Freedom of Information

HL Deb 05 December 2001 vol 629 cc838-75

3.10 p.m.

Lord Goodhart

rose to call attention to the case for individual rights of access under the Freedom of Information Act 2000 to information held by central government departments to come into force at the same time as publication schemes are implemented in November 2002; and to move for Papers.

The noble Lord said: My Lords, exactly five years ago in December 1997 the Government published a White Paper entitled, Your Right to Know. It was published in pursuance of the Government's manifesto commitment to freedom of information. The Minister responsible for the White Paper, Dr David Clark, the then Chancellor of the Duchy of Lancaster, and now the noble Lord, Lord Clark of Windermere;—I am delighted that he is to speak in the debate—said in the first paragraph of his foreword to the White Paper: Openness is fundamental to the political health of a modern state. This White Paper marks a watershed in the relationship between the government and people of the United Kingdom. At last there is a government ready to trust the people with a legal right to information. This right is central to a mature democracy". The first two paragraphs of the White Paper state: Unnecessary secrecy in government leads to arrogance in governance arid defective decision making. The perception of excessive secrecy has become a corrosive influence in the decline of public confidence in government. Moreover, the climate of public opinion has changed: people expect much greater openness and accountability from government than they used to. That is why we pledged before the election to introduce a Freedom of Information Act. The purpose of the Act will be to encourage more open and accountable government by establishing a general statutory right of access to official records and information". Those are sentiments with which I could not agree more powerfully.

The introduction of freedom of information legislation was not before time. As the White Paper points out, Sweden has had a public right of access to official information since the 18th century; the US since 1966; France since 1978; Canada, Australia and New Zealand since 1982; and the Netherlands since 1991. In addition, Ireland adopted a Freedom of Information Act in 1997.

Since 1994 the United Kingdom has, of course, had a non-statutory code of practice on access to government information which is overseen by the Parliamentary Commissioner for Administration, the ombudsman. That was undoubtedly a step forward. We are happy to acknowledge the role of John Major's government in achieving that step. But the code is no substitute for proper freedom of information legislation. I note in passing that the Government, in the person of the Foreign Secretary, have in the past two days for the first time rejected a recommendation of the ombudsman for the release of information under the code.

The 1997 White Paper received an almost unconditional welcome from people concerned with freedom of information. Unfortunately, in July 1998, the noble Lord, Lord Clark, lost his place in the Cabinet and responsibility for freedom of information was transferred to the Home Office. At that point, unfortunately, the rats got at it. In May 1999, the Home Office published a further consultation paper containing a draft Bill. Supporters of freedom of information reacted with horror to some of the contents of that Bill. The draft Bill was the subject of reports from the Select Committee on Public Administration in the other place and from an ad hoc Select Committee in your Lordships' House chaired by the noble and learned Lord, Lord Archer of Sandwell. I am glad that several members of the Select Committee of your Lordships' House are among the speakers today. I am sorry that the noble and learned Lord, Lord Archer of Sandwell, is not able to contribute. Although wishing to do so, he has another engagement.

Both reports were highly critical of many of the provisions in the draft Bill. As a result of the reports and pressure from Members of both Houses of Parliament, the eventual Freedom of Information Act was a considerable improvement on the draft. But it remains far from perfect and undoubtedly needs significant further amendment.

For the purposes of today's debate, it is important to note that the Act requires public authorities to adopt publication schemes relating to the pro-active publication of information by authorities. But, separately and much more importantly, the Act requires public authorities to comply, subject to exemptions, with requests from members of the public for information held by those public authorities.

Under the commencement provision of the Act, in the usual way rule-making powers come into force immediately on enactment. But the substantive provisions of the Act are to come into force five years after the date of enactment, or on such earlier date as the Secretary of State will direct.

I return to the history of the Bill's enactment. It was introduced in the 1999–2000 Session and received its Second Reading in your Lordships' House on 20th April 2000. In opening that debate, the noble and learned Lord, Lord Falconer of Thornton, said, I draw your Lordships' attention to the commencement provisions … 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".—[Official Report. 20/4/00; col. 829.] The Bill obtained Royal Assent on 30th November 2000, so commencement must take effect not later than 30th November 2005. At the time of enactment it was made clear that the Government intended to introduce a public right of access under the Freedom of Information Act by a phased programme starting with central government departments in the summer of 2002. Other public authorities would follow in due course. Central government departments had already had over six years' experience of compliance with the code of practice.

A target date of July 2002 for central government information was predicted by Mike O'Brien, who was then the Parliamentary Under-Secretary at the Home Office, at a conference which I attended in March this year. A similar target date had been given by David Lock, then the Parliamentary Secretary at the Lord Chancellor's Department, in the Committee stage of the Bill in the other place. Internal government circulars made similar assumptions.

At no time until 13th November this year did the Government make any public statement indicating a departure from that timetable. As I have already mentioned, the noble and learned Lord, Lord Falconer of Thoroton, said at Second Reading that he expected that the Act's provisions would apply to central government as soon as the Information Commissioner was able to enforce them.

On 10th October this year, the noble and learned Lord the Lord Chancellor met Elizabeth France, the Information Commissioner, and asked her to let him have her suggested timetable for publication schemes and access rights under the Act. She replied in a letter of 18th October. The commissioner made it clear that in her view adoption of publication schemes should coincide with the implementation of the public right of access to information. Her letter states: It seems sensible to me to implement the Act in tranches, bringing public authorities onstream sector by sector. This will enable us to concentrate on groupings of public authorities operating in similar areas, with broadly comparable responsibilities and often holding similar classes of information". Then, omitting a paragraph, the letter continues: Another point of principle on a phased implementation programme which has been raised in the past is whether to make a distinction between implementing the duty to adopt and operate a publication scheme and implementing the duty to respond to requests for information not included in a publication scheme. One model would be to have, say, a 3 month period elapsing between publication responsibilities being introduced and individual rights of access coming onstream. Whilst this might be convenient for public authorities, further reflection suggests to me that it would be confusing and possibly frustrating for the citizen. If information for publication has been identified and is available under a publication scheme, surely the public authority ought to be ready to deal with individual requests for other information. Citizens will not understand why they can have information referred to in a publication scheme but cannot be told whether they can have other information". She added: I would therefore not favour splitting the implementation of a publication scheme from the implementation of related individual access rights". The commissioner went on to suggest what she described as, a realistic and comprehensible timetable for implementing the Act". She proposed that the Act should be implemented in respect of government departments on 1st October 2002 and should proceed by a series of steps ending on 1st October 2004, by which time the Act would be fully implemented.

The views of the commissioner seem to have coincided with those of the noble and learned Lord the Lord Chancellor. His preference for phased implementation rather than a "big bang" is on record, most recently in evidence to the Home Affairs Select Committee in the other place on 16th October this year. But phased implementation is not what happened. On 13th November, the Lord Chancellor published a timetable providing for publication schemes to be brought into effect by stages, starting with central government in November 2002 and ending in June 2004. But the much more important right of public access to information will not be implemented at all until January 2005 and will then be implemented in a single big bang.

That raises important and unanswered questions. First, why did the Government reject the Information Commissioner's recommendation that publication schemes and right of access to unpublished information should be implemented at the same time? Secondly, why did the Government decide to defer the right of access to public information for central government until January 2005 instead of October 2002, as recommended by the commissioner? Thirdly, when were those decisions taken? Was the commissioner being led up the garden path by being asked to comment on issues which were already decided? And, fourthly, was the Lord Chancellor's preference, stated as recently as 16th October this year, for phased implementation overruled, and, if so, by whom?

The inference that I shall draw, unless those questions are answered very persuasively, is that the noble and learned Lord and the commissioner were mugged by a gang of departmental Ministers who did not want freedom of information at all. I suspect that January 2005 was chosen as the last date which would avoid the embarrassment of fighting a general election in the spring or summer of 2005 with the Freedom of Information Act still not implemented.

The time that will be taken to implement the Act is unnecessarily and unacceptably long. The lapse between legislation and implementation was seven months in New Zealand, nine months in Australia, one year in Canada and, for central government, one year in the Republic of Ireland. Why do we need more than four years in the United Kingdom? Central government have had seven years' experience of working with the code. Therefore, the changeover to the Act should not create serious problems for them.

I began by talking about the White Paper of the noble Lord, Lord Clark, Your Right to Know. The last sentence of that report states: The long wait for the right to know is nearly over". Even now, the long wait is not nearly over. The wait will last for another three years and it will have lasted for seven years from the date when the White Paper was published. That is far, far too long. My Lords, I beg to move for Papers.

3.25 p.m.

Baroness Crawley

My Lords, I am grateful to the noble Lord, Lord Goodhart, for the opportunity he has given the House to debate aspects of the Freedom of Information Act, and I acknowledge his long-term commitment to its creation.

This Act will bring about an irreversible culture change in the transparency of government and of the entire public sector. Of course, as we heard from the noble Lord, Lord Goodhart, it did not go as far as some noble Lords would have wanted. From my time on the House of Lords ad hoc Select Committee on the Bill in 1999, I well remember the arguments and the controversy over content and over the famous 23 exemptions.

But one should never lose sight of the fact that this Government have been the first ever in our history to enact a general statutory right of access to information. Of course, the present code of practice, referred to by the noble Lord, Lord Goodhart, was brought in by the Official Opposition when in government. However, the code is extremely limited: it is discretionary and cannot be enforced. It also covers only central government and some quangos and is largely unknown and unused by the public.

The need for an Act that went beyond the rights that individuals already have to access their information held on computer under the Data Protection Act was rightly accepted by the Government. But I hope that, in the period leading up to full implementation of the Freedom of Information Act, the code of practice will be viewed in the context of the new Act and that those seeking information under the code will be taken extremely seriously in their endeavours.

