Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Renton: My Lords, what is the Government's attitude towards Mr Putin's statement that Russia had to attack the Muslims in Chechnya because of its fear of fundamentalist Muslim attacks elsewhere?

Baroness Scotland of Asthal: My Lords, it is important to remember the history, which, although there are sensitivities, from the Russian perspective is quite complex. Chechnya has a long history of conflict. It fought unsuccessfully for its independence from Russia between 1994 to 1996. Since that war, Chechnya has seen a rise in Islamic militancy and numerous kidnappings, including that of five Britons, three of whom, as your Lordships will remember, were beheaded in December 1998. I understand that that is the history on which Mr Putin relies and expresses anxiety.

We know that that anxiety is not shared by our international partners with the same intensity. That issue has been part of the critical dialogue. We are trying to help Russia to realise that, although we understand that history, this is not the most appropriate way of dealing with the issue. As Russia admitted as long ago as August, the only way to resolve this issue will be through political dialogue and a political solution, not a military one. The Russians have stated that they understand that. We are obviously pushing them to make it a reality.

Baroness Williams of Crosby: My Lords, does the Minister agree that one of the reasons for the war in Chechnya was the original invasion of Daghestan by some of the Chechen irregular fighters--a very different situation from that which applied in Chile? The Minister spoke about a political solution. Does she further agree that there was something close to a lasting solution involving the acceptance of a good deal of autonomy for Chechnya on the basis that it remained legally a part of the Russian Federation? Can she say whether Mr Putin will move in the

20 Apr 2000 : Column 821

direction of trying to resume talks as soon as he has identified people who can genuinely represent the population of Chechnya.

Baroness Scotland of Asthal: My Lords, that is certainly our hope and expectation. As I told the House as long ago as August 1999, there was an acceptance by the Russian authorities that this political solution would be the only lasting way forward. We all know that things have deteriorated very badly since then. However, the thrust of the encouragement that we have given remains the same: we have to get back to a situation where there can be a resolution between the Russian and Chechen parties.

Baroness Rawlings: My Lords, although Russia's Defence Minister yesterday denied that reinforcements are being sent to Chechnya, what information has the Minister received in regard to the latest reports from the Russian news agencies that as many as 3,000 paratroopers, motorised infantry troops and special police agents poured into the battle-torn Shatoi region of Chechnya? Despite all that the Minister has told us about the international commission and critical engagement, and bearing in mind my question, can we really trust them?

Baroness Scotland of Asthal: My Lords, I cannot confirm or deny the matters outlined by the noble Baroness. They are not within my knowledge. But what I can say is that we have to face the reality of the situation in which we find ourselves. Russia cannot and should not be isolated. An isolated Russia is a far more dangerous entity than one which is engaged. We have discovered that by having this critical engagement with Russia we have been able to achieve positive results. We will continue to drive Russia in the most productive direction.

Lord Steel of Aikwood: My Lords, in the context of critical engagement, has there yet been time for any discussion with Mr Putin on the dilapidation of nuclear power stations in all parts of the Russian Federation which pose a threat to those well outside its borders?

Baroness Scotland of Asthal: My Lords, I am not able to give the noble Lord details in relation to that issue. But I do know that the Russian situation was fully discussed with my right honourable friend the Prime Minister. We know that there are some challenges in relation to their anxieties about NMD and that that was also part of their discussion. I am confident that the broad issues in terms of national and international security would have been canvassed by my right honourable friend the Prime Minister and Mr Putin on behalf of Russia.

20 Apr 2000 : Column 822

Lord Wright of Richmond: My Lords, does the Minister agree that to present what is essentially a nationalist threat from Chechnya as a world-wide Islamic threat carries the risk of misrepresenting Islam in the way which, distressingly, a former Secretary-General of NATO, Mr Willy Claes, did when he said that Islam was taking the place of communism as the greatest threat to Western civilisation?

Baroness Scotland of Asthal: My Lords, I agree with the noble Lord. The Chechens have a particular difficulty with the Russians and a number of them are of the Muslim faith. But that is not a main issue and I absolutely agree that it should not be used to heat a view that somehow there will be an Islamic threat against us all.

Lord Waddington: My Lords, I am puzzled. What kind of ethical foreign policy is it when you bomb the living daylights out of a country like Serbia which cannot bomb you back and court a country which can?

Baroness Scotland of Asthal: My Lords, we are not courting a country which can. I am sometimes disturbed by the shortness of memory in this House. Milosevic's actions were vile. This country, together with many others, did everything we could to bring him to the table and to make him recognise that he should change. He would not. I remember, if other noble Lords do not, the frisson that went through the House when the decision was made that we had no choice but to go into military mode against him. I shall never forget that day and I would hope that no one else in the House will either.

Viscount Waverley: My Lords, did President Putin elaborate on future Russian policy towards the CIS and were "pipeline" politics specifically discussed?

Baroness Scotland of Asthal: My Lords, I am not able to answer that question either. I wish I had been there at the meeting because I would then be able to tell your Lordships precisely what took place. All I can say is that it was a very broad and in-depth discussion on all matters pertaining to our relations with our Russian colleagues.

Utilities Bill

Brought from the Commons; read a first time, and to be printed.

Political Parties, Elections and Referendums Bill

Lord Bach: My Lords, on behalf of my noble friend Lord Bassam of Brighton, I beg to move the Motion standing in his name on the Order Paper.

