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It is a great privilege and a great pleasure to introduce the Bill into this House. It is a chance, in the last few months before my eternal twilight--Tofferdammerung, as one might put it--to make a difference to something about which I care passionately. I quote:
In order to encapsulate what I believe about freedom of information, I tried long and hard to find a more radical and comprehensive manifesto for a Freedom of Information Bill, but I failed. The quotation is from Tony Blair just a couple of years ago. How I wish that was the Government's view now.
Things started quite well when this Government came to power. They appointed a Minister in charge of freedom of information who clearly believed in it. After only six months in office he produced a White Paper, which was quite a good one although it was already showing signs of being "got at". Since then things have gone badly awry. That particular Minister was sacked and responsibility moved to a Minister who, by reputation--although one has heard little from him on the subject--has no great sympathy with freedom of information.
The White Paper promised a draft Bill late last year, but none has been forthcoming. We heard that it would come in January or February. Now we hear that the expected date is sometime in April or May when Rhodri Morgan has safely gone West and the chairmanship of the relevant committee in another place has passed into more Blairite hands. I do not know what to expect. Perhaps the noble Lord, Lord Williams of Mostyn, will be able to tell us that he is pregnant with information. He looks a little slim for that, but one can always hope.
I suppose Gordon Brown had a chance when he announced that 1999 was going to be New Labour's year of delivery, but there is certainly not freedom of information as regards his own travel plans. We seem to have fallen a long way short from what was promised and what we believed to be the case when this Government came to power. That is a great pity because freedom of information is not a threat to good government, but a great aid to it. The one outstanding example of it in this country is the publication of the minutes of the Monetary Policy Committee of the Bank of England. I remember that at the time that was announced we were told that it would be disastrous to let the public, and the press in particular, into the deliberations which are so close to the centre of one of the most important parts of the affairs of state in this country. But it has proved to be the absolute opposite.
What causes scare stories and the press to go off the deep end; to act irresponsibly; cause chaos and refuse to recognise good arguments, is secrecy. One does not have to have worked in MAFF to recognise that, but it helps. Does any noble Lord believe that the BSE crisis would have been made worse had MAFF been open
That could not possibly be the case. When we were at last forced to come clean as to what had been happening there was such an enormous difference between what we had been saying was the case and what it actually turned out to be. We were forced to take panic measures at enormous cost to this country, the beef industry, our finances and our reputation abroad.
Openness in MAFF would have made a great difference and a great improvement to the whole conduct of government. I see the noble Countess, Lady Mar. I hope I may call her my noble friend for a moment. I remember happy days when she asked Starred Questions and I answered them for MAFF. I would get my MAFF briefing papers and then go along to the noble Countess to find out what was really going on because the noble Countess was always much better briefed than I was and indeed she usually had more MAFF papers than I had been given. Therefore I was able to ask officials for the ones that I was missing and give the noble Countess a reasonable answer at the end of the day.
Secrecy is a culture and although MAFF is perhaps exceptional, all of Whitehall is like that. The other day I asked officials at the Department for Education for a copy of the school performance tables. I wanted them on disk. That is something they must have provided to every newspaper in the land. However, my request was refused and I shall say why later. The culture of secrecy is so deep that they will not even release something which is already public information in every library. Indeed you can go to your local authority and get that information, but they would not provide it to me on disk. Information on paper is fine--I was offered a deep box full of it--but they would not provide it to me on disk. That is the culture in Whitehall. Those of us who have tabled Questions for Written Answer will be used to the obfuscation and evasion which greets inconvenient questions. Some of us have perpetrated that. I put up my hand and confess to taking the easy way out occasionally, although I know that the noble Lord, Lord Williams of Mostyn, rarely if ever falls into that trap. As I say, it is a culture which is Whitehall-wide. To change that kind of culture you need a radical reform. It is no good trying to do it by bits and pieces.
I place all credit for this Bill with the Campaign for Freedom of Information and its director, Maurice Frankel, who has been fighting this fight a great deal longer than I have. I am a relatively new recruit. This Bill is a simple and radical Bill and is written from the point of view of the citizen and not the bureaucrat. It founds itself on the rights of the citizen to have access to government information. It overlays that with a system of exemptions by which the Government can claim that particular bits of information should not be released because they would be harmful to good government or to other important interests. It allows for the supervention over all that of the public interest so that even the darkest corners of government can be penetrated when the public interest demands it. It sets out the duties of public authorities and the charges they may make for information and it institutes an information commissioner to make sure that the individual citizen can have access to the information to which he has a right without undue cost. It does all this in eight-and-a-half pages. If, and when we see the government Bill it will be a great deal longer, a great deal more complicated and, I am sad to say, it appears that it will be designed to achieve much less.
