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Lord Redesdale: Does the noble Viscount agree that his remarks could be viewed by many in this Chamber as offensive?
Viscount Cranborne: I tried to make clear during the course of the Second Reading debate, which I believe the noble Lord attended, and in my remarks here, that there is nothing in the least personal in what I say. What I have said is unacceptable to the noble Lord because the truth of the matter is that terrorism is intended to attack the very roots of parliamentary government. Terrorists assume as part of their attack that it is likely to provoke a reaction and that unless we engage with terrorism we are being unreasonable. It is that taking advantage of our good nature which is so scandalous about the methods adopted by terrorists all over the world, but in particular in Northern Ireland.
I did not intend to be offensive to the noble Lord the Minister, and I am sure that he knows that. I have the greatest respect and liking for him and have made that clear. In spite of listening carefully to what the noble Lord has said, I find it very difficult, for the reasons that I have tried to explain, to accept the arguments put forward by the Government and am driven to ask the opinion of the Committee.
4.47 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 121; Not-Contents, 129.
Ackner, L.
Ailesbury, M.
Ailsa, M.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Ampthill, L.
Archer of Weston-Super-Mare, L.
Ashbourne, L.
Belhaven and Stenton, L.
Biddulph, L.
Biffen, L.
Birdwood, L.
Boardman, L.
Brentford, V.
Brookeborough, V.
Cadman, L.
Calverley, L.
Campbell of Alloway, L.
Campbell of Croy, L.
Carnegy of Lour, B.
Carrington, L.
Chalfont, L. [Teller.]
Charteris of Amisfield, L.
Chesham, L.
Clark of Kempston, L.
Cockfield, L.
Coleridge, L.
Cooke of Islandreagh, L.
Cox, B.
Craig of Radley, L.
Cranborne, V.
Crickhowell, L.
Croham, L.
Cullen of Ashbourne, L.
Davidson, V.
Denham, L.
Drogheda, E.
Dunleath, L.
Ellenborough, L.
Elles, B.
Enniskillen, E.
Exmouth, V.
Fitt, L.
Gardner of Parkes, B.
Glentoran, L.
Gray of Contin, L.
Halsbury, E.
Hanningfield, L.
Harding of Petherton, L.
Holderness, L.
Hooper, B.
Howell of Guildford, L.
Howie of Troon, L.
Hylton-Foster, B.
Ilchester, E.
Jenkin of Roding, L.
Jopling, L.
Kinloss, Ly.
Kintore, E.
Laming, L.
Lane of Horsell, L.
Lang of Monkton, L.
Lauderdale, E.
Leathers, V.
Long, V.
Lucas, L.
Lucas of Chilworth, L.
Lyell, L.
McConnell, L.
Marsh, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Mersey, V.
Middleton, L.
Milverton, L.
Molyneaux of Killead, L.
Monro of Langholm, L.
Monson, L.
Montrose, D.
Moran, L.
Morris, L.
Mowbray and Stourton, L.
Moyne, L.
Munster, E.
Newall, L.
Noel-Buxton, L.
Northesk, E.
Nunburnholme, L.
O'Cathain, B.
Oxfuird, V.
Palmer, L.
Park of Monmouth, B.
Pearson of Rannoch, L.
Peyton of Yeovil, L.
Pilkington of Oxenford, L.
Porter of Luddenham, L.
Rathcavan, L.
Rees, L.
Renton, L.
Ridley, V.
Rotherwick, L.
Rowallan, L.
Ryder of Warsaw, B.
St. Davids, V.
Sharples, B.
Shaw of Northstead, L.
Skelmersdale, L.
Slim, V.
Strange, B.
Strathcarron, L.
Swinfen, L.
Tebbit, L.
Tenby, V.
Teviot, L.
Thomas of Swynnerton, L.
Trumpington, B. [Teller.]
Vivian, L.
Weatherill, L.
Westbury, L.
Wharton, B.
Young, B.
Acton, L.
Addington, L.
Ahmed, L.
