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'(6) Before laying before Parliament a draft of an order under subsection (1) or (2), the Secretary of State shall--

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(a) consult the Commissioner, and
(b) publish any written representations made to him by the Commissioner with respect to the proposed order, except so far as those representations contain information which is, or if the order were made would be, exempt information.'.--[Mr. Mike Hall.]

Mr. Straw: I beg to move amendment No. 64, in page 26, line 18, leave out clause 48.

Mr. Deputy Speaker (Sir Alan Haselhurst): With this, it will be convenient to discuss the following: Government amendments Nos. 65 and 66.

Amendment No. 5, in clause 50, page 27, line 27, leave out subsection (7).

Government amendments Nos. 6 and 69 to 71.

Government new clause 6--Exception from duty to comply with decision notice or enforcement notice.

Mr. Straw: I hope not to detain the House long, as the substance of the amendments was debated at some length yesterday evening when we discussed amendment No. 1, which was moved by my hon. Friend the Member for Cannock Chase (Dr. Wright), and earlier today when we discussed amendment No.7, which was also moved by my hon. Friend.

To refresh the recollection of the House, under the original scheme, at the point where the commissioner or tribunal had said that a public authority was not under a duty to disclose information because it was not covered by an exemption or exception under part II of the Bill, there was a procedure for what was described as "discretionary disclosure". The public authority would have to balance the public interest in disclosing the information against the public interest in its not being disclosed. There could be what amounted to an appeal to the commissioner by an applicant whose application had been unsuccessful at that stage, but, as the Bill originally proposed, the commissioner would not make a decision or issue an order, but simply make a recommendation. Hon. Members are aware that, as a result of representations that were made to us, we have changed the Bill, partly in its text and partly by tabling amendments on Report so that the commissioner will have a power to order disclosure subject only to Executive override in the limited circumstances which I described yesterday and to which I referred earlier today.

I shall pick up any questions about the detail of the amendments, but, as they improve the Bill in the eyes of my hon. Friends and, I believe, the House, I hope that there are not too many questions at this stage.

An issue was raised with me about whether I intended to move Government new clause 6 in light of the announcements that I made yesterday that we would amend the scheme in new clause 6. I have considered that, and I understand the argument that some of my hon. Friends have made to me outside the House about that, but I shall now explain why I consider that it is more satisfactory than not to have new clause 6 in the Bill as it goes to the other place, albeit I have given, and shall repeat, the most categorical undertakings that the new clause will be amended in the other place in the terms in which I have given those undertakings.

I suggest that it is our duty to the House to ensure that the Bill goes to the other place properly reflecting the decisions that we have taken, as far as that is possible.

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The Government have put before the House--and this proposition has achieved the approbation of the House--the scheme to amend the original proposal for discretionary disclosure in the manner that I have described. That scheme is balanced by amendments to clause 13, and by new clause 6, which contains the power of Executive override.

I believe that, from the Government's point of view, it would be disingenuous for us to send the Bill to the other place having incorporated the change to the position of the commissioner--who would have a power to make an order for disclosure rather than simply what is at the moment a provision for recommendation--without also having on the face of the Bill the balancing arrangement by which there could, in limited circumstances, be an Executive override. For that reason, we do intend to move new clause 6.

Mr. Simon Hughes: I am following the argument and understand it, but does the Home Secretary accept that it would be equally proper, and equally clear, for him to tell the House, in a way that is reported to the other place, that, in the light of the speech that he made last night and the undertakings that he gave, the Government are minded to change course; that it is therefore pointless to take the time of the House to add things that support the proposition that he is now discarding; and that the House need not be troubled by those because the Government will seek to amend the Bill and, as they have done in relation to other legislation--indeed, in this Session--as it were, draw the line after last night and then come forward with their new proposals? That would be equally proper, and more consistent with the statement that the right hon. Gentleman made last night.

Mr. Straw: It is a matter of balance; there is not a huge issue of principle here, but that is the judgment that I have reached. If the whole of new clause 6 had to be recast, I would think that the balance was the hon. Gentleman's way rather than the way that I have suggested.

However, the following amendments will need to be made to new clause 6 in respect of the undertakings that I have given. In subsection (4)(a),

needs to be redrafted roughly in the terms of clause 23(3), which says

    a Minister who is a member of the Cabinet.

In relation to local authorities, new clause 6 will need to be recast to take account of decisions, and it may be, although I cannot give a firm undertaking on this, that after consultation with my Cabinet colleagues, not least the Deputy Prime Minister, because this should be a matter of collective decisions, and also with the local authority associations--I am not saying that we automatically follow their view, but we need to ask their view--those references to local authorities are removed altogether. The amendments would be easy to make and would be consistent with the basic scheme of new clause 6.

I repeat the undertakings that I gave yesterday. In place of subsection (4)(a), the clause will contain a provision making it clear that the "accountable person" is a Cabinet

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Minister or the Attorney-General, with appropriate other consequential amendments. I have described the situation for local government and said that we shall take our time to reflect on that. However, I well recognise the points that have been made.

11.15 pm

I also told the House yesterday that we would ensure that written into the memorandum of guidance for Ministers was clear guidance as to how they ensured that, except in the area of quasi-judicial decision-making, decisions would be subject to collective agreement. I wish to inform the House that we are giving further and urgent consideration to whether it will be possible to write such provisions into the Bill. If we can do that, we will.

Mr. Simon Hughes: Will the Home Secretary give way?

Mr. Straw: Yes, but I hope that the hon. Gentleman will be brief.

Mr. Hughes: I want clarification. If the Home Secretary is to fulfil what he said last night, he will have to reconsider. More than subsection (4)(a) and the local government clause will need to be amended. He will need to amend subsection (4)(b), which is about Ministers, and the subsection on the Greater London Authority. Does he accept that the amendment will have to be much more significant?

Mr. Straw: I should not have given way, but I said that there would need to be some consequential amendments. The key point is that the scheme of the new clause is contained in subsections (1), (2) and (3) and the accountable person is defined in subsection (4). As I have said, it is a balanced argument.

My final point is that if new clause 6 appears in the Bill for the reasons that I have suggested, it in no sense will prejudice those in the other place or back in this House who want to take a different view about areas other than the one that I have already said that we shall change. For reasons that I have given, and because this is part of a balanced but important change, I hope that the House will accept my explanation for proposing new clause 6.

Mr. Maclennan: I am very much in favour of flexibility on the part of the Home Secretary, and he displayed that last night. However, I am not in favour of legislation on the hoof. His statement tonight on new clause 6 suggests that he thinks that it is better to have a patently defective clause in the Bill, which in no way conforms with his expressed intention, than it is to have a lacuna to be filled. I do not understand the logic of proceeding in that way.

Furthermore, I suggest that the new clause is defective because it makes a presumption that is counter to what the Home Secretary said last night. He said that he would consider various ways of giving effect to his decision. That includes even the possibility that a decision to withhold information following the use of Executive override might take place along the lines of other countries that use Executive override, such as introducing it by order. Of course, there is no provision for that in new clause 6.

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It would be wrong to send a signal to the other place that new clause 6 in any way reflects the Government's considered view on how they might exercise in practice their Executive override provisions. Because the new clause is so obnoxious, it would be reasonable to withdraw it now. It no longer reflects the Home Secretary's thinking.

In his remarks tonight, the Home Secretary has stepped back a little from what he said last night.

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