Our debate this afternoon is specifically about the timing of the Act's implementation. In order to grasp the scale of what is involved in implementation, I believe that it is useful to look at the list of public authorities covered by this most important Act. They are: all government departments; local authorities; and NHS bodies, including hospitals, dentists, pharmacists and opticians. Schools, colleges and universities are also covered, as are the police, both Houses of Parliament, the Northern Ireland Assembly and the National Assembly for Wales. There is also a long list of other public bodies, ranging from various official advisory and expert committees to regulators and organisations such as the Post Office, the National Gallery and the Parole Board—70,000 authorities in all.

This is the most determined unlocking of information to public scrutiny that we have ever attempted in this country. It will, over time, transform the way that we are governed. Transparency will become the norm rather than the exception. Therefore, given the enormity of the task ahead and the fact that government have a responsibility to ensure that public administration continues to run effectively as the duties set out in the Act are imposed, I am persuaded that the Government are wise to bring the new duties and rights created by the Act into force incrementally, with an individual's right to access created in January 2005. Provided that the time between now and 2005—

Lord Lester of Herne Hill

My Lords, I am grateful to the noble Baroness for giving way. Although I follow her argument completely, she will appreciate that the Motion in the name of the noble Lord, Lord Goodhart, focuses only upon central government. Is it her argument that the fact that many other public authorities are affected justifies not bringing the Act into force for central government for another several years? Is that her argument?

Baroness Crawley

My Lords, no. My argument is that the time between now and 2005 used productively will relate to central government and all the departments within central government. However, it will also relate to the effectiveness of the other public authorities beyond central government. Even within central government, it is better to have the measure delivered effectively, rather than speedily but ineffectively.

Lord Maclennan of Rogart

My Lords, does the noble Baroness reject the view expressed by Mrs France—the Government appointed her to advise on the implementation—that it would not only be more timely but better to move, first, on central government and to do so by 1st October of next year? Does she specifically reject the advice of the person appointed by her right honourable friend?

Baroness Crawley

My Lords, I thank the noble Lord. It is important for government to listen to all expert advice including that important source. It is then the responsibility of government to make decisions on that advice but also on their own analysis of what is possible.

I am persuaded that the Government are wise to bring the duties into force incrementally with the "big bang" date for individual rights of access in 2005. Provided that the time between now and 2005 is used productively, it will ensure that those rights are delivered effectively after proper time for planning. Setting up the public schemes first allows departments to get their records in order in readiness for the individual right to apply. It also spreads the workload and cost over three years, ensuring that the work of the department can continue without disruption while the necessary cultural change, which will be massive, is delivered.

In getting the balance right between the speed of implementation—that is what we focus on today— and delivering new rights, my noble and learned friend the Lord Chancellor was criticised during debate on the Human Rights Act. But it is accepted now that the preparation period taken to implement that Act was in fact very worth while.

Critics of the Government's chosen method of implementing the Act have referred to overseas legislation to support their case. The noble Lord, Lord Goodhart, referred to the implementation timetables of other countries. Ireland is often used as a comparison. Yet Ireland's legislation is riot retrospective, as is ours; and I understand that four years after its Act has been passed, it has not rolled it out to anything like the equivalent number of bodies that the Government intend on their timetable.

Approximately 70,000 public authorities and their work are covered by the Act. The preparation and awareness-raising of both the public and the authorities must begin in earnest as soon as possible. I should be grateful if my noble and learned friend the Lord Chancellor would set out today in his response how that awareness-raising is to take place. The best delivery of people's legal rights under the Act is what concerns us all and must be our ultimate goal.

3.34 p.m.

Lord Lucas

My Lords, one of the difficulties with this form of debate is that we get to the meat of it only when the noble and learned Lord the Lord Chancellor replies. Many of us would like to know what he will say so that we can deal with it in the course of our speeches. Thankfully, someone has provided the noble Baroness, Lady Crawley, with a brief. It was pretty tedious and boring but at least it gave an idea of the Government's attempted defence.

I believe that we did the Government an injustice when we debated the Freedom of Information Act. At that time, we accused them of backsliding and producing a mouse rather than a lion of an Act. We were generally abusive about what they put before us. We should have been extremely grateful. It is clear that we were lucky to get anything and that had we left the issue another few months any commitment to freedom of information would have disappeared entirely.

The Government are now making the maximum possible use of the timescales under the Act to backslide from what was a clear, open and ministerial commitment to begin the publication of the availability of central Government information in late 2002. That commitment was backed up by departmental understanding of what it meant to have a Freedom of Information Act because departments have operated the code for so long. They clearly understood that late 2002 was the likely timescale. Ministers have committed themselves to that timescale on many occasions in public. We are now told that we are not to be allowed that access until early 2005, two and a half years after it had been promised.

What are the possible reasons for that change in date? Let us consider briefly some of the practical arguments.

Could it be that government departments could not get ready in the time between the passing of the Act and late 2002? That is not what government departments said at the time. It is not what has happened in other countries. There has been no indication that government departments find any difficulty with that timescale.

Could it be that the preparation of publication schemes has to come long before public access? No, my Lords. Publication schemes are only a peripheral activity. One could have, as we have now, public access before publication schemes. The two need not go in tandem.

Could it be that the electronic records management system which the Government are supposedly to have in place by late 2004 is needed before we can have an effective public access to information? No, first, because we can have such access now; secondly, because most of the access which the Government are said to be finding difficult concerns past records which will not be subject to the electronic records management system; and, thirdly, because the idea that the Government will succeed in introducing the system in late 2004 is laughable. It is a major IT project within Government. It is bound to be late and extremely useless. There is no chance of the two coinciding. Even in early 2005 the Government will have to use the information system that they use at present.

Could it be that all those who have said that phased implementation was best were wrong? I do not envisage that. The noble Baroness, Lady Crawley, is right: an awful lot of bodies come under the Act. If they are to learn what is involved, they will need people to trailblaze for them. They will need to see how it is working in practice. A body of experience needs to be built up within the public service, starting with departments, to inform the smaller agencies and, beyond that, bodies such as schools. There will need to be a gradual process whereby skills and expertise are built up and transmitted. The idea that central government will come on line the same day as my local primary school is ridiculous. On receiving the first request the school will have no precedent. The local authority will have no expertise to assist it and there will be no expertise within government to help the local authority. Everything will be theoretical rather than practical, based on some sort of training scheme but no real experience.

It was always going to be better to have a phased implementation; that was the one proposal that sugared the pill of the 2005 date in the Act—that there was a real and practical reason for the date and for allowing the system to be rolled out gradually. Central government will be ready for that by 2002: why not let them be subject to it?

Since there are no practical reasons for not doing so, there must be political reasons. What difference would it make to government if we were given access to information by late 2002? We should have two and a half years before the next election in which to discover what a pig's ear the Government are making of public services. I understand why Alastair Campbell would object to that and why it might worry the Prime Minister, who has always been focused on winning the next election. Their concern was that details about the state of the health service and about the mismanagement of education were going to be publicly available to so many digging journalists and individuals for so long that the truth might become evident before the next election. I can see no other reason for the move. No convincing case involving practicalities is being made.

Baroness Crawley

My Lords, is that the reason why the noble Lord's party did not bring in an Act at all?

Lord Lucas

My Lords, I do not defend my party for what it did not do. Looking back at Conservative governments of those days makes it clear that there was a lack of commitment to freedom of information, with which I would not find myself in tune. I find myself entirely in tune with what the noble Lord, Lord Goodhart, said in his opening speech; namely, that openness and freedom of information are a key to good government, to government by consent and to a healthy polity. Secrecy did us a lot of harm in government. The Government should have learnt from that, but they clearly have not. There has always been a great deal of opposition to freedom of information in this Government. Peter Mandelson spoke against it even before the Government came into office. There has clearly been a rising feeling in the Government that secrecy is what is important.

When I debated with the noble Lord, Lord Rooker, the subject of civil defence in the face of terrorist threats, it became clear that all preparations for civil defence are a matter of utmost secrecy. We will simply be told by government that they are looking after us and we are not allowed to know what we should do in the event of a serious terrorist attack. We are not allowed to know—the Department of Health will not tell us—what is going on in relation to the sterilisation of instruments that are used in operations. A serious report has been prepared on the deficiencies of the health service, but it has not been published. The idea that there is a right to know is clearly anathema to many parts of this Government. It is no surprise—but it is a great disappointment—that the Government are now backsliding on the commitment to allow us a right to look into the goings on of government until the last possible moment under the Act, which they passed.

I hope that, in the fullness of time, the Government will find a practical way to phase in the right to know, even if 2005 becomes the date for the implementation of the formal right. I hope that before then we shall start to have an informal right to ask and to receive. It will he such a mess if all the provisions come into play on one day. I cannot see how that could work. With great sadness, I support the Motion.

3.43 p.m.

Lord Clark of Windermere

My Lords, I begin by congratulating the noble Lord, Lord Goodhart, on introducing this debate. He has a long history of promoting the cause of freedom of information. This afternoon's narrow debate is a further example of his commitment.

While I am handing out plaudits, I publicly acknowledge, perhaps for the first time—certainly for the first time in this House—the stalwart defence of and commitment to freedom of information shown by my noble and learned friend the Lord Chancellor. My experience in government, when I was trying to devise radical and progressive freedom of information legislation, was that I received support from my noble and learned friend whenever I asked for it. I publicly thank him for that commitment and I look forward to his comments.

The noble Lord, Lord Goodhart, mentioned the White Paper of December 1997 and kindly acknowledged that it was widely and well received. We did much work in that White Paper. People were pressing us to publish it earlier.

I was determined that the White Paper and the legislation should be based on three pillars. First, I passionately believe that no modern democracy can build trust with its constituents—its citizens—unless they have a right to know what is being done on their behalf. Secondly, I happen to believe—this is where I disagree marginally with the noble Lord, Lord Lucas—that good governance and good administration will come about by having more freedom and greater accountability than we currently have. Thirdly—this may be the most critical pillar—when we were devising the White Paper and the legislation, we looked at the situation in the rest of the world and decided that we would design a Bill that was not for what my noble friend Lord Rooker would call the legal trade, the press or commercial interests but for the ordinary men and women of this country. That is why this debate is so critical.

