§ Amendment proposed: No. 35, in page 23, line 7, leave out clause 43.—[Mr. Simon Hughes.]
§ Question put, That the amendment be made:—
§ The House divided: Ayes 158, Noes 325.
1093| Division No. 150] | [10.54 pm |
| AYES | |
| Ainsworth, Peter (E Surrey) | Davies, Quentin (Grantham) |
| Allan, Richard | Davis, Rt Hon David (Haltemprice) |
| Amess, David | Day, Stephen |
| Ancram, Rt Hon Michael | Donaldson, Jeffrey |
| Arbuthnot, Rt Hon James | Dorrell, Rt Hon Stephen |
| Ashdown, Rt Hon Paddy | Duncan, Alan |
| Atkinson, Peter (Hexham) | Duncan Smith, Iain |
| Baldry, Tony | Faber, David |
| Ballard, Jackie | Fabricant, Michael |
| Beggs, Roy | Fallon, Michael |
| Bercow, John | Fearn, Ronnie |
| Beresford, Sir Paul | Flight, Howard |
| Blunt, Crispin | Forth, Rt Hon Eric |
| Body, Sir Richard | Foster, Don (Bath) |
| Boswell, Tim | Fowler, Rt Hon Sir Norman |
| Bottomley, Peter (Worthing W) | Fox, Dr Liam |
| Bottomley, Rt Hon Mrs Virginia | Fraser, Christopher |
| Brady, Graham | Gale, Roger |
| Brake, Tom | Garnier, Edward |
| Brand, Dr Peter | George, Andrew (St Ives) |
| Brazier, Julian | Gibb, Nick |
| Breed, Colin | Gillan, Mrs Cheryl |
| Browning, Mrs Angela | Gorman, Mrs Teresa |
| Bruce, Ian (S Dorset) | Gray, James |
| Burnett, John | Green, Damian |
| Burstow, Paul | Greenway, John |
| Butterfill, John | Grieve, Dominic |
| Campbell, Rt Hon Menzies (NE Fife) | Gummer, Rt Hon John |
| Hamilton, Rt Hon Sir Archie | |
| Chope, Christopher | Hammond, Philip |
| Clappison, James | Harris, Dr Evan |
| Clifton-Brown, Geoffrey | Harvey, Nick |
| Collins, Tim | Hawkins, Nick |
| Cran, James | Hayes, John |
| Davey, Edward (Kingston) | Heald, Oliver |
| Heath, David (Somerton & Frome) | Prior, David |
| Hogg, Rt Hon Douglas | Randall, John |
| Horam, John | Rendel, David |
| Howard, Rt Hon Michael | Robathan, Andrew |
| Hughes, Simon (Southwark N) | Robertson, Laurence |
| Hunter, Andrew | Roe, Mrs Marion (Broxbourne) |
| Jenkin, Bernard | Ruffley, David |
| Keetch, Paul | Russell, Bob (Colchester) |
| Kennedy, Rt Hon Charles (Ross Skye & Inverness W) | St Aubyn, Nick |
| Sanders, Adrian | |
| Key, Robert | Sayeed, Jonathan |
| King, Rt Hon Tom (Bridgwater) | Shephard, Rt Hon Mrs Gillian |
| Kirkwood, Archy | Shepherd, Richard |
| Laing, Mrs Eleanor | Simpson, Keith (Mid-Norfolk) |
| Lait, Mrs Jacqui | Smith, Sir Robert (W Ab'd'ns) |
| Lansley, Andrew | Soames, Nicholas |
| Leigh, Edward | Spelman, Mrs Caroline |
| Letwin, Oliver | Spring, Richard |
| Lidington, David | Stanley, Rt Hon Sir John |
| Lloyd, Rt Hon Sir Peter (Fareham) | Steen, Anthony |
| Llwyd, Elfyn | Swayne, Desmond |
| Loughton, Tim | Syms, Robert |
| Luff, Peter | Tapsell, Sir Peter |
| Lyell, Rt Hon Sir Nicholas | Taylor, Ian (Esher & Walton) |
| MacGregor, Rt Hon John | Taylor, John M (Solihull) |
| McIntosh, Miss Anne | 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 |
| Maginnis, Ken | Tyler, Paul |
| Malins, Humfrey | Tyrie, Andrew |
| Maples, John | Viggers, Peter |
| Mates, Michael | Waterson, Nigel |
| Michie, Mrs Ray (Argyll & Bute) | Webb, Steve |
| Moore, Michael | Wells, Bowen |
| Moss, Malcolm | Whitney, Sir Raymond |
| Nicholls, Patrick | Whittingdale, John |
| Norman, Archie | Willis, Phil |
| Oaten, Mark | Winterton, Mrs Ann (Congleton) |
| O'Brien, Stephen (Eddisbury) | Winterton, Nicholas (Macclesfield) |
| Öpik, Lembit | Yeo, Tim |
| Ottaway, Richard | Young, Rt Hon Sir George |
| Page, Richard | |
| Paice, James | Tellers for the Ayes: |
| Pickles, Eric | Mr. Andrew Stunell and |
| Portillo, Rt Hon Michael | Mr. Brian Cotter. |
| NOES | |
| Ainger, Nick | Bradley, Peter (The Wrekin) |
| Ainsworth, Robert (Cov'try NE) | Bradshaw, Ben |
| Alexander, Douglas | Brinton, Mrs Helen |
| Anderson, Donald (Swansea E) | Brown, Rt Hon Nick (Newcastle E) |
| Anderson, Janet (Rossendale) | Brown, Russell (Dumfries) |
| Armstrong, Rt Hon Ms Hilary | Browne, Desmond |
| Atherton, Ms Candy | Buck, Ms Karen |
| Atkins, Charlotte | Burden, Richard |
| Austin, John | Burgon, Colin |
| Banks, Tony | Butler, Mrs Christine |
| Barnes, Harry | Byers, Rt Hon Stephen |
| Barron, Kevin | Caborn, Rt Hon Richard |
| Bayley, Hugh | Campbell, Alan (Tynemouth) |
| Beard, Nigel | Campbell, Ronnie (Blyth V) |
| Beckett, Rt Hon Mrs Margaret | Campbell-Savours, Dale |
| Begg, Miss Anne | Cann, Jamie |
| Benn, Hilary (Leeds C) | Caplin, Ivor |
