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Miss Widdecombe: The right hon. Gentleman is making an extremely helpful speech. He talks about the power of the commissioner. Perhaps he suggests that a limitation of that power would be somewhat equivalent to an Order in Council. Our suggestion is for a very senior and carefully balanced parliamentary Committee. Will he comment on that before he brings his remarks to an end?
Dr. Clark: I was keen, when drawing up the White Paper, that we should try to involve Parliament. I also wanted a simple procedure. I felt originally that, if there were any appeal system to the Information Commissioner, it should involve a Select Committee. I eventually rejected that approach for the simple reason that it was pointed out to me that data protection operated through a tribunal system, and that, in any event, there might be appeals from the Select Committee to the legal system. I do not have a completely closed mind on the issue, but I feel that Ministers should not have the final say. I hope that my right hon. Friend will consider the matter.
On the issue of policy advice, I take hope from my right hon. Friend's initial statement. I believe that the people of this country elect a Government to govern; therefore, it is important that the Government can govern. It is equally important that not every decision is taken in a goldfish bowl. I can understand why advice on current issues between Ministers and their advisers should not be made public. However, I do not understand the exemption of background material--by introducing an exempt category, we are possibly defending publicly weak Ministers and weak advisers. I find that strange, because I am of the view that the Home Secretary is an efficient Minister. I have already said that he is an open Minister. He is also on top of his job.
I am sure that my right hon. Friend would have no hesitation in making available much of the background, analytical and factual information. Not only should Ministers do that, but such information should be available much more openly across government. I would have no hesitation in accepting that every paper relating to my time in the Cabinet Office should be made available. I have nothing to hide. If Ministers and their advisers felt that, at some time in the future, their advice--honestly and openly given--together with the background papers that they drew up, should be made available--this has been the experience overseas--there would be a better quality of advice. That relates to both factual and analytical material.
I know that my right hon. Friend has said that he might be prepared to move on this issue if we can put forward sufficiently clear wording and a sufficiently cogent case. The right hon. Member for Maidstone and The Weald has said that the code came up with a form of words. It may not be appropriate, but it could probably be adapted.
Another powerful point was made by my hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne). In the Select Committee in another place, Lord Butler, who has a great deal of experience of these issues, said, "It can be done." We take encouragement from my right hon. Friend's words and I hope he will listen to the House. We want this Bill to work. It will last us well into the next millennium and it gives us a new opportunity.
The Government rightly take a great deal of credit for the major constitutional changes that they have made through devolution and right across the gamut. The constitutional change represented by the Bill is probably more important and will probably affect more of our citizens than any other legislation that the Government are likely to introduce.
Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross):
It is a great pleasure to follow the right hon. Member for South Shields (Dr. Clark) in the debate. All those concerned about freedom of information would wish to pay the warmest tribute to him for his role in introducing the legislation. In the name of freedom of information, he revealed that he had won the hearts and minds of his colleagues in Cabinet for the White Paper for which he was responsible. In the discussions that he had with the Liberal Democrats following the election, he had no difficulty in reaching a consensus about what should be done.
Like the right hon. Gentleman, I am puzzled by the transformation that has come over the Government on the issue. Many of the points to which he drew attention mirror our concerns and are matters on which we wish to make progress during the passage of the Bill. I hope that the Home Secretary is as open-minded as his right hon. Friend suggested about the possibility of doing that.
We recognised from the start that the Bill has good points. We welcome the establishment, for the first time, of a statutory right to information in place of the previous effective presumption in favour of secrecy. We also welcome the scope of the Bill, which goes much further in its coverage of public authorities than any of the non-statutory codes or guidelines for which the previous Government were responsible.
We appreciate the Government's offer of consultation, which led to some changes in the Bill. That was preceded by discussion in Select Committees in both Houses and an extensive trawl of public opinion. That has resulted in a reduction in the time within which public authorities will have to reply to requests for information. We welcome the fact that reasons for refusals must be given, and we welcome the removal of some of the more ridiculous clauses such as the proposed gagging clause that sought to control the further use of information by those to whom it was disclosed.
However, that welcome must be heavily qualified by the fact that the Bill for which the Home Secretary was responsible and, which has been considerably amended, appeared to be almost paranoid in its approach to official secrecy and would have been counter-productive to its stated objective of promoting openness.
What has replaced it may not have the same characteristics, but in some significant respects it is deeply disappointing. It bears no comparison with the Government's progressive White Paper, or with the
principled rhetoric that the Government deployed in support of openness while in opposition. Many of us feel baffled and mystified about how such a timid measure could have resulted from 25 years of Labour party commitment--not to speak of the commitment of my party and others--to effective freedom of information legislation. Some 80 or 90 organisations support the Campaign for Freedom of Information. The Home Secretary is aware of the extent of the disappointment that the Bill provokes.