The whole point about the Freedom of Information Act is that the individual—the ordinary citizen—has the right to apply for information. If that right is delayed, the Act is clearly not being fully enforced. I therefore find myself at a loss to understand the Government's position. On grounds of good politics and good governance, there is nothing to be gained from delaying the phased introduction of the right. If one delays the right, we as a government throw ourselves open to the charge—it was made by the noble Lord, Lord Lucas—that we are trying to hide something before the general election. I happen to believe that we have nothing to hide. For the sake of good politics, we should be up-front and open in this respect. There is a fundamental weakness in terms of practicalities. I shall return to those two points.

During the momentous 1997 general election campaign, we had a fantastic amount of good will on this issue and in terms of practical politics, we made great headway. We united the Labour Party and the Liberal Democrats and, at last, we also converted the Conservative Party to our cause. There was cross-party support for the initiative that we were pushing forward.

I also claimed that the effort had international support. I want to make that point in a rather amusing way. One of the most radical freedom of information systems is that in Canada. In the Information Commissioner's annual report for 1997–98, he said that even Canada might be being left behind with regard to freedom of information and that the Canadian provinces had already overtaken the federal government. He said that it was sad that Canada was being left behind compared with our country, and he continued: But by the nation that raised secrecy to an art form, that produced Yes Minister and Sir Humphrey's law? That is the cruellest cut of all". There was much good will and support for our initiative.

I was clearly disappointed that the Government refined the White Paper. However, that is the nature of politics. We have clawed back some of the disadvantages and made some progress during the draft Bill process—a very open process—and in debates in both Houses of Parliament.

It is interesting to note that throughout the toing and froing there was one consistent aspect. Generally it has been accepted that the timing of release to individuals would be phased in. That has never been challenged. It has been accepted that that is the sensible way to bring about a piece of legislation that covers more public bodies and is the most comprehensive anywhere in the world. Clearly there was a problem.

As recently as 16th October this year the noble and learned Lord the Lord Chancellor appeared before a Select Committee of the other place and said, There is a powerful case for not going for a big bang, for doing it gradually, and modulating how you go according to the readiness in particular areas". However, something has happened to change the debate, which I believe is to the disadvantage of the Bill and the ordinary citizen. After so many years of consistency, I simply cannot understand why the Government have changed their tack.

I turn to the argument on practicalities. I hinted at this point when I spoke about the comprehensive nature of the Bill. The noble Baroness, Lady Crawley, emphasised that particular point. It needs to be emphasised. The Bill is very wide. It seems to me that the argument for phasing in the right of the individual—I emphasise the right of the individual—to information outweighs the big bang theory. We accept that there will be difficulties and some resistance. Some civil servants are not over the moon about this piece of legislation.

By introducing the Act gradually we can learn from experience. We can iron out some of the hitches that will occur. We can redefine more precisely the role of the information officer and the compliance officer within the department or within the public body. We can learn by proceeding gradually. There are other advantages. If there is a delay, we could find that government departments and the Information Commissioner's office are swamped. I also believe that we could lose momentum as we move towards a more radical access to information.

I am disappointed. I am at a loss to understand why the Government have taken this line. But we are where we are. Perhaps I can make some suggestions and press the Government to see whether we can make the best of this bad job. As a member of the Cabinet, will the noble and learned Lord the Lord Chancellor be prepared to write to his Cabinet colleagues, pointing out that we have a code of access and that this Government's policy is to interpret that code as openly and as freely as possible? Perhaps the Government's policy could be emphasised to the group of officials who are studying or monitoring freedom of information and to the parallel ministerial committee.

As I understand the matter, the Government are trying to make progress in an orderly fashion. I understand that early in the new year there is to be a ministerial seminar on how to proceed. Perhaps on that occasion the noble and learned Lord the Lord Chancellor could draw to the attention of Ministers the need to be as open as possible in interpreting the code.

I understand the Government's situation, but I believe that the Government have made a mistake. They have thrown away good will. I return to my two basic points: it does not make sense in terms of politics and good governance and it does not make sense in terms of practicalities.

3.55 p.m.

Lord Lester of Herne Hill

My Lords, it is a great pleasure to follow the powerful speech of the noble Lord, Lord Clark of Windermere. I suppose that his White Paper was the high-water mark of enlightenment by this Government in relation to freedom of information. I do not know how he accomplished it. I am sorry to say that if the present Government were taking key decisions now they would never have dreamed of putting their names to that White Paper any more than they would dream of introducing the Human Rights Act now.

One has to be very fit to campaign for freedom of information. This is probably the longest running Whitehall farce of my lifetime. My memory of this matter goes back to 1974 when I was special adviser to my noble friend Lord Jenkins of Hillhead at the Home Office. The then Labour government—the first Wilson government—had pledged in its manifesto to introduce a measure to put the burden of proof on public authorities to justify the withholding of official information. I suppose they realised that official information is the property of the citizens and not the government. People are entitled to know about the workings of government and in 1974, with an enlightened view of democracy, they wrote that into their manifesto.

My noble friend Lord Jenkins and I went to the United States to look at the freedom of information legislation there in the hope that we might be able to introduce some such legislation in this country. Only four members of the Cabinet were in favour of freedom of information legislation despite what appeared in the manifesto. One was my noble friend Lord Jenkins, another was our present leader, my noble friend Lady Williams of Crosby, and the other two were the noble Lord, Lord Healey, and Mr Wedgwood Benn. The rest of that Cabinet displayed total opposition or complete indifference. So we got nowhere, except for a string of Green Papers, very Green Papers and no papers at all.

Then a Conservative government came into power. I pay tribute to the government of John Major, which made significant progress on the voluntary code of access. I believe that that was a real step forward. Unfortunately it was unenforceable in practice, although it made an important cultural change.

The present Government came into office in 1997. Sitting on our Front Bench, as the noble and learned Lord the Lord Chancellor will remember—he sat only a few feet away from me—I was fulsome in my tributes on the government White Paper. Perhaps we on these Benches were over-fulsome. We praised it extremely highly. Unfortunately, the forces of conservatism took over. I doubt that they came only from the Home Office; I suspect they came also from the Cabinet Office after the noble Lord, Lord Clark, had been removed. The draft Bill that was introduced, and on which there was a Joint Committee, was like colander—full of holes. It was wholly unsatisfactory and much attacked.

The Government produced the Bill and the three guilty men now sitting on the Liberal Democrat Benches, my noble friends Lord McNally, Lord Goodhart and myself, were induced by the blandishments and pressure of government as we approached the second general election to strike a compromise with the Government. We were under very heavy pressure indeed. Just before the election we were told that if we did not compromise we would lose the Bill. We were told to accept half a loaf rather than no bread. We decided to accept half a loaf. The Campaign for Freedom of Information roundly denounced us for our cowardice. It told us that we should have gone to the wire. Perhaps in retrospect it was right.

However, we made the compromise. I must say to the Lord Chancellor whose misfortune it is to have to reply to the debate and to put as brave a face and as subtle an argument as he can upon this appalling tale that I am becoming a little cynical in my old age. I shall now think much more carefully before I advise my colleagues to enter into compromises on a pragmatic basis with the present Government. Why do I say that? I say it because we have been given assurance after assurance about the speedy implementation of at least the part of the Bill that deals with central government.

My noble friend Lord Goodhart referred to part of the story. I want to supplement that by giving one or two other facts. On 16th March 2001, not very long ago, the noble Lord, Lord Bassam of Brighton, gave a Written Answer to my Question as to whether the Government had revised their timetable for bringing the Act into force. The noble Lord explained that the Act must he implemented across the whole of the public sector by 30th November 2005. He went on to say: However, the Government, as part of their commitment to increasing openness, have stated that they intend to implement the Act much earlier than this".—[Official Report, 16/03/01; col. WA 115.] That is to say, much earlier than 30th November 2005. That was a statement of intent which proved to be written in water and is completely worthless because of the volte-face which has recently occurred about the bringing into force of the Act.

We are concerned only with the bringing into force of the Act in relation to central government. I put down a number of other Questions asking about the pattern of implementation in other countries. My noble friend Lord Goodhart has referred to the Answers that I obtained. New Zealand took seven months to implement the legislation. Ireland took one year to fully implement it for central government—I emphasise "for central government". The provisions were not implemented for all public authorities in the Irish Republic. The same situation applies for New Zealand.

What arguments can the Lord Chancellor properly make as to why what happened in New Zealand, in Ireland and in Canada should not apply in this country? In the Written Answers that I was given, some arguments were: "Well, these are very small countries; they have fewer people than we do; our Bill is a much wider Bill and will affect many more public authorities". I fully accept that the statute is much wider, that it affects many more public authorities, and that that is a reason for delaying for several years its implementation in respect of the many regional and local authorities. But what we on these Benches cannot accept is that a further delay of more than one year is justifiable for central government.

The noble Lord, Lord Lucas, asked what was the Government's real reason for dragging their feet. There was a brilliant article published in the London Review of Books on 10th August 2000 by one of our wisest judges, Sir Stephen Sedley, a member of the Court of Appeal. He was writing about the right to know. Sir Stephen wrote: We have come some way over the past half-century towards recognising information as more than a discretionary gift from those who hold it. Governments pay constant tribute to its importance, and the present Government is in the throes of legislating to give the public an enforceable right of access to some official information". He continued: It is important to appreciate why Governments are perennially cautious about opening their cupboards and filing cabinets. It is not the product of some Freudian hang-up affecting Permanent Secretaries, nor of mere nervousness or embarrassment on the part of Ministers. It is because the absence of direct access to Government information is a necessary condition of the ability of Ministers to feed their versions of fact through lobby journalists to the public". I agree with Sir Stephen Sedley. That may seem cynical. However, I believe it to be true. Sir Stephen aptly began his article with a quotation from George III on his deathbed: Oh God, they have deceived me". I am sorry to say that in this respect I believe that we, at any rate on these Benches, have been deceived.