| Bennett, Andrew F | Casale, Roger |
| Benton, Joe | Caton, Martin |
| Bermingham, Gerald | Cawsey, Ian |
| Berry, Roger | Chapman, Ben (Wirral S) |
| Best, Harold | Chaytor, David |
| Blackman, Liz | Clapham, Michael |
| Blears, Ms Hazel | Clark, Rt Hon Dr David (S Shields) |
| Blizzard, Bob | Clark, Dr Lynda (Edinburgh Pentlands) |
| Boateng, Rt Hon Paul | |
| Bradley, Keith (Withington) | Clark, Paul (Gillingham) |
| Clarke, Charles (Norwich S) | Healey, John |
| Clarke, Eric (Midlothian) | Henderson, Doug (Newcastle N) |
| Clarke, Tony (Northampton S) | Hepburn, Stephen |
| Coaker, Vernon | Heppell, John |
| Coffey, Ms Ann | Hesford, Stephen |
| Cohen, Harry | Hill, Keith |
| Coleman, Iain | Hinchliffe, David |
| Colman, Tony | Hodge, Ms Margaret |
| Connarty, Michael | Hoey, Kate |
| Hood, Jimmy | |
| Cook, Frank (Stockton N) | Hoon, Rt Hon Geoffrey |
| Cook, Rt Hon Robin (Livingston) | Hope, Phil |
| Cooper, Yvette | Hopkins, Kelvin |
| Corston, Jean | Howarth, Alan (Newport E) |
| Cousins, Jim | Howarth, George (Knowsley N) |
| Cranston, Ross | Howells, Dr Kim |
| Cryer, John (Hornchurch) | Hoyle, Lindsay |
| Cummings, John | Hughes, Kevin (Doncaster N) |
| Cunningham, Rt Hon Dr Jack (Copeland) | Humble, Mrs Joan |
| Hurst, Alan | |
| Cunningham, Jim (Cov'try S) | Hutton, John |
| Curtis-Thomas, Mrs Claire | Iddon, Dr Brian |
| Dalyell, Tam | Illsley, Eric |
| Darling, Rt Hon Alistair | Ingram, Rt Hon Adam |
| Darvill, Keith | Jackson, Ms Glenda (Hampstead) |
| Jackson, Helen (Hillsborough) | |
| Davey, Valerie (Bristol W) | Jamieson, David |
| Davidson, Ian | Jenkins, Brian |
| Davies, Rt Hon Denzil (Llanelli) | Johnson, Alan (Hull W & Hessle) |
| Davies, Geraint (Croydon C) | Johnson, Miss Melanie (Welwyn Hatfield) |
| Dawson, Hilton | |
| Dean, Mrs Janet | Jones, Rt Hon Barry (Alyn) |
| Denham, John | Jones, Helen (Warrington N) |
| Dismore, Andrew | Jones, Martyn (Clwyd S) |
| Dobbin, Jim | Jowell, Rt Hon Ms Tessa |
| Donohoe, Brian H | Kaufman, Rt Hon Gerald |
| Doran, Frank | Keeble, Ms Sally |
| Dowd, Jim | Keen, Alan (Feltham & Heston) |
| Eagle, Angela (Wallasey) | Keen, Ann (Brentford & Isleworth) |
| Eagle, Maria (L'pool Garston) | Kemp, Fraser |
| Edwards, Huw | Kennedy, Jane (Wavertree) |
| Efford, Clive | Khabra, Piara S |
| Ellman, Mrs Louise | Kidney, David |
| Ennis, Jeff | King, Andy (Rugby & Kenilworth) |
| Field, Rt Hon Frank | King, Ms Oona (Bethnal Green) |
| Fitzpatrick, Jim | Ladyman, Dr Stephen |
| Fitzsimons, Lorna | Laxton, Bob |
| Lepper, David | |
| Flint, Caroline | Leslie, Christopher |
| Follett, Barbara | Levitt, Tom |
| Foster, Rt Hon Derek | Lewis, Ivan (Bury S) |
| Foster, Michael Jabez (Hastings) | Lewis, Terry (Worsley) |
| Foster, Michael J (Worcester) | Liddell, Rt Hon Mrs Helen |
| Foulkes, George | Linton, Martin |
| Galloway, George | Lock, David |
| Gapes, Mike | Love, Andrew |
| Gardiner, Barry | McAvoy, Thomas |
| George, Bruce (Walsall S) | McCabe, Steve |
| Gerrard, Neil | McDonagh, Siobhain |
| Gilroy, Mrs Linda | Macdonald, Calum |
| Godman, Dr Norman A | McFall, John |
| Godsiff, Roger | McGuire, Mrs Anne |
| Goggins, Paul | McIsaac, Shona |
| Golding, Mrs Llin | McKenna, Mrs Rosemary |
| Gordon, Mrs Eileen | McNulty, Tony |
| MacShane, Denis | |
| Griffiths, Jane (Reading E) | Mactaggart, Fiona |
| Griffiths, Nigel (Edinburgh S) | McWalter, Tony |
| Griffiths, Win (Bridgend) | McWilliam, John |
| Grocott, Bruce | Mahon, Mrs Alice |
| Grogan, John | Mallaber, Judy |
| Hain, Peter | Marsden, Gordon (Blackpool S) |
| Hall, Mike (Weaver Vale) | Marsden, Paul (Shrewsbury) |
| Hamilton, Fabian (Leeds NE) | Marshall, David (Shettleston) |
| Hanson, David | Marshall, Jim (Leicester S) |
| Heal, Mrs Sylvia | Martlew, Eric |
| Maxton, John | Smith, Rt Hon Andrew (Oxford E) |
| Meacher, Rt Hon Michael | Smith, Angela (Basildon) |
| Merron, Gillian | Smith, Rt Hon Chris (Islington S) |
| Michie, Bill (Shef'ld Heeley) | Smith, Miss Geraldine (Morecambe & Lunesdale) |
| Milburn, Rt Hon Alan | |
| Miller, Andrew | Smith, Jacqui (Redditch) |
| Moffatt, Laura | Smith, John (Glamorgan) |
| Moonie, Dr Lewis | Smith, Llew (Blaenau Gwent) |
| Moran, Ms Margaret | Snape, Peter |
| Morley, Elliot | Soley, Clive |
| Morris, Rt Hon Ms Estelle (B'ham Yardley) | Southworth, Ms Helen |
| Spellar, John | |
| Mountford, Kali | Squire, Ms Rachel |
