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Mr. Shepherd:
I am not sure whether it is an enigma or not, but the Secretary of State was correct in saying that the institution is held in great esteem because it is non-controversial and does not enter into the public debate. Some members of the royal family, however, are passionate members of society who lobby for objectives. That is where there is a delicacy in this matter. We must maintain clarity in our constitutional arrangements,
and it is an essential key to the stability of the whole institution of the monarchy that the sovereign and their successors do not enter into controversy.
Mr. Straw: I appreciate the point the hon. Gentleman makes. If he examines the proposals in new schedule 1, however, he will see that a distinction is drawn. An absolute exemption is proposed for the monarch, the heir to the throne and the second in line, and a qualified exemption is proposed for other members of the royal family.
It became clear that there were lacunae in the drafting of the Freedom of Information Act-although that was never an issue when it was passing through Parliament as a Bill 10 years ago-in that it does not properly acknowledge the fundamental public interest in maintaining the confidentiality surrounding the conventions, and in that that does not apply to historical records, despite the fact that the sovereign remains in office for life. Therefore, the proposal is for an absolute exemption for information relating to communications with the sovereign, the heir and the second in line, and for those acting on their behalf, of a period of 20 years, or their lifetime plus five years, whichever is longer.
To pick up on the point of the hon. Member for Aldridge-Brownhills (Mr. Shepherd), in recognition of the fact that the constitutional position of other members of the royal family will vary, we are proposing that there should also be a qualified exemption: decisions on whether information relating to them should be released would come after consideration of the public interest test. Their exemption would no longer expire at 30 years; instead it would expire at 20 years, or five years after the lifetime of the relevant member of the royal family, whichever is the later.
David Howarth: I might be mistaken, but it seems to me that paragraph 3 of new schedule 1 affects not only national records, but the application of the Freedom of Information Act to royal communications by removing any possibility of the use of the public interest test from any such communication. Am I right in thinking that that is the effect?
Mr. Straw: As I have said, that paragraph provides an absolute exemption in respect of records relating to the monarch and the next two in line and also for a qualified exemption of 20 years or for five years after the death of the monarch, whichever is later. The hon. Gentleman is correct in that respect.
Dr. Tony Wright (Cannock Chase) (Lab): In the unlikely event that we had a monarch who was seeking to subvert the constitution, would it not be in the public interest for us to know about that?
Mr. Straw: Of course it would, but if the monarch were seeking to subvert the constitution, we would know about that, because it would become rather obvious, and then, of course, it would be perfectly possible for this House to bring in all sorts of emergency legislation, including an Act of Attainder. A trial could be held down in Westminster Hall, and the usual arrangements made for punishment. I do not think for a second that the Freedom of Information Act or this exemption would prevent my hon. Friend and others from knowing about such an act of subversion.
Mr. Gordon Prentice: But there would be a public interest in disclosure if the heir to the throne, or the second in line, were to intervene and change public policy quite significantly. Surely we should know about that.
5.30 pm
Mr. Straw: There is a balance to be struck. My view is that the right balance is encapsulated by the provisions that we make. I seriously say to my hon. Friend that there is no way that members of the royal family can change public policy. They may have opinions, and they are entitled to those-why would they not be? The royal family do a remarkable job in how they comport themselves in this country. As he will know, the work that Prince Charles has done in better educating the public about, and ensuring that they are better informed about, one of the world's wonderful religions, Islam, is remarkable. Some people might regard that as slightly partisan, but I do not; I think that it is entirely appropriate for him to do that. However, he is not making public policy on that matter; public policy is ultimately decided by this place.
I have spoken at slightly greater length than I had anticipated, but I hope that these provisions commend themselves to the House, because they represent a significant further advance on ensuring that there is genuine freedom of information in this country.
Mr. Dominic Grieve (Beaconsfield) (Con): These provisions commend themselves to Conservative Members, and I greatly welcome the fact that the Government have tabled them to implement the proposals in the Dacre report. I join the Secretary of State in thanking those who contributed to putting together the report.
I, too, do not wish to take up too much of the House's time, because the answers given by the Secretary of State on the exemptions in new schedule 1 appear to make eminent sense and there is no point in my repeating the arguments that he put forward. I seek slightly greater clarification on only one matter. I understand that the original proposals in the Dacre report were that we should move from 30 to 20 years and, secondly, that there should be a formula to cover the period that will fall over 10 years to address the differences between the 20 and 30-year periods. In new clause 22, the Government have, perfectly reasonably, not sought to spell that out in primary legislation, but have chosen to give the Lord Chancellor and the Secretary of State discretion on how that is best implemented by statutory instrument.
If my understanding of the new clause is correct, it would therefore be open to the Government, when dealing with the matter at a later date, to go less far than the Dacre report proposes, or to identify some categories for disclosure and some for which disclosure might not happen. Alternatively, they could decide to go further and faster. I should be grateful if the Secretary of State could clarify that point so that the House may understand exactly what it is implementing. However, I appreciate that any order made by the Lord Chancellor would require a statutory instrument and would be
"subject to annulment in pursuance of a resolution of either House of Parliament."
