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Mr. Jon Owen Jones (Cardiff, Central): Will my hon. Friend give way?
Mr. O'Brien: Perhaps I might make a little more progress before I give way to my hon. Friend. I thought that I had been fairly uncontroversial. Actually, I am fascinated by how controversial I can be, so I shall give way to him.
Mr. Jones: I thank my hon. Friend for his patience in allowing me to intervene so early in his reply.
I have been in the Chamber since the beginning of the debate and I have not heard a contribution to it that supports the Government's line in opposing the new clause and the amendment. Will my hon. Friend comment on why the Government do not appear to have any support that will be vocalised in the Chamber?
Mr. O'Brien:
I thank my hon. Friend for making what he will know is a helpful intervention. He was about to hear the arguments that are deployed against the new clause and the amendment. If there is a Division, he will find that my right hon. and hon. Friends will feel able to support the Government. That is how they will express their views.
I was in the process of saying that we have listened carefully, particularly to the contributions that have been made by my hon. Friends and by Liberal Democrat Members, who made a number of constructive suggestions. As we continue to consider the Bill, I think that we shall find areas where the Government have listened to the Liberal Democrats and, on some occasions, even to Conservatives. It is all about getting the balance right and it is appropriate to debate how we do so. It is about balancing the needs for individual privacy, confidentiality and efficiency in government with the right of a citizen to have a statutory right to know what is going on. That applies not only to the Government but to other public authorities too.
I am asked, "Why the Home Office?" by my hon. Friend the Member for Linlithgow (Mr. Dalyell). He may well have joined the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) in setting out a list of various reasons why he thinks that the Home Office is not the appropriate Department. They will know that the Home Office is the relevant Department in terms of the Human Rights Act 1998, the Data Protection Act 1998, the Race Relations (Amendment) Bill and the electoral procedures Bill, which has now become the Representation of the People Act 2000. It is the Department that introduced the Political Parties, Elections and Referendums Bill to clean up the sleaze in politics in Britain. The Home Office, which has strongly improved our citizens' rights, is the right Department to make the constitutional change that we are considering.
I always pay great attention to the comments of my right hon. Friend the Member for South Shields (Dr. Clark). I usually agree strongly with them. He is right that we need to change the culture of our political elite. We must get the message across, through the debate and the Bill, that we want to change that culture and renegotiate the relationship not only between the citizen and the Government but between the citizen and all public authorities. However, that requires not a purpose clause, but a Bill.
Mr. Mackinlay:
Will my hon. Friend give way?
Mr. O'Brien:
I shall give way shortly, but I want to proceed with the argument.
I have described the alchemy whereby the matter was appropriately referred to the Home Office. The Bill will ensure that we can renegotiate the relationship between the citizen and the state on freedom of information.
The hon. Member for Shrewsbury and Atcham, who opened for the Conservative party--
Mr. O'Brien:
The hon. Member for Aylesbury (Mr. Lidington) said that we should trust the people. For 18 years, the previous Conservative Government had no such wish to trust the people or to create a statutory right to know. That had to wait for a Labour Government. Conservative Members did not want a Bill; their amendment on Second Reading would have denied the measure a Second Reading. Some Conservative amendments, which we will consider later, try to restrict parts of the Bill. I shall therefore take no lectures from the hon. Member for Aylesbury about trusting the people.
I want to deal separately with amendment No. 100 and new clause 1, which is a more serious proposal that I would like to consider at length. Amendment No. 100 is a purpose clause, which adds nothing to the Bill. The long title already explains more comprehensively than the amendment the purpose of the Bill, which is to
New clause 1 proposes a different, more ambitious purpose clause. Its supporters have argued for it in a different way.
Mr. Dalyell:
My hon. Friend believes that the amendment is pointless and adds nothing to the Bill. Does he believe that the courts would share his opinion?
Mr. O'Brien:
I suspect that the courts would take that view. They would probably say that such an amendment merely created a confusing approach to the Bill. They would ask why we had a long title and a purpose clause that replicated each other. They would have to work out Parliament's purpose in including such a duplication. It would confuse interpretation of the statute.