Mr. Gordon Prentice (Pendle):
I have in my hand the Prime Minister's answer to a written question, which gives me information on how many times the Cabinet Joint Consultative Committee has met. What was on the agenda falls within the ambit of the Official Secrets Act 1911. When the Liberal Democrats had discussions with the Prime Minister after the general election about setting up the new Joint Consultative Committee, what strictures were placed on the Prime Minister by the Liberal Democrats with regard to open government considerations?
Mr. Maclennan:
Following the election, responsibility for such matters lay with the right hon. Member for South Shields. We were entirely ad idem, if I may use a lawyer's expression, with him. As he spoke for the Government, we were delighted to think that we were of one mind.
It is difficult to take seriously the rather bizarre motion tabled by the official Opposition, who have been staunch opponents of freedom of information legislation for as long as I can remember. No significant Conservative voice has been raised in support--[Interruption.] I exempt the hon. Member for Aldridge-Brownhills (Mr. Shepherd), who is to some extent a semi-detached member of his party. He is scarcely enough to provide the Opposition with a fig leaf for the consistency of their opposition to the possibility of such legislation.
Perhaps the incident that created the greatest public awareness of the importance of the issue was the nexus of events connected with arms to Iraq and the Scott report. Even at the time, when the then Government were under enormous pressure, the then President of the Board of Trade stated during the debate in the House on the Scott report that it was the Government's view that a freedom of information Act was
Before considering the detail--I shall follow closely the line of argument of the right hon. Member for South Shields--it is important to consider the purpose of the Bill. The Home Secretary has spoken of the legislation transforming the relationship between citizen and state, and I go along with him in seeking that.
Confidence in the relationship between Government and the citizenry is declining. In particular circumstances, it is right that, in their dealings with the state, people should be able know why public authorities make the decisions that they make. Parents applying for a place in a local school, people applying for a grant or benefit, or business people tendering for a public contract should know the criteria against which they are being judged and, as a result of openness, should know that those criteria are being applied fairly.
At higher levels of government, real openness could play a significant part in rebuilding people's faith in government and in increasing participation in debate. Plainly, the public, Parliament and the organisations that represent the public should know more about the factual foundations upon which policy decision are based.
We do not contend that thousands of interested citizens will pore over the background reports to Government decisions, but we do say that interested organisations, such as the Consumers Association, Shelter and the Patients Association, should be able to judge whether the Government base their decisions, policies and actions on sound information. They should be able, through their campaigns, to inform the public what is going on and the reasons for it.
That would help to increase the Government's responsiveness and the fact that such factual information is being made available would enhance the carefulness with which it was presented to Government and so improve the quality of government. That view has been stated again by Lord Butler, someone not notably open in his approach. I well remember his appearances before the Public Accounts Committee, which considered him one of the less communicative permanent secretaries. Even he seems to have been willing to recognise not only the possibility but the desirability of opening up factual information.
Once again, there has been talk about the possibility of openness bringing about a new political culture. If there is to be a new political culture, it will have to come about as a result of something much more remarkable than the Bill. I endorse what has been said about the complexity of its drafting, although I disagree with the former Attorney-General's view that responsibility lies with the Home Secretary. Responsibility for parliamentary draftsmanship used to lie rather more with the Law Officers, and there was no notable improvement in the standards of parliamentary draftsmanship when the Attorney-General was a Law Officer.
The Bill is peculiarly serpentine and byzantine in its construction. It does not lend itself to being described as a clarion call for greater openness. The point that I made in an intervention, to which the Home Secretary was kind enough to reply earlier, about the attitudes of Government and what they are doing about it is not wholly answered by the listing of some particular examples of his own openness. I have known the Home Secretary long enough to know that he is anxious to ensure, and has madea personal contribution to ensuring, that statistical information is provided in an objective and open fashion, but he must know that that is not sufficient to bring about the change in culture to which he hopefully referred.
Civil servants throughout the entire machine require something along the lines of a Cabinet secretary memorandum encapsulating the Government's philosophy of openness--if it is a philosophy that they embrace--a philosophy that has the imprimatur of approval from the head of the civil service and goes wider than the woolly statements about cultural change that have come from those on the Government Benches tonight.
The Government's White Paper contained language that showed an impressive level of vision and commitment, but the sight of the Government in full flight from that White Paper provides a less-than-convincing inspiration for change. A grudgingly conceded enactment is scarcely the clarion call that is needed.
