§ Lords amendment: No. 1, in page 1, line 14, after ("sections") insert
("(Effect of exemptions in Part II),")8.24 pm
§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien)
I beg to move, That this House agrees with the Lords in the said amendment.
§ Madam Deputy Speaker (Mrs. Sylvia Heal)
With this it will be convenient to discuss Lords amendments Nos. 2 and 3, Lords amendment No. 4, amendment (a) thereto and Lords amendments Nos. 12, 13, 18 to 21, 43 to 45, 56, 58, 64, 66, 67 and 76.
§ Mr. O'Brien
Let me take my first opportunity to congratulate you, Madam Deputy Speaker, on taking up your current position. I am sure that you will have the support of the House in all that you do.
719 As a group, the amendments alter the way in which the public interest test functions in the Bill. The duty to disclose information in the public interest is one of the most important aspects of the Bill. It is the key to creating the new culture of openness in the public sector with which the Government intend to replace the secrecy that, as everyone accepts, permeates Whitehall and too much of the public sector. We are introducing the Bill because we want to change that. The question is how to achieve the necessary balance between opening up the public sector and recognising that openness does not always have a monopoly on righteousness. It needs to be balanced against the need for personal privacy, commercial confidentiality and effective government. We do not want a similar situation to that in America, where commercial companies make 60 per cent. of applications under freedom of information legislation. Nor do we want to remove the right to ensure that government operates effectively.
The public interest test seeks to ensure that, even where there is an exemption from the duty to disclose information, in most cases a public authority is under a duty—I stress that it is a duty—to consider the public interest in disclosing that it holds information and in the disclosure of that information. Where the public interest requires the authority to confirm or deny that it holds the information, it must do so. Where the public interest requires that the information should be disclosed, the public authority must disclose it. Hon. Members will appreciate that those duties are powerful drivers towards openness. The amendments ensure that they are in place.
Originally, the general right of access contained in clause 1 was separated from clause 13, which gave a right of access ensuring that the public interest in disclosure outweighed the public interest in maintaining the exemption. Amendment No. 4 brings the rights of access together at the head of the Bill and expresses more clearly the effect of the exemptions in terms of public interest disclosure. The amendment also reverses the way in which the test works, so that the public interest in disclosing the information must be outweighed by the public interest in maintaining an exemption before any information can be withheld.
Amendment No. 18 deletes clause 13, which now becomes otiose. Amendment No. 21 makes an important change. The Bill provides that a public authority that is unable to reach a decision in respect of the public interest test within 20 working days must reach that decision within a reasonable period. That requirement was contained in clause 13(6) and is maintained by amendment No. 13. If the authority is unable to reach its decision on the public interest test within 20 working days, it must notify the applicant of that within that time. Again, that was the position when the Bill left the House and it is preserved by amendment No. 21.
However, amendment No. 21 also further strengthens the position of the applicant by providing that the authority must provide to him an estimate of the time within which such a decision will be reached. Failure to provide an estimate will be a breach of statutory duty. We have also said that we will include reference to the desirability of complying with estimates in the code of practice, so that failure to comply will also render the authority liable to a practice recommendation.
720 Amendments Nos. 44, 45 and 56 ensure that decisions relating to the public interest will be appealed to the tribunal. The remaining amendments in the group are consequential to the principal amendments.
I believe that the amendments are a significant move forward. They ensure that the Bill will be more easily understood and will result in more information being disclosed than would otherwise have been the case.
§ Mr. O'Brien
I shall give way to the hon. Gentleman, who is helpful on many occasions. I have noticed, as he must have done, that now that the Opposition have suddenly found an interest in freedom of information, they have removed him from his former position—he who was in many ways far more expert than others in dealing with such matters.
§ Mr. Greenway
I was not so much removed as sidetracked elsewhere, to a job that I much enjoy. In view of the Under-Secretary's ministerial responsibility for the Bill, he will have followed its progress in the other place a little more closely than I have. In response to his comments on appeals, I put a simple, straightforward question to him. Am I right to believe that, in the end, it will still be up to a Minister to decide whether information should be released?
§ Mr. O'Brien
No, the hon. Gentleman is not right. A process is involved, rather than the decision of an individual or a Government. He will know from the Bill's structure that an application can be made and, if there is no exemption, in most circumstances there will be an obligation to provide the relevant information. However, if the public interest test applies, a decision would have to be made as to how it should apply, and that may involve a public authority that is controlled directly by a Minister. Normally, therefore, I suspect that the decision would have to be made by a Minister.
However, if there were an objection to that interpretation of the public interest, an application could be made to the Information Commissioner, who may take a view on the matter. If the Minister disagreed with that view, the matter could be referred to a tribunal, which may also take a view. By that stage, the matter would no doubt become of considerable public interest. If the Minister sought to maintain an exemption, he would have to consult colleagues and would no doubt have to deal with a debate in the House or questions that might arise. He would have to defend the position before the House.
The overall decision would involve not so much the decision reached by a Minister, but a process during which a debate about the nature of the public interest would take place.
§ Mr. Greenway
I am grateful to the Minister for giving way once more, because I think that his answer is yes, rather than no. I understand his argument, but he said, in effect, that a recommendation or an observation from either the commissioner or the tribunal that the information should be released would not involve the compelling argument that they could require, or would have the power to require, the Minister to release the 721 information. For all the trumpeting of an agreement with the Liberal Democrats, the Bill is fundamentally the same as it was when it left Committee because the commissioner and the tribunal would have no power to compel release.
§ Mr. O'Brien
In most respects, the hon. Gentleman is wrong. Wherever there is a public interest in knowing the information, the public will have a right to know it. The Bill contains safeguards lest any Minister seeks to determine the public interest in a way that is contrary to that interest.
We have listened to the debate, and amended and developed the Bill so that it contains substantial safeguards against abuse by any Government, Minister or anyone else who might seek to use it in a way that is not intended. Our consideration of the Lords amendments should show that the Bill has been strengthened, not least by the change in the way in which the balance of the public interest test will be determined. It will be determined on the side of openness when there is a fine balance about where the public interest lies.
The amendments have strengthened the Bill in many ways.
§ Mr. O'Brien
I shall first deal with those amendments that I have not yet discussed. [Interruption.] I am afraid that I had not noticed my hon. Friend the Member for Cannock Chase (Tony Wright) rising to intervene. I am happy to give way.
§ Tony Wright
I assumed that it was due to sheer inattention, rather than to anything worse.
I am finding it difficult to get my mind around Lords amendment No. 4, which would insert a new section 2, and I would like my hon. Friend to explain. The arrangement that I understand was made with Liberal Democrat peers is susceptible to contrary interpretations. They tell us that they have fundamentally transformed the Bill; they say that they have managed to insert what amounts to a prejudice test into the Bill as a whole. On the other hand, I have heard Government spokesmen in the other place say that what is proposed amounts to no more than the arrangements that operate in the event of a tie break-arrangements determining how the balance will be struck, in the public interest, between disclosure and withholding in the fine cases concerned.
Are we talking about something marginal, or about something fundamental?
§ Mr. O'Brien
We are talking about something which, as my hon. Friend suggests, has been stated by the Government in another place. In the case of a fine decision about the balance of the public interest and where it lies, the way in which the decision is reached errs on the side of openness. As far as I can see, that constitutes a strengthening of the Bill, although some might seek to claim that the strengthening was greater than it is. As far 722 as the Government are concerned, the proposal helps, and makes the Bill more open; but some in another place may well have felt a need to overstate their case a little in order to justify what they had decided to do.