Alli, L.
Amos, B.
Annan, L.
Archer of Sandwell, L.
Ashley of Stoke, L.
Avebury, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Blease, L.
Borrie, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Bruce of Donington, L.
Burlison, L.
Carlisle, E.
Carter, L. [Teller.]
Castle of Blackburn, B.
Christopher, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Crawley, B.
Dahrendorf, L.
David, B.
Davies of Coity, L.
Desai, L.
Dholakia, L.
Diamond, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Evans of Parkside, L.
Evans of Watford, L.
Ewing of Kirkford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gilbert, L.
Glanusk, L.
Glenamara, L.
Goodhart, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Hanworth, V.
Hardy of Wath, L.
Harris of Greenwich, L.
Harris of Haringey, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hoyle, L.
Hughes, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Islwyn, L.
Jay of Paddington, B. [Lord Privy Seal.]
Jenkins of Putney, L.
Judd, L.
Kennedy of The Shaws, B.
Lockwood, B.
Lofthouse of Pontefract, L.
Longford, E.
Lovell-Davis, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller.]
Mackenzie of Framwellgate, L.
McNair, L.
McNally, L.
Maddock, B.
Mallalieu, B.
Merlyn-Rees, L.
Mishcon, L.
Molloy, L.
Monkswell, L.
Montague of Oxford, L.
Morris of Castle Morris, L.
Morris of Manchester, L.
Murray of Epping Forest, L.
Newby, L.
Nicol, B.
Paul, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Rea, L.
Redesdale, L.
Rendell of Babergh, B.
Richard, L.
Rogers of Riverside, L.
Roll of Ipsden, L.
Russell, E.
Sainsbury of Turville, L.
Sawyer, L.
Sefton of Garston, L.
Serota, B.
Sewel, L.
Shepherd, L.
Simon, V.
Simon of Highbury, L.
Smith of Clifton, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thornton, B.
Tordoff, L.
Uddin, B.
Walker of Doncaster, L.
Wallace of Saltaire, L.
Warner, L.
Wedderburn of Charlton, L.
Whitty, L.
Williams of Elvel, L.
Williams of Mostyn, L.
Young of Old Scone, B.
Resolved in the negative, and amendment disagreed to accordingly.
4.47 p.m.
[Amendments Nos. 2 and 3 not moved.]
Lord Williams of Mostyn: My Lords, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
Freedom of Information
Lord Williams of Mostyn: My Lords, with your Lordships' leave, I shall repeat a Statement made by my right honourable friend in another place earlier today. The Statement is as follows:
-
"With permission, Madam Speaker, I should like to make a Statement about freedom of information, on which I have today published a draft Bill and consultation paper. Copies are available in the Vote Office.
"In December 1997 the Government published a White Paper entitled Your Right to Know. I should like to pay tribute to my right honourable friend the Member for South Shields for his work on that document which underpins the draft Bill. I am also very grateful to the Public Administration Select Committee for its consideration of the White Paper's proposals.
"In drafting this Bill we had to strike a careful three-way balance between extending the public's access to information; protecting citizens' own privacy; and preserving confidentiality where disclosure would be against the public interest.
"This is a difficult balancing act, but one I think we have got right. The scales are weighted decisively in favour of openness and will radically change the relationship between the Government and their citizens.
"These proposals are not just about abstract rights which may benefit academics, historians or constitutional theorists alone. They will benefit everyone, and provide access to the kind of information which people really want to know.
"Parents will be able better to find out how schools apply their admissions policies. Patients will be able to understand how hospitals allocate resources between different treatments and how they prioritise waiting lists. And citizens will be able to find out more about the actions of their local police force.
"Under this Bill, for the first time, everyone will have the right of access to information held by bodies across the public sector. There will be a duty on public authorities to adopt a scheme for the publication of information about their work; a positive duty on public authorities, even where they are not obliged to provide such information, to consider disclosure on public interest grounds; and a new information commissioner together with a new information tribunal to enforce the rights created.
