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Mr. Patrick Hall (Bedford): Does my hon. Friend agree that one feature of the previous Government that was widely perceived as arrogance was how they identified their interest with the public interest? That is how they operated, but it may also be the British system of governance. Does my hon. Friend agree that the Bill provides us with an opportunity to put the balance of power back with the citizen, where it should be?
Dr. Wright: I agree that the behaviour of the previous Government was characterised by arrogance, particularly in their dire closing period. There was a suggestion that their interest was the same as the public interest. All Governments have a vested interest on the issue; they all have a taste for secrecy. It is the job of the House to ensure that it is not satisfied. That is what we are being asked to do.
I should like to relate those approaches to our arguments about the key issues. Policy formulation is dealt with in clauses 33 and 34. I do not believe that the House will allow those clauses to stand in their present form. They deal in blanket exemptions for categories of Government activity, most fundamentally the formulation or development of policy, as well as the operation of any ministerial private office. There is to be a blanket exemption for information about how many people work in a ministerial private office.
In case a blanket exemption is not enough, there is a second defence: the test of whether disclosure would prejudice certain interests, including the extraordinary category of
Three defences are organised around policy development. That is unsustainable. I do not think that the House will think that that is the proper way to proceed. The barricades have gone up with a vengeance. Nobody denies that the Government need a thinking, deliberating space. They need a confidential arena in which policy discussion can take place and policy decisions be made. However, equally, nobody should deny that there is also a public interest in knowing the background information that shapes those policies. That is the key distinction which the Bill fails to recognise.
Mr. Hayes:
The hon. Gentleman is making a balanced and well-reasoned contribution. The code that he criticised earlier did not deal with the broad issue of prejudice, but talked about substantial harm. Had the code been introduced as a Bill, presumably it would have satisfied his demand for a narrower definition of exemption, rather than the broad definition in the Bill.
Dr. Wright:
To be accurate, the code did not talk about substantial harm. I shall tell the hon. Gentleman in a moment what it said, but I should like to proceed with my argument.
We are dealing with a crucial distinction. There is no novelty about it. It was first made in the so-called Croham directive back in 1977. It said that "factual and analytical material" would be published once decisions had been taken. The 1994 code said that policy information was to be withheld only if disclosure would
The 1997 White Paper gave us what it called a simple harm test. That was less than the substantial harm test that applied to the rest of the provisions, and was simply a question of whether disclosure would harm something that ought to be protected. We then had discussions about the draft Bill, and the Home Secretary told the Select Committee on Public Administration that the
We have had important testimony from people such as the former Cabinet Secretary Lord Butler, who has said that it is perfectly possible to make distinctions of this kind. The civil service will do it if Ministers tell them that that is how they should proceed. We have a cumulative body of evidence which says that it is both desirable and practical to have such distinctions. However, the distinction is not made in the Bill--contrary to the developing practice to which I have pointed, and contrary to freedom of information regimes elsewhere, notably in New Zealand and Ireland.
Hon. Members should be clear about what that means. It means that all information relating in any way to the development of policy--including purely factual background information--stands exempt. I simply do not believe that the House will allow that to be sustained. Clauses 33 and 34 represent the hole in the centre of the Bill. At the very least, we need the facts, and an analysis of them. We must explore whether that needs to be only after decisions are made, as is the case in some other places. It is probably better to have a harm test, as we have with the code and as was proposed in the White Paper. However, we have to do something to fill the gap that clauses 33 and 34 now open up.
We must ask, "Who decides?"--the clause 48 question. The Bill has a tortuous two-stage process governing how we move to discretionary decisions after a first stage of looking at exemptions. We have made progress on the question of who has the last word and who decides on whether, on public interest grounds, there should be disclosure of exempt information. Originally, there was no provision for any role for the Information Commissioner.
I put on record the fact that we have made progress, and we now have a Bill which gives a recommendatory role to the commissioner. In the unlovely languageof the Bill, we have a "discretionary disclosure
recommendation". I am bound to say that that is not enforceable. It remains unsatisfactory. The Information Commissioner has to have the power to order disclosure in the final resort.
