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Mr. Hawkins: My hon. Friend the Member for Ryedale (Mr. Greenway), who dealt with the issue in Committee, has set out our position. We have some sympathy with the amendment, but we shall not join the Liberal Democrats in the Lobby if they press the matter to a vote.
Mr. Lock: The clause rightly focuses on the first test of whether information should be exempt. Should it be the decision of a commissioner on whether disclosure would be likely to inhibit the free and frank provision of
advice or exchange of views for the purpose of deliberation, or should it be the reasonable opinion of a qualified person? The issues involved in the decision-taking process of public authorities are so near the heart of government that we believe that only a qualified person, as defined by the Bill, can have a full understanding of them. Although the issues in clause 34 are less sensitive than those in clause 33 and a class exemption is not justified, the Government do not believe that it would be right for the commissioner to substitute her view for that of the authority on the question of prejudice; hence the test of the reasonable opinion of a qualified person.
The hon. Member for Ryedale (Mr. Greenway) is right. The commissioner may still overturn the decision of a qualified person if she believes the decision to be unreasonable. I confirm his reading of the Bill. That means that the information would not be exempt and would be disclosable.
Mr. Simon Hughes:
If the commissioner ruled that the ministerial decision was unreasonable, would it still be open to the Government to seek a judicial review of that decision?
Mr. Lock:
With the greatest respect to the hon. Gentleman, of course it would. Any decision taken in an administrative capacity is subject to judicial review, because the person who takes it is obliged to act within the law. Any decision made by a Minister can be subject to judicial review to determine whether it was lawful. The issue is not what another person would have done had they been the commissioner. The question is whether, applying the Wednesbury irrationality test, the commissioner has acted correctly.
The clause balances the right to know against the public's right to effective public administration. The amendment strikes at the heart of good administration. The Government believe that there must be a compromise measure between the power of the commissioner to order the disclosure of information and effective public administration. The clause delivers that compromise through the concept of a reasonable opinion of a qualified person. The amendments would overturn that balance and the Government cannot accept them.
There is a further reason why we cannot accept the amendments. There has been an assumption in some speeches tonight--including that of the hon. Member for Grantham and Stamford (Mr. Davies), who seems not to be here to listen to the answer to his speech--that clause 13 applies to clause 34. We heard a great deal about clause 13 last night and the Government have moved significantly to strengthen provisions on what happens when there is exempt information. The fact that information has been certified as prejudicial in the reasonable opinion of a qualified person is not the end of the series of tests. The tests are not barriers so much as hurdles that a Government Department must get over in trying to keep information confidential. So those tests--the balancing act in clause 13, the Information Commissioner's opinion as to whether that balancing act has been carried out correctly, and the scheme involving the intervention of the Secretary of State outlined last night by my right hon. Friend--will all apply to the provisions under clause 34.
The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) is very well informed in these matters, so I am sure that when he introduced the debate he gave the House only the first line of the argument. However, his introduction did not take account of the subsequent hurdles that Government Departments will have to get over to maintain confidentiality. The balance in clause 34--the reasonable opinion of a qualified person--is thus entirely reasonable.
Mr. Simon Hughes:
By definition, these are untested waters in this country. Can the Minister describe the experience in other Administrations that are similar to ours? How often have provisions such as this produced a decision against Ministers? In my experience of administrative law, Ministers would be upheld nine times out of 10, because their decisions would be judged to be within the parameters covered by the word "reasonable".
Mr. Lock:
I hear the hon. Gentleman's question, but I am not in a position to answer it tonight. I do not have full details of the experience in other countries, and I am not sure that they would be of significant use, as they might not be exact parallels of the proposals in the Bill or of the circumstances in this country. However, I will write to the hon. Gentleman with some relevant examples, and will copy that information to any other hon. Member who might be interested.
Finally, Government amendments Nos. 61, 87 and 88 are necessary to ensure that references to the Bill's application to Northern Ireland are correct. I shall not say more about them now, but will answer any questions of detail from hon. Members.
Mr. Maclennan:
I forecast that the Minister would have little new to say to us, and that has been proved accurate. I chose not to quote in extenso the opinion of the Select Committee on Public Administration, so I have failed to drive home sufficiently clearly the point that using the device of the qualified person as a preliminary hurdle, and allowing that person's reasonable opinion to be the test of whether there is prejudice, precludes the commissioner from reaching an effective judgment. We believe that the commissioner's judgment of what is prejudicial should be substituted.