§ Mr. Bercow
Further to his answer to my hon. Friend the Member for Ryedale (Mr. Greenway), will the Minister simply accept what we know to be a fact: that there are now more exemptions in the Bill than there were in either the draft Bill or the White Paper? Will he confirm that when he talks of strengthening the Bill-he has used the phrase twice in the last five minutes-he is referring to strengthening the power of the Executive, and most assuredly not to strengthening the power of the citizen?
§ Mr. O'Brien
With respect to the hon. Gentleman, that is nonsense. What the Bill will do is strengthen the right of those who want more openness in government to secure more openness in government. The measure will change the culture not only in Whitehall, but in the public sector as a whole. It will open up that culture, and end the secrecy that the last Government accepted. Having promised a freedom of information Bill in its 1979 manifesto, the Conservative party simply dropped that, and made do with a code of practice that had no statutory effect whatever. As a result, there was a continuous culture of secrecy in Whitehall, which led to the BSE crisis and other problems. The hon. Gentleman may well laugh at those problems, but many people know that the Conservative party governed in a culture of secrecy and contempt for the public and the electorate.
As I said, Lords amendment No. 4 makes a difference in "tie break" circumstances, but it also sends a powerful signal to the public in favour of openness. That is what this Government want to do. We promised to introduce a Bill dealing with freedom of information. We have done it. The previous Government promised to introduce one and failed singularly to do so.
Sub-amendment (a), tabled by the Liberal Democrats and others, would provide that the public interest in disclosing information relating to accident investigations, or proceedings relating to health, safety or welfare of persons or the protection of the environment, would always outweigh the public interest in maintaining the exemption, unless to do so would result, or would be likely to result, in prejudice to any particular investigation or proceeding. The effect is to convert clause 28 into a prejudice-based exemption in relation to information collected for investigations or proceedings.
I understand why the supporters of the amendment wish to be clear that information in that vital area will not be withheld lightly. I understand the concern. There is no real difference between our overall aim and theirs: openness, for example, in a BSE-type case. The problem in the BSE case was that information was incomplete. To some extent, Ministers at that time put themselves in a position where they were giving information selectively and massaging the type of information that was put in the public arena.
What both the supporters of the amendment and I will agree on is that, had information been available in that case, it should have been in the public domain because the public have an interest in knowing about that. As drafted, our public interest test in the new clause after 723 clause 1, which Lords amendment No. 4 provides, is a strong protection against such refusal to disclose. On our provisions, I do not accept that there is any realistic risk that BSE-type information would be kept secret.
§ Helen Jackson
My hon. Friend has mentioned the BSE example a couple of times. Will he explain a little more exactly why, given that the new amendments have gone through the other place, he is certain that the type of secrecy that prevented some of us getting straight answers to numerous parliamentary questions in the previous Parliament would not arise again—that we would not come up against the same barrage of defensiveness and secrecy?
§ Mr. O'Brien
It is purely because, when there is an interest in the public knowing, the public will have a right to know. Where public health is seriously at risk and information is held by the Government, it is difficult to see, on any reading of the Bill, how it could be justified for a Minister to take the view that the public interest was in favour of secrecy, unless a criminal investigation were about to be undertaken, in which case the public interest would have to be weighed very carefully. In circumstances where there is a clear view that public health would be at risk—particularly in the sort of situation in which BSE arose—under the Bill, it would always be in the public interest for that information to be in the public domain. Therefore, it would be public and, under the Bill, it would not be possible for the concerns about secrecy that my hon. Friend mentioned to arise. Therefore, the measure would provide a protection.
§ Mr. O'Brien
I shall not give way any more to my hon. Friend because I want to make progress.
Clause 28 currently provides that there is a class exemption for information whose disclosure would seriously undermine the effectiveness of both the police and the prosecution services. The class exemption is restricted to criminal proceedings and investigations by authorities into matters that may lead to a decision being taken by that authority to institute criminal proceedings, even if no such proceedings were eventually taken. Information that is the subject of the amendment could fall within that latter category.
§ Mr. O'Brien
I will not give way at the moment.
Any investigation is a serious matter. It makes no difference if a person is convicted of a serious offence such as manslaughter as a result of a criminal investigation—whether it be an investigation by the police, or by the Health and Safety Executive relating to a safety matter. The cause and effect are much the same. The result to the person involved is much the same. In many respects, the processes 724 are very similar. Therefore, we believe that it would be wrong to have a different procedure for one type of investigation as against another.
Both the Director General of the Serious Fraud Office and the Director of Public Prosecutions, on behalf of the Crown Prosecution Service, have made it clear that they would have serious concerns if a public interest test were replaced by a test obliging them to disclose and provide information that might lead to frustration of the process of justice and a situation in which those who are responsible for criminal offences cannot be convicted. We are concerned that, if the amendment were accepted, it would interfere with that process.
The Government believe that we cannot have less certainty in, or give less protection to, some proceedings simply because the prosecuting agency is one body rather than another, and that to do so would effectively be to say that one type of prosecution is more important than another. However, that is what the amendment seeks to achieve, by providing that certain information is subject to a different test because it has been collected as a result of a particular form of investigation. I have no doubt that the amendment was laudably intended. However, it would have the unintended consequence of making prosecution uncertain.
As I said to my hon. Friend the Member for Sheffield, Hillsborough (Helen Jackson), I believe that the public interest test will operate effectively to ensure that information cannot be withheld inappropriately. Clearly, the public interest in the disclosure of information on the discharge of dangerous waste into rivers and waterways or the results of traffic collisions will be high. Although it is right that public interest should be balanced against the need for a fair trial, the Government are satisfied that, in those types of circumstances, that is the correct test to apply.
Of course, the commissioner will also have an important enforcement role, to ensure that public authorities do not seek to hide behind the exemption at clause 28 by misapplying that public interest test.
I have some questions on the amendment for the hon. Member for Southwark, North and Bermondsey (Mr. Hughes). First, however, I shall give way, just once, to him.
§ Mr. Simon Hughes
I appreciate the points that the Minister is making. However, does he accept the argument that the clause is so widely drawn that it allows application of a general harm test that could be indefinite not only in time, but in extent? One day, there might be a prosecution of someone, but when or by whom would not necessarily ever have to be disclosed. The information could remain exempt effectively for ever.
§ Mr. O'Brien
No, I do not accept that. Each time an application is made, a judgment has to be made about where the public interest lies. If it eventually becomes clear that the information is not being used for the purposes of a prosecution and is unlikely to be so, at that point, the public interest clearly weighs in favour of disclosure. Therefore, I do not accept the hon. Gentleman's point.
725 My real concern is that amendment (a) takes us too far. I have some questions about how it would work. For example, how would it prevent a company that is the subject of an inquiry finding out the name of a whistleblower employee who communicated information confidentially to the inquiry? The amendment applies to all of clause 28 and would damage protection for whistleblowers. There is sometimes a public interest in not revealing the identity of a whistleblower for a time or in withholding some information provided by a whistleblower.
On my reading of the prejudice test that the hon. Member for Southwark, North and Bermondsey seeks to include in the Bill, it would not only allow a company, for example, to discover information about the identity of an informer or information given in confidence to an inquiry, but might enable a potential defendant who was the subject of an inquiry into a health and safety issue to force early disclosure of information before a decision on prosecution was taken, perhaps deliberately prejudicing the outcome of a prosecution. Like the hon. Gentleman, I am a lawyer. One can imagine ways in which such information might be used by some lawyers on behalf of potential defendants to ensure early disclosure of information, although disclosure might not be in the public interest.
How would such a provision apply in relation to the Marchioness inquiry, for example? No prosecution is likely to be pending until the end of an inquiry, which could take a considerable time. Under a prejudice test, information could be made public before the conclusion of the inquiry, either in a selective way, to suggest that some people are more culpable than others, or so as to force disclosure that might, whether deliberately or inadvertently, prejudice a fair trial and prevent the conviction of a criminal who might otherwise be convicted.