If everything we hear is to be believed, the Government have been seduced by office, have been "done in" by Sir Humphrey, and have produced in their White Paper, and in what we think will appear in a Bill, clauses which we expect will destroy entirely the purpose of the Bill. The first and most deadly of these is the test which information must pass in order that government can have a right to withhold it. In this Bill the test is set at substantial harm. The release of the information has to do substantial harm to defined interests in order for it to be allowed to be withheld. In the Government's White Paper that test is reduced to harm in respect of the Government's own deliberations. We are told that that reduction of the test to straight harm is now to be applied to the whole Bill. But harm can be anything. It can be a speck of dandruff on a shoulder of an official or some minor hair out of place.
The reason the Department for Education refused to give me the performance tables was that it had heard that someone thought that some little minor aspect of this information might be wrong. Until it had completed its investigations into that it would not release it to me. I refer to some little percentage point change somewhere in some figure for some school which I would probably never even look at in information which was already published. If that kind of thing can be held by a government department to do harm--under a straight harm test of course there is potential harm there, some school somewhere might be offended by some use I might make of this--and if that is the test, there is no freedom of information and there is no release of information. There is nothing that the Bill achieves, however long and complicated it may be.
We must have the idea of harm qualified. If "substantial" is the wrong word--I understand why the Government feel frightened by the word "substantial"--the Government can perhaps downgrade it to "material" or perhaps adopt the Irish approach in the Act that they brought into force at the beginning of this year where
Secondly, there are other areas too where the Government are moving so far away from the principle of freedom of information as to deny the principle itself. They propose that entire sections of government should be, as it were, exempt from the Bill. They say that policing should not be subject to the Bill. In the Bill that I have drafted I do not use the term "policing", but I say that the investigation of crime should be exempt. The difference between those two approaches would be apparent to the Lawrence family. The way the Government have drafted the White Paper--one has no reason to think the Bill will be any different--the Lawrence family would have had no right to any information about how the investigation into their son's death was conducted. That clearly does not constitute freedom of information if they cannot have the right to dig down and find all that we now know has happened in the course of that investigation.
The third area that really concerns me is the blanket exemption that the Government appear to wish to give to their own deliberations. Again I agree that perhaps my Bill is drafted pretty strictly. Starting from my position, I think it ought to be. I recognise that perhaps some compromise is possible. But if we start from the Government's position and look at what would have happened in the case of MAFF and the BSE crisis, MAFF would not have had to release any of the vital information. Nothing would have had to have been done by MAFF which would have made, or could have made, that crisis better, or better managed, or better governed. If we proceed along the route that appears to be mapped out by this Government, we shall have a freedom of information Bill perhaps some day, but it will be a travesty of a freedom of information Bill.
With this, my swansong, I hope that I can tempt the Government back onto the path that they once trod. I hope that I can blow on the embers of their promises and light again the fires of an ambition that filled their soul in opposition. As Tony Blair said,
Baroness Williams of Crosby: My Lords, it gives me great pleasure to begin by congratulating the noble Lord, Lord Lucas, on the way in which he has introduced this Bill. I had not realised that in that formidable frame such a radical, liberal heart beat. I for one was delighted to hear what I thought was a powerful and eloquent statement about the importance of a true freedom of information Bill. If it is the noble Lord's swansong, it is a beautiful swansong. I for one rather
I begin by congratulating the noble Lord on some of the elements in the Bill that he has put before the House. I wish to refer to them relatively briefly. The first clause deals with the purposes of the Bill. That is important because of course it enables those who may later interpret the purposes of the Bill to be able to point to what it is--if the Bill is passed--that Parliament intends.
Clause 1 sets out powerfully and well the reasons for a freedom of information Bill. It goes a long way towards confirming the statements of the noble Lord about the access to information, the need for citizens to have a right to information, and much more.
I also draw attention to Clause 2, in particular the right that it gives to people to correct information about them. We live in a world where, increasingly, the fates of people are bound up with the information that is recorded about them--information about their credit cards and information that will be increasingly put on a smart card as the Department of Health and Social Security and other departments adopt that principle. If that information is flawed, then the persons concerned--innocent though they may be--may get into very, very deep difficulties. It is absolutely crucial that individuals should have access to the information held about them in government offices or local government offices, and have the absolute right to correct that information and insist that the correction is made. As far as possible, any repercussions flowing from false information should be dealt with by the government department or local government department concerned.
