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2 Mar 2010 : Column 841

May I correct the Secretary of State? There are several requests for urgent questions in the normal course of events, but those requests are not always granted. There is a problem, because whenever the question of Cabinet minutes arises, the Government react automatically in thinking that the exemption should be used. I do not want that to be the case, because that aspect of the law is still within the general jurisdiction of the commissioner and the public interest test. I do not think that it should be changed simply as a result of the Government's repetitive decision.

Finally, I do not want to add very much to what the hon. Member for Cannock Chase said about the royal papers, but I think that he is right. The problem is not to do with the sovereign at all, but with other members of the royal family. The question is whether a complete exemption from the public interest test-there is no balancing; it is an absolute exemption-should apply beyond the sovereign herself. The hon. Gentleman is quite right to make the point that if lobbying is taking place by anyone-by any citizen-that is something that the public should know about at some point.

The House should also bear carefully in mind the point made by the hon. Member for Aldridge-Brownhills (Mr. Shepherd). The constitution is a delicate balance: the monarchy exists in that balance, because it is politically neutral. That neutrality should not just be an apparent neutrality engineered by legal exemptions but a real neutrality. The possibility of the Freedom of Information Act being brought into play in some cases is an important incentive in making sure that that neutrality is real and not just apparent. Those are my queries and concerns, but the overall policy thrust is moving in the right direction-I just wish that it would move further and faster.

Mark Durkan: Like other hon. Members, I welcome new clause 22, which includes provisions to reduce the 30-year limit and so on. However, I am concerned, as I said in an intervention on my right hon. Friend the Justice Secretary, about new schedule 1, particularly the provisions affecting Northern Ireland. I should like to explain my reservations.

Paragraph 5(4) of new schedule 1, would add several new subsections to section 63 of the Freedom of Information Act 2000. It states, for example, that

and this is one instance-

Similarly, proposed new subsection 2B says that compliance applies

My right hon. Friend suggested that the purpose was to protect the business of the Northern Ireland Executive. The business of that Executive, or the conduct of their business, is not referred to specifically, but there is a wide descriptor of the likely prejudicing of the conduct of public affairs in Northern Ireland. Many people will be concerned that if the measure is used in relation to
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historical information in general, and is not specifically linked to the conduct of the Executive or anything else, it could be used to impede requests for information that may well be relevant, particularly in investigations of how Northern Ireland deals with the past on the basis of the Eames-Bradley and any other proposals. Measures could be taken to prevent the release of information that might simply be embarrassing to Ministers or to people involved in the political process as it is now in Northern Ireland, because it might reveal or expose some of their previous involvement in untoward and less constitutional activities. Many people will be deeply concerned that that language can be used to provide a sweeping exemption and protection in relation to historical information that it might be valid to seek.

I hope that the House will not inadvertently be lured into allowing such a sweeping exemption on the grounds that the provision is designed purely to protect the conduct of the business of the Northern Ireland Executive. The measure appears to go much wider than that, and at no point is the Northern Ireland Executive specifically mentioned in the new schedule. I hope that that is something that my right hon. Friend can address.

Some of us have experience of trying to use freedom of information requests to find out what was, or was not, agreed or understood in relation to possible side deals. It was in the public interest to know whether there were side deals and hidden understandings, because many people had objections and suspicions at different stages of the Northern Ireland peace process. In the past-as a party, we have always pushed the process forward, trying to reach agreement and upholding the institutions that were agreed and ratified-our requests were refused on the grounds that they dealt with sensitive political matters. That was simply not credible, and it was fairly insulting, so I would not wish to give further licence to the notion that a British Minister could tell me that I did not have the right to receive clear information about the conduct of political affairs in the devolved realm as it applied to me as an elected representative in that devolved realm, because they had done some other deal with someone else and were too embarrassed to allow that side deal to emerge. I hope that my right hon. Friend recognises that sustaining our institutions in Northern Ireland and taking them forward requires transparency as much as secrecy and the protection of any sort of covert political deals.

