the amendments would be beneficial to Ministers in carrying out the important role that they perform on behalf of the people of this country.

As for embarrassment, Ministers have been more embarrassed by information that leaks out or by delaying information than by providing it openly and up front. The issue of BSE has been raised. One understands that Ministers at the time were concerned about the effect that giving information might have on the agriculture industry, but it has been shown that by holding back that information, far more damage was done to the industry than would have been if appropriate action had been taken much earlier.

Like other hon. Members, I am still optimistic that we will get a positive response from the Home Secretary when he replies to the debate. I know from my own contact with him that it is his natural instinct to be open with regard to information and the way in which decisions are reached. I say that not just because he gave me the name of his plumber, but because—[HON. MEMBERS: "Leaks."] It was because of a malfunction, not a leak. Other contacts that I have had with him prove that that is the way he tends to go about things.

I have been campaigning for changes in the law as it affects transsexual men and women, and I have been delighted by the openness and accessibility of Ministers not just in the Home Office, but in the Department for Education and Employment, when considering changes to Government policy in that area.

I await the report of the interdepartmental working group which the Home Secretary set up to look at the issues. I was pleased that he allowed one of the civil servants involved in that working group to meet the parliamentary forum on transsexualism. I believe that the Home Secretary would agree that civil servants in both the Departments that I mentioned have benefited from the contact that they have had with experts in that area.

I look forward to the publication of the results of the working group's deliberations. We were advised by the civil servant involved that that paper would provide options and give the facts behind the formulation of those options. I hope that it will. I raise that as an example, in support of amendment No. 91.

6.15 pm

I have had experience not in government, but in local government. I would not wish to stifle candid discussions between Ministers or politicians with responsibilities and their officials. Such discussions are vital, but the politicians do not always know what questions to ask. It is to our advantage that the information should be in the public domain. It probably will help to raise questions that Ministers or politicians would not otherwise think of asking.

We know that the public have a low opinion of politicians and Governments, and a genuine Freedom of Information Act would be a means of starting to build up greater public confidence in the way we govern this country.

I have also had experience of consultation papers. My hon. Friend—

Mr. Deputy Speaker

Order. The hon. Lady is making a Second Reading speech. We have passed that stage. We are dealing with the amendments.

Dr. Jones

Thank you, Mr. Deputy Speaker. I am drawing my remarks to a conclusion. I support amendment No. 91, which goes further than the factual information being made available. It is also appropriate that the public should have access to the options, unless that is ruled out by the harm test which Ministers have before them when they reach their decision. That too is in the interest of Ministers.

The Government have shown that they wish to be open—for example, by publishing summaries of the results of consultation documents. I hope that the Home Secretary will take note of the debate and respond positively to the concerns that have been expressed. Even if he cannot accept the amendments, I hope that he will present proposals of his own that show that the Government want a Freedom of Information Act of which this country can be proud.

Mr. Hawkins

This has been a debate of exceptionally high quality. I shall be brief, as so many of the arguments have already been covered, but one or two points need to be mentioned. Alastair Campbell, the Prime Minister's press secretary, has frequently said that we will get a Freedom of Information Act over his dead body. He need have no fear; the Home Secretary is giving us neither freedom, nor information, nor any Act worth the name. Those are not my words, but the words of a political editor of a national newspaper in his memorandum, which I mentioned earlier, to the Select Committee on Public Administration. He was dealing particularly with the issues that have been raised in the debate.

In days of yore, the Government may have wanted to dismiss the views of the political editor of The Express, but since that newspaper has been owned and run by one of Tony's cronies, the position is different. When Mr. Anthony Bevins, the extremely experienced political editor, dealing specifically with the Croham directive and its history, writes a formal memorandum to the Public Administration Committee, his words need to be taken seriously: Open government is an attitude of mind. It is clear that frontal lobotomy would be required to change the attitude of many in Whitehall to the very idea of openness. He continued: New Labour's promise is not borne out by the—

Mr. Deputy Speaker

Order. Again, these are matters that could be raised on Second Reading, which of course has passed. The hon. Gentleman must speak to the amendments.

Mr. Hawkins

I understand that fully, Mr. Deputy Speaker, but the memorandum to the Select Committee on Public Administration deals specifically with clause 13. It covers the Croham directive, which many other hon. Members have mentioned in debate—

Mr. Deputy Speaker

Order. The hon. Gentleman should not read the memorandum verbatim. He can refer to it or paraphrase it, but we do not need the whole kit and caboodle.

Mr. Hawkins

I assure you, Mr. Deputy Speaker, that I have no intention of reading the whole kit and caboodle. I shall paraphrase a couple of points which the political editor of The Express made on the issue that we are considering this evening.

On the Croham directive, he said: It is perhaps worth recalling what happened to Labour's open government commitment of October 1974. Those were the days when Labour manifestos were packed with potent, fire-in-the-belly commitment and the betrayal came with the hangover. The then Prime Minister, now Lord Callaghan, announced that it would be the Government's intention…to publish as much as possible of the factual and analytical material used as the background to major policy studies. That led Douglas Allen, later Lord Croham, to issue his directive.

Having summed up how the directive failed to work, the political editor of The Express commented on the proposals in the clause and the Government amendments: Little has changed since Sir Douglas wrote his letter in July 1977. Twenty-two years after that pitiful directive, we now have a pitiful Bill. I echo those words.

As various hon. Members, especially those who tabled the amendment, pointed out, in his preface to "Your Right to Know", to which many hon. Members have referred, the Prime Minister said that the Government were delivering on their promises. In the words of Mr. Anthony Bevins, the Blair betrayal has come with the hangover.

Mr. Deputy Speaker

Order. The hon. Gentleman has referred to a right hon. Member, who happens to be the Prime Minister, but that makes no difference, once by his Christian name and now by his surname. That should not be done. Has the hon. Gentleman finished?

Mr. Hawkins

No, I have not. I am grateful for your advice, Mr. Deputy Speaker.

The Bill provides for a class exemption on policy formulation. My right hon. Friend the Member for Haltemprice and Howden (Mr. Davis), my hon. Friend the Member for Ryedale (Mr. Greenway), who took the Bill through Committee, and my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), who made an especially powerful and emotional speech, have drawn attention to what is wrong with the Government's actions in this respect.