It is important that that point is appreciated because it might offer us an opportunity to speed up the process.
It has always been recognised in the Dacre report, however-and indeed by the Government-that past assurances about the length of time for which material will be retained rather than put in the public domain represent a factor that must to be taken into account when deciding whether that process should be accelerated. When something concerns an individual who is very much alive, and who can therefore be consulted, their view may carry considerable weight when considering whether particular categories of material ought to be disclosed.
That is the only point on which I hope that the Secretary of State might be able to respond. Subject to that, and because I am mindful of the time available for debate, I simply wish to reiterate my welcome and say how grateful I am that we have taken the opportunity-at one stage I thought that we were not going to get it-to have the provisions implemented in this Bill and before the forthcoming general election.
Dr. Tony Wright: One of my right hon. Friend the Secretary of State's many enduring legacies is the introduction of the Freedom of Information Act, and it is appropriate that he is introducing an improvement to that measure in the last days of this Parliament.
First, let me quickly welcome the dog that did not bark: the proposal to exempt Cabinet materials, which was the original intention. I understand that the Prime Minister made a most welcome intervention to ensure that that did not happen. I can understand the temptation for wanting to do it, however. I remember, many years ago, visiting Australia to look at freedom of information when we were contemplating it here. I remember, as might my hon. Friend the Member for Pendle (Mr. Prentice)-we have been together for a long time-that we stood outside the Cabinet room, where we were shown a trolley loaded with papers. People explained that they pushed that trolley into the Cabinet room so that the papers became, ipso facto, Cabinet papers, therefore giving them a blanket exemption. They thought that that was a cunning wheeze, and I can quite see that there would be huge attractions in trying a similar wheeze here. I am glad that even though that idea was flirted with, it was resisted, and we should welcome that.
I never thought I would say that I wanted to praise the editor of the Daily Mail, but putting him in charge of the review of the arrangements in this area now looks to have been an inspired decision. I am glad that we are now seeing, more or less, the implementation of what that Committee recommended and that the period is being brought down to 20 years.
I want to say something about the royal family exemption, however. I know that my right hon. Friend the Secretary of State told me that all such things were inconceivable when I raised the question of what would happen if a royal did something or other but, of course, there is a history to all this. Monarchs in the past have not behaved themselves terribly well in terms of the constitutional relationship. People did not know about it at the time, but they jolly well ought to have done. Just before the 1880 election, Queen Victoria wrote in a memorandum:
"If the Liberals...intend to lean to the extreme Radicals, they can never expect any support from the Queen...These are dangerous times and any attempt to make our Institutions Democratic will be most disastrous".
I think that people would have been entitled to know that that was coming out of the palace. In 1906, when the Labour party did rather well in the election, people were entitled to have known that the Prince of Wales, who later became King George V, wrote:
"I see that a great number of Labour members have been returned which is a rather a dangerous sign, but I hope they are not all socialists."
People are entitled to know such things.
As it happens, I am quite an admirer of Prince Charles. He seems to be doing an interesting job-that is, an impossible job with interest-and I find myself in agreement with him on many things. If I were in his position, I would write similarly vigorous letters to Government Ministers about issues of the day. The question is whether such communications-after all, the amendment that we are being asked to consider is, in a sense, the Prince Charles amendment-should remain non-disclosable in perpetuity, which is to say until five years after his death. Given the splendid longevity of members of the royal family, that would be a long time away. As he is someone of robust opinions who tries to persuade Government Ministers to see the world from his point of view, it is not fanciful to suggest that a Government Minister might decide to see things from the point of view of the person writing from the palace.
Let us consider homeopathy, which most sensible people think is not entirely supported by evidence. Suppose that Prince Charles, the heir to the throne, were to weigh in to the debate, giving heavy support to the idea that resources should be devoted to homeopathy. If a Government then decided to start allocating resources to homeopathy, people would be entitled to know that that act of lobbying had been extremely successful. We would want to know about it if it had come from any other source.
We have an obligation both to respect the privacy of such communications at the time and to make sensible judgments about when they can properly be released so that people can see what has happened. What I do not understand is what has been the urgency of making changes in this area. I ask my right hon. Friend to address that point when he responds to the debate, because my understanding is that there is no difficulty and that the current exemption has been upheld whenever it has been tested by the Information Commissioner. I think that my right hon. Friend has to make the case for giving away a public interest test virtually in perpetuity, and I ask him simply whether representations on this issue have come entirely from him, or whether they have come from the royal family itself. With those comments, I extend a welcome to the measures.
David Howarth: I, too, welcome the progress that the new clauses and schedules represent, although I resent slightly the fact that they were introduced so late in the day and that we are taking up time on Report with yet more new Government proposals. It seems to me that the degree of scrutiny that they will get is inadequate. It is now very unlikely that the Bill will get much further than Second Reading in the other place, so the Bill will go straight into wash-up-and who knows what will come out of the other end of that? Certainly, there is no public debate. I fear that that was perhaps part of the intention behind bringing forward at this stage the part to which the hon. Member for Cannock Chase (Dr. Wright) has referred. That said, I welcome the fact that progress is being made.
