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Several hon. Members rose--

Mr. Gill: Will the right hon. Gentleman give way?

Mr. Straw: No. I shall make progress, and then I shall happily give way. I have already given way many times.

Another major difference between the Government's approach and that of the Opposition is that the Bill forms a coherent part of our overall programme of constitutional reform, which is the most extensive such programme this century. Our programme includes devolution to Scotland, Wales and--now, happily--Northern Ireland; new standards of conduct for political parties; and--most importantly in the context of the Freedom of Information Bill--the Human Rights Act 1998.

Mr. Gill: Will the right hon. Gentleman give way?

Mr. Straw: I said that I shall not give way for now.

The 1998 Act sets out the European convention's statement of basic rights. Some of those rights are absolute--such as that provided in article 3, guaranteeing freedom from torture or degrading treatment. The rights with which we have had to wrestle in the Freedom of Information Bill are not absolutes, but have to be balanced one with another. Article 10 gives a right to freedom of expression, but that has to be set against article 8 on the right to respect for a private life.

We have therefore sought in the Bill to secure a balance between the right to information needed for the proper exercise of the freedom of expression and the--directly conflicting--right of individuals to protection of

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information about themselves; the rights that institutions, including commercial companies, should have to proper confidentiality; and the need for any organisation, including the Government, to be able to formulate its collective policies in private.

Clause 1 states:

That right is overseen by the Information Commissioner and the Information Tribunal.

I should like clearly to make this point, as there has been huge misunderstanding about the commissioner's powers. The commissioner and the tribunal have the last word on whether information is or is not exempt, and on whether any prejudice is caused sufficiently to justify non-disclosure. In the sphere of policy advice--dealt with in clause 34, and other than for central Government--the commissioner and the tribunal have the last word on whether the authorised person's opinion is reasonable.

Only if the commissioner and the tribunal agree that information is exempt, and that the public authority is therefore under no duty whatever to publish, does the discretionary disclosure power and duty under clause 13 arise. In such a case--for reasons that I shall be happy to explain--the power of the commissioner and of the tribunal is limited to a recommendation, albeit a very powerful one.

Mr. James Clappison (Hertsmere): Will the Home Secretary explain why, in clause 33, central Government are exempting from the disclosure requirement information held by themselves, even when disclosure of that information would cause no prejudice to anyone? Why are the Government--to adopt the Home Secretary's own phrase--insisting on unnecessary secrecy?

Mr. Straw: We are not insisting on unnecessary secrecy. It has been accepted by people on all sides of the argument, and in all sensible freedom of information regimes of which I am aware, that policy advice and information on policy formulation--the way in which Ministers communicate with their private office, for example--should be exempt. We have therefore said that it should be exempt.

Miss Ann Widdecombe (Maidstone and the Weald): Will the right hon. Gentleman give way?

Mr. Straw: I am answering the question asked by the hon. Member for Hertsmere (Mr. Clappison), and then I shall give way to the right hon. Lady.

We are therefore saying that such information should be exempt. However, the issue of whether information should come within that exemption will be for the commissioner. If a Minister were foolish enough to say that a piece of information that should not be classified should be so classified, the commissioner would be able to see the information and to make a decision. Moreover, even when the commissioner, backed by the tribunal, decides that the Minister is correct in asserting that the information is exempt, the Minister is still under a duty,

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imposed in clause 13, to consider whether--using the balancing test, which tips the balance strongly in favour of factual information--to issue it.

The commissioner will be able to make a recommendation in such cases, and my belief is that it would be very unusual--not impossible, but unusual--for such a recommendation to be overridden.

Miss Widdecombe: No one will argue--no one has ever done so--that internal advice in the form of a judgment submitted by a civil servant to a Minister should be published. That would rapidly make government unworkable. However, judgments and recommendations are made on the basis of factual material, which is sometimes statistical, and sometimes constitutes other sorts of information. By gathering all the information under the class exemption, it is possible to resist publishing not only the advice but the information on which it is based.

Mr. Straw: I understand the point, but if the right hon. Lady will bear with me, I shall deal with the question of whether it is possible to disentangle factual information and analysis from policy advice. We have not closed the door on attempting to find a sensible way of doing that.