20 Apr 2000 : Column 823

Moved, That it be an instruction to the Committee of the Whole House to whom the Political Parties, Elections and Referendums Bill has been committed that they consider the Bill in the following order:

Clause 1, Schedule 1, Clause 2, Schedule 2, Clauses 3 to 29, Schedule 3, Clauses 30 to 45, Schedule 4, Clauses 46 to 58, Schedule 5, Clauses 59 to 66, Schedule 6, Clause 67, Schedule 7, Clauses 68 to 74, Schedule 8, Clauses 75 to 89, Schedule 9, Clause 90, Schedule 10, Clauses 91 to 105, Schedule 11, Clause 106, Schedule 12, Clauses 107 to 113, Schedule 13, Clause 114, Schedule 14, Clauses 115 to 125, Schedule 15, Clauses 126 to 130, Schedule 16, Clause 131, Schedule 17, Clause 132, Schedule 18, Clauses 133 to 140, Schedule 19, Clauses 141 to 151, Schedules 20 and 21.--(Lord Bach.)

On Question, Motion agreed to.

Freedom of Information Bill

11.33 a.m.

The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, I beg to move that this Bill be now read a second time. The Freedom of Information Bill creates a right of access to information held by almost all public sector organisations. It builds on existing rights. The right of access to personal information about yourself--subject access--was created in respect of computerised information in the Data Protection Act 1984. It was extended to structured paper records by the Data Protection Act 1998. This Bill will extend that right even further to unstructured paper records.

20 Apr 2000 : Column 824

But the Bill goes much further than that. All information held by any public authority will fall into the scope of the Bill and will be available on request, unless an exemption applies. And even if an exemption applies, in almost all cases the authority must disclose the information where the wider public interest outweighs the need to maintain the exemption.

The Bill creates an information commissioner who will have the task of enforcing its provisions. So people will not have to take expensive court action to enforce their rights. The commissioner will do that and access to the commissioner will be free of charge.

This Bill is the result of extensive consultation and scrutiny. The Government published a White Paper on 17th December 1997, which was followed by a public consultation exercise. A draft Bill was then published on 24th May 1999. The draft Bill was the subject of pre-legislative scrutiny by committees of both Houses of Parliament and a further public consultation exercise. Perhaps I may take the opportunity, at this point, to pay tribute to my noble and learned friend Lord Archer of Sandwell and the other noble Lords who served on the ad hoc committee which scrutinised the draft Bill last year. I described the scrutiny of the draft Bill as extensive--I should add rigorous and thought provoking as respects the work of that committee. The Government have been able to accept many of the recommendations of the committee, including, for example, amending the Long Title of the Bill. Where we were unable to accept the committee's proposals we explained that in our detailed response to the noble and learned Lord, Lord Archer of Sandwell.

There has been a great deal of comment and criticism of the Government's proposals on freedom of information. The Government have listened carefully to that criticism and where it has been constructive and the ideas put forward have been sensible, the Government have responded. The Government intend to bring forward further amendments at the Committee stage in your Lordships' House and I shall comment further on that in a few moments. Some of the criticism of the Bill has been mischievous and misleading. How many times has it been said that the Bill will create blanket bans on the disclosure of information? The Bill creates no bans, blanket or otherwise--quite the reverse. Clause 76 ensures that nothing in the Bill is to be taken to limit the power of a public authority to disclose information.

There have been assertions that this Bill is in some way not as good as the code of practice on access to government information. That is not right. The code of practice creates no rights whatever. Under the code of practice, all information is released solely at the Government's discretion. One of the criticisms of the Bill, which the Government have addressed, is that too much information was covered by discretionary provisions. I do not know how anyone can make that comment and then go on to say that a wholly discretionary code is better.

I wish to make two further points on the issue. First, the Bill covers a much wider range of authorities--virtually all public sector bodies--whereas the code is

20 Apr 2000 : Column 825

restricted to central government and a limited range of quangos. Secondly, under the Bill, the information commissioner can be accessed directly by an applicant and her decisions are enforceable. The ombudsman, however, in respect of the code, can be approached only through Members of Parliament, and his findings are merely recommendations to the Government, albeit powerful ones. So I hope it can be seen that if one looks at the principle the code is not at all preferable to the Bill. But the Government's mind is not closed. If your Lordships propose further amendments which improve the Bill without undermining its underlying principles, or the necessary safeguards for sensitive information, or effective and efficient government, we will give them a fair hearing. But the Bill creates a delicate balance of rights, balancing the right to know against the right to privacy and the right to confidentiality. We must ensure that we do not upset that balance.

Perhaps I may take your Lordships through the main provisions of the Bill. Part I, dealing with access to information held by public authorities, sets out the key provisions covering the right of access. Clause 1 states with absolute clarity the public's entitlement,

    "to be informed in writing by the public authority whether it holds information of the description specified in the request and ... if that is the case, to have that information communicated to him".

That is a clear right. There are, of course, conditions attached to that right, although no more than are sensible.

The public authority must be supplied with sufficient information as it may reasonably require to identify and locate the information. That does not mean that an applicant will have to supply information he or she cannot reasonably be expected to possess--file numbers, for example--but the request must be sufficiently well described for the authority to know what it is looking for.

Clause 2 defines the term "public authority" for the purposes of the Bill. Clause 3 creates a power to amend Schedule 1, the list of public authorities, by order. Clause 4 allows other public authorities, or private organisations carrying out public functions, to be brought within the scope of the Bill, by order. We are minded to consult organisations such as those running prisons under contract, or the British Board of Film Classification, for example, about designation under Clause 4.

