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Constitutional Reform and Governance Bill
Consideration of Bill, as amended in the Committee
[ Relevant documents: Report of the Joint Committee on the Draft Constitutional Renewal Bill, Session 2007-08, HC 551-I and -II, and the Government response, Cm 7690. Tenth Report from the Public Administration Select Committee, Session 2007-08, on Constitutional Renewal: Draft Bill and White Paper, HC 499, and the Government response, Cm 7688 . Fourth Report from the Joint Committee on Human Rights, Session 2009-10, on Legislative Scrutiny: Constitutional Reform and Governance Bill; Video Recordings Bill, HC 249. The Scottish Parliament has passed a Legislative Consent Resolution in respect of this Bill. Copies of the Resolution are available in the Vote Office. ]
'(1) In section 3 of the Public Records Act 1958 (selection and preservation of public records)-
(a) in subsection (4) (transfer to Public Record Office or to other appointed place of deposit of public records selected for permanent preservation), for "thirty years" substitute "20 years", and
(b) after that subsection insert-
"(4A) Until the end of the period of 10 years beginning with the commencement of section [Transfer of records to Public Record Office] of the Constitutional Reform and Governance Act 2010, subsection (4) has effect subject to any order made under subsection (2) of that section."
(2) The Lord Chancellor may by order make transitional, transitory or saving provision in connection with the coming into force of subsection (1)(a).
(3) An order under subsection (2) may in particular-
(a) provide for the time within which any records are to be transferred to the Public Record Office or other place of deposit referred to in section 3(4) of the Public Records Act 1958, and
(b) make different provision in relation to records of different descriptions.
(4) An order under this section is to be made by statutory instrument.
(5) A statutory instrument containing an order under this section is subject to annulment in pursuance of a resolution of either House of Parliament.'.- (Mr. Straw.)
Brought up, and read the First time.
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The Secretary of State for Justice and Lord Chancellor (Mr. Jack Straw): I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discuss the following: Government new clause 23- Freedom of information.
Government new schedule 1- Amendments of Freedom of Information Act 2000.
Mr. Straw:
These provisions give effect to the Government's response to the Dacre review of the 30-year rule. The House will recall that, in October 2007, my right hon. Friend the Prime Minister announced an independent review of the 30-year rule, which generally requires that all national records be released into the public domain after a 30-year period, save where there are special exemptions. The review was chaired by Paul
Dacre, a distinguished journalist and the editor-in-chief of the Daily Mail group of newspapers, who worked with Professor Sir David Cannadine, a distinguished historian, and Sir Joseph Pilling, a distinguished public servant. I am grateful for the care and interest that they took in conducting their review. I dare say that it is to be expected of a review written by a senior journalist and an eminent historian, but, in addition to containing good recommendations, it is a very interesting and informative read. I commend it to the House, which I would not for every review conducted on behalf of the Government. This one is deeply informative.
We have considered the review's recommendations carefully. On 10 June, my right hon. Friend the Prime Minister announced to the House the Government's intention to move to a 20-year rule. The Dacre review debated whether we should move to a 20-year rule or a 15-year rule and, on balance, it came down in favour of a 15-year rule. We considered the matter in some detail and my right hon. Friend the Prime Minister announced our intention to move to a 20-year rule. There was a subsequent period for further consultation, and last week, we published our response to the review in full. That is now before the House.
The key proposals are to reduce the 30-year rule to 20 years, to amend the Freedom of Information Act 2000 and to reduce the time frame within which certain exemptions can apply to the 20-year period. New clause 22 will implement those proposals and it will amend the Public Records Act 1958. Those proposals will thus provide earlier access by 10 years to a wide range of material, and it is the next step towards greater transparency-a process that began under this Government with the passage of the Freedom of Information Act 2000.
Such a move involves careful preparation. It is often assumed that officials simply put the records on the shelves and open them. As I know, not least from my time in the Foreign Office, a huge effort is put in by historians and archivists to go through all the records carefully to ensure that all that can be made publicly available are made publicly available, while also ensuring that some are held back in conformity with public records legislation. The same is true of every other Government Department.
Because the proposal involves a big change, the Dacre review recommended a transitional period and essentially proposed that until we reach the target time of 20 years, in the intervening period two years' records should be released every year to get down from the 30-year limit to the 20-year limit. The new clause makes provision for the transitional period to be brought in by order, because exactly when that new time limit is introduced will need to be considered by Government in the next Parliament.