| Mullin, Chris | Starkey, Dr Phyllis |
| Murphy, Denis (Wansbeck) | Steinberg, Gerry |
| Murphy, Jim (Eastwood) | Stevenson, George |
| Murphy, Rt Hon Paul (Torfaen) | Stewart, David (Inverness E) |
| Naysmith, Dr Doug | Stewart, Ian (Eccles) |
| Norris, Dan | Stinchcombe, Paul |
| O'Brien, Bill (Normanton) | Stoate, Dr Howard |
| O'Brien, Mike (N Warks) | Straw, Rt Hon Jack |
| Olner, Bill | Stringer, Graham |
| O'Neill, Martin | Stuart, Ms Gisela |
| Organ, Mrs Diana | Sutcliffe, Gerry |
| Osborne, Ms Sandra | Taylor, Rt Hon Mrs Ann (Dewsbury) |
| Palmer, Dr Nick | |
| Pearson, Ian | Taylor, Ms Dari (Stockton S) |
| Pendry, Tom | Taylor, David (NW Leics) |
| Perham, Ms Linda | Temple-Morris, Peter |
| Pickthall, Colin | Thomas, Gareth (Clwyd W) |
| Pike, Peter L | Thomas, Gareth R (Harrow W) |
| Plaskitt, James | Timms, Stephen |
| Pollard, Kerry | Tipping, Paddy |
| Pond, Chris | Todd, Mark |
| Pope, Greg | Touhig, Don |
| Pound, Stephen | Trickett, Jon |
| Prentice, Ms Bridget (Lewisham E) | Truswell, Paul |
| Prescott, Rt Hon John | Turner, Dennis (Wolverh'ton SE) |
| Primarolo, Dawn | Turner, Dr George (NW Norfolk) |
| Prosser, Gwyn | Turner, Neil (Wigan) |
| Purchase, Ken | Twigg, Derek (Halton) |
| Quinn, Lawrie | Twigg, Stephen (Enfield) |
| Radice, Rt Hon Giles | Tynan, Bill |
| Rammell, Bill | Walley, Ms Joan |
| Raynsford, Nick | Ward, Ms Claire |
| Reed, Andrew (Loughborough) | Wareing, Robert N |
| Reid, Rt Hon Dr John (Hamilton N) | Watts, David |
| Robinson, Geoffrey (Cov'try NW) | White, Brian |
| Roche, Mrs Barbara | Whitehead, Dr Alan |
| Rooker, Rt Hon Jeff | Wicks, Malcolm |
| Rooney, Terry | Williams, Rt Hon Alan (Swansea W) |
| Ross, Ernie (Dundee W) | |
| Rowlands, Ted | Williams, Alan W (E Carmarthen) |
| Roy, Frank | Wills, Michael |
| Ruane, Chris | Wilson, Brian |
| Russell, Ms Christine (Chester) | Winnick, David |
| Ryan, Ms Joan | Winterton, Ms Rosie (Doncaster C) |
| Salter, Martin | Wood, Mike |
| Sarwar, Mohammad | Woodward, Shaun |
| Savidge, Malcolm | Woolas, Phil |
| Sawford, Phil | Worthington, Tony |
| Sedgemore, Brian | Wright, Anthony D (Gt Yarmouth) |
| Shaw, Jonathan | Wyatt, Derek |
| Sheerman, Barry | |
| Shipley, Ms Debra | Tellers for the Noes: |
| Singh, Marsha | Mr. David Clelland and |
| Skinner, Dennis | Mr. Clive Betts. |
§ Question accordingly negatived.
§
Amendment made: No. 63, in page 23, leave out lines 38 and 39 and insert—
'(6) Before laying before Parliament a draft of an order under subsection (1) or (2), the Secretary of State shall—
1094
§ Mr. Deputy Speaker (Sir Alan Haselhurst)With this, it will be convenient to discuss the following: Government amendments Nos. 65 and 66.
Amendment No. 5, in clause 50, page 27, line 27, leave out subsection (7).
Government amendments Nos. 6 and 69 to 71.
Government new clause 6—Exception from duty to comply with decision notice or enforcement notice.
§ Mr. StrawI hope not to detain the House long, as the substance of the amendments was debated at some length yesterday evening when we discussed amendment No. 1, which was moved by my hon. Friend the Member for Cannock Chase (Dr. Wright), and earlier today when we discussed amendment No.7, which was also moved by my hon. Friend.
To refresh the recollection of the House, under the original scheme, at the point where the commissioner or tribunal had said that a public authority was not under a duty to disclose information because it was not covered by an exemption or exception under part II of the Bill, there was a procedure for what was described as "discretionary disclosure". The public authority would have to balance the public interest in disclosing the information against the public interest in its not being disclosed. There could be what amounted to an appeal to the commissioner by an applicant whose application had been unsuccessful at that stage, but, as the Bill originally proposed, the commissioner would not make a decision or issue an order, but simply make a recommendation. Hon. Members are aware that, as a result of representations that were made to us, we have changed the Bill, partly in its text and partly by tabling amendments on Report so that the commissioner will have a power to order disclosure subject only to Executive override in the limited circumstances which I described yesterday and to which I referred earlier today.
