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8.51 pm

Mr. David Davis (Haltemprice and Howden): I propose to follow some of the points made by the hon. Member for Sheffield, Hillsborough (Helen Jackson), who made an admirable speech, full of common sense.

I do not approach the issue from the perspective of a freedom of information enthusiast--not for its own sake, in any event. For any measure that comes before the House on that subject, my test is whether it makes democracy and government work better. It is a simple test and, in some respect, the Bill fails it.

I agree with those who say that our present system is too secretive. One of the reasons Whitehall takes on so many first class brains and occasionally turn out second-class results is that much of our policy consideration is too secret. There are plenty of proper exclusions. Anyone who, like me, has worked in the Foreign Office as a Minister, particularly at security command or in negotiations, would know that many subjects should not appear in the public domain instantaneously.

However, that should not be applied across the board. The class exemption applying to all information relating to formulation and development of Government policy, including factual information, is a ludicrous blanket exemption.

Mr. Peter Bradley (The Wrekin): I am grateful to the right hon. Gentleman and interested in what he said about his experience at the Foreign Office. He will remember that, earlier this year, I wrote to him and asked him to release papers relating to his conduct as a Minister at the Foreign Office, in the interests of freedom of information and transparency of government, and he declined to do so. Can he explain why he has changed his mind, if that is what he has done?

Mr. Davis: It is a pity that the hon. Gentleman brings the debate down to that level. He was not seeking freedom

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of information at all. First, no one made any allegation about my behaviour. If the hon. Gentleman wants to do so outside, we can test it in the court. Mr. McGilligan, the ambassador at the time, made it clear that I behaved entirely honourably.

Secondly, the papers to which the hon. Gentleman refers cover sensitive matters. Thirdly, they are past Government papers and therefore subject to strong limitations. Fourthly, that intention comes as hypocritical in the extreme from a supporter of a Government whose Prime Minister does not even publish a transcript of a meeting with Bernie Ecclestone, which is not a sensitive matter, and then goes on to claim that he supports freedom of information.

On the substantive issue--the blanket exemption that applies to factual and other information relating to policy matters--there are two areas in which the civil service security blanket could be removed: first, with regard to factual matters, and secondly, with regard to the options available to Ministers. Most Ministers do not make decisions entirely on the basis of their own experience. They are offered a series of options by civil servants. Broadly, those options should not be secure. It would be useful for Parliament to know what the Government were choosing between, what other options were available and whether all the options had been presented to the Minister. It is a rare Minister who invents options of his own unless he knows the subject well.

Information about the options available and thefactual basis on which decisions are made--not the recommendations themselves; the civil service does not have to defend itself--will improve the whole basis of public decision making. The public will have a better understanding of decision making at ministerial level, there will be a better policy debate at the time and, after the event, there will be a better review of ministerial performance. For all those reasons, it would be worth while to amend the Bill to include such a provision.

Such a measure would undoubtedly also lead to better advice. Robin Butler made that point when giving evidence earlier on the matter. Civil servants, knowing that the judgments would be much more exposed to public consideration, would give better and more considered advice. It would also be practical. Both Robin Butler and Terry Burns have argued that the provision of advice, evidence and options could be separated out. For all those reasons, this would be a worthwhile addition to the Bill and would pass my test by improving democracy and government.

I missed part of the speech made by my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell). I would specifically reduce the exclusion relating to Law Officers' advice. Having been a Minister, I know that Law Officers' advice is virtually set in tablets of stone. It would be greatly to the advantage of Parliament to know precisely what the Law Officers' advice was, because that sharply constrains Government's decision making and options. All that information should be available.

Quite a strong harm test would have to be applied. One of the weapons that Ministers employ when negotiating with other countries, be it on Europe or security matters, is to look hard at the modus operandi of other Governments. If matters were opened up, extra

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information would be given to those negotiating against us, so the harm test would have to be subtle and thorough. Nevertheless, that should be achievable.

Who will decide what should and should not be released? One group of people who should not decide are those who are affected by disclosure. If we are not careful, that is what will happen in many circumstances. Even the best of intentions can lead to the wrong outcome. As a Cabinet Minister, I asked the chief medical officer why we could not publish hospital performance data. His response was that a certain tabloid newspaper would have the headline "House of Death" over the picture of a hospital. Sadly, I moved on before I was able to pursue the matter. I hope that I would have resolved it in favour of publication.

Given what has happened in Bristol and elsewhere since, I regret enormously that I was not able to stick with the issue. The chief medical officer was making a well-intentioned argument. He did not want to destroy the morale or the management of the NHS, which was his responsibility, but one can see only too clearly how such a well-intentioned aim is not always to the advantage of the public at large.

Mr. Mackinlay: In the recent Kosovo conflict, we understand that the Attorney-General advised the Government on the legality of NATO's action, and that that advice cannot, and will not, be disclosed. However, it is material to us in politics to know what that advice was, and that is the sort of thing that could, and should, be disclosed.

Mr. Davis: That is a very good example of the type of legal advice--equivalent to the Law Officers' advice--that I was describing earlier, and I can think of no reason why such advice should not be disclosed. Although I appreciate that, over time, the Law Officers and other lawyers have made the current arrangements to suit themselves, I do not think that it is necessarily worth while for us to continue with those arrangements.

Recently, the Intelligence and Security Committee had a press conference on the matter of the MI5 and MI6 buildings. Just before the previous general election, the right hon. Member for Ashton-under-Lyne (Mr. Sheldon), my predecessor as Public Accounts Committee Chairman, recommended that spending on those buildings should be put into the public domain. Immediately after the election, I made the same request. The Intelligence and Security Committee has also made the request. Although we have not received a reply, I suspect that we shall receive one.

When we do receive a reply, hon. Members should ask themselves what harm has consequently resulted. There will be no loss to the national interest, but there may some loss to individual interests. Cui bono will be a good test to apply in making that assessment.

Time and again, Public Accounts Committee members have come across matters that should have been put in the public domain long before the National Audit Office got to them, but which were not put in the public domain because the people deciding on disclosure were also involved in the matter. If the decision on disclosure were not strictly for the commissioner, the people involved in resignations--such as those of the heads of various education institutes, of English Heritage, and of the South Birmingham health authority--would be the ones who were influential in a

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decision on disclosure. The proper outcome, therefore, is that the Commissioner should have the power to decide--not only to recommend--disclosure, subject only to appeal to the information tribunal.

There is a subtle implication in the proposal, and it is for whistleblowers. Now, properly and rightly, we have protection for whistleblowers, but it is still a risky exercise for whistleblowers to rely entirely on that protection. Current protection might protect one in one's current job, but it will not protect one's career prospects. It is therefore brave--sometimes perhaps even idiosyncratic or eccentric--to be a whistleblower.

If the Bill's provisions on disclosure operate properly, a whistleblower would simply have to say to someone, "Ask this question," and the risk to the whistleblower would be eliminated. That is a very important element of the legislation.

In my role as Public Accounts Committee Chairman, I am for ever coming across matters that the National Audit Office has discovered and that, in the public interest, we have subsequently exposed. Unless a whistleblower acts, that is the only way in which problems, improprieties and injustices might be exposed. If those matters are not exposed, the public interest will not be served. If nothing else, the Bill will help us in pursuing that objective.

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