Under a prejudice test, an inquiry would not be obliged to consider the public interest in disclosing information, as we would advocate, but would have to disclose the information unless there was a pending prosecution that would there and then be prejudiced. That would produce uncertainty and might mean that evidence might not be disclosed to the inquiry for fear that it might be prematurely disclosed under FOI. In other words, it might lead to greater secrecy where we want greater openness. A prejudice test is not in the public interest, whereas a public interest test is.
The hon. Member for Surrey Heath (Mr. Hawkins) asked whether there were more exemptions in the Bill than in the White Paper. There are, because we have extended the Bill's scope to include Parliament, which will, quite properly, want some matters, particularly privilege, to remain exempt. The number of exemptions is not greater in any other respect, but there are more clauses in the Bill because of the way in which the White Paper was worded. The hon. Gentleman's view is erroneous.
§ Mr. Nick Hawkins (Surrey Heath)
The official Opposition disagree with Lords amendments Nos. 12 and 13. We want to require that all requests for information be dealt with promptly, no later than 20 working days after they are made. The extended response times on "public interest" in clause 10(3) and (1) would be deleted.
726 In the earlier guillotine debate, reference was made to the squalid deal done by Liberal Democrat peers with the Labour Government. We understand that it was done behind the backs of Liberal Democrat Members in this Chamber. The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) is well known for his sophistry, but he will have to excel himself to explain why his colleagues in another place stitched him up. They went behind not only his back but that of the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), who was described in the Financial Times as absolutely livid. I hear that the hon. Member for Portsmouth, South (Mr. Hancock) was also described as very angry.
Conservative Members know that the Liberal Democrats have always said one thing in one constituency where they think it will please the electorate and diametrically the opposite in the seat next door, but this is a completely new departure: we have never previously had Liberal Democrats daring to say one thing in this House and diametrically the opposite in another place.
§ Mr. Mike O'Brien
I am little concerned that the hon. Gentleman may be giving too much credit to the Liberal Democrats in saying that they have never said one thing in one place and another in another.
§ Mr. Hawkins
It seems that the alliance did not last very long.
I want to quote what my noble Friend Lord Mackay of Ardbrecknish said. He was referring to the way in which the gaff had been blown on this squalid deal in The Guardian, which had the headline:See the Lib-Dem approach: complaint, abject and half-baked …The article said that the progressive alliance which got the Bill this far is, however,turning into a conspiracy to gut true reform. From the Government, this has been signalled for a long time …Lord Mackay went on:I suppose that it was signalled the day that David Clark—the right hon. Member for South Shields—was sacked and the White Paper was watered down to form the Bill.Lord Mackay quoted The Guardian again:What is new and shocking is the willingness of the Liberal Democrat Peers to assist in the butchery …—[Official Report, House of Lords, 14 November 2000; Vol. 619, c. 141.]It is interesting that the phrasea conspiracy to gut true reformis used to describe what Liberal Democrat peers have done. My right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) referred to this as national guillotine week. However, given the somewhat unstatesmanlike remarks from the Deputy Prime Minister about how he was gutted on another issue, this seems to be national gutted week as well.
I turn to the worthwhile work, to which tribute was paid on both sides when the Bill was last before the House, by the Campaign for Freedom of Information. Until the deal, the Government had been facing the prospect of being defeated in the Lords by an all-party alliance, including the Conservatives, which was ready to force through substantial improvements to the Bill. The agreement 727 with the Liberal Democrats, however, means that the Government are now safe from defeat. Mr. Maurice Frankel of the Campaign for Freedom of Information said:This means the weak Freedom of Information Bill—often described at earlier stages as a freedom from information Bill—will become law with all its serious defects intact.Mr. Frankel said:We cannot understand why anyone could believe that the limited changes represented by these amendments are the maximum that could be achieved … We find it incomprehensible that, in return for these modest concessions, the Liberal Democrats are proposing to abandon their support for essential amendments which would have given the public greater rights to safety information and denied Ministers the right to veto decisions of the independent Information Commissioner …This is the final collapse of any credibility that the Liberal Democrats have on the Bill.
§ Mr. Simon Hughes
I will deal later with some of the other issues in the hon. Gentleman's remarks. First, can he give us two statistics? How many Conservative peers were there in pursuit of freedom of information, voting in the Lobby on the first day of the week two weeks ago when the Bill was in the Lords? How many were there the day before for the Sexual Offences (Amendment) Bill? Why did many more Tories oppose the age of consent than ever supported freedom of information?
§ Mr. Hawkins
My hon. Friend the Member for Buckingham (Mr. Bercow) rightly says from a sedentary position that the hon. Member for Southwark, North and Bermondsey is digging himself ever deeper. That is the same argument that was used with no effect whatever when it was suggested by Liberal Democrat peers that they were somehow justified in this squalid deal because they did not think that the Conservative peers would be there in sufficient numbers. However, Lord Mackay of Ardbrecknish dealt comprehensively with that matter. He said that in future when a deal is suggested by combined Opposition forces to defeat the Government, when dealing with the Liberal Democrats, he will know to sup with an even longer spoon.
There is no doubt that had the Liberal Democrats not done this squalid deal, the Government would have been defeated. The numbers were there, and the sophistry from the hon. Member for Southwark, North and Bermondsey is already beginning, as we knew it would.
As for the substantive matters that Liberal Democrat peers have raised since the deal was done, Liberal Democrat Members in the Commons have disowned them and that deal. The right hon. Member for Caithness, Sutherland and Easter Ross has been quoted in the Financial Times as saying that his noble Friends were jumping the gun. He also said that there had been a failure of communication between Liberal Democrat Members and their peers. So Liberal Democrats really are in a terrible mess.
Lords amendments Nos. 12 and 13 deal with the time limit within which authorities are required to make decisions on disclosure in the public interest.
The first decision that authorities must make is whether the information requested is exempt. That decision must be made promptly, and, in any event, within 20 working days of the request. A second decision must then be made 728 on whether to disclose exempt information under the public interest test. There is no fixed time limit for that decision. It need merely be taken withinsuch time as is reasonable in the circumstances.The authority must then give the applicant an estimate of what that time will be.
The result is that decisions may be taken in two stages over two entirely different time frames and with no fixed end point. That could lead to substantial delays. Some authorities may use the lack of a time limit deliberately to delay giving a final reply. Others may simply take their foot off the pedal in the absence of an explicit time limit. Our suggestion that those amendments be deleted would apply the Bill's 20-day limit to the decision on public interest disclosure. There would then be a single time limit for both decisions.
That would bring the Bill in line with freedom of information laws in other countries. No overseas equivalent Act provides extra time for decisions merely because a public interest test is involved. Nor, significantly, does the open government code of practice introduced by the Conservative Government of my right hon. Friend the Member for Huntingdon (Mr. Major). His code of practice is proving stronger in practice than the Government's watered down Bill, as the Campaign for Freedom of Information has repeatedly said. It is the Minister who has been guilty of sophistry on that point.
In our code of practice, the target of 20 working days is set for all decisions. The Minister's own Department's report on the code's operation last year revealed that 92 per cent. of requests were dealt with either within that limit or within the shorter limit adopted by some Departments. Why do we need the extra, longer limit suggested by the Government? If some requests may require more than 20 days, the likely cause will be the high volume of records involved or the need to consult third parties. It will not normally be the result of a need to consider the "public interest" in disclosure.
The lack of a fixed time limit for decision is not the only source of delay. Before an applicant can approach the commissioner, he or she will have to exhaust any internal complaints procedure that the authority involved has established. Guidance on providing such complaints procedures will have to be set out in the Secretary of State's code of practice, which will clearly add more delay.