I urge my right hon. Friend, too, to address paragraph 6 of the schedule, which would insert into the Freedom of Information Act new section 80A, relating to information held by Northern Ireland bodies. It states that the new section applies to information held by

It goes on to make it clear that we are talking not about 20 years but 30 years, and it lists other exemptions and outs. If that is for the purposes of protecting the business of the Northern Ireland Executive, why are there references to the Northern Ireland Assembly, Northern Ireland Departments and Northern Ireland public authorities? Was the Assembly consulted on the reference to it? Section 36 of the 2000 Act says that the Speaker of the Assembly is the relevant officer, so were he and the Northern Ireland Assembly Commission
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consulted? If not, what right does the House have to proceed with this, if there has been no approval, agreement or assent?

6 pm

Similarly, were the Northern Ireland Executive or the Office of the First Minister and Deputy First Minister consulted on the provision for Northern Ireland Departments and public authorities, or is it based purely on the surmise and advice of the Secretary of State for Northern Ireland? The Government rightly chose to exempt Cabinet papers not for 30 years, but only for 20, and it would be bizarre if all the affairs of Northern Ireland Departments, public authorities and the Assembly-meaning the information that the Speaker holds-were to be exempt for 30 years. There is no credible reason why they should be, and the public and, I am quite sure, the press in Northern Ireland would be deeply suspicious of that. They would certainly be very suspicious if the provision, having been microwaved out of wherever, passed through this Parliament without any of us from Northern Ireland speaking up to question it.

Mr. Shepherd: I wholly concur with everything that has been said in support of relaxing or expanding freedom of information. Through questions, I have raised my main concerns with this aspect of the Bill, but I shall return to the commercial interests question, which worries me quite deeply.

I remember that, in the early days of our pre-legislative scrutiny of the Freedom of Information Bill under the chairmanship of Rhodri Morgan, we had an interview with commercial interests. One was Tarmac, and we asked its representatives, "Why do we need to exempt you? Why shouldn't your business, where it affects public authorities and so on, be a matter of revelation?" They agreed wholeheartedly with us and wanted to know why rivals secured a contract with a public authority, for instance. That was the commercial engine for their interest in the matter, but if we citizens, taxpayers, Governments and local authorities stand back, do we not find that we have the same objective in wanting to achieve best value for money, for instance? The competitive details-the commercial interest, as it is called-should be a more open book. In some states of the United States, all tendering is open and all contracts are open. They say, "Here's the deal. Who can match it? Who can do better?" Within the process, however, there are obviously other checks and balances on the stability and solidity of the company that provides the services.

The provision before us is an extraordinary exemption. Everywhere else we are bringing the period down to 20 years, but this proposal is for 30 years. Public authority contracts have turned sour in recent years, but that point is not confined to this Government; it predates them and goes back into our history. We are discussing long-term contracts, so I wonder whether the exemption is for national security reasons. Defence installations, nuclear power stations and so on touch on our national security interests if only in respect of our containing them, fighting for them or protecting them from terrorism. But, in truth, on the issue of 30 years' exemption for a contract that a local authority has entered into, ought we not to know whether it is a good contract? How do we evaluate it, and by what do we compare it?

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I should have thought that it was in the interests of the Government, House and public authorities to be much more open and frank about these matters, so I wonder why there is always resistance-from Whitehall, in large measure-to such openness, publication or accessibility in respect of what is behind the contracts. I cannot see in what way such a blanket restriction-there is no calibration, remember-assists the public interest, which includes best value, openness and all the criteria that inform, or are meant to inform, the freedom of information legislation.

I know that we want to get through these provisions rapidly, but the Justice Secretary's comments on them were, of necessity, brief: we are under a guillotine, after all. Nevertheless, there is no opportunity to tease out the issue. My proposition to the House is that the evidence suggests a provision that is contrary to the Government's proposal, so I shall not wave it through as a good measure. At the heart of that contention lies some of the answers to the public procurement and long-term contracts that central and local authorities enter into, and that is the point that I wanted to make.

The proposal should be revisited. I know that the Bill is not going anywhere, but I should hope that in the Lords, at least, a beadier eye will be cast over whether the provision is necessary and in the public interest.

Mr. Straw: The hon. and learned Member for Beaconsfield (Mr. Grieve) asked whether the time scale could be compressed or extended, or apply at different speeds to different bodies. In principle, we aim to ensure that the process applies evenly to all bodies over a 10-year period. For example, if we had the order ready and it came into force for 2011, in 2011 the records for two years rather than one-1981 and 1982-would be released; in 2012, the records for 1983 and 1984 would be released; and so on until we got to 2020, when the records for 1999 and 2000 would be released. After that, the transition would be complete.

