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7.54 pm

Sir Nicholas Lyell (North-East Bedfordshire): I am happy to follow the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) who maintained the tenor of a debate in which we have heard much cross-party melding of opinion in addition to the views of the Government and the admissions of those of us who have been in government that we have not always got matters right.

Disraeli said--I think it was Disraeli; much is attributed to him--that what people want in politics is information. That is absolutely true. The fundamental principle in a free society must be that, unless there are powerful reasons to the contrary, the information necessary to decide and legislate on an issue should be as freely and fully available as possible.

As we have done some party politicking in the debate, I should mention the question of the difference between the Bill, which will put the right to freedom of information on a statutory basis, and the code of practice introduced by my right hon. Friend the Member for Huntingdon (Mr. Major) in 1994, when he was Prime Minister, possibly in response to the Bill introduced by the hon. Member for Stoke-on-Trent, Central in 1993.

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The code, which was updated by the Conservative Government on 1 February 1997, was a positive step forward, as the right hon. Member for South Shields (Dr. Clark) acknowledged in his distinguished speech.

There is a question as to whether the Bill makes any significant advance on the code of practice, which gave a positive right to facts and analysis that the Government considered relevant in framing major policy proposals. That was valuable. The Bill contains a raft of exemptions--12 detailed pages--between clauses 19 and 43, and one must doubt whether there will be any improvement. When the Select Committee on Public Administration asked journalists for their opinions recently, they said that they could detect scarcely a hair's breadth of difference between the code and the Bill. I suspect that the Bill may even go the other way.

Those who read or hear our debate should understand the point of a "reasoned amendment." The Opposition have been criticised for tabling an amendment that says that the Bill should not receive a Second Reading. This aspect of parliamentary procedure needs modernisation. It is ridiculous that an Opposition cannot criticise a Bill on the Order Paper without demanding that it should not be given a Second Reading. That is one of the fatuities that sometimes arise from procedural developments that grow up in the House. One goes to the Table Office to be told that that is how the amendment has to be. Until that problem is resolved, we shall have no more sensible formal procedure for saying that we welcome a Bill but wish to record by vote that certain changes should be made to it.

Mr. John Greenway (Ryedale): Not having been a Minister in the previous Government, I have just discovered precisely that point. We felt that we should put down a marker tonight to show that we were dissatisfied with the Government's performance over key aspects of the Bill.

Sir Nicholas Lyell: I found out the point when I tabled a reasoned amendment to an earlier Bill in this Parliament.

The defect of the Bill is that it is too restrictive and has too many exemptions. There must be a significant number of exemptions. No one would disagree that defence, foreign relations, criminal prosecutions and some areas of the economy require substantial exemptions. However, the harm test provided is much too loose. The Home Secretary obviously realises that, because he avoided referring to it as prejudice during the first 10 minutes of his speech. As he spoke, I fumbled through the Bill to try to find the word "harm". I challenge Ministers to do so. I think that it is always called "prejudice" or "likelihood of prejudice", which is even weaker.

The Matrix Churchill case and the Scott report have been discussed. I have an exceptional knowledge of that case, for obvious reasons. The Scott inquiry was held in public and the report was published. If one reads it, one can be well informed about the matter. The difficulty is that, rather like the Bill, the report was infinitely too long, with the result that no one can read it--there is not enough time in a lifetime to read much of what it says. That report made it clear that the public interest test is whether there is real harm or serious harm to the public interest. I doubt whether any lighter test really means anything. One can always argue that something is prejudicial.

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The second point to be made, when comparing with this Bill matters that were rightly matters for public debate at that time, is that I agree with Sir Richard Scott about the candour argument--I did not agree with him about everything and we did not agree about the law, so it is nice for me to be able to say that I was right and he was wrong. But it is true that there must be opportunities for Ministers and officials to talk candidly and in private to each other. Those matters should not be widely reported--they should not necessarily be reported at all. However, one should limit as much as possible any restricting of the background information that surrounds such candid discussions.