Finally, and only half jokingly, perhaps I may remind the Lord Chancellor of an illustration of the lack of glasnost or perestroika in the Government. It is about correspondence that he and I had when I sought to obtain the policy studies upon which the Human Rights Bill was based for the purpose of writing a little book. After long and protracted correspondence in which I undertook humiliatingly to accept the Cabinet Secretary's diktat to submit the manuscript in advance, not to publish it for five years and not to see any documents referring to any Minister or his responsibilities. I pointed out that I would have to wait another 30 years and that I was already 64.

The Lord Chancellor's reply was that he had every confidence that I would live to be 94 in order that. I could write the book. I replied that I did not know whether he had consulted an actuary but that I did not intend to wait that long in any event. As an individual I cannot go to the Parliamentary Commissioner for Administration for relief because we now know that the Government do not accept rulings by the Parliamentary Commissioner on the code and its access. Therefore, if I go to him and the Parliamentary Commissioner disagrees with the Government they will or may disregard his decision. So I personally must wait apparently until 2005 even to go to the Information Commissioner in order to ask her to examine the ludicrous posture adopted by the Government towards this non-ministerial and non-collective responsibility piece of official information.

That is why I began by saying that we must all keep fit and live a very long time in order to act as watchdogs and bloodhounds in seeking to call the Government to account and in getting the Act implemented sooner rather than much later.

4.7 p.m.

Lord Corbett of Castle Vale

My Lords, I congratulate and thank the noble Lord, Lord Goodhart, for initiating the debate. It is a great pleasure to follow my noble friend Lord Clark of Windermere. He has such a long and distinguished record in the campaign to secure a Freedom of Information Act.

I share the delight of my noble friend Lady Crawley that it is this Government which have finally put a Freedom of Information Act on the statute book. Whatever its shortcomings, it will begin to break down the doors behind which so much of what the citizen is entitled to know has been kept hidden for far too long.

As a nation, we have had this obsession with needless secrecy. I am old enough to remember when we did not name the head of the security services although we named the person who held the personally more risky job of General Officer Commanding in Northern Ireland. If one published what was on the menu at the Ministry of Agriculture, Fisheries and Food one ran the risk of prosecution. One can continue with even more idiotic examples of this obsession with keeping everything secret.

After having personally campaigned for freedom of information for more than 20 years with others—including my noble and learned friend Lord Archer of Sandwell who cannot be here today—and once even tabling a right-to-know Bill in the other place just ahead of the 1987 general election, I think that congratulations are more in order than carping. I also congratulate the director of the campaign for freedom of information, Maurice Frankel. Over the best part of a quarter of a century he has been a persistent and insistent campaigner in the cause.

Of course, the provisions of the Act could have been brought in sooner and its various provisions made operative in a different order. But I do not believe that those complaints should be allowed to mask the important culture change which the passing of this Act involves. It is a huge and very significant step forward in the governance of this country.

In my view it is more important in an age of what I call "Big Brother" and "Pop Idol" politics. In such programmes television viewers are invited to watch a programme and then to dial a dedicated phone line and watch as "Nasty Nick" is thrown out of the Big Brother House or "Heavyweight Rick" makes it into the final 10 bidding to be a pop star. What is important about that is that significant numbers of the population, mainly its younger members, go for instant results. They use modern technology, on the basis of the information that they have just received, to press a button and get instant results. That is perhaps a trivial example, but I believe that at a time of increasing disengagement from politics—disengagement not because of apathy, but because increasing numbers of people, especially the young, believe that politics do not matter to them—there are lessons to be learned in the opening up of information which is held on behalf of the citizen.

I shall take the absence of speakers on the Conservative Benches opposite in this debate as an apology for not having brought in a Freedom of Information Act in their 18 years of government. It is all right for the noble Earl on the Front Bench to shake his head, but that is the fact of the matter. Whatever arguments there may have been in the Labour Party about freedom of information, for 18 years the party which he supports had the opportunity and the majority in the other place to put such legislation on the statute book, but did not. I am pleased to welcome the noble Lord, Lord Lucas, who has been a supporter of freedom of information for many years.

As I said to your Lordships, previous Conservative governments had 18 years in which to introduce a freedom of information Bill, but did not. Very reluctantly and hesitatingly, they produced a code of practice which is a long way short of what is now needed and encompassed in the Freedom of Information Act.

I confess I have a tad of sympathy with the noble Lord, Lord Goodhart, and his colleagues over individual rights of access which could have been made earlier. I believe that the Government were stretching things when they claimed that implementation of the Act would be completed 11 months ahead of the timetable set in the Act. The fact of the matter is that a timetable was never set in that sense. The date January 2005 to achieve full implementation was never meant to be a timetable. In both Houses Ministers went out of their way to make that clear. In your Lordships' House on 20th April 2000 (Hansard, col. 829.) my noble and learned friend Lord Falconer said that the date January 2005 was a "failsafe provision". He added, It is the Government's intention to bring the legislation into force as quickly as possible". In a Home Office paper—and few would believe that that department is among the most ardent advocates of freedom of information—to the Advisory Group on Openness in the Public Sector, it promised, There is a clear intention that the Act will be implemented more quickly than that", which is before January 2005. The reference is AGOPS 13/99.

That said, this is a huge change for government departments and for civil servants who have grown up and spent all their working lives in a climate of secrecy. Of course, that has changed a little over the years, but inherently, those who have information have not felt able, for most days of the week, to share it.

1 understand the points which the Government make that they will need time and resources to tackle the workload and implement the proposed programme of electronic records management, which is due to come into force by the end of 2004. Perhaps my noble and learned friend the Lord Chancellor will confirm that this new system of electronic records management applies only to newly created records and not to what we are told are the miles and miles of paper records with which Whitehall is littered?

The electronic records management programme applies only of course to government departments and not to any of the other bodies covered by the provisions of this Act. Will my noble and learned friend the Lord Chancellor be kind enough to confirm that all government departments are currently capable of responding to requests under the open government code and that there is no reason why the requirements of the Freedom of Information Act could not be dealt with under these arrangements had a shorter timetable been chosen?

Others will argue that stretching out access to central government information across four years indicates that the Government are not wholly committed to this process. I and your Lordships will know that some Ministers in the present Government were more keen than others on freedom of information on the grounds that access to what could be politically sensitive information around the time of a general election could be embarrassing. If that is the case my answer is: so what? Surely, a government which believe in what they are doing on behalf of the citizen can stand a bit of embarrassment as part of the political process in the course of giving out information to which the citizen is entitled, embarrassing or not.

I know that my noble and learned friend the Lord Chancellor will want to ensure that throughout this timetable there is no loss of momentum in government departments which may have been working to an earlier timetable for implementation. I hope that he can assure your Lordships that the Information Commissioner will have the staff which she needs in place by January 2005 to deal properly with complaints under the new timetable. They are all likely to arrive within a similar period. It will injure the provisions of the Act and its implementation if there is avoidable delay in resolving the complaints.

I conclude by saying that of course speedier implementation would have been welcome and possible. But what matters more is that the public are to gain rights of access for too long denied them. We shall now rightly expect all those working in the 70,000 public bodies affected by this Act, to do their best, and willingly, to make it work as intended and ensure that our citizens are able to get the information to which they are entitled.

4.17 p.m.

Lord Maclennan of Rogart

My Lords, the Government's attitude to freedom of information is well encapsulated by their decision, to which my noble friend Lord Goodhart referred, to refuse access, as recommended by the Commissioner for Information. The refusal of the Foreign Office contrasts very sharply with an earlier decision of a Labour Foreign Secretary, shortly after the office of the ombudsman was established, to agree, despite all his reservations, to implement the recommendation of the ombudsman in respect of the Sachsenhausen case, which was the first to be considered, and with which my noble friend Lord Rodgers of Quarry Bank was closely involved as a junior Minister at the Foreign Office at that time.

The focus of our discussion today is more sharply on the implementation of legislation which was conceived well before the Labour Government took office in 1997. I had very good cause to be aware of and remember the decision of the Labour Party to secure by law the right of access to information held by public authorities. In the early spring of 1997, Mr Robin Cook and I, on behalf of both our parties, announced a joint platform of proposed constitutional reforms on which Labour and Liberal Democrats would campaign and which we would together seek to implement within the lifetime of the next Parliament.

That agreement led to the establishment after the election of a Joint Committee, on which I served under the chairmanship of the Prime Minister, to oversee the implementation of that programme. Some elements of it have caused considerable difficulty and compromises have been required to reach agreement, for example, on the issue of electoral reform; but on the subject of freedom of information there were no pre-election difficulties for either party. Both parties were convinced that although the code introduced by the Conservative government marked a valuable advance, it was insufficient to secure the right of access to information that both parties saw as a necessary ingredient of our common programme to strengthen our democracy.

It is worth recalling the twin arguments that exercised our minds. The first was that information held by public authorities is in effect held in trust for the public. It is not so much government information as public information stored by government for use in the government of the people, for the people and, we believe, by the people. The second consideration was that the quality of decision-making by government would be improved by more widespread dissemination of the information available to decision makers. What Labour spokesmen described as the "Whitehall culture of secrecy" was widely held to he inimical to good government. That judgment was strongly reinforced by the arms-to-Iraq affair, which led to the Scott inquiry, and the BSE epidemic, which has been so devastating to our livestock industry.

I mention this pre-legislative history in part because it is generally less well known than what followed, and in part to remind Ministers of it. It is difficult to explain, as several of your Lordships have said.

Perhaps an earlier aperçu of my noble friend Lord Lester of Herne Hill went some way towards explaining the position when he said that power delights and absolute power is absolutely delightful.

Others have observed the paradox at the heart of new Labour. I am speaking of the Prime Minister himself. No previous Prime Minster has presided over the implementation of a more considerable programme of constitutional reform than the present one, and none has taken less pride in the achievement. It is remarkable that following the 1997 election the Prime Minister fell publicly silent on the issue of constitutional reform, while others proceeded with its enactment. Not one word of explanation or justification was heard. There was no manifestation of satisfaction and still less of pride in the programme, which may be thought to be the most lasting contribution to the United Kingdom's development in the previous Parliament—the first under the present Prime Minister. It is almost as if his programme, having done its work in lining up the bien pensants behind Labour, was more important than its implementation.