My hon. Friend the Member for Southwark, North and Bermondsey (Mr. Hughes) asked an entirely apposite question about judicial review. It will be much more difficult to overturn the view of a qualified person than it would be if the commissioner did not have that obstacle in the way.
That would, perhaps, not matter if clause 34(2)(c) did not contain an appalling catch-all phrase. The qualified person can take the view that the disclosure concerned
It is not true--indeed, it is misleading to suggest, as I think that the Minister did--that the matters covered in the clause are issues close to the heart of Government. That is plainly inconsistent with the language used in that subsection. The reality is that it is a device that could sabotage the whole purpose of the Bill. I predict that it could be used time and again to stop the public exercising a right to know.
The clause is most dangerous--it is probably the most dangerous in the Bill--because it could have such a wide and sweeping effect on the right to know. For that reason, I hope that it will be studied with great attention in another place and that there will be a strong disposition there to support the view that was taken by its Committee when it considered the issue and sought a more objective test of prejudice.
I hope that the House will think it right to express forcefully its view on this matter tonight.
Question put, That the amendment be made:--
The House divided: Ayes 55, Noes 324.
Tellers for the Ayes:
Tellers for the Noes:
Question accordingly negatived.
Amendment made: No. 61, in page 20, line 10, at end insert--
would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.
That means almost anything: it is as wide as the channel.
AYES
Allan, Richard
Ashdown, Rt Hon Paddy
Ballard, Jackie
Brake, Tom
Brand, Dr Peter
Breed, Colin
Burnett, John
Burstow, Paul
Campbell, Rt Hon Menzies
(NE Fife)
Clark, Rt Hon Dr David (S Shields)
Clwyd, Ann
Cook, Frank (Stockton N)
Corbyn, Jeremy
Cotter, Brian
Cousins, Jim
Dalyell, Tam
Davey, Edward (Kingston)
Davis, Rt Hon David (Haltemprice)
Dunwoody, Mrs Gwyneth
Fisher, Mark
Foster, Rt Hon Derek
Foster, Don (Bath)
George, Andrew (St Ives)
Harris, Dr Evan
Harvey, Nick
Heath, David (Somerton & Frome)
Hinchliffe, David
Hopkins, Kelvin
Hughes, Simon (Southwark N)
Jones, Jon Owen (Cardiff C)
Jones, Dr Lynne (Selly Oak)
Keetch, Paul
Kennedy, Rt Hon Charles
(Ross Skye & Inverness W)
Kirkwood, Archy
Llwyd, Elfyn
McDonnell, John
Maclennan, Rt Hon Robert
Marshall-Andrews, Robert
Michie, Mrs Ray (Argyll & Bute)
Moore, Michael
Oaten, Mark
Öpik, Lembit
Prentice, Gordon (Pendle)
Rendel, David
Russell, Bob (Colchester)
Sanders, Adrian
Shepherd, Richard
Simpson, Alan (Nottingham S)
Stunell, Andrew
Taylor, Matthew (Truro)
Tonge, Dr Jenny
Tyler, Paul
Webb, Steve
Willis, Phil
Wright, Dr Tony (Cannock)
Sir Robert Smith and
Mr. Ronnie Fearn.
NOES
Ainger, Nick
Ainsworth, Robert (Cov'try NE)
Alexander, Douglas
Anderson, Donald (Swansea E)
Anderson, Janet (Rossendale)
Armstrong, Rt Hon Ms Hilary
Atherton, Ms Candy
Atkins, Charlotte
Austin, John
Barnes, Harry
Barron, Kevin
Bayley, Hugh
Beard, Nigel