We believe that the criticisms of the hon. Member for Cannock Chase (Dr. Wright) and his cross-party colleagues, including my hon. Friend the Member for Aldridge-Brownhills, were right. The right hon. Member for South Shields (Dr. Clark) said that he knew that his colleagues on the Front Bench were honourable men, but he wondered what had happened to them and how they had been got at. I can answer that question: No. 10 got at them. As my right hon. Friend the Member for Haltemprice and Howden said, Sir Humphrey has got at them.

Dr. David Clark

I want to make it clear that I never said that my right hon. or hon. Friends had been got at.

Mr. Hawkins

The right hon. Gentleman was worried, and expressed surprise that his colleagues on the Front Bench—where he used to be—had changed their stance. I apologise if I paraphrased him incorrectly.

My right hon. Friend the Member for Haltemprice and Howden and my hon. Friend the Member for Aldridge-Brownhills made the point well that there is no doubt about the Government's comprehensive change of view. They have rowed back from the previous Government's code of practice. The Campaign for Freedom of Information made it clear that the Government have changed the proposals, which are now weaker than the previous Government's code of practice.

We support the hon. Members who tabled the amendments. They are members of different parties, and they are right to criticise the Government. The Government's proposal to row back from our code of practice and method of operation and from the White Paper is wrong. We shall support the cross-party amendments.

Mr. Patrick Hall (Bedford)

I want to make a brief contribution—I am sure that hon. Members will be pleased about that. The jarring contribution of the hon. Member for Surrey Heath (Mr. Hawkins) reveals that he has again misjudged the mood of the House.

I had the privilege of serving on the Standing Committee that considered the Bill and I listened carefully to the proceedings. I want to place it on the record that that was nothing like the privilege of sitting here today and listening to the high-quality contributions from all parties. I have been a Member of Parliament for almost three years, and today's debate is the best that I have heard; it showed the House at its best. All parties contributed to an important discussion.

Perhaps the debate was so good because it was informed. Those who spoke, especially the senior Members, had access to information which they considered and used to prepare and present their arguments.

Mr. Giles Radice (North Durham)

I agree with my hon. Friend about the quality of the debate, and last night's discussions, which were highly dramatic. However, it is interesting that, despite the quality of the debate, the Press Gallery is almost empty.

Mr. Straw

As are the Tory Benches.

Mr. Hall

Indeed. The process of opening up our democracy through access to information takes time. Perhaps the media will benefit from it. I sincerely believe that democracy is being served especially well today in this place.

I support the amendments. We are considering wide access to the background information that informs Government policy. I hope that such wide access will be provided, because it will assist strong, informed democratic participation in the life of this country, not only by Members of Parliament in the Chamber today, but by citizens of our country for all time. Information is the oxygen of democracy. As many people as possible should be involved. Sharing power and trusting the people are vital. The amendments would achieve both.

When people are informed, they will have something to say, and democracy is the stronger for it. We will all benefit from that cross-fertilisation, as we have seen on a small scale this afternoon. I should like to live to witness that on a daily basis throughout the country, not only during general election campaigns.

I was privileged last night to hear my right hon. Friend the Home Secretary show that he was prepared to listen to debate. The Bill is an historic example of proposed legislation; this is an historic moment in the life of this Parliament. Great matters are at stake—I hope that we will all rise to occasion.

Mr. Straw

As my hon. Friend the Member for Bedford (Mr. Hall) said, this has been an interesting and stimulating debate. I am grateful to all my hon. Friends, and to my hon. Friend the Member for Birmingham, Selly Oak (Dr. Jones) in particular, for the compliments that they paid me while at the same time expressing some disagreement with the position that they anticipate that I might take, which is fair enough. I had forgotten about exchanging plumbers' telephone numbers with her, but I think that he proved satisfactory. Nothing else was exchanged, as I recall.

6.30 pm

Referring back to last night's debate, I am struck by the sense, which many of my hon. Friends may share, that the changes in respect of clause 13 which were made, and those that I announced we would make in the other place, were somehow wholly detached from this evening's discussion. It has proceeded on the assumption that the only provisions relating to factual background information that informs policy discussion are those in clauses 33 and 34. There is a class exemption in clause 33, which applies to central Government, and a pretty substantial exemption through the certificate of a qualified person around the remainder of policy advice and the workings of government in respect of clause 34. However, clause 13, which is to be further strengthened in the other place, will ensure that there is a significant route for the release of factual and background information, including that which has informed policy discussions.

I remind my right hon. and hon. Friends that in every single case in which the Minister is told by the commissioner that he is within his rights to refuse to release information—that which comes under clauses 33 and 34, for example—that Minister has a duty to consider whether the balance of public interest in releasing the information outweighs the balance of public interest in withholding it. In those circumstances and as a result of Government amendment No. 48, which is before the House in this group, the Minister will have to pay particular regard to the public interest in the release of factual and background information. That is specified in clause 13. As we heard yesterday, when the Minister decides that, in his judgment, the balance is in favour of non-disclosure, the commissioner can order disclosure. There could be an Executive override, but the threshold for that has been raised and, as we agreed yesterday, the circumstances in which such an Executive override would take place will be very limited.

As I said yesterday, any Executive override would have to proceed on the basis that the information that the Minister was seeking to withhold would at some stage become public or could be scrutinised in private. Therefore, if what the Minister was seeking to withhold concerned probity—perhaps some kind of scandalous conduct by him—he would extremely unwise—

Mr. Tony Benn

rose—

Mr. Jon Owen Jones

rose—

Mr. Straw

I shall give way to my right hon. Friend the Member for Chesterfield (Mr. Benn) and other of my hon. Friends later. It would be an extremely unwise Minister who ever withheld such information. Only in circumstances in which that information would become public quite quickly or with the passage of a little time, would that Minister and the Government behind him—the decision would be collective—have any confidence in favour of withholding it.

I am of course aware of the 30-year rule, but under the Bill a huge amount of information currently covered by it will have to be released well in advance of that period. I also bring to the attention of the House the fact that, even under the existing regime, there are plenty of occasions on which information that is due routinely to remain—

Mr. Benn

rose—

Mr. Jones

rose—

Mr. Straw

I shall give way to my right hon. Friend the Member for Chesterfield after I have made my point.

