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Mr. David Davis: It is a pleasure to follow the hon. Member for Stoke-on-Trent, Central (Mr. Fisher). Like the hon. Gentleman and the hon. Member for Somerton and Frome (Mr. Heath), I am optimistic about the progress of the Bill. I commend the Home Secretary for his comments last night. I hope that they will be reflected in his not moving new clause 6, and tabling a new clause in another place to reflect what he said last night, subject to legal advice.
It is also a pleasure to speak in the same debate as the right hon. Member for Chesterfield (Mr. Benn). It is nice that even in his 75th year he is still a fount of dangerous ideas, although when the Home Office finds that Hansard fails the harm test and classifies it, I shall hold him personally responsible.
I want to speak to amendment No. 91, whose aim is clear cut. It is wider than some of the other amendments in the group, all of which I support, in that it seeks to bring into the open facts, options and analyses relating to any decisions, but not advice. I shall not read out the full text of the amendment, but I should like to thank Maurice Frankel and his staff at the Campaign for Freedom of Information for helping me to draft it, particularly considering the risk of collective seizure when someone with my hard-edged reputation in these matters rings them up and asks for help.
At the risk of being tedious, let me repeat what I said today about my attitude to the amendments. They are proposed not just for the sake of freedom of information, but for their effect. The test is threefold: does it inform debate; does it reinforce democracy; and does it improve government? By improving government, as the right hon. Member for Chesterfield said, I do not mean making government more expedient, smoother or more comfortable either for the Ministers or the Sir Humphreys who serve them, no matter how well intentioned, capable and public spirited they are. The test is whether it helps the delivery of good government for the citizens of this country. In my judgment, amendment No. 91 passes all those tests. Indeed, it would significantly improve the position.
Similar rumours float around about other senior, and very capable, civil servants. I suspect that they all come from the kindergarten--I think that that is the correct collective noun--of special advisers that now populates Whitehall. However, the following is not meant as a party political point--it is meant to apply to any Government. If policy advisers believed that they could not give clear, candid advice without risk to their own career, it would be a very bad thing and would undermine proper government.
There is a second reason for protecting the privacy of such advice. I believe that, as the right hon. Member for Chesterfield expatiated, the Bill, if properly amended, would change the power balance in Whitehall between Ministers and their civil servants. It would reinforce the position of Ministers, just as it reinforces the position of the House with respect to Ministers, and the public with respect to all of us. However, if the advice area was brought out into the open, it would have the reverse effect.
I speak as someone who, as a Minister, probably turned down or reversed about a third of the advice given to me. That would have been much more difficult had it been possible for that advice then to be used against me in a debate. Therefore I believe that it would be a bad thing to bring advice into the open. It would reverse the power balance and make the advice of individual civil servants too much of a bind on Ministers. For two reasons, then, I strongly defend the advice area, as has every hon. Member who has spoken.
However, that is not to say that the exemption should be used to protect all the other areas that amendment No. 91 addresses. As the hon. Member for Cannock Chase (Mr. Wright) said in his eloquent opening to the debate, the Bill as it stands falls short of the 1977 Croham directive--Lord Croham was probably one of our greatest permanent secretaries--and falls short of the 1994 code, in which I had a brief involvement, although all the credit for that code falls to William Waldegrave. The Bill falls short of the allowance for facts and analysis in both of those prior decisions in Whitehall.
As I understand it, the aim of this class exemption is to protect the process of policy formation. There can be no harm to the process of policy formation in exposing the facts. The facts cannot be altered; in fact, such a provision will be advantageous because the people presenting the facts will be more rigorous, in the knowledge that the facts will enter the public domain. If the facts are available during the debate, some of the facts--I am especially thinking of scientific data--may be open to some challenge, and that, too, would inform and enhance our debate and, as such, improve our government. Those
reasons should lead us to common ground on the subject; they should lead us to believe that such freedom of information will advance the cause of the Government and of Ministers.
There is another consideration here--the attitude of the public to the Government. It can only reassure the public if they know the factual basis of policy--if they are not treated as though they were a group to be patronised by the Government, to be told what is good for them, but can see for themselves that they have access to the facts on which decisions are taken.
