Examination of witnesses (Questions 340 - 359)
TUESDAY 3 MARCH 1998
THE RT
HON THE
LORD IRVINE
OF LAIRG,
QC and MRS
SARAH TYACKE
340. And the White Paper raises that and, in a sense,
it seems rather generous as a general contention. It is not a
damage test; it is a harm test.
(Lord Irvine of Lairg) I am glad that you say
that. I think that this is a very very liberal Freedom of Information
Bill that is contemplated. I would really hope that we would get
some credit for that. It is very liberal. It is not a mere harm
test, it is a substantial harm test, and that makes it as liberal
a freedom of information regime which we contemplate as any in
the world. Plainly, you could have had a simple harm test - we
have a substantial harm test - and I believe that is why the Campaign
for Freedom of Information, although they have points of detail
and points of difference with us, as you would expect, on the
whole, as I understand it, has given three cheers for the basic
standards and principles of the proposed freedom of information
legislation.
341. And it is in that spirit that I am asking the questions
because I respect that fact and it has been widely received and
perceived as wide-ranging and innovative and, in fact, it goes
further than many other countries have contemplated in this area.
(Lord Irvine of Lairg) And I think further than
many people expected.
342. Indeed, that is why I was trying to elicit information
on particulars within this White Paper because we have not yet
seen the legislation and clearly we are trying to inform and influence
the balance of judgement that goes towards the Parliamentary draftman's
construction.
(Lord Irvine of Lairg) Certainly.
343. As you know, this question of the public interest
which is in front of Parliament now, my own Private Members Bill,
this definition of what constitutes public interest - -
(Lord Irvine of Lairg) It is a fantastically difficult
question.
344. Indeed, and that is what I am trying to elicit from
you. What happens when we are confronted with the Official Secrets
Act which has prohibition and then the public interest and the
intent of the White Paper is set out to create a culture within
Whitehall and within society, the constitutional framework you
talked about involving young people etcetera, etcetera by making
available information. What I am really asking is about the Commissioner
who will have to create the first principles of what this relationship
is between the harm test, prohibition and, say, the Official Secrets
Act. I am just trying to see how the Government weighs this and
how it is going to address it.
(Lord Irvine of Lairg) I do think the Information
Commissioner, is and will prove to be, a very very important office.
I think that we should be applauded for the very strong powers
that we have given the Information Commissioner to go into departments,
to look at documents, and to assess whether the claim of a department
that a particular public interest would cause substantial damage
can be made out. I know that some have said that this should have
been left to the courts but I entirely disagree. To have an Olympian
litigation in the courts every time there is a dispute about this
would be ludicrous and it would also operate in favour of the
individual government departments that are seeking to withhold
information. You want summary means available and you want the
influence that the Information Commissioner can build up for himself
in Whitehall over time so as to ensure that a liberal regime evolves
but then as a backstop you do have the courts, and I entirely
accept what I think you are saying, that of course questions of
law will arise, of course questions of interpretation of the Freedom
of Information Act will arise. Questions will arise about the
inter-relationship between the Freedom of Information Act and
other statutes and the Information Commissioner will try to resolve
them but he can be judicially reviewed in the courts if, for example,
he has erred in law, if he has construed the statute wrongly,
if he has misunderstood its relationship with the Official Secrets
Act, and so on. So there is a judicial backstop but it is right
that the powers up front should be with the Information Commissioner.
I think it is also right, incidentally, that he should be an independent
officer and not accountable to Parliament. That in itself is a
controversial proposition and that is something we thought about
very very hard and there can be two views about that. We took
the view that public confidence would be enhanced if he was a
wholly independent officer because there would be a danger if
he was accountable to Parliament that he would be equated with
the Government of the day. Right or wrong, that is the view we
took. Other views can be expressed and we do not even have a Bill
yet.
345. Two of the conditions set out in the White Paper
are that the decision should be "in line with the overall
purposes of the Act, to encourage government to be more open and
accountable." That is one factor.
(Lord Irvine of Lairg) What page are you at?
