HL Deb 25 October 1993 vol 549 cc752-64

5.43 p.m.

Lord Teviot rose to ask Her Majesty's Government what action they propose to take to implement the recommendations for the Public Record Office, contained in the Open Government White Paper (Cm. 2290).

The noble Lord said: My Lords, one comes into the House early to feel the mood of the House beforehand. One hears about the sad and desperate situation of the present and must then talk of the not too recent history. However, one must try to get in the right mood to enable one to talk a certain amount of sense. But it is always pleasant to talk of matters concerned with records.

Since the House debated public records and archives in 1977 the situation has been transformed by the ending of the cold war and the Government's Citizen's Charter. There have been a number of welcome initiatives from the Government culminating in the White Paper published in July this year. There has also been a fruitful dialogue between the Government and the historical profession. On an individual basis historians have made requests for papers to be reviewed; collectively, they have gathered under the auspices of the Institute of Contemporary British History—an excellent institution founded as recently as 1986. They have put forward general recommendations on the operation of the 30 years' rule and have made specific requests for the release of documents.

I want to mention the subject of reducing the times between reviews. Historians particularly welcome the reviews that my noble and learned friend the Lord Chancellor and my right honourable friend the Chancellor of the Duchy of Lancaster initiated, and the releases that have already taken place. For example, there have been over 400 records released by the Foreign Office. I would press my noble and learned friend on a number of matters resulting from these exciting developments. In some cases requests for release have been reviewed and a decision has been made not to release. In those cases a further review is planned in 10 or 20 years' time. Can my noble and learned friend try and minimise the time between reviews? Two examples of disclosure being deferred are the Cabinet Secretary's notebooks which date back to 1916, and the blanket ban on intelligence material. Historians accept the importance of protecting individuals who have helped the state. However, they feel that the blanket ban should be kept under regular review.

Another important point concerns the advisory council seeing documents. I had the privilege of serving on the advisory council of my noble and learned friend the Lord Chancellor between 1974 and 1982. The process was that of the rubber stamp. That was because only three members were security cleared. It was therefore rather difficult. The officer in the Public Record Office simply presented us with something that we had to accept. On one occasion we protested. The documents put forward concerned the Carlisle pubs which were nationalised in 1918. They should not have been involved at all. When one saw them they were basically concerned with managers being sacked for fiddling the tills. It is hardly the same thing that we are discussing now.

Has my noble and learned friend made a decision as to whether or not members of the advisory council on public records will in future be able to see the actual records under discussion, bearing in mind the background I have given. Can he also give an assurance that members of the council will be security cleared? While the council will remain an advisory council, that reform would be most welcome. Indeed, it would be the greatest single measure that could be taken to enhance the confidence of the historical profession that the absolute minimum is being retained and only for truly convincing reasons.

I move on to the importance of the Public Record Office. I gather that there have been many discussions with historians in which help and advice has been given by the staff of the Public Record Office. I have been connected with the office for many years and have great respect for its staff. The advice has been deeply appreciated and genuine bridges have been built between the Government and their customers in the historical profession in line with the prime requirements of the Citizen's Charter. "Customers" is not my word, but the word given. Their presence at the meeting of historians which took place on 25th November 1992 and led to the detailed requests for releases was welcomed in the historians' report. It is hoped that this close relationship will be continued at a further meeting of historians that will take place on 25th November this year at the Institute of Historical Research when historians will consider their response to the White Paper. The movement towards open government will make the Public Record Office an increasingly vital resource for the historical profession. As the use of the PRO increases, can my noble and learned friend assure the House that the PRO will not be denied the resources necessary to fulfil the demands of more open government?

I turn to the centrality of history to open government strategy. The dialogue which has developed and the response of historians make clear that the needs of the historical profession are a central part of the open government strategy. The collective memory of the nation must be as full and as accurate as possible if our history is not to fall into the hands of the hostile and the partisan. The ending of the cold war has critically important implications in this respect. To understand the experience of this country in that period it is necessary to have as full an access as possible to the records of government. Will my noble and learned friend reaffirm the Government's unequivocal commitment to this central strand of the nation's heritage?