Before a person can even go to the Commission, he or she must be prepared to wait up to 20 working days for a decision on whether an exemption applies, suffer a further delay for a "reasonable" time while a decision is taken on whether it is in the public interest to disclose the information, and wait for a further, unspecified time for the relevant authority to consider the complaint that must be made under that authority's own complaints procedure. Requiring the first two of those three stages to be taken within the same 20 days would significantly reduce the potential for delays. That would return us to the situation that 92 per cent. of applicants already experience under the code of practice introduced by the previous Government.
729 Why can the Government not see that our code of practice is better for applicants? It provides quicker decisions, and there is no doubt that the Government and the Liberal Democrats have lost all credibility on these matters.
§ Tony Wright (Cannock Chase)
Thank you, Madam Speaker. I wanted to say but a word, and had expected to follow the hon. Member for Southwark, North and Bermondsey (Mr. Hughes). I shall instead precede him.
Throughout consideration of the Bill, there has been much discussion of the famous clause 28—the class exemption for investigatory bodies. The climate in which we have discussed that matter has clearly changed. Until recently, it could have been said that freedom of information was a matter for the chattering classes. Indeed, I am told that a Cabinet Minister said just that at some point. Since BSE, though, freedom of information is a matter for the eating classes and for everyone. It has come out of the cloister and into people's daily lives. People need to be assured that anything to do with safety, health or welfare will be available.
I listened carefully to the Minister's remarks. The point of tabling an amendment to the Lords amendment—to try to find a different way of dealing with the matter—is that there should not be a class exemption at this point, although there must be a prejudice test. That is the key issue—it always has been. However, the Minister seemed to say, in effect, "Ah, but there are implications for prosecutions. All kinds of problems would arise if this was allowed". I have heard that argument many times, but I cannot understand it. When the prejudice test is given in its proposed form, it is specifically to protect prosecutions. Those are precisely the matters that will not be caught by subjecting that matter to a prejudice test.
The Minister tells us that all public authorities must be treated in the same way. Surely the whole point of freedom of information legislation is that we can treat different matters differently. If we decide that health and safety deserve a particular priority, we can build that into the measure—we have the ability to do that.
The Select Committee on Public Administration took evidence on these matters from Jenny Bacon, the then director general of the Health and Safety Executive in July 1998. I take it that she knows what she is talking about. We asked her whether she needed a class exemption in her sphere. She noted that the provision was a class exemption and that the Health and Safety Commission felt thatin respect of health and safety matters a prejudice tested exemption would provide sufficient protection for these matters.It has always seemed to me to be as simple as that.
Jenny Bacon believed that a prejudice test was enough in that context. She did not think that health and safety required a class exemption. Having listened to the arguments this evening, I do not think that the case for including one has been made. I hope that, even now in a 730 different climate, the Government will be able to give the assurance and reassurance that are needed on this matter to ensure that there is a prejudice test for health and safety.
§ Mr. Mike O'Brien
Will my hon. Friend confirm that Jenny Bacon made those comments before a public interest test had been inserted in the measure and thus that the situation to which she was responding was different from that which faces us at present?
§ Tony Wright
The public interest test is the second stage test. Perhaps we will discuss later the exact nature of the operation of that test—who has the final say and so on. The point is that, at the first stage test—the exemption stage—when a freedom of information measure determines what is in or out, the question should be whether health and safety information should be excluded as a class or should be included, subject to a sensible test of prejudice that would protect those aspects that the Minister rightly says need protection. Our amendment would give the Minister the assurances he wants, while affording the protection to health and safety that we need.
§ Mr. Simon Hughes
I speak to amendment (a) tabled in the names of my right hon. Friend the Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), the right hon. Member for Haltemprice and Howden (Mr. Davis), other colleagues on both sides of the House and myself. I apologise to the House for the absence of my right hon. Friend, who is in bed trying to recover from bronchitis. He would have attended the debate had he been able to, and I am sure that everyone who has followed the Bill's proceedings in both Houses realises that he has been assiduous, during a long career in this place, in pursuing the issues with which the measure deals.
Our amendment applies only to one of the Lords amendments in the group. We regard all the others also as improvements to the Bill—I think the House agrees. As we have only three hours' debate in total, this might seem to be a distraction, but on the argument about the Bill's improvement since first published, I pray in aid the summary that the Library produced after Report in the Lords the other day. It was not written by anyone with a party interest. It did not over-state or over-hype; it simply said:The Freedom of Information Bill has undergone significant amendments in its passage through both Houses.I have heard no one say that the amendments have made the Bill less good; they have all improved it.
There have been four batches of amendments. These were tabled after Second Reading and on Report in the House and after Second Reading and on Report in the other place. I have only heard people say that all those amendments have gone in the right direction. Whatever any internal disputes about whether people have gone far enough, we are going in the right direction.
The second part of the Library's elaboration sets out the five main changes to the Bill:A new wording of the public interest test which the Information Commissioner can review and enforce …A new Executive override … to be used when a Cabinet minister cannot accept the decision of the Commissioner.731Some relaxation of the restrictions on the release of factual and statistical information—we shall come to that matter later—The power to add new exemptions has been removed,which has been widely welcomed, anda new duty to assist as well as advise applicants,which has been generally welcomed.
I hope to start in a constructive and straightforward way. In my view and in that of objective advisers, as well as the Campaign for the Freedom of Information and others, the Bill has been improved. We could discuss how much more improved it could have been and how much more improved we should like it to be. There is no secret that some hon. Members on both sides of the House would like the Bill to be improved and to go further. That is why we have tabled amendments today and why the debate became controversial in the other place; there was a view that things could have been pushed further. I completely understand that.
I am conscious of the fact that we have only three hours left to deal with nine groups of amendments, so I shall focus on amendment (a) to Lords amendment No. 4—the important amendment to which the hon. Member for Cannock Chase (Tony Wright) has just spoken, which we tabled jointly. The Minister knows that I have a particular interest in the matter and that the public understand its importance. To put it bluntly, it is not so much about BSE—that relates more to the amendment on factual information, which is part of a later group—as about evidence given to an inquiry into a railway collision, for example, where a statutory authority inquires into what happened during a train crash in which people were killed or injured and how we can learn the lessons.
Such matters are certainly relevant to investigations by the Health and Safety Executive, the headquarters of which happen to be based in my constituency. I have met and, when she was in post, held discussions with the previous director general, to whom the hon. Member for Cannock Chase referred. We all know from constituency work that the HSE investigates the cause of construction accidents. Tragically, there are still too many such accidents. The HSE will assemble information and may then decide to prosecute the company or individual involved. Such issues matter hugely to the public, especially the first category—transport collisions and their investigations.
This is not a Scottish Bill, although the Scots are proceeding not quite in parallel—some might say that they are ahead of us—but they are taking action about the same time. If the Lockerbie crash had occurred in England, a public authority investigation would have governed that crash and similar ones. Such matters relate to the current inquiry into the Marchioness—I am closely involved in the subject of that inquiry, which is taking place over the road—and they certainly relate to the Southall rail crash, where a public authority has been charged with a duty to investigate and collect evidence, which might result in a criminal prosecution.
I know that the Minister has heard the argument before, but the amendment proposes that we should be able to keep information exempt or secret only if it relates to particular proceedings or a particular individual. There 732 must be a particular reason for the exemption. We take that view because it would otherwise be possible for the Director of Public Prosecutions—the example given by the Minister—the Serious Fraud Office or others to say, with the best intentions, that information should be kept secret because, if it were not, it might lead to actions in the courts. Therefore, they could argue that it was in the public interest to keep the information secret.