I shall pick up any questions about the detail of the amendments, but, as they improve the Bill in the eyes of my hon. Friends and, I believe, the House, I hope that there are not too many questions at this stage.
An issue was raised with me about whether I intended to move Government new clause 6 in light of the announcements that I made yesterday that we would amend the scheme in new clause 6. I have considered that, and I understand the argument that some of my hon. Friends have made to me outside the House about that, but I shall now explain why I consider that it is more satisfactory than not to have new clause 6 in the Bill as it goes to the other place, albeit I have given, and shall repeat, the most categorical undertakings that the new clause will be amended in the other place in the terms in which I have given those undertakings.
I suggest that it is our duty to the House to ensure that the Bill goes to the other place properly reflecting the decisions that we have taken, as far as that is possible. 1095 The Government have put before the House—and this proposition has achieved the approbation of the House—the scheme to amend the original proposal for discretionary disclosure in the manner that I have described. That scheme is balanced by amendments to clause 13, and by new clause 6, which contains the power of Executive override.
I believe that, from the Government's point of view, it would be disingenuous for us to send the Bill to the other place having incorporated the change to the position of the commissioner—who would have a power to make an order for disclosure rather than simply what is at the moment a provision for recommendation—without also having on the face of the Bill the balancing arrangement by which there could, in limited circumstances, be an Executive override. For that reason, we do intend to move new clause 6.
§ Mr. Simon HughesI am following the argument and understand it, but does the Home Secretary accept that it would be equally proper, and equally clear, for him to tell the House, in a way that is reported to the other place, that, in the light of the speech that he made last night and the undertakings that he gave, the Government are minded to change course; that it is therefore pointless to take the time of the House to add things that support the proposition that he is now discarding; and that the House need not be troubled by those because the Government will seek to amend the Bill and, as they have done in relation to other legislation—indeed, in this Session—as it were, draw the line after last night and then come forward with their new proposals? That would be equally proper, and more consistent with the statement that the right hon. Gentleman made last night.
§ Mr. StrawIt is a matter of balance; there is not a huge issue of principle here, but that is the judgment that I have reached. If the whole of new clause 6 had to be recast, I would think that the balance was the hon. Gentleman's way rather than the way that I have suggested.
However, the following amendments will need to be made to new clause 6 in respect of the undertakings that I have given. In subsection (4)(a),
in relation to a government department, means any Minister of the Crownneeds to be redrafted roughly in the terms of clause 23(3), which saysa Minister who is a member of the Cabinet.In relation to local authorities, new clause 6 will need to be recast to take account of decisions, and it may be, although I cannot give a firm undertaking on this, that after consultation with my Cabinet colleagues, not least the deputy Prime Minister, because this should be a matter of collective decisions, and also with the local authority associations—I am not saying that we automatically follow their view, but we need to ask their view—those references to local authorities are removed altogether. The amendments would be easy to make and would be consistent with the basic scheme of new clause 6.I repeat the undertakings that I gave yesterday. In place of subsection (4)(a), the clause will contain a provision making it clear that the "accountable person" is a Cabinet 1096 Minister or the Attorney-General, with appropriate other consequential amendments. I have described the situation for local government and said that we shall take our time to reflect on that. However, I well recognise the points that have been made.
11.15 pm
I also told the House yesterday that we would ensure that written into the memorandum of guidance for Ministers was clear guidance as to how they ensured that, except in the area of quasi-judicial decision-making, decisions would be subject to collective agreement. I wish to inform the House that we are giving further and urgent consideration to whether it will be possible to write such provisions into the Bill. If we can do that, we will.
§ Mr. Simon HughesWill the Home Secretary give way?
§ Mr. HughesI want clarification. If the Home Secretary is to fulfil what he said last night, he will have to reconsider. More than subsection (4)(a) and the local government clause will need to be amended. He will need to amend subsection (4)(b), which is about Ministers, and the subsection on the Greater London Authority. Does he accept that the amendment will have to be much more significant?
§ Mr. StrawI should not have given way, but I said that there would need to be some consequential amendments. The key point is that the scheme of the new clause is contained in subsections (1), (2) and (3) and the accountable person is defined in subsection (4). As I have said, it is a balanced argument.
My final point is that if new clause 6 appears in the Bill for the reasons that I have suggested, it in no sense will prejudice those in the other place or back in this House who want to take a different view about areas other than the one that I have already said that we shall change. For reasons that I have given, and because this is part of a balanced but important change, I hope that the House will accept my explanation for proposing new clause 6.
§ Mr. MaclennanI am very much in favour of flexibility on the part of the Home Secretary, and he displayed that last night. However, I am not in favour of legislation on the hoof. His statement tonight on new clause 6 suggests that he thinks that it is better to have a patently defective clause in the Bill, which in no way conforms with his expressed intention, than it is to have a lacuna to be filled. I do not understand the logic of proceeding in that way.
Furthermore, I suggest that the new clause is defective because it makes a presumption that is counter to what the Home Secretary said last night. He said that he would consider various ways of giving effect to his decision. That includes even the possibility that a decision to withhold information following the use of Executive override might take place along the lines of other countries that use Executive override, such as introducing it by order. Of course, there is no provision for that in new clause 6.
1097 It would be wrong to send a signal to the other place that new clause 6 in any way reflects the Government's considered view on how they might exercise in practice their Executive override provisions. Because the new clause is so obnoxious, it would be reasonable to withdraw it now. It no longer reflects the Home Secretary's thinking.
In his remarks tonight, the Home Secretary has stepped back a little from what he said last night.
§ Mr. MaclennanWith respect, he has. Last night, the Home Secretary made it absolutely plain that he was prepared to consider other ways of giving effect to an Executive override, including introducing it by order. I took him at his word, as I am sure he intended the House to do. I realise that events were happening and minds were moving quickly; as I said, that is welcome. However, I hope that he will not suggest that the structure of new clause 6 is the one he had in mind.