Without breaching Cabinet secrecy, I will give one example of the sort of candid discussions that must be able to take place. On an extremely important matter--which hon. Members would have approached from very much the same point of view from whichever side of the House they came--one of our senior and distinguished colleagues said exactly the opposite thing on two successive days and gave powerful reasoning for each view. Both arguments were valuable parts of the debate that led to what I think was the right decision in difficult circumstances. Had they been reported, however, it would have looked pretty stupid. There is a genuine right to protect candour to that extent, but it should be to the minimum extent necessary. All the surrounding facts that can be brought into the public domain without serious harm to the public interest should be.

It is difficult to know exactly what powers should be given to the ombudsman who is to supervise, but the powers in the Bill are too weak. One of the interesting aspects of the Committee and Report stages will be to decide how much to leave to the commissioner or the ombudsman.

I do not like the idea of taking away ministerial responsibility, because one of the advantages of Ministers' having responsibility--this is a constitutional point--is that they can be questioned about their opinion in a way that officials cannot. Unless a Minister is put under huge pressure to divulge information, however, his Department will be on his back urging him to be as secretive as possible, and he may be inclined to be secretive.

If the commissioner says that something should be divulged but the Minister thinks that it should not, perhaps the matter should come before the House on a motion similar to that on an order, so that the House can express a view. I suggest that for consideration, rather than as a final conclusion.

Certain aspects of secrecy which will be continued by the Bill worry me greatly. Clause 30, which deals with court records, require that any document served by a public authority for the purpose of court proceedings is automatically exempt. That is dangerous. Since we passed the European convention on human rights into our domestic law--indeed, since European law came into our domestic law--and since judicial review became such an important part of public administration, and I am now going back 25 or 30 years, what is argued in the courts needs to be more openly available to the public and better understood by them.

Valuable documents are produced for every case nowadays. They are known as the skeletons of argument and are put forward by counsel on behalf of one party or

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another and, in particular, on behalf of Government. In a recent case, the Crown v. Keberline, the Lord Chief Justice thought it right effectively to strike down anti-terrorist legislation. That was a big step, but he would not have done it if he had not thought it necessary. The skeleton of the argument that was put forward--on behalf of the Crown on that occasion--would be extremely valuable for public debate. Indeed, it is an entirely public document, as it has been used and referred to in court.

Thirty years ago, the right hon. Member for Camberwell and Peckham (Ms Harman) was battling on behalf of what is now called Liberty but was then the National Council for Civil Liberties I think, to be allowed to reveal or justify herself for having revealed documents that had been used in court. No lesser person than the present Lord Chief Justice--as a recently appointed High Court judge--conducted a public inquiry into the matter and made recommendations. The point of those recommendations, which the House subsequently enacted into law, was that documents that had been used in court should thereafter be in the public domain.

I have been asking parliamentary questions--I still await the answer to one--about whether the Minister responsible for transport will put in the Library the skeleton of argument in the great fisheries case of Factortame. The question has been shifted to the Ministry of Agriculture, Fisheries and Food and I am waiting to find out whether that Department will cough up the answer.

Those documents, which are produced for a public purpose, should be in the public domain. The courts are getting more political powers. Journalists and Members of Parliament should be able to see, and the public should be able to read, what they are saying. That is an important part of open government.

I agree with those who have said that the Bill is incredibly complex. It is only an 80-clause Bill. If I had not been sitting here for the past three hours, I would have been in the Standing Committee considering the Financial Services and Markets Bill, which has 350 clauses. Neither Bills need be anything like as long. The Financial Services and Markets Bill could probably have been dealt with in 100 clauses maximum, and in 50 rather than 200 pages. It would have been a much better Bill for that.

As the right hon. Member for South Shields said, these provisions could probably have been dealt with in 15 or 20 clauses--then it would have been possible to read it. Bills such as this are impossible for a layman to read, and no lawyer would read them without being paid. It is plain wrong that we should continue to legislate in this way. I hope that there will be more and more complaints about that, and that the message will get through to the Cabinet Office and to the parliamentary draftsmen. Ultimately, it is the Government's responsibility and, with their help, the parliamentary draftsmen will put their heads together and we will get a new style of drafting.

Yes, the situation was getting worse while the Conservatives were in power and I will not deny that, but it has got gallopingly worse in the past couple of years. I do not particularly blame the Government--except that

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they were not alert to what was happening. They should wake up and let us have simpler, clearer and briefer legislation--and that applies to this Bill.


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