We should also consider the wider world, a subject on which the noble Lord, Lord Mayhew, may say more. The peace process in the Middle East may well be ushering in a new age. Is it not time that we reviewed all the British Government's records on Palestine and perhaps other countries?

5.52 p.m.

Lord Mayhew

My Lords, I would certainly agree with the noble Lord, Lord Teviot, that the White Paper represents a move forward, but in my view it is a very small step. When the new measures are carried out it will leave the whole process illiberal, cumbersome and slow. It will be illiberal because the decisions on whether to release or close records is to be taken by Ministers—on the first 30 years, by departmental Ministers, and after that, by the Chancellor of the Duchy and the noble and learned Lord the Lord Chancellor.

The White Paper does not argue about whether Ministers are the best people to take the last decisions. There is simply no consideration of that at all. Yet it is surely questionable. The decisions to be taken will almost always be borderline interpretations of the criteria set out in the White Paper—would disclosure be harmful; would it cause distress to individuals; would it be contrary to the national interest; and so on. Why should it be supposed that Ministers are better qualified to take those decisions than, say, judges, or an ombudsman, or a panel of Privy Counsellors? I should have thought that the opposite is the case. Ministers will certainly be less disinterested than members of other professions. Politicians are not the most disinterested professionals in the country. I think that the question deserves further discussion.

A Minister is much less likely to be disinterested. The papers might embarrass his department or the department of a colleague; they might embarrass his party; they might even embarrass the Minister himself; whereas other people—experienced, responsible outsiders—are capable of taking these decisions in a way which would probably not only be fairer but would be seen to be fairer.

Another criticism I have of the White Paper is that it fails to deal with the administrative problems of reviewing records. One gets the impression that the system is overloaded, that there is a backlog of retained

papers, of records which have accumulated year after year because of excessive caution. I should have liked the White Paper to have told us how many reviewers there are; how many records are awaiting review. The White Paper is entirely silent on this point. It tells us that 30 miles of records are reviewed every year by departments at the first stage and that four and one-third miles are reviewed by departments at the 30 year stage. But those figures are meaningless. What is a mile of records? Perhaps the noble and learned Lord will explain what that means. We need figures of a much more practical kind.

For instance, what is the average time taken by the reviewer to dispose of a set number of records? How many reviewers are there? What is the backlog, if any? Is the backlog growing or diminishing? In that way we might get a clear picture of what I think is a problem; namely, the administrative problem of reviewing records.

No one will dispute the need to maintain a certain level of confidentiality in official papers. That goes without saying. But the standards of confidentiality are changing dramatically. A strange anomaly is emerging, a contrast between the standards of confidentiality laid down in the White Paper and the standards observed in ministerial memoirs. For instance, the White Paper lays down, in paragraph 9.13, that confidentiality must be observed in the case of: Exceptionally sensitive records containing information, the disclosure of which would not be in the public interest in that it would harm…internatior al relations". At the same time we have free publication by a former Prime Minister of her efforts to frustrate German reunification, revelations which have certainly harmed Anglo-German relations.

Similarly, the White Paper lays down that records should not be released which contain information about individuals, the disclosure of which would cause distress. But causing distress to individuals appears to be a major aim of recent ministerial memoirs, which freely report confidential Cabinet proceedings and confidential advice to Ministers from their colleagues or from civil servants or from service chiefs—no doubt to the distress of many of them. I venture to suggest that if ministerial memoirs were subject to the restrictions laid down in the White Paper on open government they would undoubtedly be suppressed for at least 30 years. Therefore, all the more objectionable is the closure of records needed by historians and others which could do no harm to anyone.

Perhaps I may give an example of which I have given the noble and learned Lord notice. Why are the records of the information research department of the Foreign Office not yet released after more than 40 years? Historians have complained about that. Perhaps the noble Lord, Lord Teviot, will complain about it again at the meeting in November. I should be very much obliged if he would.