It is worth recording the pre-legislative history of the freedom of information programme as it marks the last period before the Prime Minister himself was significantly influenced by what he called, "the Civil Service culture of secrecy". The Bill, which was enacted, fell far short of what was initially proposed in the White Paper and championed by the noble Lord, Lord Clark of Windermere. We shall not know for many years who got at which Ministers.

This House is enriched by the membership of the then Cabinet Secretary, the noble Lord, Lord Butler of Brockwell, who is not present for this debate. I do not doubt that, without betraying any secrets, he could give us something of the flavour of the atmosphere in which he moved at the time and the concerns that led to the emasculation of the Bill, without of course pointing fingers.

We are often advised that the strength of your Lordships' House is drawn from the unrivalled experience of its Members. None of us has experience of the culture of secrecy to match that of the noble Lord, Lord Butler. His historical contribution to our deliberations could be correspondingly of unrivalled value.

Lest it be thought that I am casting blame on the Civil Service for this rather difficult to explain enforced delay of implementation, I should make it abundantly clear that the announcement of the noble and learned Lord the Lord Chancellor on the new timetable took your Lordships by surprise because so many Ministers have on previous occasions given an entirely different account of the Government's intention. Much of that has been alluded to already, so I shall not repeat the quotations, many though there are.

Most telling of all was the letter from which my noble friend Lord Goodhart quoted from the Information Commissioner, Elizabeth France, which was written as recently as 18th October. It refers to the phased implementation of the Act, mirroring the well-known and expressed preference of the noble and learned Lord the Lord Chancellor, starting with central government on 1st October next year. That mirrors the publicly expressed views of Ministers on the matter.

The advice of Elizabeth France was clearly not just casually dropped into the Government's lap, as the noble Baroness, Lady Crawley, implied. It is the deliberation of someone who has been appointed to carry out the obligations of the Act, to oversee its implementation and to consult with all departments. I am a new boy in this House, but I have rarely heard in the House of Commons speeches of such deference to political leadership as that which passed from the lips of the noble Baroness, Lady Crawley, today.

It has come to my notice that the reappointment of Elizabeth France falls due long before the Government's proposed date for allowing access to the information that they hold. I must express the strong hope that in the resignation of Ms Filkin from her office, which oversees standards in another place, we are not witnessing a trailer for the resignation of Elizabeth France, whose advice has been similarly rejected and who has been similarly denied the co-operation of the Government in the implementation of the Freedom of Information Act.

If the buck stops at the Prime Minister's door, we should bear in mind the example of Winston Churchill. In just over four years following his appointment as Prime Minister in May 1940, he managed to achieve victory in Europe. It seems rather less to ask the present Prime Minister to seek to implement the Freedom of Information Act in just under four years. We hope that the noble and learned Lord the Lord Chancellor, whose contribution to the modernisation of our constitution has been outstanding in other spheres, will prevail upon his more timid colleagues to take the plunge and not to stand shivering at the edge of the pool.

4.30 p.m.

Lord Grabiner

My Lords, I am sure that all of your Lordships believe that individual rights of access to information held by central government departments should come into force as soon as is reasonably practicable. I particularly emphasise the point about the practicalities. A number of other noble Lords have made a similar point.

The noble Lord, Lord Goodhart, says that access should be provided in November 2002. It follows that the issue for debate is a narrow one. Is it reasonably practicable to achieve the November 2002 target? That is essentially a question of fact. It does not lend itself naturally to assertion and counter-assertion.

Other noble Lords have given or will spell out the detailed background. In brief, the Freedom of Information Act received Royal Assent on 30th November 2000. It was always appreciated that the Act would be brought into force progressively over a period of years and that it would be fully in force by 30th November 2005.

My noble and learned friend the Lord Chancellor told the Home Affairs Select Committee: The Act will be fully implemented by January 2005". That is nearly a year ahead of the failsafe end date specified in the statute. With great respect to the noble Lord, Lord Lucas, it is not the last possible moment, as I think he put it.

My noble and learned friend the Lord Chancellor also explained that the publication scheme provisions would be implemented on, a rolling programme starting with central government in November 2002". I think that that is where the date given by the noble Lord, Lord Goodhart, comes from. My noble and learned friend also said that individual access rights to information held by all public authorities, including government departments, would happen in January 2005.

I do not pretend to have immersed myself in the detail, but I understand that the preparations that are necessary to meet those time limits are complex and that the relevant management structures across government have been put in place. Perhaps my noble and learned friend the Lord Chancellor could say something about those structures when he replies.

The Freedom of Information Act is an example of modern legislation that brings with it the need to ensure that the underlying arrangements for the associated public administration are in good working order and well able to accommodate the demands made by the Act. The other examples that I have in mind are the Human Rights Act 1998 and the Data Protection Acts.

A common feature of all those Acts is that civil servants and administrators have to be educated and trained into a more modern way of thinking. That takes time and expense. For example, it will be necessary to tie in the arrangements with the completion of the Government's electronic records management project. No doubt my noble and learned friend the Lord Chancellor will deal with this point, which has already been raised by at least one other noble Lord. As I understand it, only new records will be created and stored electronically, but the work done to that end will improve the organisation of the existing paper records. In the result there should be a clear audit trail from what will be the old paper records into the new electronic ones.

I am sure that we are all very keen for the legislation to work. We do not want administrative chaos. The experience of the human rights and data protection legislation is that the time that was taken before the Acts came fully into force was time well spent. If my noble and learned friend the Lord Chancellor believes and is advised that time is needed on this occasion, I shall accept that. I do not understand what has happened since the Freedom of Information Act was passed—which was not too long ago—that enables the noble Lord, Lord Goodhart, to contend that the target of November 2005 can safely be replaced by November 2002.

The noble Lord, Lord Goodhart, made the remarkable suggestion—I suspect that it was made only in good humour—that the apparent change of position was the result of the noble and learned Lord the Lord Chancellor having been the victim of a mugging. Over the past 30 years or so, on and off, I have had quite close relations with the noble and learned Lord. The suggestion that anyone would ever have the guts to try to mug him, still less that they would have had the capacity to get away with it, is interesting and, one might say, perhaps laughable. No doubt that was the noble Lord's intent ion in any event.

Lord Goodhart

My Lords, I am not an expert on the implementation of the Act, but can the noble Lord think of anybody who is likely to be in a better position to judge it than the Information Commissioner, who has made her views clear?

Lord Grabiner

My Lords, the comments of the Information Commissioner are extremely important and should be taken into account, but she is not the only person who contributes to the debate. The views of the Civil Service and of the administration generally should be taken into account. Everybody involved in the exercise has something to say about how long it is going to take. We would all like to see it done tomorrow, but that does not seem possible do not understand how the Act ended up with a November 2005 date. What was the reason for that delay? Surely the answer is that it was to accommodate the sort of debate that we are now having.

Lord Lester of Herne Hill

My Lords, the noble Lord has rightly said that whether one can implement the statute within a year for central government is a question of fact. He is concerned, on behalf of the Government, about the need to train staff. I wonder whether the noble Lord is aware that, almost a year after Royal Assent was given to the Freedom of Information Act, in a Written Answer to me about the timetable for training civil servants and Ministers, the noble and learned Lord the Lo rd Chancellor explained: A seminar for Ministers on the implications of the Freedom DI Information Act is being arranged by the Centre for Management and Policy Studies in the Cabinet Office. We expect this to take place in January next year. The training of officials is a matter for each department" —[Official Report, 30/10/01; WA149.] Does the noble Lord think as a matter of fact that that indicates that the Government are really concerned to bring the Act into force with all deliberate speed?

Lord Grabiner

My Lords, the noble Lord will realise that I do not and cannot speak on behalf of the Government. I respectfully suggest that that question is properly directed at my noble and learned friend the Lord Chancellor. I am sure that he can answer that question; if he cannot, the point made by the noble Lord, Lord Lester, will have considerable force.

In conclusion, my final point is in defence of my noble friend Lady Crawley. For what it is worth, I thought that she was unfairly criticised by both the noble Lord, Lord Lucas, and the noble Lord, Lord Maclennan of Rogart. I found her contribution clear and helpful.

4.40 p.m.

Baroness Wilcox

My Lords, I am grateful to the noble Lord, Lord McNally, for allowing me to speak in the gap. I also thank the noble Lord, Lord Goodhart, for initiating this debate.

As chairman of the National Consumer Council in the 1980s and into the early 1990s, I campaigned long and hard for a freedom of information Act. During those long years among many siren voices, I was always mindful of the fact that whatever government were in post, the Treasury would be whispering in the ear of the Chancellor of the Exchequer that such a provision would cost an enormous amount of money to deliver.

Fortunately, the time had come for something to happen—maybe not the best of Bills, but better than nothing. It truly will cost: I have been to America and seen what it costs to deliver a freedom of information Act effectively and efficiently.

The Government have announced that the right of access under the Freedom of Information Act 2000 will not come into force until January 2005. That is an astonishing delay of more than four years from Royal Assent. I hope that the Lord Chancellor will be able to reassure me that it is not Treasury whispering that is causing that delay, when there are so many other calls on the Government's money.

As we have heard, the date of January 2005 represents a major retreat from the original timetable. The noble and learned Lord, Lord Falconer, told Peers that government departments would be covered by the Act, as soon as the commissioner indicates that she is ready to enforce the legislation".—[Official Report, 20/04/00; col. 829.] I must admit that I was not persuaded by the noble Baroness, Lady Crawley, that the commissioner's voice was only one of many being listened to. No other country has required anything like as long as four years to implement a freedom of information law. In most cases, as we have heard, it has been done within seven to 12 months.

As a consequence of the delay, there will be a substantial loss of momentum, especially from government departments, which have been working towards a summer 2002 start date. As my noble friend Lord Lucas so eloquently described, a "big bang" approach removed the opportunity for authorities to learn from the experience of any early implementers. The commissioner's office is likely to be swamped if the right of access comes into force for all authorities on a single day.

