Previous SectionIndexHome Page


Mr. Shepherd: Well, I got an answer that could have been written 10, 12, 14 or 20 years ago. No one in the Chamber is trying to abuse the national security services. As I tried to suggest, the very words "national security" have a weighty presence. Think of this. I quote a letter from a former Under-Secretary of State for Social Security published in The Guardian on 24 September 1997. He confirmed the role of MI5 in connection with his Department's work:


I knew that the Minister would go heavily on arms, on the war that we fight with terrorists and so on, but there are many functions in the remit of the security services.

In that instance, MI5 effectively carried out management consultancy for the DSS, but the results of that work, which presumably was no different in substance to that which would otherwise have been done by an outside consultancy, would have been exempt merely because they were produced by MI5 staff rather than the staff of KPMG. There is a blanket response every time that one tries to talk about what should be accessible under the terms of a freedom of information Act. We get the solemn and correct intoning of reliance on a service that virtually no one in the Chamber knows anything about. I know almost nothing about the security services.

Over the years in which I have tried to advance some of the arguments to bring the security services in from the cold, if that is not a Jeffrey Archer title--[Hon. Members: "No."] No indeed. One of the arguments is that this is a question of confidence for the House. We respect those who protect us, but we know that because of its remit, which we have discussed on the Floor of the House, the service has been concerned with all manner of things.

9 pm

The service has a long history, which is relevant to the Bill. The Bill almost suggests that someone could say, "If I want to exclude a piece of information, I can ask the security services to pass it across my desk". Under the Bill as it is now drafted, an umbrella of absolute exclusion would then be erected.

I thought that, in presenting freedom of information proposals, the Government were recognising that, although much was already open, we needed such measures as harm tests. Whether the threshold should be higher or lower is not the point at issue. We are saying that some of the great organisations of state--the police, the armed forces, the national health service and organisations whose members rescue people on the roads--should be excluded because of the phrase "national security".

We know the background to some of the stories. The Minister will have observed my assiduity in not going into certain horror stories with which I am acquainted,

5 Apr 2000 : Column 1062

whether or not they are true. I am thinking of Greenham common, and incidents involving the Campaign for Nuclear Disarmament. We learn that the Home Secretary himself, no less, was on a list that included the Secretary of State for Northern Island. However, I make nothing of that.

That was yesterday; we now look forward to tomorrow. This is not an attempt to undermine any aspect of the proper and legitimate defences of this country, which are a responsibility of Executive Government, and a very solemn one. I recognise and respect that, but I am not happy about a blanket ruling. What if there is a rogue element? Under the Bill as it stands, if the Secretary of State for Social Security's friend from the security services passes a piece of paper across the desk, and if it relates to something about which the Secretary of State does not want to know, that will be subject to a total exclusion. This is what is really behind the measure.

I understand why the Minister responded as he did. He read a brief that has been read many times here--but there were moments when I thought that, if my memory had been better, I could have joined him and we could have performed as a duo. The same thing often applies to our arguments about freedom of information, and our arguments about the security services, which I know will continue. In many instances the employees of the security services are brave and bonny people, but they should never be out of sight of those who are commissioned and paid for by the state, and are loyal citizens of that state--indeed, fellow citizens.

That is what this is about. It is not about any of the big things such as bombs and sensitivities about Northern Ireland; it is about the mundane, common things that affect every Department that serves this nation of ours.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24

Defence

Mr. David Heath: I beg to move amendment No. 15, in page 13, line 13, after "to,", insert "substantially".

Mr. Deputy Speaker (Mr. Michael Lord): With this it will be convenient to discuss the following amendments: No. 16, in page 13, line 21, after "to,", insert "substantially".

No. 17, in clause 25, page 13, line 24, after "to,", insert "substantially".

No. 18, in page 13, line 41, after "to,", insert "substantially".

No. 19, in clause 26, page 14, line 18, after "to,", insert "substantially".

No. 20, in page 14, line 26, after "to,", insert "substantially".

No. 21, in clause 27, page 14, line 29, after "to,", insert "substantially".

No. 22, in page 14, line 35, after "to,", insert "substantially".

5 Apr 2000 : Column 1063

No. 39, in clause 28, page 15, line 4, at end insert--


'and if its disclosure under this Act would, or would be likely to, prejudice any of those purposes'.

No. 23, in clause 29, page 16, line 10, after "to,", insert "substantially".

No. 24, in page 17, line 10, after "to,", insert "substantially".

No. 25, in clause 31, page 18, line 4, after "to,", insert "substantially".

No. 26, in page 18, line 9, after "to,", insert "substantially".

Mr. Heath: Amendment No. 15 stands in my name and in the names of an array of Members of the progressive faction.

All but one of the amendments deal with the same notion, while amendment No. 39 deals with a separate notion, which I intend to discuss separately. If I do so reasonably briefly, that does not mean that I am undermining the importance of the amendments; it simply means that I believe that the House wants to reach a conclusion on the Bill at some stage. Moreover, many of the arguments were dealt with at length in Committee. It is a shame that the hon. Member for Ryedale (Mr. Greenway) is not present, because he was very much involved in our debate in Committee and expressed clear views.

