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I shall move on to the confidentiality amendments, Nos. 14 and 40. Replacing the exemption as currently drafted with a presumption that the holder has an obligation of confidentiality will merely have the effect
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of making it easier for public authorities to refuse requests for Members’ correspondence. In Committee, hon. Members agreed that there are occasions when it is right that such correspondence should enter the public domain—I think that my hon. Friend the Member for Slough (Fiona Mactaggart) raised that point—and the exemption, as currently drafted, recognises that. It is a qualified exemption subject to the public interest test. The amendments would add a rigidity, so the House needs to consider that carefully.

Mr. Shepherd: Why? You have to justify that.

Bridget Prentice: The exemption, as currently drafted, is already subject to the public interest test. If the amendments were made, it would make it much more difficult for public authorities to carry out requests.

My final point is that that the Bill as drafted contains express provision to ensure that it will not have retrospective effect. It is important that the House is aware of that. Any request for information received by a public authority prior to the commencement of the Act, should the Bill ever become an Act, will be treated as though the Act were not in force. It would be for both Houses of Parliament to comply with freedom of information requests received up to the date of commencement. Amendment No. 26 would put a limit on the exemption, and that is inconsistent with the rest of the Freedom of Information Act 2000. It would unnecessarily complicate the operation of that Act.

As I said at the beginning, the Government remain neutral on the Bill. It is for the House to make up its mind whether it thinks that the 2000 Act, which I commend to the House as an excellent piece of legislation that created transparency that was not there before, needs to be further enhanced in this private Member’s Bill. That is a matter entirely for the House, but I can tell the House that, on behalf of the Government, I will not vote in Divisions on the amendments, or on the Bill’s Third Reading, should we reach it.

Mr. Heath: It is a pleasure to speak on the large group of amendments before us. As I said in an earlier intervention, I had the pleasure of serving on the Standing Committee that considered the Freedom of Information Bill, along with the hon. Member for Stoke-on-Trent, Central (Mark Fisher), although when I asked him about it earlier, he had forgotten that he served on it, so broad is his experience in the House. He did indeed serve on the Committee, and he made a valuable contribution to it. I feel a degree of proprietorship over the provisions of the 2000 Act. In many ways, it was not perfect, and we tried hard to make it stronger. Nevertheless, it fulfilled some of its objectives. That is why I am loth to accept anything that waters down its provisions, especially when the arguments for doing so are so sparse, so badly expressed and so vacuous in nature.

Simon Hughes: And unsupported by the evidence.

Mr. Heath: As my hon. Friend says, those arguments are unsupported by the evidence, too. We have asked time and again for the evidence in support of those arguments. That is why the group of amendments is so important.


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Mark Fisher: The hon. Gentleman says that the arguments in favour of the Bill are sparse, but hon. Members in the Chamber have not heard any of them. The proposer of the Bill, the right hon. Member for Penrith and The Border (David Maclean), has yet to speak on the Bill; is that not an extraordinary state of affairs? We are being asked to consider a piece of legislation, but the person proposing it has not made the case in favour of it. He kindly tells us that he will bide his time until Third Reading, but by that stage, we will have already discussed amendments. If we are to have an intelligent debate on the amendments, do we not need to hear the proposer of the Bill tell us what the Bill is about? Plainly, we are all very confused in opposing it, but we have not yet heard—

Madam Deputy Speaker: Order. The hon. Gentleman is going on at length in his “brief” intervention. I call Mr. David Heath.

Mr. Heath: I am most grateful, Madam Deputy Speaker. The hon. Member for Stoke-on-Trent, Central is not exactly right, because of course we just heard from the right hon. Member for Penrith and The Border (David Maclean).

David Maclean: Will the hon. Gentleman give way?

Mr. Heath: I will in just a moment. On the sparseness of the argument, I suspect that I know why we have not heard a proper rebuttal of the amendments. The right hon. Gentleman can correct this impression when he intervenes on me in a moment, but he gives the impression that consideration of the Bill on Report is a sort of procedural anomaly that must be borne with forbearance, rather than a crucial part of the House’s consideration of a Bill that will have a profound effect on not only the operation of the Freedom of Information Act 2000, but the reputation of the House. That is what causes many of us concern.

David Maclean: I just want to put on record that my Bill had been on the Order Paper for some time. It received a completely unopposed Second Reading, and I could not talk on a Bill with an unopposed Second Reading. In Committee, it had the unanimous support of Labour, Conservative, and Ulster Unionist Members, and the support of the Liberal Democrat Member— [Interruption.] If I get to Third Reading—

Mark Fisher: Outrageous!

