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Sir Nicholas Lyell: My right hon. Friend speaks of the scars that he bears. Does he not remember that it was under his aegis at the Department of Health and Social Security that spending was increased in favour of the long-term sick and disabled by £6 billion a year?

Sir Norman Fowler: That is very kind of my right hon. and learned Friend and I am glad that he is still in training to support his old boss. However, I will not prolong the point.

I do not believe that the habits of Departments, officials and Ministers have changed to such an extent that they suddenly want the public to be given the maximum amount of information. To believe that would be wishful thinking. When the Treasury wants to make a public spending cut, it does not go for something obvious, clear and simple. No, it chooses pensions or social security because it hopes to get away with it, given the complexity of those issues.

Another example comes from the Home Office--the Department sponsoring the Bill. The House will remember that, after the injunction on the media that I mentioned, the Home Secretary set up a leak inquiry. It was clear that the leak came from a tight circle of people, because not many people had seen the draft report. I asked the Home Secretary whether Ministers who had access to the Macpherson report before 21 February would be interviewed in the leak investigation. I asked him whether the same applied to officials and ministerial advisers. I did not ask him to name them, but I wanted to know whether they would be interviewed. The reply I received from the Home Secretary, who is now in charge of freedom of information legislation, stated:


That is not a heartfelt endorsement of freedom of information. Indeed, it provides the absolute minimum of information.

My fear about the legislation is that it leaves too much to a civil service that is not a great believer in open government and it leaves too much to the decisions of Ministers, who are often no better. I fear that, when the

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policy was finally given to the Home Office, there was an enormous sigh of relief all the way down Whitehall because people knew they were safe.

One of the fascinating features of the debate has been how many voices have been raised against exemptions such as the one afforded by clause 33, including not only the Campaign for Freedom of Information but the CBI. The Campaign for Freedom of Information makes a good point when it says that one of its main concerns are the many class exemptions that protect all information in a particular class, regardless of whether disclosure would cause harm, and that they should be amended to apply only when disclosure could be shown to be harmful. It is difficult to argue against that case.

Secrecy is not generally in the interests of good government. Openness can remove unjustified logjams. When I carried out my social security review in the mid-1980s, I held public meetings--contrary to the practice of this Government--at which interested parties gave evidence openly. In effect, Ministers acted like a Select Committee. Let us take the example of the death grant. No Government would increase the death grant from about £25 or £30. No Government would reform it or do anything else with it, because the advice was that that would cause an enormous public reaction. It was allowed to continue, even though it was unsatisfactory. When we asked the public, they took the common-sense view that it was better to pay more to those who needed it, instead of paying an inadequate general grant to everyone.

The more open we can make a Government, the better that Government are likely to be. The public have something to contribute, but they cannot do so if the information on policy formulation is withheld. My concern is that the Bill does not guarantee that that contribution can be made. Freedom of information is about being as open as possible and recognising the public's right to know, but above all it should be about making the process of government of this country better than it is.

7.35 pm

Mr. Mark Fisher (Stoke-on-Trent, Central): I congratulate my right hon. Friend the Home Secretary on giving the House the chance to legislate, at long last, on freedom of information. Other right hon. and hon. Members have noted that we have waited a long time--it is 20 years since Sir Clement Freud first introduced a substantive freedom of information Bill, which was prevented from reaching the statute book only by the 1979 election.

More crucial than the long wait is the fact that tonight we are discussing a matter of historic and great constitutional importance. We are determining one of the key elements of the relationship between the citizen and the state--the right of the citizen to know and the powers of Parliament and the Executive to disclose or withhold information. That is the nub of why and how we represent the interests of those who send us to this House. If we can get it right and truly empower the individual citizen and strengthen Parliament in its scrutiny of the Executive, we will have done something of great importance that will last long after most of us have left this House.

Seen from that perspective, the Opposition's position is even more extraordinary. Others have said that the Conservative Government's record was poor. They lurched

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from open hostility to the whole principle of legislating on this matter to passive resistance to the private Member's Bill on the right to know that I introduced in 1993. Ministers sat and watched the Bill go through its entire Committee stage without engaging in the argument. At a time when the press was sympathetic to the Conservative Government, that Government were nonplussed to find that every single national newspaper was in favour of that Bill and agreed with the need for legislation. It was that shock that led Lord Waldegrave, as he is now, to introduce a code of practice which contained many good ideas--not leastits operation by the Parliamentary Commissioner for Administration. It was a sensible and good code, but its main weakness was that it did not have the force of statute. We now have the opportunity to ensure that we get the best Bill we can.

