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Mr. Cohen: I thank the hon. Member for Surrey Heath (Mr. Hawkins) and the Minister for their kind words. By way of a return compliment, they are both very able too, but that does not preclude a good oral punch-up when we disagree. I also thank my hon. Friend for his considered response and I appreciate what he said. I shall read his remarks closely. He is right that there is a balance to be struck between the right to know and privacy. I support both aspects, but a private-public distinction needs to be made. There should be no excuse in respect of personal data for a public authority not to disclose, nor should there be loopholes at the interface between the Data Protection Act 1998 and the Bill which get public authorities out of disclosure.
I appreciate my hon. Friend's saying that his mind is not closed to some of my amendments and that he is prepared to meet to discuss them. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 47, in page 7, line 35, leave out subsections (3) to (5) and insert--
Dr. Tony Wright (Cannock Chase):
I beg to move amendment No. 7, in page 8, line 8, leave out subsection (6).
Madam Speaker:
With this it will be convenient to discuss the following: Government amendment No. 48.
Amendment No. 8, in clause 33, page 18, line 27, leave out "it relates to" and insert--
Amendment No. 9, in page 18, line 29, after "(b)", insert--
Amendment No. 10, in page 18, line 32, at end insert--
Amendment No. 11, in page 18, line 32, at end insert--
Amendment No. 91, in page 18, line 32, at end insert--
Dr. Wright:
We now come to the meat of the Bill.
Mr. Hawkins:
It was pretty meaty last night.
Dr. Wright:
I should put it on the record that the look delivered to me by my right hon. Friend the Home Secretary shows that he thinks that we dealt with the meat of the Bill last night, but I am afraid that today brings further meat.
On any test, clauses 33 and 34, with which the amendments begin to deal, are at the centre of the Bill. The more I read them, and I cannot count the times that I have been through them, the more astonished I become that the Government could have presented such an exemption in such a form. May I remind myself and the House of what they do? They begin in clause 33 with a huge and blanket class exemption, including one for
Factual information underlying policy decisions would simply be exempt. I shall say more about that shortly. The commissioner could attempt to require the disclosure of any information to which clause 33 applies, including factual information, but Ministers could then veto any such disclosure. We began to discuss that last night.
I hope eventually to interest the House in amendment No. 10, which would remove factual information from the exemption altogether. I consider it the key element. It would bring the Bill into line with normal practice elsewhere--although we, the cross-party signatories, offer a number of alternative ways of approaching the same issue.
Let me briefly remind the House of the issues that are at stake. Clause 33(1) provides the blanket exemption. It excludes anything relating to
The Government amendments would mean that the commissioner could order the disclosure of information relating to policy formulation in the public interest; but any order of that kind, including one relating simply to factual information, could be vetoed by Ministers.
It should be borne in mind that the provisions in clause 33(1) do not apply simply to high-level civil service advice and sensitive policy advice; they apply across the board. Nothing that crosses the desks of Ministers or their advisers in connection with policy would have to be disclosed, even after decisions had been made, announced and implemented. Factual information on which decisions are based and scientific advice, for instance, would be edited out. Submissions from lobbyists, enabling us to see what representations had been made to Government, would similarly be covered.
Clause 34 can be brought to bear on anything that is not already caught by clause 33. It applies both to Government Departments and to all other authorities. In so doing, it provides substantial additional grounds for withholding information, all of which, as I have said, will be established only by the reasonable opinion of a qualified person.
Only clause 13 provides any balance. If amended in the way proposed by the Government, it would require an authority to disclose information relating to policy formulation if it appeared to the authority that in all the circumstances of the case
The point of clause 33(1) is to assert the belief that any insight into the working of Government--into the factual background against which policy decisions are made--is likely to be damaging. It takes no account of the fact that such limited disclosure might lead to more informed debate and to better understanding of some of the complex issues involved, and that it might reassure the public that issues are being thoroughly examined and settled after proper consideration.
The provision ignores the fact that more scrutiny may increase the rigour of the analysis. It even ignores the fact that when we have moved in that direction--as with publication of the minutes of meetings between the Chancellor and the Governor of the Bank of England--it has, on the whole, proved to be beneficial. When we have gone even further, by publishing the minutes of meetings of the Monetary Policy Committee, the sky has not fallen in. Such action has even been thought to be an act of strengthening generally helpful to policy making.
