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Mr. Straw: The right hon. Gentleman is slightly ungracious about what I said. With regard to the principle, the effect of what I am proposing will be what happens
in New Zealand. I accept that there will be a significant difference, which I believe is why my hon. Friend the Member for Cannock Chase was good enough to say that the Bill had been vastly improved.
There will be a significant difference in the occasions on which public authorities would routinely have rejected a recommendation from a commissioner under clause 13, which may have been many, and the number of occasions under the new proposed structure, including the changes that I announced this evening, where a Minister would have decided to consult his or her Cabinet colleagues and then publicly have issued an exemption certificate.
The briefing that I have had about the position in New Zealand is that an individual decision was taken on seven occasions. Since decisions have been taken collectively, that figure is down to one. I do not believe that there will be many occasions when a Cabinet Minister--with or without the backing of his colleagues--will have to explain to the House or publicly, as necessary, why he decided to require information to be held back which the commissioner said should be made available. The changes that I am suggesting will make a significant difference in practice to the behaviour of Ministers.
Dr. Wright:
Lest my approbation be misunderstood, let me say that I was registering the progress that had genuinely been made. I was not expressing contentment at the destination that we have now reached. Will my right hon. Friend explain the link in the chain of reasoning, to which he has not referred? Why does he think that he needs the override provision?
We celebrate the change to clause 13 and the power that the commissioner has been given. However, if a Minister does not like a decision made by the commissioner, he can still appeal to a tribunal, go to a court on a point of law, or have judicial review. Why, on top of all that, do the Government think that an override is required?
Mr. Straw:
That is a point of detail. The possibility of an Executive override means that a Minister will not be able to appeal against a decision by the commissioner. Such a provision would otherwise be otiose. I accept that if we removed the Executive override, we would need to provide for an appeals mechanism.
I apologise for using a nautical analogy again, but we are in uncharted waters. Overseas experience is helpful but only up to a point. We are dealing with different systems. As I said on Second Reading, Freedom of Information Bills are no panacea; they cannot replace good government. My hon. Friend the Member for Blyth Valley (Mr. Campbell), who visited Australia with the Select Committee to examine freedom of information, pointed out that, if a regime goes too far, people in government wrongly take evasive action to avoid a trail of accountability or to prevent the existence of records that can be disclosed.
My hon. Friend said that the Select Committee was told about the extensive use of Post-it notes and a system whereby documents that Ministers and officials wanted to remain confidential were put into a trolley, sprinkled with holy water, ordained as Cabinet documents, wheeled into the Cabinet room and thus excluded from disclosure.
We want a system that works properly, with the grain, and in the context of this country, where there is higher observation in practice of legal requirements than in other
countries. Circumstances could arise in which Ministers genuinely considered--we are talking about fine judgments--that the public interest overrode the commissioner's judgment about disclosure or non- disclosure.
Ministers would have to be on firm ground to do that. They would have to acknowledge that it was only a matter of time before the information that they sought to withhold came out. They would also have to judge whether, when that inevitably happened, it would be easier to explain the original decision.
I have undergone a practical on the subject. It related to the medical reports of the thorough examination by four senior medical practitioners of General Pinochet. As the House knows, I made an obligation of confidentiality to Senator Pinochet. Notwithstanding that, I was asked to release the records to the requesting states. I refused to do that because I believed that my obligations to General Pinochet overrode the unquestionable public interest in the disclosure of the documents. Even though it was a matter of considerable debate and advice, I believed that because I had made a solemn pledge of confidentiality, I could not override it in the public interest.
It would have been convenient for me to release the reports because their contents significantly added to the public understanding of the reasons for my decisions in the case. As the House knows, the divisional court held that I had made the right decision, but the Court of Appeal decided that the public interest in publication overrode my decisions to abide by the obligations that I had made.
To continue with the analogy--[Interruption.] At no stage in the array of legal advice that I received--
Mr. Shepherd:
What about data protection?
Mr. Straw:
The hon. Gentleman speaks from a sedentary position. I promise him that none of the legal advice that I received about General Pinochet's medical report referred to data protection.
I can give my hon. Friends two reassurances. First, although the degree varies, most FOI regimes, although not all, have some Executive override. Secondly, with the changes that are already before the House in the form of amendments and new clauses, and those that I have specified this evening--
Helen Jackson (Sheffield, Hillsborough)
rose--
Mr. Straw:
May I go on? This regime will not be used all that often, and only in extremis.
Dr. Clark:
As my right hon. Friend knows, I am not a great enthusiast for Executive overrides. He has heard me put that argument before. However, given the Government's strong feeling that there should be some form of Executive override--I welcome the concessions that have been made this evening--my right hon. Friend is making rather heavy weather of it. One of the raisons d'etre of this legislation is to put the code on a statutory basis. We felt that that was vital as the codification and advice was unsatisfactory. The Secretary of State is now proposing to move the Executive override up from a Minister to a Cabinet Minister and by code--not by law, but by the ministerial guidance--suggest that he consults his colleague. That is unsatisfactory.
We have the example of New Zealand. I know it is a smaller country and its Parliament is unicameral, but it has had some years' experience and it is based on the Westminster model. May I suggest to my right hon. Friend--
Mr. Deputy Speaker (Mr. Michael Lord):
Order. May I suggest to the right hon. Gentleman that this is a very long intervention?
Mr. Straw:
I am not making heavy weather of this issue, but, with great respect to my right hon. Friend, I think that he is. I have put on record what we are proposing to do by way of an amendment. I have also said that these decisions are a matter of collective responsibility, except if the Secretary of State or other Cabinet Minister has a quasi-judicial function, and that will be specified in the ministerial code.
We are different from New Zealand and other countries in that, unlike them, we do not have a written constitution.
Mr. Giles Radice (North Durham):
New Zealand does not have a written constitution.
Mr. Straw:
I bow to my right hon. Friend's superior wisdom, but I hope that I have dealt with the point.
Helen Jackson:
Does my right hon. Friend acknowledge the extreme defensiveness of public authorities when they have made a mistake? When they make a little mistake, they are a little defensive, but when something big goes wrong their defensiveness is significant. I am concerned about their defensiveness when a big mistake is made, such as at the disaster at the Hillsborough football ground. The commissioner may issue an order and be absolutely clear that information on that disaster should be made public, but the public body may naturally be so defensive that it appeals for a ministerial override to give it time. Does my right hon. Friend believe that his proposal will do what those of us who have been concerned with the Hillsborough tragedy would like it to do? We would like to feel that this Bill
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