HC Deb 05 April 2000 vol 347 cc1116-23

'(1) A public authority to which this section applies shall, subject to subsection (2), publish any manuals, instructions, precedents and guidelines used by it for the purpose of—

  1. (a) interpreting any enactment, or
  2. (b) administering any scheme for which the authority is responsible.

(2) A public authority is not required by subsection (1) to publish any exempt information unless the public interest in disclosure outweighs the public interest in maintaining the exemption.

(3) The public authorities to which this section applies are—

  1. (a) any public authority in respect of which an investigation may be made by:
    1. (i) the Parliamentary Commissioner for Administration, the Scottish Parliamentary Commissioner for Administration and the Welsh Administration Ombudsman
    2. (ii) the Northern Ireland Parliamentary Commissioner for Administration (or the Parliamentary Ombudsman for Northern Ireland)
    3. (iii) the Health Service Commissioner for England; the Health Service Commissioner for Scotland; or, in respect of health service bodies in Northern Ireland, the Commissioner for Complaints
  2. (b) any other public authority which has been notified in writing by the Information Commissioner that it is subject to the provisions of this section.'.—[Mr. Shepherd.]

Brought up, and read the First time.

Mr. Shepherd

I beg to move, That the clause be read a Second time.

I feel that I am the night man here. The new clause was discussed in Committee and the Government are well aware of it. It deals with the duty to publish guidelines. I shall not go through the details, but it involves a right that was established under the code of practice. I know that some hon. Members have denigrated the code of practice, but it had that one great value.

The Government said that, as it was drafted in Committee, the new clause was too burdensome. So it was redrafted to meet that valid point and now it applies only to the status quo. It is an important principle, however, and I hope that the Government will agree to accept it.

Mr. David Heath

I certainly do not intend to detain the House, except to say that the Liberal Democrats support the spirit of the new clause and we hope that the Minister will provide a satisfactory answer so that there is no retrogression from the provision under the codes of conduct in respect of bodies that are currently subject to investigation by the Parliamentary Ombudsman or the health service ombudsman.

Mr. Quentin Davies

I hope that the Government will accept the new clause. If they do not accept the new clause, come up with a practically identical proposal, or at least give a firm undertaking to introduce the provision in another place, it will be quite clear that part of their hidden agenda is to regress from the position established by the previous Government's non-statutory code. That would be a pretty horrifying state of affairs.

12.30 am

As each year goes by, it becomes more and more important that the manuals of practice and precedents and guidelines used by various parts of the bureaucracy in interpreting legislation should be made public, because in this country we have the phenomenon of government not merely by secondary as well as primary legislation—which is worrying enough to all Members of the House—but increasingly, by tertiary administration, whereby parts of the bureaucracy interpret the law and have their own practice manuals according to which they tell their staff which way to interpret matters, how to pursue certain types of activity and not others, and so on.

The Revenue works on the basis of practice manuals the whole time. It is thus enormously important that such manuals be made available. They are, in effect—I regret this state of affairs, but we have to acknowledge it—part of the law of the land. Citizens can find that they have transgressed the law without knowing that they have transgressed something which some manual said somewhere was a matter that should be pursued or prosecuted. If these manuals can then be changed, unknown to the public, the citizen might believe that, because the precedents suggest that a certain pattern of activity is accepted, he can quite legitimately arrange his affairs in such a manner—only to find that the law has been changed surreptitiously and that he is now on the wrong side of the law as a result. That is an intolerable situation for any citizen to find himself or herself in, in a free society based on the rule of law.

The new clause is enormously important. It goes beyond even the importance of freedom of information that all the practice manuals and other documents referred to in the new clause should be incorporated in the Bill. I have to warn the Minister that there will be the most extraordinary degree of concern in this country if the Government cannot accept the new clause, and it is not a matter on which we should be content with any kind of shilly-shallying, of which we have already had far too much from the Treasury Bench in our debates in the last two days.