§ Mr. StrawWhat I said last night is on the record and there it remains; I do not see the point of going over yesterday's debate. I do not resile from what I said yesterday. Of course we shall consider the points that were made, and of course new clause 6 will be amended in the other place. However, I have said why I think it important that the Bill goes to the other place containing not only our amendments to clause 13, but the principle of an Executive override. It would be disingenuous to imply that the absence of that concept in the Bill when it goes to the Lords means that it is not the Government's recommendation that, subject to certain clear limitations, it should form part of the Bill.
§ Mr. MaclennanI do not resile from the points that I have already made. The new clause sets out a scheme that is not conformable with the Secretary of State's intention.
A more fundamental point is that many Members of Parliament, on both sides of the House, take the view that an Executive override provision is undesirable. We would prefer that it not be proceeded with at all and that the decision be left to the commissioner. For that reason, I hope that the House will not give its assent to new clause 6. The other amendments could be broadly conformable with a scheme that we could live with, but new clause 6 is unacceptable. I hope that the House will decide that it makes more sense not to support the new clause. To do so would not frustrate in any way the Home Secretary's wishes.
§ Mr. RadiceFor those of us who have argued for the New Zealand model of having an Executive override operated at high level and based on collective decision making, which I understand the Government have accepted, it would be logical to support new clause 6, provided that the Home Secretary gives assurances that it will be amended as promised last night and reiterated this evening, and that the Government will seriously consider putting the principle of collective decision making in the Bill, where appropriate.
§ Mr. GreenwayIt was obvious throughout the Committee proceedings that this part of the Bill would have to be altered. Some of the amendments that the 1098 Home Secretary has now tabled, especially Nos. 64 and 65, are the very amendments that his hon. Friend the Under-Secretary of State resisted in Committee. We are prepared to offer a word of welcome to, and our thanks for, those amendments.
However, as the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) points out, the fact remains that, with new clause 6, we are being asked to signal the acceptability to the House of the concept of Executive override or veto. In more than four months' deliberations—indeed, until yesterday—that concept had never been discussed or debated. It must be obvious to the Home Secretary that he is asking us not only to send a Bill to the other place containing a clause that he accepts is defective—hardly a satisfactory state of affairs—but to underpin a concept that we have not discussed, while failing to meet our argument that the commissioner should have the final say on whether information is released.
Even without new clause 6, and even if the Home Secretary accepted what I believe to be the considered view of the House, if the commissioner makes a ruling with which any Minister feels uncomfortable, there is still a right of appeal to a tribunal. Following the appeal to a tribunal, there is a right of appeal through judicial review on the question whether the information should be released.
Anyone outside this place listening to our deliberations might begin to wonder why the Home Secretary should want to include in the Bill provisions that effectively leave the final say with Ministers. They might think that national security might require that the Minister has the final say. The answer would be that national security is exempted in the Bill anyway. Other considerations might be defence of the realm or confidentiality in respect of major inquiries and investigations.
I shall not detain the House with the list. I simply make the point that every valid argument that anyone could advance as to why a ministerial override is necessary falls because every clause by way of exemption covers all the eventualities that we have ever been asked to consider as issues that would justify a ministerial veto.
In an earlier debate, I asked one of the Ministers—I think that it was the Home Secretary himself—whether he could give an example in which a Minister would be required to override the release of information and which had underpinned Government policy making, and he could not give me one. The only examples about which we have heard during this debate and throughout Second Reading and Committee are all covered in the Bill by way of exemption.
We have devoted many hours to consideration of these matters over the past three or four months, during which I led for the Opposition in Committee, and have done so with an open and constructive approach. I am sure the Under-Secretary would agree that that characterised the Committee stage. However, we have ended up at this late stage with an admission by the Home Secretary not just that the Bill is defective, but that the scheme of affairs that he brought to the House on Second Reading all those weeks ago was defective at that stage as well.
The Home Secretary's contortions on the measure make him appear quite ridiculous. In recent weeks, he has gained something of a reputation for being a political Houdini. On this occasion, he has tied himself up in knots. 1099 It would be far better if we sent the Bill to the other place without new clause 6, to give him and his hon. Friends the opportunity to introduce measures that have been thought through for proper consideration.
Dr. Tony WrightI dissociate myself from those last remarks. If one thing has distinguished our deliberations over the past two days and previously, it has been the way in which the Home Secretary has been prepared to engage with the debate and respond to concerns that have been raised. I shall go further and say publicly what I said to him privately this evening: he is probably the only Minister in the Government who could have engaged with the House of Commons in quite the way that he did last night. He displayed an openness and a willingness to appreciate different points of view. The House does not usually conduct its business in that way. All of us who have been, in Whips' language, difficult should be the first to acknowledge that.
11.30 pm
Deciding who has the last word has lain behind most of our discussions on the Bill. Will a Minister, a public official, who has a potential vested interest, or an independent person have the last word? For many of us, the credibility and integrity of the Bill depended on the answer.
We have made progress on that fundamental issue. The Bill that we are considering represents progress when compared with the original draft and we have been told that further progress will be made in another place. We must record those achievements. We must also record the fact that the question about the last word remains. Why do Ministers believe that they need a comfort blanket and that they cannot relinquish the final word to an independent commissioner? That is not a rhetorical question; I simply do not know the answer. That is why we wanted to veto the veto. The case for the veto has not been made. That is fundamental because of the way in which the Bill is constructed.
In a spirit of reasonableness, and
in the reasonable opinion of a qualified personI was prepared to consider a method that would tackle my fundamental objections through the approach that the Government clearly wanted to press. The Home Secretary has moved some way down that route. However, I want to press him a little harder.A compromise would have to contain the three ingredients that I mentioned earlier. First, there would have to be a collective Cabinet decision. Secondly, the scope of the veto would have to be substantially narrower. It should resemble the Irish legislation, under which certificates can be served, and which covers key state interests. Thirdly, the veto would have to be removed from local authorities. I want the Home Secretary to assure me that those three conditions will be reflected in the altered new clause 6.
