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Mr. David Heath (Somerton and Frome): It is always an enormous privilege to follow the right hon. Member for Chesterfield (Mr. Benn). Indeed, it is a privilege to take part in the debate because it slightly restores one's confidence in the Chamber doing its job of testing and trying to improve legislation.
I have listened with care to what hon. Members have said, particularly the hon. Member for Cannock Chase (Dr. Wright). He advanced all the arguments on the amendments that stand in his name, to which I have added my own. My only regret is that I appear to have omitted to add my name to amendment No. 91. Had I noticed that earlier, I would have added it, because I agree with it, too.
The hon. Member for Ryedale (Mr. Greenway) said two things that gave me concern. He expressed a sense of defeatism that the measure had to go to the other end of the corridor before it could be put right and brought back. Last night, there was a conversion of almost Pauline proportions from the Home Secretary during his long speech. I still hope that he will listen to the debate and realise that there is a serious flaw. Amendment No. 10 is simple and concise, and he could easily concede to it.
It would immeasurably assist the Bill. Therefore, I still have a slight, perhaps desperate, hope that, even today, we will see a result on that important issue.
Mr. Greenway:
The hon. Gentleman tests my credulity. We spent some 18 sittings in Committee making similar comments day after day, but concessions came there none.
Mr. Heath:
The hon. Gentleman is right. I remember every one of those sittings, as he no doubt does. There was a tendency to feel that one was developing a rather flat patch on the front of one's forehead as one banged one's head against a solid wall. Nevertheless, we have had movement in the past two days. Let us celebrate that and look for more.
The hon. Gentleman sought evidence from the experience of operating the code to suggest the need for the amendment. I do not believe that there is any need for evidence.
Mr. Greenway:
The need was not for the amendment, but for what is in the Bill.
Mr. Heath:
Precisely. The hon. Gentleman sought evidence from the operation of the code to indicate the need for what is in the Bill. He need not look for evidence, because the instinct of any bureaucracy is not to want to release information that it does not have to release. That is no criticism of the civil service; it is simply a fact that it is always easier to maintain secrecy than to divulge information. I am tempted to call these provisions the Sir Humphrey provisions, except for the fact that they extend well beyond Sir Humphrey and the permanent civil service into areas of policy formation.
Mr. Simon Hughes (Southwark, North and Bermondsey):
Following the point made by the hon. Member for Ryedale (Mr. Greenway), is not it frustrating that, although there have been small but welcome concessions, what we expect to happen at the other end of the building will mean that more concessions will inevitably be needed before the Bill is passed? It is nonsensical for the Government to be on the defensive all the time so that it looks as if concessions are having to be dragged from them, when they could have accepted a good proposal and looked as if they believed in it.
Mr. Heath:
My hon. Friend is absolutely right; it is undignified for any Minister to have to be dragged, with his heels digging into the sand, every inch of the way towards a destination that he declared to be his aim.
I have not heard any hon. Member who has spoken in support of the amendments suggest that there is no need for a degree of protection for policy formation in government. No one has suggested that it is possible to conduct government in a goldfish bowl and that there would not be an inherent difficulty if every piece of policy advice given to Ministers were released. That would make it impossible for the mechanisms of government to work. We all recognise that because we live in the real world, not in an imaginary one. However, that is a long way from saying, as the amendments do, that factual information and expert analysis should not be released as a matter of course.
The Home Secretary suggested last night that facts would have to be communicated throughout Departments of State on Post-it notes to avoid coming under the Bill's provisions, but that is nonsense. That does not happen in overseas legislatures that have freedom of information legislation, and it would not happen here.
The right hon. Member for Chesterfield (Mr. Benn) is absolutely right to say that the best way to improve governmental and legislative mechanisms is to have an informed debate. In this country we often cannot have such a debate, as those who want to engage in the argument do not have the facts at their disposal because of the absurd culture of secrecy that has been fomenting for so long. The Bill is intended to address that. The amendments, particularly amendment No. 10, are crucial in that regard. I agree with hon. Members who have said that we need to test the opinion of the House if the Home Secretary is not minded to accept it, or a variation on it.
The Home Secretary might help the House on another matter. The workings of clauses 13, 33 and 34 will depend on his announcement last night. It would greatly assist us in considering the Bill if we knew whether the Government intended to proceed with new clause 6. The amendments that the Home Secretary announced last night, and his preparedness to consider other amendments, mean that it would stretch the loyalty of even the most credulous Back Bencher to suggest that new clause 6 was a credible amendment to the Bill and for the Home Secretary to assert that he does not intend to maintain it in its current form or anything recognisably like it. It would assist the House if he made an announcement on new clause 6 today, so that we could consider it in the light of the amendments.
Mr. Mark Fisher (Stoke-on-Trent, Central):
I am an optimist, so I hope that we are simply getting the tone of the debate slightly wrong, because colleagues on both sides of the House seem to have forgotten what happened last night. As hon. Members have said, we had the remarkable sight of my right hon. Friend the Home Secretary, when tested, beginning to recognise the huge imperfections of the Bill that he was defending and rewriting the clause that is at the heart of the Bill as he stood at the Dispatch Box. Rightly, he got credit for that. Let us be clear: last night the Home Secretary eased the grip of the powers at the centre of the Bill and effectively transferred them to the Information Commissioner rather than allowing new clause 6 to give him and his ministerial colleagues a veto.
