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Mr. John Greenway (Ryedale) rose--
Mr. O'Brien: I shall give way to the hon. Gentleman, who is helpful on many occasions. I have noticed, as he must have done, that now that the Opposition have suddenly found an interest in freedom of information, they have removed him from his former position--he who was in many ways far more expert than others in dealing with such matters.
Mr. Greenway: I was not so much removed as sidetracked elsewhere, to a job that I much enjoy. In view of the Under-Secretary's ministerial responsibility for the Bill, he will have followed its progress in the other place a little more closely than I have. In response to his comments on appeals, I put a simple, straightforward question to him. Am I right to believe that, in the end, it will still be up to a Minister to decide whether information should be released?
8.30 pm
Mr. O'Brien: No, the hon. Gentleman is not right. A process is involved, rather than the decision of an individual or a Government. He will know from the Bill's structure that an application can be made and, if there is no exemption, in most circumstances there will be an obligation to provide the relevant information. However, if the public interest test applies, a decision would have to be made as to how it should apply, and that may involve a public authority that is controlled directly by a Minister. Normally, therefore, I suspect that the decision would have to be made by a Minister.
However, if there were an objection to that interpretation of the public interest, an application could be made to the Information Commissioner, who may take a view on the matter. If the Minister disagreed with that view, the matter could be referred to a tribunal, which may also take a view. By that stage, the matter would no doubt become of considerable public interest. If the Minister sought to maintain an exemption, he would have to consult colleagues and would no doubt have to deal with a debate in the House or questions that might arise. He would have to defend the position before the House.
The overall decision would involve not so much the decision reached by a Minister, but a process during which a debate about the nature of the public interest would take place.
Mr. Greenway: I am grateful to the Minister for giving way once more, because I think that his answer is yes, rather than no. I understand his argument, but he said, in effect, that a recommendation or an observation from either the commissioner or the tribunal that the information should be released would not involve the compelling argument that they could require, or would have the power to require, the Minister to release the
information. For all the trumpeting of an agreement with the Liberal Democrats, the Bill is fundamentally the same as it was when it left Committee because the commissioner and the tribunal would have no power to compel release.
Mr. O'Brien: In most respects, the hon. Gentleman is wrong. Wherever there is a public interest in knowing the information, the public will have a right to know it. The Bill contains safeguards lest any Minister seeks to determine the public interest in a way that is contrary to that interest.
We have listened to the debate, and amended and developed the Bill so that it contains substantial safeguards against abuse by any Government, Minister or anyone else who might seek to use it in a way that is not intended. Our consideration of the Lords amendments should show that the Bill has been strengthened, not least by the change in the way in which the balance of the public interest test will be determined. It will be determined on the side of openness when there is a fine balance about where the public interest lies.
The amendments have strengthened the Bill in many ways.
Tony Wright (Cannock Chase) rose--
Mr. John Bercow (Buckingham): Will the Minister give way?
Mr. O'Brien: I shall first deal with those amendments that I have not yet discussed. [Interruption.] I am afraid that I had not noticed my hon. Friend the Member for Cannock Chase (Tony Wright) rising to intervene. I am happy to give way.
Tony Wright: I assumed that it was due to sheer inattention, rather than to anything worse.
I am finding it difficult to get my mind around Lords amendment No. 4, which would insert a new section 2, and I would like my hon. Friend to explain. The arrangement that I understand was made with Liberal Democrat peers is susceptible to contrary interpretations. They tell us that they have fundamentally transformed the Bill; they say that they have managed to insert what amounts to a prejudice test into the Bill as a whole. On the other hand, I have heard Government spokesmen in the other place say that what is proposed amounts to no more than the arrangements that operate in the event of a tie break--arrangements determining how the balance will be struck, in the public interest, between disclosure and withholding in the fine cases concerned.
Are we talking about something marginal, or about something fundamental?
Mr. O'Brien: We are talking about something which, as my hon. Friend suggests, has been stated by the Government in another place. In the case of a fine decision about the balance of the public interest and where it lies, the way in which the decision is reached errs on the side of openness. As far as I can see, that constitutes a strengthening of the Bill, although some might seek to claim that the strengthening was greater than it is. As far
as the Government are concerned, the proposal helps, and makes the Bill more open; but some in another place may well have felt a need to overstate their case a little in order to justify what they had decided to do.
Mr. Bercow: Further to his answer to my hon. Friend the Member for Ryedale (Mr. Greenway), will the Minister simply accept what we know to be a fact: that there are now more exemptions in the Bill than there were in either the draft Bill or the White Paper? Will he confirm that when he talks of strengthening the Bill--he has used the phrase twice in the last five minutes--he is referring to strengthening the power of the Executive, and most assuredly not to strengthening the power of the citizen?
Mr. O'Brien: With respect to the hon. Gentleman, that is nonsense. What the Bill will do is strengthen the right of those who want more openness in government to secure more openness in government. The measure will change the culture not only in Whitehall, but in the public sector as a whole. It will open up that culture, and end the secrecy that the last Government accepted. Having promised a freedom of information Bill in its 1979 manifesto, the Conservative party simply dropped that, and made do with a code of practice that had no statutory effect whatever. As a result, there was a continuous culture of secrecy in Whitehall, which led to the BSE crisis and other problems. The hon. Gentleman may well laugh at those problems, but many people know that the Conservative party governed in a culture of secrecy and contempt for the public and the electorate.
As I said, Lords amendment No. 4 makes a difference in "tie break" circumstances, but it also sends a powerful signal to the public in favour of openness. That is what this Government want to do. We promised to introduce a Bill dealing with freedom of information. We have done it. The previous Government promised to introduce one and failed singularly to do so.
Sub-amendment (a), tabled by the Liberal Democrats and others, would provide that the public interest in disclosing information relating to accident investigations, or proceedings relating to health, safety or welfare of persons or the protection of the environment, would always outweigh the public interest in maintaining the exemption, unless to do so would result, or would be likely to result, in prejudice to any particular investigation or proceeding. The effect is to convert clause 28 into a prejudice-based exemption in relation to information collected for investigations or proceedings.
I understand why the supporters of the amendment wish to be clear that information in that vital area will not be withheld lightly. I understand the concern. There is no real difference between our overall aim and theirs: openness, for example, in a BSE-type case. The problem in the BSE case was that information was incomplete. To some extent, Ministers at that time put themselves in a position where they were giving information selectively and massaging the type of information that was put in the public arena.
What both the supporters of the amendment and I will agree on is that, had information been available in that case, it should have been in the public domain because the public have an interest in knowing about that. As drafted, our public interest test in the new clause after
clause 1, which Lords amendment No. 4 provides, is a strong protection against such refusal to disclose. On our provisions, I do not accept that there is any realistic risk that BSE-type information would be kept secret.
Helen Jackson (Sheffield, Hillsborough): Will my hon. Friend give way?
Mr. O'Brien: I am conscious of the time, but I will give way once more and then make progress.
Helen Jackson: My hon. Friend has mentioned the BSE example a couple of times. Will he explain a little more exactly why, given that the new amendments have gone through the other place, he is certain that the type of secrecy that prevented some of us getting straight answers to numerous parliamentary questions in the previous Parliament would not arise again--that we would not come up against the same barrage of defensiveness and secrecy?
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