Mr. Mike O'Brien

I can understand the hon. Gentleman's trying to claim the high ground on this matter, but it was the Conservative Government who refused to publish the immigration guidelines, and it was the present Government who did publish them, after the Home Secretary took up office, so I will take no strictures from the hon. Gentleman or his colleagues on this.

New clause 10 has been amended as a result of the discussion in Committee, but I think not enough, and I am not convinced that it has any real value. The information that is being sought in the new clause is available on request in any event, and it is not as though such manuals were kept secret, because lists are published of the manuals that are published by the Government. Some of those manuals—such as internal directories with numbers for a telephone system that has no gateway for public access—will be of absolutely no public interest; and the requirement that they all be published at great public expense is an unnecessary burden when anyone who seriously wants them would be able to gain access to them. Moreover, if there were a likelihood that the public wanted access, there would be a requirement, under the publication scheme that any public authority must have, to make them public anyway, and that publication scheme must be approved by the Information Commissioner.

On all those grounds, the new clause would be completely unnecessary. The information is available anyway; if it is likely to be requested by the public, it would be in the publication scheme approved by the Information Commissioner; and if it is unlikely to be requested by the public, they could request it anyway if they happened to want it out of interest. There is no restriction on such manuals because the exemption does not apply to them.

There is also a defect and a technical problem with the new clause. It refers to a number of bodies in Scotland and Northern Ireland and responsibility for those bodies rests with the Scottish Parliament and the Northern Ireland Assembly. It would not be right for this House to seek to legislate for them without their consent.

For all those reasons, I ask the hon. Gentleman to withdraw the new clause.

Mr. Shepherd

I am grateful for the Minister's swift response, but I have been slightly pole-axed at this late hour to learn that there is a defect in the drafting of my new clause. Naturally, I do not want the House to support it and send it to the House of Lords, because, unlike the Home Secretary, I cannot assure the House that it will be amended in a form that is satisfactory; I have no such powers.

I am disappointed to hear that the new clause is defective and, for the moment, I accept the Minister's judgment on that. The issue will be pursued in another place, because, as my hon. Friend the Member for Grantham and Stamford (Mr. Davies) pointed out, the availability of, and access to, manuals is important for people to understand their rights and where they stand in relation to the law. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Order for Third Reading read.

12.36 am
Mr. Straw

I beg to move, That the Bill be now read the Third time.

I will not detain the House by more than a couple of minutes. One of the paradoxes of the discussions that we have had—and great discussions they have been—is that, unlike many debates about Bills on which there is a clash of argument about the principle, everyone, I believe, agrees that we need a Freedom of Information Bill. I would therefore find it extraordinary if anybody voted against Third Reading.

In what I hope is a spirit of generosity, I welcome the conversion of many Conservative Members on this issue. They have come a long way even since the general election, when we were told that freedom of information Bills were simply the domain of left-wing eccentrics. The hon. Member for Grantham and Stamford (Mr. Davies) is welcome to the fold.

This is an important Bill. It fulfils one of the important manifesto commitments that we made at the general election. It has genuinely been improved as a result of discussion and debate in Committee, and on the Floor of the House over the past two days. I commend it to the House.

12.38 am
Mr. Hawkins

At this late hour, I want to respond with only one or two points. When I paid tribute much earlier to the hon. Member for Leyton and Wanstead (Mr. Cohen), I referred to a document that was prepared by the Campaign for Freedom of Information and that mentions responses to the Government's Bill that are still relevant on Third Reading.

