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Mr. Dominic Grieve (Beaconsfield): I did not intend to speak in the debate, but it has become riveting. What provoked me to do so--I do not mean that pejoratively--was the intervention of the hon. Member for Hemel Hempstead (Mr. McWalter), when he said that this was a provisional measure.
That glorifies the nature of Government and ministerial knowledge. It will never be possible for Ministers to know what is going on in the 341 authorities listed, either now or until doomsday. That is one of the reasons why I
believe, putting myself for a moment in the shoes of government, there is such a tremendous desire to retain the capacity for secrecy.
We must accept that the nature of government in western society--not only in this country--has been built on the secrets of government. That goes back over generations and centuries. The Government have had the courage to say in one breath that they want to do away with that secrecy, but in the next, they cannot quite bring themselves to do it. I hope that the Minister will have the courage to reconsider the implications. I am convinced that once the provisions are in place, they will be invoked. Apart from anything else, when they are invoked there will be no mechanism to challenge them. They can be invoked at will. If we are conducting a sea change in the way we conduct our affairs, we are doing so in an odd way by pursuing this route.
It has been said that there will be certain categories that will always need to be exempt. I agree with that, and I do not suppose that there is anyone in this place who would disagree. However, if the view is taken that the Government do not know what is going on, so they must retain a secrecy clause in case something crops up that in their provisional assessment require them to impose secrecy, we shall never get anywhere. I hope that the Minister will reconsider. We are dealing with a serious flaw in the Bill.
Mr. Shepherd:
I shall take up the spirited and encouraging speech of my hon. Friend the Member for Beaconsfield (Mr. Grieve). However, in view of your strictures, Mr. Deputy Speaker, I shall speak particularly to amendment No. 35, the purpose of which is essentially to delete clause 43. I give a cheer for "delete" because I think that it is one of the finest words in the legislative process. I commend those who have put their names to the amendment and I follow in their slipstream.
I want the House of Lords to read clause 43. I want the whole of Britain to be aware of what it provides. I also want the Labour party to read and inwardly digest what it says. The clause is a monument to imperial self- righteousness. We have not thought about how we can contain information in all its manifestations. We have not yet encountered the spheres in which the ingenuity and imagination of the British public may make inquiries. It is a dreadfully uncertain circumstance to be in, when somebody has the audacity to ask for a piece of information for which we have not made provision in the Bill.
We must take unto ourselves the ability to make an order. It is like Henry VIII, who had a clause that enabled him to say, "Whatever I say is law." The Government
take clause 43--remember the House of Lords, Britain outside the House and the Labour party--that provides that the Minister may make an order. Furthermore, in case the wretch who has asked for a piece of information asked for it yesterday, it can be stated in the order that it pre-dates whatever is the date of the application for the information. That is clause 43 in all its magnificence.
We have joshed about the vigour and imagination of the Americans. I admire them for many things, but they have an obsession with psychology and psychologists. They have developed an expression that is deeply distasteful but that has moved into British public forms of expression: "This is anally retentive." Let us be clear, the entire Bill is anally retentive. If anyone wants an instance of that, it is in clause 43. The splendid amendment No. 35 that says "delete" should commend itself to the House, the House of Lords, the wider public and the Labour party. I cannot believe that we think so little of ourselves and our constituents that such a remarkable power should even have appeared in a Bill in a democratic country.
Mr. Mike O'Brien:
I have seldom heard such great fear expressed about what seem to be fairly benign and sensible clauses. I shall give some examples, as I did in Committee. Let us take the Stephen Lawrence inquiry. We needed to create it, and if it had been a public authority, it would have been subject to the provisions of freedom of information if the Bill had been in place. We need provisions to enable public authorities to be created, to alter in terms some of their functions and for the Bill to apply. When they cease to exist, or parts of them, we need to be able to remove those public authorities from the Bill's provisions. If we do not have these provisions, we shall be in some difficulty.
I shall give another example that I gave in Committee. The BBC will be a public authority subject to the Bill's provisions. The BBC is particularly relevant here because its journalists will be able to claim an exemption from the provisions of freedom of information in respect of material held for the purposes of journalism, art or literature.
What if a court decision were to conclude that for particular purposes of definition areas that we might feel should remain the confidential prerogative of the journalists should be subject to freedom of information, and the journalists had to disclose their sources? I suspect that the BBC journalists would not be too happy about it and would want the Government to be able to act to deal with the situation. I suspect also that they would be mighty displeased if fears that the Government might misuse such powers had prevented the powers being in the Bill in the first place. That is my concern.
Mr. Simon Hughes:
Will the Minister give way?
Mr. Mackinlay:
Will my hon. Friend give way?
Mr. O'Brien:
I shall give way when I have gone through some of the arguments. I recall that I promised in an earlier debate to give way to my hon. Friend, and I eventually did so. I shall do so again in due course. I shall run through the arguments so that we can properly debate the issue.
