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Sir Norman Fowler (Sutton Coldfield): Before responding, I must declare an interest as a journalist and chairman of a regional newspaper company. I hope that, on this occasion, the Home Secretary has heard that declaration.
We welcome the fact that the Home Secretary has chosen, on this occasion, to make a statement on the Floor of the House. I hope, however, that he is aware that, after the past two years, many Members of the House, not all of them Conservatives, will need persuading that the Government have their heart in freedom of information.
Mr. Ronnie Campbell (Blyth Valley)
rose--
Sir Norman Fowler:
I do not think that I should take an intervention at this point.
The one action by the Home Secretary that we remember above all others was his obtainment, earlier this year, of an injunction against the whole of the British media to prevent publication of a few paragraphs of the Macpherson report, which was, in any event, to be published a few days later. Will he explain to the House how he squares that with all his words about freedom of information?
Our concern is increased not only by the fact that the clause that sets out the exemptions to freedom of information is the longest in the draft Bill and that the exemptions go way beyond national security, but by the fact that, in one vital respect, the test for withholding information has unquestionably been made easier. The White Paper proposed the test based on the question
Does not that mark a retreat from the White Paper and a reduction of the test in the previous Government's code of conduct, and was it not argued against inside Government by several Ministers, including the Lord Chancellor? In the lengthy negotiations in Whitehall, have not the Government Departments and the civil service won the battle in what they regard as a damage limitation exercise?
I have some questions about specific details of the statement. Is the Home Secretary saying that none of the submissions that come to Ministers will be available for publication, even though many of them are factual statements of the position in a particular policy area? Has he rejected any substantial change to the 30-year rule, given that it has clearly broken down in many respects? Will he say more about the costs of the new system? He said in his statement that they would be between £90 million and £125 million. Will the Government reimburse bodies such as the police, or will costs go where they fall?
Above all, will the Home Secretary confirm that the Government could and should become more open without any legislation? I remind him of the way in which he personally blocked all questions about the leak inquiry concerning the Macpherson report. Does he remember that, on 4 March, I asked him not for the identity of those who were to be interviewed, but whether Ministers, officials and special advisers would be interviewed? His written reply stated:
How will the Bill affect the Government's refusal to disclose the fact that a European Union Committee is considering nearly 200 taxes--twice the number previously thought--for tax harmonisation? Is it not strange that the Dutch Finance Ministry confirmed that freely over the weekend, while the Treasury yesterday told the press that it was "confidential"?
Our aim will be to make this legislation effective, but if the Government want more openness in public bodies, they must take the lead and set an example. So far, there is precious little evidence of that.
Mr. Straw:
I shall deal first with the right hon. Gentleman's specific points, and then with the general one. He asserts that the proposals will result in a reduction of the test in the previous Government's code of conduct.
Sir Norman Fowler:
And the White Paper.
Mr. Straw:
As I explained in my statement, that assertion is incorrect because the Bill will result in a strengthening of the test in the previous Government's code of conduct. Their harm test was simply one of a possibility of harm, but this is of a probability of harm. Yes, the tests differ from those proposed in the White Paper; there is no dubiety about that. I have explained the reasons. On further examination, we found that had we kept to the substantial harm test, information which, unquestionably, could have caused harm to, for example, the national interest in respect of national security or to a law enforcement investigation, but would not have fallen into the category of substantial harm, could have been disclosed. We think that that would itself have been harmful. For that reason, we have gone for more straightforward, simple harm tests.
As I said, the harm tests that we have proposed must ensure--and will be required to ensure--that the harm concerned is real, actual or of substance. We are not talking about an assertion by Ministers, or anybody else, that something could cause a trivial or minor degree of harm; it must be of substance.
The right hon. Gentleman asked whether, under clause 27, none of the submissions that go to Ministers would be disclosable, including factual statements. Factual statement background information is potentially disclosable; it depends which part of the Bill it falls under. Importantly, every Department will have to establish a code of practice for the publication of information. In my view, Departments should be separating argumentative policy advice documents from those which provide background information, and ensuring that background information is disclosable. Moreover, one of the big differences between this Bill and the code which preceded it is that the proposals will be enshrined in legislation and will secure a major change in culture.
The right hon. Gentleman asked what the Government did to become more open even before this Bill was published. Pages 1 and 2 of the consultative document set out a good deal of information about the sort of changes that have been made, where the Government have already introduced major improvements in openness.
Since I became Secretary of State, my Department has put its statisticians on a proper independent footing. No longer, as for my predecessor, is the date of publication of crime data in the gift of Ministers, who then manipulate it to suit their political purpose. We have published all operational manuals relating to the immigration and nationality directorate, except those relating to law enforcement.
When I came to office, more than a dozen reports of Her Majesty's inspectorate of prisons were sitting on the Secretary of State's desk--some more than a year old--waiting for him to approve publication. I have established a clear protocol so that those documents must be published, whether I like it or not, within six weeks. Many of my colleagues throughout Whitehall have similarly ensured that there is much more openness than there ever was under the last Administration.
We are all delighted to learn from the right hon. Gentleman that his aim is, on behalf of the Opposition, to make the legislation effective. There is always room for a Pauline conversion. As some of us remember, in the Conservative campaign guide the whole Tory party stated that there was
Dr. David Clark (South Shields):
I thank my right hon. Friend for his statement, and congratulate him sincerely on his draft Bill. It marks a new stage in the struggle to sweep away the cloak of secrecy that has engulfed British society for too long, and means that for the first time our citizens will have a statutory right to information. I also thank my right hon. Friend for the manner in which he is taking the Bill forward, and for allowing wide discussions both inside and outside the House.
The Bill is in some respects slightly different from the White Paper, as I would expect, but I have no difficulty in going along with most aspects of it. I would, however, like elucidation of one issue: that of prejudice and substantial harm. My right hon. Friend said that prejudice would have to be of substance. Can we not write that into the Bill? It would be very reassuring.
Mr. Straw:
I, in turn, thank my right hon. Friend for his generous comments.
My right hon. Friend is correct in saying that the Bill will, above all, change the culture in which Governments operate. This is the first time that any citizen in this country will have a right to information from Government, and Government will have to say why information should not be provided rather than citizens' having to say why it should be provided. That is a profound change from the climate that we found when we came to office.
As for my right hon. Friend's substantive point--or, rather, the point on which he differs with me--he asked whether the Bill could state that prejudice must be actual, real or of substance. I will certainly consider that, but, as my right hon. Friend knows, following the Pepper v. Hart judgment by the Appellate Committee of the House of Lords, if an issue relating to the interpretation of the Bill and of prejudice comes to court, their lordships in the Appellate Committee take account of what Ministers have said in explanation. I am sure that any court will take account of the definition that I have used--
"will the disclosure of the information cause substantial harm?"
The Home Secretary is now proposing a test based on the question whether disclosure would or would be likely to prejudice matters set out in the exemption in question.
"It would not be in the interests of the leak investigation now under way to give these details."--[Official Report, 4 March 1999; Vol. 326, c. 855.]
That does not sound like a Minister who is committed to freedom of information.
"no need for a Freedom of Information Act"
and that
"the only group in Britain who are seriously interested in a Freedom of Information Act are inquisitive left-wing busy bodies."
In our judgment, all British citizens are interested in a Freedom of Information Act, and we are delivering it.
"real, actual or of substance"--
whether or not it is possible to write it into the Bill. That is one of the reasons why I have put it on the record.
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