HL Deb 11 December 1997 vol 584 cc244-53

3.40 p.m.

The Lord Chancellor (Lord Irvine of Lairg)

My Lords, with the leave of the House, I should like to repeat a Statement which has been made in another place by my right honourable friend the Chancellor of the Duchy of Lancaster. The Statement is as follows:

"Madam Speaker, I am today publishing a White Paper on freedom of information. Its full title is Your Right to Know—the Government's proposals for a Freedom of Information Act.

"I am delighted to be able to make this important announcement to the House today. Your Right to Know is the latest example of how this Government are delivering the radical agenda for constitutional change set out in our manifesto.

"For our agenda to be effective in modernising Britain, it is essential to identify the linkages between each of the Government's reforms. This has been assured by the role of my right honourable friend the Lord Chancellor, who chairs the Cabinet committee on freedom of information. Under his chairmanship we have also published the White Papers on devolution for Scotland and Wales, and the Rights Brought Home White Paper on the incorporation of the European Convention on Human Rights into United Kingdom law.

"Now, this White Paper provides a further essential element in our constitutional agenda. Your Right to Know sets out clear and detailed proposals for legislation which would give every individual a statutory right to know about the information and records which government hold. This is a right which will transform the culture of government and make it more open and accountable. It is a huge step towards rebuilding trust between government and the people.

"These proposals for legislation realise a commitment set out in Her Majesty's gracious Speech last May. Our White Paper is the outcome of a root and branch examination of this complex and difficult policy area. Within seven months the Government have addressed the sensitive issues involved and arrived at the firm proposals described in the White Paper. On this basis I believe few can question our commitment to fundamental constitutional reform.

"Our proposals start from the premise that open government is good government. They are accordingly radical, and with your permission I would like to draw the House's attention to the key features of our FOI regime.

"First, wide coverage. We propose that a freedom of information Act should apply right across the public sector, covering: government departments and agencies; local councils; quangos; nationalised industries; the NHS; schools and colleges; courts and tribunals; police authorities; the Armed Forces; and public service broadcasters. It should also include the privatised utilities and some private sector organisations carrying out duties on behalf of government. Instead of the few hundred public bodies subject to the Code of Practice on Access to Government Information, tens of thousands will be covered by the Act.

"Secondly, access to documents, not just information. The right of access would be broadly based, and apply to official records and information held by the bodies covered by the Act. This goes far beyond the code, which provides a non-statutory entitlement to information, but not to records or documents.

"Thirdly, fewer exemptions. The system for protecting information would be based on seven specified interests instead of the 15 exemptions in the Code of Practice. Significantly, in most cases information could only be withheld if its disclosure would cause substantial harm—a further important advance on the code.

"Fourthly, duty to publish. I want the legislation to encourage public authorities to take a positive approach to openness by requiring them to publish information as a matter of course, whether it has been requested or not. My department will be developing an action programme to support the move from a culture of secrecy to one of openness.

"Fifthly, strong enforcement. An independent information commissioner should oversee the implementation of the legislation. To do this effectively, the Government have agreed to give the commissioner wide-ranging powers, including the power to order disclosure. At present the Parliamentary Ombudsman, who supervises the code of practice, can only recommend disclosure.

"Finally, an integrated system. Access rights to current and historic information would be brought together through the integration of the relevant sections of the Public Records Acts into FOI. This would ensure a single legislative approach to the release of both past and present records.

"These points broadly summarise the Government's proposals for a freedom of information Act. And it is fitting that this White Paper marks the start of an extensive and open consultation process, which will continue through much of next year. First of all there will be a period of consultation on the White Paper itself. This will be followed by draft legislation, again for consultation. This will give Parliament and the people a clear idea of the freedom of information Bill we intend to introduce as soon as a suitable opportunity permits.

"Before I conclude, I would just like to mention two further initiatives connected with Your Right to Know, the results of which will inform the consultative process even before the draft Bill. Indeed, I expect to publish both of them shortly after the Christmas Recess.

"The first is a separate consultation exercise on the management of Crown copyright. This is the system which protects the status and the integrity of official government information. It also underpins the charging regime that exists for certain tradeable information-based services. Crown copyright is clearly relevant to our White Paper proposals, and we have almost completed an examination of its operation. I hope to publish the results of this in a Green Paper very shortly.