Such information has to be brought out at a much earlier stage because of a public inquiry or for some other reason—a Public Accounts Committee inquiry, for example. I am not for a moment resiling from the suggestion that is made in the House and elsewhere that accountable government requires the maximum degree of openness and I shall respond to the points made by my hon. Friend the Member for Selly Oak about the style in which I have sought to operate as Home Secretary in a moment. I accept entirely that in not only the long run, but the short run, Ministers ought to be as open as possible. Although that can sometimes lead to a slightly uncomfortable ride on the day, it always leads to a better understanding of decisions that they have taken. If Ministers are confident about their decisions, there is a good argument for putting as much information as possible on the public record rather than not.

Mr. Benn

Those theoretical arguments are interesting, but will the Home Secretary deal with a practical example from the past? In the post-war Government, Mr. Attlee, the Prime Minister, started building the atom bomb. He did not tell the Cabinet, he did not tell Parliament and he did not tell the public. He also gave to a foreign power—the United States—permanent nuclear bases in Britain. He told Parliament that they were for training missions by American aircraft. Can my right hon. Friend address his mind to the question whether decisions as important as that would have been able to become public as a result of the Bill, which he advocates, recognising that the Prime Minister of the day, having kept it secret, would certainly want to use an Executive override to prevent that information from coming out?

Mr. Straw

I believe that neither under the Bill, nor under any other example that has been shown to me by the Campaign for Freedom of Information, nor under any system operating abroad would information relating to nuclear secrets have been made public. I know of no freedom of information regime that would have done that. All those with which I am familiar ensure that there is a ring around security matters of that kind.

I also say to my right hon. Friend that it was well known that we had a nuclear capability when the Visiting Forces Act 1952 was debated and it would have been open to Labour as well as Conservative Members to ask questions. The whole point of the Act was to lay down the conditions under which visiting forces and their equipment could be in this country, and the only ones that we have ever had stationed on our territory have been United States forces.

My right hon. Friend was present for those debates; I was not. I make no point about that, but that is the truth of it. Notwithstanding the fact that the original decisions were made in secret, the House had an opportunity to lay down conditions for the use of such nuclear weapons here by the United States and the circumstances in which the visiting forces could be in this country.

Mr. Greenway

rose—

Mr. Straw

I shall give way, but then I must get on.

Mr. Greenway

I am most grateful to the Home Secretary for giving way. The examples of factual information that we have discussed all appear to relate to areas covered by a specific exemption. There is an exemption for defence and an exemption for national security; I suspect that that would have answered the point made by the right hon. Member for Chesterfield (Mr. Benn). The Home Secretary, in defence of his argument, has referred only to information relating to public inquiries. That is also exempt. Can he give a clear example of information that a Minister of the Crown would want to keep secret that is not caught by one of the exemptions?

Mr. Straw

If the hon. Gentleman is asking whether I can think of a circumstance in which the exemption could be used, I can think of a series of hypothetical circumstances in which one might be used, some of which I spelled out yesterday. With respect to you, Mr. Deputy Speaker, I would rather stick to the core area that we are discussing today. I do not happen to believe that a Minister would seek to use an exemption certificate to prevent the release of factual and background information when that was ordered by the commissioner.

Mr. David Heath

rose—

Mr. Straw

If I may, I shall make progress. Time is getting on and there are many other debates to come. I will take a few interventions later.

That is my view. The point is that the override certificate would be used in very limited circumstances and we have raised the threshold of decision making so that that would also apply.

What we debated last night—and I think that we eventually secured considerable agreement on the Labour Benches—has a direct bearing on the question of whether statistical and background information should be made available to members of the public, and to the House.

I want to place on record what the Government have done to secure greater openness in government than we ever saw under the last Administration. One of the White Papers of which I am proudest, not because I was the sponsoring Minister in government but because I took the lead in opposition, is Cm 4412, entitled "Building Trust in Statistics". In our manifesto, we committed ourselves to placing the national statistics service on a more independent basis. The Liberal Democrats shared that commitment, and I am grateful for the support that they gave both before the election—in the joint statement that we issued—and subsequently.

The possession of comprehensive, accurate, reliable data that is beyond reproach, and which generates no suspicion that Ministers or anyone else have interfered, is fundamental to the operation of the politics of integrity. Without that, if there is any argument about whether the data are accurate, there can be no proper democratic debate, and Ministers certainly cannot be held properly accountable. The argument is about the measure of accountability, rather than what has actually been done.

Mr. Brian White (Milton Keynes, North-East)

Will my right hon. Friend give way?

Mr. Straw

I must ask my hon. Friend to resume his seat until I have finished this point.

There were worries, to say the least, about the last Government's record on statistics. Some series of statistics were satisfactory, but others were not. We famously remember that, as the unemployment figures rose, the statistical series was reworked, reworked and reworked again. I cannot remember whether there were 22 tax rises or 22 changes in statistics, or both. Perhaps there were 30. In any event, a huge number was involved. It undermined faith in the democratic process, and Conservative Members now recognise the great error that was made.

We introduced the White Paper in order better to underpin the independence of the national statistics service, to establish a clear framework for national statistics, to appoint an independent statistics commission to oversee the operation of the service, and to appoint a high-grade new director. In many Departments, including mine, individual Ministers have already achieved the standard being set, or even surpassed it.

We are not talking just about the law, important though that is; we are talking about practice. When I became Home Secretary, I did not have to wait for three years to put into practice certain principles that I considered to be key to accountability and openness; I ensured that the operation of the research and statistics department was at arm's length, and that the Royal Statistical Society—of which I have the honour to be an honorary Fellow—could advise us about the operation of statistics of integrity.

Let me now reply to the point raised by my hon. Friend the Member for Linlithgow (Mr. Dalyell). A huge amount of research is done in the Home Office. We have established protocols both for the publication of research contracted into the Home Office, and for the publication of research carried out by in-house researchers. The fact that the research is being conducted is published in advance—Ministers cannot interfere with that—and when it is ready for publication, after peer review rather than ministerial say-so, it is published. I believe that similar protocols are followed elsewhere.