Dacre also recognised-as does everyone else and as did the House when we discussed the freedom of information legislation-that there must be a balance between increased transparency and protecting sensitive and personal information. That is a fact of life. The introduction of the Data Protection Act 1998 preceded the Freedom of Information Act 2000 by a couple of years, and one thing I believe I got right about the Freedom of Information Act 2000 was requiring a single commissioner for both data protection, which is about protecting information, and for freedom of information, which is about its release. Some other Administrations have two commissioners for those two
purposes, which can cause immense problems. This represents one area where a balance must be drawn. In circumstances going beyond the protection of personal information, everyone accepts that there may be arguments for protecting the information for longer than the minimum period. Bearing that in mind, schedule 1 maintains the time limit for certain exemptions at 30 years.
The first exemption relates to the protection of commercial interests. Some contracts, particularly those relating to large-scale infrastructure projects and procurement, can run for more than 20 years and may contain commercially sensitive information beyond that point.
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): I appreciate that this is a sensitive area and I welcome the acceptance of 20 years as a general proposition. It is difficult, however, to see why commercial enterprises should have the retained 30-year holdback, in particular in the case of local authorities. What possible contract could a local authority enter into that would need protection for 30 years? If the right hon. Gentleman could build on what he started to say about commercial interests, particularly as affecting local authorities, it would be helpful. Is this intended to protect defence establishments or the nuclear industry; what is the purpose behind this 30-year retention of information?
Mr. Straw: I have cited large-scale infrastructure projects and procurement. I cannot immediately think of any local authority projects of such a scale or duration, but that is only because no such projects are within my experience. I am sure that some exist, and it may well be the case-although I am afraid I am not informed on the matter-that some of the contracts entered into by local authorities of all political persuasions for the longer-term provision of, for example, back-office services last for more than 20 years. I do not feel that whether commercially sensitive information should be protected while the contract lasts should be simply a matter of chance, but that does not prevent proper scrutiny of the arrangements by, for instance, auditors-perhaps by the Audit Service.
I have just been provided with further and better particulars. I am happy to say that I knew this bit already and was going to mention it, but I am deeply grateful none the less.
My constituency contains a large new hospital which is under a PFI contract which will run for more than 20 years, and I believe that the same applies to some of the new prison contracts. [Interruption.] An hon. Member asks, from a sedentary position, "Why should we not know about them?" This is a qualified exemption. That is what it says here, and what I was going to say in any event.
A balancing test will still be required. We are not talking about an absolute exemption from day one until the end of the period. What we are discussing is whether there should come a moment when the information is automatically released. I think it reasonable for parties to such contracts, if they are still in force, to be able to argue that their commercial interests-the interests of the public authority on one side and those of the commercial organisation on the other-may be adversely affected if the information is released into the public
domain. It would be a matter for the Information Commissioner, and then the Information Tribunal, to make the final judgment. I think that that is a reasonable balance.
David Howarth (Cambridge) (LD): What I do not follow is why the argument finished with 30 years. If it is purely about commercial interests, we should bear in mind that it is perfectly possible for contracts to last for longer than that.
Mr. Straw: Whether or not that is the case-and I accept that there are some areas involving defence, for instance, in which exemptions may continue-there has not been a problem so far, and the Government have not sought in any way to use the Dacre review to restrict access via freedom of information requests rather than to make it easier.
Mr. John Redwood (Wokingham) (Con): Given the extension of freedom of information opportunities, does the Secretary of State believe that there is any special merit in parliamentary questions any more? Might some information be made available to Parliament that is not made available in response to an FOI request, or is this part of a process whereby Members of Parliament will become just like members of the public, and submit FOI requests instead of parliamentary questions?
Mr. Straw: That is a very important point. I have to deal with both parliamentary questions and requests for information under the Freedom of Information Act, and my answer to the right hon. Gentleman is that there is every purpose in parliamentary questions. They have to be answered by a Minister, and they have to be answered very quickly. Occasionally there are delays, but-the right hon. Gentleman will remember this from his time as a Minister-a large part of my box and those of my ministerial colleagues every night relates to answering parliamentary questions. I have a daily diet of questions from, for instance, the hon. and learned Member for Beaconsfield (Mr. Grieve) and his colleagues. I do not complain about that in the least-it is his job. I do my best to ensure that the questions are answered. Normally, the reason for the delay is that I do not think that we are providing full information, not the reverse.
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Occasionally, hon. Members put in an FOI request if they feel that they are being blocked by a Minister. In my experience-obviously I cannot speak directly for other colleagues-that happens only when there is a really strong case in the public interest for not making the information available. In that case, there is of course an opportunity to appeal to the Information Commissioner.
I would not recommend making routine FOI requests because they take much longer to process. There is no requirement to answer such a request in a couple of days, as there is to answer a question tabled to the Secretary of State under our Rolls-Royce system. Such a FOI request goes to someone, inevitably at a lower level, and there is a maximum time of 20 working days, a month, to provide the requested information. Sometimes that limit is exceeded; it can take a lot longer. I accept, however, that FOI has opened up the ability to question Government. In the old days, which the right hon. Gentleman will remember, when I was working as an adviser, Ministers could simply block questions-they
would put a block on any further answers. Nothing could be done about that in that alleged golden age. That time has gone. I have had to say once or twice to officials, "There's no point trying to block this, otherwise we will get an FOI request." My approach has just been to answer the question, and life has gone on. I hope that that is helpful.
