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Clause 34

Prejudice to effective conduct of public affairs

Mr. Maclennan: I beg to move amendment No. 12, in page 19, line 12, leave out from "if" to "disclosure" in line 13.

Mr. Deputy Speaker: With this, it will be convenient to discuss the following amendments: No. 27, in page 19, line 15,, after "to,", insert "substantially".

No. 28, in page 19, line 20,, after "to,", insert "substantially".

No. 43, in page 19, line 23, leave out from "deliberation" to end of line 25.

No. 29, in page 19, line 24,, after first "otherwise", insert "substantially".

No. 30, in page 19, line 24, after "to", insert "substantially".

No. 13, in page 19, line 28, leave out from "that" to "compliance".

No. 14, in page 19, line 31, leave out from beginning to end of line 34 on page 20.

Government amendments Nos. 61, 87 and 88.

Mr. Maclennan: Clause 34 is probably the most obnoxious clause remaining to be considered in detail tonight. Our amendments are designed to prevent the purposes of the Bill being vitiated in an all-embracing fashion by the elimination of the test of harm being determined by reference to the

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    That is a bizarre provision, which could sabotage the entire Bill if it is allowed to stand. The provision would allow Government Departments to claim, without any significant harm test, that disclosures would be harmful to public affairs, whereas there are provisions that would allow--[Interruption.]

Mr. Deputy Speaker: Order. General conversations are taking place throughout the Chamber. Hon. Members must listen to the right hon. Gentleman who is addressing the House.

Mr. Maclennan: There are provisions that would allow the Secretary of State for Defence, for example, to withhold information, wrongly claiming that disclosure would prejudice the country's defences. In that circumstance, under clause 24 the commissioner could overturn the decision. Other major matters might be those handled by the Chancellor of the Exchequer, and prejudice to the economy could be claimed. Those matters could be reviewed objectively by the commissioner.

This catch-all provision is designed to prevent that scrutiny being effective. Its purpose is to enable the so-called "qualified person" to give a view, the reasonableness of which can be challenged only by judicial review criteria.

In my judgment and that of hon. Members on all sides of the House, this is one of the most unattractive measures in the Bill. It is a belt-and-braces provision. It covers broadly the same matters as clause 33 and is wholly unnecessary. If amendment No. 12 is accepted, as I profoundly hope it will be tonight, or something similar to it on another occasion, it will restore the objectivity of the test of harm. That is a core necessity.

The test would be applied to information which, in the authority's "reasonable opinion", would inhibit the frankness of advice or exchange of views, or otherwise

The language of the clause makes it plain how broad that exclusionary provision is.

The matter has been considered by a number of bodies. It was considered by the Select Committee on Public Administration, which asked that the "reasonable opinion" test be dropped and gave its reasons, which were forceful and commended themselves to those who are advancing the amendment.

The House of Lords Select Committee also concluded that the exemption "goes too far" and that

If the Minister can produce any new arguments, I have no doubt that the House will listen with enormous interest. So far, the catch-all provision has been defended with arguments that have not carried weight with those who scrutinised the Bill closely in draft form. Those arguments did not carry weight in the Committee that considered the Bill and should not carry weight tonight.

Dr. Tony Wright: I shall be brief. Although time presses, it would be remiss to allow the relevant provisions to pass without the comment that they deserve.

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If we were considering them at a different hour, they would receive more attention than they will receive in the next few minutes.

We are considering profoundly important provisions. Those who were here many hours ago would have heard me describe the four barricades that the Government had erected in clauses 33 and 34 to prevent access to policy areas. The amendment would simply remove one of the barricades. Three barricades would remain.

The exemption in clause 34 allows any public authority, including Departments, local authorities and quangos to assert that

a Minister or an official--

    disclosure would . . . prejudice . . . the effective conduct of public affairs.

That means that the commissioner could not challenge that opinion unless it was irrational. That is a strong test. An official could advance all sorts of reasons to show that the opinion was not irrational.

The Government rightly emphasise the interlocking character and the seamless quality of the Bill. One has to understand one bit of it in order to understand another, and to understand the impact of the commissioner's power on the exemptions. The Bill keeps crucial provisions from the commissioner because it incorporates the test of irrationality. It thus needlessly erects a barrier to access. Such a barrier should not exist. Amendment No. 12 simply asks the Government to remove one of the four barricades that they have erected and move more seriously towards openness and access.

Mr. Quentin Davies (Grantham and Stamford): I start by disagreeing with one of the comments of the hon. Member for Cannock Chase (Dr. Wright). I entirely agree with his remarks about the substance of clause 34 and the amendments. However, he suggested that we should consider the matter only perfunctorily because of the late hour. The issues that we are examining and the question whether we are, to use the Prime Minister's words before the last election, entering a new era of fundamental change in the relationship between the Government and the public, in which we have the courage to establish new standards of information disclosure and openness in government, are sufficiently important for us to consider the Bill through the night or beyond. We should not therefore be inhibited by considerations of the hour.

Dr. Tony Wright: Will the hon. Gentleman give way?

Mr. Davies: I shall, but I want to move on to the hon. Gentleman's important substantive points.

Dr. Wright: I should like to correct the hon. Gentleman. I did not say that we should, but that we would, pay less attention to the Bill because of the lateness of the hour.

Mr. Davies: I am happy to stand corrected and to withdraw any aspect of my remarks that might have been regarded as disparaging or critical of the hon. Gentleman. I accept the exegesis of his remarks in the spirit in which they were delivered. I do not want to develop the bad habit that seems to have been established between the

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hon. Gentleman and me of disagreeing about secondary or tertiary matters, because we agree on the substance of what is at stake.

The Bill was sufficiently restrictive of the public's right to know what happens on their behalf behind the green baize door of government before we reached clause 34. Clause 33 excludes a vast range of Government activities, including

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Other provisions refer to the security services and there are all sorts of other specific exclusions under which information that falls into certain categories could not even be expected and no case for disclosure to the public, ab initio, could be considered. As if that were not enough, the clause contains the catch-all that, even if information was not in an exempt category, the mere decision of a so-called qualified person--that refers not only to Ministers of the Crown, but to all sorts of other people--could override what ought to be the Government's primary obligation: giving the public a fair and true account of events.

That is thoroughly unsatisfactory and I very much support amendment No. 12, which would remove the obnoxious phrase

Anybody could say that his opinion was reasonable, which strengthens the argument against the words

    would, or would be likely to, prejudice--

    (i) the maintenance of the convention of the collective responsibility of Ministers . . . frank and free provision of advice . . . the frank and free exchange of views . . .

Anybody could make a case for any information being withheld on those vague, broadly drawn grounds. At least the amendment would tighten that a little. If the phrase

    in the reasonable opinion of a qualified person . . .

were deleted, subsection (2) would state:

    Information to which this section applies is exempt information if disclosure of the information . . . would, or would be likely to, prejudice . . .

Presumably, that would mean that the Information Commissioner would be the arbiter of whether there would be prejudice if the information were revealed. That is a more satisfactory and objective solution.

We are once again dealing with a great theme of the Bill: Ministers would argue and decide in their own case, without any further appeal, that a matter or information should not be revealed. They are being given amazingly broad grounds: pick one, choose any--there is a whole list with which they could justify the withholding of the information. The amendment represents the absolute minimum requirement if we are even to begin to accept that there is any sincere intention on the Government's part to open up proceedings in the Executive branch and to give real substance and meaning to the Bill.

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