§ 11.33 a.m.
§ The Minister of State, Cabinet Office (Lord Falconer of Thoroton)
My Lords, I beg to move that this Bill be now read a second time. The Freedom of Information Bill creates a right of access to information held by almost all public sector organisations. It builds on existing rights. The right of access to personal information about yourself—subject access—was created in respect of computerised information in the Data Protection Act 1984. It was extended to structured paper records by the Data Protection Act 1998. This Bill will extend that right even further to unstructured paper records.
824 But the Bill goes much further than that. All information held by any public authority will fall into the scope of the Bill and will be available on request, unless an exemption applies. And even if an exemption applies, in almost all cases the authority must disclose the information where the wider public interest outweighs the need to maintain the exemption.
The Bill creates an information commissioner who will have the task of enforcing its provisions. So people will not have to take expensive court action to enforce their rights. The commissioner will do that and access to the commissioner will be free of charge.
This Bill is the result of extensive consultation and scrutiny. The Government published a White Paper on 17th December 1997, which was followed by a public consultation exercise. A draft Bill was then published on 24th May 1999. The draft Bill was the subject of pre-legislative scrutiny by committees of both Houses of Parliament and a further public consultation exercise. Perhaps I may take the opportunity, at this point, to pay tribute to my noble and learned friend Lord Archer of Sandwell and the other noble Lords who served on the ad hoc committee which scrutinised the draft Bill last year. I described the scrutiny of the draft Bill as extensive—I should add rigorous and thought provoking as respects the work of that committee. The Government have been able to accept many of the recommendations of the committee, including, for example, amending the Long Title of the Bill. Where we were unable to accept the committee's proposals we explained that in our detailed response to the noble and learned Lord, Lord Archer of Sandwell.
There has been a great deal of comment and criticism of the Government's proposals on freedom of information. The Government have listened carefully to that criticism and where it has been constructive and the ideas put forward have been sensible, the Government have responded. The Government intend to bring forward further amendments at the Committee stage in your Lordships' House and I shall comment further on that in a few moments. Some of the criticism of the Bill has been mischievous and misleading. How many times has it been said that the Bill will create blanket bans on the disclosure of information? The Bill creates no bans, blanket or otherwise—quite the reverse. Clause 76 ensures that nothing in the Bill is to be taken to limit the power of a public authority to disclose information.
There have been assertions that this Bill is in some way not as good as the code of practice on access to government information. That is not right. The code of practice creates no rights whatever. Under the code of practice, all information is released solely at the Government's discretion. One of the criticisms of the Bill, which the Government have addressed, is that too much information was covered by discretionary provisions. I do not know how anyone can make that comment and then go on to say that a wholly discretionary code is better.
I wish to make two further points on the issue. First, the Bill covers a much wider range of authorities— virtually all public sector bodies—whereas the code is 825 restricted to central government and a limited range of quangos. Secondly, under the Bill, the information commissioner can be accessed directly by an applicant and her decisions are enforceable. The ombudsman, however, in respect of the code, can be approached only through Members of Parliament, and his findings are merely recommendations to the Government, albeit powerful ones. So I hope it can be seen that if one looks at the principle the code is not at all preferable to the Bill. But the Government's mind is not closed. If your Lordships propose further amendments which improve the Bill without undermining its underlying principles, or the necessary safeguards for sensitive information, or effective and efficient government, we will give them a fair hearing. But the Bill creates a delicate balance of rights, balancing the right to know against the right to privacy and the right to confidentiality. We must ensure that we do not upset that balance.
Perhaps I may take your Lordships through the main provisions of the Bill. Part I, dealing with access to information held by public authorities, sets out the key provisions covering the right of access. Clause 1 states with absolute clarity the public's entitlement,to be informed in writing by the public authority whether it holds information of the description specified in the request and … if that is the case, to have that information communicated to him".That is a clear right. There are, of course, conditions attached to that right, although no more than are sensible.
The public authority must be supplied with sufficient information as it may reasonably require to identify and locate the information. That does not mean that an applicant will have to supply information he or she cannot reasonably be expected to possess—file numbers, for example—but the request must be sufficiently well described for the authority to know what it is looking for.
Clause 2 defines the term "public authority" for the purposes of the Bill. Clause 3 creates a power to amend Schedule 1, the list of public authorities, by order. Clause 4 allows other public authorities, or private organisations carrying out public functions, to be brought within the scope of the Bill, by order. We are minded to consult organisations such as those running prisons under contract, or the British Board of Film Classification, for example, about designation under Clause 4.
Clause 7 of the Bill requires that a request for information should be in writing and state the name and address for correspondence purposes and describe the information sought. Requests made by electronic means will be treated as being made in writing if they are capable of being used for subsequent reference.
Authorities will be able to charge a fee for responding to a request for information, but under Clause 8 of the Bill that fee must be determined in accordance with regulations. Authorities will not be obliged to charge anything if they do not want to. A working draft of the regulations has been published.
Under Clause 9, authorities will have to reply within 20 working days of receipt of the request. Applicants will be able to choose the method of receiving the 826 information under the provisions of Clause 10. The authority will have to reply in that way unless it is not reasonably practicable for it to do so.
Clause 13 sets out the public interest disclosure provisions of the Bill. Even where an exemption applies, an authority must disclose information where the public interest in disclosure outweighs the public interest in maintaining the exemption. This is a key provision. We have been criticised for having too many class exemptions in the Bill. But most exemptions are subject to the public interest test in Clause 13. The test is: where is the balance of the public interest. If it lies in favour of disclosure, even though there may be an exemption, then the information will be disclosed.
Clause 15 requires an authority to give reasons for not disclosing information, whether under Clause 1 or Clause 13, unless to do so would result in the disclosure of exempt information.
Clause 16 creates the information commissioner and tribunal. Initially, the commissioner will be Mrs Elizabeth France, the present Data Protection Commissioner. An open competition will be held within two years of the Bill's passage through Parliament to fill the position full time.
Clauses 17 and 18 deal with publication schemes. These provisions have had somewhat of a Cinderella status during the scrutiny process. Yet the requirement for all public authorities to apply a scheme for publication—in effect to say what, when and how information will be published—is probably the most powerful push to openness in the Bill. Authorities will not be able to get away with weak or self-serving publication schemes. They will all have to be approved by the commissioner and she will ensure that they are strong and meaningful.
Part II of the Bill deals with exempt information. There has been much comment that there are 25 clauses dealing with exempt information in the Bill, whereas there were only seven exemptions in the White Paper. The exemptions in the Bill deal with some issues which were called exclusions in the White Paper and others which were called gateway provisions. So the comparison is not a fair one. What it is necessary to do is to compare the scope of the exemptions with those in the White Paper. The Bill does not range more widely in the scope of its exemptions than the White Paper except where necessary because of the greater range of bodies covered by the Bill. For example, the Bill covers Parliament and, therefore, Clause 32, exempting the disclosure of information which would constitute a breach of parliamentary privilege is necessary, and I am certain that your Lordships would agree with that. I do not propose to go through all the exemptions in detail, but simply to highlight a few where there has been debate.
Clause 28 creates a class exemption for information held for the purposes of a criminal investigation. The Government believe that a class exemption is necessary in relation to this kind of information in order to ensure that criminal proceedings are not jeopardised by the premature disclosure of 827 information and to preserve the criminal courts as the sole forum for determining guilt. The existence of this exemption will not prevent the disclosure of information where it is in the public interest for such disclosure to be made. The provisions of Clause 13 will apply. I should also point out that information about the conduct of investigations in general is not covered by this exemption.
Clause 33 provides a class exemption for the formulation and development of government policy. It is acknowledged that government must have time and space to evaluate policy options and that the premature disclosure of information of this kind can hamper the effective conduct of government. Nonetheless, a great deal of information is made available already to the public and will continue to be made available. The public interest disclosure provisions in Clause 13 will apply to this exemption and ensure that information will be disclosed where it is in the public interest to do so.
There has also been discussion as to whether factual and background information used in the decision-making process should be available as of right. No one disagrees that good government can only be achieved if there can be a full and frank exchange of views between Ministers, and between Ministers and their advisers. No one disagrees either that, wherever possible, factual information which is used to provide an informed background to decision-taking should be made available. But the dividing line between facts and opinions, or advice, is simply not that clear. Of course there will be many instances where facts, such as statistics, or research papers, will be freely available—and indeed may already be published documents. But there will be occasions where "facts" are part of the discussion or argumentation about options under consideration and where it will not be possible to disentangle facts from opinion or advice. On these occasions the disclosure of such information would, of itself, affect the decision-taking process. Thus there will be a need to withhold such information on a few occasions. To deal with that point, the Government have left the disclosure of factual information relating to policy decisions to Clause 13, albeit with a strong steer towards disclosure set out in that clause.
Finally, on the subject of exemptions, I want to emphasise the strength of the prejudice test. Prejudice is a term used in other legislation relating to the disclosure of information. It is a term well understood by the courts and the public. It is not a weak test. The commissioner will have the power to overrule an authority if she feels that any prejudice caused by a disclosure would be trivial or insignificant. She will ensure that an authority must point to prejudice which is "real, actual or of substance". We do not think that reliance on undefined terms such as "substantial" or "significant" is a sensible way forward. We do not know how they will be interpreted by the commissioner or the courts. We can never deliver absolute certainty, but we can avoid making uncertainty worse by adding ill-defined terminology into the Bill.
828 Part III of the Bill deals with the general functions of the Secretary of State, the Lord Chancellor and the information commissioner. The Secretary of State, in consultation with the commissioner, will be required to lay before Parliament a code of practice in connection with the discharge of authorities' functions under Part I of the Bill.
The code of practice cannot be finalised until there is a commissioner in place with formal powers to consider any draft. However, my right honourable friend the Home Secretary has placed copies of a draft of the code which represents work in progress in the Library of the House. I am aware that shortly the Lord Chancellor hopes to do the same with his code dealing with the keeping, management and destruction of records.
Clause 46 of the Bill gives the commissioner extensive powers to promote good practice in relation to the provisions of the Bill. Clause 47 permits the commissioner to issue recommendations as to good practice. Clause 48 requires the commissioner to lay a report before each House of Parliament annually. It also gives the commissioner power to lay further reports before Parliament as she sees fit.
Part IV of the Bill deals with enforcement. The commissioner must, subject to certain limited exceptions, reach a decision on any complaint made to her about the failure of an authority to comply with Part I of the legislation. The commissioner may also investigate an authority on her own initiative under Clause 51 and issue an enforcement notice if she finds an authority in breach of its obligations. Under Clause 50 she can issue an information notice to force an authority to provide the information necessary for her to reach a decision in a case. Public authorities must comply with notices issued by the commissioner. A failure to comply may be reported to the court under the provisions of Clause 53 and that failure may be dealt with as a contempt of court.
There are appeal mechanisms for both public authorities and applicants against the decisions of the commissioner. The appeal is to the tribunal under Clause 59 of the Bill.
Clause 52 sets out the exception to the duty to comply with decision or enforcement notices. This is the so-called executive override provision. It is important to note the limitations on this provision and the amendments which my right honourable friend the Home Secretary announced would be tabled in this House at Committee stage. First, this is not a general override of the commissioner's decisions; it applies only to decisions taken under Clause 13. Secondly, the Minister must explain publicly why he has chosen to disagree with the commissioner. Thirdly, the decision is subject to judicial review and the commissioner will have the locus to seek such a review. Thus, this is not an easy provision for Ministers to use. Moreover, we are committed to tabling an amendment at Committee to restrict the use of the override to Cabinet Ministers or the Attorney General and to explore ways to reflect on the face of the Bill that the decision to use the 829 executive override will be taken collectively. We are also looking at how the provision relates to local authorities.
This provision and the amendments, and the further consideration offered by my right honourable friend the Home Secretary, were welcomed in the other place. I hope that your Lordships will also welcome the Government's willingness to listen and, in due course, will welcome the consequent amendments.
Part VI of the Bill ensures that the disclosure regimes under the Freedom of Information Bill and the Public Records Acts are consistent with each other; in particular, it disapplies many of the exemptions at the 30-year point.
Part VII of the Bill amends the Data Protection Act 1998. Clauses 67 and 68 extend the right of subject access in relation to public authorities to non-structured manual files, thus giving a much wider right of subject access than currently applies.
Part VIII of the Bill deals with miscellaneous and supplemental provisions. Clause 73 gives the Secretary of State the power to make regulations to enable the United Kingdom to ratify the Aarhus Convention on access to environmental information. These regulations will replace the existing Environmental Access Regulations made under the European Communities Act 1972. The new regulations will provide wider access than under the current system. We have taken the decision not to integrate the provisions of the convention into the Bill itself. However, the Bill's provisions will continue to have an effect on access to environmental information. For example, if information is not available under the new regulations the provisions of Clause 13 of the Bill will require disclosure if it is in the public interest.
Clause 74 provides an order-making power to enable statutory provisions which restrict the disclosure of information to be amended or repealed.
I draw your Lordships' attention to the commencement provisions in Clause 84, in particular subsection (3). The provisions of the Bill must be brought into effect within five years of Royal Assent. This is a failsafe provision. It is the Government's intention to bring the legislation into force as quickly as possible. It will take some time to get the commissioner's office up and running. Most of the 50,000 or so public authorities to be covered by the Bill will need time to get systems into place and to train staff. However, I can assure your Lordships that there will be no backsliding. Central government already operate an openness regime. I expect that central government at least will be covered by the Bill's provisions as soon as the commissioner indicates that she is ready to enforce the legislation.
This is a good Bill, and with the amendments proposed by the Government it will be an even better Bill. For the very first time this measure will give the people of this country a right to know. It compares well with overseas legislation. Each country must determine for itself where to draw the line between competing rights, such as the right to know, the right to privacy and the right to confidentiality. Legislation 830 in each state must reflect the legal systems and administrative traditions prevailing in that state. The balance of rights will not be the same everywhere. We have a Bill which is fully retrospective, unlike Ireland, and covers a huge range of organisations including the police, unlike Ireland. The Bill also provides access to a tribunal, unlike the proposals in Scotland. There is free access to the commissioner, whereas in Australia access to the administration tribunal requires the payment of a fee, and strict time limits on response times, unlike Canada where many people have to wait months for the information.
The right to know, while it cannot be unfettered, has long been neglected in this country. The party opposite did nothing to promote a statutory right to know; indeed, it has consistently opposed such a move. At the last election its line was that freedom of information was of interest only to left-wing busybodies. No doubt a different line will be heard this morning from the party opposite. This Bill gives parents the right to know how schools apply their admission criteria, how health authorities determine the health care priorities for their areas and how administrative decisions over a very wide range of issues, such as planning, immigration and the award of grants, are taken. Everyone will benefit from this Bill. It will deliver a more responsive, better informed and accountable public service. I commend the Bill to the House and ask that it be given a Second Reading.
Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)
§ 11.57 a.m.
§ Lord Mackay of Ardbrecknish
My Lords, I am sure that we are all grateful to the noble and learned Lord, Lord Falconer of Thoroton, for his explanation of the Bill and the various amendments that he proposes to table as a result of consideration of this measure in the other place, including pressure from his own Back-Benchers who were less than satisfied with it. It is a little ironic that the Government have selected Maundy Thursday for the Second Reading of this Bill, safe in the knowledge that not only will your Lordships' House be a little thin in attendance but newspapers will be a little thin in reporting this matter and even less will be read about it by the citizens of this country who are on holiday over the weekend. I suggest that that is a good start for open government.
The very drafting of the Bill seems designed to put off everyone other than lawyers. We must grasp the nettle of writing Bills in plain English so that they can be understood by the average, intelligent reader.
I am pleased that a number of noble Lords with great interest in this subject are to take part in the Second Reading of this Bill. I single out my noble friend Lord Hunt of Wirral who introduced the Code of Practice on Access to Government Information in 1994. I am also pleased that it is the noble and learned Lord, Lord Falconer of Thoroton, who deals with this important Bill. With a member of the Government as senior as the noble and learned Lord in charge of this 831 Bill, we can be confident that he will listen to the argument and, if he is convinced by it, that he will have the authority to make changes.
We shall be looking for changes. Indeed, those Members of another place who took part in the debates on the Bill clearly expect us to make changes. No less a person than Tony Benn said:Whether we have to depend on the House of Lords is a slightly painful thought for me because, as a representative of public opinion, the House of Lords is very shaky".—[Official Report, Commons, 5/4/2000; col. 1001.]We need to see whether we can prove to Mr Benn that we are far from shaky.
Perhaps the best piece of advice to your Lordships came on the same day from Robert Maclennan, when he said:The issue before us was debated extensively on Second Reading. It was then debated lengthily in Committee. During these debates, not one voice has been raised in the House in support of what is in the clause. Following the vote, whatever the Home Secretary may say about the House having spoken, I advise our colleagues in another place, however they may have got there, that the opinion of the House should be judged by what it has said".— [Official Report, Commons, 5/4/2000; col. 1012.]Indeed, the striking thing about the Report stage in the other place on 5th and 6th April was that apart from Government Ministers not a single voice was raised in the Government's support; from all sides came criticism and a demand that the Government should live up to the words of their manifesto and their White Paper. I remind the noble and learned Lord of what he said in his manifesto:Unnecessary secrecy in government leads to arrogance in government and defective policy decisions … We are pledged to a Freedom of Information Act, leading to more open government".Dr David Clark was appointed Chancellor of the Duchy of Lancaster and given the responsibility of translating that election pledge into reality. By December 1997, he had produced a White Paper, but, to put it at its kindest, the mice then got at not only the White Paper but Dr Clark, who was the subject of some disgraceful whispering campaigns up and down Whitehall, orchestrated by those mysterious sources—in reality, that army of political advisers that we have now become so used to. In football parlance, they got a result: exit Dr Clark; enter a draft Bill significantly watering down the proposals in the White Paper and in some aspects watering down the code of practice introduced by the previous Conservative government.
The Bill before us has some of that diluting removed—we have to admit that—but by no means all of it. Indeed, Dr Clark had this to say in another place:I am therefore concerned when some clauses appear to be weaker than the code, which I and the rest of the Cabinet had rejected. I tell my right hon. Friend the Home Secretary that it is incumbent on us to ensure that the clauses are at least as good—in my opinion they should be better—as what was provided by the code".—[Official Report, Commons, 5/4/2000; col. 1013.]What should be our guiding principle when we look at the Bill? My honourable friend in another place, Richard Shepherd, has a pedigree on this issue that puts us all, including the Government, to shame. He put the test far better than I can, when he said in the Second Reading debate on 7th December: 832The principle of freedom of information—the presumption that information should be available—is fairly simple. All information should be available unless it causes serious harm. The question that follows from that is, how do we weigh that serious harm? People like me have, for a long time, advocated that decisions should be taken on a case-by-case basis—not by classes, because those, as has been pointed out by hon. Members from both sides of the House, produce absurdities".—[Official Report, Commons, 7/12/99; cols. 769–770.]Dr Clark said on the same day at col. 740:The system that I wanted was clear. There were no class exemptions, and although there were some exclusions, access to other information was based on the issue of substantial harm, and that would have been a better way to proceed"."Serious harm" or "substantial harm" have been diluted not just to "harm" or even to "serious prejudice", but simply to "prejudice". We want to explore that.