Clause 7 of the Bill requires that a request for information should be in writing and state the name and address for correspondence purposes and describe the information sought. Requests made by electronic means will be treated as being made in writing if they are capable of being used for subsequent reference.

Authorities will be able to charge a fee for responding to a request for information, but under Clause 8 of the Bill that fee must be determined in accordance with regulations. Authorities will not be obliged to charge anything if they do not want to. A working draft of the regulations has been published.

Under Clause 9, authorities will have to reply within 20 working days of receipt of the request. Applicants will be able to choose the method of receiving the

20 Apr 2000 : Column 826

information under the provisions of Clause 10. The authority will have to reply in that way unless it is not reasonably practicable for it to do so.

Clause 13 sets out the public interest disclosure provisions of the Bill. Even where an exemption applies, an authority must disclose information where the public interest in disclosure outweighs the public interest in maintaining the exemption. This is a key provision. We have been criticised for having too many class exemptions in the Bill. But most exemptions are subject to the public interest test in Clause 13. The test is: where is the balance of the public interest. If it lies in favour of disclosure, even though there may be an exemption, then the information will be disclosed.

Clause 15 requires an authority to give reasons for not disclosing information, whether under Clause 1 or Clause 13, unless to do so would result in the disclosure of exempt information.

Clause 16 creates the information commissioner and tribunal. Initially, the commissioner will be Mrs Elizabeth France, the present Data Protection Commissioner. An open competition will be held within two years of the Bill's passage through Parliament to fill the position full time.

Clauses 17 and 18 deal with publication schemes. These provisions have had somewhat of a Cinderella status during the scrutiny process. Yet the requirement for all public authorities to apply a scheme for publication--in effect to say what, when and how information will be published--is probably the most powerful push to openness in the Bill. Authorities will not be able to get away with weak or self-serving publication schemes. They will all have to be approved by the commissioner and she will ensure that they are strong and meaningful.

Part II of the Bill deals with exempt information. There has been much comment that there are 25 clauses dealing with exempt information in the Bill, whereas there were only seven exemptions in the White Paper. The exemptions in the Bill deal with some issues which were called exclusions in the White Paper and others which were called gateway provisions. So the comparison is not a fair one. What it is necessary to do is to compare the scope of the exemptions with those in the White Paper. The Bill does not range more widely in the scope of its exemptions than the White Paper except where necessary because of the greater range of bodies covered by the Bill. For example, the Bill covers Parliament and, therefore, Clause 32, exempting the disclosure of information which would constitute a breach of parliamentary privilege is necessary, and I am certain that your Lordships would agree with that. I do not propose to go through all the exemptions in detail, but simply to highlight a few where there has been debate.

Clause 28 creates a class exemption for information held for the purposes of a criminal investigation. The Government believe that a class exemption is necessary in relation to this kind of information in order to ensure that criminal proceedings are not jeopardised by the premature disclosure of

20 Apr 2000 : Column 827

information and to preserve the criminal courts as the sole forum for determining guilt. The existence of this exemption will not prevent the disclosure of information where it is in the public interest for such disclosure to be made. The provisions of Clause 13 will apply. I should also point out that information about the conduct of investigations in general is not covered by this exemption.

Clause 33 provides a class exemption for the formulation and development of government policy. It is acknowledged that government must have time and space to evaluate policy options and that the premature disclosure of information of this kind can hamper the effective conduct of government. Nonetheless, a great deal of information is made available already to the public and will continue to be made available. The public interest disclosure provisions in Clause 13 will apply to this exemption and ensure that information will be disclosed where it is in the public interest to do so.

There has also been discussion as to whether factual and background information used in the decision-making process should be available as of right. No one disagrees that good government can only be achieved if there can be a full and frank exchange of views between Ministers, and between Ministers and their advisers. No one disagrees either that, wherever possible, factual information which is used to provide an informed background to decision-taking should be made available. But the dividing line between facts and opinions, or advice, is simply not that clear. Of course there will be many instances where facts, such as statistics, or research papers, will be freely available--and indeed may already be published documents. But there will be occasions where "facts" are part of the discussion or argumentation about options under consideration and where it will not be possible to disentangle facts from opinion or advice. On these occasions the disclosure of such information would, of itself, affect the decision-taking process. Thus there will be a need to withhold such information on a few occasions. To deal with that point, the Government have left the disclosure of factual information relating to policy decisions to Clause 13, albeit with a strong steer towards disclosure set out in that clause.

Finally, on the subject of exemptions, I want to emphasise the strength of the prejudice test. Prejudice is a term used in other legislation relating to the disclosure of information. It is a term well understood by the courts and the public. It is not a weak test. The commissioner will have the power to overrule an authority if she feels that any prejudice caused by a disclosure would be trivial or insignificant. She will ensure that an authority must point to prejudice which is "real, actual or of substance". We do not think that reliance on undefined terms such as "substantial" or "significant" is a sensible way forward. We do not know how they will be interpreted by the commissioner or the courts. We can never deliver absolute certainty, but we can avoid making uncertainty worse by adding ill-defined terminology into the Bill.

20 Apr 2000 : Column 828

Part III of the Bill deals with the general functions of the Secretary of State, the Lord Chancellor and the information commissioner. The Secretary of State, in consultation with the commissioner, will be required to lay before Parliament a code of practice in connection with the discharge of authorities' functions under Part I of the Bill.

The code of practice cannot be finalised until there is a commissioner in place with formal powers to consider any draft. However, my right honourable friend the Home Secretary has placed copies of a draft of the code which represents work in progress in the Library of the House. I am aware that shortly the Lord Chancellor hopes to do the same with his code dealing with the keeping, management and destruction of records.

