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Lord McNally: My Lords, in introducing the Statement, the Minister put the proposal for a freedom of information Act in its constitutional context. Before the general election, I was a member of what became known as the Cook-Maclennan Committee. The now Home Secretary, Jack Straw, was also a member of that committee. It was a Labour-Liberal Democrat joint committee which looked at constitutional reform. A plank of the joint statement before the general election was a freedom of information Act. Therefore, on these Benches, we welcome the introduction of this measure by the Government.
When we were discussing constitutional reform at that time, we wanted to see two outcomes: we wanted to see a breakdown of the confrontational nature of politics, and the Minister referred to reforms in Scotland and Wales which have taken us along that road; and we wanted to see an end to the culture of secrecy in our public service. We saw a freedom of information Act as an important part of that process.
I am sure that the Minister and the House will agree that it is only a step along the way because we need to change a whole culture and attitude of mind in Whitehall and in our public services that not only should the man in Whitehall know best but he should also know most.
Concerns were expressed on all sides of the House that Dr. David Clark, to whom the Minister paid tribute, lasted a very short time in office, although he did a great deal of work on the draft Bill while there. The business of looking after freedom of information was moved from the Cabinet Office to the Home Office. In a debate a few weeks ago, I, perhaps rather unkindly, suggested that that was like putting Dracula in control of a blood bank. But the Minister was extremely hurt by that suggestion and said that the Home Office was a safe guardian of freedom of information.
Nevertheless, as the noble Lord, Lord Cope, mentioned, there has been the usual plethora of spin and counter-spin which is one of the most irritating aspects of this Government's attitude to Parliament and to serious business. I hope that if we are to proceed on a genuinely all-party basis on this important legislation, the spin doctors can be kept under control.
As the noble Lord, Lord Cope, said, it is an extremely weighty document to absorb in a short time. Therefore, I make just a few headline points. Obviously we understand why security and intelligence services and the National Criminal Intelligence Service must be protected. But they must not become a refuge for government departments protecting their secrecy. As I said, we must break down that culture of secrecy.
The Minister may wish to expand further as to why the "substantial harm" test has been watered down. As he will have noted from all the leaks, that is seen as the Home Secretary's great triumph. He will be aware that those campaigning for a freedom of information Act are very suspicious about that.
Again, as the noble Lord, Lord Cope, hinted, advice to Ministers will be withheld, but will factual and statistical information also be withheld? We have concerns about the promise that many of the powers will be contained in secondary legislation. We do not want to open the door only to find that through secondary legislation, it is readily and easily closed again.
The Minister mentioned the Data Protection Act. It is probably a good idea to bring together the two commissioners, but there will obviously be strains and tensions between the rights given under a freedom of information Act and the powers and defences conferred by the Data Protection Act.
There are obviously other matters with which one could deal in detail. However, I wish to associate myself most strongly with the concluding remarks of the noble Lord, Lord Cope. In no way has there been collusion between us. In fact, I was rather annoyed that the noble Lord, Lord Cope, ran off with my one original idea. It occurred to me that while it was stated clearly that the Public Administration Select Committee in another place would be given the opportunity to examine the draft legislation in detail, no similar provision is made for this House. As the noble Lord, Lord Cope, rightly said, that misses an opportunity to make use of the considerable expertise which lies in this House in that area. We have the procedure to set up ad hoc Select Committees. I hope that the "Cope/McNally proposals" can be properly considered through the usual channels. It is important, in the light of history, to put one's name to these matters early on.
The Bill, as with the old sixth-form essay, is a challenge and opportunity. As I have said, it is a challenge to break down the culture of secrecy in our public service. We welcome the draft Bill and the process. We believe that with such a process, in which pressure groups and political parties take part, we shall build a freedom of information Act which will stand the test of time. All the parties who work on it will, I presume, with the ambition of politicians, hope to work in Government under this Act. Therefore there is a need for both Government and Opposition to approach this opportunity constructively. If we do that, I believe we shall have a freedom of information Act of which we shall all be proud. I wish the process well.
Lord Williams of Mostyn: My Lords, I am grateful for the responses from the noble Lords, Lord Cope of Berkeley and Lord McNally. The noble Lord, Lord Cope, said that things had been leaked beforehand. There certainly has been speculation. Most of it seems to have been resoundingly wrong on almost every point. The noble Lord spoke about the freedom of government information. I should like to underline that this is a much more fundamental approach.
In the Statement, which I repeated, my right honourable friend Jack Straw spoke about matters which are of infinitely greater importance to the ordinary individual than we sometimes think. Many people want to know about local schools, local hospitals and delivery of services by local authorities. They are much more interested in and touched by those matters than the kind of headline investigation that we see in newspapers. So, this is not about government information but about information that affects the ordinary member of the public, day in and day out.
The noble Lord, Lord Cope, asked about Wales and Scotland. The Bill will not apply to any public authority wholly or mainly concerned with devolved matters in Scotland or transferred matters in Northern Ireland. The Parliament and the Assembly will determine the regime to apply there. The National Assembly for Wales has no power to pass primary legislation. Therefore, the Act will apply in full to Wales and to the National Assembly.