Mr. Jon Owen Jones

Everyone, at least on this side of the House, accepts that the last Government were reluctant to allow the public access to statistical information. But why has it taken more than two years— as we heard yesterday—to reveal the costs of the MI6 and MI5 buildings? That concealment of information took place under the current regime, although not to the extent to which it took place under the last.

6.45 pm
Mr. Straw

Let me say, with respect—I make the same point to my right hon. Friend the Member for Chesterfield—that, although there was not a particularly good argument for not revealing the cost of the Security Service and Secret Intelligence Service buildings, in the end the cost was revealed. I think that it should have been revealed much earlier. I do not happen to believe for a second that anything was disclosed other than what is, I am afraid, a universal truth when it comes to public buildings: the work always takes longer and costs a great deal more than anyone originally anticipated. There is no secret about that.

As for the way in which the Security Service and the SIS—MI6—operate, I think it is a universal truth—I now use the phrase in a different context—about freedom-of-information regimes that there must be a ring of secrecy around them. At the same time, however, they must be made accountable in other ways, not least—I say this to my hon. Friend the Member for Thurrock (Mr. Mackinlay), who usually sits below the Gangway—through the Intelligence and Security Committee established by the House.

Mr. White

rose—

Mr. David Heath

rose—

Mr. Straw

I will take two more interventions, but after that I must make progress.

Mr. David Heath

The Home Secretary is explaining his current practice, and I do not hesitate to say that he, within his Department, is exercising very good practice in many ways in regard to the release of information. However, we are not discussing what happens at his behest or in his Department, or in any other Department, or what might happen in a future Government. We are talking about the right of the citizen to receive factual information. Nothing that the right hon. Gentleman has said so far changes the fact that he is proposing a process of attrition for the purposes of a member of the public who wants access to information that a bureaucracy is loth to share. The Executive override is the end of that process, not the beginning. What we want is a right from the beginning.

Mr. Straw

I accept—indeed, the hon. Gentleman anticipated my next remarks—that good faith on the part of government, and evidence of that good faith in the form of practice over the last three years, do not constitute change sufficient to meet the concerns of the House, but they are a necessary part of that change.

I mentioned the practice that I have followed, the practice that many of my predecessors have followed and the practice of the Government as a whole in the context of the changes introduced in what is a very important White Paper, although it has been inevitably much ignored by newspapers, because it aroused no controversy. I wanted to make it clear that we approached the issue—a very difficult issue, when it comes to the detail—in good faith.

It is not that, over the past three years, I have sought to withhold information from the House or from members of the public. In one area after another, I have sought to ensure that the House is properly informed, and that when Members ask questions we always go the extra mile and provide additional information if we can. That contrasts with the practice of the last Government, who adopted a liberal approach to questions and were as unhelpful as possible.

For instance, we have published huge volumes of directives and instruction manuals for the immigration and nationality directorate, and have put them on the internet. I have put the prisons inspectorate on a properly independent basis, with a protocol to ensure that the scandal that occurred under the last Administration will never occur again. When the right hon. Member for Maidstone and The Weald (Miss Widdecombe) was in charge, independent reports by the inspectorate stacked up month after month. A dozen of them a year old were on my desk when I came to the Home Office.

Such improvements have been made in many areas of Government, both because we happen to think it right and because it is sensible, from a Minister's point of view, for there to be an identity of interest between the need for accountability and the reputation of Government. Both require the greatest possible degree of openness.

Mr. Radice

No one doubts my right hon. Friend's record, or the improvement on the previous Government. However, on Second Reading, I asked him: Is not it possible to separate policy advice from the information behind that policy advice?—[Official Report, 7 December 1999; Vol. 340, c. 723.] My right hon. Friend said that he had not yet found a formula that safely did as I asked, but that he was happy to continue the search for one. My question is simply whether he has found such a formula yet?

Mr. Straw

I shall answer my right hon. Friend directly, as that point is at the heart of the debate. We have found part of an answer—a safe one in which there is a proper balance in the conflict between the need of the Government to make their decisions in confidence and the understandable need of the public and the House to ensure availability of the maximum amount of factual information. That is the point of clause 13.

As I shall explain to the House in a moment, the Government face a genuine difficulty in putting together a form of words that separates what I think people are talking about—basic statistical data, which are already published; although there are not much such data, there are some—from the analysis of that data and policy advice, which people accept, for reasons that everyone understands, should not be published immediately. The position that we have reached so far is the provisions of clause 13, which we propose to amend with amendment No. 48 and the other amendments that the House accepted yesterday.

I tell my hon. Friend the Member for Cannock Chase (Dr. Wright) and hon. Members who have supported him on amendment No. 10 that there are really quite serious difficulties about the amendment's wording. He described the amendment as the simplest and the crispest of the amendments—some of which are alternative amendments—in this group. The problem with amendment No. 10 is that it seeks to ensure that the factual information behind policy advice is made available. It provides no class exemption, and it does not even provide a harm test, which is typically provided in other systems. Nor does it provide a balancing arrangement between the public interest in disclosure of that factual background information and the public interest against its disclosure.

The difficulty with the amendment is essentially a linguistic one, about what is meant by factual information. The word fact encompasses a huge sphere of human activity. "Words and Phrases Legally Defined" states: Everything in the cosmos is a fact or a phenomenon. Occasionally, there are arguments—perhaps I should say happy and comradely discussions—in Cabinet Committees and between Ministers. Although those arguments themselves will be an expression of opinion, it will be a fact that those arguments occurred.

Mr. Fisher

indicated dissent.

Mr. Straw

I do not say that to make a casuistical point. I shall give my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher) and the House a more specific example.

As is well known, discussions are being held between departmental spending Ministers and the Treasury on bids for the next spending round, which will be announced in July. A huge amount of the information that has been submitted, on paper, to PSX—which is the Cabinet Committee concerned—is factual information on the costs of the various bids submitted by Ministers or on the analysis of that information. The conclusion of those Cabinet discussions will be made public very soon, in July 2000, in the statement of my right hon. Friend the Chancellor of the Exchequer and in the public spending White Paper that will be published with that statement.