I heard the noble and learned Lord pour cold water on these semantics, but it is interesting to quote from the document produced by the Scottish Executive, which I gather is largely manned by the same party as mans the present Government. It said, at paragraph 4.11:We propose that the harm test be demanding and that it be whether disclosure would, or would be likely to, substantially prejudice the matter set out in the exemption in question. Our use of 'substantial prejudice' is intended to make clear that information covered by a content-based exemption should be disclosed unless the prejudice caused by disclosure would be real, actual and of significant substance".We shall want to explore why the Labour Government here and the Labour Government in Scotland are taking a significantly different attitude to these words.
Not only does the Bill make class exemptions, but, despite what the noble and learned Lord said, it makes more of them—24 to be exact—than the Conservative government's code, which had 15; more than the draft Bill, which had 22; and more than the White Paper, which had a mere seven exempt categories. The noble and learned Lord explained why that should be so, but I am sure your Lordships will want to explore further what is the justification for each and every class.
Although we shall be able to agree that in defence, in national security, in crime and in a number of other matters there will always be information that must rightly remain secret, there is much information in every one of those classes that could be easily be made public. The code said:The approach to the release of information should in all cases be based on the assumption that information should be released except where the disclosure would not be in the public interest".Your Lordships will want to test the Bill against that kind of approach.
I also look forward to the speech of the noble Lord, Lord Armstrong of Ilminster, because his views will be particularly helpful when it comes to the issue of the formulation of government policy. I start by saying quite clearly that I wholly accept that internal policy documents, advice from civil servants to Ministers, the responses and questions that flow between Ministers and officials, and the discussions between Ministers, should not be released. There is a wealth of 833 background factual material which leads into those policy discussions and decisions which can, and should, be released. Yet the Bill resolutely sets its face against making any distinction between advice and the information on which it is based.
The noble Lord, Lord Butler of Brockwell, the former Cabinet Secretary, in his evidence to your Lordships' Select Committee, said—this is to be found on page 58 of the committee's report on the draft Bill:when we were coming up to the 1997 election, knowing what government policy was in this matter, my senior colleagues and I gave some thought to how we could regularly structure submissions to Ministers in a way that would enable us easily to separate the background which was publishable from, as it were, the subjective advice which was confidential. It would take a lot of training and changing practice to do that, but I think that people could very readily adapt to that".So a very distinguished former Secretary to the Cabinet thought that it was perfectly possible to distinguish between advice and information, and that a class exemption covering the whole lot was not necessary.
I find it particularly amusing that the Government when they were in opposition were very happy to disclose policy papers that fell into their hands by obscure routes. They did not send them back to us when we were in government, saying, "These are policy papers. They should not be disclosed, and we will keep them secret". No, they waved them about, and many of us bear some of the scars of those disclosures, on which Mr Robin Cook, in particular, was very keen, as I recall. They are not even slow at leaking policy papers in government, except that I think it is called "spin". We hear it almost every morning on the "Today" programme, before decisions are announced to Parliament. We shall want to test their defences on this. Frankly, I do not think that we shall be very impressed. We shall be looking for some movement from the noble and learned Lord. We shall certainly want to judge the other class exemptions, and we shall need a lot of convincing before we agree class exemptions rather than a "harm" test for certain types of information.
I move to the commissioner and his powers and to the question of who can override him. The Government propose to merge the information commissioner's job with that of the Data Protection Registrar. I can understand the argument for doing that, but equally I can understand the argument against having the same person ensure that information is kept private as is asked to ensure that we have a right to know. I understand that it is an issue which has been debated in other countries which have freedom of information Acts, and that different solutions have been arrived at. As your Lordships know, I am not one of those who think that because another country does it, it must inevitably be doing it better, and we should follow. But I certainly think that we ought to discuss in your Lordships' House exactly what is the right way for us to approach this issue. However, who does the job is tied in to the process of appeal, either by a citizen who is refused information or by a government department or other body which does not wish to divulge information.
834 I shall need to be persuaded that the Minister, even the Cabinet Minister, who does not wish to obey the commissioner, should be able to make that decision. Perhaps we should follow New Zealand or, closer to home, Scotland, and insist that decisions should be made by the Cabinet collectively.
In recent weeks your Lordships have been concerned about the assertions by Government Ministers that their Bills are compatible with the convention rights. The noble and learned Lord, Lord Falconer, has done so in the case of this Bill. Yet whenever we probe whether or not that assertion is correct, we are told that it is confidential and that, traditionally, the legal advice to governments is not divulged; in other words, debate is stifled. I think that it is time to question that tradition in the light of the Government's desire for open government.
My last point concerns the purpose clause issue. There was a unanimous call in the other place for such a clause. The call was not heeded by the Government because the silent sheep trooped into the Lobbies to prevent a purpose clause. We have had some constitutional Acts already in this Parliament. In many ways, they have had purpose clauses. The Scotland Act states baldly in Section 1(1):There shall be a Scottish Parliament".That seems a pretty positive purpose clause. Nearer home for your Lordships, although not for myself, the House of Lords Act states in Section 1:No-one shall be a member of the House of Lords by virtue of an hereditary peerage".There is a purpose clause (if I may call it that) at the beginning of the code. In its report in July 1999, the Public Administration Select Committee recommended one. In her response to the consultation document, Mrs Elizabeth France, the Data Protection Registrar, who, as the Bill stands, is to become the information commissioner, argued that a straightforward purpose statement in the Bill would be helpful to all. I think that your Lordships should consider inserting such a clause.
This Bill has had a long passage from the code introduced by the Conservative government, to the White Paper produced by Dr Clark, to the draft Bill, and now this Bill. Interestingly, despite all these stages it has few friends outside the Government. Some have called it the "Freedom from Information Bill". I would not be quite so unkind. However, in my researches for this debate, and on this issue, I got hold of the Lord Chancellor's Department's guidelines on the Code of Practice on Access to Government Information, Second Edition 1997; and I wondered whether I should reconsider my charitable position. There are a number of completely blank pages. They could be a printer's error. But—perhaps this is more sinister—some other pages are blank but for a very few words:This page deliberately left blank".I wonder whether that sums up some parts of this Bill. Perhaps I may suggest to your Lordships that we shall have to fill in those pages.
§ 12.12 p.m.
§ Lord McNally
My Lords, I start by welcoming both the tone and tenor of the speech of the noble Lord, Lord Mackay. I feel that we may have much in common in Committee.
I thank the many bodies which have sent briefings for today's debate. Did I see a shiver down the Minister's back? They range from the Campaign for Freedom of Information itself to the CBI, from the Consumers' Association to the Open Space Society. All such briefings are immensely helpful and, if I do not cover all points raised today, I promise those organisations that submit briefings that we shall consider the possibility of raising matters in Committee.
This day seems to have been a long time coming. I share with the noble Lord, Lord Mackay, our admiration that the Government have found time to squeeze it in on this Thursday before the Easter Recess.
When the Labour Party won its landslide victory in May 1997, most political observers expected that at long last a quarter-century-old pledge to introduce a freedom of information Act would be quickly redeemed. After all, the pledge had been in every Labour electoral manifesto since 1974. It was a key element in the pre-election Constitutional Committee report drawn up by the Labour Party and the Liberal Democrats and chaired by Robin Cook and Robert Maclennan, a committee on which I sat.
It was always clear on that committee that an effective freedom of information Act was to be the jewel in the crown of successful constitutional reform. The crux of debate today is on Clause 34 of the Bill, "Prejudice to effective conduct of public affairs". Where we part from the Government is that they still believe that the effective conduct of public affairs requires too much secrecy. We believe that effective conduct of public affairs comes from accountability and transparency. Ministers may deny it; but a profound change has taken place in the Government's attitude to freedom of information since taking office. We are told on good authority that Mr Alastair Campbell can now describe priority given to constitutional reforms only in terms of obscene expletives. Even Mr Blair has apparently cooled to the freedom of information idea on the advice of his old friend Bill Clinton who has found freedom of information American-style something of a burden.
So where exactly are we now on freedom of information? As the noble Lord, Lord Mackay, indicated, the Bill has had a rather worrying ancestry. Immediately after the general election, the responsibility for freedom of information was put in the hands of the Cabinet Office and the Chancellor of the Duchy of Lancaster, David Clark. He produced a consultation document, Your Right to Know, which was widely acclaimed by all those who had campaigned for a freedom of information Act as a principled and progressive approach to the task at hand. Indeed, so principled and progressive was Dr Clark's approach that he was promptly sacked 836 from the Cabinet. Responsibility for freedom of information was transferred to the Home Office. I predicted at the time that putting the present Home Secretary in charge of freedom of information was like asking Count Dracula to look after a blood bank. That prediction has proved true as the Home Secretary has drained the life blood from the Clark White Paper.
The decision to move freedom of information from the Cabinet Office to the Home Office was strange in any circumstances. At a stroke the task was moved from an office with general oversight over Whitehall and a specialist Minister to one of the most overworked and accident-prone departments of government. The suspicion from the very beginning was that Jack Straw's brief was to recapture the ground which the Clark White Paper had given away. Why this change of heart? It is an interesting Catch-22 situation that, because we have no freedom of information Act, we know the views of the various political parties, interest groups and pressure groups but have no idea what advice has been given to Ministers by the mandarins of Whitehall. Perhaps the contribution of the noble Lord, Lord Armstrong of Ilminster—a mandarin's mandarin if ever there was one—will enlighten us on that.
All that we know is that between the departure of Clark and the publication of Straw's own discussion document, and the draft Bill in the spring of 1999, the Government did a quick U-turn on the road to Damascus. Instead of being a flagship Bill of new Labour's commitment to open government, it took on more and more the appearance of a damage limitation exercise. Let us hope that the presence of the noble and learned Lord, Lord Falconer, here today is a sign that the Cabinet Office is fighting back against the forces of darkness. After all, the Bill before us is redeemable and not without some merit. It recognises for the first time a statutory right to information in place of the previous effective presumption in favour of secrecy. Indeed, it was the breakdown of what many acknowledge as a culture of secrecy, not only in Whitehall but through British government at all levels, which was one of the key motivating factors behind reform.
The public cannot enjoy their full rights; nor can elected representatives bring the executive and bureaucracy to full account without a right to know the information on which decisions are based.
The Bill also extended coverage of public authorities far further than any previous non-statutory code or guidelines. The wide application of the Bill to central and local government activities and public authorities is a major step forward. After all, it is not by selling arms to Iraq that most citizens come into contact with government. It is often the petty injustices and the high handedness of minor bureaucrats which often outrage and alienate Mr and Mrs Joe Public.
I am aware that a Freedom of Information Bill may seem to some no more than an anorak's charter, of interest only to the Guardian leader writers and the Campaign for Freedom of Information. But I do not believe that. The battle lines which are being drawn 837 here today in the House of Lords are at the dividing line between those whom the noble and learned Lord, Lord Hailsham, described as an "elective dictatorship" and accountable, democratic parliamentary government. Thus the Bill before us is an important test of the new House of Lords.
The Government have Whipped this measure through another place against the advice of some of their own best informed supporters. The freedom of information rebels in the Commons from the Government's own Benches know that this Bill fulfils neither their manifesto commitments nor the promise of the Clark White Paper. It is a disappointment in its present form. Given that I have described the Bill as a disappointment, Ministers are entitled to ask, "Well, what would you do about it?". As noble Lords will know, my party's slogan is,We are the Liberal Democrats; we are here to help you".Option A, to be considered, would be a return to the approach and philosophy of the Clark White Paper. Option B would be for the Government to read carefully the consultation document produced by the Scottish Executive—where the Liberal Democrats have some influence—and called An Open Scotland, which is much truer to the spirit of our shared manifesto commitments and to the Clark White Paper than the Bill now before the House.
Option C would be to accept amendments to this Bill, which we shall move in Committee. They will cover the following concerns. It is our view that the Government should be required to release the facts behind policy decisions to improve the quality of debate. For that reason the class exemption for quality information in Clause 13 is unacceptably broad.
First, we would favour allowing the expert analysis of facts and the release of advice from Law Officers subject to a test of simple prejudice. We would also accept the case for the release of different policy options subject to a prejudice test. Advice regarding the options would not be released, but broadly our view is that Ministers and their advisers should not be required to discuss policy in a goldfish bowl, but the basic background information should be made available to the public on request.
Secondly, there is the harm test. In our view the Government's original White Paper was right to propose that information should generally be withheld only if its disclosure would substantially harm specific interests. As the noble Lord, Lord Mackay, has indicated, I believe that we both shall be returning to that in Committee.
Thirdly, we have considerable concerns about the possible working of Clause 28. I listened to what the noble and learned Lord, Lord Falconer, said on that. There is concern that, for example, the Lawrence family in London or the families of those killed in disasters could be denied information relating to any investigations which looked into the question of whether grounds existed for a prosecution.
838 Finally, Clause 34 is obnoxious. It vitiates against the entire working of the Bill, invoking as it does thereasonable opinion of a qualified person",that person being in most circumstances the Minister, and disclosure of the opinion would be likely to prejudice the effective conduct of public affairs. A decision to conceal information based on the reasonable opinion of such a qualified person would only be open to the very narrow possibility of judicial review; for example, if that opinion were proved to be irrational.
As the Minister indicated during Report stage, Jack Straw proposed to amend the Bill to confine the veto power over the information commissioner's decision to a Cabinet Minister and indicated that the decision-making process would involve collective consideration by Ministers. We believe that the information commissioner should have the last word in judging whether or not the balance of public interest should require disclosure.
If, however, the Government are adamant in refusing the commissioner that power, we should at the very least follow the New Zealand model under which the decision has to be taken collectively by the Cabinet. In practice, in New Zealand when the law allowed a single Minister to block disclosure there were many cases of obstruction, but since the law was amended to require collective approval, I understand that the ministerial veto has rarely been used.
I draw attention to two relevant quotes from Select Committees that looked at this Bill. The first is from our own House of Lords Select Committee, on which I had the honour to sit, under the chairmanship of the noble and learned Lord, Lord Archer. It said,If the ultimate decision whether the information is exempt from such a right of access is made by a Government Minister or public authority rather than by an independent arbiter, the law may he regarded as a statement of good intentions, but is not a Freedom of Information Act as the term is internationally understood".In the Commons the Public Administration Committee said,In this crucial sense the Bill continues the present discretionary system of the code of practice—it is 'open government' and not 'freedom of information'".The information commissioner must have powers similar to those of his counterparts in Ireland and New Zealand to order disclosure. I know that the Select Committee of this House was most impressed by the evidence we received from the Irish commissioner on this matter and by a related consequence. The Irish commissioner was under no doubt that his having the power to order disclosure made for anticipatory compliance—that is, the bureaucracy knew that the game was up and started to act in a more open way rather than to resist disclosure. The Irish commissioner believed however, that having inherited the culture of secrecy from the British, it was also necessary to train their bureaucracy in the ways of open government.
Disclosure is not just by Act of Parliament; it is also an attitude of mind. It would be nice to believe that the Whitehall Civil Service, government agencies and 839 other public bodies were already putting in place mechanisms to train staff in the culture of open government, rather than combing the Bill like accountants do a Finance Bill for exemptions to be exploited.
We would also urge the Government to consider again a purpose clause. I believe that we can make common cause with the noble Lord, Lord Mackay, on that matter. Section 4 of the New Zealand Act states the purpose of the Act as being to,increase progressively the availability of official information to the people of New Zealand".That clause has been useful in helping to ensure that there is usually a presumption in favour of disclosure by the ombudsman and the courts. Again, it is not just a matter of what is in the Act but how the Government behave. I really do not understand why they are hesitating about a purpose clause in the Bill. In introducing the Bill today, the Minister has tried to imply that the Government are the saints not the sinners as regards freedom of information.
In closing, I ask the House to judge their actions against the seven deadly sins test. In December 1997, Mr Justice Kirby, president of the International Commission of Jurists and a senior Australian judge, advised those approaching freedom of information to test government intentions against seven deadly sins. I shall repeat them to the House. He warned against "strangulation at birth". He said,Do not underestimate the danger to your [freedom of information] proposals. Many a White Paper has come to nothing or emerged into final legislative form a pale shadow of its former self. The longer the delay in the passage of a [freedom of information] Bill the greater the risk that Sir Humphrey will have the last laugh yet again".We shall hear from Sir Humphrey later.
As regards retaining secrets, the judge said,Pretend to support [freedom of information] but provide so many exceptions and derogations from the principle as to endanger the achievement of a real cultural change in public administration".His third deadly sin is exemptions and,surrendering too many requests for exemptions".The fourth deadly sin relates to costs and fees:Rendering access to [freedom of information] so expensive that it is effectively put beyond the reach of ordinary citizens".I believe we can exempt the Government from that sin. Fifthly, there is decision-making; namely,Undermining the essential access to an independent decision maker".The next sin is interpretation. The judge said,the judiciary, and not the politicians, may be answerable".But remember that,judges also grew up in the world of official secrets and bureaucratic elitism".Finally, there is the changing administrative culture. Beware of believing that,the passage of freedom of information legislation is enough of itself to work the necessary revolution in the culture and attitudes of public administration".840 I ask your Lordships to remember that those warnings were given two years before the Clark White Paper; six months into a Labour Government and not after 1,000 days, as we are today. The Minister has promised to listen and, if convinced, to amend. I believe that that is a great opportunity for the House of Lords. It is the Minister's failure to resist Mr Justice Kirby's seven deadly sins of which he stands accused today. It is the task of this House to save the Government from themselves and return them to the path of righteousness, a duty we shall carry out in Committee.
§ Lord Campbell of Alloway
My Lords, before the noble Lord sits down, perhaps I may ask him a question. Does he agree that with each Bill the mandatory legal advice should be supplied on which the statement of compatibility with the Human Rights Act is given?
§ 12.31 p.m.
§ Lord Williamson of Horton
My Lords, I intervene in the debate, having spent about 40 years handling information in the public service, ever since as a very young official I received with trepidation my first Prime Minister's personal minute which related, I recall, to a possible bounty on the tails of squirrels.
I welcome the Government's decision, foreshadowed in the manifesto, to present a Freedom of Information Bill and the fact that it has arrived at the starting gate in this House. Over a long period, public authorities in many countries have been hesitant, not to say suspicious, about wide-ranging requirements to make information available, principally because it was thought—in some cases, no doubt rightly—that it would complicate the work of those authorities or of the governments themselves, or be likely to generate pressure before the arguments for or against a decision had been fully explored within the public service.
The Bill is therefore a step forward, creating a system under law by which a lot of information in the possession of public authorities will be available to those who seek it. I want to stress that point because there are also important points on which I hope the Bill will be improved during its passage through Parliament, in particular through your Lordships' House.