The effect of amendments Nos. 33 and 34 would be to deny the Secretary of State the power to make an order to limit information of a specified description in the entry in
schedule 1 relating to any public authority and the power to amend any such limitation. I understand some concerns. Some right hon. and hon. Members suggested in Committee that they were concerned that in future perhaps a less responsible Government, without our commitment to freedom of information, might abuse the order-making powers that are proposed in clause 6. The thrust of that concern was that large tracts of information might be removed at a stroke from the Bill by order, amending the entry in relation to a Government Department, for example, in part 1 of the schedule, or to any other entry or entries. The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) had a good time listing the possible changes. Some bodies may, in all innocence, be created, change, move on or be renamed. We should ensure that the Bill grants us the ability to do something about that. I understand hon. Members' anxieties.
Mr. David Heath:
Will the Minister give way?
Mr. O'Brien:
If the hon. Gentleman will bear with me, I shall first set out my argument and then I shall happily give way to him and deal with his points.
I understand the anxieties but the fears on which some of them are based do not seem real. Amendments Nos. 33 and 34 would remove the power to limit or vary a limit in an entry in schedule 1. However, amendments Nos. 33 and 34 would go further than tackling hon. Members' anxieties. They would result in an all or nothing situation, with no scope for simple housekeeping changes to the small number of bodies listed in schedule 1 that are currently within the Bill's remit only because of the information that they hold. The amendments would also prevent future changes to existing entries in the schedule even when they were justified by a change in the circumstances of the public authority.
I shall give another example of the power's ability to vary or limit the description of information caught by the Bill. The Bank of England might decide to expand its financial activities to include insurance. The bank is already included in schedule 1 because of some of its functions. A decision would need to be made about whether to include the new business. Without the provisions, we could not make such a decision.
The hon. Member for Somerton and Frome (Mr. Heath) said that orders under clause 6 to remove information from the scope of the Bill were retrospective. That is not the case. The order-making power should not be confused with that under clause 43, which I shall consider shortly.
The right hon. Member for Haltemprice and Howden (Mr. Davis) claimed that clause 6 provided for orders but not affirmative orders. Amendment No. 77 tackles that. I therefore hope that I have satisfied the right hon. Gentleman at least on that point.
The hon. Member for Somerton and Frome also suggested that the Government could retrospectively allow a public authority that wanted to keep a secret to do that. That is possible, but only by an affirmative order after consulting the commissioner, whose view will be published. An order to create an exemption can be made only when specified prejudice applies or when the public interest requires an exemption to be made. An order
cannot therefore be made on the quiet. The clause does not provide for a ministerial power but for affirmative order procedure. Members of Parliament will be able to maintain a clear check on the Executive.
We have tackled many anxieties about clause 6. Many of those anxieties are unrealistic. We believe that the restrictions for which amendments Nos. 33 and 34 would provide are too severe. The amendments go too far and are therefore unacceptable. The lack of a power to amend an entry by order to reflect changes in the functions of the authorities that schedule 1 lists would mean that the entries in that schedule would be fixed for all time. That would lead to inflexibility and undermine the basis of the Bill.
We have listened to the views expressed in Committee, especially by the hon. Member for Somerton and Frome and we have tabled amendments Nos. 77 and 81, which deal with parliamentary procedures for orders under clause 6. We shall have an opportunity to debate them later. We hope that they will allay some anxieties.
I shall deal with amendments Nos. 63 and 35 and then I shall take interventions. Amendment No. 63 was inspired by an amendment that the hon. Member for Somerton and Frome tabled in Committee. The Government agreed to consider the wording of that amendment and gave an undertaking to table an amendment on Report.
Clause 43(6) required the Secretary of State to consult the commissioner before making an order under clause 43 to create a new exemption. Amendment No. 63 would require the Secretary of State to publish any written representations to him by the Information Commissioner about the consultation before laying an order before Parliament unless the representations contained exempt information or information that would be exempt if the order were made. The Government accept that requiring the publication of the commissioner's representations would increase openness. The hon. Member for Somerton and Frome asked for such a provision and the Government have listened and acted.
However, there may be circumstances in which such publication would result in the disclosure of exempt information or information that would be exempt if the order were made. We believe that it is necessary to provide protection against such an eventuality. Amendment No. 63 would therefore achieve that.
Amendment No. 35 would delete clause 43. The clause enables the Secretary of State to create additional exemptions by order. The clause includes two distinct order-making powers, which relate to two distinct circumstances. First, the Secretary of State can make an order about specific information, but only if the public interest in creating a new exemption outweighs the public interest in its disclosure. Achieving that balance shifts the argument and tackles the anxieties. We must consider the public interest when creating a new exemption.
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