"The second initiative will be a published paper setting out factual and background material relevant to the production of the White Paper. This fulfils the commitment I made while the White Paper was being prepared and is in line with the good practice set out in the White Paper itself, which commits government to the maximum possible disclosure of factual and background information behind policy decisions.

"Openness is fundamental to the political health of a modern state. This White Paper marks a watershed in the relationship between the government and people of the United Kingdom. At last there is a government ready to trust the people with a legal right to information.

"There are matters, such as national security or personal privacy, where information has to be protected. Government themselves need some protection for their internal deliberations. I believe our proposals strike a proper balance between extending people's access to official information and preserving confidentiality where disclosure would be against the public interest. It is a new balance with the scales now weighted decisively in favour of openness.

"I strongly believe in these proposals, and I am delighted now to be able to commend them to the House as the basis for public debate over the coming weeks and months."

My Lords, that concludes the Statement.

3.48 p.m.

Lord Strathclyde

My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for repeating the Statement. I was somewhat surprised to see him repeating it since I understand that he is, as the Statement points out, chairman of the Cabinet committee on freedom of information. I suggest that that is an internal matter for the Government; the noble and learned Lord obviously decided that he should repeat it rather than make the Statement himself.

We have been waiting for the Statement for some time. It was injudiciously leaked earlier this week. Now the Government have been obliged to come forward to Parliament, the proper place for such Statements, in order to clarify the issue.

We agree with the noble and learned Lord on two key points. It is proper that individual rights should be protected, and we agree with the principle of keeping the public as fully and freely informed as possible. However, there is one serious omission from the Statement. It is worth noting that it could not have been made without the great advances made by the previous government. Those advances provided the foundation for the Statement. On the security services, we were the first to detail Cabinet committees. We introduced league tables and information on the performance of public sector bodies and provided private access to health records and personal records. And we introduced the Code of Practice on Access to Government Information, on which, as I pointed out, the Statement now builds.

While supporting the principle of freedom of information, we agree with the noble and learned Lord that, in the interests of good government, there must be some limits on the flow of information. Within that constraint, all legitimate demands for information should be met. Does the noble and learned Lord agree that, above all, it is vital that the position of an impartial Civil Service be preserved and that policy advice, given freely, should be provided without fear of personal identification? Will he assure the House that he will not, as a general rule, publish or provide access to documents in such a way that individual civil servants giving advice on any matters can be directly or indirectly identified? The danger is all too obvious: it might threaten their careers and risk the further creeping politicisation of the Civil Service.

Will the noble and learned Lord estimate the cost to all the tens of thousands of public and private bodies which he is now sweeping into the ambit of information law and compliance with anticipated requests for information? Will he estimate the cost of keeping records which might otherwise have been destroyed and state for how long such records must be kept?

Will the noble and learned Lord accept that the only ultimate judges of the public interest are Parliament and Ministers, who are responsible to Parliament and held answerable by it? Unless I am misreading the document, which is possible, it is disturbing that the proposed new information commissioner will not be responsible to Parliament. as an ombudsman is at present. If my interpretation is correct, is that not a sign of the further degrading of Parliament by the Government?

It is proposed that the new information commissioner will have powers to enter the premises of institutions, not only, it seems—perhaps the noble and learned Lord can confirm this—private sector utilities but also the offices of any company or voluntary organisation doing business with the public sector, and to seize records. Can the noble and learned Lord tell us who will appoint the commissioner, to whom the commissioner will report and what protection there will be against actions of the commissioner?

Is the noble and learned Lord aware of the feeling that the Government have conspicuously failed to demonstrate open government? There has been the use of special advisers and private briefings to journalists. I note with some regret that the noble and learned Lord has himself succumbed to the modern affliction of increasing status by appointing his own special adviser. Will he agree with me and with the Speaker in another place that the first and most critical place for release of information on public policy is Parliament? There have been too many recent examples—this matter is one, as I mentioned a moment ago—of information that has not been brought to Parliament being trailed in the newspapers and the media. The Chancellor of the Duchy of Lancaster this week apologised with regard to this matter. With all that they say about freedom of information, does the noble and learned Lord not agree that the Government would gain more respect and trust if they were seen to be scrupulous about releasing information openly and in due form and time to Parliament and not selectively to journalists in their own interests before Parliament has been informed?