I rose to speak in the gap to make my first point about the Treasury and the following point: delay gives a damaging signal about the Government's commitment to the legislation. That is bound to be noticed by officials and will inevitably be reflected in their approach to the Act. My deep concern is that, at the end of the day, officials here will adopt the European Union's method of making access to information a purposely slow and off-putting process. That has made it a frustrating nonsense and a brick wall of bureaucracy. Surely a British Government can do better than that.

4.43 p.m.

Lord McNally

My Lords, the noble Lord, Lord Grabiner, implied that this was a rather narrow debate about timing. That is not so. It is also, as the noble Baroness, Lady Wilcox, has just said, about momentum and commitment. To put it baldly, we are anxious to know from the Lord Chancellor whether the Prime Minister has succumbed to the mandarins' embrace that he so feared when in opposition.

As the noble Lords, Lord Goodhart and Lord Clark of Windermere, made clear in their remarks, the point about freedom of information is that it is fundamental to a modern state and mature democracy. The noble Lord, Lord Clark, put it quite well when he cited the Canadian Information Commissioner. This country raised secrecy to an art form. In all our early debates about freedom of information, the big challenge was seen to be how we removed that culture of secrecy from Whitehall and our other public bodies. We viewed that as a challenge because that culture was an impediment to both good government and effective citizenship.

In fact, there was a kind of pass the parcel. As we heard, it was first under the stewardship of the noble Lord, Lord Clark, when he was in the Cabinet Office. It was then nervously passed to the Home Office. At the time, I said that that was a bit like giving Count Dracula supervision of the blood transfusion service. No matter, it was quickly moved on to the Lord Chancellor's Department and the Lord Chancellor himself.

Like the noble Lord, Lord Grabiner, I do not believe that the Lord Chancellor can he mugged or intimidated. The reason that the Lord Chancellor has got the job is the same reason why, if ever I were found with a gun in my hand, a bleeding body on the floor and a message on the answerphone saying, "It was McNally what done it", I would send for the Lord Chancellor to defend me. I know that he is a skilled advocate who can defend the indefensible. I suspect that that is why the parcel of freedom of information has ended up in the Lord Chancellor's Department.

As my noble friend Lord Maclennan of Rogart said, my interest in the subject dates back to my membership of the Cook-Maclennan committee. It was and is one the proudest events of my political life to have served on a cross-party committee that set a programme of constitutional reform of which both our parties can be truly proud—although, as my noble friend suggested, the Prime Mininster has cooled on it. Between 1997 and 2001, we passed a series of constitutional reforms that will stand as an historic achievement of this Government.

I am afraid that we sometimes now feel like old friends of a lottery winner. As we stand on the pavement shivering, they sweep past in their big cars, having forgotten the radicalism of their youth. That is the real worry: that the Government are losing their radical edge and commitment. Reference was made to the deal that we made with the Government just before the general election. As one of those who made that deal. I defend it now more than ever. It is clear that, as we were warned at the time, if we had not taken that deal, we may have lost the Bill altogether because too many people in government would happily have seen it die. Rather than being a squalid deal, it was an achievement to get the Act on the statute book.

The problem, as we all know, is that the culture of secrecy is getting worse, not better. As the Government have remained in office, they have been too in love with news management and No. 10 control. My noble friend Lord Maclennan of Rogart referred to the noble Lord, Lord Butler of Brockwell. It is a pity that some mandarins do not participate in the debate. If anyone knows where the bodies are buried, it is them. The noble Lord, Lord Butler of Brockwell, was quoted as saying—I do not think that he has ever denied it—that he would accept freedom of information over his dead body. Presumably, that is why he looks in such robust health today.

The press speculates that the big change in government policy has been a pincer effect by Sir Richard Turnbull and Alastair Campbell. Today we are anxious to discover why momentum has been lost and there has been delay. There were about 18 years when the Tories did nothing. None of us thought in 1997, when we attacked, that 18 years would become 25 years. A response is needed.

The question of training has been raised. I served on the ad hoc Select Committee. One of the most powerful pieces of advice came from the Irish Commissioner. He said that one should implement as early as possible an effective training programme of the civil servants who would implement the Act. Unless that mindset changes—and in the case of this country it has existed for centuries—one will not achieve freedom of information simply by legislating. Perhaps the Lord Chancellor will explain what proper training programme, not a ministerial awayday, is in place. As the noble Lord, Lord Grabiner, rightly said, if no training is in place it is a very serious criticism and exposé of the lack of commitment and momentum in making the Freedom of Information Act really work.

It is not only on these Benches that there are doubts. I understand that some 173 MPs have already signed an Early Day Motion on this matter, and technical concerns about the big bang approach and the danger of the commissioner being swamped by the delayed implementation have already been expressed by other noble Lords.

We are worried that when we probe and ask questions no practical reasons are given which fully explain the delay to 2005. It can be explained fully only by the victory of those who see the merits of spin as opposed to truth. I believe that the noble Lord, Lord Corbett, got to the heart of the matter. Why we are so deeply concerned is that the delay in bringing about freedom of information reinforces the cynicism about our democracy that is all too prevalent and the apathy, or worse, about participating in democracy. It is extremely worrying that more people in the 25 to 35 age group voted in "Big Brother" than the general election. The director of news of the BBC said that, generation to generation, there is a worrying lack of people who watch news. Once it was the under 25s who did not watch news programmes; now it is the under 35s. He worries that that tendency is moving through the generations. Perhaps that is in part a reflection on news management and the cynicism that that produces.

There is a real danger that the Government, who have been in office for nearly five years, are beginning to lose their radical cutting edge and displaying all the arrogance of power of which we know. When at this very spot I asked the first Question of the new Parliament about progress on freedom of information the Lord Chancellor told me, with a gentle pat on my head, that Rome was not built in a day. The case that he must answer is that although no one has ever mistaken the Lord Chancellor for Bob the Builder, we are worried that he is Derry the Demolition Man. The most important role that the Lord Chancellor can play tonight in replying to the debate is to recommit the Government in both momentum and philosophy to freedom of information.

If the Lord Chancellor looks around the House he will see some of the great campaigners of freedom of information who have made powerful speeches against the delay which now stretches back 25 years. The noble Lord, Lord Clark, said that when he fought his battles in Cabinet he saw the Lord Chancellor as an ally. Tonight in this House can we look to the noble and learned Lord as an ally?

4.56 p.m.

The Earl of Northesk

My Lords, like other noble Lords, I congratulate and thank the noble Lord, Lord Goodhart, for bringing this matter to our attention today. I admit to some embarrassment that. I am a mere layman among the expertise of those of your Lordships who have contributed to this debate and the earlier one. Notwithstanding the august company that I find myself keeping, I shall do my best to maintain the standard and quality of the contributions thus far.

The substantive point that lies at the heart of the Motion moved by the noble Lord, Lord Goodhart, is that there is no good reason why individual rights of access to information from government departments should not come into force at the same time as publication schemes are implemented in November of next year. After all, as the noble Lord explained in such eloquent detail, there had been a firm expectation within Whitehall and more widely that such a timetable would be adhered to.

The noble Lord, Lord Goodhart, has already referred to the observations of the noble and learned Lord, Lord Falconer, at Second Reading, and I shall not weary your Lordships by repeating them. The fact is that on 18th October the Information Commissioner made it clear that she would be ready to enforce the Act in relation to central government by 1st October 2002. In the circumstances, there is some credibility in the contention of my noble friend Lord Lucas that the delay to January 2005 represents back-sliding.

I need not elaborate on the history of the Act. Nonetheless, a little background will help. I recall that a particular feature of our debates on the Bill was the perceived need to change the culture of secrecy by and with which it is alleged Whitehall and Westminster have been cursed. The means by which this would be achieved was to create a presumption in favour of the release of information. Fair enough; I acknowledge the merit of that. But it is worth contemplating how much impact the Act has had on that culture since it received Royal Assent a year ago on 30th November.

The means to assess this can be found in various reports from the Parliamentary Commissioner for Administration. In this context it is much to the credit of the noble Lord, Lord Goodhart, that he asked a Question on the ombudsman's report for the period April to December 2000 on 19th February of this year. That serves as the starting point to judge the prevailing mood, if I may put it that way, into which the Freedom of Information Act was thrust. In that report the ombudsman stated: The reports show that, while some [government] departments have clear and efficient procedures for the processing of information requests, others fail even to identify the need to deal with such requests under the code [of practice on access to government information]". The report adds—this is the significant point— Given that the code has now been in existence for nearly seven years, there can be no excuse for this". I shall return to that later. But we can deduce from those comments that as of the date of that report (January 2001)—some 3½ years into the first term of this administration and almost immediately following enactment of the Act—the culture of secrecy within Whitehall was alive and well, at least in some government departments.

I now invite noble Lords to turn to the most recent report from the Parliamentary Ombudsman, referred to by the noble Lords, Lord Goodhart and Lord Lester. The ombudsman states that, there is no valid reason under the Code of Practice on Access to Government Information why this information should not be released, and that there is a public interest in making it available". The report goes on to say, this is the first occasion on which a Government department has refused to accept the conclusions of the Ombudsman on a question of disclosure of information under the Code of Practice". By any measure, that represents deeper entrenchment of the culture of secrecy. But to compound matters, it is an entrenchment aimed at Members of Parliament; that is, it has the character of a conscious and deliberate obstacle placed in the way of legitimate scrutiny of the executive. In effect, the regime under which we as parliamentarians are currently operating is one where, if information is not cynically "buried", gaining access to it is akin to trying to extract blood from a stone. Inevitably that invites the question as to what hope the general public have to persuade government departments to release information if the current administration is showing a tendency to be unwilling to release it to Parliament itself. In terms, therefore, the evidence suggests that the culture of secrecy within Whitehall and Westminster has gained ground in the period since enactment and now.