I should like to believe that we have reached a common position. However, I fear that that has not yet happened. The question about the last word remains. I am willing to be as emollient as possible, but I fear that if the Home Secretary can say no more tonight, I cannot support new clause 6 in its current form.
§ Mr. ShepherdThe hon. Member for Cannock Chase (Dr. Wright) has played a magnificent part in the proceedings on this Bill. I am therefore diffident about any split in approach. As Chairman of the Public Accounts Committee, he marshalled the arguments—
§ Mr. David DavisPublic Administration Committee.
§ Mr. ShepherdAs Chairman of the Public Administration Committee, he brought the arguments together. We are considering new clause 6. I heard the expression "Executive override" for the first time last night. I thought to myself, "What does it mean?" For a moment, in the lull that occurs in debates, I wondered whether it was a new title by Jeffrey Archer. I see that the distinguished and hon. Member for Hampstead and Highgate (Ms Jackson) is present. No doubt she has experience of some of the wilder reaches—
§ Ms Glenda Jackson (Hampstead and Highgate)Not of Jeffrey Archer. [Laughter.]
§ Mr. ShepherdI do not want to have too big a josh at Lord Archer's expense, but the concept of Executive override, which the Home Secretary introduced to the debate last night, should make us pause. What does he mean by Executive override? It sounds awfully grand. It is American, is it not? There is lots of chrome—or Croham—on it, and it is surrounded by outriders and CIA agents: it is presidential. It must appear somewhere in the American constitution, no less. But no—it does not mean anything quite like that. It means, "I shall be judge and jury in my own case." That is all. It is a simple concept. No, no, no—I shall not let the Home Secretary do this.
Anything that touches on the heart of the state is excluded from the Bill—remember that—and my hon. Friend the Member for Ryedale (Mr. Greenway) made the best of all points on that: all the instances given by the Home Secretary last night in his 40-minute exegesis on new clause 6 revolved round the health of General Pinochet. The right hon. Gentleman said that, prospectively, had the Bill been in existence—it is not: remember that also—and had the commissioner ordered the release of Pinochet's medical records, he would have needed an Executive override to ensure that the commissioner could not receive them.
All that was prospective and fantastical. Across the Floor of the House and from a sedentary position, I said, "What about data protection?" The Home Secretary said, "No one brought that to my attention." I asked myself, "Is that naivety? Was the Department unaware of it?" Of course no one would have brought data protection to his attention: the Data Protection Act 1998 did not come into force until 1 March, so that was not a weighing consideration. Those provisions are now in place and, one day, the Bill will also be in place. Then there will be a tussle between the instances that the right hon. Gentleman gave yesterday, as if they somehow reinforced his argument.
When I say that the argument floats, this is what I mean. We already have a belt-and-braces approach, and the Home Secretary can seek judicial review if the Government do not like a decision on these things, which are not very important matters in terms of the security of 1101 the state: he can even refer a matter to a tribunal. Those are the stages that relate to the little request from Mrs. Brown in Aldridge-Brownhills to see some information. The new clause has nothing to do with all the excluded matters. It was tabled only a few days ago, after all the consultative processes, all the listening by the Home Secretary and all the work by the Home Office unit. Let us consider it again.
Executive override! I am so dazzled by it that I should perhaps accept it as a bargain. But what is in it? Who are these Executive overriders? The Home Secretary suggests that the Labour, Conservative and Liberal Democrat parties—in other words, the House of Commons—should support the new clause going forth to the Lords unamended, containing all these contentions and propositions. That is absurd, and we know that it is because the Home Secretary has told us that the new clause will soon look nothing like this.
§ Mr. GreenwayIt is defective.
§ Mr. ShepherdAbsolutely. As my hon. Friend says, it is defective. Yet I can see that we have often been nodding donkeys: we agree on the balance of the argument and say, "The Home Secretary is a good and humane man. Is it not rather exciting to have an Executive override? We must go along with the proposition." That is what we are being invited to do. With the best of intentions towards the prospective mayor of London, did anyone think that, under a freedom of information Bill, we would pass to local councillors the right to cut off our access to information?
I do not want to over-dramatise the point; I want to look at the process involved in the Bill. Just a few days ago, at the end of last week, new clause 6 emerged from all the process of generous thought that produced the Labour party's flagship Bill. The construction of yesterday's debate enabled the Home Secretary to lecture us for 45 minutes on its intent, but we did not have a debate on it, although it was pertinent to the general debate.
The hour is late. I know the devices: I have sat on the Government Benches, and I have heard similar arguments—in truth, we all have. Because of that, we are now having a muted and half-baked debate. Few Members are rising to speak—although, having been through the Division Lobbies with members of all parties, I know of their deep discontent with the Bill. All parties—mine today, but yesterday, and for a long yesterday, the party of government—are frustrated about the fact that we are marched through Lobbies, and that the policy, indeed the polity, is determined by a majority vote in one of the Houses of our Parliament.
Do we really want to deliver a defective Bill that shows just how craven we are? We have not had a proper debate in this place, although we have heard the Home Secretary's arguments in great detail and we have read Hansard. The clause sends a very weak signal about who we are. Moreover, it does not send a strong enough signal that the House expects the Bill, and the clause in particular, to be radically altered.
I know that many Labour Members feel that the clause should be amended. I feel that it should be deleted: it is as simple as that. There is no—what were we told about?—dancing by angels on the pins of needles, or pins of 1102 needles on the heads of angels. The fact is that we have not had a proper or serious debate on Executive override. All it stands for, in the end, is "I shall be judge and jury in these matters that do not even touch on the intimate security of the state and the intimate well-being of the defence and protection of this island."