I need to make some progress because other colleagues wish to speak. Information affecting relations between the United Kingdom Government and the devolved Administrations may also be sensitive for a longer period, and it is right that that should remain protected beyond the 20-year point, where it is in the public interest to do so.
A related point is that we want to continue to protect information that would be prejudicial to the work of the Executive Committee of Northern Ireland, or which would otherwise prejudice the effective conduct of public affairs in Northern Ireland. I refer to one of the most extraordinary things that has happened in my 31 years in this House. I came here a month after Airey Neave was murdered on the ramp up from the car park. Like many hon. Members, I remember the terrible terrorist outrages that took place in the 1980s and early 1990s. Indeed I was caught up in one in the 1970s. Then, dramatically, following painstaking work, originally by Sir John Major and his Government, including the right hon. and learned Member for Devizes (Mr. Ancram), and under Tony Blair, huge progress has been made. Northern Ireland is completely different now. That could not have taken place-I am glad to see the right hon. Member for North Antrim (Rev. Ian Paisley) in his place-without great statesmanship by both sides of the confessional divide in Northern Ireland and without the possibility of secret, entirely private negotiations. It is important that there should be a record of those. It is also important that they should not be released for a long time.
Mark Durkan (Foyle) (SDLP): I note that my right hon. Friend has referred to the provisions in new schedule 1 that refer directly to Northern Ireland. From whom did the Government seek clearance or agreement for those extended exemptions? If it was just the Northern Ireland Executive, whose affairs are already safeguarded from freedom of information and other things anyway, why do the provisions of the new schedule extend to the Northern Ireland Assembly, Northern Ireland Departments and any Northern Ireland public authority?
Mr. Straw: I did not seek clearance directly from any of the bodies in Northern Ireland. I took the advice of my right hon. Friend the Secretary of State for Northern Ireland. His advice is and has been very careful on this. I will seek to get more information on the matter that my hon. Friend raises when I come to my winding-up speech, if that is helpful.
Mark Durkan:
Just to clarify, I fully accept what my right hon. Friend has said about the contribution of the right hon. Member for North Antrim (Rev. Ian Paisley) in latter years, but some of us were deeply involved in putting agreements in place that were about ensuring that we had accountable, transparent Government. Transparency is as important as equality and inclusion in ensuring that public confidence is maintained and
sustained in future. People will be deeply suspicious about a change such as this. No one in Northern Ireland appears to have been consulted about it. It appears to have been made completely on the whim and the wheeze of the Secretary of State for Northern Ireland.
Mr. Straw: I will come back to that in more detail in my closing remarks.
I now come to the proposals we have made in respect of the monarchy.
Mr. Gordon Prentice (Pendle) (Lab): First, may I ask about the records of the honours scrutiny committee? I understand that no records have been destroyed but that civil servants are looking at the criteria for selecting those that will be preserved in the National Archives. In a briefing that I have received from the Campaign for Freedom of Information, I am told that the honours exemption would continue for 60 years. Are the Government telling the House that that is indeed the case; that our successors will have to wait a couple of generations before they can find out what the honours scrutiny committee has said about certain individuals?
Mr. Straw: When we were discussing freedom of information between 1998 and 2000, it was agreed that records relating to honours should be subject to a clear exemption, for reasons I think everybody understands. I do not recall Paul Dacre making any suggestions to the contrary, so there is nothing in these proposals that changes that either way.
The provisions relating to the monarchy were presaged in the Government's response, which was published at the end of last week. We are blessed in this country by a constitutional monarchy of the highest standards. Whatever turmoil there might have been in our body politic, above it all, and held in continuing high respect, is the position of the sovereign. There were lacunae-I confess that I am the Minister responsible-not in the intention of the Freedom of Information Act, but in its drafting that have raised some uncertainties about the protection of the monarchy in relation to national records. Everybody acknowledges that there is a profound difference between those who hold public office because they are volunteers and those who are members of the royal family, particularly the senior members-the sovereign and the heirs to the throne-who, by definition, serve for a lifetime. It seems to me entirely reasonable-I say this notwithstanding the fact that I am a Minister who has served for a longer period than many-for us to bring the 30-year rule down to 20. But it is of great importance that we protect the political impartiality of the monarchy, the sovereign's right and duty to counsel, to encourage and to warn the Government and the right of the heir to the throne to be instructed on the business of government in preparation for the time when they assume the monarchy. These rely on well established and respected conventions of confidentiality.
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