I mentioned that I would return to the longevity of the Code of Practice on Access to Government Information. As the noble Lord, Lord Goodhart, generously conceded, this was a construct of John Major's administration. I am bound to say here that I prefer the fulsome tribute of the noble Lord, Lord Lester, to the gentle criticism of the noble Lord, Lord Corbett; but in passing I would say that I agree with the observations of the noble Lord, Lord Corbett, on disengagement.

Noble Lords will be aware that the terms of the code, albeit not based in statute, were and are more demanding than those of the Act. I make no judgment about that, but rather merely observe, as it were to reinforce the point about the culture of secrecy, that, whatever the strengths and weaknesses of the code, its effectiveness is wholly dependent on the willingness of those to whom it applies to comply with it. Indeed, that was the grand premise on which the Act was based—the code required the force of law to be effective. However, as things stand, the Parliamentary Ombudsman's most recent report offers us neither comfort nor encouragement that the code is being operated in a way which could be described as effective. Worse, there is scope for imagining that it is being actively and deliberately ignored.

There has long been a widespread presumption—here I echo faintly the words of the noble Lords, Lord Maclennan and Lord McNally—that one of the unfortunate consequences of the acquisition of power, of being in government, is that it tends to compromise the good intentions of opposition. One could be forgiven for supposing that the apparently shifting sands of government policy towards freedom of information are a case in point. On 19th February this year, the noble Lord, Lord Bassam, in his capacity as Home Office Minister, waxed lyrical about the Act. He said that, the Government's Freedom of Information Act is a profound piece of legislation. I believe that it is as profound as the Human Rights Act. I believe that, over time, it will change the culture of secrecy which many in your Lordships' House sought to defend for far too long. I believe that our Act is effective and robust and provides an important right of access for the people of our country".—[Official Report. 19/2/01; col. 497.] Unfortunately, viewed from the present, there are perhaps only two words of legitimacy in the noble Lord's eulogy; that is, "over time".

Throughout the debate noble Lords have speculated on the reasons for delay. I do not pretend to have an answer to that question, but I can contemplate factors that might have contributed. There is persistent currency in the view that the Government are overly obsessed with presentation and spin. The noble Lord, Lord McNally, touched on that. Alastair Campbell may have adopted a lower profile and Peter Mandelson may be languishing on the Back Benches, but their spirits linger on in the machine. The furore—wholly justified—about Jo Moore's infamous e-mail attests to that. Of course the difficulty with spin is that the message and its substance become less important than how it is delivered and perceived. It is a selective release of information. In other words, it is antipathetic to proper freedom of information. Here the trend towards institutionalisation of ministerial evasion seems to have gathered momentum. Perhaps it was ever thus, but it does seem that it is being taken to new extremes.

We have had the Government's intransigence over holding a public inquiry into foot and mouth disease. We have had the sorry debacle over Railtrack and Stephen Byers' curious air of reticence. We have had the Government's coyness about their plans for the Dome. Then, of course, as was revealed in a Written Answer yesterday, there is the Government's tangled web of advocates, advisers, champions, envoys, czars and the like, who occupy the hinterlands of the parliamentary process free of adequate scrutiny. All those are areas where the public interest would be best served by information being made much more freely available.

In its place, however, we have the worst of all worlds. We have the force of law by virtue of the Act. But in more ways than one it is a thing of straw because its full implementation to the benefit of the public, let alone Parliament, is to be delayed until 2005. We have the code of practice, which some would argue is being subjected to serial abuse. Yet the culture of secrecy, battered but unbowed, rules supreme, a discredited notion that nonetheless seems to have infected the mindset of the Government. As a leader in today's Daily Telegraph observes, we find ourselves in a position that, hardly amounts to the sort of freedom of information and see-through government that were the watchwords of this administration when it came to power". I have one further thought. At the moment, the greater part of our energies is committed to the scrutiny of the Government's emergency legislation. I could perhaps therefore suggest that it is a blessing to have had this debate to work on as some light relief from the anti-terrorism Bill. Would that it were so. The reality is, as was made so apparent in our debates yesterday, that information figures strongly in that measure in Parts 3 and 11. Is it not extraordinary that, when it comes to information that the Government want from us, they are willing and able to legislate and implement at lightning speed and—again, on the evidence of our debates yesterday—with little or no understanding of the issues involved, yet, when it comes to information that we might wish to glean from the Government, the process slows to an unhurried amble?

5.7 p.m.

The Lord Chancellor (Lord Irvine of Lairg)

My Lords, today's debate has been timely. First, let me tell your Lordships a little more of the background.

I chaired the Cabinet Committee appointed after the 1997 general election to consider freedom of information, as I chaired all the other Cabinet Committees concerned with constitutional reform during the last Parliament. The FOI committee succeeded in producing the White Paper entitled Your Right to Know in December of that year. I pay tribute to my noble friend Lord Clark of Windermere who, at the time as noble Lords will know, had ministerial responsibility in this area. I acknowledge his generous observations of my own role. After that, policy responsibility transferred to the Home Secretary and a draft Bill was the subject of a consultation paper and pre-legislative scrutiny during the summer of 1999. The Act gained Royal Assent on 30th November 2000.

The subject area transferred to my department, along with other areas of a constitutional character as a result of the machinery of government changes announced after the general election in June 2001. I am very sorry that the noble Lord, Lord McNally, is in one of his worrying spasms of cynicism as he speculates with all the fervour of a gossip columnist who has a talent for getting it wrong. It is true that freedom of information has been a parcel that has been passed around the departments, but the noble Lord should applaud and marvel at the fact that it has now reached the safe and hospitable haven of the Lord Chancellor's Department. I am surprised that the noble Lord should even think to ask for confirmation that I am not for turning on freedom of information, but, if it will please him, I shall confirm that I am not.

I made my first detailed comments on the implementation of the Act, as has been referred to, in my evidence to the Home Affairs Select Committee on 16th October. The next day, my evidence appeared on the House of Commons website. I was asked how we would approach the implementation of the Act. I said that there were two basic approaches under consideration, and I said in terms that there was much to be said for both approaches. I mentioned the possibility of a stage-by-stage approach, in which publication schemes could be published on particular dates in particular sectors, followed, a period of time later, in each particular area, by the individual right of access coming into force. I then explained how such a programme might incrementally unfold.

I then dealt with the other option. I said: The other way of looking at it would be to roll out the publication schemes, perhaps across a similar model, but then have a big bang so that the individual's right of access does not come until a single date before November 2005, obviously". I continued: I will be quite frank: there is discussion going on around these two alternatives. Both can be argued—I emphasise these words—but what I can say is that one or other, a variant, is going to happen and that we will of course comply with the statutory outer limit of November 2005". The chairman then asked me: Is that not a case for not going for a big bang?". As the noble Lord, Lord Clark of Windermere, has quoted, I replied: Yes. There is a powerful case for not going for a big bang, for doing it gradually, and modulating how you go according to readiness in particular areas. On the other hand, there are in fact arguments the other way as well, but that is the broad outline". I hope that your Lordships will think that I was very frank with the Select Committee. Not only did I make it clear that the Government were considering two options for implementation, but I set out the details of the two options under consideration and I explained that the choice between the two options was a balanced matter.

Lord Lester of Herne Hill

My Lords, does the Lord Chancellor agree that in making that choice, which is the Government's choice, one should remember the well-known legal maxim that no one should be judge in his own cause? In this case, the judges of their own cause are the Government themselves, with their own convenience involved.

The Lord Chancellor

My Lords, not at all. I was very clear. In fact, I was remarkably forthcoming by the standards of some evidence that one reads to Select Committees of the House of Commons. I said, quite frankly, what were the policy choices and spelt out the arguments on either side.

What are we doing between now and January 2005? Why do we need this time to bring the individual rights of access into force? I published my first annual report on the implementation of the Act to Parliament on 29th November. I reported that two interdepartmental groups have been set up to support the existing Ministerial Committee on Freedom of Information. These groups are chaired by senior officials in my department. The groups will help to broaden ownership of the legislation, emphasise cross-departmental working and act as a forum for sharing best practice.

I also announced in the report the formation of the advisory group on implementation of the Act, which will be jointly chaired by one of my Parliamentary Secretaries, Michael Wills, and the Information Commissioner. This will bring together representatives of all parts of the public sector and independent experts to advise on all aspects of implementing the Act.

The noble Lord, Lord Goodhart, rightly gave a good deal of credit to Parliament for strengthening the Act. But it is a strong Act. Think of the powers that the Information Commissioner has. She can substitute her judgment for that of the public authority on an issue of disclosure, subject to appeal to the Information Tribunal; she can require information from any public authority to enable her to come to a decision on an issue of disclosure; she can apply to a circuit judge for a warrant to enter premises for the purposes of search; to issue an enforcement notice if she believes that any public body is not fulfilling its duties under the Act—with all these powers reinforced by the contempt powers of the High Court. She has the remarkable power to approve and decide on the adequacy of each and every publication scheme.

The noble Lord, Lord Goodhart, asked why the Government did not accept the Information Commissioner's advice on implementation. Let me say, first, that I asked for the advice—she did not take the initiative—because I wanted to know her views. We certainly took her advice into account. The noble Lord, Lord Maclennan, essentially asked why we did not act on it. The noble Lord, Lord Grabiner, gave the answer: the Government had to take account of the views of all departments of state which have to deliver the rights under the Act. The Information Commissioner oversees the Act, but it is the 70,000 bodies covered by the Act which have to deliver. She has made it plain—she is, of course. right—that the decisions on implementation are for the Government.

The noble Lord next asked—and again the noble Lord, Lord Grabiner, gave the answer—whether I was collectively mugged by my colleagues. Perish the thought. A collective decision was taken, which, as I predicted to HASC, was a decision between two broad options, and was very much on balance.

I have already dealt with the strength of the Act. I am grateful to the noble Lord, Lord Lucas, for acknowledging the strength of the Act.

Lord Maclennan of Rogart

My Lords, if the matter was, as the Lord Chancellor said, decided very much on balance, does that not fortify the view that it was extraordinary that the advice proffered by the Information Commissioner did not prevail?