However, the power to make the order is flexible, as the hon. and learned Gentleman spotted, so it would be possible to include different time scales for different bodies, and to extend or compress them. I suspect that that is not the intention generally, but there may be some bodies whereby for particular reasons it is not practicable to do all that work at the same time. I hope that that answers his question.

The hon. and learned Gentleman was good enough to commend the Government for introducing this legislation. He said that he had doubted whether it would be possible, and I, too, doubted whether it would be possible. I am therefore deeply grateful to the Minister of State, my right hon. Friend the Member for North Swindon (Mr. Wills) for assiduously pressing all Departments in order to ensure not only that we introduced it, but that, with luck, it will go on to the statute book. Given the consensus behind the legislation, I have no reason to believe that that luck should not obtain.

My hon. Friend the Member for Cannock Chase (Dr. Wright) entertained us with dastardly things that had been said by heirs to the monarchy, by the monarch herself in the 1880s and by the heir to the Crown in 1906. If he had wanted to make a point, however, he would have needed some slightly more contemporary examples. Furthermore, it is also true that, as Queen Victoria was uttering those concerns about the Liberals
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being elected, £10,000-equivalent to £1 million today-from the Secret Service Vote was routinely made available to the Chief Whip for him to use as he wished to ensure that Government business went through. [ Interruption. ] I shall leave that sedentary intervention where it is and certainly not repeat it.

To a degree, that money ensured compliance, but the idea that these days the Chief Whip should have £1 million in folding money to dish out as he wishes is preposterous. It may have ensured more votes back then, but times change. I think that we have reached a rather settled position on the monarchy, and I have explained the reasons why we believe the proposals to be necessary.

Lynne Jones (Birmingham, Selly Oak) (Lab): Although the examples given by my hon. Friend the Member for Cannock Chase (Dr. Wright), which I watched in my office, were amusing, there have been more recent examples of members of the royal family seeking to intervene in public policy. Why do the Government think it is right to remove the public interest exemption? In most cases, the Information Commissioner has ruled on the side of the royal family, and surely it is right to retain the exemption.

Mr. Straw: The reason is that the current situation was never the intention when the Freedom of Information Act was introduced. I say that without fear of contradiction, because I know what the intention was. I do not recall any suggestion that there should be anything but substantial protection for the monarch and the heirs to the throne. It was a complex Bill, and as the hon. Member for Aldridge-Brownhills (Mr. Shepherd) will recall, it went through a number of iterations. It was certainly a different and much tougher Bill that went on to the statute book compared with the one that I introduced. My hon. Friend the Member for Cannock Chase will remember a most extraordinary period on Report when, without any agreement from any Cabinet Committee, for instance, I accepted a series of amendments to accommodate concerns on both sides of the House.

My hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) and I may simply disagree about this, but I urge on the House the profound distinction between members of the royal family and anybody else in public life. The royal family have not chosen their position. They perform their functions with the utmost professionalism and dedication, but they have their position for life. It is worth bearing in mind that Her Majesty is now on her 11th Prime Minister, I believe. I am one of the few people in the House who can remember her succession to the throne in February 1952-one or two others are in their places, such as the right hon. Member for North Antrim (Rev. Ian Paisley) and the hon. Member for Aldridge-Brownhills. We are a fast-diminishing group, but Her Majesty goes on. If we want to ensure that respect for and confidence in the monarchy continue, we have a duty to ensure that she and the heir to the throne are properly protected. As for everybody below the second heir to the throne, they are subject to qualified exemptions, as I have explained.

Mark Durkan: Will my right hon. Friend clarify whether the exemption will apply only to matters that are directly and personally communicated by the relevant members of the royal family, or also to anything voiced by third parties, perhaps at semi-private lunches to which Ministers are invited?

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Mr. Straw: I am sorry to resort to the text of new schedule 1, but my hon. Friend will see that it sets out the relevant categories of information-communications with the sovereign, the heir and the second heir. The key word is "communications", which covers a wide range of information. I believe that it is appropriate that it should. [Interruption.] I am grateful to my hon. Friend the Minister of State, who has handed me a note stating that the provision applies also to those acting on behalf of the relevant members of the royal family, which I said in my opening remarks.