I am genuinely puzzled by why the Home Secretary has backed off from the Government's broader commitments and watered down the measure in the manner that he has. I do not know what he thinks he has to fear from enacting the kind of measure that would have been consonant with the White Paper. He is perfectly capable of dealing with criticisms flowing from greater public knowledge of the factors being considered in policy making. His colleagues are as capable as any Ministers in the 32 years that I have been a Member of the House, and those that are not will quickly and properly be extruded from the system. The Government are quite capable of standing up to such debates and arguments, which would be fortified because they revealed the true basis of policy. The Home Secretary's approach is genuinely inexplicable. It leads me to hope that he may be susceptible to argument during the Bill's passage.
One of the points mentioned by the right hon. Member for South Shields was the purpose clause. I welcome the rejigging of the Bill to set out the rights in clause 1, which gives them a certain primacy. However, that does not go nearly far enough; nor does it reflect the thinking that was present in such a clause in New Zealand in particular, from which the right hon. Gentleman clearly drew inspiration. In clause 4 of their legislation, the New Zealand Government undertook progressively to increase the availability of official information to the peopleof New Zealand. That was a rubric against which Government measures could be judged and which could be of assistance to the ombudsman in interpreting particular circumstances in the courts.
The small changes that the Home Secretary has made to the Bill's long title and the movement of the right-to-know clause do not go far enough, and I hope that more can be done along the lines of the Public Administration Committee's recommendation to bring forward an explicitly stated presumption in favour of disclosure.
There has already been some debate about the powers of the Information Commissioner. It is perfectly possible for the Home Secretary to develop his interventions to point out the extent to which he has powers. We shall no doubt consider that in detail during the Bill's passage. It is also true that the commissioner is a moral force in favour of openness at the heart of public administration. It is her role--we know that it will be Elizabeth France--to advocate the cause of freedom of information, and push and prod reluctant Governments and public servants towards that goal. That moral role needs to be backed by effective legal authority. Where there is a question about where the public interest lies, she should be the person who is enabled to order disclosure in most circumstances.
I have heard the Secretary of State say that Governments and Ministers are elected to take decisions and that such decisions should not be put into commission, but to take that principled stand is to knock fatally the possibility of there being an independent reference point for judgment of where the public interest lies in respect of disclosure. Ultimately, it makes it a matter of discretion for Ministers. It makes it a political case that their right not to disclose should be more powerful than the public interest in disclosure.
It is true that Secretaries of State have the constitutional right to decide issues, but they do not have the constitutional right, even under the conventions of our system, to wrap up those decisions in such a way that they cannot be called to account for their decisions. Any decisions that they make should be made in the full light of knowledge about how those decisions have been reached. I believe that, in addressing that issue, it would be sensible for the House to follow the New Zealand example.
The Scottish Executive has come to the same conclusion, and relevant proposals have been made in Scotland. Although the Home Secretary might dislike those proposals as much as he disliked the White Paper, at which he has whittled away, I hope that he is not proposing to intervene in Scotland, to claw back in any way the devolved power to decide. I take it from his extolling of the virtues of devolution, when asked about the subject earlier in the debate, that he would regard such intervention as improper.
It is perverse to do as the Bill suggests--to leave the power of deciding where the public interest lies with those who might be at most risk of criticism if disclosure were to follow. It is extremely unlikely that the public interest in disclosure would be the conclusive factor for those who might fear being caught out for squandering public funds, breaking promises, ignoring reports of child abuse or endangered patients because of incompetent cancer screening, to take some of the examples mentioned by the Campaign for Freedom of Information.
The proposal to limit the Information Commissioner's power seriously reduces the worth of freedom of information as a means of scrutinising the public service. Moreover, the power to order disclosure in the public interest is even more essential because of the way in which the Bill has been structured, particularly the very broad and numerous exemptions to the right to information that it provides.
Obviously, freedom of information legislation must protect certain sensitive information that might harm the national interest: on the detection and prevention of crime; national economic interests; information given in confidence; and various other interests. However, it was the White Paper that said:
"not the right way towards a fundamental opening up of government."--[Official Report, 26 February 1996; Vol. 272, c. 594.]
Following the speech of the right hon. Member for Maidstone and The Weald (Miss Widdecombe), I am left in no clarity of mind about the official Opposition's attitude. She seems to be twitting the Home Secretary for not having gone far enough, but fundamentally her position and that of her party seem not to have changed. The official Opposition are hostile to the idea of a freedom of information Act and will therefore vote against the Bill tonight. We shall have great pleasure in voting against the right hon. Lady.
"we do not propose that the Act should contain exempt categories at all, but rather that disclosure should be assessed on a contents basis."
If there has been one U-turn more spectacular than all the rest, it has been the structuring of the Bill in that manner, with those exempted categories, completely reversing the thrust of earlier proposals.
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