Clause 46 of the Bill gives the commissioner extensive powers to promote good practice in relation to the provisions of the Bill. Clause 47 permits the commissioner to issue recommendations as to good practice. Clause 48 requires the commissioner to lay a report before each House of Parliament annually. It also gives the commissioner power to lay further reports before Parliament as she sees fit.

Part IV of the Bill deals with enforcement. The commissioner must, subject to certain limited exceptions, reach a decision on any complaint made to her about the failure of an authority to comply with Part I of the legislation. The commissioner may also investigate an authority on her own initiative under Clause 51 and issue an enforcement notice if she finds an authority in breach of its obligations. Under Clause 50 she can issue an information notice to force an authority to provide the information necessary for her to reach a decision in a case. Public authorities must comply with notices issued by the commissioner. A failure to comply may be reported to the court under the provisions of Clause 53 and that failure may be dealt with as a contempt of court.

There are appeal mechanisms for both public authorities and applicants against the decisions of the commissioner. The appeal is to the tribunal under Clause 59 of the Bill.

Clause 52 sets out the exception to the duty to comply with decision or enforcement notices. This is the so-called executive override provision. It is important to note the limitations on this provision and the amendments which my right honourable friend the Home Secretary announced would be tabled in this House at Committee stage. First, this is not a general override of the commissioner's decisions; it applies only to decisions taken under Clause 13. Secondly, the Minister must explain publicly why he has chosen to disagree with the commissioner. Thirdly, the decision is subject to judicial review and the commissioner will have the locus to seek such a review. Thus, this is not an easy provision for Ministers to use. Moreover, we are committed to tabling an amendment at Committee to restrict the use of the override to Cabinet Ministers or the Attorney General and to explore ways to reflect on the face of the Bill that the decision to use the

20 Apr 2000 : Column 829

executive override will be taken collectively. We are also looking at how the provision relates to local authorities.

This provision and the amendments, and the further consideration offered by my right honourable friend the Home Secretary, were welcomed in the other place. I hope that your Lordships will also welcome the Government's willingness to listen and, in due course, will welcome the consequent amendments.

Part VI of the Bill ensures that the disclosure regimes under the Freedom of Information Bill and the Public Records Acts are consistent with each other; in particular, it disapplies many of the exemptions at the 30-year point.

Part VII of the Bill amends the Data Protection Act 1998. Clauses 67 and 68 extend the right of subject access in relation to public authorities to non-structured manual files, thus giving a much wider right of subject access than currently applies.

Part VIII of the Bill deals with miscellaneous and supplemental provisions. Clause 73 gives the Secretary of State the power to make regulations to enable the United Kingdom to ratify the Aarhus Convention on access to environmental information. These regulations will replace the existing Environmental Access Regulations made under the European Communities Act 1972. The new regulations will provide wider access than under the current system. We have taken the decision not to integrate the provisions of the convention into the Bill itself. However, the Bill's provisions will continue to have an effect on access to environmental information. For example, if information is not available under the new regulations the provisions of Clause 13 of the Bill will require disclosure if it is in the public interest.

Clause 74 provides an order-making power to enable statutory provisions which restrict the disclosure of information to be amended or repealed.

I draw your Lordships' attention to the commencement provisions in Clause 84, in particular subsection (3). The provisions of the Bill must be brought into effect within five years of Royal Assent. This is a failsafe provision. It is the Government's intention to bring the legislation into force as quickly as possible. It will take some time to get the commissioner's office up and running. Most of the 50,000 or so public authorities to be covered by the Bill will need time to get systems into place and to train staff. However, I can assure your Lordships that there will be no backsliding. Central government already operate an openness regime. I expect that central government at least will be covered by the Bill's provisions as soon as the commissioner indicates that she is ready to enforce the legislation.

This is a good Bill, and with the amendments proposed by the Government it will be an even better Bill. For the very first time this measure will give the people of this country a right to know. It compares well with overseas legislation. Each country must determine for itself where to draw the line between competing rights, such as the right to know, the right to privacy and the right to confidentiality. Legislation

20 Apr 2000 : Column 830

in each state must reflect the legal systems and administrative traditions prevailing in that state. The balance of rights will not be the same everywhere. We have a Bill which is fully retrospective, unlike Ireland, and covers a huge range of organisations including the police, unlike Ireland. The Bill also provides access to a tribunal, unlike the proposals in Scotland. There is free access to the commissioner, whereas in Australia access to the administration tribunal requires the payment of a fee, and strict time limits on response times, unlike Canada where many people have to wait months for the information.

The right to know, while it cannot be unfettered, has long been neglected in this country. The party opposite did nothing to promote a statutory right to know; indeed, it has consistently opposed such a move. At the last election its line was that freedom of information was of interest only to left-wing busybodies. No doubt a different line will be heard this morning from the party opposite. This Bill gives parents the right to know how schools apply their admission criteria, how health authorities determine the health care priorities for their areas and how administrative decisions over a very wide range of issues, such as planning, immigration and the award of grants, are taken. Everyone will benefit from this Bill. It will deliver a more responsive, better informed and accountable public service. I commend the Bill to the House and ask that it be given a Second Reading.

Moved, That the Bill be now read a second time.--(Lord Falconer of Thoroton.)

11.57 a.m.