Despite my career as a civil servant—or, worse still, a faceless bureaucrat—my own views go very far in the direction of greater openness in the availability of information. So far, indeed, that I fear that it may be at least 2025, when perhaps newer than new Labour will be gracing the Front Bench here, before I see them implemented. I go even further than The Times in its editorial entitled "Mournful ghost". I am more transparent than the ghost! But I shall be content if there is some modest further improvement in this direction during the course of the passage of the Bill, and I shall come on to those principal points.
841 First, however, I want to stress that the Bill is complex and the scope of some of the exemptions is not always easy to follow or to assess. Since its purpose is to provide for the disclosure, for the benefit of the citizen, of information held by public authorities, there is a particular importance in reducing as far as possible the complexity and in making the Bill as far as possible intelligible to the citizen. It would be a sad day if, when a citizen wished to take benefit from this citizen's Bill, when enacted, he had first to take legal advice in order to understand the text and the scope of the exemptions. For example, if we asked the public whether they understood Clause 13(1)—and the Minister stressed the importance of Clause 13—on disclosure in the public interest, we would surely get a 99 per cent "No" vote. The noble and learned Lord the Minister would be in the 1 per cent, so he does not count! I realise that the codes of practice provided for in Clauses 44 and 45 and the general duty on the information commissioner to promote the following of good practice by public authorities will help. But it is none the less important that the legislation should be as clear as possible because the Bill presents a heavy legal system: inter alia through a possible application by a complainant to the commissioner for a decision; the notification of the decision to the public authority; the serving of an information notice by the commissioner, followed by an enforcement notice, with the possibility of appeals to a tribunal against a decision notice, an information notice or an enforcement notice; and the possibility for any party to an appeal to the tribunal to appeal to a court on a point of law.
I turn to the exemptions. I recognise that disclosure cannot be required for information relating to security, national security, defence and international relations; nor for personal information or information provided in confidence, in particular in commercial confidence. I am fully content with Clauses 21 to 25 and Clauses 38 to 41, which cover those exemptions.
I also accept that information which might prejudice actual or expected court cases should not be disclosed, but Clause 28, to which reference has been made, goes much wider than that, in particular because it refers to information which,has at any time been held",by the public authority for investigations and proceedings. I am sure that we shall come back to that point later in the course of the Bill.
We come to the crux of the matter: Clauses 33 and 34 which deal with the non-disclosure of information relating to the formulation or development of government policy and information which might be judged to prejudice, or be likely to prejudice, the effective conduct of public affairs. I believe that the risk from the disclosure of information held within public authorities in relation to forming and developing government policy is markedly less than is currently supposed and is offset by the broader advantages of transparency in government.
I am also in what appears to be the minority which believes that we do not have to protect the free and frank provision of advice, or the free and frank 842 exchange of views, by a clause which, potentially at least, could give rise to a complete exemption from disclosure for any information which,would be likely to inhibit",such advice of exchange of views. This text is not a very tough test.
I would be prepared to reverse the situation and to replace Clauses 33 and 34 by a system under which all the information would be open to disclosure unless the Minister certified that disclosure would cause "serious harm"—a phrase which is easily interpretable—to the effective conduct of public affairs. That would be a substantial reversal of the onus of proof and a much stricter test. However, I agree with the Government that such a decision both in the current text and in any amended text would need to be made by the Minister and not by the information commissioner.
It is an advantage for the agreed objective of greater freedom of information for the public that the Bill covers a huge range of information holders, not only in government departments but also in local government, the National Health Service, education and the police. That is much to be welcomed. In addition, there are also in Schedule 1 about 440 other public bodies—quangos or other advisory committees—which are probably doing good work and are correctly included here, but demonstrate how far the process of government by quango has gone. The public may be surprised to find that bodies such as the Advisory Committee on Borderline Substances, the British Potato Council, the Advisory Committee for the Purchase of Wine and the Subsidence Adviser are to be required by Clause 17 to adopt and maintain schemes which relate to the publication of information and to be approved by the information commissioner and to publish those schemes. Of course, that can be simplified to some degree by the use of model publication schemes, but why do not these bodies simply disclose everything, if requested to do so, subject to the exemptions laid down in the Bill?
We must also guard against the risk that, in formalising in law the requirements on the disclosure of information and the exemptions from disclosure, we may create a certain element of defensive caution because those responsible do not want to be blamed for releasing information which may be thought to be covered by the exemptions. The information commissioner will have to pay particular attention to that point.
I speak from personal experience in this matter. When I first had responsibility as a secretary-general in Brussels, there was no formal code and the practice of disclosure of information was almost total. I believe that in my first five years there I never refused a request for information, although there may have been one or two refusals to disclose information of commercial confidence relating to EURATOM or to court proceedings.
However, when a code of practice was introduced which was in some ways similar to the Bill because it was justiciable, the first reaction of officials was to check whether information requested fell within the 843 exemptions and to seek to guard themselves against unauthorised disclosure. As the person who requested information which was refused could appeal to me as secretary-general, I saw that in practical action and on a number of occasions overruled the official decision.
I should add that the record of the European Commission as one of the most open institutions in the world remained, and we calculated that the record of disclosure of information to the public was similar to that of the United States authorities under their legislation.
The Minister will understand why, on the basis of my personal experience, I should like to see the exemptions minimised and clarified to the maximum extent possible.
§ 12.40 p.m.
§ Lord Hunt of Wirral
My Lords, first, I thank my noble friend for his very kind remarks. However, I pass them on to my noble friend Lord Waldegrave, who, with the then Prime Minister, John Major, was very much the brains and the spearhead behind the publication of the White Paper in 1993 and the code itself in 1994. When I took over as Chancellor of the Duchy of Lancaster in 1994, I and my successor, my noble friend Lord Freeman, did everything that we could to continue to strengthen the code.
I believe that we face a very interesting situation so far as concerns this particular Bill. We have it within our power to rise to the challenge put to us by the noble and learned Lord, Lord Falconer, to improve the Bill.
I go back to the code for a moment and say to the noble Lord, Lord McNally, that, although he was correct in saying that the obligation to produce a freedom of information Bill has been in every Labour Party manifesto since 1974 (when he was still, I believe, a member of the Labour Party), between 1974 and 1979 no Bill appeared. Perhaps I may pay tribute to a particular White Paper produced by that past Labour government in 1979. I believe that its correct title is Cmnd. 7520. It was a White Paper on open government which said that the then Labour government had reached the conclusion that, rather than produce freedom of information legislation, the best way forward lay with the production of a code.
Therefore, I pay tribute to the immediate past Labour government in coming to what I believed was a very sensible conclusion. Indeed, I am proud of the fact that when I was responsible for the code, and then the Civil Service code which I introduced later in 1994 and, indeed, the whole Nolan inquiry, complete emphasis was placed on bringing about the maximum disclosure of information and on giving the public access to all the information that we could possibly disclose.
Through the mouth of the noble and learned Lord, Lord Falconer, the present Labour Government said that a code is no good because it is only discretionary and one has to rely on the government to disclose. It is an interesting reflection of his lack of faith in his colleagues that he believes that, by continuing a code 844 under a Labour government, quite quickly it will become a worthless document. The previous Conservative government used the code as an opportunity to disclose a great deal of information. The result was interesting: many independent commentators have said that they believe that more information was disclosed under the code than will be the case under the present legislation.
Although the noble and learned Lord, Lord Falconer, had another opportunity in this debate to correct the situation, it was interesting to note that he did not deny that. He did not deny the fact that more information was disclosed under the code than will be disclosed under this Bill. He sought to attack the code as being a purely discretionary mechanism. I should be very interested to hear from him whether he believes that, once the present Bill is enacted, if it remains as it is, it would, as most independent commentators say, result in less information being provided. I believe that to be the case.
In trying to make sure that the public have access to the information that they need, the Government have now decided that there should be a statutory right. It is interesting to reflect for a moment on what my noble friend said should be our attitude from these Benches. We now face the situation of impending legislation on the statute book. Having won the general election in 1997, it is this Government's right to put legislation on to the statute book; but what should our view be? I hope that noble Lords will accept that my attitude—and, I believe, the attitude of these Benches—will be that, if there is to be an Act of Parliament, it must be effective.
Ideally, I would hope, as with the Civil Service code, that we could reach all-party agreement. Whether a party is in government or in opposition, there should be a co-ordinated and consensual approach to what is, after all, an Act of Parliament that will govern a very important and sensitive area; indeed, it will move the arena from Parliament to the courts. That is one reason why I have always been very nervous about a statute that gives freedom of information. I know that the noble and learned Lord, Lord Falconer, said that if one wants to go to the ombudsman, one must go through a Member of Parliament. But I believed that that was always a good safeguard. In addition, it always meant that a government were tested in the Mother of Parliaments as to whether or not they had done the right thing in failing to disclose information or, indeed, in disclosing information.
Now, of course, the arena will move from Parliament to the courts. That is why I am sure that, in trying to improve the Bill, we must make it fair, simple, concise and effective. I hope that noble Lords will not believe that I have changed my mind; I still believe that a code is better. However, being faced now with the fact that there is to be an Act, I believe that we must ensure that it works.
In my experience, the longer a party is in opposition, the greater its hunger for freedom of information. I say to the noble Lord, Lord McNally, that that is probably why his Liberal Democrat Party 845 is in a permanent state of hunger. However, I believe that normally in government one quickly comes round to the view that public access to information must be restricted. I hope that the noble Lord will at least accept that, after being in power for some 15 years, the previous government went against tradition and moved towards greater disclosure. However, now we must build on what we achieved before. We must ensure that, by good government, at least as much information is disclosed under this Bill when it becomes an Act of Parliament as was disclosed under the code. I believe that the previous government set an excellent example in that regard.
I should like to make three points. First, in setting out his challenge to us all, the noble and learned Lord, Lord Falconer, said that he would "give a fair hearing"—I believe those were his exact words—to amendments which sought to improve the Bill, provided that they were in accordance with the purpose of the Bill. But then the purpose, as he is seeking to define it, is only within the Long Title. I have never known a situation where a government have resorted to explaining the purpose of legislation merely by reference to the Long Title.
That is why I believe that my noble friend is right in saying that we should have a purpose clause. I was pleased to hear the noble Lord, Lord McNally, say the same. I hope that the noble and learned Lord will listen to that and perhaps, at the conclusion of this debate, indicate that the Government are prepared to sit down with the opposition parties to work out a purpose clause that would be clear and set out the objective of the legislation in terms which would make the matter very simple to everyone. So I hope that we shall have an effective purpose clause.
My second point lies with the second test which the noble and learned Lord, Lord Falconer, gave for accepting amendments; namely, that they should not undermine the ability of government to keep secret sensitive areas of information. The noble Lord, Lord Williamson, made a very valuable contribution when he gave from his European experience an example of what happens when you move from a code to something more strict and rigid. We must now turn our attention to making sure that we do not extend the exemptions so widely that they catch areas that would have been disclosed under the old code. We must make the test more narrow. My noble friend indicated ways in which that could be done. As the noble Lord, Lord Williamson said, there must be some evidence of "substantial harm" or "serious prejudice". Whichever phrase is used, there must be quite a rigorous test.
As noble Lords will know, I am a solicitor and I have received an excellent brief from the Law Society. There are two areas in which it wants to see exemptions mitigated to allow the greater disclosure of information. The first is in relation to Clause 28 and the second is in making sure that Clause 13 does not become a mechanism for preventing disclosure. In relation to Clause 13, the noble and learned Lord used the phrase that there was a "strong steer" for disclosure. But the courts require a little bit more than 846 a strong steer; they need clear language. I believe that there are ways in which we can improve the Bill from that point of view.
As regards my third point, I look forward to the speech of the noble Baroness, Lady Whitaker, because I remember all the excellent briefs that she used to give me when I was a Minister. I hope that she will acknowledge that, whenever possible, I erred on the side of disclosure. I look forward also to the speech of the noble Lord, Lord Armstrong, in that regard.
It is important to recognise that when you are a Minister, any brief you receive, particularly on an important decision, contains a substantial amount of factual background. That factual basis often created a sensible background against which to make the decision. I never understood why there could not be greater disclosure. When I was in the Cabinet, we tried to find ways of publishing that information more widely.
There has crept in a tendency to merge policy advice with factual background. I believe that with this legislation, it is possible that we shall revert to a situation (which Ministers found much more useful) of having the factual information clearly set out in a separate document from the arguments for and against, which, quite often, from a special adviser—although we did not have many of them; there are now many more—set out some examples of the political sensitivity of the decision. I can see that there must be some safeguard in relation to such documents, which are quasi-Civil Service, and I would also include the civil servant's own advice on the pros and cons of the decision from a policy point of view. That is particularly so where embarrassment or serious prejudice or harm may be caused to individuals. When I refer to embarrassment, I mean so long as the re is evidence of serious harm or serious prejudice. In Committee, I hope that we can find a way of ensuring that as much as possible of the advice to Ministers can be disclosed.
My final point is that there is, and has always been, a culture of secrecy around any government, whichever party is in office. That is a fact of life. In this House, we now have an opportunity to change that culture in a clear and emphatic way, as we tried to do with the code. We must make it clear to everyone that this Government, this Opposition, and this House are wedded to a culture of openness. We can demonstrate that by producing, in response to the challenge from the noble and learned Lord, a really effective Freedom of Information Act.
§ 12.55 p.m.
§ Baroness Hilton of Eggardon
My Lords, in this country we like to think that we live in a mature democracy which has served as a model for other nations. We used to claim that we had a unique and flexible constitution and that we were a shining example of a democratic relationship between people and government. That was, of course, always an exaggeration and we are still one of the most secretive 847 and paternalistic societies in the world. But I had hoped that this Bill would edge us some little distance towards greater openness and equity.
The White Paper raised our hopes and expectations of genuinely greater openness. But this Bill, alas, has much less to offer. Indeed, it is clearly not the offspring of the 1997 White Paper but rather a hybrid of the fears of civil servants and the caution of lawyers.
Politicians of all parties deplore the increasing apathy and lack of interest in politics shown by the public, with the consequent slow but steady diminution in the turn-out at local and even parliamentary elections. It is scarcely surprising when political decisions are made behind closed doors on the basis of facts that cannot be revealed apparently to the public. Therefore, people become cynical about politicians, both local and nationally.
Public assumptions about the secretive power of civil servants and officials are also common currency in this country, as exemplified by the TV series "Yes, Minister", its success being largely due to our knowledge of the ways in which bureaucracies muffle and obscure the truth and partly because it confirmed our worst fears about politicians.
If we wish people in this country to be involved in the processes of democracy and to discuss policy issues with insight and maturity, we must not leave them relying on the half-truths and distortions of the mass media, with their limited attention span and their need for sensation and confrontation. People in this country deserve to be taken into equal partnership with government and to be provided with the facts and background information upon which political decisions are made.
My experience of bureaucracies encompasses not only the Metropolitan Police but many negotiations with the Home Office and also as a student representative at Manchester University. All such organisations are self-protective and they close ranks in the face of anticipated criticism. They conceal and sanitise their proceedings, however innocuous, rather than reveal them to the public gaze.
During my time in the Metropolitan Police, I served under a variety of regimes and observed that, depending on the commissioner, the extent to which the force was willing to talk to the press and the public could be used as a measure, a barometer, of the extent to which we matured and developed. Thus, under Sir Robert Mark not only was police corruption exposed but we were also encouraged to talk to the press and public, which enhanced the status of the force and increased the confidence of individual officers.
Under David McNee, however, we were plunged back into the dark ages of total concealment, frightened to speak to the press. As a Chief Superintendent at Chiswick and Brentford, I was not even allowed to tell my local community how many, or rather how few, police officers I had to patrol the streets of Chiswick. The force stagnated, effectively, for five years.
848 Sir Kenneth Newman had a totally different attitude and dragged us rather reluctantly into the 20th century and the realisation that the public are entitled to know everything about their police service, provided, of course, that it does not hinder the investigation of specific crimes.
The inference I draw from that is that the public are entitled to know almost everything about the processes of government. This disappointing Bill fails to ensure that. If countries as diverse as Ireland, Australia and the United States can provide greater openness for their citizens, I do not understand why this country needs to be more secretive. Even Scotland appears to be moving towards greater openness.
The Bill could be improved in many ways. In particular, I too should like to see the insertion of a purpose clause. Indeed, surprisingly, I had backing on that this morning from the briefing of the CBI. The Bill needs to counteract the impression that it is largely about restricting the flow of information. It has so many negative restrictions and exemptions that it is likely to act more as an inhibitor than as an encourager of openness. Any official worth his salt would be able to find in the Bill a class exemption covering any piece of information that he wished to conceal. A purpose clause would provide a positive context for the rest of the Bill. It might encourage the idea that it is the duty of public servants to reveal rather than conceal information.
More important, and a matter upon which I hope the House will achieve consensus, is the ministerial override or veto. The information commissioner is far more likely to take a balanced and detached view of what constitutes "the public interest" and should therefore have the final say, except on matters of national security.
The exemption for commercial interests also seems too wide. When I was chairing the environment committee of the House and we looked at the European drinking water directive it was disturbing and much to our surprise to find that the analysis of effluent from factories could not be published because it constituted a commercial secret. Matters of public health should override commercial interests. If that had been so in the past, we might have avoided the scandals of asbestos, tobacco, BSE and nuclear discharges.
Finally, as I have already made clear, I believe that the provisions of Clause 34 on the facts and figures underlying the formulation of public policy are wholly wrong and contrary to what is appropriate in a mature democracy. I do not accept that facts and options cannot be untangled from opinion or advice. I hope that the Bill will be greatly improved during its passage through this House and not only by an unholy alliance of the parties opposite.
§ 1.2 p.m.
§ Lord Alexander of Weedon
My Lords, it is a real privilege to follow the speech of the noble Baroness. She combined her practical experience with a 849 commitment to principle. She also gainsaid any suggestion that concern about the Bill is a matter of party politics rather than concern for liberty.
I marvelled at the Minister, as I have before, when he suggested that this was a good Bill and, with his skilful advocacy, suggested that ministerial discretion would be sympathetically exercised in favour of disclosure. On the contrary; rarely, if ever, can a Bill whose title trumpets the cause of freedom have so acutely disappointed so many who care about liberty. It is all the more a cause of concern because over the past century the power of government, and its ever-deeper reach into our lives, has grown inexorably as never before in our history. We are so conditioned to the intrusions of the state and to raft upon raft of controls and regulations that it is hard to believe that the historian A J P Taylor could write that before the First World War,a sensible, law-abiding Englishman could pass through life and hardly notice the existence of the State beyond the post office and the policeman".In the area of law, there has been a direct and counter-veiling response to that accretion of powers. The development of administrative law as a check on executive absolutism, now admirably buttressed by the Human Rights Act, has developed a valuable separation of powers. In the area of politics, the widening of universal suffrage, the grant of voting rights to women and the lowering of the voting age to 18 have all enhanced democracy. But the right to freedom of information has so far been the Cinderella of our democratic rights. The "right to know"—as I believe it is properly called—has been fiercely resisted by politicians and bureaucrats striving to be less accountable to the public they nominally serve by shrouding their work in secrecy.