Beckett, Rt Hon Mrs Margaret
Begg, Miss Anne
Beggs, Roy
Benn, Hilary (Leeds C)
Bennett, Andrew F
Benton, Joe
Bermingham, Gerald
Berry, Roger
Best, Harold
Blackman, Liz
Blears, Ms Hazel
Blizzard, Bob
Blunkett, Rt Hon David
Boateng, Rt Hon Paul
Bradley, Keith (Withington)
Bradley, Peter (The Wrekin)
Bradshaw, Ben
Brinton, Mrs Helen
Brown, Rt Hon Nick (Newcastle E)
Brown, Russell (Dumfries)
Browne, Desmond
Buck, Ms Karen
Burden, Richard
Burgon, Colin
Butler, Mrs Christine
Byers, Rt Hon Stephen
Caborn, Rt Hon Richard
Campbell, Alan (Tynemouth)
Campbell, Ronnie (Blyth V)
Campbell-Savours, Dale
Cann, Jamie
Caplin, Ivor
Casale, Roger
Caton, Martin
Cawsey, Ian
Chapman, Ben (Wirral S)
Chaytor, David
Clapham, Michael
Clark, Dr Lynda
(Edinburgh Pentlands)
Clark, Paul (Gillingham)
Clarke, Charles (Norwich S)
Clarke, Eric (Midlothian)
Clarke, Tony (Northampton S)
Coaker, Vernon
Coffey, Ms Ann
Cohen, Harry
Coleman, Iain
Colman, Tony
Connarty, Michael
Cook, Rt Hon Robin (Livingston)
Cooper, Yvette
Corston, Jean
Cranston, Ross
Cryer, John (Hornchurch)
Cummings, John
Cunningham, Rt Hon Dr Jack
(Copeland)
Cunningham, Jim (Cov'try S)
Curtis-Thomas, Mrs Claire
Darling, Rt Hon Alistair
Darvill, Keith
Davey, Valerie (Bristol W)
Davidson, Ian
Davies, Rt Hon Denzil (Llanelli)
Davies, Geraint (Croydon C)
Dawson, Hilton
Dean, Mrs Janet
Denham, John
Dismore, Andrew
Dobbin, Jim
Donaldson, Jeffrey
Donohoe, Brian H
Doran, Frank
Dowd, Jim
Eagle, Angela (Wallasey)
Eagle, Maria (L'pool Garston)
Edwards, Huw
Efford, Clive
Ellman, Mrs Louise
Ennis, Jeff
Field, Rt Hon Frank
Fitzpatrick, Jim
Fitzsimons, Lorna
Flint, Caroline
Follett, Barbara
Foster, Michael Jabez (Hastings)
Foster, Michael J (Worcester)
Foulkes, George
Galloway, George
Gapes, Mike
Gardiner, Barry
George, Bruce (Walsall S)
Gerrard, Neil
Gilroy, Mrs Linda
Godman, Dr Norman A
Godsiff, Roger
Goggins, Paul
Golding, Mrs Llin
Gordon, Mrs Eileen
Griffiths, Jane (Reading E)
Griffiths, Nigel (Edinburgh S)
Griffiths, Win (Bridgend)
Grocott, Bruce
Grogan, John
Hain, Peter
Hall, Mike (Weaver Vale)
Hamilton, Fabian (Leeds NE)
Hanson, David
Heal, Mrs Sylvia
Healey, John
Henderson, Doug (Newcastle N)
Hepburn, Stephen
Heppell, John
Hesford, Stephen
Hill, Keith
Hodge, Ms Margaret
Hoey, Kate
Hood, Jimmy
Hoon, Rt Hon Geoffrey
Hope, Phil
Howarth, Alan (Newport E)
Howarth, George (Knowsley N)
Howells, Dr Kim
Hoyle, Lindsay
Hughes, Kevin (Doncaster N)
Humble, Mrs Joan
Hurst, Alan
Hutton, John
Iddon, Dr Brian
Illsley, Eric
Ingram, Rt Hon Adam
Jackson, Ms Glenda (Hampstead)
Jackson, Helen (Hillsborough)
Jamieson, David
Jenkins, Brian
Johnson, Alan (Hull W & Hessle)
Johnson, Miss Melanie
(Welwyn Hatfield)
Jones, Rt Hon Barry (Alyn)
Jones, Helen (Warrington N)
Jones, Martyn (Clwyd S)
Jowell, Rt Hon Ms Tessa
Kaufman, Rt Hon Gerald
Keeble, Ms Sally
Keen, Alan (Feltham & Heston)
Keen, Ann (Brentford & Isleworth)
Kemp, Fraser
Kennedy, Jane (Wavertree)
Khabra, Piara S
Kidney, David
Kilfoyle, Peter
King, Andy (Rugby & Kenilworth)
King, Ms Oona (Bethnal Green)
Ladyman, Dr Stephen
Lawrence, Mrs Jackie
Laxton, Bob
Lepper, David
Leslie, Christopher
Levitt, Tom