The amendment seeks to qualify the prejudice test by inserting the adverb "substantially". That, we think, is a fairly important aspect of making legislation effective, and not over-prescriptive or over-restrictive.

In Committee, we had a long and rather fruitless debate--which I am sure the Minister will recall--on whether the word "harm" was synonymous with the word "prejudice" and whether the words differ in connotation. Ultimately, we had to accept that the Minister prefers the word "prejudice" simply because he prefers it, and we left it at that. We should debate that point again today, but should consider whether there needs to be a slightly higher threshold.

Hon. Members will recall that the White Paper was very explicit on the issue, proposing a test of substantial harm. It was critical of the code for not providing a threshold of substantial harm. Although I do not know whether prejudice is a higher test than harm, the White Paper proposed that the Bill should be


The background papers to the White Paper, which were very instructive on the issue, noted that substantial harm


    would clearly be more stringent (and so provide greater openness) than the Code of Practice on Access to Government Information (which normally exempts on the basis of simple "harm" or "prejudice") and would be closer to the "real damage" test of PII. Practical experience of applying a "real damage" test in litigation indicates that it results in a substantial reduction in the volume of material which would be withheld.

Therefore, from discussions both preceding and following publication of the White Paper, we have had a clear indication that a test of real damage should be used in disclosing information. The Home Secretary was

5 Apr 2000 : Column 1064

clearly similarly minded. In his statement on the draft Bill, he expressed his preference for the word "prejudice" and said that, in practice, the prejudice has to be


    real, actual or of "substance".--[Official Report, 24 May 1999; Vol. 332, c. 22.]

That is the crucial point. The Minister contends that that is the meaning of prejudice and that it needs no further qualification. He also contends that, even if prejudice does not mean that, that is how--because of Pepper v. Hart, which the Home Secretary had in mind--it would be interpreted.

The difficulty with that construction is that, as Pepper v. Hart makes clear, a Minister's comments would be taken into account only if the provision were


would lead "to an absurdity". Even then, the Minister's comments would be taken into account only if they addressed the issue. However, it is difficult to imagine circumstances in which the courts would test the ambiguity in the word "prejudice". If they were to do so, would they take into account the Home Secretary's gloss on the word? I suspect that they would not. The Bill contains nothing that equates with the Home Secretary's test of


    real, actual or of "substance".

Like other hon. Members, I think that, if the Bill is to do its job properly and we are to avoid exemptions that cover much wider classes of information than need to be covered, we need that type of threshold.

Amendment No. 39 would amend clause 28, which provides a blanket exemption protecting all information on investigations by police and regulators, even if disclosure could not harm legal proceedings. The list of regulators is quite broad. It includes not only police, but--as the Minister advised us, for which we are grateful--the Health and Safety Executive, environmental health officers, trading standards officers, fire authorities, the drinking water inspectorate, the Environment Agency, the Director General of Water Services, the Maritime and Coastguard Agency, the Civil Aviation Authority, the Inland Revenue, Customs and Excise, the Crown Prosecution Service, the Benefits Agency, the Department of Trade and Industry, the Ministry of Agriculture, Fisheries and Food, the Housing Corporation, the National Criminal Intelligence Service and the Serious Fraud Office. Thus a wide range of bodies are covered.

That extraordinary blanket exemption does not take into account all the factors that would justify revealing information. It does not apply the harm test which we might imagine would be inherent in any such provision. It simply says that all information held by those bodies in that context would be exempt.

Amendment No. 39 would allow the withholding of such information only if disclosure would prejudice the purpose for which it is held. That is not unreasonable. The reason for withholding information should be that its disclosure would disadvantage the investigating authority or the police in the execution of their duties. That is not a problem in other countries' freedom of information legislation.

There is a genuine concern about the circumstances in which material would be exempt. A local authority might refuse to release information on investigations into children's homes or even to admit to there having been

5 Apr 2000 : Column 1065

an investigation. That is not a healthy situation. That is setting aside the effect on the police. The Macpherson report, which has been given careful attention in the House, says explicitly that there should be no class exemption for the police. It argues that re-establishing public confidence in the police requires


    a vigorous pursuit of openness and accountability across Police Services.

The report goes on to say that


    we consider it an important matter of principle that the Police Services should be open to the full provisions of a Freedom of Information Act. We see no logical grounds for a class exemption for the police in any area.

There could be no more explicit endorsement of my case. That view is shared by the Law Society, which has said that it fully supports the amendment.

The argument that the amendment would prevent the police or regulatory authorities from doing their job effectively is untenable. Even if clause 28 were changed much more radically than the amendment would change it, there would always be clause 29, which clearly says:


and a list of other roles of regulatory authorities.

This is a serious group of amendments. The Minister must explain why he has chosen to reduce the threshold. Amendment No. 39 is crucial. He must also explain why there should be a blanket exemption for that critical area of public service. I shall listen carefully to the Minister. I suspect that the House will wish to give an opinion on both matters.


Next Section

IndexHome Page