No profession has witnessed that obsessive struggle to maintain secrecy more vividly than lawyers. When I started at the Bar, all government information, however minor and harmless, was protected from disclosure in litigation by the blanket doctrine of Crown Privilege. Some 30 years ago, that granite-like monolith was chipped away at in the seminal case of Conway v. Rimmer. But for years afterwards civil servants fought like tigers every inch of the way to restrict the impact of that small step towards enlightenment. Fortunately, the late Lord Denning was even more determined to see fair play to our citizens. In the end, slowly, ever so slowly, we arrived at the modern, more civilised doctrine of public interest immunity which applies only if "disclosure will cause real harm". The test is, of course, more stringent than any that will be applied under the Bill.
It has not been obvious that any political party when in office has been over-concerned with the right of the public to know until comparatively recently. They have mostly been content to steer public opinion by selective leaks, whether of Cabinet disagreements or proposed policy. Not only is that nakedly self-serving, but it is all the more pernicious when at the same time the public are denied access to information which 850 government find it inconvenient to reveal. That combination—the light and the dark—makes for a highly concerning distortion of democracy.
So it was welcome, if now ironical, that it was the Labour Party which promised a freedom of information Act if they won the 1992 election. In the years which followed, the current Prime Minister took up the torch in opposition by asserting that,the first right of a citizen in any mature democracy should be the right to information".But once in government, the seductive lure of secrecy has prevailed and the once proud commitment has been steadily diluted.
Another irony of the Bill is that the principal bastion of our so-called "mature democracy" is meant to be the House of Commons. In 1994, the Conservative's code on openness was introduced. It was welcome, as my noble friend Lord Hunt has described. II was a first good step on the way. None the less, the Select Committee considering the Parliamentary Commissioner for Administration recommended in 1995 that we should go further and introduce a freedom of information Bill. What do we have now? A Bill, yes, but one which, as the Campaign for Freedom of Information and Charter 88 have said, would be weaker than the Conservative code. So perhaps not surprisingly, there was a dramatic lack of enthusiasm for the Bill in the other place. Some 36 Labour MPs voted against it, but it went through when the juggernaut majority prevailed. What do we expect in a democracy where a minority of voters can elect a government with a majority of 180? What can we expect where, as Mr Peter Mandelson put it bluntly soon after the 1997 election,Labour members of parliament have been elected in order to carry out the manifesto for which we have received an overwhelming mandate from the public".In other words, the duty of Members of Parliament is to show the unthinking obedience of the foot-slogging infantrymen. What can we expect when the Government have so far failed to implement their manifesto commitment to a referendum on proportional representation?
With that background, and being encouraged by what the Minister has said, I believe that during the progress of the Bill we shall not hear any ministerial assertion that radical amendments would do other wise than fulfil our role as the guardians of democracy. I hope that no one will tell us that if we stand up for the right to know we shall be going against the will of the democratic House and flexing our muscles too much. The Times was surely right when it said in an editorial:it is left to the Lords to breathe some living freedom into this mournful ghost".If I may continue for a few more minutes, I shall draw attention to a few areas in which, for me, the ghost clanks its chains most gratingly.
I view Clause 25 with some concern. It exempts any information likely to prejudice any aspect of foreign relations or the protection of United Kingdom interests abroad. What about arms to Iraq, or to Indonesia? What about our relations with Zimbabwe? 851 Suppose the information showed that the Government are compromising their commitment to an ethical foreign policy. No doubt it would be pleaded that any disclosure would create a prejudice and that such delicate relationships should be conducted huggermugger. No doubt, the more dubious the conduct, the greater the prejudice.
The same advice applies to Clause 26 which covers relations between the Government of the United Kingdom and our devolved institutions. Would we not be allowed to know whether the Government of the United Kingdom and that of Scotland had crossed swords over, say, whether Scottish Ministers should, as they have promised, introduce a far stronger Freedom of Information Bill?
Others have spoken about Clause 28, a class exemption which includes any information—even, as the noble Lord, Lord Williamson, said, relating to past activity—which is held by the police or the Health and Safety Executive. Surely, those are areas that require openness which may be crucial to creating or restoring public confidence. What about information on the impact of BSE or the fall-out from Chernobyl? Why have the Government overridden the clear recommendation of the Macpherson inquiry that said that it saw "no grounds" for a class exemption in that area? How can we deny an increasingly educated, demanding and diverse people information that may affect them or shape the choices that they may be entitled to make about the acceptability of risk?
Others have commented on Clause 33. In my view, it is not acceptable that Ministers should be entitled to deny us information about the facts on which policy is based, and yet they are entitled to refuse to deny or confirm that the facts and the information exist. Whose information is it anyway? Why cannot they tell us the facts?
Recently I saw a list of all those statutes and statutory instruments on which there has been a regulatory impact assessment. Presumably, the contents of the regulatory impact assessment, which have shaped policy, could be exempt from disclosure.
Clause 41, as the noble Baroness, Lady Hilton, said, merits a mention. That clause allows information to be withheld if it would prejudice any commercial interests. Material about potentially unsafe oil tankers, or about the risks of salmonella or listeria, or about malpractice in the selling of personal pensions could presumably be withheld. Powerful commercial lobbying will seek to persuade Ministers to keep information under wraps.
I had intended to speak about the power to override the information commissioner, but I welcome what the Minister said about potential amendments. I too hope that, as in New Zealand, if there is to be such a ministerial override, it will be a collective Cabinet decision.
§ Lord Falconer of Thoroton
My Lords, I apologise for interrupting the noble Lord. Helpfully, he gave us a list of his particular concerns about the Bill. He went through a number of the exemptions, in particular that information is exempt,if its disclosure under this Act would, or would be likely to, prejudice,(a) relations between the United Kingdom and any other State".I understood him to complain about the extent of that exemption, which is a prejudice-based exemption. I have never heard anybody suggest that there should not be some such exemption in relation to international relations based upon prejudice. I wonder how the noble Lord would put his complaint in relation to that.
§ Lord Alexander of Weedon
My Lords, I can see a government saying, if they are engaged in a delicate negotiation that may lead to a compromise with another state, that the nature of that negotiation, that compromise, should not be disclosed. I mentioned arms to Iraq, arms to Indonesia, and relations with Zimbabwe. I should have thought that that is, at least, a classic illustration of a "serious harm" test.
I do not remember seeing for some time a Bill that has been widely condemned by opposition parties, by committees of both Houses of Parliament, by groups ranging from the British Safety Council, to the Federation of Small Businesses and the Consumers' Association, and, I believe, by implication almost, by the Prime Minister. In 1996, he said,we want to end the obsessive and unnecessary secrecy which surrounds government activity and make government information available to the public unless there are good reasons not to do so".The truth is that Whitehall has got at the substance of the original proposals in the Clark White Paper, eaten it away and left only the husk, or, as the Australians would say, they have "white-anted" the Bill.
The Minister and I are from a profession whose leitmotif is the championing of the individual, of fairness, and of openness against an over-mighty state. He too will remember the great jurist—he may even remember the name—who once remarked that,Sunlight is the best disinfectant".I do not know whether the Minister's heart is in the Bill, but I cannot ask him, as under Clause 34 any indication that he is unenthusiastic about the government line would be exempt information.
I hope at least that the Minister will not be too sad if the House does its duty, strikes a blow for democracy, and delivers a Bill that accords with the expectations on which the public were sold the Government's manifesto commitment. In effect, if he invites the House to do so, or accepts it, ironically that will implement the Salisbury/Addison convention because to give effect to the manifesto, something is needed. As The Times said, this is a manifesto commitment which so far has been quietly strangled. I hope that this House will rapidly amend the Bill.
§ 1.18 p.m.
§ Baroness Thornton
My Lords, I hope that the noble Lord, Lord Alexander of Weedon, will not mind me saying that in my view this process is about fulfilling the election manifesto. I believe he may have misread the nature of this debate. In his opening remarks, the Minister invited the House to participate in improving and amending the Bill. In my view, that is the process upon which we have now embarked.
In the two years since I joined your Lordships' House, I am sure noble Lords will have realised that I am an enthusiastic supporter of New Labour and the work of the Government. All my life I have been an active supporter of more openness in government. I congratulate the Government on the way in which they have made practical efforts to make their dealings more open. I love the website "opengov.org" and use it all the time. I am enormously impressed by the information that is available from government departments and other public bodies on what they are up to and how that information has improved. The Government are to be congratulated on the already increasing quality and quantity of information available.
Today we are addressing the issue of information which is not readily available and not accessible at the click of my mouse. I would have been amazed and horrified had my party not made a commitment to pass a Freedom of Information Act in our manifesto, and I welcome the introduction of this Bill. Transparency and openness are important ingredients of a democratic and accountable system of public administration. This Bill is the most important consumer and citizen issue that this Parliament will consider.
For too long there has been a regime of Whitehall secrecy and the time has come to begin the process of creating a culture of openness. This Bill is the start of a process to change a culture. The culture of secrecy and changing the habits of civil servants will be a longer job than just the passing of this Bill. I know that many will welcome the change. But there are also those who, like people who are addicted to tobacco, will need support and encouragement for them to change their previous habits. It will be a little like introducing a nicotine patch to help them say yes, rather than say no.
Those entrenched habits and that conditioning of secrecy are why the tone as well as the content of this Bill are so important. The rules and habits which govern the people who have to carry out the content of this Bill are the reason why the Government's intentions and political will must be absolutely clear. It is because I believe the Bill to be just the start of a process that I believe it to be in need of some improvement, despite the changes which have already been made as a result of deliberations in another place—changes on which I congratulate the Government.
I wish the Bill shouted its presumption in favour of the disclosure of information, instead of conveying a message which is about what we may not be told—a list which appears to grow at every turn. Specifically, 854 in the course of its consideration, I shall be helping, I hope, to look for improvements in the Bill in the areas of the blanket exemptions and the ministerial veto. Blanket exemptions still allow information to be withheld regardless of whether or not its disclosure would cause harm. One of the most important of those exemptions is the one referring to in formation relating to,the formulation or development of government policy".It appears that even the facts and figures on which policy formulation is based are exempt. Clause 33(1) is a gigantic class exemption for all information about policy formulation, including the facts. It exempts all information about Ministers' private offices and all references to ministerial communications or the obtaining of law officer's advice; and no harm test would apply.
I am confident that the Ministers in this Government will not use that exemption because I know that they have a genuine commitment to be open and accountable. But we are not here discussing the actions of this Government only; we are also discussing the actions of future governments, whatever their politics. The party opposite, who I hope will not be in government for a long time to come, if ever, has a pretty abysmal record on the accessibility stakes. I am sure therefore that, were the Opposition ever to be back in office, they would use the full powers of this Bill to the detriment of both openness and accountability. And even if they never get back into power, they already run local authorities. I want to be sure that Conservative-led local government, as well as all local government, cannot use other parts of this Bill to wriggle out of their obligations to openness and disclosure.
My second major concern—I know I will be joining with others in this House in asking the Government to reconsider this part—is the provision which allows Ministers and local authorities to override the information commissioner. This undermines one of the fundamental principles of freedom of information; that is, that decisions on disclosure should be free from political interference. I am grateful for the detail in which my noble and learned friend explained the provisions of Clauses 13 and 52 in his opening remarks, and am less concerned now than I was. But I am not convinced that the White Paper of 1997 was incorrect when the Government considered the case for a veto and explicitly rejected it. The White Paper, Your Right to Know, said,We have considered this possibility, but decided against it, believing that a government veto would undermine the authority of the Information Commissioner and erode public confidence in the Act".I do not know why the Government retreated from that position and am sorry for it.
I do not believe that the two changes I have mentioned, which will strengthen the Bill, need upset the balance which my noble and learned friend explained in his opening remarks; a balance which I wholly accept as being essential. I hope that these 855 changes will do what the Prime Minister said he wanted to achieve when he spoke in 1996 and said,Freedom of information is not some isolated constitutional reform but a change that is fundamental to how we see politics developing in this country. It is part of bringing politics up to date, letting politics catch up with the aspirations of people and delivering not just more open but more effective and efficient government for the future".I agreed with him then and believe that the work that we will undertake in the course of considering this Bill will seek to improve the Bill to match those aspirations.
§ 1.26 p.m.
Lord Campbell of Croy
My Lords, when the Bill was originally introduced last year in another place, it became clear that there was a sharp difference between the impressions that had been given by the Labour Party before the general election and the contents of the Bill.
The pressure groups and other interested organisations who have been pursuing the possibility of a freedom of information measure for many years, have been shocked by the outcome after three years of Labour government. The explanation may be that 18 years out of office led to a temptation to please pressure groups and to an unfamiliarity with the requirements and processes of government. That is an explanation which I generously put forward. But it is not a valid excuse for the difference between the undertakings that were made before the general election and what has since happened.
A feature of the Bill which changes the whole character of what was thought to be the measure that was coming forward, is the series of exemptions, including entire classes of information instead of, as we would have preferred, particular contents. The Government now seem to be attempting to carry out an electoral damage-limitation operation so that they will be able to say, when the next election arrives, "We delivered a Freedom of Information Act"; that item on the list can be ticked.
The word "delivered" is over-used in new Labour's propaganda. Something that was in the manifesto is now "delivered" in name and in some sort of shape. But what matters to the public and to Parliament is whether it works better than the previous arrangements and is effective. The public are not concerned with whether a code is being advocated, as introduced in the 1990s and advocated by the Labour Party in 1979 when they were in government; or whether it be in the form of so-called "rights". They are concerned about the practical effect, and on freedom of information the Government appear to be going backwards. I hope that that is not so, and I am glad to know that important government amendments are coming to this House, as foreshadowed by the Home Secretary and confirmed today by the noble and learned Lord.
The Bill proposes massive exemptions relating to the formulation and development of government policy. This is a difficult area, but the Bill goes too far unnecessarily. There are very good reasons for protecting the processes of Cabinet government, but 856 there is no reason to withhold factual information which simply forms background. Our Cabinet system depends on the principle of collective responsibility. Ministers are expected to agree on policies before they are announced. If a Minister disagrees with a policy of importance, he has the option of resigning; and that has occurred on various occasions over the past few years. It would be impossible to maintain this system if opinions of Ministers, departments and official advisers were made public during the process, or some years later. I feel strongly that these stages of decision making should be protected.
The alternative is to give up collective responsibility and adopt another system. Some people may say, "Let's do away with the present Cabinet system and start something else". I do not favour that course. It would be far too difficult and dangerous. There seems to be no obvious reason that connected factual information should not be made public: indeed it might help the media, Parliament and the public to understand the decisions when they are announced. I understand that the Government claim that it is too difficult to separate factual information from Ministers' views and the advice that they receive, although the Lords' ad hoc committee received an expert opinion that that could be done.
The Government have also claimed in the other place that the term "factual information" could not be defined and so could not be used; but it already appears in the Bill in Clause 13(5). I emphasise that I support the protection of the process of Cabinet and government decision-making, and I speak from my own experience as a Cabinet Minister, as a junior Minister in an earlier government and, more significantly, as an official when for two years I was assigned from the Foreign Office to be Private Secretary to the Secretary of the Cabinet (then Sir Norman Brooke) when Sir Winston Churchill was Prime Minister. I remember at least one episode when the departmental Minister, who had to make the subsequent announcement in the other place, had been opposing in internal discussions and in the Cabinet the decision that was collectively and finally taken. Of course he had the option of resigning, but he thought it was not such an important subject that he needed to do so even though he was virtually defending in public what he had been opposing behind closed doors.
That is part of our system, and if we change that we must change the system too. I am very glad that the noble Lord, Lord Armstrong of Ilminster, will be speaking shortly, because he has more experience than I have of these things. It would be virtually impossible for Ministers and officials to function in that way if proceedings at these stages were made public, or were made public in many cases during a subsequent period of a few years. At the same time, I believe that factual information can and should be separated from advice and from the records of meetings.
I turn to a controversial matter: that is the power of the ministerial override in the Bill-override of the commissioner's decisions. We are promised government amendments on this, which is good news, and so I will not pursue that point now. However, 857 I would point out that this is one of the most important parts of the Bill and I look forward to considering the government amendments when we reach Committee stage. I hope it will not be too late to bring back, to what may be called a second life, what The Times described as "a mournful ghost".
§ 1.35 p.m.
§ Lord Young of Dartington
My Lords, I should like to say a few words about the consumer issues raised by this Bill. In doing so I must declare an interest. I was the founder 48 years ago of the Consumers' Association and I am now its president. I speak today on behalf of the position taken up by the Consumers' Association on this Bill.
Like so many other noble Lords, I heartily welcomed, as did the association, the publication of the White Paper Your Right to Know in December 1997. We have more recently given at any rate a guarded welcome—not that it goes far enough—to the proposals of the Scottish Executive for a somewhat stronger reform than we are discussing today. For once I am quite pleased that the two governments are divided on this matter. I hope that if they cease to be divided it will be more on the side of the Scottish Executive than on the side of the Government in Whitehall.
That White Paper gave what we reformers have been campaigning for for at least 10 years. Other campaigners along with us hoped that at last there would be an end to the secrecy which has shrouded the British Government for so long and which, if acted upon, would bring us somewhat into line, at any rate in principle, with what has happened in the United States, Australia, New Zealand and Ireland, as several speakers have already mentioned.
We thought that the commitment in the Labour manifesto was at last to be honoured, for freedom of information is the essential nutrient to the good working of a thriving democracy; and how hard it is that the citizens' right to participate in their own government which is talked about in this Bill can only be properly acknowledged in practice if they have the vital information they need. In this Bill vital information looks as though it is going to be withheld.
It is a mystery to me why the Bill should have appeared so soon before another general election when, at any rate from my point of view, it is a vote-loser on a large scale. It is a "give-and-take-away" Bill. A bow is made towards open access, and that is very welcome, but then the bow is almost wholly negated by class after class of exemptions. As understanding of the Bill spreads, I would expect that votes would be lost left and right. This is perhaps one of the main reasons why no one, apart from the Government, spoke in favour of the Bill in the other place. They left the cause of democracy, almost deliberately in some cases, to the House of Lords—an odd outcome, as the noble Lord, Lord Alexander, has just said.
I shall just give one illustration of how things could go wrong for the Government if they persist with the Bill in anything like its present form. Our association 858 has been campaigning for many, many years against the way in which motorists are being ripped off by the cartels which fix the prices of cars in Britain so much higher than in the rest of Europe. We have done everything that we could to challenge the car companies and the car dealers. We took a further step a week or so ago when we announced that we ourselves would import cars directly from the continent on behalf of car buyers. On the actual day when that announcement was made, the website of the Consumers' Association had over 1 million hits.
Voters in large numbers care about price fixing, but a little earlier we received not much help from the Government. The report of the Office of Fair Trading on Volvos, one of the companies, was welcome because it showed that it was involved in an anticompetitive car-pricing cartel. But when we asked for more information on a number of important points, our application was rejected. The same thing has happened with many other applications that we have made for access. For instance, when we asked about the policy of the Driver and Vehicle Licensing Agency in Swansea in selling personal details about motorists to parking enforcement firms that work for the owners of private property used for parking, our request was refused.
