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Dr. Tony Wright: Will my hon. Friend give way?
Mr. O'Brien: I will in due course. Perhaps my hon. Friend will wait until I deal with what he said earlier.
I believe that our amendments remove the difficulties that Mrs. France experienced with the draft Bill, and also remove the need for a compensatory purpose clause.
Mr. O'Brien:
I am facing a number of demands. I shall give way to the right hon. Member for Caithness,
Mr. Maclennan:
The Minister has tried to deal with some of the points that I have raised, but he has seriously misrepresented the views expressed by Elizabeth France to the Committee. She was not speaking about the discretion that she was exercising in the discharge of her duty, which has perhaps been affected by the Government's redrafting of the Bill--although I beg to suggest that the Government's own retained power to veto her suggestions vitiates the Minister's point. She was clearly referring to the discretions being exercised by others. She said that when, as the potential authority, she examined the Bill it would be helpful to know
Mr. Deputy Speaker:
Order. That was quite a long intervention, albeit one on a technical matter.
Mr. O'Brien:
I have certainly not sought to misrepresent Mrs. France's views. Mrs. France was explicit about them, and the right hon. Gentleman must take it from me that I have done my best to reflect them. She was speaking of decisions made by others, particularly public authorities and Ministers.
The right hon. Gentleman appears not to realise that we are not just changing the balance, but creating a new statutory duty of openness. When there is a public interest in a matter's being open, and when an exemption applies, the public authority will be obliged to make the information public, if it is outside the remit of proper secrecy in the public interest.
We all agree that, in some circumstances, an element of secrecy may be necessary: I do not think any hon. Member would dispute that. Such secrecy may sometimes be in the public interest; but the balancing decision must be made, and when the balance comes down in favour of the public interest in terms of the right to know, no public authority will retain any discretion. There will be no discretion for Ministers either: they, and public authorities, will have to disclose the information. We have made a radical change in the law, and our amendments are, in substance, entirely different from what was in the Bill when Mrs. France spoke to the Committee.
Dr. Tony Wright:
I am interested by what my hon. Friend is saying, but I am not sure that he has got to the heart of what some of us were arguing.
Clause 33 deals with the formulation of Government policy, an area in which there is no harm test. We have been told that the Bill is about changing the culture of Whitehall. Whitehall is here being asked to consider the public interest in relation to the formulation of Government policy. How are those in Whitehall to understand what the public interest is? How are they to
decide what can properly be withheld on a discretionary basis? How can they decide what is to be disclosed? What reference point is available to them?
One of the aims of a purpose clause is to give those people the necessary information. It is there to tell them the purpose of the Bill, so that, when engaged in the balancing exercise, they can operate within a framework of intention; otherwise, the clause is vacuous.
Mr. O'Brien:
My hon. Friend is wrong. We shall come to this later, and I shall heed any strictures from you, Mr. Deputy Speaker; but clause 13 draws attention to the need to create a balance. It establishes a statutory duty to give the public information when the public interest in that information being made public outweighs the public interest in its remaining confidential. Precisely what my hon. Friend wants is being done, not in a purpose clause but in clause 13.
We introduced the provision in clause 13 because we feared that, in its operation throughout the realm of the Bill, the purpose clause might disturb a careful balance that we have sought to create between the various issues that I mentioned at the outset. I am not sure that there is a great deal of difference between my hon. Friend and me on this point. We want to bring about circumstances in which information is disclosed when that is in the public interest. When the public seek such information, they should have a right to request it, and the public authority will have a statutory duty to disclose it, provided that it judges that the public interest in disclosure outweighs the public interest in not disclosing.
Fiona Mactaggart (Slough):
Perhaps the Minister would recall that, in discussing this type of issue on Second Reading, he advocated the approach that he said had been taken in New Zealand, which he believed had
Mr. O'Brien:
I am very happy to tell my hon. Friend how we have set about doing that. We published--at the beginning of February--the report of the working party on freedom of information in the public sector, which demands that public authorities begin now, before the Bill is passed, to open up their procedures to the public and to
The Government want to do precisely what I said in Committee, and precisely what my hon. Friend the Member for Cannock Chase is seeking to do: to change not only the culture in which Whitehall operates--it is a culture of much too much secrecy--but the types of culture that operate in far too many public authorities in the United Kingdom. Changing that culture is not only about passing laws, but about getting inside the organisations and changing them, as Canada has tried to do.
The Canadian information commissioner has said that, after Canada's 15 years of freedom of information legislation, although it had strong laws, it had not achieved the cultural change. We want to achieve that cultural change not only in institutions of government, but beyond government. We are aware, however, that simply passing laws is not good enough: we have to change the culture as well.
Mr. Mackinlay:
Will the Minister give way?
Mr. O'Brien:
I should like to make some progress, as I have been speaking for quite some time.
Mr. Mackinlay:
The Minister promised.
Mr. O'Brien:
I did. I shall give way, one last time, to my hon. Friend, and then I want to finish.
Mr. Mackinlay:
The Minister talked about unpredictability. However, unpredictability will be precisely the product of our failure to include a purpose clause in the Bill. The effect of omitting such a clause would be similar to throwing things up in the air and hoping that they fall in the right place. We could have enormous good luck and see the first freedom of information case being decided by a very radical judge--in which case there could well be weeping and gnashing of teeth in Government and in some public bodies. Conversely, a deeply Conservative judge could decide the first case. Hon. Members have a duty, when we can, to be precise in our legislation, and that is precisely what we are being invited to do in this debate.
what I could use to hang a view that a discretionary decision had been improperly taken.
Throughout his speech, the Minister has changed the whole emphasis of the Government's approach as set out in their White Paper "Your Right to Know". The presumption of openness--that was the language used by the Government in the White Paper--has become a balance that must be struck. There is no presumption of openness in anything that the Minister has said.
concentrated less on the wording of the legislation than on the cultural changes and . . . achieved a greater degree of openness. Legislation is only part of the process. It provides the essential legal base, but creating a new culture of openness is in many ways the real test.--[Official Report, 7 December 1999; Vol. 340, c. 789.]
My view is that the people who are pressing new clause 1 are concerned that, in the four months since the Minister made that statement, that new culture of openness has not been seen. Perhaps he could tell us what the Home Office has done in those four months to create a culture of openness, and why we should not request a legislative framework that forces it to create such a culture?
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