| Previous Section | Index | Home Page |
Mr. Straw: I shall happily give way when I have made my case. [Interruption.]
NCIS gathers intelligence, but at the point when an investigation could take place, the matter is passed over to, for example, the national crime squad, which is composed of seconded police officers and operates in a similar way to a normal police force.
Subsection (2)(f) of the clause applies to clause 39, which relates to information provided in confidence. My hon. Friend the Member for Cannock Chase referred to
the Food Standards Agency. There is a difference between information given in confidence under a statutory requirement to provide it, for example, to the FSA--where people are required to give the information in any event and it is for the agency to determine whether to make it public or to maintain confidence--and information that is supplied according to the common law duty of confidence. It is to the latter that subsection (2) refers. We cannot have a situation in which people provide information in confidence--with the common law obligation going both ways--but that confidence is inadvertently broken as a result of the operation of clause 13.
The other area, to which my hon. Friend did not refer, is the most worrying of all in terms of the overall effect of amendment No. 1. It relates to information that is protected by the Data Protection Act 1988. The Act protects private information while the Freedom of Information Bill is there to bring information out into the public. There is a natural and profound tension between the two and they are, in a sense, different sides of the same coin. If information is protected under the Data Protection Act, we cannot possibly get into the situation where there is, none the less, a discretion in the public interest to break what is a fundamental obligation not to disclose that information. That would not only be wrong and against the Data Protection Act, but against European Community law, a point that will appeal considerably to the hon. Member for Aldridge-Brownhills (Mr. Shepherd). In addition--this point will appeal to the whole House--disclosure of such information would break the European convention on human rights. I am happy to say that that convention has the genuine approbation of the whole House.
Mr. Dalyell:
On the difficult issue of data protection and in relation to what my right hon. Friend has just said in the most careful language, what is the position in Scotland where, at the Mound, they are sailing off in a rather different direction? Are we to have two approaches in these islands to the same difficult matters?
Mr. Straw:
I was trying to find my copy of the Scottish White Paper. However, as far as devolved matters are concerned, what Scotland does is a matter for Scotland. Let me make it clear that devolution may mean similarity but, fundamentally, it means difference. If Scotland decides to do something different, I celebrate that fact--I do not regret it--even though that fact can sometimes be used in an argumentative to persuade me to do something similar. Although, as I read it, the Scottish Executive, to some extent, started from a different port and went in a slightly different direction, it is catching a similar wind to us. We may end up at roughly a similar destination.
I am grateful to my hon. Friend the Member for Linlithgow (Mr. Dalyell) for neatly allowing me to return to the point that was raised by my hon. Friend the Member for Cannock Chase, and that he touched on rather delphically. It relates to the issue of Executive override. As I said earlier, on Second Reading, a number of my hon. Friends suggested that the provisions in clause 13, as it then stood, were not satisfactory because too much discretion was in the hands of Ministers. In turn, my hon. Friends drew attention to the fact that there was no such discretionary regime proposed in the Scottish Executive's White Paper, which had helpfully come out just a few
days before. Instead, it had provisions for an Executive override, so that there would be an equivalent to clause 1 on the duty to provide information and then the equivalent to part II in which there are exemptions and exclusions and a duty to provide information if ordered to do so. There was also a discretionary provision in which there was a balancing test between the public interest in favour of disclosure and the public interest against. The commissioner would be able to order that. However, Scotland took the approach that there would ultimately be a right of Executive override in 15 areas where, notwithstanding a decision by the commissioner or his equivalent to order disclosure, the Scottish Executive meeting collectively could decide to issue a certificate overriding that order because they felt that it was in the public interest to do so.
Mr. White:
Will my right hon. Friend give way?
Mr. Straw:
May I finish my point? I will then happily give way. We have broadly--although not in every particular, for good reasons--adopted that scheme under new clause 6 and the other amendments. We have moved away from discretionary disclosure: we have placed a duty on the Minister to release the information if he or she judges that public interest is in favour of disclosure, not against it; and we have given the commissioner the power to order disclosure.
The issue remains of what happens if, notwithstanding the commissioner's order, the public authority continues to believe, for sound reasons, that the information should not be disclosed. Most regimes that we have surveyed have some sort of Executive override of one sort or another, and we propose to have one. In the Bill, new clause 6 and the other Government amendments, we propose that the decision in respect of any public authority, other than a local government authority, should be made by a Minister of the Crown.
That category of public authority would include central Government Departments, national health service trusts and police authorities, which are partly local authority and partly not. Any Executive override decision in respect of such bodies would have to be made by a Minister of the Crown; but, in respect of a local authority, it would be made by designated local councils or council committees. That designation would be made by order because the precise form of local government organisation is in a state of flux, and arrangements have to be provided that take that into account.
However, I have received representations to the effect that decisions in respect of the Executive override both by central Government and, separately, in respect of local government, would not be made at a high enough level. Where central Government is concerned, I accept the burden of the argument that has been put to me. Therefore, I propose--it will have to be done in the other place, but it will be done--that those parts of the amendments that speak of Ministers of the Crown will be replaced by a definition of a Cabinet Minister; the House will readily recall that such a definition is already, for quite separate reasons, set out in clause 23(3) of the
published Bill. In future, such decisions will be made by a Cabinet Minister or the Attorney-General, rather than by any Minister of the Crown.
The second issue relates to collective responsibility. Ministers make two sorts of decisions. The vast range of decisions are made collectively and Ministers are collectively responsible for them in any event. However, some decisions are, by legal expectation and practice, made not collectively but in a quasi-judicial role; it happens that most of those decisions fall to be made individually by the Home Secretary of the day, but I make no claim as to the quality of the decision making. Each year, the Home Secretary has to make many decisions on, for example, setting tariffs for mandatory life sentence prisoners and their final release date, extradition matters, and other matters on which I could speak at length.
It is neither possible nor necessary to write into the Bill that the decisions made by a Cabinet Minister must be made only after consultation and agreement with all of his or her Cabinet colleagues--not least because some of the decisions are quasi-judicial. In practice, it would be an extremely unwise Cabinet Minister who chose to issue an exemption certificate amounting to a veto of a decision made by the commissioner to order disclosure without consulting his or her Cabinet colleagues. That might lead to that Cabinet Minister's speedy demise and the receipt of his or her P45 by return of post.
To reinforce those arrangements, I propose that there should be written into the ministerial code--which is a published document available in the Library of the House and, I believe, on the internet--guidance on how decisions relating to Executive exemption certificates should be made and the way in which other colleagues should be consulted, other than on quasi-judicial decisions. I hope that those two changes, one that will be written into the Bill and one that will be made public, are to the approbation of the House.
Before I take interventions, I shall detain the House briefly on the question whether local authorities at any level should have a right to issue exemption certificates.
Mr. Maclennan:
I am extremely grateful to the Home Secretary for giving way before he leaves the subject of central Government. Why is he straining at a camel and sticking at a gnat? He speaks about Executive override as though there was no difference between the Scottish proposals and his proposals. There is a great difference, and there is a great deal of overseas evidence as to what that difference is.
10.45 pm
| Next Section
| Index | Home Page |