In answer to the hon. Member for Somerton and Frome (Mr. Heath), of course my right hon. Friend will not move new clause 6; he tore it up in front of our eyes last night and the bits of paper were at his feet by the end of his
speech. That new clause no longer exists. Of course we trust the Home Secretary's word, and as my right hon. Friend the Member for Chesterfield (Mr. Benn) said, his remarks are in Hansard and we can clearly see that he redrafted the provisions--and all credit to him.
If the Home Secretary can redraft a clause that was at the heart of the Bill's powers, these amendments, which are about the scope of the Bill and areas of exemption, particularly those relating to formulation of policy, should not present such a problem, although with the powers that were discussed last night they are one of the twin pillars on which the Bill is constructed. The Home Secretary has said on Second Reading and on many occasions since, inside and outside the House, that he accepts the point addressed by the amendments.
The neutral but important facts and data that the Government use to make decisions ought to be in the public domain so that the public, the press and hon. Members can scrutinise them and judge whether the Government are behaving wisely and well. There is a crucial and obvious distinction between those facts and the debate, to which the hon. Member for Somerton and Frome has just referred, between Ministers, and between Ministers and civil servants, about how policy will work. No freedom of information legislation in the world gives access to that debate, because the Government's progress would be impeded if that dialogue were not free to be speculative and political.
The Home Secretary understands that distinction, and he has said many times that the only impediment to his accepting the amendments is that he could not find the right form of words to make the distinction between fact and opinion. We hope that we are helping him to do so by tabling the amendments. The amendment in the name of the right hon. Member for Haltemprice and Howden (Mr. Davis) is excellent, which is why my hon. Friend the Member for Cannock Chase (Dr. Wright) and I have put our names to it. There are various ways of making the distinction between fact and opinion, and the Irish Freedom of Information Act contains a clear, simple way of doing so. It is crucial that such a distinction is made.
Last night, the Home Secretary addressed the much more difficult political problem of the commissioner's powers vis-a-vis his powers and those of other Ministers, so I live in hope that he will be able to solve this problem about the Bill's scope. He understands and accepts that it does not make sense to say that the facts on which Ministers base judgments should not be available, so this is a molehill for him to climb, although it is important because it goes to the heart of the Bill, as my right hon. Friend the Member for Chesterfield said.
We are talking about policy. That word, from its Greek origins, has the same root as "politic" and "politics". The debate relates to the formulation of policy, and that is why it is so important. We cannot do our job on behalf of our constituents and on behalf of this country unless we are on a level footing with the Government and have access to the same factual information. Only then can we judge whether or not they are making wise decisions and wise use of Government money. It is impossible for the press to make that judgment unless it is on that footing.
Ministers have often provided information. However, they also hold back information that is perhaps arguable and can be read in two ways. That is why the legislation is so important. We must make it absolutely clear that
Parliament and individuals have the right of access to information so that we can be treated as grown-ups on a level footing with the Government. We need to know what they know so that we can judge whether they are acting properly and well on our behalf.
In looking at the Bill, one has to agree with my hon. Friend the Member for Cannock Chase, who set out the background to clauses 33 and 34 very well, that the parliamentary draftsmen have done a superb job. They have erected an amazing defensive edifice for the Government. They have built a virtually impregnable fortress; it is a high place, an acropolis. My hon. Friend described its architecture, which includes the factual class exemption; the prejudice test; the extraordinary concept that only certain people are qualified, which is extremely dangerous and worrying if it does not include the Information Commissioner--and according to the Minister it does not--and the effective conduct of public affairs.
The provisions are a mound, a rampart, a bailey, a keep to protect the Government--but from what? At one level, they are protecting the information that the Government have at their disposal and wish to share with the rest of us only by their grace and favour and on their own terms. That is an unacceptable basis and it is at the heart of the Bill. It is why we have needed such a Bill for the past 20 years and why some hon. Members have been arguing for one for so long and on such terms.
If it maintains that enormous defensive rampart around Government policy, the Bill will cease to be a freedom of information Bill, and will become instead a protection of information Bill. That is not what it is about. It contains a huge class exemption that has to be changed and the means of doing that are at the disposal of my right hon. Friend the Secretary of State. As the hon. Member for Somerton and Frome has just said, there is nothing threatening about what we propose: every piece of freedom of information legislation in the world makes a distinction between fact and discursive opinion.
As my right hon. Friend the Home Secretary says that his great problem is not being able to find a form of words that would tease out the distinction between fact and subjective advice, let me quote from the Irish legislation, which is the most recent as it is only two years old. It states that materials that should be released include matter
used or intended to be used by a public body for the purpose of making decisions, determinations or recommendations and factual, including statistical information and analyses thereof and the reasons for the making of a decision by a public body.
Those are simple words and concrete concepts. If the Secretary of State is listening, he must surely realise that there lies salvation. There must be a way in which he can grasp something or adapt it and get the excellent parliamentary draftsmen who have done so well at creating defensive ramparts to do something constructive. If my right hon. Friend does not like our amendments or those tabled by the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), which we shall discuss in a moment, he has here the means at his disposal.
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