The Lord Chancellor

My Lords. I do not agree. Of course close attention is paid to her advice, but she does not deliver the Act. She has a very important function in overseeing and ensuring its delivery, but its delivery is by others.

Critical for the successful implementation of the Act is the Office of the Information Commissioner, which was created on 30th January and subsumes within it the post of Data Protection Commissioner. Let us get down to brass tacks. The staff in her office—currently about 150—associated with data protection will, over time, have to double to manage the Freedom of Information Act. The commissioner must be in a position to approve the publication schemes of around 70,000 public authorities covered by the Act. Detailed guidance and model schemes will need to be prepared, as will guidance on other areas of the Act. Recruitment of the right people in these numbers, with experience of how the public sector operates and with investigative skills, will take time.

My officials are currently working on a review of more than 300 statutory bars to the disclosure of information. Our aim is to repeal or amend a good many of them using the order-making powers set out in Section 75 of the Act. Many of these statutory bars are necessary to fulfil a European Commission directive or some other international obligation, so it will not be necessary to repeal all of them. However, a number have been identified as candidates for repeal or amendment and I expect to make an interim report on the progress of the review in April.

Another initiative which is currently under way, and to which I refer in my report to Parliament, is the pilot publication schemes. The Information Commissioner is liaising with the Medicines Control Agency, the Department for International Development, the Public Record office, the Ministry of Defence and the Health and Safety Executive to set up and run pilot publication schemes. All five schemes should be available by the end of this year and evaluation of these pilots will help to determine the shape of publication schemes for the first wave of authorities—mainly central government—which will have to apply such schemes from November next year.

I draw a parallel with the implementation of the Human Rights Act. We took two years to implement that Act—for which we were, inevitably, criticised. The noble Lord, Lord Lester, was, understandably, conspicuously impatient for much earlier implementation of an Act which had been a gleam in his eye over many decades. But that time was used for intensive preparation across Whitehall and with training of the judiciary extending to the 30,500 lay magistrates. The opponents of the Act predicted absurd decisions and chaos in the courts. The implementation of the Act, as I know the noble Lord will agree, has been a triumph and the prophets of doom have been comprehensively routed.

Lord Lester of Herne Hill

My Lords, I am grateful to the noble and learned Lord for giving way. I am glad to agree with him that people like myself who pressed for early implementation were shown to have been somewhat over-hasty and that the two-year period was well spent. But will the noble and learned Lord tell the House why, in contradistinction to what has happened in relation to the Human Rights Act, there has been no effective progress in a training programme during the first year since Royal Assent; why there is no training programme for civil servants now before the House; and why, dealing with central government, we cannot do what has been done, for example, in Canada, Ireland and New Zealand for central government—namely, implement the arrangements another year from now or, at worst, another 18 months? So far, the noble and learned Lord has given no facts—to return to the question raised by the noble Lord, Lord Grabiner—as to why we cannot do what other democracies have done.

The Lord Chancellor

My Lords, I rather thought that that was a short speech dressed up as a series of questions. I am trying to persuade the noble Lord, by reason, not to be over-hasty and over-impatient in relation to the Freedom of Information Act in just the same way as he has been good enough to acknowledge he was in relation to the implementation of the Human Rights Act.

The noble Lord asks about training. A great deal of awareness training has taken place during the past year. My officials undertake regular presentations to a wide range of organisations. Ministers have also addressed conferences. A specific seminar for Ministers has been organised to coincide with the announcement of the implementation timetable. I do not dispute that what is required is a campaign of training and awareness training to win the hearts and minds of the people who have to deliver this legislation in the spirit in which its makers intended.

I agree with the comments by the Irish Information Commissioner, which have been quoted, that training is essential. A programme will begin with the ministerial seminar in January and a minimum of two awareness seminars a week until the end of April, led by the Parliamentary Secretary in my department, Mr Wills. They will be followed up with a further programme in the autumn. We have also produced a blueprint for detailed operational training for departments to use to assist in a battle to win the hearts and minds of those in the Civil Service. I remind noble Lords that freedom of information has not been in this safe haven for very long.

The noble Lord, Lord Lester, makes comparisons with other countries. But we must make sure that we compare like with like; otherwise, comparisons are not valid. Some countries did implement their Acts more quickly. The Australian Act came into force nine months after it was passed, but it was not fully retrospective, and it applied only to federal government. Likewise, Canada's Act came into force one year after it was passed, but it was not fully retrospective either and it applied only to federal government. Ireland's Act, which is not retrospective except for personal files, does not, five years after it was passed, apply to nearly as wide a range of public authorities as our own Act will cover. A better comparison would be the Data Protection Act 1984, which created a right of subject access to personal data held on computer, and therefore readily accessible, but the subject access provisions did not come into effect until 1987.

We must take great care with the implementation of freedom of information legislation. It applies to all written requests for information. So all staff in public authorities who will deal with such correspondence must be trained. The Act covers some 70,000 bodies. It applies not just prospectively to future paper, but retrospectively to all paper.

I have told your Lordships about training. Beyond that, my officials are working on the code of practice under Section 45, which will provide guidance on the practice that all public authorities should follow when dealing with requests for information. Officials in the Public Record Office, for which I am also responsible, are drafting a code of practice relating to records management which all public authorities should follow. Both codes will be discussed at the first meeting on 9th January of the advisory group on the implementation of the Act and will then be submitted to the Information Commissioner for formal consultation under the Act. The latest drafts of the code are available on the departmental website and the Public Record Office website. I shall place copies of the versions sent for statutory consultation in the Library in due course.

Noble Lords should appreciate that the fact that the Act applies not merely to future paper but to all past paper creates an enormous challenge for the record-keeping arrangements of central government and of the other authorities—especially as we have also introduced a challenging time limit of 20 working days within which a response must be given.

It has not escaped your Lordships' notice—certainly not that of the noble Lord, Lord Lucas—that the individual right of access will come into force in January 2005, immediately after the target for completion of the Government's electronic records management at the end of 2004. This project will ensure that, by that date, all government records can be created and stored electronically. The work on this project and that of preparing records management for the advent of freedom of information are closely related. Aligning the timetable avoids wasteful duplication of effort.

I do not accept the pessimism of the noble Lord, Lord Lucas, that we shall not meet our 2004 target. There is the strongest determination across government to do so, and I stick out my neck and predict that we shall.

A very important factor was the achievement of the ERM target by the end of 2004. We need to have a clear pathway from paper records to the new electronic ones. We need to have good and accurate paper records which will be the base from which electronic records go forward. Departments are now, as part of their preparation for ERM, auditing and putting into good order existing records so that the electronic records can be developed from them. The noble Lord, Lord Grabiner, correctly summarised the position.

Implementation of the individual access rights in January 2005 gives all public authorities the time to make the necessary changes in procedure and culture. I submit that we have the balance right—beating our statutory requirement of implementing the Act in November 2005 by 11 months, and doing so efficiently and after full preparation.

As I have acknowledged, we did consider whether it would be right to bring the right of access in for some authorities ahead of the January 2005 date. Some might be ready earlier, it could he argued. But, on balance, we collectively concluded that it would create an unsatisfactory state of affairs where rights existed in relation to one organisation and not another, even where both were in the same or similar parts of the public sector. Our collective judgment was that a single right of access day across all public authorities would be better understood by the public. It would give a single day to all authorities by which they would know they had to be ready; and meanwhile sector by sector delivery of publication schemes would promote the new culture.

The noble Lord, Lord Clark, asked me about the standing of the existing code. It remains in place. Although we do not believe that the code of itself is an adequate answer to freedom of information, which is why we brought forward the legislation, we shall continue to promote the use of and compliance with the code until the individual rights of access come on stream in January 2005. But when the Act is fully in force, it will generate many more requests than the code. I am more than happy to undertake to draw that assurance to the attention of my Cabinet colleagues.

I listened with the utmost interest to the account of the noble Lord, Lord Lester, of his failure to achieve freedom of information legislation in 1974. What the noble Lord failed to say is that where there was failure in 1974 we have succeeded in getting freedom of information legislation on to the statute book. He referred to his repentance of the compromise to which he asserts he and his Liberal Democrat colleagues were party so as to ensure that the Bill did not fail before the general election. In the world of grown-up politics, compromise is an essential component in the art of the possible. How regrettable it would be if he and his colleagues were ever to exclude compromise from their politics when—I think that I agree with the noble Lord, Lord McNally, on this matter—it is often part of fighting the good fight.

Let me reject any suggestion that the Government have lost their commitment to freedom of information. We have followed a radical agenda of constitutional change: delivering devolution to Scotland and Wales, a Human Rights Act, and have begun an historic process of reform of this House by removing almost nine-tenths of the hereditary Peers. Freedom of information is another historic change. I assure noble Lords that we press on.

5.34 p.m.

Lord Goodhart

My Lords, I am most grateful to all noble Lords who took part in this short debate. I express my particular gratitude to the two speakers on the government Benches who dared to be somewhat critical of their Government, relatively mildly in the case of the noble Lord, Lord Corbett, but somewhat more severely in the case of the noble Lord, Lord Clark.

The noble Lord, Lord Grabiner, had almost persuaded me of my need to apologise to the noble and learned Lord the Lord Chancellor for suggesting that he could ever be one of the mugged rather than the mugger. Nevertheless, as we listened to his speech with its reference to collective decisions being taken and decisions being very much on balance, I was left with the impression that whatever the voting was, the noble and learned Lord the Lord Chancellor had been on the losing side and had been defeated by the combined forces of departmental Ministers and the armies raised by Sir Humphrey Appleby.

Whether or not I am wrong in that conclusion, I continue to believe that the Government have got it wrong and that this delay is both unnecessary and something which casts doubt on the Government's commitment to freedom of information, not, I should say, on the noble and learned Lord's commitment which I entirely accept.

We shall keep an eye on the matter and we shall in due course bring it back for a further debate to make sure that the Government are continually under pressure to implement the Freedom of Information Act as fast as they possibly can. Having said that, I beg leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.