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Sir Nicholas Lyell: There has been some mention in the debate of Matrix Churchill and Scott matters. As the right hon. Gentleman will recall, those matters--with the
strong support of the then Opposition--did away entirely with the idea of class claims, which the Government are now resuscitating.
Mr. Maclennan: I remember that, but I do not recall the right hon. and learned Gentleman being very enthusiastic about the proposals.
Sir Nicholas Lyell: I am afraid that the right hon. Gentleman's power of recollection is rather poor. I refer him to Hansard, 18 December 1996, column 949.
Mr. Maclennan: I pride myself on having quite a good memory, but I cannot remember that particular column. Nevertheless, I shall refresh my memory of it.
The debate on exempt categories has gone backwards. The White Paper proposed seven exempt categories and the draft Bill proposed 22--incidentally, the previous Government's non-statutory code had 15--but the Bill has 24 exempt categories. Furthermore, the Bill provides a power to increase the number, which, given the rate of multiplication that we have seen, must concern us all.
The class exemption applicable to all investigations that might lead to criminal prosecutions may entail that, in future, other families such as the Reels and the Lawrences who want information about the investigation of their child's death could be turned away. That is only one potential problem. One could think of many worrying possibilities in which public health and safety would not provide sufficient reason for opening up access to important information.
Some people may recall the food poisoning outbreak in 1996 in Lanarkshire. I wonder whether the facts in that case could have been kept under wraps because of the possibility of a prosecution. I wonder, similarly, whether Health and Safety Executive investigations into rail accidents will be kept confidential because they might lead to prosecutions.
A report detailing the sale of substandard or dangerous products might also be concealed, under the exemption category of prejudice to a person's commercial interest, on the mere evidence that customers might switch manufacturers if they became aware of the danger.
Another investigation is being conducted into the 1994 Chinook crash in the Mull of Kintyre. The journalist Tony Collins has suggested that the crash might have been caused by software failure. Will such information be wrapped up and not made generally available because it might conceivably prejudice our defence? Those seem to be serious deficiencies in the Bill.
The right hon. Member for South Shields mentioned the shift from substantial harm to prejudice. That shift is particularly important in the context of category exemptions. The draft Bill spoke of prejudice being
On the aspiration that the Bill might change public attitudes, the most seriously objectionable class exemption is that which relates to policy development. It is
nonsensical for a party that has for years said that it wants to promote more open government to propose excluding all information, regardless of how innocuous, by using the category test. The Home Secretary himself mentioned the Labour party's manifesto, which stated that
Developments in Australia, Canada and, particularly, New Zealand--which seems to have had the most success in working out an effective system--should be persuasive. Ministers should read the 1996 report of the Select Committee on the Parliamentary Commissioner for Administration on the operation of freedom of information legislation in those countries. I remind the Home Secretary that the report stated that operation of freedom of information in those countries had
As others have said, dividing policy advice and the factual foundations for that advice is practicable. Lord Butler spoke about that in general terms. If the Home Secretary is willing to tackle the matter, others will help to devise suitable definitions.
On advice, I remind the Home Secretary that our starting point in the recent round of debate was the Scott inquiry. Ministers have a right to define their view of where the public interest lies and to use their democratic mandate to back their claim. However, they do not have the right to erect a wall of secrecy to shield their mistakes from public scrutiny. We have a duty to try to avoid their mistakes. We will be helped by the Bill's improvement. I profoundly hope that improvement will be the consequence of its passage.
Dr. Tony Wright (Cannock Chase):
On any test, we have taken a long time to reach this point. The Labour party has been committed to legislation on freedom of information since 1974. It is a subject that Oppositions
Talking about Oppositions reminds me that today's Opposition ask us to decline to approve Second Reading of the measure. I sat through the last Parliament and watched the then Government decline to accept the Scott report's recommendations on information. They not only declined to support, but ruthlessly destroyed, the Public Interest Disclosure Bill, which was designed to protect public interest whistleblowers. In 1996, I was a member of the Select Committee on the Parliamentary Commissioner for Administration, to which the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) referred. The Committee had a Conservative majority, but recommended that there should be freedom of information legislation. The previous Government rejected that recommendation. Thus, the Opposition do not have much of a track record on which to lecture the House on the virtues of freedom of information. The Opposition have elevated collective amnesia to a political strategy, and made shamelessness their second nature.