For example, in the Evening Standard and in an authentic history called British Intelligence Strategy and the Cold War 1945–51 the author, Richard Aldrich, writes: Why are the records of an organisation [with reference to the information and research department] ostensibly existing to provide information retained after more than forty years? Did British strategy for propaganda and political warfare assist in the securing of Western Europe from the communist threat and the unleashing of ideological forces that eventually overwhelmed the East European regimes? Even if the British psychological crusade in the Cold War is now acknowledged by historians, its nature and purpose await further research". I must now declare a small personal interest. Since I founded and directed the information and research department, I thought that I would fill this gap in hi story by writing a book about that department. The Foreign Office approved the idea but the Parliamentary Under-Secretary, Mr. Lennox-Boyd wrote to me: As you probably know, IRD's internal records are retained in the FCO pending review. At this stage it is difficult to say either when they, or what proportion of them, will be released to the PRO". At Mr. Lennox-Boyd's advice, I contacted the head of the Foreign Office library and records department, who was courteous and sympathetic, but stressed the administrative difficulty of reviewing so many records in different departments. It may well be that administration is at the heart of the difficulty. I certainly cannot believe that anyone could argue that these records were secret or sensitive. I say that not only because of the long period of time which has elapsed, but because one of my less happy actions at IRD was to appoint to this secret department an official who showed at interview a most remarkable grasp of Soviet propaganda. This was Mr. Guy Burgess Therefore I cannot believe that secrecy is a reason for withholding these documents. I have now applied to the Russian archives for material on IRD.

I do not want to give an impression that I doubt the good intentions that have gone into this White Paper. In small detail it makes some steps forward, but all my experience suggests that it could be more liberal; it could be better administered and it should and could release for historians and others a much better flow of hitherto secret public papers.

6.3 p.m.

Lord Irvine of Lairg

My Lords, the Government say in the White Paper, in furtherance of the policy of greater openness they intend to place the emphasis firmly on release rather than retention of public records. That is both a necessary and a desirable policy goal. But the Government's approach to achieving that goal falls short of providing adequate means for ensuring that public documents are retained only when genuinely necessary in the public interest. The White Paper states, In future more information will be released through changes in the criteria governing decisions to withhold material for longer than 30 years". However, no proposals for either the amendment or repeal of the Public Records Acts of 1958 arid 1967 are forthcoming.

The judgment of my party is that the need to secure freedom of information is of such importance that it must be safeguarded by statute. The Government's proposal to secure that freedom by changes in the guidelines or criteria surrounding the existing law provides no basis for challenging the exercise by the noble and learned Lord the Lord Chancellor of his discretion in relation to the release of public records. Moreover, it provides for only limited independent scrutiny of decisions to withhold records from the public domain. The shortcomings of the present system were highlighted most succinctly by the late Lord Devlin. He said, the danger of the system is that it installs, as judges of what ought to be revealed, men whose interest it is to conceal". Whilst the temptation to suppress potentially embarrassing or "inconvenient" disclosures can never be eliminated, the imposition of a clear and comprehensive statutory framework would minimise the risk that records will be unjustifiably withheld from the public domain. Moreover, the introduction of some independent form of scrutiny would help to ensure that politicians and administrators cannot exercise their discretion in a self-serving way.

It was with this aim in mind that the committee under the chairmanship of Sir Duncan Wilson recommended in its report published in 1981 that the advisory council which currently assists the Lord Chancellor should play a larger role in providing him with an independent source of advice on questions of extended nondisclosure and retention of records by government departments. In particular, the Wilson Committee recommended that a sub-committee of Privy Councillors should be set up to scrutinise applications relating to information considered to be of a most sensitive nature.

