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Mr. Mike O'Brien indicated assent.
Mr. Heath: The Minister has been generous in acknowledging that, and I appreciate that the Government listened to one point that was made. However, the change is such a minuscule movement in the right direction in the context of the enormity of clause 43 that it does not satisfy me. The House should not accept that the retrospective powers available under the Bill should stand.
I will not go into detail on new clause 5, because I imagine that the hon. Member for Cannock Chase (Dr. Wright) will wish to say something about it. However, everyone agrees that this is an important Bill. We must get it right and ensure that retrospective capacities are not built into it for no apparent reason. They have appeared since the draft Bill was published and they could be the avenue by which a wholesale rewriting of the Bill takes place at a later stage.
As I said in Committee, if I were a civil servant or worked for a public body and saw that a Minister had the capacity retrospectively to exempt information in my possession, I would beat a path to his door and tell him why all the information in my possession should, of necessity, be exempt. I would find any number of legal and other arguments to make that case. I do not think that it is necessary to have such a capacity in the Bill. It would be better without it. I urge the House to support my amendment.
Dr. Tony Wright:
Clause 43 has been a cause of difficulty for a long time. It had a previous incarnation in the draft Bill as clause 36, where it caused no less difficulty.
The clause allows the Secretary of State to exempt information at short notice simply by order. That provision can be used to trump any request that the Government have received, but that they cannot refuse under existing exemptions. The Bill explicitly permits an order to apply to information that is the subject of an existing request--a request that has already come in. On any test, that is an unacceptable provision. Given the huge number of exemptions in the Bill, it is hardly necessary. It is not as though the Government lack protection. The restrictions are not so loose that they have to put a cover-all in the Bill. As many hon. Members have said, the Bill is narrowly drawn, so such a sweeping clause presents a difficulty.
When the Select Committee on Public Administration considered what was then clause 36, it found it unacceptable. It said:
My hon. Friend the Parliamentary Secretary, Lord Chancellor's Department, told the Committee considering the Bill that the Government needed clause 43 in its present form because
Almost everyone who has spoken so far has argued that the Bill is laden with restrictions. If, in the fulness of time, Ministers discover that the sky does not fall in and realise that, in the new culture that develops, fewer restrictions and less onerous provisions are needed, it will be useful to have an order-making power that enables the gradual peeling away of some of the restrictions. New clause 5 allows the Secretary of State to provide that specified information is not covered by a specific exemption; it allows him to repeal a specific exemption, or to apply it more narrowly to specified information only; it enables him to replace a class exemption with a harm-test exemption; and it enables him to remove or restrict the right of authorities to refuse to confirm or deny the existence of information.
Were I in unworthy mode, I might say that what is sauce for the goose is sauce for the gander; however, in worthy mode, I say that the new clause is cast in the spirit of flexibility that the Government say they want to introduce. New clause 5 will enable the Government to live up to their pledges and to strip away unneeded restrictions, and I commend it to the House.
Mr. David Davis:
As the House knows, I do not approach the Bill as one who has a history of fanaticism about freedom of information. Given my periods of office in the Foreign and Commonwealth Office, the Cabinet Office and the Whips Office--I would need only a period at the Home Office to have the full set of the most secretive Departments of State--my training has all been in the opposite direction.
I did not intend to speak on this group of amendments until I was provoked by the Minister of State's comments on the first group. He appeared to tell us that he disliked the idea of introducing uncertainty into the Bill--uncertainty in that context meaning allowing the courts to make decisions on the basis of the distinct purpose of the Bill. However, he is asking the House to accept precisely the same degree of uncertainty, except that it will be him or other Ministers making the decisions, not the courts.
Clause 43 is patently wrong and I shall not waste my time reiterating the powerful arguments that have already been made. Instead, I shall speak briefly about clause 6 and the amendments tabled by the Liberal Democrats that would remove certain parts of it. At first glance, the clause appears symmetrical, in that movement is possible in either direction; however, that is not how it would work. The first clue to that is that the power it contains is operated by order, not by affirmative resolution--not by a Minister coming to the House and asking whether we agree to changes, but by ministerial order.
That leads us back to one of the main forces that, in effect, gutted the legislation after the publication of the White Paper some time ago. That is the force toward secrecy prevalent in the Whitehall bureaucracy. I do not criticise individuals who work in Whitehall, because I believe that many talented, committed and public-spirited individuals work there, but I realise that the prevailing culture is such that it will lead clause 6 to become a one-way ratchet. I do not expect it to be used to extend freedom of information--quite the reverse. Let me give the House a brief example of such pressure.
We believe that it is altogether inappropriate to insert such a provision into a Freedom of Information Act. There is no such provision in any other Freedom of Information Act of which we are aware. We recommend that clause 36 is removed from the Bill.
The House of Lords Select Committee spoke in similar terms. It said:
We do not understand why, in a Bill with wide exemptions based on the class of information or the harm which its disclosure might cause, there needs to be a reserve power for a Minister to create a new exemption to deal with an unwelcome request for information, or why the new exemption should have retrospective effect to justify a refusal. In our opinion clause 36 should be deleted completely. If, despite this recommendation, the Government continues to believe that such a power is necessary, then it should be exercised in a specific situation only if the Information Commissioner agrees. At the very least the power should not be made retrospective.
The Government have ignored those recommendations and, in so doing, have sought to explain that the provision is necessary to give them what they describe as the flexibility to deal with particular circumstances and problems that may come to light.
there may be some areas of information that have not yet been considered, but would legitimately need protection. The Government should also ensure that they are able to protect, in the future as well as now, all information that it would not be in the public interest to disclose.
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One cannot accuse the Government of being dishonest. In rejecting an amendment that was designed to restrict the scope of the powers, he said that
New clause 5 would introduce flexibility in another sense. One can proceed in two directions. One can remove the offending clause, which is the preferable solution as offered by an amendment. If the Government are not minded to do that, they should at least accept new clause 5, which simply provides the flexibility to remove restrictions. If flexibility is demanded, let everyone sign up to it.
it would limit unacceptably the operation of clause 43. The Government would not have sufficient flexibility to respond to changes in circumstances.--[Official Report, Standing Committee B, 1 February 2000; c. 386.]
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