Lewis, Ivan (Bury S)
Lewis, Terry (Worsley)
Liddell, Rt Hon Mrs Helen
Linton, Martin
Lock, David
Love, Andrew
McAvoy, Thomas
McCabe, Steve
McDonagh, Siobhain
Macdonald, Calum
McFall, John
McGuire, Mrs Anne
McIsaac, Shona
McKenna, Mrs Rosemary
McNulty, Tony
MacShane, Denis
Mactaggart, Fiona
McWalter, Tony
McWilliam, John
Maginnis, Ken
Mahon, Mrs Alice
Mallaber, Judy
Marsden, Gordon (Blackpool S)
Marsden, Paul (Shrewsbury)
Marshall, David (Shettleston)
Marshall, Jim (Leicester S)
Martlew, Eric
Maxton, John
Meacher, Rt Hon Michael
Merron, Gillian
Michie, Bill (Shef'ld Heeley)
Milburn, Rt Hon Alan
Miller, Andrew
Moffatt, Laura
Moonie, Dr Lewis
Moran, Ms Margaret
Morgan, Ms Julie (Cardiff N)
Morley, Elliot
Morris, Rt Hon Ms Estelle
(B'ham Yardley)
Mountford, Kali
Mullin, Chris
Murphy, Denis (Wansbeck)
Murphy, Jim (Eastwood)
Murphy, Rt Hon Paul (Torfaen)
Naysmith, Dr Doug
Norris, Dan
O'Brien, Bill (Normanton)
O'Brien, Mike (N Warks)
Olner, Bill
Organ, Mrs Diana
Osborne, Ms Sandra
Palmer, Dr Nick
Pearson, Ian
Pendry, Tom
Perham, Ms Linda
Pickthall, Colin
Pike, Peter L
Plaskitt, James
Pollard, Kerry
Pond, Chris
Pope, Greg
Pound, Stephen
Powell, Sir Raymond
Prentice, Ms Bridget (Lewisham E)
Prescott, Rt Hon John
Primarolo, Dawn
Prosser, Gwyn
Purchase, Ken
Quinn, Lawrie
Radice, Rt Hon Giles
Rammell, Bill
Raynsford, Nick
Reed, Andrew (Loughborough)
Reid, Rt Hon Dr John (Hamilton N)
Robinson, Geoffrey (Cov'try NW)
Roche, Mrs Barbara
Rooker, Rt Hon Jeff
Rooney, Terry
Ross, Ernie (Dundee W)
Rowlands, Ted
Roy, Frank
Ruane, Chris
Russell, Ms Christine (Chester)
Ryan, Ms Joan
Salter, Martin
Sarwar, Mohammad
Savidge, Malcolm
Sawford, Phil
Sedgemore, Brian
Shaw, Jonathan
Sheerman, Barry
Shipley, Ms Debra
Singh, Marsha
Skinner, Dennis
Smith, Rt Hon Andrew (Oxford E)
Smith, Angela (Basildon)
Smith, Rt Hon Chris (Islington S)
Smith, Miss Geraldine
(Morecambe & Lunesdale)
Smith, Jacqui (Redditch)
Smith, John (Glamorgan)
Smith, Llew (Blaenau Gwent)
Snape, Peter
Soley, Clive
Southworth, Ms Helen
Spellar, John
Squire, Ms Rachel
Starkey, Dr Phyllis
Steinberg, Gerry
Stevenson, George
Stewart, David (Inverness E)
Stewart, Ian (Eccles)
Stinchcombe, Paul
Stoate, Dr Howard
Strang, Rt Hon Dr Gavin
Straw, Rt Hon Jack
Stringer, Graham
Stuart, Ms Gisela
Sutcliffe, Gerry
Taylor, Rt Hon Mrs Ann
(Dewsbury)
Taylor, Ms Dari (Stockton S)
Taylor, David (NW Leics)
Temple-Morris, Peter
Thomas, Gareth (Clwyd W)
Thomas, Gareth R (Harrow W)
Timms, Stephen
Tipping, Paddy
Todd, Mark
Touhig, Don
Trickett, Jon
Truswell, Paul
Turner, Dennis (Wolverh'ton SE)
Turner, Dr George (NW Norfolk)
Turner, Neil (Wigan)
Twigg, Derek (Halton)
Twigg, Stephen (Enfield)
Tynan, Bill
Walley, Ms Joan
Ward, Ms Claire
Wareing, Robert N
Watts, David
White, Brian
Whitehead, Dr Alan
Wicks, Malcolm
Williams, Rt Hon Alan
(Swansea W)
Williams, Alan W (E Carmarthen)
Williams, Mrs Betty (Conwy)
Wills, Michael
Wilson, Brian
Winnick, David
Winterton, Ms Rosie (Doncaster C)
Wood, Mike
Woodward, Shaun
Woolas, Phil
Wright, Anthony D (Gt Yarmouth)
Wyatt, Derek
Mr. David Clelland and
Mr. Clive Betts.
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