We also asked for access to the information held by the Treasury and the Financial Services Authority about the extent to which the Prudential and other companies are paying so much of their so-called "orphan assets" to shareholders and not to policy holders: application denied. It was the same with our attempts to find out more about the mis-selling of unsuitable endowment policies as a means for the repayment of mortgages. It was also the same with the figures for the number of poor people whose electricity supply had been disconnected: application refused.
The Government have almost invariably protected commercial interests and the provisions of this Bill in its present form will do nothing to redress the balance. Some of the same Ministers who have been so unresponsive on so many consumer issues in the past will still be there with the same sweeping powers to deny information when this new Bill finally comes into force.
In view of the situations about which I have been talking, we were not surprised when the results of an opinion poll commissioned by the Consumers' Association were highly critical of the Government: 70 per cent of the public did not trust Ministers to release information; 94 per cent believed that members of the public have a right to know all of the information that might affect their own decisions; 92 per cent agreed with the statement that,the government should be more open about how it makes its decisions";and 85 per cent agreed that,the public's right to know should outweigh the commercial interests of companies and public authorities".From our point of view, freedom of information is the most important consumer issue currently concerning Parliament. It cuts across all areas of 859 consumer and public policy and is a prerequisite for transparency and accountability in the public and private sectors. Through this, it serves to improve the quality of decision-making in government, and in the public and private sectors. In a modern society freedom of information is essential if consumers and their representatives are to engage successfully with vested interests in government, the public sector and industry.
The Bill is fundamentally important to the rights and well-being of consumers and citizens in the United Kingdom. For consumers, the past decade or so will be associated with a series of major corporate scandals, transport disasters and public policy and regulatory failures, the most infamous of these being BSE, and major rail disasters such as happened at Paddington. The direct causes may have been different in each case, but there has been a common theme; namely, that by the time consumers had found out what had gone wrong, or the full extent of the damage had become clear, it was just too late. Consumers and taxpayers have picked up the pieces and paid the price for decisions made behind closed doors. There is a very real need for a decent freedom of information Act.
We at the Consumers' Association believe that the Bill is fundamentally defective. I know that some noble Lords have already spoken about some of these points, but we call attention to four major areas of weakness which affect the consumer interest in particular. The first is policy exemption. Any information held by a government department is exempt if it relates to the formulation and development of government policy. This includes even the facts and figures that are used to formulate policy. That is an incredible exemption—indeed, when one reads it, it is almost impossible to believe—considering all the lessons to be learned from the major consumer scandals of the past.
The desirability of disclosing "advice" may well be debatable, but there is no justification for refusing to give the public a statutory right to know the facts and figures behind policy decisions. Other countries have designed and operated freedom of information regimes which cope perfectly well with this distinction. Indeed, our friends in the Scottish Executive propose that facts and figures should be published as a matter of course.
The second weakness is to do with public authorities and regulators. There are a number of clauses in the Bill that will allow public authorities and regulators to withhold information which might compromise their position and hold them accountable. Investigations into safety or regulatory transgressions may be concealed. Transparency is critical, as these public authorities and regulators are responsible for implementing public policy and are charged specifically with protecting the consumer and public interest. The noble Lord, Lord Alexander, spoke about this earlier and I very much agree with what he said.
Thirdly, there is the overprotection of commercial interests. Consumers bear the brunt of corporate scandals and regulatory failure. But the Freedom of 860 Information Bill tilts the balance towards protecting commercial interests still further. Information will be exempt if disclosure would be likely to "prejudice" commercial interests. I have already indicated that this provision will not remedy the thoroughly unsatisfactory position in which we find ourselves.
Finally, there are the limitations on the powers of the information commissioner about which much has already been said and with almost all of which I thoroughly agree. The small concession that has been made on this point is not so far a meaningful concession and compromises one of the fundamental principles of freedom of information legislation-that the only way to ensure that information will be released in the public interest is to have an independent arbiter deciding between vested interests.
Giving real authority to the independent information commissioner to rule on the public interest would at last remove the dilemma of allowing Ministers the final say on disclosure of critical information that compromises the Government's or the Minister's own position. When I spoke about this to policy analysts of the Consumers' Association, they told me that in all the major areas of consumer activity in which the association has an interest a government policy initiative has been or is in the process of being implemented; for example, the Food Standards Agency, the Financial Services and Markets Bill, the Utilities Bill and the Competition Act. There is also the Transport Bill, with the serious implications for rail safety and air traffic control.
In each of those cases the Consumers' Association has serious reservations about the specific provisions for disclosing information. Disclosure of information collected by the lead regulators, agencies or departments is either prohibited by statute or is at the discretion of the various regulatory heads or Ministers in charge. However, in all this there is no comfort to be gained from the Freedom of Information Bill.
The protection given to commercial interests; the exemptions on accident and regulatory investigations; the exemptions on information relating to policy development; and the restriction on the powers of the information commissioner—all these weaknesses mean that there is little leverage to be gained from the Bill. We greatly hope that important concessions will be made by the Home Secretary and by the Government generally and that the Bill will emerge from this House a much better Bill that can gain support in the other place. We have a great responsibility to do what we can.
§ 1.50 p.m.
§ Lord Armstrong of Ilminster
My Lords, I am afraid that I must start by disappointing the noble Lord, Lord McNally. I cannot enlighten him on the reasons why responsibility for these matters was transferred from the Cabinet Office to the Home Office towards the end of 1997. I had been out of the public service for 10 years when that happened and I could be completely elevated and impartial on the subject as before I served as Secretary to the Cabinet, I served briefly as Permanent Secretary at the Home Office.
861 Noble Lords will not be surprised to hear me say that I intend to address my remarks primarily to access to information held by the public authorities defined in Part I of Schedule 1 to the Bill, and particularly by government departments. I am, and have for a long time been, very much in favour of more openness—as much openness as is reasonably possible—in government. Having said that, I am glad that the Bill provides exemption for advice to Ministers and for exchanges between Ministers on the formulation and development of policy because I do not believe that those processes can be conducted in a goldfish bowl. I am afraid that I part company with my noble friend Lord Williamson of Horton in thinking it impractical to divide advice into advice which can be disclosed and other advice which cannot. There has to be a class exemption here if there is to be good government, by which I mean integrity of administration, effectiveness in the conduct of public affairs, arid free and frank discussion among Ministers and between Ministers and officials.
I am also glad that the Bill sets out to protect the convention of collective responsibility. Here I share the views of the noble Lord, Lord Campbell of Croy. I am clear that this convention is not an outmoded tradition but is a necessary condition of coherent and joined-up government. If we did not have the doctrine, we should have to invent it. However, I have for long thought that when a policy decision is announced, or at least a major policy decision of the kind that ought to be announced first in Parliament—but too often is not nowadays—the Minister should disclose as fully as possible the facts, figures and considerations that were taken into account in arriving at the decision. Not only do I believe that as a matter of accountability the Minister owes it to Parliament and to the public to do that, I also believe that the process of decision-making in government will be improved if it is recognised from the outset that that will be done.
I recognise, of course, that it is not generally possible within the constraints and pressures on parliamentary time to give a comprehensive account of the facts, figures and considerations taken into account in the course of an announcement in Parliament. However, that more comprehensive account of the facts and figures and so on should be given in a parliamentary or command paper published as soon as possible after the decision is announced. Ministers should not wait until the information is requested before making it available.
I agree with the noble Lord, Lord Butler of Brockwell, my successor as Cabinet Secretary, that it would be possible to maintain the distinction between information and advice and to prepare the material on information which was to be disclosed at the end of the day while the discussion of policy was going forward. I believe that such a process would not only benefit parliamentary and public understanding of the reasons why a particular decision has been taken, I believe also that the knowledge from the outset that that would eventually be done would make for more 862 effective, more responsible and more accountable administration in government—what this Bill calls the moreeffective conduct of public affairs".As I read Clauses 33 and 34 of the Bill, that kind of process is by no means excluded. I do not understand why the clauses are being read in that way. If they are obscure or not clear, we had better clarify them, but they do not appear to me to inhibit Ministers and government departments from proceeding in the way I have suggested.
As the noble Lord, Lord Hunt of Wirral, has said, the code of practice introduced in 1994 went a long way towards achieving that kind of objective, even if it did not go as far as some would have liked. But, like him, I believe that the code of practice route rather than the legislative route would have been the right way to make progress in this field.
I fear that a Freedom of Information Act, with its complex structure of legal rights and duties, exemptions, elaboration of commissioners, appeals and enforcement will not help us much in this context. I share the fear that it would be liable to encourage Ministers and officials to think not about what they should be doing or disclosing, but about what they can get away with not doing or not disclosing. I believe that we should be trying to create a positive climate of opinion in which a government want to do what it is right that they should do, want to disclose in formation to the greatest possible extent, and recognise the benefits to administration and to public understanding which will flow from doing that, and thus voluntarily commit themselves to a code of practice accordingly.
I do not believe that this or any other legislation is likely to make it possible to prise out of government information which they really do not wish or think it right to disclose. Echoing the comments of the noble Baroness, Lady Hilton of Eggardon, I fear that it will always be possible for governments to find means by which they can avoid the disclosure of information which they really do not want or think it right to disclose, without technically failing to comply with the legislation. But I also fear that the resort to such means would tend to impair the integrity of administration and the effective conduct of public affairs. It could create a situation in which information was not properly recorded; a situation in which information would be imparted only by word of mouth or on the backs of envelopes; a situation in which meetings and discussions would tend to be held in holes and corners—in ways and in forms in which they would escape the requirements of the legislation.
The risk is that the result would corrupt the process of administration and would impair the effective conduct of public affairs without yielding improvement in parliamentary and public understanding. None of the benefits which freedom of access to government information is supposed to give would follow. However, I recognise that we shall have a Freedom of Information Act and that no self-respecting modern western democracy can be without its own Freedom of Information Act. In constructing 863 this Bill, the Government seem to me to show that they are aware of the kind of difficulties and dangers to which I have drawn attention, and to have struck a reasonable balance between the needs of integrity, of administration and the effective conduct of public affairs on the one hand, and the duty of responsible and accountable disclosure of information on the other. I am relieved that it should be so. I hope that my lone voice in support of the Minister today will not embarrass him.
I even accept the principle of ministerial override. It seems to me that that is a necessary protection at the end of the day. We may be asked to consider changes to the way in which override should be exercised, but the point surely is that the situation created by the Bill—I refer to the commissioner, for example—would ensure that, as a matter of political reality, no Minister would exercise the override unless he or she had the most cogent reason for doing so. If he or she did not have a cogent reason for doing so, that would very quickly be found out.
It is clear that this Bill will not satisfy the more ardent advocates of freedom of information legislation, or those who want to extract as much information as possible from public authorities—by leak if not by disclosure—almost irrespective of the possible consequences. But probably no legislation which any responsible government could introduce would completely satisfy such people. Whatever information becomes freely accessible, they will always want more; and they are always going to be disappointed.
There may be detailed changes that can be discussed in Committee, but I urge the Government to stick to the general principles of their proposals and to resist the siren voices calling on them to go a good deal further. After all, if we were to go too far, it would in practice be impossible to go into reverse. If, on the other hand, when we have had some experience of the arrangements provided for in this Bill, it seems to be desirable to go further, we should be able to see where further change would be appropriate and desirable and to make further provision accordingly, whether by legislation or by other means, such as a new or revised code of practice.
I am afraid that the House may feel that I am lending rather grudging support to the Bill, but, all things considered, I accept that your Lordships should give the Bill a Second Reading. As I say, I hope that my support for the position taken by the Government and by the noble and learned Lord in his speech will not embarrass him.
§ 2.2 p.m.
§ Lord Tomlinson
My Lords, I felt almost intimidated from speaking in the debate on freedom of information by the awesome expertise that there is in your Lordships' House—but only "almost". Three main reasons made me overcome my reticence. First, I wanted to say to my noble and learned friend that I suspected that the Government would not have many 864 people praising the Bill today, and I wanted to begin by saying that they had at least made substantial progress in another place in improving the draft Bill. Secondly, I wanted to assert, however, that further modification of the Bill is necessary to make it more acceptable than it is at present. The third reason that led me to overcome my reticence and speak is that, although I fully understand and sympathise with the problems of government business managers, I was not totally convinced that having the Second Reading on Maundy Thursday, immediately before the Recess, was as wise as it was undoubtedly convenient.
My political instincts are not naturally rebellious. They are usually based on a fairly unreserved loyalty to a government of which I remain a proud and loyal supporter. However, there are times—and this is one—when the principles involved are so basic and fundamental that, in the nicest possible way, one needs to say to one's own government, "You have time; use it. You have already improved the draft Bill. Listen to your friends, listen to your supporters, listen to Parliament. Take those extra steps which were quite easy to see in opposition but which have become progressively obscured by office".
Apart from merging the guardian angel of transparency (the information commissioner) with the custodian of privacy (the data protection registrar) —an almost incomprehensibly bizarre decision, albeit for only two years—there are, for me, three areas of the Bill which need fundamental improvement.
First, the sweeping exemptions, both in number and scope, bias the Bill too far against disclosure. I urge my noble and learned friend to undertake to look again seriously at the exemptions, as it is the scope of the exemptions that make me sympathetic towards the demands for a purpose clause. I would not normally be much interested in a purpose clause; I would normally be sympathetic to the view expressed by Mike O'Brien in Standing Committee in another place, that a pro-disclosure purpose clause would make the Bill too unbalanced. However, I believe that it is the sweeping nature of the exemptions that unbalances the Bill. A different approach to exemptions would render a purpose clause unnecessary.
Let me make a brief comment on both the harm test exemptions and the class exemptions. My noble and learned friend Lord Falconer mocked the use of words such as "substantial" in the harm test. However, the harm test proposed in the White Paper was that to withhold disclosure the authorities would need to demonstrate that "substantial harm" would result from disclosure. The Bill adopts the much weaker test of "prejudice"—this despite the fact that the Scottish executive, in its own freedom of information proposals, rests on including the word "substantially" to qualify the word "prejudice". I do not share the view that merely mocking the inclusion of the word is a fully adequate response. With the large number of class exemptions, it will mean that in substantial areas of public policy exemptions would apply whether or not the disclosure would cause harm. The result would be unjustified secrecy and could be greater secrecy than even the current openness code.
865 That is the more so when class exemptions include all information which,relates to the formulation or development of government policy".The protection of the advice of the Civil Service, to which the noble Lord, Lord Armstrong, referred, is clearly necessary. The protection of factual information is clearly not necessary as a general rule. To justify a refusal to exclude factual information with a claim that it cannot be defined contradicts both Clause 13(5) of the Bill as well as the noble Lord, Lord Butler, in the views which he gave to my noble and learned friend Lord Archer of Sandwell and the Select Committee.
Similarly incomprehensible is the scope of Clause 34(2)(c) which gives authorities an unrestricted right to withhold information on the basis of the "reasonable opinion" of a "qualified person" that disclosure would,prejudice … the conduct of public affairs".Improvement is therefore needed in the area of exemptions.
The second part of the Bill which I believe needs substantial re-examination concerns the Data Protection Registrar. Apart from the incongruity of locating the information commissioner's role together with that of the Data Protection Registrar, I am astounded that paragraph 19 of Schedule 2 applies the secrecy clause of the Data Protection Act to the information commissioner. I do not like emotive language about "gagging" clauses, but is that not indeed an apt description of the effect of it? Could we not find ourselves in the somewhat ludicrous position of the information commissioner breaching the secrecy obligation by disclosing that which members of the public could obtain for themselves under the Bill? If that is the case—I believe it to be so—that would be ludicrous indeed.
The third area of the Bill that causes me concern is that of the ministerial veto. In 1997, the Government White Paper explicitly rejected the proposition that the commissioner's power to order disclosure of exempt information where public interest favours disclosure should be subject to such ministerial veto. The case against the veto was compellingly made by the Government themselves in their 1997 White Paper:A government veto would undermine the authority of the information commissioner and erode confidence in the Act".That is far more persuasive than the Home Office Minister in another place defending the veto as if it were some kind of fundamental democratic imperative.
I conclude with a clear expression of view to my noble and learned friend. I want freedom of information legislation. I want to protect government information that should be protected. In this Bill the exemptions are too broad and will allow too much information to be protected, not always for the worthiest of reasons. Amendments can and should be made. I hope that they will be made as I really do want to he able enthusiastically to support my Government in the Lobby at all stages in the passage of the Bill.
§ 2.11 p.m.
§ Lord Norton of Louth
My Lords, it is a pleasure to follow the noble Lord, Lord Tomlinson, who made some excellent points. I shall try not to repeat the points that he made.
Like the noble and learned Lord the Minister. I have sat here throughout the debate. I cannot help expressing the opinion that when the House meets at 11 a.m. there may be a case for us having a lunch hour. I make that point because I think that it may be the only one I make today on which I am able to carry the noble and learned Lord with me.
I very much agree with my noble friend Lord Hunt of Wirral. What is involved here is an issue of culture. As an academic, I inhabit a culture where there is a propensity to openness. Academics do not so much withhold information as rush to publish it. It is appropriate that Parliament gives the Bill the most thorough consideration. In comparative terms, this Parliament is one of the most transparent that there is. The problem we are looking at is not one of Parliament but rather of government where there is a culture of secrecy.
As my noble friend Lord Alexander of Weedon said, the Bill has been subject to extensive criticism by commentators outside the Palace of Westminster as well as by Members of the other place. The Bill has been a long time in coming, and what has emerged is a watered-down version of what was envisaged in the White Paper.
I shall not take up the time of the House by repeating what has been said. I want briefly to identify what I see as the four main failings of the Bill, drawing together some of the points that have been made in this debate and in the course of so doing putting a number of questions to the Minister.
The first failing is that the Bill does not give sufficient power to the information commissioner to require the disclosure of information. The point has been touched on by various speakers. There has been a limited amendment to the Bill, but the general criticism still holds. Clause 52 remains the crucial limitation. Even if the Bill is amended as the Minister has indicated, the veto will be exercised only by Cabinet Ministers acting with their colleagues' support, and the fact remains that Ministers can still have the final say. The justification offered in another place by the Home Office Minister, Mr Mike O'Brien, is that it would "profoundly undemocratic" for the commissioner to have the power to require disclosure.
Given that the topic has been well aired, I shall not refer to it at length. Instead, I simply ask the Minister; are not decisions taken by judges "profoundly undemocratic"; yet have not decision-making powers in other areas been transferred from the Home Secretary to the judges and, indeed, to other bodies? What is it that distinguishes this particular case—that of the commissioner—from the others?
The second failing is that the exemption covering information relating to the formulation and development of public policy is too wide. The point has already been well made in the other place as well 867 as by my noble friend Lord Mackay of Ardbrecknish; namely, the Bill fails to distinguish between advice given by officials and the factual information on which a decision is made. There is a clear distinction to be drawn between these sources.
The Home Secretary has claimed that the problem is that it is not possible to draw a distinction and to define factual information. In introducing the Bill today, the Minister referred to the problem of "disentangling" the two. The implication is that if a water-tight or usable definition could be produced, factual information could be placed in the public domain.