Hon. Members have referred to the code, which was introduced rather casually and as a means of diverting the argument about the need for legislation was not considered significant at the time. The code became effective in its way, not because of its founders' intentions, but through the robust activity of the ombudsman and his successor who presided over it. It became more effective than anyone believed that it would. However, it remained a code. When the Select Committee visited New Zealand and we told people in Australia and New Zealand that we simply had a code, they laughed at the idea that a mature democracy could have an informal code to govern the information rights of citizens in relation to the state. We had to move from a code to legislation. That is happening now.
Mr. John Hayes (South Holland and The Deepings):
The hon. Gentleman criticises the code that the previous Government introduced, but will he acknowledge that, because it focused on content rather than classes of exemptions, and because, as a code, it was less restrictive than legislation, it allowed greater access to information than the Bill will grant?
Dr. Wright:
I said that the code had virtues, and I shall mention more of them shortly. However, the House should understand its origins and context.
We have travelled a long way from the White Paper. There is always a distance between a White Paper and a Bill; they are different projects. However, there is a difference in tone between the Bill and the White Paper of only two years ago. I re-read the White Paper last night, and its tone reflected that of a Government who were determined to break down the culture of secrecy and ensure maximum disclosure of information. By contrast, the Bill exhibits a determination to ensure that freedom of information legislation is accompanied by barricades of protection against disclosure.
On any test, the Bill is an historic measure and marks an important moment. For that reason, it should have a whiff of history about it; it should even sing a little. We
have heard convoluted talk about purpose clauses, but they are simply ways of making a document as significant as its founders intend it to be. The Bill should not represent a sultry and churlish monotone. We should try to recapture at least some of the spirit of the White Paper.
The Home Secretary has suffered a good deal of opprobrium. Much of it was unfair for at least two reasons. First, the opprobrium should be more widely spread. The fact that The Guardian claims that the Bill is unsatisfactory does not mean that it is satisfactory. Secondly, the Home Secretary has shown absolute openness in his approach to consultation throughout the draft Bill process. It would have been impossible to approach it in a more robustly open and engaging spirit. That is shown by the fact that we have been able to make improvements.
The endless reports of the Select Committee on Public Administration, including the most recent, which was published a few days ago, draw to the House's attention the fact that we have travelled a good way from the draft Bill. That vindicates the scrutiny process and the draft Bill process that have been applied to the measure. The Bill would be the poorer had it not undergone the process. Without it, indefensible provisions might have been passed, and the measure would have been much weaker.
Some people say that the Government have made concessions, but that is the wrong way to look at it. The question is whether the House has made improvements. Those who talk about Government concessions do not understand what is going on or the importance of the process. This is not the moment to remind the House or my right hon. Friend the Home Secretary of some of the embarrassing features of the original proposals that fortunately no longer exist, but they were defended at the time and no doubt they would have been voted for if the Bill had been dealt with in the normal way. Thank goodness it was not. Scrutiny has been effective and the Bill is being improved.
This is a Bill of historic importance, with many exemplary features, not least of which is its scope. Some of its earlier defects have been removed, but the question is whether it is now satisfactory and incapable of further improvement. I believe that it is not. We are left with some fundamental issues that have been clarified by the process that has been engaged in. The House simply has to come to a view on those fundamental issues.
The issues that have already been mentioned touch on the fundamentals of the argument. There is no excuse for finding the issues terribly complicated and difficult. The approach to information should be straightforward: it should be disclosed except when disclosure would cause identifiable harm to a specified significant interest. There should be minimum class exemptions and as much disclosure as possible, subject to a harm test.
"actual, real or 'of substance'",
and the Home Secretary has said in evidence to a Select Committee that that is broadly what he has in mind. However, that is not what the Bill says. The Bill should state what the Home Secretary really wants to say--if that is what he wants to say. We shall undoubtedly have to return to that issue at great length in Committee.
"unnecessary secrecy in government leads to arrogance . . . and defective policy decisions".
Evidence on the experience of other countries demonstrates how disclosure of information on policy development does nothing to damage governance. I detected from the Home Secretary's comments on the United States' experience that he thought that that experience had not been helpful. However, comparison with the United States is not sensible. Its system of government--a federal one, with a separate executive and legislature--is so different from ours that comparisons simply cannot sensibly be made.
"encouraged objective, reasoned and defensible decision making"
and that
"the dire forecasts as to its effect on the candour of advice had not been borne out by events."
Ireland's legislation has been enacted too recently for us to judge its results, but it resembles that of the other countries that I mentioned.
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