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The Secretary of State for the Home Department (Mr. Jack Straw): Fact or opinion?

Dr. Wright: Probably both. I will not identify those forces, but we have to try to find an explanation for the current drafting of clauses 33 and 34. I do not believe that my right hon. Friend the Home Secretary is the origin of them, but he has to defend them. He has promised, as in the quotation that I have just given, that he will try to open up that area. So far that has not proved possible.

The open government code that we currently operate under is stronger than what is now being proposed. Under the code, information relating to policy can be withheld only if disclosure would

The code also requires that

    facts and the analysis of facts

that Departments rely on in reaching decisions must be published.

The important Croham directive back in 1977 provided that what it called "factual and analytical material" should normally be published as soon as decisions had been taken. The assumption was that, from that point, the civil service and the policy-making machine would proceed on that basis. If they made that distinction, such information would be available.

There is a further point that was mentioned on Second Reading, but it is worth mentioning again. In evidence to the House of Lords Select Committee, the former Cabinet Secretary Lord Butler said:

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    to Ministers in a way that would enable us easily to separate the background which was publishable from, as it were, the subjective advice which was confidential. It would take a bit of training and changing practice to do that, but I think that people could very readily adapt to that.

We cannot get a more authoritative view on the practicability of the matter than that of a Cabinet Secretary who thought that Whitehall was about to be asked to do that because of what we had said.

Mr. John Greenway (Ryedale): In his role as the Chairman of the important Committee that deals with these matters, has the hon. Gentleman come across any evidence of difficulty with the existing code of practice? The Bill rows back significantly from that code of practice. I wondered whether the code of practice had created difficulties that might excuse those who have pressed for the Bill.

Dr. Wright: All who have taken an interest in the issue over the years, including those who have had to use the code--I refer in particular to the parliamentary ombudsman, who has had to oversee it--came to the conclusion that it was time to move from code to statute. They have decided that in this area we should have rights rather than simply an informal code.

There are examples from Scotland, Ireland and New Zealand. Other countries have proceeded in a way different from our Government's.

Clause 13(6) should be deleted. It requires authorities, when considering making a discretionary disclosure of information relating to what it calls the development and formulation of Government policy, to

4.45 pm

Government amendment No. 48 would retain clause 13(6) but strengthen it in a minimalist direction. It would delete the words

and replace them with the words

    in particular have regard to the public interest in.

Under that approach, factual information relating to policy formulation remains exempt. A legal draftsman might consider that there had been movement, but people interested in ensuring access to factual information will believe that the situation remains essentially the same. Clause 13(6) therefore has to go, which is what amendment No. 7 would accomplish.

Amendments Nos. 8 to 11--and, in a different manner, amendment No. 91--offer a variety of ways of ensuring that the Bill contains the provisions that we consider necessary. Amendment No. 8 would introduce a harm test into each of the four class exemptions set out in clause 33(1). Amendment No. 9 would qualify the interest that is prejudiced by ensuring that clause 33(1)(b) talks about the "candour and frankness" of ministerial communications, as opposed to the simple "Ministerial communications" now in the clause.

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I draw the House's attention to amendment No. 10 in particular. It is the simplest and crispest of all the amendments in this group:

The amendment would remove factual information from the scope of the exemptions relating to the formulation of policy.

No one pretends for a second that there are aspects of government that do not have to be protected. In such areas, confidence has to reign, deliberation has to be private, opinions and views must be exchanged and advice given. There has never been a suggestion that hon. Members do not understand that good government could not proceed otherwise.

However, we insist that some necessary distinctions should be made, and I can do no better than to quote Lord Nolan. Reflecting on his experiences as chairman of the Nolan committee a few years ago, he said:

He went on to say:

    There have to be limits on openness, of course, without which the process of discussion within government would become impossible. In this context, one can reverse C.P. Scott's famous dictum and say "facts are free but comment is sacred".

That is the essential point--facts are free. The public right of access is to the factual basis on which policy is made. Amendment No. 7 begins the process of ensuring that we get that. Amendment No. 10--on which I hope we will get a chance to vote later--will enable us to secure it directly.

When this Bill was promised, there was never any indication, suggestion or belief that it would not differentiate policy background and policy advice, but that is what we are being presented with in clauses 33 and 34. In that sense, the amendments are only inserting provisions that we thought the Bill would contain in the first place.

Mr. Greenway: I will not detain the House. As the Home Secretary will have gathered and will have been advised by his hon. Friends, I had a great deal to say on these issues in Committee. I need only refer hon. Members and those outside this place to the Hansard reports of the fifth and ninth sittings of the Standing Committee.

Even though it was intimated in Committee that the Government would have some regard to what was said, nothing has changed. Not only is the Bill as it was, but nothing on the amendment paper would appear to alter it. I find that disappointing for two reasons. First, it will be obvious from the debate in Committee, from what the hon. Member for Cannock Chase (Dr. Wright) said and from the cross-party consensus in support of his group of amendments, that the House is dissatisfied with the Bill as drafted. The hon. Gentleman is right in saying that this matter is the meat of the Bill. While we may have differences about the regulatory and enforcement arrangements and about who should have the final say on whether information is released, the sort of information that is released is at the heart of the matter. If we cannot agree in this place that facts and information that support

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Government policy decisions should routinely be available, I ask the Home Secretary, what is the point of having the Bill?

I intervened as I did on the hon. Member for Cannock Chase not necessarily to restart the argument that the code of practice is better than the statutory basis that is the Bill and the fact that a right to information is being enshrined in statute, because I think that we have all accepted that that is probably the right way to proceed. I intervened because the code of practice provides for the release of information, facts and figures that support and underpin Government policy decisions. The hon. Gentleman alluded to the fact that it was not the Home Secretary who was the barrier to the matter being resolved, but others whose identity is more obscure.

I intervened because it seemed to me that something in the working of the code, which requires the release of those facts and figures, must have persuaded officials in various Departments that it would be a good idea to tighten things up and not to include the provision in the Bill, which underpins the code. I am not aware that there has been a difficulty, but I am not and have never been a Minister, although I hope that one day soon I shall be. However, that is for another day.

The second reason why I am gravely disappointed that the Government have not produced a change, having said that there is clearly a consensus in this place that the Bill is defective, is because it must be abundantly clear to Ministers that the other place will come to the self-same judgment. Notwithstanding the Prime Minister's attempts to ensure that he has a greater chance to overturn rebellion in the other place, I have a strong suspicion that this part of the Bill will be amended there and that we will have to debate this matter all over again, as we did with the Representation of the People Bill a few weeks ago. Then, we advanced our arguments on one issue after another and the consensus view clearly supported them, but we had to rely on the unelected second Chamber to ensure that some democracy in this Parliament was evident to people outside. That is a matter of profound regret.

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