3.54 p.m.

Lord Lester of Herne Hill

My Lords, I have the privilege of congratulating the Government from these Benches on the publication of an historic White Paper, long overdue. We have lagged well behind the rest of the democratic world. The Swedish law on information was enacted in 1776; the American federal law in 1966; the Canadian law in 1982; the New Zealand law in 1983; and the Irish freedom of information Act earlier this year. We are well behind in the democratic world, in the Commonwealth and in Europe, in not having a measure of this kind. If he will allow me to say so, with respect, on listening to the remarks of the noble Lord, Lord Strathclyde, one can understand why for 18 long years we failed to see an effective statutory right of access to official information enacted by successive Conservative governments.

This measure is part of the important agreement reached between the Labour Party and the Liberal Democrats in opposition on constitutional reform. I see in her place the noble Baroness, Lady Symons of Vemham Dean, with whom I was privileged to discuss this matter, she having gained enormous experience in her role as the head of the First Division Association of civil servants.

I heard the noble Lord, Lord Strathclyde, speak disparagingly of special advisers. I was one of them, and proud of the fact, working for my noble friend Lord Jenkins of Hillhead. I can assure the noble Lord that the role of the special adviser in bringing some kind of apparent expertise into Whitehall, which I believe his government valued as much as have Labour governments in the past, is particularly important in an area such as this.

I recall with sadness that the Labour government's pledge in their manifesto in 1974 to create a freedom of information Act was one of the few manifesto pledges that was not fulfilled. If I may authorise myself under the old Official Secrets Act to say so, it was not fulfilled because only a handful of members of the Labour Cabinet were willing to countenance a measure of that kind. Three of them are now Members of your Lordships' House; the fourth might have been but did not want to be. That is a measure of the huge, historic change which this measure represents.

I remember one of the Home Office officials in charge of this subject saying to me, "Anthony, if you were to reveal the colour of the wallpaper on the walls of the Home Office in your memoirs, that would be trading in official information and a treasonable act". He was not joking; he was simply exhibiting the pathology of excessive secrecy that is more a problem for psychologists or psychiatrists than for anyone else, a problem that has afflicted this country greatly.

What are the criteria by which we are to judge the White Paper? First, is its scope wide enough? I have only had a chance to read it quickly, but it seems to me very broad in scope. Secondly, are there any unnecessary exceptions? The devil is in the detail. It does not seem to me that, on the face of it, there are unnecessary exceptions. Thirdly, what is the test by which to weigh the competing public interests—the right of access to personal or public information, on the one hand, and, on the other, important public interest? The White Paper proposes a very sensible harm test: will the disclosure of the information cause substantial harm? That seems to me a much better formulation than words such as "likely to", which would be a recipe for evasion.

Fourthly, will there be excessive legalism? Are the courts to become the prime arbiters? The White Paper sensibly suggests that there must be a new independent office-holder, the information commissioner. If the information commissioner is able to do as well as the Data Protection Registrar has done, and if their work can perhaps be combined, the system will do very well indeed. I am pleased that the Government have chosen to adopt a commissioner rather than use the courts as the main place for obtaining effective remedies.

Fifthly, are there excessive costs or procedural bars? I am a little troubled by the fact that it is proposed to impose costs on applications for information. I know that the sum proposed is only £10, but I believe I am right in saying that in New Zealand, Ireland and, I think, in Canada the only costs one pays are photocopying costs. I am worried about the flat-rate additional cost unless it is a substitution for photocopying costs, which I doubt.

Sixthly, are there to be effective remedies for abuse? It seems to me that the Bill which the Government proposes will create effective remedies.

I want to express one minor disappointment, which is that the Government are wedded to retaining the 30-year rule, though they will dilute its effect. Speaking for myself, I should have thought that we are mature enough to be able to countenance at least a 25-year rule and perhaps a 20-year rule. I realise that if it came down to 20 years one would be able to see what Labour colleagues were arguing on this subject in 1977. I do not regard that as being an insuperable obstacle. I am sorry that the Government are still wedded to 30 years and not a shorter period of time.

