Previous SectionIndexHome Page


Mr. Gill: The hon. Member for Thurrock (Mr. Mackinlay) challenged us to produce evidence of information being withheld and talked about allegations of torture. Last week, I asked the Foreign Secretary which member countries of the Organisation for Security and Co-operation in Europe, of which we are one, had failed to eradicate torture. The Minister who replied did not give me the answer that I was seeking. He would not say which countries had still not prohibited torture, but simply said that instances of abuse persisted in many parts of the region. I seek clarification from the Home Secretary. Does he believe that passing the Bill would alter that situation and would oblige the Foreign Secretary to tell me in which OSCE countries torture still persisted?

Mr. Straw: I cannot arbitrate in the matter of the hon. Gentleman's specific example. If he feels aggrieved as a result of the answer that he has been given, he should be aware that he would have significant powers under the Bill--greater than he currently has. I imagine that the Foreign Secretary would justify his refusal to make such a disclosure under clause 25, on the grounds that it would be likely to prejudice relations between the United Kingdom and any other state. The hon. Gentleman would then be able to challenge whether the information came within the exemption. Even if it did, he would be able to rely on clause 13, possibly backed by a recommendation in favour of disclosure by the commissioner, to require the Secretary of State to look again at the refusal to disclose the information. I am happy to give the hon. Gentleman that reassurance.

Mr. Giles Radice (North Durham): Many Labour Members have been in favour of freedom of information legislation all our parliamentary lives, so we very much welcome the Bill--particularly in its strengthened form. As I understand it, the Information Commissioner has the right to recommend publication in almost all cases. However, in certain cases, the Minister is able to resist that recommendation.

Miss Widdecombe: In all cases.

Mr. Radice: Well, I would like it explained why that should be so.

In addition, we can all understand the case for keeping policy advice confidential. Is it not possible to separate policy advice from the information behind that policy advice?

Mr. Straw: On my right hon. Friend's second point, we have not yet found a formula which safely does as he asks, although I am happy to continue the search for one.

The question of the powers of the commissioner has been the subject of some misunderstanding. Clause 1 lays down the right to know for citizens. Part II sets out

7 Dec 1999 : Column 724

circumstances in which information can be exempt from that right to know. In some cases, information is exempt as a class--the best example of that is national security. In many other cases, it is exempt where it is subject to a harm test. Generally, this is a test of prejudice, but in some cases--for example, in respect of health and safety--it is a matter of whether the release of that information would seriously endanger the health and safety of an individual.

In one case where policy advice is concerned, that, too, is exempt as a class. Under clause 34, the exemption is subject to certification by a qualified person. In each of those cases--as set out in clauses 50 to 55 and the schedules--the commissioner has not just a power to recommend, but a power to enforce the decision which he or she makes to require the publication of information.

So far as those areas covered by a class exemption are concerned--including clauses 33 and 34--if the commissioner says that he or she does not accept that the information comes within that class--[Hon. Members: "Ah!"] But the right hon. Member for Maidstone and The Weald has just accepted the need for a class exemption for policy advice and for national security. If she is saying that that is not needed, I look forward to hearing from her. That has always been the position that she has adopted in the past.

So far as a class exemption is concerned, it is for the commissioner to say whether or not the information comes properly within that class of information. So far as those areas covered by part II are concerned, and where there is harm test, the commissioner can substitute his or her judgment on whether harm will be caused for the judgment of the Minister. The commissioner's decision is final, subject only to appeal to the tribunal. There are extensive powers of enforcement and offences created for failing to comply with the orders of the commissioner.

It is only where the tribunal and the commissioner have themselves said that the Minister is not under a duty to release the information that the issue of discretion arises. However, even though the Minister or public authority is not under a duty to release the information, the Minister is under a duty to consider releasing information, and the commissioner can make a recommendation to that effect.

One of the issues that has been raised is whether the commissioner should have the final decision, even in respect of himself or herself. We can discuss that more in Committee. Scotland has said that the commissioner has the final decision, but has then said that the Executive can override that decision. I would suggest to the House that that is a distinction without a difference.

Sir Nicholas Lyell (North-East Bedfordshire): Will the Home Secretary give way?

Mr. Straw: Since I have been on my feet for 34 minutes and I know that many other Members wish to speak, I will, if I may, make some progress. I will then happily give way to the right hon. and learned Gentleman.

I want to deal with some of the areas where we have moved away from the White Paper. The White Paper proposed a test of substantial harm but the Bill uses a test of prejudice. The consultation exercise is instructive here. In the end, of course, we have to weigh the quality of an argument, not the quantity of the responses to it, but, as it happens, of those who commented on the substantial harm test, the majority raised objections.

7 Dec 1999 : Column 725

There may be some who say that the views of, for example, the Confederation of British Industry, can simply be brushed aside; but we do not. We do not always agree with it, but it set out an argument against the substantial harm test clearly and cogently. It said:


Similar arguments against the use of a relatively ill-defined adjective such as "substantial" can be made in respect of many other areas, not least law enforcement, so we moved away from the substantial harm test, but in other important ways the Bill is more open than the White Paper.

We have introduced the tribunal, so that an applicant has a quick and cheap way of appealing against the commissioner's decision. We have extended the coverage of the Bill beyond that proposed in the White Paper, to include the operational activities of the police and Parliament itself. Overall, although the package proposed in the White Paper has been changed, there are many instances in which the balance has moved towards a greater openness rather than in the other direction. That is well illustrated by the nine-page grid annexed to the latest report of the Public Administration Committee.

The proposals for Scotland are at an early stage and we look forward to the detail. It is of the essence of devolution that institutions do things differently. I am pleased to say that I enjoy constructive relations with Members of the Scottish Parliament and members of the Scottish Executive, both Labour and Liberal Democrat, and long may that continue, but, in the end, the separate institutions may come to different views, and we should not shy away from that. We should celebrate the fact that, in this United Kingdom, a Union of diverse nations, we can none the less accommodate such differences.

The Bill has been compared with the Irish Freedom of Information Act. Again, it is a matter for each state to determine for itself what legislation to enact, and Ireland has reached a view different from ours. The commissioner in Ireland can order disclosure in the public interest, although in key areas--as is proposed in Scotland--that is subject to ministerial override. In many areas, the Irish legislation is less open than the Bill. There is no access to information created before the Irish legislation came into force, whereas the Bill is fully retrospective, and the legislation in Ireland does not cover the police service at all.

The Bill will lead to cultural change throughout the public sector. There will be more information about how health authorities, local councils and the police deliver services. It will give citizens a right to know and a right to appeal to the commissioner if they do not get the information that they have sought. That is a fundamental change in the relationship between the citizens and the state.

Sir Nicholas Lyell: No doubt inadvertently, the Home Secretary mis-stated the law and what happened in relation to public interest immunity certificates in the

7 Dec 1999 : Column 726

arms to Iraq matter. The issuing of the certificates was not misdone, as Sir Richard Scott subsequently informed the House on 6 May 1996. The tests for PII, introduced after consultation on 18 December 1996, were tests of real harm or serious harm. The test of prejudice is a much weaker test.


Next Section

IndexHome Page