The Government rejected this important recommendation of the Wilson Committee. It stated in their response that: The evaluation of the sensitivity of public records … requires an intimate knowledge of current policies and developments which Advisory Council members … cannot be expected to have". That is very patronising. I would say that the evaluation of the sensitivity of public records requires a degree of independence and objectivity which the policy-makers cannot be expected to have. Whilst the Government's paternalist philosophy prevails, the British people will have no adequate safeguard against the abuse of the present system by self-serving Ministers and civil servants. Moreover, this philosophy is the very antithesis of open government to which so much lip-service is currently paid by the Government.

We say that in the field of freedom of information, the British people deserve more than just a re-hash of the old regime of paternalism and secrecy. A comprehensive statutory review of the procedure for release of public records should form part of a new Freedom of Information Act. Three basic provisions of such an Act would break the traditional mould. The first would give statutory force to the criteria to be imposed by the Lord Chancellor in deciding whether to retain records beyond the 30-year period. The second would require reasons to be given for the retention of any records beyond a period of 30 years; and the third would give an enhanced statutory role to the Advisory Council, in order to introduce a greater element of independence into decisions relating to the retention of public records.

By contrast with these proposals, the Government's approach amounts to little more than a change in emphasis in the present system. Yet this is the system which led to the following official memoranda being listed in January 1989 as closed for a whole century: prison reform and lengths of sentence (1913–17); forcible feeding in reformatory schools (1910); the sterilization of mental defectives (1911–30); imprisonment and forcible feeding of suffragettes (1913); imprisonment of Emily Pankhurst (1913–17); industrial unrest and strikes (1918); experiments on animals with poison gas (1913–16); instructions to police on sedition charges against socialists (1912–18); Home Office practices in dealings with criminal lunatics (1913); coal–miners' strike (1919); flogging of vagrants (1919); decisions against prosecuting James Joyce's Ulysses (1924); Fascist marches (1936); and police reports on the activities of the National Council of Civil Liberties (1935–41). The list goes on.

Even under the Government's new proposals, there will be no obligation upon government departments to justify the withholding of historical records of this nature. Were they to choose to do so, no doubt the Government would seek to justify many of the retentions that I listed by reference to their guideline (at paragraph 9.21 on page 67 of the White Paper) that documents should be closed for 100 years if they contain, personally sensitive information which would substantially distress or endanger individuals or their descendants". However, in practice, what is absolutely apparent from the subject matter of those records which are withheld is that it is the avoidance of embarrassment to the department or the Government of the day which is the overriding consideration. The mere theoretical possibility of distress to family members, so many years afterwards, cannot be allowed to override the public's general right to know how it has been governed in those critical areas.

It is an irony of this traditionally secretive approach that many of the documents withheld from the public in the United Kingdom are sent, under bilateral arrangements, to other countries which do possess freedom of information legislation and where, as a result, they become immediately open to inspection. British historians are forced to travel to Washington to inspect documents which, although stored in the Public Record Office here, are not available for inspection by the British public.

I also observe that there is no discussion whatever in the Government's White Paper of the possibility that some documents might be released before the period of 30 years has elapsed. What the White Paper says wholly uncritically about the 30 year rule (at paragraph 9.5 on page 62) is as follows: A thirty year period is now the standard adopted by the countries of the European Community … Retention of the overall 30 year period therefore seems appropriate and sensible". That shows a remarkable affection for Europe. That reasoning exposes the Government's lack of rigour in addressing the question of freedom of information. We should not simply look to our immediate European neighbours and copy them. We should start from the principle that the public has a right of access to public documents, and then restrict that right only in so far as demonstrably necessary and justifiable. In that, we would be better to take a lead from the United States rather than our fellow European Community members.

The Government's ad hoc approach is based on the fallacy that individuals must simply take it on trust that politicians and administrators will act at all times in good faith and in the public interest. We shall have to await the outcome of the Scott Inquiry into British arms dealing with Iraq to see whether such trust might very recently have been misplaced. But, in any event, if the traditions of paternalism combined with secrecy which have pervaded British government administration for so long are to be overturned, the Government should be prepared to legislate against them. If they are not, the next Labour Government will fulfil their commitment to put a freedom of information Act on the statute book.