As my hon. Friend the Member for Stoke-on-Trent, Central has been a Minister, he will know that there is no way in which a Minister can say that the type of information in the bid letters that I have submitted, or in the briefing that is in my folder for meetings with colleagues, is opinion. It is not opinion: it is raw fact and raw data, and, at best, analysis of them. If we were to accept amendment No. 10, virtually everything that is in my brief for PSX and in those of my colleagues—although it goes to the heart of collective decision making—would be available. There is no question but that we would have to release it. I suggest that that would very seriously affect the collective nature of the Government and our ability—on behalf of our constituents, and to follow our manifesto—to make decisions.

In this debate, every hon. Member has accepted that collective decision making needs to be protected and has to take place in confidence. Everyone has also accepted—as do I—that as much factual and background information as possible should be made available. I have spelt out to the House what we have already done, what we have included in clause 13, how we are strengthening clause 13, and how I hope that we can continue the discussions that I mentioned in answer to my right hon. Friend the Member for North Durham (Mr. Radice).

It would be idle for me or for any other hon. Member to pretend that it is easy to secure a balance. I say with respect to my hon. Friend the Member for Cannock Chase that amendment No. 10 does not achieve such a balance at all.

Fiona Mactaggart (Slough)

I accept the Secretary of State's points, but he has forgotten about clause 34—which contains a harm test that specifically deals with those points. If factual information is not covered by clause 33, it would not be covered if amendment No. 10 were passed. However, that factual information would also be considered under the provisions of clause 34, which would exempt information that is likely to prejudice maintenance of the convention on Ministers' collective responsibility. Therefore, because of the provisions of clause 34, I think that his fears are unfounded.

Mr. Straw

I have listened with interest to my hon. Friend's comments, but, with respect to her, I do not think that it would be exempt. That was also not the sense of the amendment that I got from my hon. Friend the Member for Cannock Chase when he moved it. A note that I have just been handed also says that amendment No. 10 would exclude clause 34—which was the point that I was going to make, from recollection, regardless.

Dr. Tony Wright

The Home Secretary's invitation to the House to consider the nature of a fact was an interesting moment. However, is he really suggesting that they know what a fact is in Ireland and in New Zealand, and that they have discovered what a fact is in Scotland, but that we in the United Kingdom have not quite managed to work out what a fact is at all?

Mr. Straw

I cannot speak for New Zealand, for Ireland or, indeed, for Scotland. Nevertheless, in Scotland—as I recall; I am open to correction—the Scottish Executive has published a White Paper. It is easy to say that such matters are easily defined, but much more difficult to define them. That is the difficulty, and that is at the heart of the issue. We are arguing about what is a fact. If my hon. Friend applies himself not only to the Oxford English Dictionary, but to "Words and Phrases Legally Defined", he will discover that there is no complete separation between a fact and an opinion. It is—in fact—a bit like Venn diagrams, in which there is certainly separation at the extremes, but a large area in the middle where things can be both fact and opinion. Additionally, a fact can be made out of the existence of an opinion.

Mr. David Davis

My point follows that of the hon. Member for Cannock Chase (Dr. Wright). The Home Secretary has almost gone into a theological argument in describing the processes of government, but the processes that he has described are common to Canada, New Zealand, Australia and Ireland. They are almost identical structures of government. Why, when those countries can solve the problem without damage, cannot the Home Secretary do so?

7 pm

Mr. Straw

I am interested to hear a member of the previous Government professing expertise on freedom of information, when the campaign guide on which he fought the election said: The only group in Britain who are seriously interested in a Freedom of Information Act are inquisitive left-wing busy bodies. I shall listen to advice from Labour Members, but, with the exception of the hon. Member for Aldridge-Brownhills (Mr. Shepherd), I take with a pinch of salt the Conservatives' late conversion on the issue.

The answer to the right hon. Gentleman's point is that it is for each Parliament to make its own decisions. We have to debate the matter ourselves. I cannot answer for the debates in Canada or New Zealand, but I am sure that there was a proper debate. The dividing line between fact and opinion is not a theological issue; it is linguistic, because law is based on language, which is of critical importance. Such debates took place in those other countries, but it is for us to decide for ourselves on the basis of our culture and practices and, in particular, the way in which our courts have interpreted words such as "facts" and "opinions".

Bringing the debate to a close, I regret, for the reasons that I have explained, that we cannot accept amendment No. 10 and the others that my hon. Friend the Member for Cannock Chase spoke to, not because we disagree with the principle that he put forward, but because we disagree with the practical effect of the amendments. I sought to explain yesterday and today that we want the greatest possible openness in the operation of government. The proof of that is not in the crystal, it is in the book—in the way in which we have operated and will continue to operate. To answer the point made by the hon. Member for Somerton and Frome (Mr. Heath), I accept that that method of operation should be enshrined in law as far as possible.

During our debates we have strengthened the arrangements for ensuring that as much factual information as possible is brought out. I explained that yesterday in relation to the changes to clause 13. The House will be aware that Government amendment No. 48 affects clause 13 and will ensure that the Minister and commissioner will have to have particular regard to the public interest in making factual information available. I have also told my right hon. Friend the Member for North Durham that the search for a better form of words will be difficult, but it will continue and we shall not close the door on it.

Mr. Radice

Clause 13(6) refers to communicating to the applicant factual information which has been used, or is intended to be used, to provide an informed background to decision-taking. Surely my right hon. Friend might look at that.

Mr. Straw

Indeed we shall continue to look at that.

This has been a lengthy but good debate. In the light of my explanations, I hope that the House will accept the Government amendments and that my hon. Friend the Member for Cannock Chase may feel able to withdraw his amendment.

Dr. Tony Wright

I have listened carefully to the Home Secretary. A couple of centuries ago, that shrewd observer of public affairs, Mr. de Tocqueville, said that an unreformed regime was most at risk when it started to reform. I understand that that is written in bright lights in every Whips office.

The Home Secretary is right to point to the seamless nature of the Bill. Each item is intricately connected with all the others. The issue relates to new clause 6, which we will consider later. We listened with care to what the Home Secretary said on the issue last night, but we were not yet persuaded that it was desirable to allow the exercise of a veto. If we allow a veto, it must come with certain conditions: first, it must be a proper Cabinet veto; secondly, it should not be an across-the-board veto, but must concentrate on certain key areas; and, thirdly, it should not apply to local authorities. Based on what my colleagues were saying last night, I think that that is the position.

