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8.15 pm
Mr. White: Will my hon. Friend give way?
Mr. O'Brien: I shall give way in due course.
The nature of information that will fall within the scope of the provision will be wide ranging and may legitimately require protection. The Government must ensure that they can protect that information in future as well as now.
Let us consider the sort of information that we are discussing. The commissioner will know the information that will be subject to an order under clause 43. Her representations may include references to the information when she determines her view. It is right for that information to be outlined. The power to confer additional exemptions can be exercised only if the Information Commissioner is first consulted. When amendment No. 63 is accepted, the Secretary of State will be required to publish any written representation that the Information Commissioner makes to him.
Mr. Simon Hughes:
The Government have considered their powers relative to those of the commissioner in other clauses. Is not there an overwhelming case that the commissioner should have the right not only to be consulted, but to have the final say? If the commissioner had the final say, everybody would be more reassured. However, the Government, backed by their party in Parliament, have the final say. The commissioner is simply an adviser.
Mr. O'Brien:
We either have some respect for the House or we do not. The hon. Gentleman is trying to shift power away from those, like him and me, who are democratically elected to do our job in this place to those who are not democratically elected. There is a danger of enhancing an unfortunate democratic deficit. Enough already exists in this country. I am reluctant to accompany the hon. Gentleman down that road.
Mr. Mackinlay:
I want to raise two police matters that relate to schedule 1. The Minister referred to the Stephen Lawrence case. I invite him to pause and consider that we passed the Greater London Authority Act 1999, which will remove from hon. Members the opportunity to probe what are deemed to be police authority matters. The Stephen Lawrence case is especially relevant in that respect. In the early stages, when hon. Members were arguing that something was wrong, they were able to table questions in the House by virtue of the fact that the Home Secretary is the police authority. If the incident had happened in Essex or Kent, they would not have been able to do that. We are losing that power under the GLA Act, and this Bill lists certain police authorities.
If the Stephen Lawrence case had occurred after the GLA Act and this Bill had come into force, we probably would not have heard of Stephen Lawrence, because we would not have been able to get some of those questions past the stewardship of the Table Office.
That is my first point. My second point is this.
Mr. Deputy Speaker:
Order. This is an extremely long intervention. The hon. Gentleman must be very brief on his second point.
Mr. Mackinlay:
During both the Conservative Administration and this Labour Administration, I have expressed concern about the privatisation of some police forces. Some important police authorities, such as the Northern Ireland airport police, cannot be included in the schedule--it is neither in nor out. If it is good for police authorities to be included in the Bill, why has the Minister excluded some important police authorities that do not fall within the ambit of a public body?
Mr. Mike O'Brien:
On my hon. Friend's second point, we need the power to extend the provision if we consider that to be appropriate. The Bill contains a power to extend and include provisions. I refer him to clause 74.
Dr. Tony Wright:
Will my hon. Friend give way?
Mr. O'Brien:
No. I am just about to come to my hon. Friend's point.
Mr. O'Brien:
With respect, I have not answered the point made by my hon. Friend the Member for Thurrock (Mr. Mackinlay), so perhaps my hon. Friend will let me answer it before I give way to him. I was about to deal with the issues he raised on new clause 5. I shall be happy to give way if he wants to intervene later.
On the Lawrence inquiry, questions could be asked under the GLA Act. My hon. Friend the Member for Thurrock is wrong about hon. Members not being able to be ask questions about the Stephen Lawrence case. Our view is that the Bill would have substantially assisted the Lawrence family in dealing with that case.
New clause 5 will give the Secretary of State the power by order to remove or limit the application of any exemption in part II, or to remove or limit the exemption in respect of the duty to confirm or deny that that information is held. An order made under the new clause would require the affirmative resolution procedure.
I understand why my hon. Friend the Member for Cannock Chase (Dr. Wright) has felt it necessary to table this new clause, which could be seen as complementing the power under clause 43 of the Secretary of State by order to confer additional exemptions. However, I cannot support it for the simple reason that it is not necessary.
If a public authority wishes to release information to the general public or to any individual, nothing in the Bill prevents that. Clause 76 contains a specific provision that nothing in the Bill will prevent a public authority from disclosing information that it wishes to disclose. Nothing in the Bill requires secrecy. There may well be provisions in other legislation that prevent disclosure, but not in this Bill. I should point out to my hon. Friend the Member for Thurrock that clause 74 provides an order-making power by which those other provisions may be repealed or amended. We are committed to considering such statutory bars and to introducing orders as appropriate.
The Bill provides the right of access to information, and specifies some circumstances in which the right will not apply. It does not serve to keep anything secret.
Dr. Wright:
I do not want to cross swords on this point. My hon. Friend is confusing the issue of removing structural restrictions with a more general point.
My hon. Friend began to give us a treatise on the nature of democracy, and I am sure that we shall hear more of that later. Democracy has something to do with the wishes of the people. If people were offered a choice between the creation of additional exemptions by ministerial order and the creation of exemptions by ministerial order with the agreement of an independent information commissioner, which does my hon. Friend think the people would choose?
Mr. O'Brien:
The people of this country want to ensure that those who are directly accountable to them are able to do the job that they are elected to do. I am personally very uncomfortable with some of the arguments that have been voiced about the need to give unequivocal power to the Information Commissioner. It worries me that hon. Members are anxious to convince the electorate so as to get elected to the House in order to do something, but are then desperate to hand over the power to do things to unelected people.
I accept that we give judges a particular role. As a result of clause 13, judges will have a strengthened role. That provides the right checks and balances in relation to freedom of information, and enables both those who are unelected but have an official role and those who are elected to do their job.
The order-making power proposed in new clause 5 is unnecessary. I ask the House not to support the amendments, but to support the Government amendment, which deals with the concerns of the hon. Member for Somerton and Frome (Mr. Heath). We have listened to his concerns, and have responded to them in so far as we are reasonably able to do so. However, I cannot promise that some future Parliament will not abuse or misuse the legislation. We cannot bind future Parliaments: that is part of the price of our constitution and our democracy.
The Government believe that the safeguards in the Bill provide constraints, and we would not seek to abuse them. The provisions that we are including in clause 43 and clause 6 are relatively benign. They are housekeeping measures, and we should not get overly worried about them. We should ensure that we have good laws that work, and that can accommodate changing circumstances as a result of the creation of new public authorities, or when bodies cease to exist or change their internal functions.
Mr. David Heath:
The Minister ended by saying that he would not be able to prevent a future Government from misusing or abusing powers. I agree, but it does not seem entirely sensible to give a future Government the instruments that would enable them to misuse or abuse the very legislation that we seek to introduce.
We have had an extremely interesting debate. Most speakers have prefaced their remarks with the phrase "I did not intend to speak, but . . . ". It seems that they
were moved either by a sudden burst of enthusiasm for the subject under discussion, or by the realisation of exactly what the Minister proposed. It is also instructive to note that not one felt moved to support the Minister's view, and the powers that he chooses to take.
I agree that amendment No. 63 is a move in the right direction, and I am grateful to the Minister for listening to the arguments, but the amendment represents the most minimal move that he could make. I thank the Lord that I have secured some movement from the Government on the Bill, which has been improved slightly by our proposals in Committee and by what the Government have brought back today, but the minimum has been done to give a veneer of respectability to a power that would otherwise have no respectability. I do not accept for a moment that the Government have gone far enough.
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