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8.26 pm
Mr. Richard Shepherd (Aldridge-Brownhills): The hon. Member for Sheffield, Hillsborough (Helen Jackson) did her constituents proud. We do indeed live in a land of liberty where none of us fear to express what we feel. The essence of a freedom of information Bill is to give us the information with which to focus the expression of our arguments. After 20 years as a Member of Parliament, I realise that it is not freedom of speech that Governments fear, but freedom of the equality of argument--where the other side knows the facts as well. That is when the public--through us, as their elected representatives--begin to appreciate the dimensions of an argument.
I have noticed a subtext in the House tonight: the truth is that the Bill is pretty awful. However, it can be amended. Indeed, an early-day motion, supported by at least 140 Labour Members, expressed a wish for amendment of two aspects of the Bill. That seems to be a reasonable request.
The House also seems to be expressing something wider. It is saying that it understands the difficulties of Government. "Heaven alone knows", some Labour Members are saying, "we suffered nearly 18 years of Conservative Government", but they have set their backs resolutely to a more rational, forward-thinking Bill and Parliament.
After less than two years, a Government and a Prime Minister proclaimed something about freedom of information in which I profoundly believe. They reached out to many beyond this House--beyond the narrow confines of the politicians who sit here. They said that we, as a people, have a right to the information that forms public policy and thus helps to shape our lives. Indeed, the laws that we make in this place can impose criminal sanctions on those who do not obey them. That is why the process of law making and the central functions of government are of crucial importance in the evaluation of any freedom of information legislation.
I do not mock the Government for the width of their Bill. I have heard no evidence to the Public Administration Committee that has criticised the Government for extending the provisions across an extremely broad front. However, the activities of central Government are at the heart of freedom of information, and in that area the Bill is notably deficient--I use strong words because I can see the gentle pushing of the Government's supporters to turn the Bill round and make it something substantial, and I would not want to say or do anything that harms a wholly proper, intelligent and sensible course of action, to which I hope the Government will accede.
My right hon. Friends who have spoken have tried to give expression to the practical experience of Ministers, and, in suggesting what needs to be done, they have centred on some of the common ground shared by those of us who believe in freedom of information. It is true that the Bill is inordinately complex. The principle of freedom of information--the presumption that
information should be available--is fairly simple. All information should be available unless it causes serious harm. The question that follows from that is, how do we weigh that serious harm? People like me have, for a long time, advocated that decisions should be taken on a case-by-case basis--not by classes, because those, as has been pointed out by hon. Members from both sides of the House, produce absurdities.
The Home Secretary was speaking as though any information about the formation of policy would cause the Government to collapse and would do irreparable harm, but then he was probed and tested on the truth of something that, for many years, was held to be the most sensitive area of central Government information--interest rate changes. For many years, Ministers resigned if they leaked such information. Governments trembled at the thought that the reasoning that had led to decisions on interest rates should be known to a wider public. Yet my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) instituted a system whereby that information--that policy advice, no less--was made available after a short time.
I believe that the judgment of the world at large, and of most Members of the House, would be that that process turned out to be not only appropriate, but successful. The two things do not often go together at times in our post-war history, but that is what happened--and when the new Government, elected in 1997, came to office, they placed that system on a statutory footing, and the Monetary Policy Committee now publishes its deliberations after a time.
I cite one instance to show why decisions should be taken on a case-by-case basis. There will be, and there are, matters that cause every one of us, on a prima facie reading of the information, to think that that information may touch upon the security of the state, which is one of the blanket exemptions. As a consequence, all information on MI5 and MI6 is exempt for the purposes of the Bill--and I see hon. Members nodding in absolute agreement that those bodies should be beyond an inquiry. All information would be exempt, including the fact that someone is fiddling the books, or the fact that someone--well, we all know the history of section 2 of the Official Secrets Act 1911.