I attach considerable importance to a remark made by the noble and learned Lord the Lord Chancellor towards the end of the Statement concerning the separate review of the management of Crown copyright. In other Westminster democracies—New Zealand, Australia, the United States and I believe Canada—measures have been taken to stop the abuse of Crown copyright; that is to say, the Treasury obtaining profits by selling Acts of Parliament, judgments of courts, Select Committee reports or other public documents to the public. I recognise that now the Internet is available that problem has been softened. However, I hope that the Government's review of Crown copyright will take account, as I am sure it will, of the more generous practice in those other jurisdictions.

I am sure that the Government are right to recognise that one cannot govern in a goldfish bowl; that therefore the policy advice given to Ministers by civil servants, as distinct from the background information, cannot he put into the public domain while it is still active and live. That is wise. We look forward to the background information on why the options in this White Paper have been chosen. I am sure that they will disclose a careful survey of best practice in other countries, including, as I mentioned, Ireland. In all, we congratulate the Government on a well-designed measure and regret that their predecessors were so obscurantist in opposing any measure of this kind.

4.3 p.m.

The Lord Chancellor

My Lords, the noble Lord, Lord Strathclyde, was uncharacteristically sour in his reception of this proposed Bill. The lead Minister is the Chancellor of the Duchy of Lancaster and it is appropriate that he makes the Statement in the other place. Since I was Chairman of the Cabinet Committee. it is appropriate that I should make the Statement following on his in your Lordships' House.

I heard what the noble Lord said in relation to leaks. Leaks were not notable by their omission from the long vicissitudes of our predecessors' administration. And we will not take any lessons in openness from our predecessors; quite the contrary. Apart from putting a right to information and records on the statute book by the Bill that this White Paper heralds, we have already taken steps towards setting up a foods standards agency to provide substantially more open and transparent agencies in this vital area of consumer interest. We have required National Health Service trusts to hold their meetings in public. We have required all executive and advisory non-departmental public bodies to produce and make publicly available annual reports. I could continue with a long list.

It is the fact that we have been, in the words of the noble Lord, Lord Lester, sensitive to the need for government not to operate in a goldfish bowl. Therefore, the only area where we have retained a simple harm test and held it outside our new, more demanding threshold test—the substantial one—concerns the integrity of the decision-making and policy advice processes in government. The simple question in that regard will be whether the disclosure of the information would cause harm with in the ordinary way an inference that the answer would be yes in relation to policy advice but no in relation to the factual and background material which stands behind that advice. One hopes that new practices will develop in Whitehall in which Ministers are given advice by civil servants which will distinguish, so far as convenient, between those two categories so that the factual and background material can be revealed, but the advice, in the interests of good governance, not disclosed.

I cannot give any estimate of cost. The public machine already gives much information and, in answer to the noble Lord, the bodies which are caught by this Act when it comes can give only the information which they actually possess. I do not accept the criticism that it would have been better to have an ombudsman responsible to Parliament. We thought about that carefully and took the view that it was better that he should be an independent officer. The information commissioner will have strong powers. He has the power to order disclosure and it is better that he be an independent officer, as is, as the noble Lord, Lord Lester, said, the Data Protection Registrar. The Act will apply to schools, local authorities and many other bodies that are not directly accountable to Parliament. The problem with an ombudsman is always the appearance of a political override; better that he be independent.

The commissioner will be cloaked with strong powers. He will have the right to obtain search warrants and to order disclosure and, where there are flagrant breaches of disclosure orders, that could be referred to the courts, which would treat it as a contempt of court. As the noble Lord, Lord Lester, said, it is not intended that there should be elaborate appeals to the courts. The overwhelming number of cases will begin and end with the information commissioner. There will be no appeal to the court; the court is not suited or equipped to judge these questions. But there will be a backstop of judicial review in exceptional cases.

4.7 p.m.

Lord Renton

My Lords, would financial proposals, especially those involving tax changes, be protected from disclosure so as to prevent speculation?