I also congratulate the noble Lord on Clause 4, which suggests that there ought to be a defence of the public interest against the Official Secrets Act--something my party has long believed in. There have been enough occasions now where we can look back to the significance and importance of somebody being able to use the defence that they have spoken out in the public interest against the culture of secrecy, as the noble Lord rightly called it.
Let me also pay tribute to the former Chancellor of the Duchy of Lancaster, Dr. David Clark. He devoted himself with great intensity and commitment to the concept of a freedom of information Bill. He saw that as being achieved by his Ministry. It is a great shame that a man who gave such commitment and hard work to trying to bring about something which was, after all, in the Labour Party's manifesto--and therefore close to sacred--should have lost his job through the sheer intensity with which he pursued what he genuinely believed to be government policy. Rather like the noble Lord, Lord Lucas, I hope that Dr. Clark has a future ahead of him as well as a past behind him.
Let me say just a little about the history--the rather sad, miserable, timid history--of the efforts to get freedom of information in this country. I shall begin, I trust, without embarrassing the Minister too much, but
The date was 1974. At that time, my noble friend Lord Jenkins was Home Secretary, and he commenced drafting a freedom of information Bill. He subsequently went to the United States in order to consult people there about his proposed Bill. When he returned he was informed by a number of Members of the Cabinet that it might be rather expensive. Unfortunately for the future of freedom of information, that view was confirmed by President Ford, who was not enthusiastic about the strength of the freedom of information legislation in the United States. Despite my noble friend's efforts, freedom of information was not proceeded with in the last year of Lord Wilson's Cabinet or in the first year of the Cabinet of the noble Lord, Lord Callaghan.
Instead what happened was a typical British compromise. It was called the Croham directive. The noble Lord, Lord Croham, drafted a directive which asked departments to commit as much information as they possibly could to the public domain. The response was extremely varied. In one or two departments there was quite an enthusiastic response. Those departments were not the most prime or senior departments of government. In departments such as the Treasury, the Ministry of Defence--understandably--and, as one might expect, the Home Office, where at the time I had recently served, there was deep reluctance to make too much information available, on the general principle that it was probably not very good for the public to know too much about what the departments were doing. Within a year and a half, the Croham directive had proved to be an ineffective weapon. Certainly it was well-intentioned, but it was not very effective in extending the right of freedom of information.
Subsequent to that, under the government of John Major, an attempt was made to establish a code of practice for open government. That code of practice laid down access to public information as a method, if you like, of Civil Service behaviour. But he did not attempt to institute a statute giving citizens the right to freedom of information. It was well intentioned, and I would like to pay tribute to the former Prime Minister. In his citizens' charters he also attempted to give citizens information of importance about public services. But again--as is so typical of the history of our country in dealing with this extremely contentious issue--there is always a willingness to go halfway and no willingness to take the matter to completion.
Most recently, we have the manifesto of the present Government, which was referred to by the noble Lord, Lord Lucas. That gave a commitment to freedom of information, which again, as in every single case, is now being steadily peddled away from, if I may use that phrase. Why is it then that we, unlike so many other countries--New Zealand, Canada, Australia and others--seem incapable of addressing this issue in a bold and convincing way? The answer has been
In the end, we are a country in transformation towards becoming, in the broadest sense, an active democracy; a country which has for a very long time been a passive democracy. Let me quote an example of what is meant by an active democracy. The words are those of James Madison, the third President of the United States of America:
We have always been rather reluctant to accept the idea of people as their own governors. That is true when one looks at the efforts finally to get devolution to Scotland and Wales and when one looks at the efforts in this country to get human rights recognised. I pay tribute to the Government that their efforts are now recognised. It is because there is so little consultation on legislation in this country that so much bad and faulty legislation is passed.
We are looking at the middle of that transition towards an active democracy, in which we involve the participation of our citizens and in which we truly respect them. I am entitled to say from these Benches--where for many years we have supported a comprehensive concept of democracy which embraces devolution, human rights, freedom of information and reform of the voting system--that we have had such a vision for very many years.
What does it mean? It means that there has to be a true freedom of information Act. That is only the beginning, not the end. It means that in the world of the Internet we should begin to publish legislation in draft on the Internet and invite our citizens to contribute to making that legislation as good as possible. It means that we should enable them to look at amendments, as we do, as they pass through Parliament. It means that we should consult about issues that will affect them profoundly, like legislation on health and education. It means that we should stop scorning the Republic of Ireland for having embarked on a huge consultation before its last Education Bill became law. It means that we should accept that citizens at local government level are entitled to the fullest possible information about those matters that affect them. And it means, as the noble Lord, Lord Lucas, has eloquently said, that some of the most difficult and indeed unpleasant episodes of government failure of recent years might well have been avoided if we had made it easier for people to discover the truth.