The document quoted not my words but an editorial about the Bill. It said that so long as the Commons public administration Committee, chaired by Dr. Tony Wright, remains troubled about the Bill, the Commons ought to be troubled too. The real test of this Bill will come in Committee, where, according to usual parliamentary practice, Labour's legion of doubters should be sturdily represented. They were, and not least by the hon. Member for Stoke-on-Trent, Central (Mr. Fisher). It continues: If the Bill remains as inadequate as we still think it, a wider range of dissenters will have to stand up for their doubts at report stage. They have done so, led by the hon. Member for Cannock Chase (Dr. Wright) and the hon. Member for Stoke-on-Trent, Central. The editorial in The Guardian continues: More freedom, of some information, won't do. We want the full month they promised us when they were seeking our votes…Two years in power has finally suppressed the clearest ideal that Labour formed during its years of impotence. The freedom of information bill marks its definitive transition from a party dedicated to changing the world, into a Government determined its own world shall not be changed…The purpose of this reform, as canvassed in opposition, was to alter the balance of power between citizen and state…The bill now disgorged is a spectacular betrayal of any such idea. The Home Secretary has turned himself into, not Houdini, nor a character invented by Lord Archer of Weston-super-Mare, but Jim Hacker.

12.41 am
Dr. Tony Wright

I was not going to say a word on Third Reading, but I have been provoked by the speech I just heard. The hon. Member for Surrey Heath (Mr. Hawkins) got the tone wrong last night and he has got it wrong tonight. All that was required from the Opposition during consideration of the Bill on Report was a little humility, to reflect that the fact that the Conservatives consistently opposed any such legislation throughout all its years in office.

My first experience of serious business in the House of Commons was as a member of the Standing Committee on the private Member's Bill promoted by my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher), the Right to Know Bill. We won all the arguments in the Committee, but then the Government of the day ruthlessly moved to kill my hon. Friend's Bill in the Chamber. I always carry with me that example of the Conservatives' lamentable record on freedom of information. The Conservatives have not shown the required degree of humility, with the honourable exceptions of some hon. Members I see sitting over there—one of the virtues of the process we have just been through has been what someone described as the progressive coalition.

The Labour party has been committed to legislation on freedom of information since 1974. In the past, Oppositions have said that they would legislate, but they have failed to do so once in government. What is unique about the current Government is that they are doing in government what they said they would do when in opposition. Those who say that the Bill is so lamentable that it would be better not to have it at all are wrong. The Bill has defects and flaws; we have corrected some of those through our consideration of the draft Bill and in Committee; we have corrected yet more in the past 24 hours, and Third Reading is not the end of the story.

Even at this unearthly hour, let us celebrate this historic piece of legislation. Let us congratulate the Government on introducing it. Let us then increase our resolve to make it as good as it can be.

12.43 am
Mr. Maclennan

That we are debating the Bill is in large part owed to the effort of many heroes of Opposition, among whom I count the hon. Member for Stoke-on-Trent, Central (Mr. Fisher), Roy Hattersley, my hon. Friend the Member for Roxburgh and Berwickshire (Mr. Kirkwood) and the hon. Member for Aldridge-Brownhills (Mr. Shepherd). That the Bill is a Government Bill is due to the deliberations that took place prior to the election between the Labour party and the Liberal Democrats, in the effort to gain wide support throughout the country for a change that had defeated parties in government in the past. That dialogue was maintained after the election, and for that we are grateful. I believe that it has had some merit and produced some benefits. There have been useful exchanges of view.

I must admit candidly that I sometimes felt that the entire process was going backwards. Most of us could have signed up with enthusiasm to the White Paper introduced by the right hon. Member for South Shields (Dr. Clark). We would simply have tinkered at the margins of his Bill, whereas in the present Bill, as the hon. Member for Cannock Chase (Dr. Wright) honestly admitted, there were real flaws, and they still deface the Bill.

There are departures from the Government's expressed intentions, particularly the intention expressed in the White Paper that decisions on disclosure would be based on a presumption of openness. That is the principle from which the Government have been stepping back throughout. The right to know has been so hedged round by conditions—by categories of exemption—that were explicitly and almost outspokenly rejected by the Government in their White Paper.

Those backward moves have been a depressing feature of the process. At the same time, it is honestly fair to the Home Secretary to say that although he started from a very different point from his right hon. Friend the Member for South Shields, he has courteously and openly allowed us to make our case and our arguments. The door has not been closed.