The Government's approach in that particular sphere of freedom of information is so perplexing largely because it is quite distinctly at odds with what they are saying about the approach that they now want to apply to policy making generally. Ministers have only to read the modernising government White Paper and all its associated documents to see that the Government's overall emphasis is on more access to the information on which policy is made, so that we shall have better policy making.
A rather interesting document was produced recently by the Cabinet Office, entitled "Wiring it Up: Whitehall's management of cross-cutting policies and services." The document is all about--I am sorry to lapse into the jargon--cross-cuttingness, which has now replaced joined-upness as the way of talking about these issues. Conclusion 28 could not be clearer:
As constructed, the exemption makes no sense either internationally or in policy making. It does not even try to distinguish between views, comments or opinions that have to be properly protected and the background--the factual basis--that has to be exposed to scrutiny and debate. The Government have taken that position--which is astonishing--but the weight of all the evidence, historical and comparative, is against it.
I shall not go through the whole long list, but I should like to remind the House of how we reached that position. In their White Paper, the Government promised:
The Home Secretary, in talking about these matters to the Select Committee on Public Administration, said that the
'(3) Where the duty to confirm or deny does not arise but it appears to the public authority that, in all the circumstances of the case, the public interest in disclosing the fact that the authority does or does not hold information of the description specified in the request outweighs the public interest in maintaining the exemption in question, the authority shall inform the applicant whether it holds the information.
(4) Where--
(a) the public authority holds information of the description specified in the request and has informed, or intends to inform, the applicant that it does so, and
(b) it appears to the authority that, in all the circumstances of the case, the public interest in disclosing the information outweighs the public interest in maintaining the exemption in question,
the public authority shall communicate the information to the applicant.'.--[Mr. Mike Hall.]
'its disclosure under this Act would, or would be likely to, prejudice'.
'the candour and frankness of'.
'(1A) Information is not exempt by virtue of subsection (1) or section 34 insofar as it consists of factual information.'.
'(1A) Information is not exempt by virtue of subsection (1) or section 34 insofar as it consists of the analysis of factual information or expert advice on a scientific, technical, medical, financial, statistical or other matter, unless its disclosure would, or would be likely to, substantially prejudice the formulation or development of government policy.'.
'(1A) Information is not exempt by virtue of subsection (1) insofar as it consists of factual information or the analysis of such information.
(1B) Information is not exempt by virtue of subsection (1) insofar as it consists of a description of the options which are or have been under consideration except to the extent that--
(a) to reveal those options at the time of complying with the request for information would or would be likely to prejudice the formulation or development of government policy; or
(b) it consists of the advice, opinion or recommendation of any person in relation to any such option.'.
the formulation or development of government policy . . .
That is the first protection. They move on to a prejudice test exemption, which is the second category of protection. In providing that, they include in clause 34 a provision on
the reasonable opinion of a qualified person . . .
which produces a third layer of protection. In case it is still unclear that they are protecting absolutely everything that could conceivably be protected, they include a catch-all category called
the effective conduct of public affairs.
Four barricades have been erected against disclosure on policy formulation. That is a gigantic set of exemptions; no harm test would apply.
4.30 pm
the formulation or development of government policy . . . Ministerial communications . . . the provision of advice by any of the Law Officers or any request for the provision of such advice, or . . . the operation of any Ministerial private office.
Clause 33(2) is particularly vicious, in that it permits Departments to refuse even to confirm or deny whether requested information exists.
the public interest in disclosing the information outweighs the public interest in maintaining the exemption in question.
However, there is no harm test, and therefore no description of the public interest that the measure is designed to protect. The absence of a purpose clause, which we discussed yesterday, is particularly important in this context. Such a clause is not available to frame a view on where the public interest might lie in relation to disclosure.
The Government should: make available to Select Committees in both Houses, at an early stage in the policy process, information about the factual and analytical basis of cross-cutting policies, including joint appraisals.
The Government themselves say that provision of that type of factual information contributes to more effective policy making, but in their freedom of information provisions, that whole category of information is to be exempt. I am not inventing contradiction here; there is
contradiction here. On this issue, the modernising government initiative is the right one, and the freedom of information initiative is the wrong one.
we are prepared to expose government information at all levels to FOI legislation,
subject to a "test of simple harm".
issue of factual or background information . . . is important and . . . I think on the whole ought to be disclosed.
Perhaps I could say in the margin that I do not at all think, and never have believed, that the Home Secretary represents the real obstruction in the matter. I am not sure how to put this--it may seem a preposterous suggestion--but I think that there are forces in the land that are even mightier than the Home Secretary.
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