The hon. Member for Stoke-on-Trent, Central (Mr. Fisher), promoter of the notable Right to Know Bill, said that the measure should be debated by a Committee of the whole House, and that must be right. The Home Secretary said that the Bill was a Government Bill of the first importance. He laboured the point about the Bill's importance by saying that it was a constitutional Bill and was part of the Government's pledge. I accept all that; it is just one those things. However, what issue was he addressing? He was not dealing with the point that the Bill should be considered on the Floor of the House--he was repudiating something that had happened before, and this House moves by precedent. However, the Official Secrets Act 1989 is the other side of the mirror and it was discussed on the Floor of the House. As a constitutional measure, that is where this Bill should be considered. I start from the confused position that this is a much lesser Bill than all the proclamations surrounding it have suggested. However, it can be made something of, and I hope that the Government will listen to that plea.
I return to the words of the Prime Minister, to the Campaign for Freedom of Information and to the arguments adduced. In the evidence given to the Public Administration Committee, we heard a wonderful justification for the Bill from Lord Lester and I have always argued with a little rubric of my own. First, to honour the hon. Member for Hillsborough, we should remember who we are as citizens of a free, great democracy; ours is a fine system of government by and large. Secondly, how can one have accountable government if one does not know what the Government are doing? Freedom of information is absolutely essential to accountable government. Thirdly, do we not all think that, if a question is considered and more widely debated, the quality of the decisions will be better? Fourthly, freedom of information reinforces ethical government and ethics in government.
I do not believe that the Scott inquiry or the circumstances of the non-disclosure of the relaxation on the export of armaments would have come about if there had been wider discussion. There is an odd contradiction in our system. It is only when we are in crisis and when something goes badly wrong that we resort--to cover our backs for whatever reason--to a public inquiry. What does a public inquiry give us? It does not give us the pretensions and presumptions of this very limited Bill. Instead, all the facts are brought out to the discomfiture of every element that has combined to create the very repressions and restrictions in the Bill.
In the Scott inquiry, we saw the lack of ethical conduct by civil servants, the shortchanging, the blind eyes turned to the law of the land, and the conduct of Ministers exposed. Do we seriously believe that that system of conduct of government could have been maintained if we had had proper freedom of information legislation? The very fact that people know that their conduct and the way in which they have conducted their office may be open to scrutiny keeps them, as often as not, on the straight and the narrow.
Helen Jones (Warrington, North):
It is a pleasure to follow the hon. Member for Aldridge-Brownhills (Mr. Shepherd). Although I may disagree with him about some aspects of the Bill, he has a long and distinguished track record in arguing in the House for proper freedom of information legislation.
I come to the debate as a relatively new Member, who began to consider the issue as part of the Select Committee on Public Administration. I confess that I started off partly infected by the belief that freedom of information was an issue for the chattering classes--for politicians and journalists, but for no one else. Having considered the draft Bill and taken part in the Select Committee's inquiries, I have to say that nothing could be more profoundly wrong, because the importance of freedom of information legislation is in the rights that it gives to individual citizens.
We live in an increasingly complex society, where public authorities hold more and more information and often base on it important decisions that profoundly affect
the lives of our citizens. If democracy is to function effectively, it is essential that citizens have access to that information and can scrutinise and challenge those decisions. They should also be able to play an effective part in the decision-making process. They should be partners in the process of change, not simply passive subjects. A proper freedom of information regime ought to facilitate that.
Such a regime is essential to the functioning of a modern democracy, the exercise of citizens' rights and their participation in that democracy. That participation should be continuous and should not be limited to exercising the right to vote at the ballot box every four or five years. Used properly, the Bill should be an instrument to achieve that. Despite some of my caveats about the Bill, it represents a great step forward in giving citizens rights.
Of course, such scrutiny of information by the public will never be comfortable for an Executive of any party. It is right that scrutiny should be a little uncomfortable; otherwise it would not be working effectively. The Government are to be commended for having brought to the House for the first time proposals for a statutory right to freedom of information. That is the big change that we are debating today. As hon. Members have said, the code of practice had many points to recommend it, but it did not give people a statutory right to freedom of information, whereas this Bill does.
Properly used, the Bill should lead to more informed debate and more open and better decision making. There is too much unnecessary secrecy in this country, and that secrecy is the enemy of good government and proper decision making.