We have seen definite and substantial improvements, but many are still required if the Bill is to fulfil the hopes that were well expressed by the Prime Minister in the preface to the Government's White Paper, in which he wrote about changing the relationship between the citizen and the Government. If that is to be more than a pious expression of hope, a rebalancing of the Bill is required. I hope that we shall have an opportunity to return to that before too long.

12.48 am
Mr. Shepherd

I had hoped that the Third Reading of the Freedom of Information Bill would be one of the greatest occasions of my life. [Interruption.] The man is a foolish man who shouts out, "It is", when I have an argument to set out and a case to make. It is absurd for a Whip to tell me what I should think or say. [Interruption.] I apologise if I misdirected my remark, but let us have none of that.

This was a great occasion. From 1974 onwards, the Labour party was committed to freedom of information, for it had seen that in such a measure lies our emancipation as a people. It was a changing of the guard from those who had been cursed by war, who knew the need for secrecy and became obsessive about it. That secrecy filtered through every layer of our society.

I had hoped, and I believed, that when the Labour Government proclaimed that they were committed to a Freedom of Information Bill, we would have one. There was no reason to dissent from that judgment. The White Paper gave us every expectation and every reason to believe that it would be delivered.

I cannot dissent from the generality of the observation that in some measure the Bill does advance freedom of information, but it is not what we understood in those brave and bonny days, when a White Paper was published. It is not. I would not want the Bill to go from the House in its present form, and I would not want the other place to think that it was finished business.

Having marched through the Lobby on these issues over many years, I believe that deep, deep within the feeling of the House, and certainly within the new generation that marches, marking the changing of the guard for each and every Parliament, there is a desire for true freedom of information that will give us equality with an Executive. It was within our grasp; it may still be within our grasp. However, as it leaves this House—in a defective state, as the Home Secretary admits—to be amended in another place, I ask why it could not have been created in our House, the democratic, elected and accountable Chamber in our Parliament.

12.50 am
Mr. Quentin Davies

I shall be extremely brief. I simply want to make three rapid points. First, we owe a great debt to the cross-party group of colleagues who played such a major part in keeping the campaign going for many months and in the debates of the past 48 hours. In particular, I thank my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), the right hon. Member for South Shields (Dr. Clark) the hon. Members for Stoke-on-Trent, Central (Mr. Fisher), and for Cannock Chase (Dr. Wright) and the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan).

Secondly, the Home Secretary, who was again in a conciliatory mood, said that we had had a great discussion in the past two days. I agree, but it has not achieved the results for which I hoped. Perhaps the most momentous and salient aspect of the discussion was that, apart from Ministers' contributions, not a single contribution was made in favour of the Government's position. It is extraordinary to hold a debate for two whole days on a matter of such enormous interest to the House—the Chamber is still full at 1 am—when no one was inspired, not even members of the Labour party with its massive majority, to support the Bill in its current form. I trust that the moral of that will not be lost on those who need to note it.

Thirdly, the Bill is not worse than nothing; it is better than nothing. I said that about the previous Government's non-statutory code. However, as the hon. Member for Cannock Chase said, this cannot be the end of the story. Although the Bill is better than nothing—I am sure that many colleagues agree about that—it is far from being an adequate Freedom of Information Bill.

We live in a democracy, and the Government depend on the people and are accountable to them. A proper Bill would therefore begin with a purpose clause, which stated that information should be available to the public unless the Government explained precisely why, in the national interest, it should not be revealed. The onus should be on the Government to explain.

The Bill should provide for a proper method of dispassionate arbitration when the Government refuse to divulge information, to ascertain whether that refusal is genuinely in the national interest. The Information Commissioner should have that power. Without fulfilling those conditions, the measure is not a Freedom of Information Bill worthy of the name. We do not have such a Bill, but I hope that, in another place, we may be able to build on the small foundations that we have been able to lay in the past two days and create a satisfactory measure.

Against the background, it would be churlish and foolish of us to kill the Bill and not allow their lordships to do the task that, despite all our efforts, is sadly uncompleted.

Question put and agreed to.

Bill accordingly read the Third time, and passed, with amendments.