"Let me now explain to the House how the draft Bill compares with the White Paper's proposals. On which public bodies are to be covered, the Bill's proposals are a little wider than the White Paper. All the functions of the police and police authorities are to be covered as the Select Committee proposed, with
- specific exemptions for information gained as part of an inquiry, or which relates to informers. The security and intelligence agencies--along now with the National Criminal Intelligence Service--will remain outside the scope of the Bill.
"On the question of including Parliament, we are discussing how this can be done without prejudicing parliamentary privilege.
"The White Paper also promised access to specific documents and actual records, unlike the current code. The Bill delivers that promise. Applicants for information may express a preference for the means of communication: inspection of originals, a copy, or a summary of the information sought.
"The White Paper set out seven areas to be covered by exemptions, together with other information which would be excluded from the Bill. It also set out conditions on the right of access. The Bill delivers broadly the same exemptions as the White Paper, but the tests involved do differ.
"There has never been any expectation that Cabinet documents, inter-ministerial correspondence and official papers on developing policy would ever be disclosed under freedom of information. As the White Paper said:
"Under this Bill, there will be a class exemption for the formulation of government policy in place of the simple harm test in the White Paper, which we believe will achieve the same purpose in a more straightforward way.
"On the substantial harm test, after careful consideration, we reached the view that a single omnibus test could not work properly for the range of exemptions proposed. What is 'substantial' in relation to law enforcement may not be in relation to international relations. The harm concerned must be capable of being interpreted in relation to the subject matter it covers.
"Where therefore national security is an issue, the test proposed is whether the exemption is required for the purpose of safeguarding that. Where the health and safety of an individual is at issue, the test proposed is whether disclosure would, or would be likely to, endanger the physical or mental health or safety of an individual. Elsewhere the proposed test is whether disclosure would, or would be likely to, prejudice the criteria set out in the relevant exemption.
"The tests proposed will result in a more open regime than under the existing non-statutory code of practice. Under the code the test is the possibility of harm being caused. Under the draft Bill the test is one of probability.
"Now more than ever the Government needs space and time in which to assess arguments and conduct its own debates with a degree of privacy".--(Your Right To Know, page 19, paragraph 3.12.)
Moreover, it is worth bearing in mind that the product of such private deliberations is almost always a public announcement of policy.
"Generally, the information commissioner will have the power to substitute his or her judgment for that of the public authority. He or she will be able to ensure that public authorities are not able to claim that prejudice would be caused in circumstances where this would be trivial or frivolous. The prejudice has to be real, actual or of 'substance'. In respect of policy advice, the commissioner will be able to challenge the reasonableness of a Minister's decision against disclosure.
"There are two areas where the White Paper suggested that a harm test would apply where in fact such a test turns out to be impractical: personal information and information supplied in confidence.
"First, the disclosure of personal information is governed by our obligations to comply with the European Community Data Protection Directive and the European Convention on Human Rights--and the Human Rights Act. The convention and directive do not provide for the application of a harm test, and we cannot therefore unilaterally provide for one.
"Access to personal information about oneself is governed by the Data Protection Act 1998, whose provisions we are in fact extending under this Bill. Where personal information is sought about third parties, there will be a right to it under the Bill, if the Data Protection Act permits disclosure.
"Secondly, it would be wrong to overturn, in this Bill, duties of confidence which arise at common law. Those doing business with public authorities have the right to ensure that their confidences are respected. In many cases, public authorities need access to information held by others, which they in turn will only be prepared to release if given an undertaking of confidentiality. Where information is supplied to a public authority in these circumstances, the public authority should not be required to disclose it, if this would constitute a breach of confidence actionable by the supplier of the information.
"Let me turn now to the enforcement provisions. There will be an information commissioner who will enforce the FoI regime, and there will be rights of appeal against decisions of the commissioner to a tribunal, with a further appeal, on a point of law, to the courts.