Much of what I have said applies to all the amendments that have been debated so far, but I also believe--this is the point of amendment No. 91--that, in most cases, the process will not be harmed by airing the options. In fact, there is a benefit because it would lead the people drawing up the options for the Minister to be more complete and leave nothing out.
It was my experience as a Minister--I am sure that others will have the same feeling--that one often felt that one was given the choice of options Nos. 1, 2 and 3 and one wondered, "What about Nos. 4 and 5?" The amendment would lead to options Nos. 4 and 5 being put to the Minister; it would lead the options to be better developed than they currently are. That would be a benefit to Government, and it would inform debate. Think of the difference of the debate in the House if we were not simply saying across the Floor of the House, "Yah-boo sucks; we do or do not like that option", but were talking about the various options that were available to the Government and could be developed and could be pursued by the country.
Mr. Tony Benn:
I agree with absolutely everything that the right hon. Gentleman is saying, but is it not also a fact that the acceptability of Government decisions to the public would be greatly increased if the public knew that all the options had been considered, and that even the ones that had been rejected had at least been considered? The absolute unanimity of Ministers on everything actually makes Government lack credibility, whereas the opening up of the options, the debate about them and the publication of the conclusion is reassuring to people who otherwise think that their arguments might never even have been examined at the top.
Mr. Davis:
As ever, the right hon. Gentleman is ahead of me and about three sentences ahead of my comments, so he has shortened my speech, which is no doubt to the pleasure of the House. He is absolutely right in that respect. My proposals cannot be a bad thing for a Labour Government or any other Government in that respect. It must be to the benefit of our democracy for the public to have greater confidence in the decisions taken on their behalf.
Of course, there will be times when the options are not appropriate to be aired. I worked in the Foreign Office for three years, and I had to deal with negotiations in which there were options that one perhaps did not want to play out in the public domain before they turned up in the European Council or NATO or wherever we were negotiating; but such times are quite limited.
Mr. Greenway:
There are exemptions for them.
Mr. Davis:
My hon. Friend, from a sedentary position, says that there are exemptions for them. I encompass a
For three years during a European negotiation leading up to the treaty of Amsterdam, I appeared almost once a month before the Select Committee on European Legislation and discussed as openly as possible with its members what was happening, and from time to time I had to say, "I am sorry; I cannot tell you that" and it was understood on all sides. Therefore I doubt that the harm test will be a controversial issue. Most of us would accept that it would work easily, work well and work with the support of the House.
In practical terms, the hon. Member for Cannock Chase--the leader of what is now, I suppose, the Cross-Bench group of Members of Parliament--laid out the point that Lord Butler--Robin Butler, as he was then--made when he was Cabinet Secretary, when he told the House of Lords Select Committee that his senior colleagues and he had given some thought to how they
Therefore, it can be done here, on the basis of the facts as they exist, and on the basis of the experience of many of us in government; and it has also been done readily elsewhere. Consider some of the exclusions from the exemptions that exist in other countries' freedom of information legislation, such as Canada's Access to Information Act and similar legislation in Ireland, Australia and New Zealand. Such exclusions include factual and statistical material--in Ireland, there is an exclusion for the analysis of factual or statistical material--the reasons for a decision, or information publicly cited as the reasons for a decision; scientific research or field research; expert scientific or technical reports or analysis; expert opinion or analysis; the advice of external consultants or persons other than a Government official, which relates to the point that has been made today about lobbyists; a commissioned report of a Government body or interdepartmental committee, other than one reporting to the equivalent of the Cabinet; a feasibility or other technical study or plans and budgetary estimates relating to new or existing programmes; efficiency studies; economic forecasts; public opinion polls; environmental impact studies; product testing results; appraisals and valuators' reports. I cannot imagine how any of that would lead to a problem for government, and my amendment seeks to make such information available.
could . . . structure submissions to Ministers in a way that would enable us easily to separate the background . . . from . . . subjective advice.
In that context, "the background" means both facts and options. And he is not alone. Terry Burns--now Lord Burns--said something very similar in that respect. Two of the most senior of our previous permanent secretaries, once free of the shackles of Whitehall and free of the close mafia of the Sir Humphrey club, actually say, "This is possible. This can be done, and done in a way that will not harm--indeed, will improve--the process of government in this country."
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