I asked the Home Secretary earlier whether he could think of examples where the Information Commissioner might use this discretionary recommendation provision to recommend disclosure and a Minister or public body would still refuse to disclose. I do not think that he could think of any compelling example, nor is it likely that he could. Remember--behind the commissioner stands a tribunal. Behind the tribunal stands a court on points of law. It is not as though public bodies or Ministers stood frailly exposed to the power of the Information Commissioner.
We have reached an unsatisfactory halfway house. If we are going to legislate, we have to legislate. That means moving from the mentality of codes to a mentality which says that we must give an enforcement and order power to an Information Commissioner. This is what happens elsewhere. It happens in Ireland and New Zealand, and it should happen here.
Knowing that the Information Commissioner has the last word is the real discipline; knowing that someone can get the information out and that it cannot be finally withheld is the crucial discipline. That removes the possibility that public authorities can seek to hide their failures, their incompetence and their shortcomings. It also gives a real underpinning of public confidence if it is known that the Information Commissioner can have the last word in terms of getting information out.
This is one of the issues which go beyond the normal exchanges between the parties. It is about the information rights of citizens and the quality of our democracy. It is too important to entrust to the judgment of the Government alone, because any Government can think--and find reasons for thinking--that they have an interest in withholding rather than disclosing information.
Although I am a long-term enthusiast for this measure, I have never claimed that it will be a panacea, or that it will be a remedy for all the ills of Government. I have never denied that there is a balance to be struck at all times between disclosure and privacy and confidentiality. All that is true.
At the same time, it is not the case--as Governments tend to believe--that the sky will fall in if we move in this direction. The sky did not fall in when the minutes of the Monetary Policy Committee of the Bank of England were published. Indeed, government was strengthened, rather than weakened, because of that. That is the kind of example to hang on to; it is where confidence is to be found.
Sir Norman Fowler (Sutton Coldfield):
I agree with a great deal of what the hon. Member for Cannock Chase (Dr. Wright) has just said--particularly that this matter is for the most part beyond the normal conflicts of party politics. I agree also with what he had to say on clause 33.
I wish to congratulate two people. The first is myhon. Friend, and neighbour, the Member for Aldridge-Brownhills (Mr. Shepherd) who, contrary to the opinion of the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan)--who is just going and who made a long, boring speech--is a significant member of the Conservative party. My hon. Friend has espoused this cause with enormous skill and persistence against some formidable opposition.
I congratulate also the right hon. Member for South Shields (Dr. Clark), who produced an impressive White Paper which, in many ways, changed the debate, particularly as we now know that, at the time, he was under threat of the biggest political insult of all--being replaced in the Cabinet by a Liberal Democrat.
I do not regard it as a step forward that responsibility for freedom of information should now reside with the Home Office. The point has been made that the culture of the Home Office is one of control--police, prisons, immigration and issues of that kind. Officials are sometimes good in that area. However, I am not sure that it is the ideal background as far as freedom of information is concerned.
The Home Secretary, who is not here, talked about his own deeds. I remember that it was in the name of freedom of information that this Home Secretary placed an injunction on the whole of the British press after a few paragraphs had been reported in The Sunday Telegraph which pre-empted what the Macpherson report was going to say only a couple of days later.
The Home Secretary has a lot to prove on freedom of information, but so has virtually every Minister who has sat round the Cabinet table in the post-war years. We should show some humility in this exercise. I am personally prepared to say that not every action that I took as Secretary of State for various Departments met the spirit of the White Paper or the code of practice of my right hon. Friend the Member for Huntingdon (Mr. Major). I hope that I learned from that experience. It is better to be a sinner who repents than one who keeps on sinning without thought or regret.
My attitude has changed because I, like the hon. Member for Cannock Chase, have come to believe that an atmosphere of openness is in the interests of good government. That is the fundamental point. It may mean that a Government cannot push things through and cannot so easily disguise what they are doing. It will certainly allow the public to play a bigger part in policy formulation. That is good, not bad news for government.
