Examination of witnesses (Questions 380 - 399)
TUESDAY 3 MARCH 1998
THE RT
HON THE
LORD IRVINE
OF LAIRG,
QC and MRS
SARAH TYACKE
380. This Committee is of one that we are enthusiastically
behind this. We want to spend the time we are discussing it to
try and improve it. You recently said that you felt this freedom
of information would help rekindle young people's enthusiasm for
public and political life. I am interested to know what you base
that on?
(Lord Irvine of Lairg) I do not think I quite
put it that way, but I certainly do think that there has been
a culture of secrecy in this country for far too long. I think
much greater openness is a good. I do not think that on top of
Marnie mountain they will be talking of nothing else but I do
think that it is an important incremental improvement in transparency
and honesty and gives people who are sufficiently interested to
want to know the opportunity to be much better informed citizens.
You do not change the world overnight but this, I think, is a
quite major step forward which some of us have been looking for
for a very very long time. I do hope that this programme as a
whole will restore people's trust in government and in politics
and I think if you bring substantially to an end the culture of
secrecy, that will enhance popular trust in the machinery of government.
381. I agree entirely with that; I hope that is what
materialises.
(Lord Irvine of Lairg) That is all that motivates
me.
382. To get me to agree with you?
(Lord Irvine of Lairg) That is what motivates
me in advocating this freedom of information legislation. I take
great pleasure if you agree with me.
383. Is legal aid going to be available for people who
want to challenge the Information Commissioner's point of view
because if it is not that is a pretty substantial impediment against
the average citizen being able to challenge and actually use this
Bill. It might then end up being something only used by those
who can afford it.
(Lord Irvine of Lairg) I understand that. However,
legal aid will remain available for judicial review and I myself
am strongly of the view that legal aid should remain for appropriate
cases where maladministration is alleged. The short answer is
legal aid will remain available, so you need have no concerns.
384. How will the judgement be made for someone who seeks
information and they are refused? They then seek legal advice
about how they can proceed to judicial review?
(Lord Irvine of Lairg) They will probably not
seek legal advice, it will not work that way. They will go along
to the Information Commissioner and he will say probably the best
way to deal with it is for you ask for internal review and that
is by the Department and he will no doubt facilitate the individuals
seeking an internal review. The Information Commissioner could
decide, if part of the complaint is how long a government department
has been sitting on this request, that an internal review is just
a waste of time and he will straight-forwardly intervene himself.
He will intervene and he will be, as it were, on the side of the
objectives of this Act, but suppose it is thought that he has
misconstrued his powers, which is an error of law. Let us suppose,
this is just the classic terrain of judicial review, he takes
into account irrelevant factors or omits to take relevant factors
into account. Let us suppose, highly unlikely but let us suppose
it, that the government department is being utterly perverse and
for some reason the Information Commissioner goes along with it.
These are all the classic grounds for judicial review. The individual,
if he qualifies for legal aid, will be able to apply for legal
aid for that purpose in the ordinary way.
385. Fine. My last point relates to where you came in
this morning about your role as chair of the relevant Cabinet
Sub-Committee dealing with this. You were right up front in your
suggestion that the Bill was much more liberal than most people
would have expected would be the case prior to 1st May and we
are delighted about that.
(Lord Irvine of Lairg) I do think that is properly
right.
386. I do tend to agree with that so we have more than
one thing in common, but I would be interested to know what sort
of hostility - because you are the one who is mainly complimented
with the fact that this White Paper ended up with a more liberal
feel to it - -
(Lord Irvine of Lairg) I would not take away from
the Chancellor of the Duchy of Lancaster. There is no doubt that
as the Minister responsible he has at least an equal entitlement
to the credit for it and really more as the responsible Minister.
387. What was driving the Home Office to be so anti that
then?
(Lord Irvine of Lairg) I do not accept that that
is so. The position is that many Cabinet Ministers were represented
on this Committee and what emerged is the view of us all and you
cannot expect me to discuss the give and take of discussion within
a Cabinet Committee. You know perfectly well I cannot do that.
388. I just thought in this spirit of freedom of information
you might disclose to us what the pressure was not to go so far
and why.
(Lord Irvine of Lairg) I do not accept that there
was any pressure from any source not to go so far, but there has
been a lot of speculation about it. I can say, and I am sure Richard
Shepherd would be the first to agree, there are serious arguments
about whether you have a simple harm test or a substantial harm
test and what has emerged is a substantial harm test. What actually
has emerged in relation to the advice that civil servants give
Cabinet Ministers is a simple harm test and you can see good justification
for that as well but I can assure you that all points of view
were weighed up and the Government is wholly behind this White
Paper.