§ Dr. David ClarkLike my hon. Friend the Member for Cannock Chase (Dr. Wright), I am grateful to the Home Secretary for the way in which he listened to the debate yesterday evening. I feel that we have had a good debate on new clause 6, and I think that the Home Secretary showed his stature yesterday by being prepared to open his mind. Indeed, I understand from what he has said this evening that he has gone a stage further.
I do not like the Executive override, but, given that there is to be an override on the part of Ministers, I disagreed with the previous arrangement for two reasons. First, it was the result of a decision by an individual Minister. I felt that, if there was to be an objection, it should be made on the basis of a formal collective arrangement. I also felt that the objection should be in the Bill, and should not be subject to some code or ministerial guideline. If the Home Secretary catches your eye yet again, Mr. Deputy Speaker, perhaps he will confirm that he intends, if possible, to specify in the Bill a way in which any override would be exercised by Cabinet Ministers in that formal collective way.
§ Mr. Quentin DaviesThe Home Secretary, in his speech moving amendment No. 64 and speaking to new clause 6, essentially invited the House to engage with him in a slightly complex negotiation. I think that it is right for the House to be alert and to count our change pretty carefully when we receive such an offer at this stage in a Bill's consideration. I say that despite the considerable charm of manner that the Home Secretary has displayed to the House in the past two days. Judging by his body language and expression in this debate, the effort of that charm of manner may be beginning to tell. We must be none the less grateful for what we have had up to now.
What we must do, however, is to make a distinction between manner and substance. The House's concern must be with the substance, and also with procedure. We are confronted with great complexity of substance and singular convolution of procedure. What essentially has happened is this. First, the Government made some high-sounding promises at the general election and produced a White Paper which, as we all know, was pretty encouraging. Secondly, the Government introduced the Bill, which to say the least was extremely discouraging, since the great bulk of the substance promised in the White Paper had been removed. Thirdly—under pressure largely from Labour Back Benchers but also from Opposition Members—the Home Secretary made a concession, which was to remove clause 48 and to substitute for the discretionary disclosure recommendation the principle that the commissioner can instruct that disclosure should occur. Fourthly, the Home Secretary introduced his new clause 6, which effectively negates that concession by allowing it to be overridden by the mechanism of Executive override. Fifthly, after upsetting everyone by negating his own concession, the right hon. Gentleman offered a thimbleful of new concessions—which amount to changing the reference 1103 from Minister of the Crown to Cabinet Minister, while not acceding to the request of Labour Back Benchers and Opposition Members to include the very different concept of collective Cabinet responsibility, which has a constitutional significance of its own.
The right hon. Gentleman's action has been a wonderful example of giving something with the right hand, but taking it away with the left. We have to be very careful before we continue in this vein, and must wonder about what type of deal we will ultimately be left with.
I think the solution is extremely clear. There would have been consensus among hon. Members on both sides of the House in support of the right hon. Gentleman if only he had left matters at the third stage—if he had removed clause 48 and replaced it with a right for the Information Commissioner to give an instruction. Why could he not leave it there? If he did that, we would all be extremely happy. By negating his own concession, he can only arouse the worst suspicions about the Government's real intentions and good faith in the matter.
§ Mr. FisherI do not think the hon. Member for Grantham and Stamford (Mr. Davies) fully understands what happened last night or the current state of the Bill. As my hon. Friend the Member for Cannock Chase (Dr. Wright) said when speaking to Government amendment No. 64, the final say in all freedom of information legislation is crucial. Although every piece of freedom of information legislation has exemptions, barriers and caveats—those are in the nature of this type of legislation—the final say of the arbiter, who is the commissioner, is crucial. That is why so many Labour Members and Opposition Members felt that new clause 6, with its ministerial veto, was so wrongheaded and offensive.
Let us be clear about the veto. It was to override the final decision of the Information Commissioner. That made it deeply offensive. It was remarkable, proper and admirable that the Home Secretary listened to our criticisms in a good debate last night. While he was on his feet, he redrafted his approach to the issue and accepted the idea of a compromise, suggested by my right hon. Friend the Member for North Durham (Mr. Radice) and other Labour Members, between those of us who wanted to leave everything to the Information Commission and his belief that some form of ministerial last word was essential. The obvious compromise was the New Zealand model. The Home Secretary went a long way towards that last night. What he is offering the House is not as strong as the New Zealand model, which has greater in-built ritual and more formality. That ritual is one reason why, since the veto became a collective responsibility, it has not been used in New Zealand.
§ Mr. ShepherdThat point interests me and should interest the House. New Zealand is governed by a coalition, as Scotland will be. The Cabinet override is an important check, because the tensions that are manifested through party make it very difficult to impose an agreed veto across a coalition.
§ Mr. FisherThe hon. Gentleman is mistaken, because the change from a decision by a single Minister—the original system in New Zealand that was so abused in the 1104 first year—to collective responsibility happened in 1987. There have been single-party Governments since then. The important point is the nature of the agreement. It has nothing to do with the balance of power in Parliament. My right hon. Friend the Home Secretary had already gone a long way and went further tonight by saying that the provision would be in the Bill—or at least that he would try to put it in the Bill. Given the distance that he has moved in the past 24 hours, if he says that he is going to do that, the House owes it to him to have some confidence in him.
However, the praise that is rightfully the Home Secretary's because of the way in which he has moved makes it all the more baffling that he is now asking the House to vote for a clause that he has turned on its head, having promised us something very different. It would be extraordinary for us to vote for a clause that the House objects to and that the Home Secretary recognises is wholly deficient.
The Home Secretary made an interesting comment in his opening remarks. I made a careful note of his words. He said that the Bill should go to the other House properly reflecting the changes that we have made. We have not yet made the changes that the Home Secretary mentioned last night, but he knows that, because of the good will that he engendered last night, the whole House wants those changes to be made. The will of the House is that we should introduce a collective responsibility to minimise the extent of individual ministerial vetoes. If we vote for new clause 6, the Bill will not go to the other House reflecting those changes, but precisely the opposite.