346. I think it is paragraphs 3.19 and 3.21.
(Lord Irvine of Lairg) Thank you. Yes.
347. And the decision should be consistent with other
relevant legislation requiring or prohibiting the disclosure of
information. Disclosures which breach the harm test and the Official
Secrets Act will apparently not be permitted because of this provision
and therefore it is the relationship between those two contending
principles that concerns me. Clearly a public interest test needs
to be set out in this legislation, does it not, when the Commissioner
is - -
(Lord Irvine of Lairg) Certainly. I entirely agree
that you are putting your finger on a difficult area which will
have to be reconciled in the legislation. I entirely agree.
348. Some of us are very concerned over information given
in confidence for instance, one of the criteria under the Official
Secrets Act, by foreign governments because we now are governed
to some extent and to a large extent by the Council of Ministers,
for instance, on European matters. That is, in effect, the legislature
for the United Kingdom. When it passes and agrees a Directive,
etcetera it comes into law within the jurisdiction of the United
Kingdom and yet we are excluded from knowledge of the workings
of these organisations and that is covered under the "hold
all" provision of the Official Secrets Act, information given
in confidence. That is the interface between legitimate public
enquiries as to how laws are made, rules affecting us are created
and what are the trade offs or the arguments or the positions
adopted by government. It is an important element in the formulation
of public opinion and in the formulation of policy and that is
why we think very much this needs to be very clearly defined within
the scope of the legislation.
(Lord Irvine of Lairg) I agree with all that.
Mr Ruffley
349. Lord Chancellor, could I raise a question relating
to the operation of freedom of information and your own Department.
It seems to many people that your Department and you personally
have gone to some lengths to conceal the facts relating to the
refurbishment of the Lord Chancellor's residence. In the first
instance we have a record of officials at your Department saying
that the £650 million refurbishment was in fact - -
(Lord Irvine of Lairg) £650,000!
Mr Bradley: These things tend to get out of hand!
Mr Ruffley
350. I am thinking of what Lord Wolsey would have spent
in that context! At first we were told that this was part of a
ten-year rolling programme by your officials. Subsequently in
a Parliamentary answer your officials had to retract that.
(Lord Irvine of Lairg) Do you want me to deal
with one point at a time or would you like to make a list? Which
would be more helpful?
351. I would like to make a list because it is the cumulative
effect. On 23 February your Parliamentary press release stated:
"The decision to refurbish the residence was made by the
relevant House authorities and not by the Lord Chancellor."
That would seem to be thrown in some doubt, I think, by the leaked
letter you wrote to Black Rod of 1 July 1997 which appeared in
a national newspaper following that press release which makes
it fairly clear that those words that I quoted from the press
release were misleading, which is the word some people have used,
economical with the truth is certainly one characterisation of
that press statement, Lord Chancellor. What I would then like
to go on to - -
(Lord Irvine of Lairg) This is a speech rather
than a question.
352. There are two discrete points there, Lord Chancellor,
that I am sure with your legal experience you are able to follow.
The third point relates to the concealment of the works going
on which resulted in refurbishment of your residence.
(Lord Irvine of Lairg) I am not following that,
the concealment?
353. Yes, concealment in the following respect: there
are contracts which the contractors have been obliged to sign
which contain clauses relating to official secrets and also separately
commercial in confidence clauses - and I do understand the difference
between those two things. It seems to me that in relation to particularly
the last instance I quote of commercial in confidence clauses
and official secrets clauses they are operating to gag and conceal
the amount of information contractors are allowed to discuss about
the costs and the details of refurbishment. As you are an exponent
of freedom of information and your Government is in favour of
freedom of information, supposedly, do you not think this is an
example of hypocrisy? Is it not also the case that many people
would see the details of the refurbishment of a Ministerial residence,
which is what your residence is, a matter of public interest which
should under the principles of freedom of information be publicly
available and will you support that and will you give a confirmation
to this Committee that you will be pushing for freedom of information
proposals to ensure that information like that is freely available
under the freedom of information principles?