Lord Mackay of Ardbrecknish: My Lords, I am sure that we are all grateful to the noble and learned Lord, Lord Falconer of Thoroton, for his explanation of the Bill and the various amendments that he proposes to table as a result of consideration of this measure in the other place, including pressure from his own Back-Benchers who were less than satisfied with it. It is a little ironic that the Government have selected Maundy Thursday for the Second Reading of this Bill, safe in the knowledge that not only will your Lordships' House be a little thin in attendance but newspapers will be a little thin in reporting this matter and even less will be read about it by the citizens of this country who are on holiday over the weekend. I suggest that that is a good start for open government.

The very drafting of the Bill seems designed to put off everyone other than lawyers. We must grasp the nettle of writing Bills in plain English so that they can be understood by the average, intelligent reader.

I am pleased that a number of noble Lords with a great interest in this subject are to take part in the Second Reading of this Bill. I single out my noble friend Lord Hunt of Wirral who introduced the Code of Practice on Access to Government Information in 1994. I am also pleased that it is the noble and learned Lord, Lord Falconer of Thoroton, who deals with this important Bill. With a member of the Government as senior as the noble and learned Lord in charge of this

20 Apr 2000 : Column 831

Bill, we can be confident that he will listen to the argument and, if he is convinced by it, that he will have the authority to make changes.

We shall be looking for changes. Indeed, those Members of another place who took part in the debates on the Bill clearly expect us to make changes. No less a person than Tony Benn said:

    "Whether we have to depend on the House of Lords is a slightly painful thought for me because, as a representative of public opinion, the House of Lords is very shaky".--[Official Report, Commons, 5/4/2000; col. 1001.]

We need to see whether we can prove to Mr Benn that we are far from shaky.

Perhaps the best piece of advice to your Lordships came on the same day from Robert Maclennan, when he said:

    "The issue before us was debated extensively on Second Reading. It was then debated lengthily in Committee. During these debates, not one voice has been raised in the House in support of what is in the clause. Following the vote, whatever the Home Secretary may say about the House having spoken, I advise our colleagues in another place, however they may have got there, that the opinion of the House should be judged by what it has said".--[Official Report, Commons, 5/4/2000; col. 1012.]

Indeed, the striking thing about the Report stage in the other place on 5th and 6th April was that apart from Government Ministers not a single voice was raised in the Government's support; from all sides came criticism and a demand that the Government should live up to the words of their manifesto and their White Paper. I remind the noble and learned Lord of what he said in his manifesto:

    "Unnecessary secrecy in government leads to arrogance in government and defective policy decisions ... We are pledged to a Freedom of Information Act, leading to more open government".

Dr David Clark was appointed Chancellor of the Duchy of Lancaster and given the responsibility of translating that election pledge into reality. By December 1997, he had produced a White Paper, but, to put it at its kindest, the mice then got at not only the White Paper but Dr Clark, who was the subject of some disgraceful whispering campaigns up and down Whitehall, orchestrated by those mysterious sources--in reality, that army of political advisers that we have now become so used to. In football parlance, they got a result: exit Dr Clark; enter a draft Bill significantly watering down the proposals in the White Paper and in some aspects watering down the code of practice introduced by the previous Conservative government.

The Bill before us has some of that diluting removed--we have to admit that--but by no means all of it. Indeed, Dr Clark had this to say in another place:

    "I am therefore concerned when some clauses appear to be weaker than the code, which I and the rest of the Cabinet had rejected. I tell my right hon. Friend the Home Secretary that it is incumbent on us to ensure that the clauses are at least as good--in my opinion they should be better--as what was provided by the code".--[Official Report, Commons, 5/4/2000; col. 1013.]

What should be our guiding principle when we look at the Bill? My honourable friend in another place, Richard Shepherd, has a pedigree on this issue that puts us all, including the Government, to shame. He put the test far better than I can, when he said in the Second Reading debate on 7th December:

20 Apr 2000 : Column 832

    "The principle of freedom of information--the presumption that information should be available--is fairly simple. All information should be available unless it causes serious harm. The question that follows from that is, how do we weigh that serious harm? People like me have, for a long time, advocated that decisions should be taken on a case-by-case basis--not by classes, because those, as has been pointed out by hon. Members from both sides of the House, produce absurdities".--[Official Report, Commons, 7/12/99; cols. 769-770.]

Dr Clark said on the same day at col. 740:

    "The system that I wanted was clear. There were no class exemptions, and although there were some exclusions, access to other information was based on the issue of substantial harm, and that would have been a better way to proceed".

"Serious harm" or "substantial harm" have been diluted not just to "harm" or even to "serious prejudice", but simply to "prejudice". We want to explore that.

I heard the noble and learned Lord pour cold water on these semantics, but it is interesting to quote from the document produced by the Scottish Executive, which I gather is largely manned by the same party as mans the present Government. It said, at paragraph 4.11:

    "We propose that the harm test be demanding and that it be whether disclosure would, or would be likely to, substantially prejudice the matter set out in the exemption in question. Our use of 'substantial prejudice' is intended to make clear that information covered by a content-based exemption should be disclosed unless the prejudice caused by disclosure would be real, actual and of significant substance".

We shall want to explore why the Labour Government here and the Labour Government in Scotland are taking a significantly different attitude to these words.

Not only does the Bill make class exemptions, but, despite what the noble and learned Lord said, it makes more of them--24 to be exact--than the Conservative government's code, which had 15; more than the draft Bill, which had 22; and more than the White Paper, which had a mere seven exempt categories. The noble and learned Lord explained why that should be so, but I am sure your Lordships will want to explore further what is the justification for each and every class.