I speak with some sadness, because I am a supporter of the Government. I am proud of what they are doing. Indeed, I confess to being a serial loyalist. The problem is that there comes a moment when we have to decide whether we can accept the formula that the Government are offering on issues that affect the workings of our democracy and the rights of our citizens. There are not too many such moments during a Parliament, but this is one on any test.

The question is simple. Individual Members of Parliament have to make a decision—never mind the party line. I celebrate the fact that much of the Bill has cross-party agreement. We have to decide individually.

Mr. Straw

I understand my hon. Friend's feelings, but we are considering amendment No. 10, which would drive a coach and horses through any idea of confidentiality of collective decision making. Does he accept that, under his amendment, all the factual information on public spending going before the Cabinet Committee would have to be made public? That is plainly the effect of the amendment.

Dr. Wright

I shall refer in a second to the amendments, but I should like to continue on the fundamental point. We must ask whether we are prepared to accept clauses 33 and 34. This may seem an abstruse way of putting it to those who have not followed our debates closely, but they are the clauses that say, "Thou shalt not have access even to the factual basis on which Government policy is made." We must make a clear choice on whether that is an acceptable formulation.

I am still not sure whether I am allowed to call someone on the other side of the House an hon. Friend, but my hon. Friend and parliamentary neighbour, the Member for Aldridge-Brownhills (Mr. Shepherd), said extraordinarily eloquently that the answer lies within ourselves. It is as simple as that. There is no great wisdom to be derived from other sources. We simply have to work out whether we think that the formulation given to us in clauses 33 and 34 is how we would like to deal with the issue.

I hope that my right hon. Friend the Member for Chesterfield (Mr. Benn) will not mind me saying that, during the debate, he leant over to me and said that he could not remember an occasion when Parliament had been so roused collectively by an issue across party lines. He said how good it was for Parliament that this was happening. The Home Secretary illuminated the choice in his reply to the debate, as did the Public Administration Committee report on the draft Bill, saying that there was a fundamental choice in approach between open government and freedom of information. Open government happens when a Government decide to behave in a more open way. It is a gift, or a grant, from a Government. Freedom of information is achieved when rights are claimed by citizens, and bestowed on them. That is the choice before us in clauses 33 and 34.

Amendment No. 7 would remove what I and other hon. Members consider to be an unacceptable way of dealing with this matter. Other amendments that have been tabled are far more robust, but the minimalist amendment No. 10—on which I hope we will vote later—would simply take factual information out of the list of exemptions. That amendment represents the most minimal approach to making the distinction that many hon. Members believe is necessary.

For the moment, our attention is turned to amendment No. 7, which says in effect that the proposals are unacceptable and that we should proceed in a more acceptable way. I commend it to the House.

Question put, That the amendment be made:—

The House divided: Ayes 202, Noes 311.