Madam Deputy Speaker: Order. I call the right hon. Member for Penrith and The Border (David Maclean), who is on his feet.

David Maclean: It is not outrageous. Those are the facts, and the facts on the record speak for themselves. The Bill had unanimous support in Committee. If we get to Third Reading, I will speak.

Mr. Heath: I am grateful to you, Madam Deputy Speaker. There was a risk of interventions on interventions, and it is important that we keep in order.

Several hon. Members rose


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Mr. Heath: Having said that, I will take two interventions before I move on to the substance of the amendments. I will give way first to my hon. Friend the Member for Falmouth and Camborne (Julia Goldsworthy), and then to the hon. Member for Aldridge-Brownhills (Mr. Shepherd).

Julia Goldsworthy: A number of anecdotal examples have been given today; one was given by the right hon. Member for Penrith and The Border (David Maclean), and another was given by the Minister. However, we have not heard whether, in those cases, the personal information was released as a result of a freedom of information request.

Mr. Heath: Let us take the charitable view and suggest that the cases involved a properly constructed freedom of information request to a public authority, and that, for some reason, the bureaucrats involved had no idea what the law says, and were therefore prepared to provide information that they should not have provided, in contradiction to the laws that are already in place to give protection. Let us say that the information was put into the public domain in that way. If that is the case, it raises two important questions. First, was any action taken subsequent to the release of that material? Was it referred to the Information Commissioner? Was the public authority involved reminded of its duties under law? Was there any subsequent action? [Interruption.] The right hon. Member for Penrith and The Border says from a sedentary position, “They just did it”. Yes, and they will continue to just do it if his Bill is enacted, because somebody who is ignorant of the provisions of the Data Protection Act 1998 and of the Freedom of Information Act 2000 as it is currently constituted is just as likely to be ignorant of the provisions of his law.

Several hon. Members rose

Mr. Shepherd: The hon. Gentleman was talking about the process, and process is important. Is it not the case that for a private Member’s Bill unopposed at its Second Reading, the construction of the Committee is entirely in the hands of the promoter, and that therefore this was more of a—

Norman Baker: Stitch-up.

Mr. Shepherd: —stitch-up, to quote the hon. Member for Lewes (Norman Baker), than a properly balanced Second Reading Committee?

Mr. Heath: I could not possibly use the word “stitch-up”. It is inappropriate language. I shall return to the amendments before us, rather than discuss the process by which we reached them. The amendments are important and I want to do them justice, but I notice that there are still at least two hon. Members wishing to intervene.

Mr. Winnick: The hon. Gentleman will have heard my intervention in the Minister’s speech, when I said that the Information Commissioner had not received complaints. If there is a genuine problem, which I
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doubt, would it not be more appropriate to strengthen the Data Protection Act, if need be? What is proposed in the Bill would spread the suspicion among many, many people in the country that we want to conceal information—I shall not go into what sort of information, as that would be out of order—and that we want to be separate. Everybody else would be subject to the Freedom of Information Act—public bodies, local authorities, the devolved institutions—but not us.

Mr. Heath: I agree, of course, but my concern is that we are straying into Third Reading territory rather than dealing with the amendments before us. I want to make sure that I concentrate on the amendments, but I shall take one more intervention before making progress.

Jim Cousins (Newcastle upon Tyne, Central) (Lab): May I bring the hon. Gentleman back to the intervention by his hon. Friend the hon. Member for Falmouth and Camborne (Julia Goldsworthy)? Let us set aside for a moment the issue of Members of Parliament. If there had been a widespread misuse of the public interest override on release of personal data, the House would have expected the Information Commissioner to report on that and bring it to the attention of both the Government and the House. No such thing has happened, and my hon. Friend the Minister made no such claim in her speech.

11.15 am

Mr. Heath: I am grateful to the hon. Gentleman for that intervention, which crystallises many of the arguments about the lack of evidence. First, he makes the point that none of the reports of the Information Commissioner has suggested that the problem is widespread. Secondly, the public interest override is retained.

The Minister asserted that amendment No. 14 made matters more complicated because it made it more difficult to interpret the public interest override. Absolute nonsense. It is still there. Whoever wrote that briefing for her was in a very confused state of mind when doing so. Nothing changes as a result of the amendment being passed, other than a tightening of the exempt material so that we are clear what is the exempt material and the mischief that the right hon. Member for Penrith and The Border presumably has it in mind to remedy. Some of us do not believe that mischief exists, but he does. We are therefore helping him by tabling amendments that identify that mischief in specific terms, rather than in general terms that are likely to bring the House into disrepute.