The Lord Chancellor

My Lords, that is not something which has yet been contemplated. We will consider it. This is a White Paper with green edges and there is to be substantial consultation.

Lord Borrie

My Lords, I welcome the Statement and perhaps I might ask a question relating to the "wide coverage" of the public disclosure provisions in relation to government departments, local authorities, quangos and so forth. Some of us in this Chamber will have in mind certain discussions in relation to public authorities under the Human Rights Bill. One would therefore like to know whether the new arrangements will apply to those private bodies which have public functions such as the Press Complaints Commission, the Advertising Standards Authority and the Takeover Panel. They have important powers and if they did not exist as private self-regulatory bodies they would no doubt be statutory bodies. Members of the public may feel that they hold documents which are just as important as those held by quangos and government departments.

The Lord Chancellor

My Lords, when the Bill is published in due course, it will be accompanied by a list. The list can from time to time by order be altered. The broad answer is this. We have taken the general view that where functions are carried out under statute, whether by the public, private or voluntary sectors, freedom of information should provide a basic line of accountability. A wide variety of such functions are carried out by private companies; for example, running prisons, administering public sector superannuation schemes, collecting council tax, and so on. There will be other examples under the Deregulation and Contracting out Act. Those are the kind of organisations we have in mind. But these matters are ones which can be discussed in consultation. It can be positively put that a particular body ought or ought not to be on the list. When the Bill is published, it will be accompanied by a list.

Lord Teviot

My Lords, I have been associated with public records for more than a quarter of a century, but I am not aware that we are a closed country regarding information. A great deal of work has been done on this. There was the Grigg Commission of 1954 and then, after a curious debate I had on public records in 1977, the marvellous late Lord Elwyn-Jones instituted the Wilson Commission. Where other countries have employed freedom of information, they have done so not always to great advantage. In paragraph 6.5 of the White Paper the Government say that they are retaining the 30-year rule. But in paragraph 6.6 the White Paper says that more records will be released within 30 years. I view that with some alarm. I should be grateful if the noble and learned Lord could explain which records will be released within 30 years. Our Civil Service is undeniably the finest in the world and one would not want it to be inhibited by a whole lot of freedom of information.

The Lord Chancellor

My Lords, I am not sure I can be much more particular than paragraphs 6.5 and 6.6 of the White Paper to which the noble Lord has referred. Our commitment was to open up more government records, and earlier wherever possible. That we will do. We considered carefully and decided against a blanket change to the 30-year rule as such. That will remain the point at which material will be made available in the Public Record Office. I shall not take up time reading paragraphs 6.5 and 6.6 where we give our explanations. We are proposing to bring together in one system the arrangements for freedom of information for current papers and what have up to now been quite separate arrangements, as the noble Lord correctly said, for historic public records. We believe that far more material will in practice be releasable before the 30-year mark. I predict that the proposals in this area will be widely welcomed by historians, others and many in this House, including, I suspect, the noble Lord.

Lord Brooke of Alverthorpe

My Lords, one of the areas in which there has been a substantial growth of secrecy in recent years has been contracting out and the extension of contracting generally. The secrecy has been imposed by the addition of the tag "business—in confidence". I should be grateful if the noble and learned Lord could clarify whether this will be covered by the Bill.

The Lord Chancellor

My Lords, if the noble Lord reads the White Paper he will see that we are giving active thought to addressing particularly the contracts to which he refers. Through the medium of the bodies which are party to these contracts and which will be subject to the Bill, material under these contracts will be subject to the new freedom of information regime.

Baroness Thomas of Walliswood

My Lords, can the noble and learned Lord, whose Statement I very much welcome, tell us whether consideration will be given to the charges made at the Public Record Office, which I understand are 40p per sheet for photocopying? That seems an excessive amount. Is it likely that the legislation which follows the White Paper will require modification of the legislation which followed the Widdicombe Report, which exempted from the duty of publishing papers certain local government working parties and sub-committees which did not take decisions?

The Lord Chancellor

My Lords, as part of the exercise for preparing for the Bill, we will be considering a broad range of legislation, including that to which the noble Baroness has referred. It is quite remarkable how many statutes there are on the statute hook with provisions that bear on these issues. I note what the noble Baroness has said about charges at the Public Record Office.