6.13 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I am grateful to my noble friend Lord Teviot for giving me this opportunity to explain the measures which are presently being taken to ensure that the Government's policy on public records, reflected in the recent White Paper Open Government, is carried forward. I believe that that is what the Question is about. I could not have expected every speaker to restrict himself to the Question. Therefore, I shall deal later with some matters which went somewhat wide of the Question.

The Government's policy, as stated in the White Paper, is that all public records should be released to the public unless there are truly compelling reasons why that should not be done. I believe that the recommendations contained in the relevant chapter of the White Paper, Chapter 9, illustrate the Government's commitment to that principle.

The Public Record Office, an executive agency for which I am responsible to Parliament, has a fundamental role in that context. It is responsible for advising individual government departments on which records, out of the vast amount of records which the business of government creates, should be preserved. It makes arrangements for the transfer of those records to its custody and is responsible for providing the public with access to these records once they have been so transferred.

The Public Record Office also has a crucially important role to play in the consideration of whether any of those records should properly be withheld from public scrutiny. The recommendations contained in the White Paper aim to enhance that role to ensure that all those responsible for the process by which documents are sought to be so withheld discharge those duties in accordance with the Government's policy. In considering the matter, and with a certain degree of experience as to how it operates, I am of the view that the most important change that could be made is made in introducing the concept of the harm test, under which the actual damage that would be caused by the release of an individual record must be established before it can be withheld. That test has thus been introduced and is the touchstone for all those, including myself, who are involved in any decision to withhold that record.

No public record can be withheld from the public without the approval of the Lord Chancellor of the day. I have a very pronounced interest, therefore, in ensuring that the system works to deliver its goal of releasing documents rather than withholding them. The recommendations contained in Chapter 9 affect every part of the process. I will, if I may, first mention the recommendations which affect the Public Record Office most directly, then mention a number of other initiatives which will carry forward the principles behind the White Paper.

There are two recommendations of the White Paper which explicitly involve the Public Record Office. Those are the requirements that guidance should be drawn up for the benefit of reviewers in departments: first, to enable them to assess the element of substantial distress which might give rise to a proper application for closure; and, secondly, core guidance drawn up and disseminated to all departments to facilitate the changes resulting from the White Paper.

Clearly, the sorts of elements which will prompt an application based on substantial distress may be different from department to department. It is, therefore, important that each department issues correct guidance geared to the needs of its own reviewers, and that must be agreed with the Public Record Office so that all those involved are aware of the basis on which such an application is made. The Public Record Office is presently in the process of drafting such guidance for each department, and I expect the exercise to be completed shortly. The guidance will be reviewed over time to take account of the fact that what is considered a valid cause of substantial distress may change from time to time.

The core guidance disseminating the implications of the White Paper for all departments has already been drafted and circulated among departments. Again, it has been vitally important that the Public Record Office has approved the draft. The aim of the guidance is to inculcate into the minds of every person involved in the process by which applications for closure or retention are made the idea that unless the harm test r. referred to earlier is satisfied the application should not proceed. On its way from the initial decision by a reviewing officer to the approval of the Lord Chancellor such an application must go through a number of stages. I think that it is worth reminding the House of the process so that it is clear what I mean.

Each government department has a departmental records officer whose responsibility it is to select those records which are to be preserved and to identify those which may be released and those which should properly be closed at the Public Record Office or retained within the department under the provisions of the Public Record Acts. An official of the Public Record Office is responsible for providing guidance and advice to each department during the selection process. The department concerned must satisfy the Public Record Office with its justification for making an application for closure or retention. I suggest to your Lordships that it is clear that the Public Record Office and its officials have no responsibility for the kind of policy decisions that are the subject matter of other departments. The

Public Record Office assesses whether the application is justified and, if so, includes it in a submission to my Advisory Council on Public Records, a body wholly independent of government, which will then advise me whether to accept the application.