The hon. Member for Cannock Chase made the point very well. Like the former director general of the Health and Safety Executive, we argue that there should be a particular prejudice test. Our amendment is not accidental. We chose words that are in the Bill; we did not pluck them out of the air. Clause 29 of the Bill as it left this House—we are engaged in the bizarre process of considering amendments to the Bill as it left this House and not as it was when it came back—is on law enforcement. Clause 29(1) states:Information which is not exempt information by virtue of section 28 is exempt information if its disclosure under this Act would, or would be likely, to prejudice …There then follows a list of justifications, the first of which isthe prevention or detection of crime.Subsection (2) then lists the purposes of relevant public authority investigations, and we have chosen some for our amendment. They include(e) the purpose of ascertaining the cause of an accident …(i) the purpose of securing the health, safety and welfare of persons at work, and(j) the purpose of protecting persons other than persons at work against risk to health and safety arising out of or in connection with the actions of persons at work.As the hon. Member for Cannock Chase said, we have been selective and chosen issues of public concern. They include health, safety and environmental matters and accident investigations. I always think that "accident" is an inadequate word, because incidents are not usually accidents. Once an investigation has taken place, it is normally found that they are the result of a mistake or fault.
In the cases that we have chosen—and in those cases alone—there should have to be a specific prejudice test. Only if that test brings down the exemption would the information not go automatically into the public domain.
Our amendment would cover issues that matter hugely to the public. For example, it would cover inquiries by the railway inspectorate, the nuclear installations inspectorate—the Sellafield debate is important and has gone for more than 20 years—and inquiries by fire authorities and the Environment Agency.
In local government terms, our amendment would cover inquires by trading standard officers who could be investigating the inappropriate use of garages and it would cover cafes and shops that are prejudicial to public health. A whole range of issues would be covered. Perhaps the most obvious example is when the Ministry of Agriculture, Fisheries and Food conducts its own inquiries and is then able to prosecute. In all those cases, the information that is collected should be made freely available to the public unless there is a particular prejudice.
For a final time, I shall try to persuade the Minister. We have been trying, we are trying and, if we do not succeed tonight, we shall go on trying to ensure that we 733 win our argument. If he accepts our amendment, the public interest test will remain, so the balance of interests will be considered, but that balance of interests would weigh the particular risks of someone not giving evidence, of witnesses being intimidated or of prosecutions not being pursued rather than the generality of the issue.
I want to give one final example of why this clause is worrying. There is a debate on whether we should get rid of the rule against double jeopardy. The Law Commission is considering the proposal and it has been debated in Westminster Hall. The double jeopardy rule precludes someone from bringing a prosecution when there has been an earlier prosecution. If that were changed, there might always be a chance of a case coming back to court and an open-ended prospect of further prosecution.
§ Mr. Hughes
The hon. Member for Birmingham, Erdington (Mr. Corbett) who chairs the Home Affairs Committee may think that that is not the case. I have read the Committee's report and accept that a second prosecution would have to cross certain thresholds, but some cases might never be closed. I am referring to the generality of the problem, and that consideration would add to the risk that the clause would prevent information from being revealed because someone might say, "This might come back one day. We can't risk this being opened up."
From personal experience before I came to this place and having talked to people such as the relatives of those who died in the Marchioness disaster and who fought for a public inquiry into it, I do not think that it is in the public interest to hold back information because of an extremely remote possibility. There should be one hurdle, not two, and it ought to be based on specific prejudice, not general harm.
If the amendment helps to remove that prejudice, we must ensure that in addition to allowing the criminal law to work, the guilty to be prosecuted and witnesses to give evidence, we must be able to provide that we have access to information. We think that this carefully drawn amendment will do that. I have not heard the argument that it is technically flawed, nor have the Conservatives argued against it. I hope that the House will agree to support it.
On the Conservatives' desire to reject amendments Nos. 12 and 13, to which the hon. Member for Surrey Heath (Mr. Hawkins) referred, I understand the argument about whether there should be an absolute or a less than absolute test of the time scale within which information should be made available, but I want to give one example that I hope supports the argument for an exception to be made when further consultation is needed.
Let us consider the families of children who may have died as a result of NHS failures in Bristol hospitals, which has concerned us all. Let us imagine that information is released from the inquiry that makes it easy to identify one particular family who are out of the country and cannot be contacted. Just as the police always try to alert families of a bereavement or if a crime has been committed, there might be a reason for the authorities to 734 say that it would be inappropriate to follow an absolute rule that the information must go to the public domain by a certain date because it would not be able to respect the family's confidentiality and their right to receive that information first. That would not be an absolute bar on disclosure.
I do not pretend that there is no debate to be had on the matter but having thought about it, my colleagues in the other place and in this House believe that a little flexibility might sometimes be necessary in what otherwise would be a rule. That is why we should not accept the Conservatives' proposal to reject amendments Nos. 12 and 13. I understand that they are well intentioned, but they might not achieve the objective that the hon. Gentleman and his colleagues want to achieve.
§ Mr. Peter Lilley (Hitchin and Harpenden)
I am grateful for the opportunity to speak in this debate on these amendments, although I did not contribute to the Bill's earlier stages. As a comparative newcomer, I am struck by how typical the Bill is of all that the Government do. Its title is the exact opposite of its content. It is called the Freedom of Information Bill, but it is largely a restriction of disclosure Bill.
In my various ministerial roles, I have always been a believer in, and a practitioner of, open government. I insisted on making available to the courts the "smoking gun" document that revealed the minutes of the meeting between Alan Clark and Matrix Churchill. I insisted on the publication of every single licence for the export of equipment from this country to Iraq in the five years leading up to the invasion of Kuwait.
I even had a useful experience that is highly relevant to the amendments. When we were preparing the Social Security (Incapacity for Work) Bill and I had a 40-page document that had to go to the Prime Minister for clearance before it went to Cabinet, my private secretary came and told me that although the intention had been to send the document to another part of the Department, it had accidentally been sent to the Press Association, whose telephone number was one digit different.
I found that experience extremely helpful. It taught me, and I have frequently used it to teach others, that we have far too much secrecy and that disclosure is generally beneficial to Governments, rather than otherwise.
I am not an opponent of disclosure, but nor am I an anorak. I have never believed that we should go to ludicrous lengths to force Governments to publish information that would inhibit sensible internal discussions. I accept that there must be some limits on disclosure. I always thought that a code of practice would suffice, and it would suffice if the Government accepted the convention that they had to adhere to codes of practice.
Unfortunately, we have an extremely dangerous Government. They no longer abide by conventions. Above all, at the heart of this Government is the manipulation and control of information. That is what the Government are about, above all. They are a Government based on spin and the control of information. That is why they have sacked most Government information officers and replaced those independent public servants with party hacks. That is why it has been revealed that the Deputy Prime Minister called for a weekly inquest in Cabinet into 735 any lack of control over information. That is why the Chancellor, who did not even mention in his Budget speech substantial elements of—
§ Madam Deputy Speaker (Mrs. Sylvia Heal)
Order. The right hon. Gentleman must confine his remarks to the amendments.
§ Mr. Lilley
I shall certainly do that, Madam Deputy Speaker. I want to apply a specific test to the amendments before us. We were told this morning by the Home Secretary on the "Today" programme that the Government are already behaving as though the Bill were an Act. They are complying with it as though that were already a legal obligation, so we have a simple test at hand to tell how the amendments will work in practice. We simply have to look at how the Government respond to requests for information, and compare and contrast that with what would happen under each of the amendments.
Ideally, we would submit requests from ordinary members of the public under each of the items covered by the amendments, and see how the Government responded to them. There has not been time to do that, so all I can do is present to the House evidence based on requests that I have made for the sort of information covered by the amendments. We know that if the Government are not forthcoming to Members of Parliament, they are likely to give short shrift to any request for information from the public.