Although we shall be able to agree that in defence, in national security, in crime and in a number of other matters there will always be information that must rightly remain secret, there is much information in every one of those classes that could be easily be made public. The code said:

    "The approach to the release of information should in all cases be based on the assumption that information should be released except where the disclosure would not be in the public interest".

Your Lordships will want to test the Bill against that kind of approach.

I also look forward to the speech of the noble Lord, Lord Armstrong of Ilminster, because his views will be particularly helpful when it comes to the issue of the formulation of government policy. I start by saying quite clearly that I wholly accept that internal policy documents, advice from civil servants to Ministers, the responses and questions that flow between Ministers and officials, and the discussions between Ministers, should not be released. There is a wealth of

20 Apr 2000 : Column 833

background factual material which leads into those policy discussions and decisions which can, and should, be released. Yet the Bill resolutely sets its face against making any distinction between advice and the information on which it is based.

The noble Lord, Lord Butler of Brockwell, the former Cabinet Secretary, in his evidence to your Lordships' Select Committee, said--this is to be found on page 58 of the committee's report on the draft Bill:

    "when we were coming up to the 1997 election, knowing what government policy was in this matter, my senior colleagues and I gave some thought to how we could regularly structure submissions to Ministers in a way that would enable us easily to separate the background which was publishable from, as it were, the subjective advice which was confidential. It would take a lot of training and changing practice to do that, but I think that people could very readily adapt to that".

So a very distinguished former Secretary to the Cabinet thought that it was perfectly possible to distinguish between advice and information, and that a class exemption covering the whole lot was not necessary.

I find it particularly amusing that the Government when they were in opposition were very happy to disclose policy papers that fell into their hands by obscure routes. They did not send them back to us when we were in government, saying, "These are policy papers. They should not be disclosed, and we will keep them secret". No, they waved them about, and many of us bear some of the scars of those disclosures, on which Mr Robin Cook, in particular, was very keen, as I recall. They are not even slow at leaking policy papers in government, except that I think it is called "spin". We hear it almost every morning on the "Today" programme, before decisions are announced to Parliament. We shall want to test their defences on this. Frankly, I do not think that we shall be very impressed. We shall be looking for some movement from the noble and learned Lord. We shall certainly want to judge the other class exemptions, and we shall need a lot of convincing before we agree class exemptions rather than a "harm" test for certain types of information.

I move to the commissioner and his powers and to the question of who can override him. The Government propose to merge the information commissioner's job with that of the Data Protection Registrar. I can understand the argument for doing that, but equally I can understand the argument against having the same person ensure that information is kept private as is asked to ensure that we have a right to know. I understand that it is an issue which has been debated in other countries which have freedom of information Acts, and that different solutions have been arrived at. As your Lordships know, I am not one of those who think that because another country does it, it must inevitably be doing it better, and we should follow. But I certainly think that we ought to discuss in your Lordships' House exactly what is the right way for us to approach this issue. However, who does the job is tied in to the process of appeal, either by a citizen who is refused information or by a government department or other body which does not wish to divulge information.

20 Apr 2000 : Column 834

I shall need to be persuaded that the Minister, even the Cabinet Minister, who does not wish to obey the commissioner, should be able to make that decision. Perhaps we should follow New Zealand or, closer to home, Scotland, and insist that decisions should be made by the Cabinet collectively.

In recent weeks your Lordships have been concerned about the assertions by Government Ministers that their Bills are compatible with the convention rights. The noble and learned Lord, Lord Falconer, has done so in the case of this Bill. Yet whenever we probe whether or not that assertion is correct, we are told that it is confidential and that, traditionally, the legal advice to governments is not divulged; in other words, debate is stifled. I think that it is time to question that tradition in the light of the Government's desire for open government.

My last point concerns the purpose clause issue. There was a unanimous call in the other place for such a clause. The call was not heeded by the Government because the silent sheep trooped into the Lobbies to prevent a purpose clause. We have had some constitutional Acts already in this Parliament. In many ways, they have had purpose clauses. The Scotland Act states baldly in Section 1(1):

    "There shall be a Scottish Parliament".

That seems a pretty positive purpose clause. Nearer home for your Lordships, although not for myself, the House of Lords Act states in Section 1:

    "No-one shall be a member of the House of Lords by virtue of an hereditary peerage".

There is a purpose clause (if I may call it that) at the beginning of the code. In its report in July 1999, the Public Administration Select Committee recommended one. In her response to the consultation document, Mrs Elizabeth France, the Data Protection Registrar, who, as the Bill stands, is to become the information commissioner, argued that a straightforward purpose statement in the Bill would be helpful to all. I think that your Lordships should consider inserting such a clause.

This Bill has had a long passage from the code introduced by the Conservative government, to the White Paper produced by Dr Clark, to the draft Bill, and now this Bill. Interestingly, despite all these stages it has few friends outside the Government. Some have called it the "Freedom from Information Bill". I would not be quite so unkind. However, in my researches for this debate, and on this issue, I got hold of the Lord Chancellor's Department's guidelines on the Code of Practice on Access to Government Information, Second Edition 1997; and I wondered whether I should reconsider my charitable position. There are a number of completely blank pages. They could be a printer's error. But--perhaps this is more sinister--some other pages are blank but for a very few words:

    "This page deliberately left blank".

I wonder whether that sums up some parts of this Bill. Perhaps I may suggest to your Lordships that we shall have to fill in those pages.

20 Apr 2000 : Column 835

12.12 p.m.