I conclude by commending the noble Lord very much for what he has done. I hope we will have an assurance from the Government that they will not try now to move away from this radical, far-reaching and truly
To many of us who voted Labour at the last election, the proposals for a Freedom of Information Bill were a cornerstone of the party's programme. For me, only Scottish devolution was of comparable importance, and even that, while critical to those of us who live in Scotland, has a narrower application.
Freedom of information sits necessarily at the centre of any project to empower the citizens. Other rights are harder to exercise without it. Abuses of authority, inefficiency and waste all thrive in its absence. This has been well recognised in the Labour Party, which has a proud, though admittedly so far entirely verbal, tradition in this matter. I could use up the whole of this speech in quoting eloquent testimony from the Prime Minister on the subject, but of course the noble Lord, Lord Lucas, has already done so. Noble Lords will be familiar with the Right to Information Bill of 1992 and the Right to Know Bill of 1993 which testified both to the importance of the idea, and to a body of coherent thought with regard to it, within the Labour Party. The White Paper published in December 1997 continued and expanded this tradition. It was for the most part a robust and uncompromising document, setting out an impressive intellectual infrastructure for future legislation.
Subsequent events have been all the more disappointing. Draft legislation has been delayed several times. The reports one reads about progress are uniformly depressing. For instance, the Economist of 30th January, in a profile of the Home Secretary, said:
It would, of course, be rash to believe everything one reads in the papers; but the combined weight of a series of press reports to this general effect, of the repeated delays in the publication of the draft Bill and of the Home Secretary's own evidence last April to the Select Committee on Public Administration in another place creates a consistent if gloomy picture. I think it would be difficult for anyone to read a transcript of this evidence without receiving a very strong sense of defensiveness and of a much stronger focus on difficulties than on solutions.
The core of the Home Secretary's argument then is very relevant to the current Bill. He argued for a total exclusion of law and order matters from the Government's legislation on the basis that this legislation would use a disclosure test of "substantial
The Minister has answered Questions on this subject in your Lordships' House on a number of occasions. He has been inclined to point--for instance, in his response to the noble Lord, Lord Holme, on 30th November and to the noble Lord, Lord Lester, on 9th November--to individual actions by the Government and to the release of specific items of information. It would certainly have been a truly terrifying disappointment if the Government, coming to power on the programme I have described, had not taken a positive attitude to such individual cases. But I very much hope the Minister is not going to argue that any collection of such actions can substitute in any way for a simple and consistent right to information, exercisable by any citizen at will, in regard to his or her own concerns. The one cannot possibly replace the other, either in whole or in part.
Constitutional freedoms are sometimes thought of as distant, impractical things, of no importance to the common man and woman. That is untrue in general, but is particularly untrue here. It was a television programme about motor cars which, many years ago, first stimulated my own attention. A particular run of the Austin Allegro exhibited a distressing tendency for the back wheels to fall off at speed. But the interesting thing was that the detailed information used in the programme all came from United States government files, because it was impossible to obtain the same data in the United Kingdom.
That particular example would, I think, no longer apply. Over the years, in this country, a rather baroque and ramshackle structure has emerged of obligations to publish and rights to obtain various kinds of information. The trouble is that these rights and obligations have grown ad hoc without particular reference to one another. They are therefore considered as a totality, more or less incomprehensible and are no substitute for a general, simple, single right of wide application.
I should perhaps say one or two words about the Bill itself. I am a bookseller, not a lawyer, but it seems perfectly workmanlike to me. It comes recognisably from the same stable as the other Bills, sponsored by members of the Labour Party, which I mentioned earlier. It is, as far as I can tell, mostly consistent with the Government's own White Paper, though with the welcome difference of far fewer exclusions. In particular, it uses the "substantial harm" test, one of the key features of the White Paper. As to its immediate provenance, I should say how particularly pleasing it is to see support for these ideas in the Conservative Party as well as in other parties.
The Minister, answering a Question of mine in your Lordships' House in November, said, I think encouragingly, that the draft Bill would "bear due regard" to the substantial harm test. I realise that it is just barely possible that he will feel unable to tell us whether that will be the test used predominantly in the Government's draft Bill, but perhaps he could expand a little more on the phrase "bearing due regard".
I have said one or two less than kind words about a government to whom I am mostly sympathetic. I will be very happy to eat these words if the Government will stop doing things which confirm my worst fears and will publish soon a strong and coherent draft Bill building on their own White Paper, avoiding compromise and living up to their own past words.