The Bill is not perfect--no Bill is--but it has been greatly improved by the pre-legislative scrutiny that it has undergone. In that connection, it is only right to pay tribute to my hon. Friend the Member for Cannock Chase (Dr. Wright), who, as Chairman of the Select Committee, guided those deliberations and evidence sessions with great skill. It is right also to say that my right hon. Friend the Home Secretary demonstrated a great deal of commitment to that process and a willingness to spend time with the Select Committee and engage in that debate. He has not accepted all of our arguments, which, on any objective assessment, are entirely right, but we live in hope of his conversion on one or two points.
None the less, it would be wrong to underestimate the great strides and vast number of improvements that have been made since the draft Bill was published. The time for compliance with requests for information has been reduced from 40 days to 20 working days, as the Select Committee suggested. The Information Commissioner has been given much greater powers in respect of publication schemes, which will in themselves start to change the culture within which public authorities operate. Steps have also been taken, as the Committee suggested, to prevent authorities from using the exemptions relating to future publication to avoid disclosure.
It is particularly noteworthy that two of the provisions in the draft Bill that were most criticised--clause 37, which was the so-called "jigsaw exemption", and the provision to allow local authorities to refuse to disclose information on the grounds of self-incrimination--have been completely removed from the Bill that is now before the House. That represents a great stride forward.
We have made some progress on the discretionary provisions in the Bill. The Select Committee requested that there should be an explicit provision that, unless there was a compelling argument to the contrary, public interest should always be regarded as coming down in favour of disclosure. That was right and proper. Although we have not got there yet, clause 13 contains a requirement that any public authority should balance the public interest in disclosure against the public interest in maintaining an exemption. Together with the Information Commissioner's right to consider those decisions and make recommendations when an authority decides not to disclose information, that is a major step forward in ensuring that public interest is part of an authority's deliberations.
That, however, highlights one of the flaws in the Bill. Where possible, freedom of information provisions should contain statutory enforceable rights and the presumption should be in favour of disclosure. The Bill has moved some way towards that position. We have clause 1, and the title of the Bill has been changed from that of thedraft Bill, which made provision about disclosure of information, to one making provision for disclosure of information. However, it does not yet go far enough.
My right hon. Friend the Member for South Shields (Dr. Clark) said that the Bill would be improved by a purpose clause, and I agree with that. The argument has been advanced that that would tip the balance of the Bill wrongly. I am convinced by the evidence given by the Data Protection Registrar to the Select Committee that such a purpose clause could be drawn up properly to ensure that the balance between individual privacy and the right to know is preserved. It would also make it clear that the presumption in interpreting all parts of the Bill should be in favour of disclosure. I hope that my right hon. Friend the Home Secretary will consider that further in due course.
We have heard too much about the exemption for policy making. I welcome the fact that my right hon. Friend the Home Secretary has said that he will reconsider it. There is a balance to be struck, and the Select Committee heard about the post-it notes philosophy that is prevalent in some regimes where there is total disclosure. I am sure that we can produce a form of words that will allow factual advice to be disclosed while ensuring that Ministers and others can discuss policy and advice without fear of that getting into the public arena too soon.
The Bill could be improved in respect of the commercial confidentiality exemption. It is right and proper that there should be a class exemption for trade secrets. I doubt whether any of us would argue against that. However, the Bill as drafted allows far too much commercial information to remain confidential because it would be deemed to prejudice a firm's commercial interests. There should be an explicit public interest test to balance the test of whether something would prejudice a firm's commercial interests. Where a commercial interest should properly be protected, public safety should come before that. As drafted, the Bill would prevent disclosure or allow firms to avoid disclosure of information about defective products or products that cause harm to the public. That cannot be justified.
The powers of the Information Commissioner have been mentioned frequently in the debate. I agree that, with regard to the discretionary provisions in the Bill, the Information Commissioner should have powers to order disclosure. To maintain otherwise is not consistent with moving from a code of practice to a Bill that gives people statutory rights. I am not convinced by the argument that Ministers are accountable to Parliament, whereas an Information Commissioner is not. The Information Commissioner will be a Crown appointee responsible to the House. The line of accountability could be maintained in that way.
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