"The Public Administration Select Committee said there was a need for there to be coherence between the data protection and freedom of information regimes, with a 'simple and comprehensive' right of access. A great many requests for information will be for a mixture of personal and general information. We are therefore providing that the office of the Data Protection Commissioner will be merged with that of the information commissioner.
"The cost of these proposals when enacted is forecast at between £90 million and £125 million per year.
"The Bill will now be subject to extensive public and parliamentary consultation, including by the Select Committee on Public Administration.
"Madam Speaker, I have spoken today of the need to balance rights. There is a right to know, there is a right to privacy and there is a right to confidentiality. For too long we have given insufficient weight to the right to know. The proposals in the draft Bill seek to redress that balance.
"This Government have done more than any other to open their workings to greater scrutiny by the public. In our manifesto we promised a programme of constitutional reform to get citizens more closely involved in the decisions which affect their everyday lives. We have delivered, as promised, a Scottish Parliament and a Welsh Assembly. We are bringing rights home through the Human Rights Act which will be implemented in October 2000. Today, we are taking forward our pledge on freedom of information.
"Madam Speaker, I commend these radical, and balanced, proposals to the House".
5.7 p.m.
Lord Cope of Berkeley: My Lords, the whole House will be grateful to the Minister for repeating the Statement made in another place by his right honourable friend the Home Secretary. It was perhaps more appropriate than usual that the Statement should have been thoroughly leaked beforehand, as has become habitual with the Home Office. However, in this case we were spared the sight of the Home Office seeking an injunction; I believe that Home Office lawyers were busy with another injunction.
The issue of freedom of government information--for that is what it is--has become more important as spin doctors have multiplied and been allowed to assert themselves more so that the accuracy and completeness of government information cannot be relied upon to the same extent. None of us has had much time to study the detail of the Statement, but it seems that the Scottish Parliament and Ministers appear to be exempted from the Bill, but not the Northern Irish or Welsh Assemblies. I should be interested to know the reasons why that should be so.
The right honourable gentleman the Home Secretary, in the course of delivering the Statement, added a sentence which the noble Lord, Lord Williams of Mostyn, was perhaps too modest to mention. The Home Secretary mentioned the taskforce to be set up under the chairmanship of the noble Lord, Lord Williams. It would be helpful to know more about its work.
It is clear that there will be substantial resource implications, not so much for central Government but for the police; the National Health Service; local government including educational authorities; and those in private industry who contract with the Government. It looks as though an individual who wants information about himself may have to cover some of the costs but there will be heavy costs on the budgets of the police, the NHS, the other bodies which I mentioned and contractors to pay for a new army of people to hand out paper and deal with the inquiries. I am not clear from the Statement whether the Government will pick up the
bill for the local authorities and, indeed, for the contractors too. The statement of the costs--£90 million to £125 million--seems very low if the Government are to pick up those costs.Am I right in thinking that the requirements of existing contracts will not be altered unilaterally? That was not clear, but I presume that the confidentiality rules will apply to contracts. That is important also in the case of defence contracts. I notice that the noble Lord, Lord Gilbert, from the Ministry of Defence, is in his place. I am not clear--although it seems to me it would be wise--whether defence contractors are to be exempt from those provisions, either through the confidentiality clause or in some other way.
Those are all matters of detail which may be answered by a more lengthy study of the document as a whole. The publication of a draft Bill in this manner is a helpful way in which to bring forward legislation. The Home Secretary's Statement did not say anything specific about the Government's proposal for consideration of this draft Bill in your Lordships' House. The document itself suggests that for this House, the normal consideration by the Delegated Powers and Deregulation Committee would be sufficient. The remit of that committee covers every Bill, but it is extremely specific and limited in what it normally considers. In view of the importance of this whole issue to the proper conduct of government and to citizens, and in view also of the expertise available, we believe that the House will wish to consider this draft Bill very carefully. A special Select Committee may be the right way in which to proceed analogous with the committee which is to consider the matter in another place. I hope that that will be discussed through the usual channels, otherwise, this House will effectively be opting out of the next stage of this important consultation process.
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