I would like the Secretary of State to say a little more about the decisions that the Government have taken in response to the Dacre review. In his opening remarks, he rather skated over the question of whether there should be a 20-year period, rather than a 15-year period, and gave the impression that although it is perfectly natural for people to suggest a 15-year period, a 20-year period would be far better. The Government seem to be arguing that one reason why Ministers believe that the period should be 20 years is that it would be much less of a distraction to them in their current jobs than if they thought that their deliberations would be revealed in 15 years' time. I wonder whether there is any evidence for that.
Mr. Straw: I can answer that point directly. The review team said that
"neither the case for 15 years nor the case for 20 years is beyond argument. It must be a matter of judgement how to strike the balance".
I do not say that there is direct evidence because we are making judgments about the future, but our judgment was that the balance would be best struck at 20 years. Hon. Members should bear in mind that, with the Freedom of Information Act 2000, most records are not closed even within the current envelope of 30 years-soon to be 20 years, I hope. Records can be requested even after a couple of years. However, that decision was a matter of judgment.
David Howarth: I thank the Secretary of State for that response, but surely there should be some evidence about how long ministerial careers last. Perhaps this point can be applied directly to him. His ministerial career started in 1997, so, under the 15-year rule, he would start to be affected by the greater openness in just a few years' time, which might or might not be just after he has left office. In contrast, he would be affected in seven years' time under the 20-year rule. Would he feel distracted from the exercise of his present office by the prospect that he might have to be open about 1997 in a couple of years' time, as opposed to seven years? Given the robustness with which he approaches his job, that seems unlikely. I therefore voice some scepticism about the way the figure has drifted upwards.
5.45 pm
The second point about which I want to express some scepticism has been raised already in the debate, and has to do with the commercial enterprise exception. I think that a policy decision has been made that has not been acknowledged openly. When commercial organisations or enterprises sign very long-term contracts with public authorities for the provision of public services, they are often very nervous about openness. That is one of the problems: openness is a disincentive for operating the public service in that way.
A further problem-and when I was the leader of a council, I used to think that it was really serious-is that that sort of arrangement has the capacity to freeze public policy in one direction for a very long time. The idea that it is at all legitimate for any political authority, whether it be the Government or a local authority, to enter into contracts that last a generation is, I think, problematical. Simply on policy grounds, therefore, I
would prefer there to be a disincentive against awarding very long-term contracts of that sort. I can see why commercial interests might be nervous, but I am glad that they are.
My third point echoes what the hon. Member for Cannock Chase said. This group of amendments contains one piece of good news, if only in the sense of the dog that did not bark. The Cabinet papers exemption was mooted at an earlier stage, and it is very good news that it does not appear in the Government's final proposals. However, I want to add one point to what the hon. Gentleman said, and it is that the ministerial veto is still in place.
That veto was used in connection with the Iraq Cabinet minutes, for example, and again in the case of the Cabinet Committee considering devolution, but I believe that a dangerous drift is taking place. When the veto was used for the first time, the Secretary of State came directly to the House and justified what was going on in an oral statement. He was therefore subject to the accountability of the House, even though everyone said at the time that the case was highly unusual and not a matter of routine.
However, in respect of the second case-the one involving the Cabinet Committee and devolution-the Secretary of State made a written statement. He did not come to the House, and I think that we are drifting towards routine objections- [ Interruption. ] The Secretary of State makes a gesture to show that I have mentioned only two cases. It is true that this is a curve with two points, but where is the trend going? That is the question.
I object to the whole idea of a ministerial exemption, as it is a violation of the separation of powers. However, I would be much more comfortable with the present situation if the Government were to say that, whenever the exemption is used, Ministers at the very least will have to come to the House and justify it orally. They must not be allowed to leave that to a written statement.
Mr. Straw: The legislation has been in force for five years, and the section 53 veto power has been exercised only twice. In that five years, the commission or the tribunal has made scores and scores of decisions that could have been subject to veto. The fact that they have not been shows that the exemption has been used only very rarely.
However, the hon. Gentleman mentioned the statement that I made about the Iraq Cabinet minutes. I am always up for making oral statements, but it is a matter of balance. In that case, the House was properly informed about the matter, and I do not think that anyone made a request for an urgent question. I would also point out to the hon. Gentleman-he may not accept this-that the section 53 veto power is as fundamental to the architecture of the Act as all the other provisions. The truth is that the Act would not have gone through, and no Government would have put their name to it without the full works of the architecture, and one limb depends on another.
David Howarth: On the substance, the Secretary of State and I simply disagree about whether the exemption is fundamental. I do not think that it is. He might be right that it was causative-it helped to get the Bill through the House-but I do not think that it is very important in a proper system of freedom of information, in which the ultimate arbiters should be the courts, not the Government making decisions in cases in which they are one of the parties.
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