Division No. 144] [7.11 pm
AYES
Ainsworth, Peter (E Surrey) Cousins, Jim
Allan, Richard Cran, James
Amess, David Dalyell, Tam
Arbuthnot, Rt Hon James Davies, Quentin (Grantham)
Ashdown, Rt Hon Paddy Davis, Rt Hon David (Haltemprice)
Atkinson, Peter (Hexham) Day, Stephen
Baldry, Tony Donaldson, Jeffrey
Ballard, Jackie Dorrell, Rt Hon Stephen
Beggs, Roy Duncan, Alan
Bell, Martin (Tatton) Duncan Smith, Iain
Dunwoody, Mrs Gwyneth
Benn, Rt Hon Tony (Chesterfield) Evans, Nigel
Bercow, John Fabricant, Michael
Beresford, Sir Paul Fallon, Michael
Blunt, Crispin Fearn, Ronnie
Body, Sir Richard Fisher, Mark
Boswell, Tim Flight, Howard
Bottomley, Peter (Worthing W) Forth, Rt Hon Eric
Bottomley, Rt Hon Mrs Virginia Foster, Rt Hon Derek
Brady, Graham Foster, Don (Bath)
Brake, Tom Fox, Dr Liam
Brand, Dr Peter Fraser, Christopher
Brazier, Julian Gale, Roger
Breed, Colin Garnier, Edward
Brooke, Rt Hon Peter George, Andrew (St Ives)
Browning, Mrs Angela Gerrard, Neil
Gibb, Nick
Bruce, Ian (S Dorset) Gillan, Mrs Cheryl
Burnett, John Gorman, Mrs Teresa
Burns, Simon Graham, Thomas
Burstow, Paul Gray, James
Butterfill, John Green, Damian
Cable, Dr Vincent Greenway, John
Campbell, Rt Hon Menzies (NE Fife) Grieve, Dominic
Gummer, Rt Hon John
Chope, Christopher Hague, Rt Hon William
Clappison, James Hall, Patrick (Bedford)
Clark, Rt Hon Dr David (S Shields) Hamilton, Rt Hon Sir Archie
Clifton-Brown, Geoffrey Hammond, Philip
Clwyd, Ann Harvey, Nick
Cohen, Harry Hawkins, Nick
Hayes, John
Collins, Tim Heald, Oliver
Cook, Frank (Stockton N) Heath, David (Somerton & Frome)
Corbett, Robin Hinchliffe, David
Corbyn, Jeremy Hogg, Rt Hon Douglas
Cotter, Brian Hopkins, Kelvin
Horam, John Prentice, Gordon (Pendle)
Howard, Rt Hon Michael Randall, John
Hughes, Simon (Southwark N) Redwood, Rt Hon John
Hunter, Andrew Rendel, David
Jenkin, Bernard Robathan, Andrew
Johnson Smith, Rt Hon Sir Geoffrey Robertson, Laurence
Roe, Mrs Marion (Broxbourne)
Jones, Jon Owen (Cardiff C) Rowe, Andrew (Faversham)
Jones, Dr Lynne (Selly Oak) Ruffley, David
Keetch, Paul Russell, Bob (Colchester)
Kennedy, Rt Hon Charles (Ross Skye & Inverness W) St Aubyn, Nick
Sayeed, Jonathan
Key, Robert Shephard, Rt Hon Mrs Gillian
King, Rt Hon Tom (Bridgwater) Shepherd, Richard
Kirkbride, Miss Julie Simpson, Alan (Nottingham S)
Kirkwood, Archy Simpson, Keith (Mid-Norfolk)
Laing, Mrs Eleanor Skinner, Dennis
Lansley, Andrew Smith, Llew (Blaenau Gwent)
Leigh, Edward Smith, Sir Robert (W Ab'd'ns)
Letwin, Oliver Soames, Nicholas
Lidington, David Spelman, Mrs Caroline
Lloyd, Rt Hon Sir Peter (Fareham) Spring, Richard
Llwyd, Elfyn Stanley, Rt Hon Sir John
Loughton, Tim Steen, Anthony
Love, Andrew Streeter, Gary
Luff, Peter Stunell, Andrew
Lyell, Rt Hon Sir Nicholas Swayne, Desmond
McDonnell, John Syms, Robert
MacGregor, Rt Hon John Tapsell, Sir Peter
McIntosh, Miss Anne Taylor, Ian (Esher & Walton)
MacKay, Rt Hon Andrew Taylor, John M (Solihull)
Mackinlay, Andrew Taylor, Matthew (Truro)
Maclean, Rt Hon David Thompson, William
Maclennan, Rt Hon Robert Tonge, Dr Jenny
McLoughlin, Patrick Tredinnick, David
Madel, Sir David Trend, Michael
Mahon, Mrs Alice Tyler, Paul
Malins, Humfrey Viggers, Peter
Maples, John Walter, Robert
Marshall, Jim (Leicester S) Waterson, Nigel
Marshall-Andrews, Robert Webb, Steve
Mates, Michael Wells, Bowen
Maude, Rt Hon Francis Whitney, Sir Raymond
May, Mrs Theresa Whittingdale, John
Michie, Bill (Shef'ld Heeley) Willetts, David
Michie, Mrs Ray (Argyll & Bute) Williams, Mrs Betty (Conwy)
Moore, Michael Willis, Phil
Morgan, Ms Julie (Cardiff N) Winnick, David
Moss, Malcolm Winterton, Mrs Ann (Congleton)
Nicholls, Patrick Winterton, Nicholas (Macclesfield)
Norman, Archie Wood, Mike
Oaten, Mark Wright, Dr Tony (Cannock)
O'Brien, Stephen (Eddisbury) Wyatt, Derek
Öpik, Lembit Yeo, Tim
Ottaway, Richard Young, Rt Hon Sir George
Page, Richard
Paice, James Tellers for the Ayes:
Pickles, Eric Mr. Adrian Sanders and
Portillo, Rt Hon Michael Mr. Ronnie Campbell.
NOES
Ainger, Nick Begg, Miss Anne
Ainsworth, Robert (Cov'try NE) Bell, Stuart (Middlesbrough)
Alexander, Douglas Benn, Hilary (Leeds C)
Anderson, Donald (Swansea E) Bennett, Andrew F
Anderson, Janet (Rossendale) Benton, Joe
Armstrong, Rt Hon Ms Hilary Bermingham, Gerald
Ashton, Joe Berry, Roger
Atherton, Ms Candy Best, Harold
Atkins, Charlotte Betts, Clive
Austin, John Blackman, Liz
Barnes, Harry Blears, Ms Hazel
Barron, Kevin Blizzard, Bob
Bayley, Hugh Blunkett, Rt Hon David
Beard, Nigel Boateng, Rt Hon Paul
Beckett, Rt Hon Mrs Margaret Bradley, Keith (Withington)
Bradley, Peter (The Wrekin) Gardiner, Barry
Bradshaw, Ben George, Bruce (Walsall S)
Brinton, Mrs Helen Gilroy, Mrs Linda
Brown, Rt Hon Nick (Newcastle E) Godman, Dr Norman A
Brown, Russell (Dumfries) Godsiff, Roger
Browne, Desmond Goggins, Paul
Buck, Ms Karen Golding, Mrs Llin
Burden, Richard Gordon, Mrs Eileen
Griffiths, Jane (Reading E)
Burgon, Colin Griffiths, Nigel (Edinburgh S)
Butler, Mrs Christine Griffiths, Win (Bridgend)
Byers, Rt Hon Stephen Grocott, Bruce
Caborn, Rt Hon Richard Grogan, John
Campbell, Alan (Tynemouth) Gunnell, John
Campbell, Mrs Anne (C'bridge) Hain, Peter
Campbell-Savours, Dale Hall, Mike (Weaver Vale)
Cann, Jamie Hamilton, Fabian (Leeds NE)