In general, when I table questions to the Government, who are purportedly already applying the obligations in the amendments, including those in amendment No. 21 relating to the public interest test, I find that they are slow to respond, evasive and often tricky. By "tricky" I mean that they answer a different question from the one that was asked. They give information about a different issue from the one about which information was requested. They do not seem to be applying with any rigour the public interest test set out in amendment No. 21.
§ Mr. Bercow
My right hon. Friend has referred to the Government's pervasive characteristic of answering questions that we do not ask and not answering questions that we do ask. When he was developing that point, did my right hon. Friend hear the rather cynical utterance from a sedentary position of the Government Whip, the hon. Member for Plymouth, Devonport (Mr. Jamieson)? He chuckled and said, "Ha, ha, we have learned some tricks."
§ Mr. Lilley
I did not hear that remark. I am grateful to my hon. Friend for pointing it out to me and to the House, and putting it on the record. It is significant that the Government are proud of the fact that they behave in a tricky way and do not apply the public interest test as set out in the Bill and in amendment No. 21.
The simplest test that I could apply was to observe how the Government are behaving in response to the latest batch of questions that I tabled for information. The House may remember a document that was sent to every Member from the Post Office, a public body. It told us how it would fill the massive gap in its finances that has been left by the Government's decision to make pensioners and others have their pensions paid into bank accounts rather than through the Post Office.
736 That is an important public issue. The viability of the Post Office network depends on it, as does the convenience of millions of people and huge sums of public money. Surely we have a right to know about the issue. A good test of the Government is whether they tell us about it or try to restrict us to information that is convenient to them, that sounds good and looks good in glossy brochures.
The Post Office quantifies the amount of money that its programme will allegedly raise. It says that without the programme it would be losing £550 million, but with it, it will break even. So £550 million is at stake. The Post Office states in the document that its plans will fill the gap. It is clear that a significant part of the money will come from the taxpayer, so I thought it reasonable to ask how much will come from the taxpayer. I thought that in any public interest test, as suggested in amendment No. 21 or in the clauses, the question would have to be answered. Instead, the Government refused. They said that under section 2 of the code of practice, it was not their practice to answer such a question, and they referred particularly to commercial confidentiality.
What is commercially confidential about a sum that may be given by the taxpayer to the Post Office? It may mean that it is better able to compete with other commercial organisations, and that may be worrying to the others. However, on any public interest test, it is not the sort of information that should be restricted. We should know how much of the money is to come from the taxpayer. If the Minister cares to intervene to defend the Government's position and say that this is how he intends amendment No. 21 to work, I shall be grateful. Is he saying that the House should be precluded from knowing about potential and planned subsidies to sub-post offices because it might be embarrassing to shelter under the excuse of commercial confidentiality?
§ Mr. Hawkins
My right hon. Friend is raising an important point. Does he agree that what he is saying about the Government's trickiness and secrecy reinforces the point that we have made throughout—that the Government seek to restrict information that, as the Campaign for Freedom of Information has repeatedly said, would have been more freely available under the previous Conservative Government's code?
§ Mr. Lilley
My hon. Friend makes a good point, and sets out the situation precisely. Under any previous code, under a strict interpretation of the present code, and under what we thought was the intention of the clause and the amendment before us, we would assume that such information would be made available.
The Post Office document provides some numbers. That being so, it cannot be claimed that they are confidential. For example, it states:Over £80 million per year towards the Post Office network's fixed costswill come from theGovernment General Practitioner Services.That implies that that will somehow save the Government money elsewhere. I asked the Minister what the savings would be elsewhere, if there were any, or whether there would be a net cost to taxpayers.
Again, the Department of Trade and Industry refused to answer the question. By no stretch of the imagination could the information be commercially confidential.
737 We know that the Post Office is to get £80 million. What we do not know is whether there is to be any offsetting saving in the public sector; the Government will not tell us that, on the grounds that the document containing the full business plan is commercially confidential. Again, I want the Minister to tell me whether that is how the legislation, as amended, is intended to operate. Is that how the Government intend the public interest test to be applied?
The document goes on to say that the Post Office has submitteda clear and transparent formula to calculate a Social Network Payment—that is, the subsidy at taxpayers' expense—to support non-viable sub-post offices. I asked what the formula was. It has been submitted by one public body, the Post Office, to another, the Government, and each Member of Parliament has been informed of the existence of the formula—so what is it? The Secretary of State for Trade and Industry refused to publish it, on the grounds that the Post Office gave it to him "in confidence". Is that how the public interest test is to be applied? If it is inconvenient for the Government to reveal the cost of subsidising the Post Office following their foolish decision to remove the automatic payment of benefits through post offices, they will avoid answering questions on the grounds that the information is confidential between a nationalised industry and its sponsoring Minister.
§ Mr. Roger Gale (North Thanet)
I am interested in the thrust of my right hon. Friend's argument, and I merely offer another example that he might choose to use—one that I am sure will be of great interest to the Minister. The Home Office has made great play of the number of asylum seekers that the Government are dispersing from the south-east of England throughout the rest of the United Kingdom. Last week, I tabled a question asking how many had been dispersed from east Kent since April. The answer I have just received from the notice board is that the information requested is not available. Are the Government seriously saying that they cannot provide that sort of information—or is the truth that they will not?
§ Mr. Lilley
I am pretty sure that my hon. Friend's suspicions are well founded, and that the Government do not want to answer his question, rather than that they cannot answer it, or that it would be too costly to do so. If it were too costly they would have said so, as that is one of the grounds for non-disclosure.
§ Mr. Bercow
My right hon. Friend has made considerable play of the potential interaction between the requirement to disclose under the Bill and the manner of answering—or not answering—parliamentary questions. Is he aware that in the other place on 19 October, as is recorded in Hansard at column 1270, Lord Falconer helpfully pointed out that the terms of the Bill did not apply, and were not intended by the Government to apply, to the relationship between a Member of Parliament asking a question and a Minister answering it? Does not that prove our point conclusively—game, set and match?
§ Mr. Lilley
My hon. Friend makes an extremely important point. I do not have his encyclopaedic 738 knowledge of the Hansard reports of both Houses, and I had not seen that reference. It is important that the Minister present today tells us whether the Government intend to give less information to Members of Parliament than they are required in law to give to members of the public. That is a clear question, and I shall be sitting here alert, waiting for an answer—although it would appear from the words of Lord Falconer that our fears are well founded.
I have another example drawn from my latest batch of questions—it is random chance that those are the questions I am using; they simply followed on from the publication of the document. The document refers to the performance and innovation unit's study of post offices, and says that the PIU recognised that the proposedprogramme would mean merging outlets to ensure their … viability.I asked how many mergers the Government estimated would be required. The answer was significantly phrased: it was not that the PIU had not produced an estimate of the likely number of mergers, but that the report of the PIUdid not contain such an estimate—a typically tricky side-stepping of the question. I tabled a further question, asking whether the Government had made an estimate. They told me that I would have to wait and see, so they were trying to think of a tricky answer to that question, too.
The Home Secretary gave us a clear test of the way in which the Bill is intended to work, and said that the Government were already behaving according to that test. However, Members of Parliament know that the Government respond to requests for information slowly and trickily, and give the minimum, rather than the maximum, amount of information. They do not seem to apply the public interest test—which, allegedly, they have written into the Bill and amended and strengthened in amendment No. 21—as we were entitled to expect.
In practice, the Government are not even applying the rules laid down by Lord Justice Scott in his report, or those laid down by the Prime Minister in his guidance to Ministers. In practice, the Government make a fetish of restricting and controlling information, and have introduced a Bill with 25 categories of information that can be restricted and controlled. That gives us little confidence that we will have better access to information if and when the Bill becomes law than we had under the old code of practice.