Mr. Alasdair Morgan (Galloway and Upper Nithsdale) rose--

Mr. Ronnie Campbell (Blyth Valley) rose--

Mr. Straw: I shall give way first to the hon. Member for Galloway and Upper Nithsdale (Mr. Morgan), and then to my hon. Friend.

Mr. Morgan: On the harm test, the Secretary of State will know that his opposite number in Scotland, who is not in the same party, plans to introduce a test of substantial prejudice rather than prejudice. How will that affect clause 26, which covers the relations betweenthe Westminster Government and the devolved Administrations? The Scottish Executive are not a public authority under the Bill. Could there be circumstances in which the Westminster Administration refused to publish details of their relations with Scotland because they considered such publication prejudicial, whereas the Scottish Executive published them because they did not believe that publication would be substantially prejudicial?

Mr. Straw: I doubt whether that will happen. The Scottish Executive document presents only proposals at this stage, and we await the small print, which is always important. While the commissioner has the power to order the publication of information when we can only make a recommendation, annexe C deals with the problem for Ministers in Scotland by providing for an Executive override--not once, not twice, but 15 times. We have not made such a provision. The whole document, not simply part of it, should be read.

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On the hon. Gentleman's more substantial point about the transmission of information, it is settled that the copyright is in the hands of the originator, so the release of information that originated with us would be a matter for Westminster. The same would apply to Scotland.

Mr. Campbell: Imagine a civil servant who gives information to a Minister on a subject as important as BSE or guns to Iraq. During the deliberations of the Select Committee on Public Administration, its members said that we should try to discover hidden secrets, of which there were many under the previous Government, and get hold of information before it could be covered up. BSE was covered up under the previous Government. Will the Bill prevent such information from being concealed at the stage when discussions take place between civil servants and Ministers?

Mr. Straw: No freedom of information regime is a cure for bad government. America has the most extensive freedom of information regime, yet Government improprieties happen there more frequently than here. It is possible to make parts of a freedom of information regime self-defeating. We want to ensure that that does not happen here. In the United States, information is sometimes simply not recorded because people wish to avoid its exposure. Under those circumstances, the trail of accountability does not exist. When I was given bits of paper--they were hardly submissions--to sign late last year and early this year on what became known as Mitrokhin, I noted them, ticked them and recorded the date on which I had seen them. That is the way in which Ministers ensure that they are held to account. When I was asked when I had seen the information I could not immediately recall the exact date, although I recalled that I had seen it. The file was sent for and I was able to report--not to the House, because it was during the recess--within two days exactly what information I had seen. That is now being submitted in text to the Intelligence and Security Committee.

If we go too far, as we have seen with other Administrations, those ticks would not be on the documents, because the Minister would not be willing to say whether he had seen the information. I think that my hon. Friend the Member for Blyth Valley (Mr. Campbell) said that when he went to Australia he was told rather cynically by officials there that they had two devices for getting round what they thought was over-elaborate freedom of information legislation. One was to put documents on a trolley and wheel it into the Cabinet room. Those documents then became Cabinet documents and were exempt, as though they had been sprinkled with holy water. The second device was to make extensive use of post-it notes. That is a way of undermining the accountability of Ministers and I do not want it repeated here.

I have given an extensive answer to my hon. Friend, but I should like to deal with arms to Iraq and BSE as well. I have thought carefully about the issues and I do not believe that an FOI regime--that which we propose or any other that I have seen--would have guaranteed that either situation would not have come about. It is possible that in the arms to Iraq affair, the challenge on whether information should have been withheld on what turned out to be spurious national security grounds--which had to take place when there was a challenge to a public

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interest immunity certificate in court--might well have taken place earlier before the Information Commissioner. That might have ensured that some of the injustices that followed did not happen or were halted earlier.

As for BSE, I draw to my hon. Friend's attention not just the provisions in the Bill, but the measures that the House has already passed under the Food Standards Act 1999. The Food Standards Agency has been given extensive powers on the disclosure of information, including aspects of policy advice.

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