The Public Record Office must bear in mind that the Advisory Council on Public Records, which is chaired by the Master of the Rolls, will in its turn be scrutinising the justification for the application and the council will not accept it if not satisfied. Once the advisory council has advised me that it accepts the application, I in turn scrutinise the justification for the application, and only if I too am satisfied with such justification will I sign a formal instrument allowing the records in question to be either retained within government departments or transferred to the Public Record Office where they are closed to the public for a specified period.

As I have said, it is in inculcating the need adequately to demonstrate the actual harm that would arise from release of the records at every level of that process that the greatest progress will be achieved in ensuring greater release of records. The need to justify always to the next appropriate level every application for closure or retention will ensure that any temptation to err on the side of what may appear to be safety, to the detriment of release of the records, will be avoided.

I have already mentioned my Advisory Council on Public Records and I should like to return to that subject. To date I have relied on the council, which is wholly independent of government, to advise me on applications from departments for the closure of records at the Public Record Office but not on applications for records to be retained within departments. That was the original structure. From now on, as a result of the recommendations of the White Paper, the advisory council will advise me also on applications for the retention of records within departments. I regard that as an extremely important step forward and, in so far as being liberal can be regarded as a seal of approval, I consider it to be a liberal step as well.

In addition, the council will now have an important role in considering requests which have been made to departments by historians, or indeed other members of the public, for the release of documents where those requests have been refused by the department concerned.

My right honourable friend the Chancellor of the Duchy of Lancaster, with my support, extended in the summer of 1992 an offer to historians to let him know of records which they would like to see released, an invitation to which, I may fairly say, they have not been slow in responding, and indeed I understand that a great deal of material has been released as a result of those requests. Where, however, a department believes that there is good reason to continue to close or retain the records in question, it is now intended that the advisory council should be able to consider whether the records should continue to be closed or retained and advise me accordingly. In the case of those records which have been closed in the past, of course, the council will in effect be reviewing its earlier advice that a given record should be closed.

Remaining with the subject of the advisory council, I should like to take this opportunity to announce to the House an important change in the way in which the council will now operate. It has been a criticism often levelled at the council in the past that its members have not been allowed properly to assess the case for withholding records because they have been unable to inspect the records themselves. Indeed, the proposal that the council should be allowed to see the records was rejected by the Government, after careful consideration, in their response in 1982 to the report by Sir Duncan Wilson, to which the noble Lord, Lord Irvine of Lairg, referred, during the tenure of my noble friend Lord Teviot as a member of the advisory council.

However, I am glad to say that the Government have now re-examined that matter and they have decided that from now on, where the council is unable to satisfy itself in any other way that an application for closure or retention is justified, the chairman, or a member of the council nominated by him, will be able to inspect the records himself. Having regard to the amount of records involved, that is important. It will have an important effect upon the whole scrutinising process.

It is unavoidable that there will always be a small number of matters that the Government must properly keep from any public scrutiny. For that reason the council will not be allowed physically to examine records which it is sought to withhold for reasons of security and intelligence. In such an instance it will remain open to the council, as it is now, to request that the Cabinet Secretary should examine the records and advise me accordingly. For all other records—a great many, as I have said—however, the power will be there. Extending the remit of the advisory council in that way is, in my view, an effective step and answers criticism that it is hampered in carrying out its duties. I believe that it will lend considerable authority and credibility to government decisions to withhold records only where that is absolutely necessary.

The White Paper proposals relating to public records represent a real and carefully considered commitment to more open government, the results of which are already becoming apparent. A great amount of material has already been released. I could not take down with complete accuracy all that the noble Lord, Lord Irvine of Lairg, read out, but if I am not mistaken those documents were closed for 100 years in 1958 or so. They have all now been released. The present policy has demonstrated just how effective it can be in releasing documents previously withheld.