Lord McNally: My Lords, I start by welcoming both the tone and tenor of the speech of the noble Lord, Lord Mackay. I feel that we may have much in common in Committee.

I thank the many bodies which have sent briefings for today's debate. Did I see a shiver down the Minister's back? They range from the Campaign for Freedom of Information itself to the CBI, from the Consumers' Association to the Open Space Society. All such briefings are immensely helpful and, if I do not cover all points raised today, I promise those organisations that submit briefings that we shall consider the possibility of raising matters in Committee.

This day seems to have been a long time coming. I share with the noble Lord, Lord Mackay, our admiration that the Government have found time to squeeze it in on this Thursday before the Easter Recess.

When the Labour Party won its landslide victory in May 1997, most political observers expected that at long last a quarter-century-old pledge to introduce a freedom of information Act would be quickly redeemed. After all, the pledge had been in every Labour electoral manifesto since 1974. It was a key element in the pre-election Constitutional Committee report drawn up by the Labour Party and the Liberal Democrats and chaired by Robin Cook and Robert Maclennan, a committee on which I sat.

It was always clear on that committee that an effective freedom of information Act was to be the jewel in the crown of successful constitutional reform. The crux of debate today is on Clause 34 of the Bill, "Prejudice to effective conduct of public affairs". Where we part from the Government is that they still believe that the effective conduct of public affairs requires too much secrecy. We believe that effective conduct of public affairs comes from accountability and transparency. Ministers may deny it; but a profound change has taken place in the Government's attitude to freedom of information since taking office. We are told on good authority that Mr Alastair Campbell can now describe priority given to constitutional reforms only in terms of obscene expletives. Even Mr Blair has apparently cooled to the freedom of information idea on the advice of his old friend Bill Clinton who has found freedom of information American-style something of a burden.

So where exactly are we now on freedom of information? As the noble Lord, Lord Mackay, indicated, the Bill has had a rather worrying ancestry. Immediately after the general election, the responsibility for freedom of information was put in the hands of the Cabinet Office and the Chancellor of the Duchy of Lancaster, David Clark. He produced a consultation document, Your Right to Know, which was widely acclaimed by all those who had campaigned for a freedom of information Act as a principled and progressive approach to the task at hand. Indeed, so principled and progressive was Dr Clark's approach that he was promptly sacked

20 Apr 2000 : Column 836

from the Cabinet. Responsibility for freedom of information was transferred to the Home Office. I predicted at the time that putting the present Home Secretary in charge of freedom of information was like asking Count Dracula to look after a blood bank. That prediction has proved true as the Home Secretary has drained the life blood from the Clark White Paper.

The decision to move freedom of information from the Cabinet Office to the Home Office was strange in any circumstances. At a stroke the task was moved from an office with general oversight over Whitehall and a specialist Minister to one of the most overworked and accident-prone departments of government. The suspicion from the very beginning was that Jack Straw's brief was to recapture the ground which the Clark White Paper had given away. Why this change of heart? It is an interesting Catch-22 situation that, because we have no freedom of information Act, we know the views of the various political parties, interest groups and pressure groups but have no idea what advice has been given to Ministers by the mandarins of Whitehall. Perhaps the contribution of the noble Lord, Lord Armstrong of Ilminster--a mandarin's mandarin if ever there was one--will enlighten us on that.

All that we know is that between the departure of Clark and the publication of Straw's own discussion document, and the draft Bill in the spring of 1999, the Government did a quick U-turn on the road to Damascus. Instead of being a flagship Bill of new Labour's commitment to open government, it took on more and more the appearance of a damage limitation exercise. Let us hope that the presence of the noble and learned Lord, Lord Falconer, here today is a sign that the Cabinet Office is fighting back against the forces of darkness. After all, the Bill before us is redeemable and not without some merit. It recognises for the first time a statutory right to information in place of the previous effective presumption in favour of secrecy. Indeed, it was the breakdown of what many acknowledge as a culture of secrecy, not only in Whitehall but through British government at all levels, which was one of the key motivating factors behind reform.

The public cannot enjoy their full rights; nor can elected representatives bring the executive and bureaucracy to full account without a right to know the information on which decisions are based.

The Bill also extended coverage of public authorities far further than any previous non-statutory code or guidelines. The wide application of the Bill to central and local government activities and public authorities is a major step forward. After all, it is not by selling arms to Iraq that most citizens come into contact with government. It is often the petty injustices and the high handedness of minor bureaucrats which often outrage and alienate Mr and Mrs Joe Public.

I am aware that a Freedom of Information Bill may seem to some no more than an anorak's charter, of interest only to the Guardian leader writers and the Campaign for Freedom of Information. But I do not believe that. The battle lines which are being drawn

20 Apr 2000 : Column 837

here today in the House of Lords are at the dividing line between those whom the noble and learned Lord, Lord Hailsham, described as an "elective dictatorship" and accountable, democratic parliamentary government. Thus the Bill before us is an important test of the new House of Lords.

The Government have Whipped this measure through another place against the advice of some of their own best informed supporters. The freedom of information rebels in the Commons from the Government's own Benches know that this Bill fulfils neither their manifesto commitments nor the promise of the Clark White Paper. It is a disappointment in its present form. Given that I have described the Bill as a disappointment, Ministers are entitled to ask, "Well, what would you do about it?". As noble Lords will know, my party's slogan is,

    "We are the Liberal Democrats; we are here to help you".