(Lord Irvine of Lairg) Now then I would like to
deal with each of these points separately. First of all, I would
like to say that I entirely recognise that £650,000 is a
lot of money. I entirely recognise that. And in fact that was
why when the costings of this first became available to me in
the letter to which you referred to Black Rod, I invited consideration
by the relevant Committees who do make the decisions, I do not,
as to whether this should proceed in one phase for the state parts,
the public parts, with the private residence parts being postponed
to some indefinite point in the future. It was because of my appreciation
that this was a large sum of money that I made that proposal.
Mr Tyrie
354. Your letter also advised that you thought phasing
would not be ideal.
(Lord Irvine of Lairg) I certainly think that
it would not be ideal and the Committee agreed with me because
there are greater economies associated with doing something altogether
than in two separate parts, but it is a proposal that I made,
a proposal that the Committees considered. The Committees included
many Conservative peers and the decisions were the decisions of
these Committees and the decisions were taken unanimously without
any dissent at all. I therefore find that there is a sharp contrast
between the position being adopted by the Conservative peers who
sat at these Committees, which was to approve it in full knowledge
of the facts, and the position being adopted by some Conservative
MPs in the House of Commons. Now I would like to deal with each
point, as I said. It is quite wrong to say that there was ever
an assertion made either by me or by my Department to the effect
that the decision in relation to this residence ante-dated the
General Election. Quite the contrary. Two press releases, one
of June and one of July, said unequivocally that proposals for
the refurbishment of the residence are under consideration. Now,
really, if proposals are under consideration there has been no
prior decision and that seems to me to be a complete answer to
the first point. As a result of the decisions of these Committees,
Committees of the House, the refurbishment of the residence was
added to the ten-year rolling programme. It was made entirely
plain by the Chairman of Committees in the House, as it had been
made entirely plain in the press releases, that there had been
no prior decision and that the decisions (which were the decisions
of the House and House Committees) were taken after the General
Election. Now I have never ever, nor would I dream of concealing,
that this refurbishment has my strong support and approval. I
sent a letter to Black Rod to that effect with the request that
it be made available to every Member of the relevant Committees
and, of course, in these circumstances there is every expectation
that it would become public knowledge. But I have said on many
occasions that I supported and approved this and I would like
to take the opportunity of telling you why I do, but I repeat
the point that the decisions are not for me, the decisions are
for the House Committees, and they are composed of representatives
of all parties and of none and the decisions were taken nem
con. I want to make two other points. The residence is part
of the Palace of Westminster in which we sit. This Palace is the
Mother of Parliaments, it is a Grade I listed building and it
is clearly right that when it is refurbished it should be refurbished
to the highest possible standard because it is part of our national
heritage. May I quote the Prime Minister, as she was, Margaret
Thatcher, in November 1986: "The Palace of Westminster has
no rivals as a symbol of our democratic institutions and most
Prime Ministers in the past have given a lead in encouraging the
conservation and, where necessary, the restoration of this priceless
building. During my time as Prime Minister I have felt myself
privileged to be able to carry on this tradition and a great deal
of preservation work has been successfully completed. Much of
it goes unseen but among the more spectacular projects so far
undertaken the greatest pleasure has come from restoring the magnificent
ceiling of the Chamber of the House of Lords and the exciting
transformation of the State rooms in the Speaker's House."
When Speaker Weatherill succeeded Speaker Thomas there was a very
very high quality refurbishment and restoration of Madam Speaker's
House under the previous administration. I think it is right that
if you are refurbishing part of the Palace of Westminster, an
important part, it be done to the very highest and historically
authentic standards. So I think that it is right in principle.