New clause 1 has a more ambitious purpose.
Mr. Shepherd:
On the long title, the Government weighed up representations for a purpose clause. They heroically changed the original formula, which read:
Mr. O'Brien:
I thought that I had just explained that to the hon. Gentleman. I listen with great care to his views on this subject, because unlike most Conservatives he has a long and strong record of supporting freedom of information, and I pay tribute to him for that. We want the Bill to express our view that the citizen should have a right to know, and I do not think that we need a purpose clause to make the Bill do what we want it to do.
I want to make some progress, but I shall take some interventions after I have set out the main body of my argument. I have heard the arguments, including the recommendation of the Select Committee on Public Administration, that a purpose clause can be used to show clearly which of two or more competing values should be uppermost when a decision is made. However, I do not think that a purpose clause along the lines of new clause 1 is appropriate, and I shall set out precisely why.
One must assume that such a clause would be given legislative effect by the commissioner, the tribunal and the courts, so it would change the balance of rights that the Bill seeks to achieve. It is not possible to say that in every case one right should trump another. The right of access to information must be balanced against the right to privacy and confidentiality. Too strong a presumption in favour of disclosure for certain purposes, however worthy, over other competing rights to privacy or confidentiality could lead us into conflict, perhaps with the Human Rights Act.
Mr. O'Brien:
I shall give way to the right hon. Gentleman later, but I want to make some progress.
The Bill must be set in the broader context of the Government's wider agenda for reform, including the Data Protection Act and the Human Rights Act. It must be considered as a whole. We do not want to create provisions through a purpose clause that disturb the balance in the Bill and that may--we know not--bring us into conflict with the Human Rights Act.
Openness does not have a monopoly on righteousness. Privacy and confidentiality have their proper place, and the right of the public to know must not place an unnecessary burden on business or undermine the proper and efficient running of government in the public interest.
We know that a weak confidentiality clause in the United States legislation allows companies to use the freedom of information regime to obtain information about competitors. Up to 60 per cent. of requests under the US freedom of information legislation are from companies trying to find out what the Government know about their competitors. We must have a balanced approach to these provisions.
Dr. Tony Wright:
Will my hon. Friend give way?
Mr. O'Brien:
Not at the moment. I want to go through my argument, and then I will happily give way to hon. Members.
Such an emphasis on certain purposes could backfire. If business were inhibited from giving the Government commercially sensitive information, on the basis that it might be released under freedom of information legislation, it would affect the effective regulation of the financial sector, trade and commerce, which could be undermined. The public interest in freedom of information could conflict with the public interest in regulating business.
The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) rightly referred to Elizabeth France's comments on this issue. We want her to be
the Information Commissioner. I am familiar with the arguments that Mrs. France put to the Select Committee on Public Administration when she gave evidence on the draft Bill in June last year. She argued for a purpose clause on the basis that
Make provision for the disclosure of information held by public authorities or by persons providing services for them and to amend the Data Protection Act 1998 and the Public Records Act 1958; and for connected purposes.
The amendment is therefore unnecessary. It achieves nothing and I oppose it mainly because it is pointless. The Bill's purpose is already stated in the long title.
Make provision about the disclosure of information
to "make provision for". Intellectually, if they can change such a big word as "about" to "for", why can they not embrace an amendment that sets out clearly and indisputably the purpose of the Bill?
5.45 pm
it would be very helpful in making judgments about discretionary decisions,
and went on to say that a purpose clause
fits also with my view that discretionary decisions should be reviewable in substance, the two are a package, if you like.
It is important to remember that, when Mrs. France gave evidence, the draft Bill only permitted the Information Commissioner to specify the circumstances that an authority could take into account when determining the public interest. The draft Bill gave the commissioner no power to order or even recommend disclosure in the public interest. Moreover, it did not explicitly require authorities to comply with a requirement to balance the public interest in disclosure against the public interest in maintaining an exemption. Mrs. France's arguments were therefore based on the understanding that a purpose clause would indirectly strengthen the provisions relating to discretionary disclosure, and underpin the commissioner's power to specify to authorities the matters that they should take into account.
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