Mr Ruffley: Thank you.
Dr Clark
389. Lord Chancellor, firstly can I make it plain that
even as a lawyer I welcome the role of the Commissioner in this
and I am not advocating that courts should have the first bite
of the cherry. One of the powers that is being mooted at the moment
in Southern Ireland is to extend the equivalent Commissioner's
power to allow him to do what we in Scotland would call a "stated
case". In other words, where there is a dispute between the
Commissioner and perhaps one of the departments about what the
law means, he can put forward a case to the court asking the court
not by way of judicial review but merely by clarification as a
point of law to clarify the law. Have you given any consideration
to that sort of technical route rather than the remedy of judicial
review or in addition, perhaps, to the remedy of judicial review?
(Lord Irvine of Lairg) I will certainly look at
that but just off the top of my head I would have thought that
if an issue of law, let's say interpretation of a statute, which
is the simplest for everyone, arose between a government department
and the Information Commissioner there is a different procedure
in England but one which I do not doubt is essentially the same.
It is a procedure called "originating summons" in which
you get the court's view as to the correct state of the law. It
is most useful, as I imagine it is in the Scots procedure of stated
case, where the facts are essentially agreed and it is a dispute
of law. I would go so far as to say it is intended that remedy
be available to the Information Commissioner. It just comes in
slightly different clothes from the Scottish clothes.
390. Just looking at the model of the Commissioner, again
I would agree with you, I think the model of the Commissioner
and the new powers that will be given to the Commissioner is a
good model. What concerns me is that the other models such as
the Ombudsman for Data Protection are all quite different and
for no particular good reason perhaps quite different. For example,
in the Ombudsman we still have a model whereby the constituent
has to come to the MP and then refer to the Ombudsman and there
are various steps in the process. The Ombudsman does not have
the same powers and all this sort of thing. Would you agree that
there is a need to look at the powers of the various different
Commissioners or Ombudsman that we have to try and make sure that
they are up to date and that we do not have this enormous spread
of powers that makes it all very confusing for individuals?
(Lord Irvine of Lairg) I do not believe in perfect
symmetry for its own sake but, on the other hand, I think I agree
with you that there is considerable scope for looking at the powers
and the means of exercising them of each of these officers. As
you know, one issue under the Human Rights Bill is whether we
could have a Human Rights Commission and the decision has been
taken not to exclude that for all time but not now, wait for the
Human Rights Bill to bed down, get some experience of it and them
contemplate a Human Rights Commission. However, the Government
has said very clearly, although this as you know is a matter for
the House and not the Government, that it tends to favour the
establishment of probably a Joint Committee of both Houses of
Parliament whose remit is human rights. On the footing that that
happens, and it is a matter for Parliament not for Government,
then I think what you have just raised is a classic subject for
attention by such a Committee.
391. If I could move perhaps on to a Scottish context
because I am obviously representing a Scottish constituency. My
understanding is that the present legislation which has been proposed
will not apply to Scotland and I understand, of course, that the
Scottish Parliament will have powers to deal with the freedom
of information issue once it is up and running. My concern is
that it may well take them a very long time to get round to that
bearing in mind there will obviously be a time lag before they
have a Parliament up and running and also that there will be a
whole raft of very important issues which will be needing addressed.
My own view is that there would be merit in making the present
Freedom of Information Bill apply to Scotland leaving it open
to the Scottish Parliament, of course, to change the legislation
if they so wished in relation to devolved matters once they are
up and running. That would at least mean we have freedom of information
legislation in Scotland as soon as we had it in England and Wales.
(Lord Irvine of Lairg) I can see some force in
that. Of course, the freedom of information legislation will apply
to the powers reserved, ie, not the powers devolved to Scotland.
It is quite right that the view has been taken so far that with
the Scottish Parliament so imminent and with all these powers
to be devolved, a very substantial area of legislative competence
devolved, and a new Parliament about to establish new frameworks
over a very broad range of home policy and legal policy and the
like, that it might be better to leave the Scottish Parliament
to address it, as no doubt it would wish to do at a very early
stage. That is precisely the kind of thing in which I can see
that it can be argued both ways.
392. Moving on to another aspect, I am not entirely clear
- this is my fault really - what is proposed exactly in relation
to legislating for interpreting principles in relation to the
European Convention. Is that going to apply to Scotland at the
moment or is it going to be left over like the freedom of information
position?
(Lord Irvine of Lairg) No, the Human Rights Bill
is a United Kingdom Bill.