The speech by the right hon. Member for Maidstone and The Weald (Miss Widdecombe) was sad and confused. It was difficult to tell whether she was saying that we were not going far enough or whether she would rather we did not leave the station at all. She got herself into a difficult position. The only hope that I gleaned from her demeanour today was from the fact that she listened intently to my right hon. Friend the Member for South Shields (Dr. Clark). From her nods and facial reactions to what he was saying, she seemed to be sympathetic to much of my right hon. Friend's powerful, thoughtful and reasoned contribution to the debate.

My right hon. Friend made two especially strong points. He said that the Bill as it is now drafted--it is much improved since it was first published, to the credit of my right hon. Friend the Home Secretary and his colleagues--has become too complex and too convoluted, as my hon. Friend the Member for Cannock Chase (Dr. Wright) illustrated when he talked about the three layers of protection to prevent disclosure on something as simple as the size of a Minister's private office.

If hon. Members need to be further convinced about the complexity of the Bill, they should recall the reply that my right hon. Friend the Home Secretary gave my hon. Friend the Member for Thurrock (Mr. Mackinlay) to a simple question that my hon. Friend has asked before--"How often, and for what duration, does the Cabinet meet?"

The Home Secretary's answer was byzantine in the complexity with which it dealt with the various stages that would have to be gone through before a simple answer could be given to a very simple factual question--an answer along the lines of, "The Cabinet has met on so many occasions, and meets typically for 20 minutes." I think both those examples demonstrate that, to some extent, the Bill has lost some impulsion in its drafting, and has become complex and convoluted. It will be difficult to try to simplify and clarify it in Committee, rather than adding barnacles in the form of additions--albeit helpful ones. I think that the major challenge in Committee will be the need to return simplicity and clarity to what, in some respects, should be a relatively simple Bill.

A purposes clause could help. I am baffled by the Home Secretary's continued refusal to introduce such a clause, given that it would be easy to introduce it in the form of a new clause in Committee. The drafting of the New Zealand clause is clear and helpful. Such a clause would cost the Government nothing, and would not cause them to weaken their strong position in preventing the

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disclosure of information. It would clarify the Bill, and would send a strong message not only to adjudicators but to the general public.

My right hon. Friend reminded the House that the prime purpose of freedom of information legislation was to empower the citizen. That can be done in two ways. It can be done directly, through the granting of rights to the individual, and indirectly, through the granting of rights and powers to the House of Commons and to outside organisations that campaign on behalf of individual citizens. I believe that, in respect of the direct empowerment of the individual citizen, the Bill will have an amazing effect on people: it will genuinely give them power in regard to information that affects their lives.

When I was steering the Right to Know Bill through its stages in 1993, I received hundreds of letters from members of the public all over the country, telling agonising stories of the destruction of marriages, jobs, careers and income because those concerned could not obtain crucial information. I believe that the present Bill will resolve many difficulties for individual citizens, if we can get the message across--and that means that the Government must promote it.

The Home Secretary has often said that the legislation is not everything, and that its implementation, and the enthusiasm and commitment of Departments in putting it across, will determine whether it is effective. The Government have done a good job: the potential is there, if the message can be conveyed. It is less clear, however, that the Bill in its present form will improve the position in respect of rights exercised through Parliament and campaigning groups. If it is to live up to the aims of the Home Secretary and the Government, we need to do a great deal more work.

As many have said, there are too many "class exemptions". "Class exemption" is a piece of jargon that members of the public may not fully understand; in fact, it refers simply to a class of information that can be withheld even if disclosure would not be in any way harmful. When we hear a class exemption described in that way, we must conclude that it is bizarre that it should exist. Surely, if a piece of information is entirely harmless to government, to the public interest, to the security of the state and to any person, it is nonsensical that it should be withheld, but it is to achieve the withholding of certain information in that category--along with the scoop of other information--that a class exemption is deemed to be necessary.

It is agreed in freedom of information legislation throughout the world that there should be large areas of exemption which, although uniform, apply to different measures, but class exemptions are very different from the test of harm--whether it is a simple test of prejudice or the more important test of substantial harm specified in the White Paper. The Government really ought to consider the matter again; otherwise, the Minister will have a hard job in Committee in trying to justify the scoop of class exemptions that will lead to the gathering of information which--as he will have to acknowledge--is entirely innocuous.