I understand the Home Secretary's political problem, but we are not sending a clear message to the other House. I have complete confidence in my right hon. Friend delivering on his promises of last night and today and, I hope, making them even stronger. They need strengthening in some areas—for example, in respect of local authorities. However, I cannot vote for a clause that the whole House will be glad to see the back of and that, thanks to the Home Secretary, we shall see the back of.
§ Mr. HawkinsThe official Opposition will support the cross-party group's amendment No. 5, and oppose Government new clause 6, for the reasons set out by my hon. Friends the Members for Ryedale (Mr. Greenway), for Grantham and Stamford (Mr. Davies) and for Aldridge-Brownhills (Mr. Shepherd).
History repeats itself first as tragedy, then as farce. The "Yes, Minister" scriptwriters once produced an episode called "The Right to Know". Tonight, the House should say, "No, Minister."
§ Mr. Dominic Grieve (Beaconsfield)I listened carefully to what the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) said, and I agree with him, but one matter remains untouched. According to the procedures of the House—and if the Government so chose—it would be perfectly possible for this Report stage to be adjourned. The House could reconvene, at short notice and by agreement between the parties, to debate a replacement to new clause 6 that covered the points raised by the Home Secretary in yesterday's debate.
I for one have some sympathy with some of the problems encountered by the Home Secretary and the Government over these matters. However, I have very 1105 little sympathy with legislating in this fashion. We should not send to the other place a Bill that is totally unsatisfactory and which contradicts what the Government intend on one important matter.
I wish that we could improve the House's procedures so that in future we could legislate properly. The Government have admitted that the Bill is unsatisfactory, and we should not send it on to another place as it stands.
§ Mr. StrawI shall respond briefly to the points made in the debate. I can tell the hon. Member for Ryedale (Mr. Greenway) that a very small area of Government activity is excluded from the Bill, and that includes matters relating to the royal family and the security and intelligence agencies.
One way or another, the rest of Government activity is covered by the Bill, including many aspects to do with safeguarding national security. The hon. Gentleman suggested that, according to the examples I gave, those aspects would always be covered by the exemptions. That is true, but, over the past two days, I have tried to explain that, when a Minister claims an exemption or exception for a piece of information—in other words, when he claims that it should not be disclosed—and when the commissioner and tribunal agree that it should not be disclosed under the exemptions and exceptions in part II, the Minister is still under a duty to consider, under the mechanism of clause 13, whether that information should or should not be disclosed.
The effect of clause 13 is felt right through the Bill, except in respect of matters mentioned in one of its subsections, and that subsection was the subject of amendment No. 1, which the House discussed yesterday. That is why the mechanism of clause 13 is so important.
My hon. Friend the Member for Cannock Chase (Dr. Wright) said that any compromise on what has been called Executive override depended on three key conditions. I enjoyed the rather delicious and apposite description of Executive override by the hon. Member for Aldridge-Brownhills (Mr. Shepherd), with his references to paraphernalia out of the American constitution, chrome and Croham.
The three conditions raised by my hon. Friend the Member for Cannock Chase were that there should be a collective Cabinet decision, that the area of veto should be made narrower than at present, and that local authorities should be removed altogether from the provisions.
If the House agrees new clause 6, I have already made it clear that, when the Bill goes to the other place, the new clause's provisions will have been amended to ensure that the decision will be made by a member of the Cabinet. There is already a definition of that in clause 23.
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Secondly, I can answer my right hon. Friend the Member for South Shields (Dr. Clark) on a collective Cabinet decision. I said yesterday that that would be written into the code to Ministers, which is a public document. I mentioned the possible exception for quasi-judicial functions. I have considered the matter further today and I am happy to answer yes to my right hon. Friend's question. If it is at all possible—I will be happy to discuss this with him outside the House—we 1106 will write the requirement of collective decision making into the Bill. If it is not possible for constitutional law reasons, and after serious advice from parliamentary counsel, I will explain that to him outside as well as inside the House.
I hope that that deals with the first limb of the argument of my hon. Friend the Member for Cannock Chase. His second limb was that the area of veto should be narrower. I think that he will accept that I did not give undertakings on that. They are obviously a matter for debate. I do not give undertakings in that respect, although I am open to argument on it—no more than that.
On the matter being removed from local authorities altogether, I repeat that I understand the arguments and promise that we will actively consider the idea. I hope that it will be well understood that we need to secure a collective Cabinet decision on the matter and that we need to consult the local authorities. However, I understand my hon. Friend's argument. To some extent, it fits in with his second point, which is that the level of decisions and, therefore, of documents and information held by local authorities is not of a sufficiently high pitch to justify an Executive override, to paraphrase his argument.
The other arguments concerned whether it is right to vote on the new clause tonight. The simple truth is that whether we include new clause 6 or not, the Bill as it is transmitted to the other place will not completely reflect the decisions of the House, given the undertakings that I made yesterday.
The hon. Member for Aldridge-Brownhills (Mr. Shepherd) seemed—
§ Mr. Shepherdrose—
§ Mr. ShepherdYou never do!
§ Mr. StrawI always do. I would say to the hon. Gentleman, gently and with great affection, that he should not seek to have it both ways: to complain that we have not listened to an argument and then to complain about the consequences when we have listened and have agreed to amend the Bill.
The truth is that, given my undertakings yesterday, the Bill—whether or not new clause 6 is in it—does not wholly reflect the opinion of the House. However, it is my judgment, as I explained to the hon. Member for Southwark, North and Bermondsey (Mr. Hughes), that the new clause is better in the Bill because then the complete scheme of change in principle—the change from discretionary disclosure to a power to the commissioner and a duty to abide by that save for the circumstances of Executive override—is there. Amending the new clause will not disturb the principles, which will be there. That is a less disingenuous way to present the Bill to the other place than to leave out new clause 6.
I hope that the undertakings that I have given are satisfactory and I urge the House to support the amendments and the new clause.
§ Amendment agreed to.