I disagree with what the White Paper says about the 30-year rule. It says:
When the White Paper said that, I am sure that Whitehall collectively heaved a great sigh of relief. The rule is utterly outdated. There is a wide range of arguments against it. As a former Cabinet Minister, I want to be around when the papers come out so I can reply to them; I do not want that to be left to some civil servant in the future.
As it happens, because of my exceptional youth when I went into the Cabinet, I will be only just over 70 when the papers are released, but the Home Secretary will be
well over 80; he is not very good with police figures now, so goodness knows what he will be like then. When the papers come out on the Government's transport policy--I use the term loosely--the Deputy Prime Minister will be over 90.
There is another practical reason for change, as the 30-year rule has broken down. These days, former Prime Ministers, ex-Chancellors and former Secretaries of State, including myself, all write their memoirs. We all trail either to the Cabinet Office or to our old Departments to look at the papers, the minutes and the decisions, and we all publish as much as we can get past the Cabinet Secretary. The civil service checks the script for accuracy, which in reality means that one cannot make offensive comments about old civil servants with whom one has served--that, at least, is one aspect of the check--and an account is published perhaps 20 years before the official 30-year limit expires.
If that were not bad enough, other Cabinet Ministers publish their diaries, which are certainly much more revealing than any Cabinet minutes that I have seen. Dick Crossman started it, the right hon. Member for Chesterfield (Mr. Benn) has, I believe, published five volumes of diaries, and now we have a new variation, with the wives of Cabinet Ministers keeping diaries of their husbands' reactions to Cabinet meetings. Lady Richard provides us with a fascinating portrait of the band of chums who make up the present Labour Cabinet.
For all I know, the Home Secretary's wife is keeping a diary. One can imagine the entry, "Jack came home depressed last night, beaten over the head again by that woman from Maidstone." I do not complain about the situation--what with Lady Richard's diary and that of the right hon. Member for Yeovil (Mr. Ashdown), Conservatives are having a field day--but it shows the absurdity of the rule.
One of the hopes of politics is that one can learn from mistakes and, having learned, make better policy, but the idea of the 30-year rule is to confine any lessons to irrelevant and dusty history. If some time restriction is needed, a 15 or 20-year rule is much more appropriate.
I am also concerned about clause 33, which covers the formulation of Government policy. Ministers talk of the need for free, unreported discussion and development of policy. I understand that, and I remember how it was, but I also remember cases in which the secrecy of policy formulation led to injustice, especially in relation to relatively technical issues. There were cases which, if the public and Members of Parliament had understood what was happening, would have led to the measure being kicked out.
On the previous occasion when the Conservative party was in opposition, Lady Castle was Secretary of State for Social Services--the Home Secretary was her adviser--and Lord Barnett was Chief Secretary. The Government wanted public expenditure savings. Inflation had been sky high--it was more than 20 per cent.--but it was coming down. At that time, pensions were uprated on an historic measure of inflation: past inflation was validated.
The bright idea was then proposed that pensions should instead be updated by a forecast of inflation. With inflation coming down, a period of past inflation was excluded altogether and pensions were not increased by the amount that they otherwise would have been. That may sound like a technical detail but the result was a
major public spending saving that would now be worth more than £4 billion a year. When the Chancellor of the day announced the policy, he dressed it up for the House in such a way that, as Lady Castle reports in her diaries, some Labour Back Benchers cheered.
"the effective conduct of public affairs".
In case that is not enough, there is also a third defence, which is that the reasonable opinion of a qualified person is sufficient to say whether the second defence provides an exemption. That gives legal weight to what can be political opinion.
"harm the frankness and candour of internal discussion".
There was a presumption of disclosure under the code. On top of that, the ombudsman could recommend disclosure of exempt information on public interest grounds. There was also a provision for
"facts and the analysis of facts"
to be disclosed. The code continued the tradition begun with Croham back in 1977.
"issue of factual or background information is important . . . and I think on the whole ought to be disclosed."
Unfortunately, the Bill does not convert that desire into legislative provision, but I am heartened by the fact that it might still do that.
"We have examined carefully the case for change and concluded that on balance it is preferable to retain the 30 year rule which is in line with international practice."
That is not the most convincing defence. It makes it sound like some sort of European regulation.
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