§ Mr. Nick St. Aubyn (Guildford)
I congratulate my right hon. Friend the Member for Hitchin and Harpenden (Mr. Lilley) on the passion with which he has supported the principle of open government, both in government and in opposition.
§ Mr. St. Aubyn
I share my right hon. Friend's conviction, and as a Member who has been in the House only since 1997, I will not accept lessons from Government Members on commitment to freedom of information. In the past, a few Conservative Members did not see the light in relation to freedom of information. Surely, however, we should welcome a few sinners who repent, and reserve our contempt for the bunch of sanctimonious hypocrites on the Government Benches who preach freedom of information while practising a veto on information.
739 In his opening speech, the Minister used language typical of a barrister to assure us that he would replace the culture of secrecy with a culture of openness. Frankly, the only open thing about the Government is their open contempt for the House, which we have seen yet again in the guillotine motion under which we are debating the amendments. The Government have not acquired a culture of openness, but have been infected with a culture of delusion since the day they came to power with such an exaggerated majority.
I shall give an example of how that delusion reaches to the very top of the Government. We have just heard that the Bill will not even apply to questions that we put to Ministers in the House. Only 12 days ago, I was the first Member to raise in the House the sordid deal that was struck between Liberal Democrat and Labour peers in another place to remove the Bill's teeth. During Prime Minister's questions, the Prime Minister graciously agreed to respond to an issue of concern to my constituents, and answer my question about how open officials in the Environment Agency, the Department of Health and the Department of the Environment, Transport and the Regions are about the health risks of incinerators. That case study is a prime example of why the Bill will fail in its purpose, and why the public interest disclosure that we are being asked to accept does not go far enough.
§ Mr. Simon Hughes
I remember the hon. Gentleman's question. If he is so interested in ensuring that environmental health matters are in the public domain, I assume that he will support amendment (a) to amendment No. 4, which has cross-party support. Presumably he will accept that that would be a further improvement on what is already a positive change, and that no provision affecting that issue has worsened during the Bill's passage.
§ Mr. St. Aubyn
I will not accept any amendment until I have received specific reassurances from the Minister in his response to the debate. I do not think that any hon. Member should do so, as so much about the Bill is murky and unclear. I have heard exaggerated claims from the hon. Member for Southwark, North and Bermondsey (Mr. Hughes). I am afraid that he, too, has been infected by the culture of delusion. Perhaps the Liberal Democrats started that culture and infected the Labour party.
On 20 November, the Prime Minister gave me a reply that put me in something of a quandary, and which leaves an important question to be answered by the Under-Secretary. On the basis of a report in The Guardian on 10 November, I alleged that civil servants had been guilty of a cover-up on health issues connected with incinerators. In his reply, the Prime Minister stated:The allegation that officials have hidden information on health and incinerator emissions is false.Those allegations came originally from Labour Back Benchers. [Interruption.] Will the Minister clarify whether we should believe the Prime Minister, who asserted that the allegations were false, or the Labour Members quoted on page 12 of The Guardian on 20 November, who made the allegations in the first place?
A Front Bencher, as well as the Back Benchers, joined in making the allegations. In the report in The Guardian, the Minister for the Environment commented on the 740 figures that the Environment Agency sought to hide, before, in circumstances that I shall describe shortly, it was forced to produce them in public. He said:I cannot recall seeing these figures … I shall be demanding an explanation from the environment agency.Was the Minister for the Environment telling the truth in his allegations that the information was withheld, or was the Prime Minister telling the truth in his recent letter to me? I hope that the Under-Secretary will reply in due course.
§ Mr. Bercow
My hon. Friend has made an important point about the questions asked by Labour Back Benchers, and I am sure that we all respect the sincerity with which they asked them. Did my hon. Friend notice that, as he was developing that point and saying that Labour Members had raised the issues, the hon. Member for Ealing, North (Mr. Pound) said from a sedentary position that just because they said it, it did not make it true? Does that not open up a worrying new division? Should we not be concerned about the fact that the hon. Member for Ealing, North has cast aspersions on the integrity of those Labour Back Benchers?
§ Mr. Speaker
Order. It occurred to me while listening to the hon. Member for Guildford (Mr. St. Aubyn) that although I know that he is keen to return to the Lords amendments, he has so far not referred to them. We must return to the Lords amendments.
§ Mr. St. Aubyn
I shall try to do that, but we must set in context the contradiction that I have described between the Prime Minister and his Ministers.
§ Mr. Gerald Bermingham (St. Helens, South)
On a point of order, Mr. Speaker. Would you not think it appropriate that, after 12 generations in the House, the hon. Member for Guildford (Mr. St. Aubyn) could at least have learned the rules?
§ Mr. Speaker
Order. The hon. Member for Guildford is not responsible for his ancestors, but I am responsible for ensuring that he keeps in order. He will return to the amendments.
§ Mr. St. Aubyn
I am grateful to you, Mr. Speaker, for explaining that elementary point to the hon. Member for St. Helens, South (Mr. Bermingham). We are discussing a new principle in this country, which the Opposition are fighting to have implemented. The problem with the Government's proposals is that the public interest disclosure rules do not go far enough—and I must tell the hon. Member for Southwark, North and Bermondsey that I am not satisfied that the amendments will do the trick. In the conflict between the Prime Minister, his Ministers and his Back Benchers, we see that when Ministers are given the opportunity to exercise their veto over the public interest requirement, they may not be properly informed by officials. They will be so cocooned in their own ministerial world that they will not be aware of what is happening.
The public have a right to that information, but on that occasion we learned from evidence given to the Select Committee a few weeks ago that they could not obtain it,
741 and that it would not have been obtainable under the Bill. People could ask for the information from the Environment Agency only through the European Union's government code for environmental information. The Bill is less effective than an EU code. What does that say about the significance of the Bill, which is, we claim, neutered, and, frankly, has not been effectively changed by the Liberal Democrat amendments?
Even worse, the amendments offer no protection against the Bill's operational failure. Civil servants simply mislead the public and fail to make them aware of their proper rights. I shall give an example from the Environment Committee, which it would be wise for Ministers to study carefully.
§ Mr. Stephen Pound (Ealing, North)
On a point of order, Mr. Speaker. Could you advise us new Members whether it is entirely appropriate to make unsubstantiated attacks on civil servants without providing any supportive evidence? Is that appropriate behaviour for an hon. Member?
§ Mr. Speaker
The hon. Member for Guildford (Mr. St. Aubyn) has not contravened the rules of the House, and he is responsible for his own actions. However, I say to him again that he must return to the Lords amendments before us. He is not discussing them; he is discussing the Bill. He must discuss the amendments.
§ Mr. St. Aubyn
I am grateful to you, Mr. Speaker. However, the hon. Member for Ealing, North (Mr. Pound) made a serious allegation against me, saying that I was making unsubstantiated accusations against civil servants. I wish to make—
§ Mr. Speaker
Order. I have dealt with the point made by the hon. Member for Ealing, North. The hon. Member for Guildford must discuss the amendments.
§ Mr. St. Aubyn
I am worried about the amendments because they offer no protection against failure by civil servants, in an operational sense, to carry out the Bill's provisions.
A witness to the Environment Committee was told by the Environment Agency that it would cost him £200 to have his request for information investigated. He was then told that the correspondence that he claimed existed between the agency and the Ministry did not exist. However, he was able to prove that it did exist, and finally the agency coughed up the information, which involved serious data about the health risks of incinerators in this country.
I have a further key question for the Minister. How will members of the public, and Members of the House, be protected when civil servants are asked to provide information, but tell us that the information does not exist? In doing so, they may mislead us, not deliberately—although there are strong suspicions that we were deliberately misled in that case. What sanction in the Bill or the amendments will come down on civil servants who do such things?