Mr. Redwood: Will the hon. Gentleman confirm that my right hon. Friend’s Bill would never allow the House to withhold information such as the personal expenses of MPs? The real argument is about the Government’s and my right hon. Friend’s proposal to exempt our correspondence to public bodies about public policy matters, whereas the amendment tabled by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), amendment No. 40, is more strictly
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controlled so that it protects what we all want to protect, which is correspondence on behalf of individual constituents?

Mr. Heath: I am grateful to the right hon. Gentleman for his intervention. Some of those matters were debated on the previous occasion, so I would be out of order were I to go on any excursions into that territory.

It worries me that the consequence of the Bill as currently drafted is that the whole of Parliament is exempted as a public body. The House of Commons is no longer a public body, according to the Bill if it is passed. What an extraordinary state of affairs.

Several hon. Members rose

Mr. Heath: I must make progress, but the hon. Member for Northampton, North (Ms Keeble) has been very persistent, so I give way to her.

Ms Sally Keeble (Northampton, North) (Lab): In discussing the amendment, will the hon. Gentleman take into account my experience of freedom of information requests made to me and to the county council about information that it holds about a constituent? Before such information is released, the local authority writes to me and gets me to sign, so there is ample opportunity for me to object if safety issues affecting my constituent are involved. There is no need for the amendment.

Mr. Heath: Of course there is ample opportunity. There are all manner of provisions in the original enactment that safeguard the interests of the individual. That is why the whole Bill is otiose in the extreme.

David Howarth rose—

Mr. Heath: I must make progress. I have not reached amendment No. 2 yet. This is the last time that I shall give way, as I want to address the arguments on the amendments.

David Howarth: I thank my hon. Friend for giving way and understand his impatience to get on to the substance of the amendments before the House. To reassure the hon. Member for Northampton, North (Ms Keeble), it is an important principle to bear in mind that we are talking about Parliament being a public authority and subject to the Act, not individual MPs. Individual MPs have never counted as public authorities and therefore have never been subject to the Act.

Mr. Heath: My hon. Friend is, of course, absolutely right. Let me deal with amendment No. 2.

Norman Baker: Will my hon. Friend give way?

Mr. Heath: I would be accused of inconsistency if the very last words that I said prior to taking the last intervention were that that would be the last intervention before I got on to the amendments, and I then took an intervention from my hon. Friend the
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Member for Lewes (Norman Baker), despite the fact that I would love to do so. I shall store it up and take it later.

In an earlier intervention I expressed my disquiet with amendment No. 2. It seeks to remove many of the obnoxious elements in the Bill and I could not quarrel with that intention. If my hon. Friend intends to press the amendment to a Division—because of the procedural shenanigans earlier, we were not allowed to hear his speech in favour of other amendments, but he may have an opportunity to return when he sums up the debate.

My problem is with amendment No. 2, and the reason that I prefer some of the other amendments, is that if it were accepted, the result would be that clause 1(3) would be removed. It would not exist. We would have subsection (1), subsection (2), subsection (4), which would become subsection (3), and subsection (5), which would become subsection (4). Subsection (2) has already been discussed, so we cannot revisit it. It removes the House of Commons and the House of Lords from schedule 1 of the Freedom of Information Act 2000. Schedule 1, which is the list of public authorities to which the Bill would apply, would be minus the House of Commons and the House of Lords which, as I said earlier, are an absurdity if they are not public authorities.

Mr. Alan Reid (Argyll and Bute) (LD): Will my hon. Friend give way?

Mr. Heath: Let me develop my argument a little, if I may.

There would be a serious imbalance in interpreting the legislation on the part of other authorities or individuals, because the House of the Commons and the House of Lords would not be a public body, but the body to which we were corresponding—which is, by definition, one of those covered by the 2000 Act—would. We would be in the extraordinary position that no application could be made to the House of Commons or the House of Lords on one side of any dialogue or correspondence, but the application could be made—without exemptions, were the amendment to be made—on the other side. There would be a fundamental imbalance.

Some might argue that amendment No. 2 would be an improvement because it would make it even more obvious what an absurd Bill it is. However, on balance I prefer a Bill to have a degree of internal integrity and equilibrium in its structure. I fear that the amendment would lose that and create an unbalanced Bill.

Mark Fisher: The hon. Gentleman referred to the House of Commons “or” the House of Lords. In subsection (3), new section 34A applies only to the House of Commons, not to the House of Lords. This is a matter for Parliament—both Houses—yet the Bill appears to confine itself to the House of Commons. Am I wrong, or have I missed something?


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