Does not such a distinction already exist in practice? Do not civil servants appearing before Select Committees have to draw a distinction between policy advice and straightforward information? As my noble friend Lord Campbell of Croy mentioned, the distinction appears in the Bill at Clause 13(5). Also, will the Minister confirm that most other freedom of information Acts exclude information from an exempted category?
The third failing is that the test of "prejudice" is too weak. The White Paper proposed the "substantial harm" test, applied against seven specific interests. The Bill represents a massive shift from the proposals embodied in the White Paper. As the secretary for political affairs of the Methodist Church has put it, the term is,so feeble as to suggest that information will be suppressed if it simply embarrassing to the government".One can imagine the Chancellor of the Exchequer claiming that some fairly minor information about the economy will be prejudicial, under the terms of Clause 27, to the economic interests of the United Kingdom. Clause 27(1)(b) provides even more scope. After all, a great deal of information—
§ Lord Falconer of Thoroton
My Lords, will the noble Lord give way? The issue of whether information would be prejudicial to the economy of the country would be a matter on which the information commissioner would have the last word, without any executive override. I am sure that the noble Lord would agree with that.
§ Lord Norton of Louth
My Lords, I would; however, I still believe that there needs to be a stricter test in terms of more than simple prejudice. It is not so much a matter of who is defining it but of the test that is being applied to it. One can see that with other clauses as well if one approaches the matter simply in terms of prejudice. Indeed, Clause 34 is even more sweeping in its content, as the noble Lord, Lord Tomlinson, has said. I should be interested to hear from the Minister precisely what is the justification for Clause 34(1)(c).
In replying, will the Minister also confirm that other leading countries, such as the United States, Ireland, Australia, Canada and New Zealand, have laws stipulating a "real harm" test. Incidentally, I noted that in his highly selective reference to freedom of 868 information laws in other countries the Minister omitted any reference to the law in New Zealand, which is often held up as the most effective example of such legislation.
§ Lord Falconer of Thoroton
My Lords, I am sorry to interrupt the noble Lord again, but will he indicate whether New Zealand has any kind of executive override?
§ Lord Norton of Louth
Yes, my Lords, it does. I am grateful to the noble and learned Lord. That point has been mentioned by other speakers and I am happy to concede it. My point was that the noble and learned Lord made no reference at all to New Zealand. There are other provisions which are relevant in the context of this discussion; the Minister was selectively taking from other countries occasional points to support his case but he did not look at others which conflicted with the provisions of the Bill. The information that I have about New Zealand suggests that one should be looking at it in slightly more rigorous form than has been the case today.
The fourth failing is in respect of the number of exemptions. I have already touched on those that are subject to the test of prejudice. In addition, and more controversial, are the class exemptions. Again, as we have heard, the White Paper did not propose class exemptions. Information is exempt even if its release would not cause any harm at all. As the Minister has stated, in order to obtain such information an applicant would have to show that its release would be in the public interest. The onus is on the applicant, not on the public authority.
The protection of information goes beyond what even some of the bodies concerned regard as reasonable. The Bill is, by comparative standards, excessive in the protection that it accords to information. It is excessive not only in relation to the freedom of information laws in other countries but in relation to the code of practice on access to government information that it supersedes. My noble friend Lord Hunt of Wirral has already put questions to the Minister on this matter and I do not repeat them. However, given the range of exemptions already on offer, how does the noble and learned Lord justify Clause 43? After all, one must ask what is left given the range of exemptions in the Bill. Following on from what a number of noble Lords have said, can the Minister identify a single Back-Bench Member of the other place who spoke in support of class exemptions when they were discussed at Report stage?
This is a substantial Bill which I fear the Government may get wrong. If we are to have a freedom of information Bill, why not stick to the proposals in the White Paper rather than adopt the prejudices of certain Members of the Government? I have put a number of questions to the Minister. I trust that the answers that I seek do not fall into an exempted category, because the House is entitled to full answers.
§ 2.21 p.m.
§ Lord Dubs
My Lords, I am pleased that we are taking some further steps away from a culture of secrecy to more openness in government. Despite the criticisms which have been made of the Bill, I believe that it is another step on the path to openness. My noble and learned friend Lord Archer of Sandwell very much regrets being unable to be here today, but I am sure that he will play an active part in the further stages of this Bill. My noble and learned friend has been committed to this cause for a long time and no doubt will want to be vocal in advocating it as we proceed to the Committee stage.
I have been swamped with information about the Bill, so much so that it is virtually unmanageable. In addition, I find the Bill very complicated and hard to follow, but perhaps that is because I am not a lawyer. I believe that, by and large, the Government are committed to openness despite the criticisms that have been made. But this Bill is not solely about freedom of information as it would be practised by this Government. We might at some future point have a government which was not committed to the cause of openness. Therefore, it is right that we should look at the Bill carefully to see whether it would protect our rights under any government, not just one that is sympathetic to openness.
My noble and learned friend indicated in opening that the Government were open-minded about some of the detailed proposals. He suggested that the Government would themselves table amendments at Committee stage to deal with some of the points raised in another place and today. But my noble and learned friend also indicated that the Government were open to persuasion. I speak as someone who welcomes the Bill but seeks to give the Government a gentle nudge here and there. I trust that the Minister appreciates the positive spirit in which some of us on the Government Benches approach this Bill.
In this morning's newspapers reference is made to the release of certain MI5 files which reveal that Hitler had personally ordered the execution of 50 allied prisoners of war, mainly British, who had escaped and been recaptured. This information comes to light more than 50 years after the event. I cannot for the life of me see what purpose has been served under our public records legislation by keeping such information secret for over 50 years. Perhaps the Minister can give an indication as to whether under this Bill the position will be more relaxed. I interpret Clause 61 as saying that in future such information may be available after 30, not 50, years. I give this example only to point out that there are times when, for reasons not revealed to us, information which could not possibly cause any damage or harm to government or anybody else is kept secret for far too long. I very much hope that the Bill will prevent the kind of secrecy of which I have given an example.
I should like to turn to the question of policy formulation by the Government and the way in which the Bill applies a constraint to information about it. Documents about the development of government 870 policy, documents that cover the options that Ministers have to think about, should clearly be exempt. That would not be in dispute.
I recall that during my time as a Minister in Northern Ireland there were one or two leaks of such documents that were very damaging, because they were used by the opponents of the peace process to undermine it. I was also in my department the victim of one such leak, which the Democratic Unionist Party used to try to embarrass the government, although it was simply a letter that I wrote to a fellow Minister about particular aspects of financing housing. They were sensitive housing matters, because they concerned how we dealt with police officers who had been intimidated out of their homes at the time of Drumcree. The matter took a week to be resolved. In the meantime, the DUP stepped in and tried to embarrass the Government. Clearly, such things should not become public.
There is a distinction between making public policy advice and policy documents which can harm the work of government and the bulk of documents that I saw as a Minister which do not harm government. I followed the discussion about the distinction between facts and policy. It would require civil servants to write different sorts of documents or to separate the facts from policy. In my experience of the submissions I received from civil servants about policy, facts and argument were intertwined. They would have to write the documents differently in order to separate them. What we do not want is an outcome which means that civil servants have to doctor their documents or write them less persuasively for Ministers simply to meet the requirements of legislation like this. Worse still, as the noble Lord, Lord Armstrong of Ilminster, mentioned, one might get verbal rather than written briefings, and that would not be desirable.
However, the noble Lord also referred to the statement of the noble Lord, Lord Butler of Brockwell, to our Select Committee that the Civil Service could manage without loss of helpfulness in its documents to separate facts from opinion. I am not sure about that. It is certainly one view.
Another approach might be to apply the test of harm, or substantial harm. That might be an easier path down which to go, because so many ministerial documents are quite innocuous. Some time ago I was approached by some reporters from the Guardian, who said with glee that they were getting from the Irish Government under that government's freedom of information provisions certain documents about meetings I had had with Irish Ministers. That sounded ominous, but it was not at all. It concerned a meeting I had had with an Irish Minister to publicise a joint approach to improving road safety in Northern Ireland and the Republic. After the meeting I had gone on television and announced what the meeting was about as fully as I could, so there was not much that was sensitive in that document. But the freedom of information provisions in Dublin led to the production of a document for the Irish Minister saying "Items which may be raised by Lord Dubs in 871 discussion over lunch". Well, I did raise them; they got that right. Then it included a note of a meeting with me on that date and what we discussed, all of which I announced on television. My point is that there are many such documents which are quite innocuous, and we achieve nothing by keeping them secret.
I should have liked to see some relaxation in the Bill's approach to government documents and advice to Ministers. I have said that some are very sensitive and should under no circumstances be made public, but others are not. Of course, we do not want them to cause damage to the work of government. Reference has been made to the United States freedom of information provisions. I have here a letter written by my right honourable friend the Deputy Prime Minister to the US Secretary of Transportation concerning aviation policy. The Americans produced the document. I do not suppose we would go that far. I should like to quote briefly from the letter, as follows:The essential point, put plainly, is that the law is unacceptable to the UK Government: it is an infringement of UK sovereignty and would cause severe economic consequences for the UK aviation industry".That is pretty robust language. The letter continues:In our submission we urge the FAA [Federal Aviation Authority] to revert to Congress to explain that this legislation is fundamentally flawed and ultimately unworkable".It states finally:I believe the only right course is for the Hatch Amendment to be repealed and I hope the Administration will take action to achieve this end".That is a pretty robust letter, critical of the American legislation which the American freedom of information legislation itself produced. I mention it only to demonstrate that the American Government are willing to withstand publication of letters of that kind.
I understand that under the Bill's provisions government policy advice would be kept for 30 years. I have argued that perhaps a different test might release some of the information earlier. I believe that 30 years is a rather long time. After all, in Britain we have the publication of minutes of meetings between the Chancellor and the Governor of the Bank of England, and of the Bank's Monetary Policy Committee. Those are highly sensitive issues and yet they are published. In my experience as a Minister, almost invariably the "line to take" document for meetings with outsiders was one which I could have handed to them at the beginning of the meeting.
I welcome the New Zealand practice of publishing advice to incoming governments. I believe that we call them first day briefs. We could do that fairly easily in this country. My experience of first day briefs—apart from the fact that they are voluminous—is that they present good background information but nothing sensitive.
I welcome the Minister's comments on this point. Other governments have freedom of information legislation; and some of the devolved administrations within the UK are going to move in that direction. 872 Would there be a difficulty if different approaches produced documentation about the same event in different degrees of detail? In one case there might be no documentation but in the other some.
Finally, I refer to the protection of consumers under commercial confidentiality and provisions about investigations. I do not think that the Bill has got it right. We need to do more to ensure that consumers are given information about their own health and safety. I fear that the provisions of the Bill as drafted would deny us information which should be in the public domain. After all, information belongs not to the Government but to ordinary people. In their capacity as consumers, people should have the right to some of that information and I hope that we can amend the Bill accordingly.
§ 2.32 p.m.
§ Baroness Hanham
My Lords, we have concentrated today mainly on the governmental aspect of the Bill, but it is also notable that it is destined to encompass local authorities. I speak today as a member of one of those local authorities.
For years there has been steady pressure on local authorities to be open and transparent in the conduct of their business, their openness of meetings, availability of material and their dealings with the public. Some local authorities have been compliant with that and others, it has to be acknowledged—not my local authority—have been somewhat noncompliant.
However, the expectations and the legislation have been there. For example, information held on any individual client has been available to that client under the Data Protection Act 1984. That Act introduced a statutory right of access to files and records. These rights were extended by the Access to Personal Files Act 1987 and by the further Data Protection Act 1998.
On access to details behind policy and background information, the Local Government (Access to Information) Act 1985 provided that that information has to be given on request. It was, therefore, within local government that the initial requirements for freedom of information were directed. It is somewhat ironic that the enactments brought under various Conservative governments are only now being brought to bear on other public bodies.
There is a further irony in that the Home Office is bringing forward this legislation while the Department of the Environment, Transport and the Regions is undermining it in two recent pieces of legislation. Your Lordships will recall that in the Local Government Bill, which is still being considered in the other place, new executive structures will be permitted to consist of members of just one party and that their decisions will be able to be made in private. There will be fruitful ground here for those seeking access to the rationale behind those decisions to seek remedy from the commissioner.
Under the Greater London Authority Act, the mayor will be able to prevent any advice and information given to him or her being brought into the 873 open because that advice, as with ministerial advice, is specifically exempted. Is it proposed to align these two aspects of legislation with the Freedom of Information Bill? The potential for the new commissioner to be overwhelmed with requests for information from these two sources alone is very real.
However, I turn to the role of the commissioner in the local government context and ask for an explanation of the process which would enable those who feel aggrieved to take matters straight to her. At present in local government, those seeking information which has so far been denied them have recourse to the chief executive of the local authority; the director of legal services and/or the monitoring officer, if not the same person; their local councillor and the ombudsman. In that context, what aspect or role will the ombudsman play in future because at present the ombudsman has the right to insist on information being provided? Will there be a direct relationship between local government ombudsmen and the commissioner? As has already been stated, the applicant will have rights to go to court.
Is it the intention that these routes and roles should he abolished and that recourse should be only to the commissioner, or is there to be a right of arbitration from, say, a scrutiny committee, with potentially a ministerial veto in local government provided, for example, by local councillors? How will we prevent the commissioner having "fishing expeditions" put on her through information given and then having to find out a great deal about it from local authorities?
As regards decisions made within the new local authority executive structures, will they be capable of implementation if access to information behind those decisions is being challenged? For how long will they be held up if they are challenged by reference to the commissioner? Indeed, will there be any reason for the matters to go forward while the challenge is taking place?
As regards the costs of the commission, the Bill allows local authorities to make charges for providing information, but the expectation is that all other costs will be absorbed. In opening, the Minister said that there will be no costs for application to the commissioner, but will there be costs to those who provide information? Will there be an expectation that those will be absorbed within the council tax?
Even in terms of local government, a distinction is to be made between advice that is given to the ruling party and the information behind that guidance. It is my experience that practically always the background papers and reasons can be made public—and they should be—but that sometimes, as the noble Lord, Lord Armstrong, said earlier, advice should be given in private. That is an aspect of the Bill which will have to be clarified as we go through it if we are not to finish up with people in very considerable confusion in future.
§ 2.40 p.m.
§ Baroness Whitaker
My Lords, I, too, welcome the Bill's assertion of the public right to official 874 information. It is an important step forward. I also welcome the most useful legal definition, captured in Clause 13(5), of,factual information which has been used, or is intended to be used, to provide an informed background to decision-taking",together with a statutory validation of public interest in communicating such information. I want to say a few words about factual information. I hope to complement rather than duplicate what has been eloquently said.
This is not a new idea. We in the civil service prepared for it many years ago, incidentally, with the backing of the First Division Association, our trade union. But the government of the day did riot eventually bring forward a law of that kind, although, if I may respectfully say so, I readily acknowledge that the heart of the noble Lord, Lord Hunt of Wirral, seemed to be in the right place. It is welcome to see a reference in law at last.
The idea of a public right to the factual information which informs the decisions of public authorities is not, I suggest, given proper weight in the Bill. I hope that improvements can be made in that and in other areas. The Bill provides that the only time a member of the public could have access to factual information related to the formulation and development of policy, would be if the authority which owned it chose to disclose it, although it must have regard to the public interest in disclosure. That does not constitute a real right to the factual basis of political decisions.
I do not see how anyone who has seen the processes of government can object to keeping back the policy discussions. That and the justifications of other exemptions have already been described in the debate.
But some classes of information in the Bill give pause for thought. Clause 26(1) exempts information which,would be likely to prejudice relations between any administration in the United Kingdom".Does that mean that official surveys of harmful industrial pollution moving from one to another of the UK nations—a factual matter—can be kept secret? And what about possible radioactive discharges from Sellafield into the Irish Sea, also a factual matter? Does the clause which exempts the disclosure of information likely to prejudice relations between the UK and any other state mean that the Irish Government may not know what BNFL discharges? Might disclosure of these matters be held by the public authority to,prejudice the effective conduct of public affairs",to quote another of the Bill's restrictions?
And I am really puzzled by the exempt class of information which may prejudice,the purpose of securing the health, safety and welfare of persons at work",or that which may prejudice,the purpose of protecting persons other than persons at work [the public] against risk to health and safety arising out of work activities".I am concerned about those as examples because, having worked in the Health and Safety Executive for several years, apart from the need to safeguard 875 commercial confidence or, if necessary, larger national interests, we saw every advantage in communicating the relevant factual information. Those who drafted the Health and Safety at Work etc. Act must have agreed because it is studded with open-government provisions, preserved, I hope, by Clause 76 of the Bill.
It will not surprise your Lordships that I do not share all the strictures against civil servants that I have heard today. We took the view that the public should be in a position to understand judgments and decisions about the nature of risk from, or the costs and benefits of, for instance, nuclear or industrial chemical activities, and that it needed to be informed in order to provide that degree of consent on which democratic governments must rely in resolving conflicts of interest, as my noble friend Lady Hilton of Eggardon has said. Ignorance was often a condition of scaremongering—harmful to industry and safety alike. That may be why the CBI also supports a right to the release of factual information.
Therefore, I hope that my noble and learned friend the Minister can refine the text of the Bill to enable a clearer right to the evidence on which decisions are taken. At bottom, the arguments seem simple. Money is spent in people's names; decisions are taken on their behalf; and risks are taken with their interests. Do they not have a right to know the factual basis of decisions? I look forward to hearing how the Bill can accommodate that straightforward entitlement.
§ 2.46 p.m.
§ Lord Lucas
My Lords, as the Prime Minister said, a freedom of information Act is intended to mark a change in the contract between government and the governed; to institute a culture shift in public authorities towards the provision of information to the public. Therefore, the first question that we must ask of this Bill is: does it achieve that? Is this a true freedom of information Bill?
As the Bill comes before us today, it is not. It has a structure with an enormous number of exemptions from the basic right to information. I believe that that is liveable with. I listened to many of the arguments in the course of our examination of the draft Bill, and I can see that we could live with a structure like that. In certain circumstances, it allows for the information commissioner to be overruled by politicians. I believe that we can live with that, provided that it is done in a way which makes it difficult for the politicians to act in such a way because it will be unusual and out in public. In most cases, it provides for public interest to be taken into account. I hope that there may be opportunities to widen the cases which are taken into account under Clause 13. That is crucial.
However, the whole essence of the Bill is killed by Clauses 52 and 34. They prevent the information commissioner from taking a role in decisions under Clause 13. They mean that a whole range of minor officials and functionaries of one-party-state local governments have the right to say, "No, the balance of public interest is against its release", and the 876 information cannot then be released. Under Clause 34 they have a right to create exemptions out of thin air. That clause is so widely drawn that again the whole myriad of public officials can create an exemption under Clause 34 and then use Clause 52 to deny the information commissioner the right to examine it under Clause 13.
