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The hon. Gentleman is not wrong, nor has he missed anythinghe is absolutely right in his interpretation. The right hon. Member for Penrith and The Border is the only person who can explain this;
perhaps he can return to it on Third Reading. For some reason, under subsection (2) the House of Lords would no longer be a public authority. It is arguable whether the House of Lords as currently constructed is a public authority, but it is the upper House of Parliament until it is reformed, and I would say that it is a public authority. It is exempted in subsection (2) but not mentioned in subsection (3), which relates only to communications with the House of Commons. Were one to accept the difficulties that the right hon. Gentleman raises, which I do not, one could argue for that difference on the basis that Members of the House of Commons have constituents and Members of the House of Lords do not, although they often take up cases on behalf of individuals.
One of the questions that has often been asked in relation to the Bill is what the difference is between a Member of the House of Commons taking up a matter on behalf of their constituents and a county councillor doing so. I was a county councillor for 12 years, and I used regularly to write to public authorities on behalf of my constituents. There is no difference in kind between a Member of the House of Commons and a county councillor, a district councillor, a parish councillor, a member of a community council or a member of a unitary authority. That is an inconsistency that the right hon. Member for Penrith and The Border would do well to explain when the Bill reaches Third Reading.
Simon Hughes: We have tried to address that in the amendments that were tabled and from which Mr. Speaker has selected. The House has an option. If it supported amendment No. 14, the provisions would relate only to the Commons, but if it supported amendment No. 40, they would apply to the Commons and the Lords. It is a perfectly proper question, and the selection allows us to make the choice.
Mr. Alan Reid: My hon. Friend has hit on an inconsistency in the Bill. He referred to county councils, but there is also the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. Subsection (3) would create the absurd situation whereby if the constituency MSP and I wrote a joint letter on behalf of constituents concerning public policy, it could not be released, but if we wrote separate but identical letters, the MSPs letter could be released and mine could not.
Mr. Heath: My hon. Friend has opened up a whole new area of debate. He is right, and we should have an amendment to that effect. As I sit for a Somerset constituency, I am afraid that I had not appreciated that glaring discrepancy.
Hywel Williams (Caernarfon) (PC):
There is a further level of absurdity. The hon. Member for Banff and Buchan (Mr. Salmond) is a Member of the Scottish
Parliament as well as a Member of this place, and would have to be treated differently depending on which hat he was wearing.
Mr. Heath: The hon. Member for Banff and Buchan would have to write very clearly at the top of his letter, I am writing this as a Member of the House of Commons, or I am writing this as a Member of the Scottish Parliament. If he wrote the letter as First Minister, he would be writing as a member of the Government, and there are Government exemptions within the scope of the original enactment. We would need to check whether his letter was written as from the hon. Member for Banff and Buchan, as from the MSP for Gordon, or as from the First Minister. Does it contain personal information? Does it contain policy discussion? Is that policy discussion based on information that he has received from the civil service in Edinburgh, in which case it may be exempt information, or is it from the Government here, in which case it falls into a completely different category? There are all sorts of complexities, and I wish I had not started thinking about it. The more I do so, however, the more I realise that this whole area requires the Bill to be recommitted, because it fails to address the new and important issue about hon. Members with dual membership. However, that has nothing to do with amendment No. 2.
Jo Swinson: It is indeed relevant to the amendment. As a Member of this Parliament and a Scottish Member, under the Bill a letter that I wrote to a Scottish authority in my capacity as MPto the Greater Glasgow health board, for examplewould be treated entirely differently from correspondence under the stronger Freedom of Information (Scotland) Act 2002. That correspondence would not be exempt, but any correspondence to, say, the Department for Work and Pensions would be exempt. I do not know whether it would matter whether I had written to the DWP office in Scotland or the office in London. The Bill would bring many confusions to Scottish Members of Parliament.
Mr. Heath: I am so happy that we simple souls in Somerset do not have these problems. It must be a daily problem for Members who represent Scottish and Welsh seats to work out exactly what is what. We see that every time there are Scottish or Welsh questions, because the question nearly always concerns something that is not the responsibility of the Minister on the Treasury Bench.
There is a further difficulty everywhere. My hon. Friends comments are relevant to the amendment. If I manage to catch your eye later,
Madam Deputy Speaker, I am happy to expand on the point. The Bill as it is currently drafted refers to what Members of Parliament do in that capacity. The meaning of those words is unclear. For example, if I wrote a letter to my local authority protesting about a planning application from my next-door neighbour, would I be acting in my capacity as a Member of Parliament or not?
Mr. Heath: That is a cogent point, which we tackled in the Standing Committee that considered the original measure. Some of us argued that there should be a more objective test of the exempt material. However, Ministers told us that it had to be subjective and at the discretion of the public authority and, subsequently, of the Information Commissioner. That is why the Under-Secretarys response to the amendments is so perplexing because she turned that argument on its head and said that the position that I described is no longer the Governments. She said that they no longer expect that extent of subjectivity, which was prayed in aid by the Solicitor-General, who was then Minister of State at the Home Office, and Mr. David Lock, who was then Solicitor-General.
Further to that point of order, Madam Deputy Speaker. My understanding is that putting the Question is at the Chairs discretion. You have accepted closure on a limited basis, after announcing at the beginning of our proceedings that you would give all hon. Members a chance to speak. I tabled amendments but I have not been able to speak about them. No Labour Member has been able to speak about their amendments and no other
Conservative Member has been able to speak against the dire Bill during consideration of the amendments.
Madam Deputy Speaker: The decision is in the hands of Members. The Division has been called. I have allowed more than two-and-a-half hours of debate and it is now up to hon. Members to determine the outcome of the vote.
David Maclean: On a point of order, Madam Deputy Speaker. Once again, those in support of me and the Bill have managed to clear the Lobby. I anticipate that they are in the majority, but the opponents of the Bill seem to be delaying once again.
Madam Deputy Speaker: Order. I understand that separate Divisions are sought on a number of amendments. The approval of subsection (3) by the defeat of amendment No. 2 limits that choice substantially, but I am prepared to allow a Division on amendment No. 40.
(a) is held only by virtue of being contained in a communication between a member of the House of Commons, acting in his capacity as such, or a member of the House of Lords, and a public authority, and
Simon Hughes: On a point of order, Madam Deputy Speaker. I understood your point about our not voting further on matters covered by earlier votes, but I wonder whether you could reflect on whether it would be possible for us to consider and vote on amendment No. 16, which does not appear to be linked with earlier votes in the same way.
Madam Deputy Speaker: I understand the hon. Gentlemans point, and I have reflected on it. Having done so, I must stick to my original ruling. I decided to allow a second vote, and that was the vote on amendment No. 40.
Mark Fisher: On a point of order, Madam Deputy Speaker. I understand your ruling and the thinking behind it, but amendments Nos. 41 and 42, tabled by the hon. Member for Aldridge-Brownhills (Mr. Shepherd) and me, raise a wholly different point about the House of Lords, which we have not covered at all.
Madam Deputy Speaker: It has never been the practice of the occupant of the Chair to engage in a discussion on the Floor of the House about the selection of amendments. As I said, I have already given the House an opportunity to vote on amendment No. 40. My decision was marginal, but I thought that hon. Members should have the benefit of the doubt. Now we must move on.
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