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Mr. Fisher: If we do not amend the clause, the great danger is that it is likely to be one of the most used. Any of the 340 public authorities that did not want to release information that was not exempt would find it easy not to master the Bill or to see its way through the thicket of
harm tests and other matters, but simply to home in on the clause and say that a senior executive thinks that the release of information would prejudice the frank and free exchange of information or the efficient conduct of the body. Anything could be caught. If it is to approve the measure, the House must understand the power that it will give to all those bodies to avoid the Bill's intention, which is to give the public a right of access to public information.
We are meant to be giving people rights to have information that should be theirs--they pay for it and actions are taken on their behalf. The clause will frustrate that--it is bound to do so--and I fear that it will be used again and again. I draw the House's attention to what my hon. Friend the Under-Secretary of State for the Home Department said in Committee:
The Government's proposal really does not make sense. I trust that if we cannot frustrate this misconceived clause here, those in another place will view it with much more rigour and with less charity.
Mr. Simon Hughes:
Earlier, we discussed whether the final decision should remain with this place or with Ministers accountable to this place--the hon. Member for Buckingham (Mr. Bercow), among others, used the phrase "democratic accountability--or whether it should lie with an authority outside this place.
Anyone reading the Bill, especially clause 34, would surely agree with my right hon. Friend the Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) and others that the flaw in the Government's proposal is that it allows someone speaking for the body in question to decide what should be disclosed. In relation to non-public authorities--other elements of public life--it would be reasonable for Parliament, Ministers, chief executives, the Speaker, the Clerk of the House or the presiding officer to make decisions. When it comes to the vested interests of the body involved, it is clearly unhelpful to the public access intentions of the Bill for the person making the decision to be the person who approaches that decision from the point of view of the organisation whose information is to be released. Self-evidently, that person will take the view of the organisation.
Let me give an obvious example. The amendment seeks to remove the fact that the "qualified person" who would make the decision on the basis of having a "reasonable opinion" and of being appropriately qualified, in relation to
a Government Department, would be any Minister of the Crown. Advice would be given by civil servants. The civil servants would say, "Minister, this could prejudice"--that is the test--"the maintenance of collective responsibility", or
The hon. Members for Cannock Chase (Dr. Wright) and for Grantham and Stamford (Mr. Davies) suggested that, although we had been debating these matters for nearly two working days, we had not given the matter the attention that it deserved. I am sure no one who has looked at the Bill fails to realise that the clause and the amendments are hugely significant. As the hon. Member for Cannock Chase said, this is where the block will come. This is the clause that allows people to say, "No, you cannot have the information", and no one will be able to have that reviewed or overturned. This is the blocking mechanism that can be used by an individual who will act on advice, perhaps in good faith but not necessarily so. I hope that the House will support the amendment.
I do not know the official Opposition's position on amendment No. 12, but I hope that they will support us on it. Still, I pay tribute to them--they have moved, now that they are in opposition, from thinking that there should not be a statute governing these matters to a somewhat more progressive view. In this debate, of all the forces ranged around the argument, it is the Opposition parties and Labour Members who are not Ministers--
Mr. Hughes:
I truly believe that, one day, the enlightened will be vindicated, and that even the day of Government enlightenment will dawn. I hope that the hon. Lady and I will be there, walking through the gates, when that happens.
I hope that Conservative Members will join us in the Lobby. It is important that we should not provide a blocking mechanism to those who have an interest to protect. We have to take the right to decide away from those who could themselves cause the most harm to freedom of information.
Mr. Greenway:
The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) has tempted me to say that, in Committee, on behalf of the Opposition, I proposed that clause 34 should be deleted entirely. That
I suspect that my hon. Friend the Member for Surrey Heath (Mr. Hawkins) may be tempted to suggest that our problem with amendment No. 12 is that--other than the fact that it does not really deal with the pernicious nature of the clause, which we should prefer to be deleted from the Bill entirely; I hope that the other place comes to the same conclusion--it is predicated on the narrow basis of whether there should be a test of reasonableness. I am not entirely sure that I know quite where the balance of the argument lies on that issue. On what basis is the decision maker--be he a Minister, local authority chief executive or the chief executive of any of the many quasi- autonomous national government organisations caught by the Bill--to decide that the release of information is likely to prejudice the effective conduct of public affairs?
I think that Ministers--to be fair to them--have reached the judgment that there should be a test of reasonableness. If they have reached that judgment, the Bill should make it clear that that is the test. It should also make it clear that it is open to the commissioner to rule that someone who is qualified to decide on the release of information--on the basis that it would prejudice the conduct of public affairs--made that decision unreasonably.
The Government consider that only a qualified person can have a full understanding of the issues involved in the decision-making processes of a public authority.
That is an extraordinarily bold and broad remark. He went on to say:
we do not consider that it would be right for the prejudice caused by that sort of information to be determined by the commissioner.--[Official Report, Standing Committee B, 27 January 2000; c. 321.]
That is even more disturbing. The commissioner, who is the one guardian of the rights for the public on which we are legislating, has almost been weighed down with praise from both sides of the House. She is an admirable woman, and everyone is delighted that she has got the job, but she will not be trusted by the Government. The Government do not consider that her opinion should be even weighed in the balance, let alone have priority over the self-validation of senior people in the public authorities.
the free and frank provision of advice.
The Minister, on the basis of the advice given, would be entitled without question to take the view that that was reasonable advice which he or she was bound to follow, but no court could deal with that. The whole point is that, under administrative law, it is outwith the ability of the court to say that a perfectly reasonable decision had not been made. The decision is reached from the prejudiced point of view of the organisation against which, as it were, someone is seeking information. We are trying to establish a mechanism to provide an objective assessment that is not performed by someone within the organisation. What we are discussing is whether an outsider or an insider decides whether prejudice is involved. The history of the debate, in this country and everywhere else, suggests that someone outside must adjudicate, with all the checks and balances that the legislation provides.
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