Secondly, as far as the works of art which I have been able, along
with my wife, to borrow from reserve collections of great national
museums, that is from cellars on to walls, in no case from walls,
but indeed chosen by the curators in co-operation with us, every
one of these curators approves of this, will have the effect of
giving real public access, where there was none before to these
works of art and that was part of my motivation from the very
outset. I saw it as an opportunity to confer public benefit by
securing works of art which sadly languish in cellars on to walls,
works of art appropriate to the building, where they could be
seen and they will be seen regularly, and already charities are
queuing up. The first are Womankind Worldwide, Breast Cancer Care,
Disability Law Service, the Leonard Cheshire Foundation and One
World Action, to mention only some. And, therefore, I have to
say that while I understand that £650,000 appears to be a
large sum of money, I believe that it is in a noble cause and
that future generations will be grateful. And also I want to say
this, to seize the wallpaper charge straight on the chin, we are
talking about quality materials which are capable of lasting for
60 or 70 years. You are not talking about something down at the
DIY store which may collapse after a year or two. What is intended
is a durable refurbishment of an historic part of our national
heritage in a way that will give satisfaction to future generations.
Mr Ruffley
355. You have actually answered a question I did not
ask about works of art. Can we get back to freedom of information.
My third point is in relation to clauses in the contractors' contracts,
commercial in confidence clauses, Official Secrets Act clauses,
restricting their ability to talk about the cost and the details
of refurbishment. My question is not about works of art and I
was rather surprised that you were so defensive in your response
to a question I had not raised.
(Lord Irvine of Lairg) I was not in the least
defensive. I am taking this splendid opportunity in front of you
all to explain myself.
Mr Hancock: We are here to talk about the Freedom of
Information Act.
Mr Ruffley
356. My question was in relation to freedom of information.
Do you believe that members of the public should have the right
to have available, under freedom of information, details which
your Department is actually seeking to keep quiet because of the
clauses in the contracts I have discussed?
(Lord Irvine of Lairg) Would you like to pause
for an answer?
357. Is it the case that you think the public under the
future Act your Government will be taking through has a right
to know that information?
(Lord Irvine of Lairg) Now, would you like to
pause for an answer? First of all, these contracts are not let
by my Department. My Department is not party to these contracts.
They are House contracts. The money that we are talking about
is voted by the Treasury to the House as an institution. The contracts
that you are referring to are standard form contracts. They have
been used for donkey's years. They have got nothing to do with
my Department or my Department's officials at all. My Department
has nothing whatsoever to do with these contracts. I never saw
any of these contracts and these are matters for the House authorities.
I have to say knowing as well as you do the security risks which
in modern society this Parliament faces, I see no objection at
all to the Official Secrets Act applying to these contracts. Some
of you will have noticed that in some of the newspapers there
were published plans of the residence with a very accurate identification
of its various parts. I hope that you would be the first to deprecate
that on the grounds of the security implications.
358. One final question. Is it the case that you think
the public as a matter of right, and not by virtue of MPs putting
down Parliamentary Questions to find out the cost of wallpaper
and carpets and beds and oak tables, should be able to discover
the cost of refurbishing ministerial residences, yes or no?
(Lord Irvine of Lairg) All I would say is that
so far as this residence is concerned, there was the clearest
statement that it was £650,000 from a very early stage. There
was a Parliamentary answer, I think more than one, giving a detailed
breakdown and I do not think that there is any complaint at all.
It did not deter various people from saying that it was going
to be millions of pounds or newspapers saying it was going to
be up to £2 million. The figure was £650,000 and that
was declared at a very early stage and there was the fullest disclosure
of the breakdown by way of Parliamentary answers.
Mr Tyrie
359. When you wrote your letter to Black Rod did it occur
to you that there might be some political embarrassment about
it?
(Lord Irvine of Lairg) I thought that it was absolutely
right to make the fullest amount of information available to the
Committees of precisely what was contemplated and that is exactly
what the letter did. I believe that the Committees were entitled
to be fully informed of what was contemplated and that is what
the letter set out to do and, as I say, because of a perception
that £650,000 in one fell swoop might seem to be a very large
sum of money, the two-phase option was given to them but I think
that there is nothing but candour and the fullest detail in that
letter and it caused me a certain amount of pleasure to read Lord
Jenkin's letter to The Times saying that he regarded the
letter as unexceptional. I do as well.
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