The way in which the Bill is now written means that it is not a freedom of information Bill; it does not fulfil the Government's promise in their manifesto, and I believe that we are entitled to treat it with great roughness. Therefore, I await with considerable interest the Government's proposed amendments to Clause 52. I understand what they are doing at government level to make that a collective Cabinet decision. That would satisfy me if it could be written into the Bill in that way. But what will happen to all those lesser functionaries who occupy two-thirds of the clauses? There are all those little bits and pieces which are done in local government and the ability to delegate that power to issue certificates to all and sundry down the chain. That seems to me to be extremely dangerous. If the Government recognise that decisions under Clause 52 must be taken in the full glare of publicity so that they are taken rarely and only when they are really justified, we cannot have that proliferation of people who are allowed to issue those certificates under Clause 52.
Similarly, as regards Clause 34, there must be similar restrictions on the people who are allowed to create exemptions. It is such a widely drawn clause that it can be used to apply to almost anything that public authorities do. There must be a considerable limitation on those who are allowed to do that. If it is so widely drawn, as it is in the Bill at present, it becomes extremely difficult to hold anybody to account because the resources and mechanisms for doing that just do not exist.
But I am encouraged by what the Minister said. I hope that he will produce his amendments in time for us to produce amendments to his amendments. That will be essential if we are not to ask for re-committal, and I am sure that the noble and learned Lord will not wish to take up time in that way. I hope to see his amendments at least a couple of days before-and my noble friend would like to see them before that. I know the pressure that we found ourselves under in those circumstances, but I shall certainly want to be able to table amendments to the government amendments on Clause 52.
Many noble Lords have raised great issues of principle in their speeches. I hope that they will follow that through and that they will table their own amendments for the Committee stage. It is no good relying on an over-worked Front Bench and the odd inspiration from Back-Benchers to produce a proper set of amendments on a Bill such as this. We must all pursue our own individual inspirations so that the Government may have the benefit of as many ideas as possible as regards how the Bill might be improved.
I have started out on that road with a fine heart. I have tabled 63 amendments today which mostly cover little points which have not yet been raised and I shall 877 now deal with one or two of them. First, the Bill does not recognise the existence of the Internet. There are two main problems when it comes to that form of availability of information. First, under this Bill it is still permissible to provide information in a form which does not constitute accessibility over the Internet and to say then that that information is freely available. These days, that is just not acceptable.
Secondly, there is the problem of Crown copyright. A lot of information is "produced" to the public but remains under Crown copyright. I believe that it must be for a person who obtains information under the Bill to publish it on the Internet so that is made available to other people through the medium which is now commonly used to disseminate that information. This Bill must recognise that that is the way that things should be done. We must make the necessary provisions and changes for regulations and fees, if that is what it takes, so that we can use a modern means for communicating the information which we get under the Bill.
I have had a little difficulty which may illustrate the problem. I have been trying to obtain permission to publish on my website the list of schools which Ofsted published in 1998 as being worthy of special attention. Ofsted claims that it does not have that document in electronic form; it is not available over the Internet; and under Crown copyright it has, as yet, two months after the request, failed to give me permission to publish it, even though that list was issued to newspapers and has been widely reproduced in them. We should not allow that sort of practice to continue under this Bill.
Secondly, I wish to examine in considerable depth the question of there being no compulsion to confirm or deny the existence of information. As the Bill is currently drafted, if there is information of the type that does not have to be confirmed or denied, then the authority must say that there is information of this type. If there is not information of this type, then it does not have to say that there is information of this type. In other words, the Bill is so set that the ability not to confirm or deny that information exists is actually negated by the fact that the public authority has always to state that there is information that it is not confirming or denying exists. When there is not such information, it does not make that clear.
It is difficult to see how that will work in practice; whether the Government actually mean that in any case where there could be such information there would have to be a statement to the effect, "By the way, there might be information that we're not telling you, but we don't have to tell you", in which case, everyone will have to go to the information commissioner and ask, "Is there such information?"; or whether they have put themselves in a position where the whole system is unnecessary because it is only when there is information that they are hiding that they have to say that there is information that they may be hiding, by which it becomes clear that they are hiding information.
878 I am confused as to how that process will work and I am uncertain as to why it should appear in so many clauses. It seems that it has just been stuck in there as a bit of sticking plaster in case there might possibly be information of that kind. I shall look to Committee stage to examine individually the occasions where that provision appears and to seek from the Government examples and justification as to why that should be so.
I share also the concern of many noble Lords on the question of confidentiality, which appears in several guises in several clauses. It seems essential that public authorities should be under a duty at least to ask whomever it is who holds that confidentiality in his gift whether he is prepared for the public authority to disclose that information. Again, perhaps I may draw on a recent example. I asked in this House what was the genetic make-up of a particular patient who appears to have NV CJD. I was told by the Minister that that could not be revealed because of patient confidentiality.
I have talked to the person who is guardian of that confidentiality, who has told me the answer. The fact that the Government refuse to talk to that person and refuse therefore to obtain permission for themselves so that they cannot publicly state the information means that we cannot have the debate on the crucial consequences of the answer. The answer reveals something which should lead to public debate and should be open to us to pursue in detail. I quite understand that confidentiality must be respected in many cases, but to be able to rely on it by refusing to ask permission to break it is quite extraordinary. That is something which again we must not allow to continue.
We must also be careful to ensure that in those circumstances where partial information would be enough, that partial information is provided. If there is some information in the answer to a question which should remain secret, the Government should make efforts to anonymise the information or to render it in other ways publishable. I have seen that clone many times; for example, with exam information, where clearly one does not want to distribute the names of individual pupils in schools as to how well they have done. That is private information, but distributing examination information about schools should be something which can be done publicly. Under the Bill as it stands, there is no obligation to disclose the partial information because disclosing the full information would clearly be in breach of the Data Protection Act.
We must seek to remedy that. Indeed, we should go further and place a general duty on public authorities to assist those who seek information and to do their best to help such people obtain what information can sensibly be obtained, rather than just duplicating the game we play with Written Questions at present whereby officials try to not-quite-answer the Question asked and not quite to provide the information one would have asked for if one had asked the Question in a slightly different way. An attitude of helpfulness, having experienced many years of the other attitude from both sides, would be enormously appreciated by 879 the ordinary member of the public who does not believe that playing such games is really what life should be about.
Many times I have stated my support for a purpose clause and this Bill would support such a clause. It would inform all decisions taken under the Bill. The clause would not need to be complicated, but it could be a simple statement of what the Bill is about. For those many hundreds of thousands of people who, as part of their working lives, will have to take decisions under this Bill, life would be made easier if there were a clause at the front of the Bill stating what it is about. If that were so, they would not have to rely on their own interpretations of the rather obscure meaning of the difficult wording in many parts of the Bill.
§ 2.59 p.m.
§ Lord Cocks of Hartcliffe
My Lords, I believe that it is rather unfair to criticise the Government for tabling a Second Reading today. For starters, one can imagine the reception that whipped business would have. As regards legislation, there is a strict code of practice about the time given between various stages of a Bill and the way in which business has to be dealt with. I would write off that criticism as an Oxford Union debating point.
From time to time, when I was Opposition Chief Whip, I must confess that I did suppress information because sometimes one of my Front Bench speakers would rush to me with a leak that I would not allow them to use. I would say, "You think that you are going to be in Opposition permanently, but apart from the ethical side of it, you are not going to do it".
I do not pretend any great morality or standards, because the Conservative Chief Whips treated me in the same way. From time to time they would hand me a piece of paper, often without comment, or they might say something like, "This was left in a photocopier", when in fact they had snaffled it from one of their Members who was about to exploit it and get it back to me. A number of things were done rather differently in those days.
Listening to my noble friends on the Front Bench, I feel some sympathy for them. Perhaps we should be searching for a new procedural phrase such as, "I beg to move the Second Reading and give notice of substantial amendments to follow". We seem to be getting into that habit.
As a son of a Congregational minister, early in life I became familiar with the famous saying by Pasteur Martin Niemoeller about how, as the Germans came for successive groups of people—the Communists, the Jews, the trade unionists, the Catholics—he spoke about nothing that did not concern him, but when they came for him there was nobody to speak up for him.
My speech will not deal with the minutiae of the Bill, but I want to treat this as another major piece of constitutional legislation. We have had a great deal of constitutional legislation from this Government and it is about time that we took stock of what is happening and gave it time to bed in. I am not against it, because 880 in the 1970s I drove through Bills in relation to Scotland and Wales and the Bill on direct elections for the European Parliament. At that time we were not able to satisfy the Liberal requests, but that was not for want of me trying.
I am not against the Bill per se but, if we are honest with ourselves, we must recognise that a great deal of this constitutional change has arisen through the activities of highly organised, highly professional pressure groups. I feel that my own party has been bounced into accepting much of this. I have only one quotation to illustrate that matter. According to Hansard:At the Labour Party conference of 1994 the delegate for Bristol, South … reported back that on Thursday afternoon, 'The debate was headed "A Modern Democracy" and was a quick romp through Local Government, Constitutional Reform, Electoral Reform, "Equalities", Law and Criminal Justice and democratisation of Quangos"'. —[Official Report, 3/11/97; col. 1296.]I believe that that is almost a full house.
This matter has been pursued by highly specialist people and there is no great groundswell behind it. I am not against the Bill but I object to the fact that as a justification there has been a constant belittling of this country as though it were a second-class state. Sometimes it is almost suggested that it is a police state. That is absolute nonsense. As I do not wish to detain the House, I shall give just one example.
On 28th February 1994 in the other place, the Member for Nottingham North, Mr Allen, said:The idea of democracy as a system of government by the people, for the people and of the people is an increasingly laughable characterisation of the over centralised, unaccountable and Executive-dominated system that passes for a democracy in this country".—[Official Report, Commons, 28/2/94; col. 682.]It is not good enough to have to sustain one's argument by that sort of hyperbole—a word I have not used since sixth form. It is unfair to the ordinary people of this country. The noble Lord, Lord Alexander of Weedon, will know Mr Graham Allen; he is on the Constitution Unit Council. I believe his name appears underneath that of the noble Lord's.
The knocking of this country is extremely unfair. The other day the 190-odd of the 300 Battle of Britain pilots who are still alive held a reunion. We have to be proud of them and proud of what this country has done. We must have had something worth while because, when we were in trouble, people in the Commonwealth came from all over the world to help us out. They did not continually point out that we did not have a written constitution and no freedom of information Act. When we were in trouble they came and helped.
I asked the Imperial War Museum about that. I was told that the total dead from the Commonwealth in the First World War was 203,568—they did not quibble when we needed them—59,000 were killed from Australia alone. In the Second World War, the Commonwealth lost 108,929 people. They had again come to our aid when we needed them. India had 2.5 million serving in the Indian Army by 1945 and suffered 200,000 casualties. It was the largest volunteer army there has ever been.
881 So there really is something about this country we need to treasure. When we are talking about improvements, we need to bear those factors in mind. If we had not received that help, this country would have gone under and the people abroad who now lecture us about our failings in human rights and so forth would still be under an extremely unpleasant tyranny.
We should also remember the people who came from the Caribbean: there were some 6,000 Caribbean Commonwealth members in the RAF. I always try to remember that point when we are talking about the banana regime and the efforts of the American multinationals to do them out of business in their monoculture regime. We need to call that to mind also.
I do not suggest that we do not proceed with this Bill; it is a good Bill—if I can cast aside my old reincarnation! But we need to pause; to take stock; and to see how these things start to work out. As soon as we have introduced this Bill, there will be further demands for other changes. Earlier this week in the other place Dr Vincent Cable, the Member for Twickenham, asked a Question in relation to the investigation of the personal conduct of judges. One of our Back-Benchers asked whether there was a,truly independent evaluation and monitoring of judges".—[Official Report, Commons, 18/4/00; col. 822.]The demands will go on and on. The Charter 88 briefing which we received this morning gave this Bill a good panning. It said:Only then [when all the changes they want have been made] will we begin to build a society which delivers better public services and a great sense of trust in our elected politicians".It simply will not do continually to knock what is a fine country. Noble Lords may recall the efforts of police when they were trying to get an old lady out of her house when a bomb was discovered in the East End of London. She said, "I was hit twice and I'm not shifting". We are a marvellous country. We should remember that sometimes. And when we are making these necessary improvements, we should not let others use them as an excuse for running us down.
§ Lord Young of Dartington
My Lords, before the noble Lord sits down, in his list of honour would he be prepared to include the Bangladeshi seamen and stokers in the British Merchant Navy, who also did us a great service in the war and who number many tens of thousands?
§ Lord Cocks of Hartcliffe
My Lords, I would certainly pay tribute to them. I had a great deal more material from the Imperial War Museum, but I did not wish to try the patience of your Lordships too much. However I take my noble friend's point.
§ 3.10 p.m.
§ Baroness Williams of Crosby
My Lords, I will not pursue very far what the noble Lord, Lord Cocks of Hartcliffe, has said, beyond saying that one of the great glories of this country has been an ability to change incrementally and without revolution. It was, I 882 think, the great historian Lord Macaulay, whose thoughts were captured by Tennyson in his marvellous remark about,broadening down from precedent to precedent".What we are today debating, the Freedom of Information Bill, is very directly related to how far this country can move with the times of a new post-Industrial Revolution—the information revolution—in a way that will enable us not only to retain but to broaden and enrich our democracy by accepting that today an educated and much more sophisticated electorate wishes to be part of its own government by broadening out the process of consultation. In my view, at least in part, that is what this Bill was intended to bring about. That is why this has been a remarkable and indeed illustrious debate, conferring great credit on the House of Lords.
One of the things one feels from time to time in this House is that occasionally Ministers and other Front Bench spokesmen become aware that there is a need to alter Bills in order to meet what is a very broad and reasoned set of objections. It was the noble Lord, Lord Armstrong of Ilminster, who referred to "siren voices". It is of course possible that the noble Baronesses, Lady Hilton of Eggardon and Lady Thornton, could be so described, although I rather doubt it. However, when one gets the noble Lords, Lord Alexander of Weedon, Lord Lucas, Lord Tomlinson, Lord Young, Lord Dubs, and the noble Baroness, Lady Whitaker, to mention only some of those who have spoken, all hewing to exactly the same line of criticism and arguing, if I may say so, eloquently and effectively, one then has to ask whether Ministers should not listen and make the changes that are necessary to make this Bill what it could well be: a pillar of our democracy, rather than an obstacle to change.
I think that would be very much in the spirit of what the Prime Minister said recently not only in another place—the noble Baroness, Lady Thornton, referred to his remarks—but only a month and a half ago, when he opened a conference called Knowledge 2000. He said:Our job is to make sure it is not the preserve of an elite—but an Internet for the people.We have to democratise the new economy. We must ensure that it is open to all".I believe that what the Prime Minister then said must be borne out in the terms, thrust and meaning of this Bill. We stand on the edge of a very different world—something that, in talking about modernisation, this Government have emphasised again and again. The experience of other countries like Scandinavia, the Netherlands, the United States, Australia and Canada—this is not to cast aspersions upon our own country—has been that once one opens up the doors of information, more and more intelligent and informed citizens are about to contribute to the process of making laws.
Today in the United States laws are put on the Internet, and almost immediately large numbers of citizens try to take part by suggesting amendments, drafting proposals, indicating comments and 883 suggesting ways in which clauses can be improved. I believe that our own intelligent and responsible citizenry could make a similar contribution.
I do not believe that this Bill, as it currently stands, with these huge areas of exemption from its purpose, with the substantial requirements which must be met in order to allow public interest to take precedence over what is called the effective conduct of government, is yet in a position to encourage that new development. If we do not change the Bill in a way that I shall later suggest the noble and learned Lord is in a very strong position to do, what troubles me is that we shall simply find ourselves like so many Canutes sitting on a wet beach telling the rest of the information revolution to, "Go away".
Bluntly, as implied by the noble Lord, Lord Williamson, in what he said about the European Union, if one wants to get fuller information one turns at the present time to the EU websites in many areas. They are far more open and contain much fuller information than anything that is available in this country on, for example, a large range of economic and financial matters. However, in order not to trouble noble Lords who do not care for the European Union, perhaps I may give the example of the United States where many of our newspapers have gone for information under the Freedom of Information Act on such matters as thalidomide and, more recently, on BSE—information that they could not get from British Government departments.
During the next year or two, I suspect that many of us will have a lot of fun and run up very large telephone bills ringing Scotland in order to obtain information that is barred in Britain, or, more precisely, in England and Wales. That is hardly an encouraging priority for successful devolution of power. It will simply make Westminster look old-fashioned, out of date and obsolete in comparison with Edinburgh, let alone other countries in the world. I believe that we will sit here looking foolish if most information can be acquired from other sources.
There is also another crucial aspect here to which the noble Lord, Lord Young, referred. All of us are well aware, both in government and outside, of the extensive scale of leaking of government information. Indeed, it has become the case that if you want to know what is going on, you read the more irresponsible newspapers rather than turning to government. In my view, that is in part a cause of the profoundly disturbing poll results that show distrust in governments of all parties.
By making more information available, Ministers will actually find themselves getting very much better coverage and discussion on their policy proposals because they will not be relying on leaks, many of which are heavily distorted by the political ambitions of the leaker. Those of us who have been Ministers are well aware that there are a few people in every government who like to engage in the process of being opportunistic at the expense of their colleagues by being readily available for the more irresponsible journalists with information about those colleagues 884 which is not intended to be helpful to them. Therefore, for those reasons, quite apart from those that have already been very effectively argued in this House, I believe that this Bill will find itself bypassed if it is not fundamentally changed.
I would be wasting the time of the House if I went through yet again the major points made so effectively by other Members of this House. However, there is the extent of the Bill's exemptions, which go far beyond what I believe is really essential to protect what one might describe as the "crucial secrets" of government. The noble Lord, Lord Alexander, went further than most of us by referring to Clauses 25 and 26 which protect the communications between governments. But in a globalising world deeply concerned with human rights legislation which goes beyond borders, one cannot have total protection for communications between governments. There was a good example of that in the House earlier today when many questions were raised about the communications between the Prime Minister and the Prime Minister of Russia. That kind of question will not go away.
Many noble Lords referred to another aspect of the Bill; namely, the weakness of the test that needs to be met as regards deciding to refuse to release information. Many of us wanted "substantial harm" or "substantial prejudice" to be included in the terms of meeting that test. With great respect, I believe that the noble and learned Lord too easily dismissed the concern that many of us have and which was so eloquently expressed by several speakers, including the noble Lord, Lord Tomlinson, and the noble Baroness, Lady Hilton of Eggardon, who sit on his own Benches. The test appears to be relatively weak and means that a "qualified person", who may be no more than a middle-ranking official, will be in a position to say that information to a citizen shall not be made available.
I refer in passing to the weakness of the commissioner. I should like an assurance from the Minister that the commissioner will have adequate resources. I hope that he will look again at the position of the commissioner and give her the ability to make the final judgment in all but the most extreme cases.
The noble and learned Lord, Lord Falconer of Thoroton, is widely recognised to be a man of great ability and, if I may say so, also of great influence. I hope that the Cabinet will listen to him and to the views expressed in this debate rather than to what one might describe as the somewhat tainted advice—if this is true; it may be just gossip—of one of only two Presidents of the United States this century to be charged with impeachment. That is not, surely, the best possible source of advice on issues concerning freedom of information.