§ Mr. Speaker
Order. The hon. Gentleman is struggling again. The debate is not about the Bill but about the amendments, which deal specifically with exemptions. That is the point.
§ Mr. St. Aubyn
I am grateful, Mr. Speaker.
Does amendment No. 21 encompass the Environment Agency? When the agency collects such significant data, is it carrying out a state function on behalf of the Crown? Will the Minister please clarify that? If by holding that information, it is carrying out a state function on behalf of the Crown, will he confirm whether I am right to think that such information would not be subject to the public interest disclosure test, and could be withheld from the public by the exercise of a ministerial veto under amendments that we shall discuss later tonight, if we get that far?
If key health information can be withheld from the public after the enactment of the Bill, as such information has already been withheld, what is the point of amendment No. 21—or of having a Freedom of Information Bill at all? How can the public trust the judgment of important agencies such as the Environment Agency on issues such as the safety of incinerator plants in local communities if they know, after tonight's debate and the Minister's reply, that key information may still be withheld? The Government are treating the public like children, over an issue that affects people and their families.
§ Mr. Richard Shepherd (Aldridge-Brownhills)
I give a cheer for the commitment of my hon. Friend the Member for Guildford (Mr. St. Aubyn) to freedom of information, which I believe to be part of a greater change that is taking place.
I have no difficulties with Lords amendments Nos. 12 and 13, although I note what the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) had to say. The substance, however, lies in Lords amendment No. 4. The House must feel strongly that what we are doing is trying to rescue a little more from the wreckage of the distinguished White Paper presented by a former Chancellor of the Duchy of Lancaster—the right hon. Member for South Shields (Dr. Clark), who I see is present.
Clause 28 deals with authorities covered by the exemption. I shall deal with the Minister's words in a moment, but, as we see from the background to the clause, the authorities concerned include the police, the Serious Fraud Office, the Crown Prosecution Service, Customs and Excise, the Inland Revenue and the Department of Trade and Industry's investigations unit. As the hon. Members for Southwark, North and Bermondsey and for Cannock Chase (Tony Wright) pointed out, they also include the Health and Safety Executive. They include the railways, nuclear installations, mining, agriculture and other inspectorates. They include fire authorities, the drinking water inspectorate, the Environment Agency, trading standards officers, environmental health officers, the Director General of Water Services, the Civil Aviation Authority, the Maritime and Coastguard Agency and—in relation to functions involving farm animal welfare and BSE—the Ministry of Agriculture, Fisheries and Food.
743 The Minister deemed an exemption necessary when the Bill was on Report in the Commons. At that time, he opposed the introduction of a prejudice test. He said:in areas of criminal activity and individual liberty, one needs to be very wary of being too quick to assume that no prejudice would be caused. Introducing a prejudice test would lead to a search for demonstrable prejudice, with a real risk of injustices being caused or criminal activity being facilitated where such prejudice cannot immediately be pointed to.Furthermore, it is right that the law enforcement agencies should not be subject to the commissioner's view of what would constitute prejudice in this field. The commissioner cannot be an expert in law and order and so must defer to the views of those agencies in this regard. Thus, to introduce a prejudice test would achieve little …It is essential that, for information held for the purposes of investigations or criminal proceedings, we retain the protection afforded by a class exemption. It is not appropriate to subject this category of information to a prejudice test, and the Government amendments to clause 13 will in any case ensure that, where there is an overriding public interest in the disclosure of the information, it will be released.—[Official Report, 5 April 2000; Vol. 347, c. 1067-68.]Let us consider the Lords amendment that the Government have accepted. This goes to the heart of what we all find difficult. The White Paper constituted a clear enunciation of principles, and seemed to suggest—there was not, on the face of it, a purpose clause in the Bill—that the Government wanted a liberal, wide-ranging Bill that would give our citizens access to information that was readily accessible in other countries.
The Republic of Ireland, for instance, has just produced a Freedom of Information Bill. This, as we know, is a lesser Bill, and I therefore commend what the Liberal Democrats are trying to do. I stand back, and say that the provision was supposed to be clear. I am talking about the principle of the citizens' right of access to information that they fund, and about enabling us to enter into greater engagement with the formulation of policies. I am talking about enabling citizens to look over the shoulders of those charged with health and safety responsibilities. If we had ready access to the information, we might be cheered by the extent to which public servants tried to ensure public safety. Unfortunately, the run of events seems to indicate that there has been a slackness. Such things can go on, hidden behind clauses in what is a complicated Bill now—it is not an easy Bill. It is very difficult for the citizen to understand whether it is worth embarking on such a course.
My purpose is not to delay the Bill; it is to commend the amendment to the Government. They should realise that, in the end, they have produced more a mouse than the Freedom of Information Bill that many hon. Members on both sides of the House loudly called for.
§ 10 pm
§ Mr. Mike O'Brien
I have made most of the main points that I would wish to make, so I will reply briefly. I cannot accept the amendment of the hon. Member for Southwark, North and Bermondsey (Mr. Hughes). I am sure that it is not his intention, but the amendment would lead to attempts to widen the application to include investigations and proceedings that were not narrowly confined to accidents, health or safety and environmental matters, thus undermining the class exemption. We do not consider it acceptable to introduce such scope.
The clear choice, in our view, is between a prejudice test that would leave uncertainty about outcomes and an exemption such as that which we want in the Bill, 744 which offers certainty, but which is conditional on a strong public interest test—it will ensure that, in all circumstances where information should be disclosed, it will be so disclosed. We think that relying on the public interest test and on the public interest is the best approach.
The hon. Member for Surrey Heath (Mr. Hawkins) says that he disagrees with amendments Nos. 12 and 13. It is not possible to accept the 20 working days time limit as a statutory maximum for both the decision under the Bill as to whether an exemption applies and the public interest test. The latter will often be much more complicated than the former. It may involve consultation with third parties, something that the official Opposition supported in Committee, if I remember rightly. Now they seek to change their view and insist on a 20-day maximum. Clearly, where third parties are involved—they may be, of course, in the private sector—it is right that they should properly be consulted. I am sure that if he speaks to the business community, it will be concerned by his approach.
There are clear protections against the abuses that concerned the hon. Gentleman. The Information Commissioner can indicate if a public authority is taking an unreasonable time to deal with an application and can issue an enforcement notice, so there are clear protections.
During the debate, a rather bizarre approach was taken by some Members, particularly the right hon. Member for Hitchin and Harpenden (Mr. Lilley). They urged that we kept the code of practice, but then complained that the Government and other public authorities did not comply with the code. However, they then attacked the Bill because, they said, there was no need to create a statutory right to know.
§ Mr. O'Brien
I will not.
The debate has revealed that the Tories are approaching the matter by objecting to the public having a statutory right to know.
§ Mr. Lilley
On a point of order, Mr. Speaker. When a Minister misrepresents a contribution to the debate and refuses to respond to questions, does a Member have any redress from the occupant of the Chair?
§ Mr. Speaker
Those are matters for debate. I am sure that the right hon. Gentleman will find some opportunity to put the record straight.
§ Mr. O'Brien
During the debate, we have heard references to a week of guillotines. All I have heard are the whines of the ancien regime, the old Bourbons worried that they hear the sound of the people's tumbrels coming as the date of the general election approaches. No wonder some of the old Tories are getting worried about the chop. It is not surprising, after we have heard what appears to be a lack of substance from the Opposition. A weak and waffly opposition is what we expect from them, and that is what we are likely to get in the next debate.
§ Lords amendment agreed to.
§ Lords amendments Nos. 2 and 3 agreed to.