I agree with the noble Lord, Lord Mayhew, that it is important that the reviewing process should continue. The figures in miles given in the White Paper relate to the selection process, not to scrutiny or sensitivity. The organisation of selection is a major element in the work of the records section of the nearly 150 organisations covered by the Public Records Act. In the White Paper the Government are giving an impression of the total amount of material that has to be considered. A mile of records means what it says. If one is responsible for providing bookshelves over the years, yards or miles are an important economic indicator of what is involved. No doubt it could be dealt with in other ways, but that is a reasonable way of indicating the volume of public records in question.

During the past year or so while this matter has been under consideration, many previously withheld records have been transferred to the Public Record Office. The backlog is being reduced. It is not growing.

The noble Lord, Lord Irvine of Lairg, was intent on telling us what would be a better policy. The better policy is to create a new Act of Parliament containing a number of mechanisms which, as far as I can make out, are all intended to secure the same policy that I have sought to explain. It is true that he would seek to add the possibility of action at law to the existing possibilities, but in my judgment that is unlikely to be more effective in producing results than the system which the White Paper has indicated.

My noble friend Lord Teviot mentioned the meeting of 25th November 1992, with its good atmosphere and good results. There will, as he said, be another meeting on 25th November of this year. The Public Record Office will be represented. The keeper and officials will be attending that meeting of historians to review progress and to see what more can be done. I express willingly the Government's commitment to the preservation of the nation's history and to giving the Public Record Office the necessary facilities to achieve that. The arrangements that we have put in place, with emphasis on the identification of the harm in the harm test to which I referred, will ensure that where at all possible public records are made available unless real harm can be demonstrated.

The noble Lord, Lord Mayhew, was interested in the institution which he set up and which he had a natural desire to write about. Many of the documents of the department are covered by the intelligence and security problem. It is right that, like all records maintained within departments, these records are reviewed at least every 10 years and subjected to the test of whether actual damage would be caused by their release. Arrangements for such reviews will require that they occur at least every 10 years. If particular attention is drawn to the documents it may be possible for the review to take place more quickly. That happened in relation to matters drawn to the attention of the Public Record Office by historians to whom reference has been made. Within that 10-year review period the continuing sensitivity of the records must be established under the test of actual damage and those which do not meet the test will be released. I hope in time to enable the noble Lord, Lord Mayhew, satisfactorily to complete the work that he would like to initiate. The period of 10 years is the maximum and I have every confidence that the maximum will be sufficient—but perhaps it will not be necessary.

The noble Lord, Lord Irvine of Lairg, drew attention to the possibility of records which are closed here being available elsewhere. I should be grateful if he would indicate the records that he has in mind. I have sought to ascertain to what extent that happens and if he can help me by giving particular examples I should find that useful.

Lord Mayhew

My Lords, perhaps the noble and learned Lord will allow me to give one example. The publication of material about the information research department of the Foreign Office, the organisation of which I spoke, was first published in America under the Freedom of Information Act. That is a good example of what was said by the noble Lord, Lord Irvine.

The Lord Chancellor

My Lords, I am grateful. I have sought examples but hitherto they have been few and far between. When the noble Lord says that the information was published under the Freedom of Information Act, I suspect that as far as the United States was concerned nothing was considered to be important in retaining those records. I am grateful for that example.

The noble Lord, Lord Mayhew, also referred to ministerial memoirs. I am not sure whether it would be profitable for me to become deeply involved in that subject. I believe that the principles set out in the White Paper for the discharge by executive government of its responsibilities for the nation's records are sound principles. I did not understand the noble Lord, Lord Irvine of Lairg, to suggest the contrary. He was more concerned with the machinery by which those principles would be enforced.

Accordingly, I claim that what has been done in the White Paper, in particular Chapter 9 in relation to public records, is a very considerable step forward. It has already produced considerable results and. I believe that it will continue to do so. As a consequence, only documents the release of which would cause identifiable harm will continue to be withheld from the public either by retention in their departments or by closure in the Public Record Office.

I renew my gratitude to ray noble friend for raising the Question and enabling us to have a discussion on what I believe to be an extremely important subject.