Clause 33, to which Members on both sides of the House referred, deals with the whole question of factual information. Of course, the question of whether factual information behind the development or formulation of policy should be released is crucial. I am thinking of data,

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analysis, the scientific and technical facts on the basis of which Ministers and their civil servants debate and make decisions; of the cost, and the legal balance of opinion. Only if we as a Parliament, the public and the press can understand such matters will we be in a position to judge whether we are being well governed.

If our role of scrutinising the Executive is to be fulfilled--a role that many people have claimed is being weakened by much of the legislation that has been passed over recent years--we must have the necessary information. Nothing is more depressing than hearing ill-informed debate in the House, and the exchanging of party political slogans across the Chamber. Such debates take place because we cannot engage with the detailed realities of whether a decision has been well made or not well made.

This is a crucial issue, which we must get right. It was encouraging to hear that the Home Secretary would leave the door open to discussion in Committee: he implied that, if we could come up with a form of words that would distinguish between factual information that was helpful to informed debate and scrutiny and would still leave the Government the ability to formulate policy in the privacy of Departments, he would be sympathetic to that. I think the Home Secretary needs to deliver on his assurance, and that we, together with Government, need to find a way of making that possible.

It is interesting that all the matters that we are discussing--the importance of better-informed debate, the need to increase public confidence in the political process and the testing of weakness in government--feature in the Government's White Paper on modernising government. The Government have advocated all those things: they have said that they want to bring about such developments to modernise the way in which we govern ourselves. They say that we must involve other people in policy making as early as possible.

Those are laudable ambitions, but they will be negated if we cannot get at the facts on the basis of which Governments make their decisions. No one denies that there is a difficult balance to be struck, but no balance has been struck in the Bill so far: Ministers will determine all, and that is wrong.

The Home Secretary is an intellectually honest politician, and he accepts that that is not satisfactory. I believe that he has left the door open today. At the moment, the Bill is less good than the code, which has a harm test for facts and analysis, and it is much less good than the Irish legislation, under which factual information can be withheld only if it is contrary to the public interest in the opinion of the independent commissioner. It is also less good than the proposals--albeit provisional--for Scotland, in which facts are not covered by a class exemption. This area must be scrutinised in Committee, and progress must be made, but I am encouraged by the Home Secretary's attitude.

Two more areas of the Bill are weak. The first is part III on the power of the commissioner. He can recommend disclosure, but, unlike in Ireland and New Zealand, and unlike what is proposed for Scotland, he cannot order it. What is the point of a commissioner if he is not sufficiently independent, having come to his conclusions, to make a decision rather than a recommendation?

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For 20 or 30 years--indeed, for ever--we have had to accept that all information is given by grace and favour of the Government. The shift from that to legislation should, if we get it right, remove ultimate discretion from the hands of Ministers, except where there is an important prejudicial point to preserve. The Bill fails to harness the potential of legislation in that way. Ultimately, power will remain in the hands of Ministers. There is much declaration in the Bill, and many improvements. However, by leaving crucial decisions to Ministers, the Bill does not significantly change the position that pertains today.

The Home Secretary is never shy about saying that he is a good Minister when it comes to releasing information, and he is correct to say so. He demonstrates that information can be released under the present regime, but only by the grace and favour of Ministers. In many ways, the Bill will not change that, and we must help the Government to amend the Bill so that there is a real change and so that Ministers trust the commissioner and their own Bill to protect what must be protected, rather than trusting only themselves.

Finally, where should the Committee conduct its scrutiny? I believe that the Bill must be taken on the Floor of the House. It is a Bill of enormous constitutional importance, and constitutional Bills are traditionally taken on the Floor of the House. We are sent here by our constituents to represent their interests. The provision of information that would allow us to speak for them on an informed basis goes to the heart of why we are Members of Parliament and how Parliament should operate.

I hope that the other political parties will join some of us in requiring the Government to take the Committee stage on the Floor. The Bill relates to the powers ofthe Executive and Parliament and is of enormous constitutional importance. The fact that we have reached the legislative stage means that we should give two strong cheers for the Government, but we should withhold the third cheer until we see the final Bill. Within our grasp lies the ability to change the quality of scrutiny and government. We must not fail.


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