The noble Lord also asked about the task force. That was set up recently by the Home Secretary who asked me to chair it. Its membership is quite wide and has been published but I shall give a few names, almost at random. It includes the General Secretary of the First Division Association; Mrs. Elizabeth France, the Data Protection Registrar; Professor Robert Hazell of the Constitution Unit; Dr. Dilys Jones, Clinical Strategy Director of the High Security Psychiatric Services Commissioning Board NHS Executive, and Mr. John Mills, Chief Executive of Cornwall County Council. As observers, it has Miss Santah Rasaiah of the Newspaper Society and Mr. Maurice Frankel of the Campaign for FOI. So, I do not believe we have been wholly exclusive in the membership.
A question was asked about costs. They will be of the order I stated. They are greater than those mentioned in the White Paper because we expect many more people to want to use their rights. We firmly believe that managing any organisation properly--whether governmental, a health trust, a local authority education department, or any organisation of that kind--can be done only on the basis of openness. Quite apart from the fact that we speak of public rights, in my view and that of the Government, they are useful management tools. If one knows that one's decisions will be challenged, one tends to make better decisions in the first place.
Of course, we have to think carefully about confidentiality in defence contracts and prison service contracts. Perhaps I may give an example. The noble Earl, Lord Russell, wanted to see the contract on Campsfield House, the detention centre. The original response was that that was subject to commercial confidentiality. It was not; it was published simply with the prices taken out. The fundamental point of the question raised by the noble Earl was, "What sort of regime does the state require for those in a detention centre in the immigration context who have not been convicted?" It seems to me that he was perfectly entitled to see the contract. I provided a copy for him and placed one in the Library of the House. Therefore, one can draw such distinctions, as long as one draws them scrupulously on the basis that there is a presumption of openness.
The noble Lord, Lord Cope, spoke of the fact that having a draft Bill was helpful. It was intended to be such. I repeat what I have said on earlier occasions, and, I believe, to the noble Lord. If, after Second Reading, noble Lords want to come and see me, with or without advisers, with or without officials, we are more than happy for that to be a continuing process.
Both noble Lords spoke about a question for the usual channels. It is probably best if I leave it for them. I have no desire to resist anything being discussed by any Committee in your Lordships' House if by such means we get a better Bill.
The noble Lord, Lord McNally, rightly said that this is a step along the way. I believe that is fundamentally true. He also said that this is part of a constitutional settlement. I agree with him on that point. I repeat what has almost become a hobby-horse of mine. When we speak of devolution we do not speak of devolution to a parliament or an assembly; the information and the parliamentary rights are to go to the individual. It is devolution--devolved power by way of information to the individual--of which we are speaking in this context.
I certainly agree that we ought not to seek for refuge by simply saying, "This is national security and is within the remit of the intelligence agencies." I am bound to say, from my own experience of talking generally to one director of the intelligence services, that I was agreeably surprised to see the way in which they deal with their public duties, as well as their duties to maintain security in the service of the realm.
The noble Lord asked me, quite reasonably, why we have changed from "substantial harm" or "simple harm" to "prejudice". We believe that prejudice will be a much better concept. It will be focused on the particular rather than the general. I remind noble Lords that success in securing and continuing an exemption from disclosure depends on the probability demonstration of prejudice, not the possibility demonstration of substantial harm. That is a critical difference. Perhaps I may recapitulate. To rely on the "prejudice" ground of exemption--I use the words in the Bill--would, or would be likely to, cause prejudice. That is important. It is a higher hurdle than "possibility".
Statistical and factual information is already readily available. In the Home Office, for instance, contrary to what I am led to believe was earlier practice, the statistical department issues the statistics, whether they are convenient, comfortable or uncomfortable for the Home Office. To give an example, once the reports of the Chief Inspector of Prisons have been checked for factual accuracy, I can warrant that I sign them off immediately whether or not they are happy reading for us.
The noble Lord, Lord McNally, mentioned two matters of importance. First, I welcome his approach, and that of the noble Lord, Lord Cope, in stating that they want to work constructively with all Members of this House to achieve the best possible Bill. Secondly, he raised the question of whether it is appropriate for the information commissioner to be the same person as the data protection commissioner. We thought about that for quite a long time. We paid attention to the recommendations of the Select Committee in another place. We came to the conclusion that the argument was correct to look for a single point of access. There are strange intentions, as the noble Lord identified. It is fair to say that Mrs. France received the admiration of everyone for her independence. We want someone of experience and independence in this field. The probability is therefore that we will have a single commissioner, if the Bill goes through unchanged.
There is also another point. Quite a few of our fellow citizens are afraid of government; they are unaware of their rights and become confused by officialdom. We believe it is helpful to the individual to have a single point of access with a modest charge. Some people want
I wish to ask specifically about environmental information. As I understand the provisions in the draft paper, modification to comply with European Community Directive 1990 in the Aarhus Convention on access to information and other allied issues will be required. Is my noble friend able to specify a little more clearly the reasons for making that assertion? I am sure it is required, but it is without any specific further and better particulars.
I thank the Home Office also for the comparison with other regimes that is set out in the document. That is most helpful. Finally, perhaps I may express some amazement at the extraordinary eagerness of the noble Lord, Lord McNally, to be allied with the noble Lord, Lord Cope. The noble Lord, Lord Cope, is a most agreeable man, for whom I had a great deal of affection in the other place as well as here, but it is extraordinary that the noble Lord's request to achieve fame should be based on that alliance. I suggest he seeks other allies.
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