I believe that the noble and learned Lord, Lord Falconer, has the position, the power and the influence to be able to turn this Bill into an effective weapon of modernising government and to make government more open, responsible and accountable to citizens. I very much hope that he will attempt to do that because this is one of the few occasions when almost the whole House—I exclude the noble Lord, 885 Lord Armstrong of Ilminster, for reasons that he gave powerfully, but which I do not believe in the end carry sufficient credibility—speaks with a single, powerful and effective voice in the name of wider democracy. I trust that the Minister will listen carefully to what has been said.
§ 3.21 p.m.
§ Lord Northbrook
My Lords, in February 1996 the Prime Minister stated that,The first right of a citizen in a mature democracy should be the right to information".In July 1998 the Chancellor of the Duchy of Lancaster, David Clark, said in the other place,This Government are committed to freedom of information legislation. We have the declaration in our manifesto and we shall deliver on that manifesto commitment".Therefore we on this side of the House were not surprised when the Bill was produced. However, when we look at it in more detail, as with so much of what New Labour produces, we find that it is not what it appeared at first to be. We can only concur with Maurice Frankel, director of Freedom of Information, thatIn key areas the Bill is weaker than the openness code introduced by the Conservatives in 1994".In a powerful speech my noble friend Lord Hunt of Wirral confirmed that.
We on this side of the House have four main objections to the Bill. First, it could keep more information secret than is currently the case under the code of practice due to an increasing number of exemptions, more class exemptions and replacement of the "harm" test with the tighter test of "prejudice" on the release of information. Secondly, Ministers and officials would continue to make decisions rather than an enforcement body. Thirdly, there is no role for Parliament which should have the final say in matters of public interest. Fourthly, the process of application to the courts is cumbersome for members of the public.
Clearly we are not the only party worried by the proposals. Almost all speakers were concerned about aspects of them. The Minister had to rely, albeit grudgingly, on the noble Lord, Lord Armstrong of Ilminster—described by the noble Lord, Lord McNally, as a Mandarin's Mandarin—for the sole voice in support of the Bill as it stands.
In the other place up to 36 Labour Back-Benchers voted unsuccessfully for amendments to be made to the Bill. We on this side of the House will explore the detailed proposals. First, we question the class exemptions which extend beyond the scope of the code of practice, such as the exemption relating to investigations into accidents. Secondly, we shall want to explore the test for disclosure, as my noble friend Lord Mackay of Ardbrecknish said, exploring "prejudice", "serious prejudice" and "serious harm".
Thirdly, we would amend arid strengthen the enforcement procedures, replacing, the commissioner and tribunal with a more powerful information ombudsman and a parliamentary information committee. This change would bring the decisions 886 made on freedom of information under democratic parliamentary control. The new committee would be modelled on the Public Accounts Select Committee. The route of appeal would he restricted to the applicant, giving authorities no right of appeal against decisions of the ombudsman. The role of the data protection registrar would not be merged with that of the ombudsman, thus separating the role of creating openness from the role of protection and secrecy.
As many noble Lords have said—including the noble Lords, Lord McNally, Lord Hunt of Wirral, Lord Lucas, and the noble Baroness, Lady Hilton of Eggardon—there should be a purpose clause. This was strongly recommended by all sides in the other place at Report stage. For instance, Dr Tony Wright, the Labour chairman of the Public Administration Select Committee, said:A purpose clause would set a genuine tone arid represent a culture".He considered it a mystery why the Government was reluctant to endorse such a clause.
A purpose clause is also favoured by the CBI, which, in a parliamentary brief in February, stated that such a clause would send a clear message to public authorities and the public at large that a cultural change in favour of open government is expected.
Perhaps I may briefly mention other CBI worries about the Bill. It is worried about too much disclosure being necessary by public authorities, where it considers that public interests in disclosing override the commercial exemption of not doing so due to it constituting a trade secret or prejudicing commercial interests.
In addition, the CBI is concerned—as are many noble Lords and MPs in the other place—about Clause 33. In a nutshell, it feels that the scope of the exemption is too broad. By excluding information relating to the formulation or development of government policy, it feels that less sensitive information—such as factual information and background papers that inform policy considerations—should normally be available at least once a policy decision has been made.
In summary, we find that this Bill should really be called "The Restriction of Information Bill". Following the severe criticism of the Bill from all sides of this House and in the other place, I am sure that it will require careful revision here.
The Press agree. In a leader on 5th April, The Times expressed the hope that the Lords would give the Bill,The rough ride it deserves"—and,Breathe some living freedom into this mournful ghost".We plan to do exactly that in our scrutiny of it at the Committee stage.
Clearly the Government will have a fair number of amendments. I hope that they will table them quickly, as stated by my noble friend Lord Lucas. If they make any substantial changes to a clause, may I suggest that they delete the old clause and insert a new one in order that we may easily read the amended clause.
§ 3.28 p.m.
§ Lord Falconer of Thoroton
My Lords, it has been an extremely interesting and stimulating debate. Perhaps I may deal with the main themes that have run through it. A large number of points have been raised—many of which we shall get an opportunity to explore in Committee.
It is worth pointing out that I do not share the view of the noble Baroness, Lady Williams of Crosby. Various points have been made and, as one would expect in a Second Reading debate, many noble Lords raised concerns about the Bill. But there was a wide range of different concerns; many noble Lords would support one part of the Bill but not another.
The noble Lord, Lord Northbrook, shakes his head. I am happy to say that he is the one who, two minutes ago, went so far as to say that the Bill provides for too much information to be disclosed. That is rather out of tune with what a number of other noble Lords are saying.
§ Lord McNally
My Lords, I heard the Minister make similar comments from a sedentary position. I really do think that he has misheard the debate if he does not see that some very solid, common criticisms were made in a range of contributions. He really must take on board those common criticisms. If he did not take them on board while he was listening to the debate, I suggest that he reads Hansard and they will become very apparent to him.
§ Lord Falconer of Thoroton
My Lords, I was listening very closely. I shall go through the main areas and explain the nature of the criticisms and where there were differences. But perhaps I may start with a number of points of principle.
First, we as a government are committed to introducing a legally enforceable right for the citizen to obtain information from the Government. Contrary to the views expressed by the noble Lord, Lord Hunt of Wirral, whose personal commitment to disclosure I do not for one moment doubt, and contrary to the views of the noble Lord, Lord Armstrong of Ilminster, this cannot be done by a code of practice; it must be done by a legal right. We are the first government who have ever undertaken that burden. It is not without irony that we are criticised by the main Opposition party across the Dispatch Box for doing it in a particular way when it had 18 years in which to introduce such a Bill and never for one moment thought of doing so.
I cannot help but mention the irony of the noble Lord, Lord McNally, a man of influence in the 1974–79 government who concluded, after five years in power, that, if there was time, they thought they might introduce a code of practice. Sitting beside the noble Lord, Lord McNally, is a member of the Cabinet of that same government who has just delivered—the opportunity having passed by approximately 21 years ago to have made a difference about it—criticisms of our introduction of a legal right for people to have 888 information from the Government. I shall of course listen to the detailed criticisms, but it is impossible to resist the observation, "It's a bit rich!"
§ Baroness Williams of Crosby
My Lords, perhaps I may respond to the noble and learned Lord very briefly. First, he may remember something called the Croham directive, introduced in 1977, which produced a very substantial reduction in the amount of protected information. Secondly, perhaps I may say—because it has appeared in public in a book—that I was one of three Ministers in the 1976–79 Cabinet who supported a Freedom of Information Bill.
§ Lord Falconer of Thoroton
My Lords, I am very interested to hear that.
It is important to recognise that we are a government who have not heard any siren voice to distract us from the proposition that there must be a legally enforceable right.
Secondly, I accept all of the points made in relation to the fact that a Bill such as this should be as clear as possible in what it is trying to achieve. If any amendments assist in relation to clarity, we shall hear them with a very sympathetic ear and make changes to give effect to that principle of clarity. No one could disagree with that.
Thirdly, as I said at the outset, we shall equally remain open-minded about any proposals in relation to the Bill that could improve it in the context of the balance which the Bill seeks to strike. Whatever the detailed criticisms may have been, there appears to be broad consensus in the House that a number of interests have to be balanced. This is a Bill to compel disclosure of information. That compulsion, however, must be seen in the context of not damaging badly collective responsibility, and of giving government the freedom within which to make policy decisions. It should not unrealistically intrude on people's privacy and it should not trample over appropriate confidentiality. No one would disagree with those principles. The question is the extent to which we have the balance right; and, if we have the balance right, whether the drafting of the Bill is appropriate to give effect to that balance.
The difficulty in relation to the whole debate on the Bill is that, in expressing criticisms and concerns, people refer to different parts without looking at the balance as a whole. With a few exceptions, people have not stepped back and asked: is the balance about right? We believe that we have got the balance about right. If one moves the balance one way or another, it becomes difficult to have a Bill that achieves the necessary freedom to disclose information while also preserving people's individual rights and good government.
Several speakers referred to the number of exceptions; quantity was a real concern. They referred to the term "exemptions", claiming that it meant all the various provisions in the Bill which step back from a full obligation to disclose: that included not merely what may be termed class exemptions, but also those depending on a prejudice test.
889 Criticism having been expressed in regard to the number of exemptions, not one speaker suggested that any of the areas covered by them should not be covered in some way or another. No one, for example, said that there should not be some exemption in relation to policy, international relations or criminal investigation. So, having accepted that there must be some dilution in relation to the areas covered by what may loosely be described as "exemptions", whether class or prejudice, no one indicated that their number should be reduced, despite constant reference by a number of noble Lords to the number being too high.
I wonder whether that is a hangover from the comparison between the wording of the White Paper and the terms of the Bill. Although the wording of the White Paper was in many respects different from that of the Bill as originally drafted, the areas in which there is dilution are not substantially different from the proposals in the White Paper. So, although we shall have to explore this area again in Committee, I wonder whether the reference to complaints about numbers was properly thought out.
There were also complaints about the "harm" test. A number of noble Lords said that the reference should be to "substantial harm". That was the kind of test they were looking for. The word that was chosen where we are dealing with a harm test is "prejudice". To all lawyers present—there are depressingly few— "prejudice" will mean some real harm to government, or whatever the reference is in a particular part of the Bill. It is something real, and it is harm. Should it be "substantial harm", or should it be "prejudice"? That sounds like the kind of discussion that a lawyer would like to enter into, but it does not cut to the heart of the debate. It sounds much more theological, if I may use that word in this context, rather than cutting to the fundament of the Bill.
I noted that much of the rhetoric in the debate was "high octane". But when it comes to the issues, that which divides us does not necessarily prove to be quite that great.
§ Lord Mackay of Ardbrecknish
My Lords, I thank the Minister for giving way. If it does not make that much difference, why will the Government not accept the change to "substantial prejudice", and be on all fours with the Scottish Executive?
§ Lord Falconer of Thoroton
My Lords, the word "prejudice" is more precise legally. I do not think it right to add into statute unnecessary wordage. The matter should be focused exactly where one thinks it should be, and it should be accurate.
There have been complaints that there are blanket exemptions; for example, that under Clause 33, in respect of which there has been substantial debate, all information relating to the formulation or development of government policy is exempt; and it is asked why we do not simply provide that kind of exemption on a harm basis as well, rather than on a class basis.
890 I take Clause 33 as an example to indicate how the Bill works. The provision demonstrates that what applies to the class exemption in that clause applies also to every other substantive class exemption. It must be determined whether the information relates to the formulation or development of government policy; if so, it is exempt as a class. However, under Clause 13 the Minister is obliged to consider whether the public interest in maintaining the exemption is out weighed by the public interest in disclosing information which would otherwise be exempt. The exemption having been established, the Minister is nevertheless obliged to consider whether the public interest it disclosure outweighs the existence of the exemption.
In relation to Clause 33, much reference has been made to the fact that when a Minister makes a policy decision there will be a good deal of factual background material, the disclosure of which will cause absolutely no harm but will assist the citizen in seeing how government operate. Indeed, there will be. Under Clause 13(5) it is specifically provided that in making any decision under subsection (3) or (4) in a case where the information is exempt, the Minister must have regard to the public interest in communicating to the applicant the factual information which has been used, or is intended to be used, to provide an informed background to decision-taking.
Therefore, in relation to the Clause 33 exemption, the Minister must consider whether the public interest in disclosure outweighs the exemption. He is specifically directed by the terms of Clause 13 to the public interest in disclosing the factual background that is relevant to the decision-taking. Many noble Lords have said that that should be done. Noble Lords have accepted that Ministers should be given space within which to take decisions. Collective responsibility requires that one should not be able to disclose what one Minister said to another, which it might be appropriate for a Cabinet Minister to say 21 years later.
§ Baroness Whitaker
My Lords, can my noble and learned friend confirm that Clause 13(5) does not give a right to factual information?
§ Lord Falconer of Thoroton
My Lords, the provision places on the Minister a legal obligation to exercise his or her discretion in this respect. If he or she decides not to disclose the information, the applicant can appeal to the information commissioner. If the information commissioner rules against the Minister, under Clause 52 the Minister is entitled to override it. In another place my right honourable friend said that if possible he would introduce amendments to ensure that, as far as concerned central government, only a Cabinet Minister could override the decision of the information commissioner after a collective process had taken place.
§ Baroness Hilton of Eggardon
My Lords, does my noble and learned friend believe that a politician is the 891 appropriate person to judge objectively public interest questions in relation to information within his own department?
§ Lord Falconer of Thoroton
My Lords, an objective conclusion is reached by the information commissioner who has to rule on whether the Minister is right in that respect. If the Minister overrides what is said by the information commissioner, he or she must explain why. The Minister must have the support of Cabinet colleagues and his or her decision is subject to judicial review. It is for this House to decide whether or not Cabinet Ministers would regularly overrule the information commissioner and persuade all their Cabinet colleagues to take a political risk in relation to this matter. I should have thought that, as the noble Lord, Lord Lucas, said in relation to the way in which central government behaved—I appreciate that he had great concerns about other arms of government—that looked a pretty effective way of ensuring that it would be very rare indeed that a Cabinet Minister would reach that stage. I ask noble Lords to consider carefully whether that procedure is quite a good safeguard.
§ Lord Tomlinson
My Lords, does my noble and learned friend agree that the tortuous procedure that he has just outlined is only the procedure to gain access to factual information, which our honourable friend in another place said could not be separated out? Does he not realise that the tortuous nature of this argument is exactly what is causing concern among his friends, who long to support him?
§ Lord Falconer of Thoroton
My Lords, all that the citizen has to do is to make the application. If it is refused, he applies to the information commissioner. That does not look particularly tortuous to me. It is done in this way because in the process of making a decision a Minister will talk to other Ministers and take advice from officials, and perhaps from people outside, and this will frequently involve discussion of a mixture of fact and opinion, totally tangled up. It would be ridiculous that advice should be given in a way not designed best to assist the Minister, but designed to deal with a freedom of information regime. When taking decisions, one wants security that there can be a full and frank exchange of views and that collective responsibility will not be undermined.
At the same time, we want a sensible and clear procedure whereby after a decision is made any material which it would not cause harm to disclose will be disclosed. That is the effect of Clause 13. That is what noble Lords have said throughout this debate that they want: the protection of collective responsibility, the ability for there to be a full and 892 frank exchange of views between Ministers and advisers, and at the same time disclosure of all material that would not cause harm. That is what the Bill has earnestly tried to do.
Before noble Lords attack the process, they should recognise that the balance that we are seeking to strike is precisely that which I sense the House wants. I earnestly ask noble Lords to think whether we have got it right.
§ Lord Mackay of Ardbrecknish
My Lords, perhaps I may be helpful to the noble and learned Lord. If the problem is that every Member of the House except his good self is, because he or she is so tired after a long Session, or for whatever other reason, unable to follow this simple matter, would it not be sensible to send the draftsman on a quick course in writing simple legislation, and then let us see it in its simple form, which, if the Minister is right, we would then all understand and applaud?
§ Lord Falconer of Thoroton
My Lords, I fully understand that noble Lords can often see better ways of doing something than has the draftsman in the Bill; equally, I can see that in a Bill such as this, which covers a wide range of matters, its meaning does not immediately leap out of the page. But once one has gone through it, one can see what it is trying to achieve, although, as I have said, if anyone can come forward with ways to make it clearer, we on the government side will consider them.
I hope that I have described what the Bill's processes are, and that upon reflection the House will see that it tries to achieve that which noble Lords, in the various points they have made, have sought to achieve. I do not think that we are as far apart in respect of the policy issue or the blanket exemptions as the House may think.
§ Baroness Hanham
My Lords, does the noble and learned Lord accept that the Bill covers a very wide range of authorities? Is he suggesting that a similar system could be replicated within those authorities? As I said earlier, I am speaking particularly of local authorities, where for "the Minister" one must read "the leader and the cabinet". Is the noble and learned Lord suggesting that that arrangement should be available to a local authority as well?
§ Lord Falconer of Thoroton
My Lords, my right honourable friend in another place indicated that he would consider how he would insert "Cabinet Minister" in the Bill; and how he would ensure that there would be collective responsibility. He said that he would actively consider the position as regards local authorities. The material I have described in relation to the Cabinet Minister and collective responsibility may not be so easy to replicate in relation to local authorities. However, my right honourable friend in another place said that he would actively consider the position in relation to local authorities.
893 A number of noble Lords supported a purpose clause. The noble Lord, Lord McNally, and the noble Lord, Lord Lucas, had subscribed unanimously to a conclusion of the ad hoc committee set up to consider the issue that there should not be a purpose clause. They had subscribed unanimously to the conclusion that there should be an extension to the Long Title. We accepted the advice of that same committee and changed the Long Title. If those noble Lords have now changed their views, they might indicate why that is and how it would help in relation to the balance of the Bill, having regard to their acceptance that the interests of disclosure, confidentiality and good government have also to be considered. That may be a rhetorical question for me to ask at another stage.
It is asked why the person who is the guardian of the data protection regime—in effect, that person is the guardian of people's privacy—should also be the information commissioner, the guardian of disclosure by the Government. As I think everyone recognises, from time to time a clash between an individual's privacy and the obligation to disclose will have to be resolved. One does not avoid that clash by separating the people who have to make the decision. One has to set up structures which ultimately involve someone balancing privacy against disclosure. An individual involved in both regimes' namely, Mrs France—I believe that she commands the respect of all sides of this House and another place—is a sensible person to do that.
We can explore many points in Committee. However, I believe that we have got the balance right. The basic interests that we believe must be satisfied in the Bill do not seem different from those to which noble Lords have referred during the debate. The question is: how can we make the provision clearer? If we can do so, we shall. How can we give better effect to the balance which has been struck? We shall listen with an open mind; but I believe that we have the balance right. Far from it being a matter of criticism, it is a matter for congratulation that the Government have introduced a legally enforceable right for the citizen to find out what his Government are up to. I warmly commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of' the Whole House.