Caplin, Ivor Hanson, David
Casale, Roger Heal, Mrs Sylvia
Caton, Martin Healey, John
Cawsey, Ian Henderson, Doug (Newcastle N)
Chapman, Ben (Wirral S) Hepburn, Stephen
Chaytor, David Heppell, John
Church, Ms Judith Hesford, Stephen
Clapham, Michael Hill, Keith
Hodge, Ms Margaret
Clark, Dr Lynda (Edinburgh Pentlands) Hoey, Kate
Hood, Jimmy
Clark, Paul (Gillingham) Hoon, Rt Hon Geoffrey
Clarke, Charles (Norwich S) Hope, Phil
Clarke, Eric (Midlothian) Howarth, Alan (Newport E)
Clarke, Tony (Northampton S) Howarth, George (Knowsley N)
Clelland, David Howells, Dr Kim
Coaker, Vernon Hoyle, Lindsay
Coffey, Ms Ann Hughes, Kevin (Doncaster N)
Coleman, Iain Humble, Mrs Joan
Colman, Tony Hurst, Alan
Cooper, Yvette Hutton, John
Corston, Jean Iddon, Dr Brian
Cranston, Ross Illsley, Eric
Cryer, John (Hornchurch) Ingram, Rt Hon Adam
Cummings, John Jackson, Ms Glenda (Hampstead)
Jackson, Helen (Hillsborough)
Cunningham, Rt Hon Dr Jack (Copeland) Jamieson, David
Jenkins, Brian
Cunningham, Jim (Cov'try S) Johnson, Alan (Hull W & Hessle)
Darling, Rt Hon Alistair Johnson, Miss Melanie (Welwyn Hatfield)
Darvill, Keith
Davey, Valerie (Bristol W) Jones, Rt Hon Barry (Alyn)
Davidson, Ian Jones, Helen (Warrington N)
Davies, Rt Hon Denzil (Llanelli) Jones, Martyn (Clwyd S)
Davies, Geraint (Croydon C) Jowell, Rt Hon Ms Tessa
Dawson, Hilton Kaufman, Rt Hon Gerald
Dean, Mrs Janet Keeble, Ms Sally
Denham, John Keen, Alan (Feltham & Heston)
Dismore, Andrew Kemp, Fraser
Dobbin, Jim Kennedy, Jane (Wavertree)
Donohoe, Brian H Khabra, Piara S
Doran, Frank Kidney, David
Dowd, Jim King, Andy (Rugby & Kenilworth)
Eagle, Angela (Wallasey) King, Ms Oona (Bethnal Green)
Eagle, Maria (L'pool Garston) Ladyman, Dr Stephen
Edwards, Huw Lawrence, Mrs Jackie
Ellman, Mrs Louise Laxton, Bob
Ennis, Jeff Lepper, David
Field, Rt Hon Frank Leslie, Christopher
Levitt, Tom
Fitzpatrick, Jim Lewis, Ivan (Bury S)
Fitzsimons, Lorna Lewis, Terry (Worsley)
Flint, Caroline Liddell, Rt Hon Mrs Helen
Follett, Barbara Linton, Martin
Foster, Michael Jabez (Hastings) Lock, David
Foster, Michael J (Worcester) McAvoy, Thomas
Foulkes, George McCabe, Steve
Galloway, George McDonagh, Siobhain
Gapes, Mike Macdonald, Calum
McFall, John Sarwar, Mohammad
McIsaac, Shona Savidge, Malcolm
McKenna, Mrs Rosemary Sawford, Phil
McNulty, Tony Sedgemore, Brian
MacShane, Denis Shaw, Jonathan
Mactaggart, Fiona Sheerman, Barry
McWalter, Tony Shipley, Ms Debra
McWilliam, John Short, Rt Hon Clare
Mallaber, Judy Singh, Marsha
Mandelson, Rt Hon Peter Smith, Rt Hon Andrew (Oxford E)
Marsden, Paul (Shrewsbury) Smith, Angela (Basildon)
Marshall, David (Shettleston) Smith, Miss Geraldine (Morecambe & Lunesdale)
Martlew, Eric
Maxton, John Smith, Jacqui (Redditch)
Meacher, Rt Hon Michael Smith, John (Glamorgan)
Merron, Gillian Soley, Clive
Milburn, Rt Hon Alan Southworth, Ms Helen
Miller, Andrew Spellar, John
Moffatt, Laura Squire, Ms Rachel
Moonie, Dr Lewis Starkey, Dr Phyllis
Moran, Ms Margaret Steinberg, Gerry
Morley, Elliot Stevenson, George
Morris, Rt Hon Ms Estelle (B'ham Yardley) Stewart, David (Inverness E)
Stewart, Ian (Eccles)
Mountford, Kali Stinchcombe, Paul
Mudie, George Stoate, Dr Howard
Mullin, Chris Strang, Rt Hon Dr Gavin
Murphy, Denis (Wansbeck) Straw, Rt Hon Jack
Murphy, Jim (Eastwood) Stringer, Graham
Murphy, Rt Hon Paul (Torfaen) Stuart, Ms Gisela
Naysmith, Dr Doug Sutcliffe, Gerry
Norris, Dan Taylor, Rt Hon Mrs Ann (Dewsbury)
O'Brien, Bill (Normanton)
O'Brien, Mike (N Warks) Taylor, Ms Dari (Stockton S)
Olner, Bill Taylor, David (NW Leics)
O'Neill, Martin Temple-Morris, Peter
Organ, Mrs Diana Thomas, Gareth (Clwyd W)
Osborne, Ms Sandra Thomas, Gareth R (Harrow W)
Palmer, Dr Nick Timms, Stephen
Pearson, Ian Tipping, Paddy
Pendry, Tom Todd, Mark
Perham, Ms Linda Touhig, Don
Pickthall, Colin Trickett, Jon
Pike, Peter L Truswell, Paul
Plaskitt, James Turner, Dennis (Wolverh'ton SE)
Pollard, Kerry Turner, Dr George (NW Norfolk)
Pond, Chris Turner, Neil (Wigan)
Pound, Stephen Twigg, Derek (Halton)
Powell, Sir Raymond Twigg, Stephen (Enfield)
Prentice, Ms Bridget (Lewisham E) Tynan, Bill
Prescott, Rt Hon John Vaz, Keith
Primarolo, Dawn Walley, Ms Joan
Prosser, Gwyn Ward, Ms Claire
Purchase, Ken Wareing, Robert N
Quinn, Lawrie Watts, David
Rammell, Bill White, Brian
Raynsford, Nick Whitehead, Dr Alan
Reed, Andrew (Loughborough) Wicks, Malcolm
Reid, Rt Hon Dr John (Hamilton N) Williams, Rt Hon Alan (Swansea W)
Robinson, Geoffrey (Cov'try NW)
Roche, Mrs Barbara Williams, Alan W (E Carmarthen)
Rogers, Allan Wills, Michael
Rooker, Rt Hon Jeff Wilson, Brian
Rooney, Terry Winterton, Ms Rosie (Doncaster C)
Ross, Ernie (Dundee W) Woodward, Shaun
Rowlands, Ted Woolas, Phil
Roy, Frank Worthington, Tony
Ruane, Chris Wright, Anthony D (Gt Yarmouth)
Ruddock, Joan
Russell, Ms Christine (Chester) Tellers for the Noes:
Ryan, Ms Joan Mr. Greg Pope and
Salter, Martin Mrs. Anne McGuire.

Question accordingly negatived.

Amendments made: No. 48, in page 8, line 10, leave out— 'also have regard to the desirability of' and insert— 'in particular have regard to the public interest in'.

No. 49, in page 8, line 13, leave out from beginning to "within" and insert— 'A public authority must comply with this section'.—[Mr. Mike Hall.]

Forward to