It took me a bit of time to catch up with the news that the hon. Member for Cambridge (David Howarth) is going to leave the House, and I am sorry that he is. I made my point about the veto in an intervention on him. I sometimes think that people want to pick and mix the Freedom of Information Act. It is a very tough Act, and notwithstanding the criticisms as it was going through the House that it was no better than the non-statutory information code, it has transformed the public's right to know about what public authorities do and changed the behaviour of national and local government. It is not an à la carte menu, it is a single whole, and as I have said before, the section 53 power is as essential a part of it as the public interest test exceptions in section 2. It is better and more substantial than most comparable freedom of information Acts in the world, including that in Australia.

6.15 pm

We are simply maintaining the status quo with respect to Northern Ireland. We did not ask the Northern Ireland Assembly whether it wanted us to do that, because there was not anything in particular to ask it since we were not changing anything. It will remain open to the Assembly to pass its own freedom of information legislation relating to its own areas of business if it wants to bring it into line with what is happening in this House. That seems an appropriate way to proceed.

I understand the anxiety of my hon. Friend the Member for Foyle (Mark Durkan), but neither the Information Commissioner nor the Information Tribunal allows the text of the Freedom of Information Act to be used more widely than the provisions in it state. If anybody attempts to use the exemptions in it too widely, they have to get past first the Information Commissioner and secondly the tribunal. If they are both blind to the fact that the provisions of the Act are being misused, there can be an appeal to the High Court on a point of law, as there has been. I am quite sure that the High Court would spot the error that was being made, even if the other two institutions had not done so.

Mark Durkan: My right hon. Friend says that no consultation took place because there was no change, but he told us earlier that the reference to Northern Ireland was in the new schedule specifically at the request, and on the advice, of the Secretary of State for Northern Ireland. Obviously it occurred to somebody that there were implications, and they said that Northern Ireland should be exempted. It seems strange that the Secretary of State for Northern Ireland took the decision, not the elected representatives of Northern Ireland.

Mr. Straw: Of course I acted on advice from my right hon. Friend the Secretary of State for Northern Ireland-it would have been eccentric if I had not done so. We had
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made a general policy decision to move to a 20-year period, and my right hon. Friend made what I regarded as cogent arguments for why it should remain 30 years in Northern Ireland, which I accepted for reasons that I have tried to spell out. Because that decision did not affect the status quo, there was nothing on which to consult the Northern Ireland Assembly directly. It is worth bearing in mind that, as I recall, there was no Northern Ireland Assembly when the original Act was passed.

Dr. William McCrea (South Antrim) (DUP): Does the Secretary of State not accept that as well as the Northern Ireland Assembly and the Secretary of State, there are Members and political parties in this House who should have been asked for their considered opinion? Would it not have been appropriate for such consultations to be held?

Mr. Straw: If that is so, I apologise to the hon. Gentleman and his colleagues. All this reminds me that whatever bad things I did in my previous life, they were never bad enough to have me made Secretary of State for Northern Ireland. If I have not explained the matter as fully or comprehensively as I should have done, I will perhaps have to write to my hon. Friend the Member for Foyle and copy the letter to other hon. Members.

Dr. McCrea: Would the right hon. Gentleman not regard being Secretary of State for Northern Ireland as an honour rather than as a burden?

Mr. Straw: It would have been as much of an honour as being Home Secretary, but I will not proceed down that road. It would have been a wonderful honour to be Northern Ireland Secretary and of course, had the Queen's shilling come my way in that respect, I would have accepted it.

Finally, to answer the points raised by the hon. Member for Aldridge-Brownhills, I gather that Departments and other bodies release details of contracts on a regular basis in publication schemes. However, 30 years is necessary for a limited number of contracts that are long term. In any event, all we are doing, as with Northern Ireland matters, is maintaining the status quo-the current 30 years-which I do not think is a huge deal. For quite good reasons, the exemption will still be subject to the public interest test: it is a qualified exemption, not an absolute exemption.

With those comprehensive and informed answers, I commend these provisions to the House.

Question put and agreed to.

New clause 22 accordingly read a Second time, and added to the Bill.

New Clause 23

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