Lord Bethell: My Lords, I sense an entirely different atmosphere in this House from that on the previous occasion when I attended a debate on this subject, in February 1988, when I introduced the Second Reading of the Protection of Official Information Bill. Not only did I receive very little encouragement from my own Front Bench then, but on the part of the Labour Opposition there was a great hesitation and lack of enthusiasm to proceed with the proposed Bill. In fact, I was unable even to achieve a Committee stage for the Bill after it was given a Second Reading. I hope that the Minister will indicate not only his support for the principle and practice of my noble friend's excellent Bill but also that time will be found to discuss the Bill in detail in Committee.
The principles of the Bill have been explained by previous speakers. I agree with everything that has been said. Sound administration must prevail over journalism, history or mere curiosity. However, if information is readily available to the public from government departments and public bodies, there will be better-informed discussion of public affairs, and on that basis decisions on the part of government and public bodies will be more soundly based. The case has been made and well and soundly proved.
It is interesting that in 1979 the Labour Party promised time for a freedom of information Act in an attempt to win the crucial vote of confidence before Labour went out of office. I hope that the Labour Party is now thoroughly convinced of the need to proceed with such legislation sooner rather than later. In the meantime, as has been pointed out, since the Labour Party made that proposal in March 1979 we have seen freedom of information Acts passed in a range of old Commonwealth countries, in Israel, Ireland, the Netherlands, Sweden and many others. Some of us have become used to seeking information about how Britain is run by consulting Amsterdam, Helsinki or Canberra, not to mention Washington DC.
I suggest that it is not a symptom of paranoia to insist that there is a natural conflict between ourselves and Sir Humphrey Appleby. We are the laity; they are the professionals. Of course they are irritated when members of the public seek to interfere in what they
I must declare an interest. When researching the books that I have written on various controversial episodes of British history in Palestine in the 1940s and in Albania, when secret operations were engaged in, and on the forced repatriation of Russians in 1945, I have very often found that the criterion for closing documents that are more than 30 years old has been, not harm or significant harm, but embarrassment to officials or Ministers. That is illegal. Embarrassment to officials has never been a criterion for closing documents after the 30-year rule. I hope that the Minister will be able to confirm that embarrassment is not a reason for withholding any paper whatsoever.
I was intrigued by the remarks of the noble Baroness, Lady Williams, about the right of citizens to obtain information held about themselves. That subject is being debated in the setting up of the Europol organisation. I must declare another interest, in that I am an adviser to the Police Federation. I admire the self-restraint of the Home Secretary when, as has been alleged, his own MI5 file was placed in front of him and he said, "No, thank you, I will not look at it". I wish that he had looked at it. He would have been uniquely privileged to be able to find out whether the Security Service had been accurate, careful, considerate and sensible in chronicling the activities of Mr Straw in his immature student days. We should have been fascinated to know whether the Security Service got it right. Perhaps Mr Straw will think again and will look at his file.
As for the rest of us, I trust that this Bill, if it is passed, or the Government's Bill, if it supersedes it, will not provide that no Security Service files may be opened and no details of such files may be made available to a member of the public. Certain types of information can be extremely harmful to the individual. I accept that the test of substantial harm to the body politic must prevail. However, there is also the question of substantial harm to the individual. I hope that the Government will take that into account when deciding on this crucial matter of harm or substantial harm which has been mentioned by almost every speaker.
"Harm" can mean anything. It is too vague a judgment. There must be a qualification by the addition of "substantial", or some other adjective. I found that the Americans were sensible about it. They were quite happy to give me my own FBI file, even though they whited out or blacked out a few bits of it. However, that should not be a reason for withholding the whole file in such an event.
The code of practice instituted by the previous Prime Minister has been mentioned. I agree that congratulations are in order and that it should be approved and improved upon. I believe that the Government will consider it carefully and I am delighted to hear that they are finally ready to tackle the matter. I commend the Bill to the House and to the Government. I hope that it will at least provide them with guidance along the lines that, whatever threat there
However, I hesitate to acknowledge any friendship in your Lordships' House in view of the speech of the right honourable lady the Leader of another place last Monday. She seemed to be of the firm conviction that all Cross-Benchers are Tories. I assure noble Lords that I am fiercely independent: I have no intention of belonging to any political party.
My lack of any political affiliation will have been obvious in my campaign over the past seven years. It has been no different, whichever government has been in power. Noble Lords will be well aware that there have been a number of occasions when I have exposed answers that have not been totally truthful, both in the Chamber and in Written Answers.
It sounds awful to say that I am tired of not being told the truth. I have a wonderful example here of how civil servants and officials from public authorities work. This is a minute from the Centre for Communicable Disease Control and the Somerset Health Authority, written last summer to someone in the Department of Health. It is headed:
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