393. Yes, so again that is why I am confused really because
I do not see the arguments that would appear to apply for leaving
over the freedom of information to the Scottish Parliament because
surely they apply, perhaps even more so, in relation to the fundamental
issues that are raised by the Convention. My own view is that
they should both be brought in now leaving it to the Scottish
Parliament to change it if they wish. I am not entirely convinced
about the Government's position in relation to the Freedom of
Information Bill.
(Lord Irvine of Lairg) I can understand you saying
that. On the other hand, the Convention constitutes well-known
principles of human rights. We can all probably agree that these
human rights principles should be respected by all government
departments and that public authorities act unlawfully if they
breach individual human rights without the express sanction of
statute. We can all probably agree about that. It is a general
principle. Basically what the Human Rights Bill does is legislate
for general principle, but of course it offers a definition of
"public authority" which is a very very broad one. When
we are talking about a freedom of information regime however,
what we are talking about is imposing substantial new obligations
on government departments which have got to prepare themselves
to comply. I know the reasoning that has applied so far is that
with such major changes about to take place in the machinery of
government in Scotland there is nothing inconsistent with saying
that general principles of human rights should apply having been
passed by the United Kingdom Parliament, but classically, machinery
of government issues like freedom of information should be left
to be addressed by the new Scottish Parliament which is not far
away. I can see the contrary can be argued. In a sense it is an
odd thing to say when the Scottish Parliament is so imminent let
us just apply this statute and then they can change it if they
like. We have waited in this country for a very long time for
freedom of information legislation and it might be better to let
the Scots do this for themselves.
394. There is a cultural change that has to be made and
one of the advantages of what we are doing now in relation to
this freedom of information legislation is trying to educate and
change the culture. It does seem a pity that the Scottish civil
servants can sit back and say, "Not for a while yet."
(Lord Irvine of Lairg) This is an on-balance thing.
I have just expressed my view on balance. I can well see the contrary
view can be maintained.
395. In relation to the European Convention and the principles,
I understand that the remedy chosen was to go down the route of
declarator incompatibility rather than incorporate the Convention
as it stands into Scottish or English law.
(Lord Irvine of Lairg) That is true.
396. Would I be right in thinking that it would still
be open if Scotland so chose to come up with a different remedy?
It seems to me there is nothing to prevent the Scottish Parliament
taking the view that incorporation of the Convention, certainly
in relation to devolved matters, might be possible for Scotland
because it might be thought that it would give a better remedy
in a Scottish context.
(Lord Irvine of Lairg) I think that that is a
very very very difficult question of law bearing in mind - - it
really is so difficult that I want notice of it, but you must
bear in mind that compliance with the Human Rights Bill or the
Human Rights Act will be a limitation on the Scots Parliament's
vires so that is a very difficult question and I think
I will undertake to look at it and write to you[4].
397. Perhaps an easier question is insofar as the individual
litigant who gets declarator incompatibility, am I right in thinking
that so far as that litigant is concerned, that is it, in other
words he does not actually have a remedy?
(Lord Irvine of Lairg) That is right. That is
the logic of this form of incorporation and the rationale is this:
that the Act complained of as an unlawful Act was in breach of
the Convention but it was sanctioned by Parliament, therefore
it was not an unlawful Act, therefore no remedy to the individual.
It is not made retrospectively invalid merely because Parliament
decides that it is going to alter the legislation for the future.
You can imagine particular cases where there might be pressure
for ex gratia payments, but it is not policy of the Human
Rights Bill retrospectively to invalidate that which was sanctioned
by Parliament as the courts held in holding that the legislation
was incompatible with the Convention.
398. I can see the logic of that. My concern is slightly
for the individual litigant at the end of this long process when
he has had a big success and the lawyer has to say, "I am
terribly sorry, but that's it, big success but no remedy for you".
That is a very minimum and one would hope if there were going
to be retrospective legislation - -
(Lord Irvine of Lairg) It would not be retrospective
legislation.
399. I am sorry, when there was legislation altering
the law that serious consideration would be given to giving remedies
to persons who have been aggrieved.
(Lord Irvine of Lairg) I think there would inevitably
be pressure on government to do so, yes, but the principle of
the Human Rights Bill is to reconcile giving greater effect to
Convention rights, to the sovereignty of Parliament, and an unwillingness
to allow the judiciary to set aside an Act of Parliament seems
inconsistent with the Convention. This was a major decision of
principle and I do think that the higher judiciary themselves,
with whom the buck stops, did not want a power to invalidate Acts
of an elected Parliament. They positively did not want it, although
with other methods of incorporation it could have been given to
them.
4
See Appendix 4, p. 107. Back
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