Option A, to be considered, would be a return to the approach and philosophy of the Clark White Paper. Option B would be for the Government to read carefully the consultation document produced by the Scottish Executive--where the Liberal Democrats have some influence--and called An Open Scotland, which is much truer to the spirit of our shared manifesto commitments and to the Clark White Paper than the Bill now before the House.

Option C would be to accept amendments to this Bill, which we shall move in Committee. They will cover the following concerns. It is our view that the Government should be required to release the facts behind policy decisions to improve the quality of debate. For that reason the class exemption for quality information in Clause 13 is unacceptably broad.

First, we would favour allowing the expert analysis of facts and the release of advice from Law Officers subject to a test of simple prejudice. We would also accept the case for the release of different policy options subject to a prejudice test. Advice regarding the options would not be released, but broadly our view is that Ministers and their advisers should not be required to discuss policy in a goldfish bowl, but the basic background information should be made available to the public on request.

Secondly, there is the harm test. In our view the Government's original White Paper was right to propose that information should generally be withheld only if its disclosure would substantially harm specific interests. As the noble Lord, Lord Mackay, has indicated, I believe that we both shall be returning to that in Committee.

Thirdly, we have considerable concerns about the possible working of Clause 28. I listened to what the noble and learned Lord, Lord Falconer, said on that. There is concern that, for example, the Lawrence family in London or the families of those killed in disasters could be denied information relating to any investigations which looked into the question of whether grounds existed for a prosecution.

20 Apr 2000 : Column 838

Finally, Clause 34 is obnoxious. It vitiates against the entire working of the Bill, invoking as it does the

    "reasonable opinion of a qualified person",

that person being in most circumstances the Minister, and disclosure of the opinion would be likely to prejudice the effective conduct of public affairs. A decision to conceal information based on the reasonable opinion of such a qualified person would only be open to the very narrow possibility of judicial review; for example, if that opinion were proved to be irrational.

As the Minister indicated during Report stage, Jack Straw proposed to amend the Bill to confine the veto power over the information commissioner's decision to a Cabinet Minister and indicated that the decision-making process would involve collective consideration by Ministers. We believe that the information commissioner should have the last word in judging whether or not the balance of public interest should require disclosure.

If, however, the Government are adamant in refusing the commissioner that power, we should at the very least follow the New Zealand model under which the decision has to be taken collectively by the Cabinet. In practice, in New Zealand when the law allowed a single Minister to block disclosure there were many cases of obstruction, but since the law was amended to require collective approval, I understand that the ministerial veto has rarely been used.

I draw attention to two relevant quotes from Select Committees that looked at this Bill. The first is from our own House of Lords Select Committee, on which I had the honour to sit, under the chairmanship of the noble and learned Lord, Lord Archer. It said,

    "If the ultimate decision whether the information is exempt from such a right of access is made by a Government Minister or public authority rather than by an independent arbiter, the law may be regarded as a statement of good intentions, but is not a Freedom of Information Act as the term is internationally understood".

In the Commons the Public Administration Committee said,

    "In this crucial sense the Bill continues the present discretionary system of the code of practice--it is 'open government' and not 'freedom of information'".

The information commissioner must have powers similar to those of his counterparts in Ireland and New Zealand to order disclosure. I know that the Select Committee of this House was most impressed by the evidence we received from the Irish commissioner on this matter and by a related consequence. The Irish commissioner was under no doubt that his having the power to order disclosure made for anticipatory compliance--that is, the bureaucracy knew that the game was up and started to act in a more open way rather than to resist disclosure. The Irish commissioner believed however, that having inherited the culture of secrecy from the British, it was also necessary to train their bureaucracy in the ways of open government.

Disclosure is not just by Act of Parliament; it is also an attitude of mind. It would be nice to believe that the Whitehall Civil Service, government agencies and

20 Apr 2000 : Column 839

other public bodies were already putting in place mechanisms to train staff in the culture of open government, rather than combing the Bill like accountants do a Finance Bill for exemptions to be exploited.

We would also urge the Government to consider again a purpose clause. I believe that we can make common cause with the noble Lord, Lord Mackay, on that matter. Section 4 of the New Zealand Act states the purpose of the Act as being to,

    "increase progressively the availability of official information to the people of New Zealand".

That clause has been useful in helping to ensure that there is usually a presumption in favour of disclosure by the ombudsman and the courts. Again, it is not just a matter of what is in the Act but how the Government behave. I really do not understand why they are hesitating about a purpose clause in the Bill. In introducing the Bill today, the Minister has tried to imply that the Government are the saints not the sinners as regards freedom of information.

In closing, I ask the House to judge their actions against the seven deadly sins test. In December 1997, Mr Justice Kirby, president of the International Commission of Jurists and a senior Australian judge, advised those approaching freedom of information to test government intentions against seven deadly sins. I shall repeat them to the House. He warned against "strangulation at birth". He said,

    "Do not underestimate the danger to your [freedom of information] proposals. Many a White Paper has come to nothing or emerged into final legislative form a pale shadow of its former self. The longer the delay in the passage of a [freedom of information] Bill the greater the risk that Sir Humphrey will have the last laugh yet again".

We shall hear from Sir Humphrey later.

As regards retaining secrets, the judge said,

    "Pretend to support [freedom of information] but provide so many exceptions and derogations from the principle as to endanger the achievement of a real cultural change in public administration".

His third deadly sin is exemptions and,

    "surrendering too many requests for exemptions".

The fourth deadly sin relates to costs and fees:

    "Rendering access to [freedom of information] so expensive that it is effectively put beyond the reach of ordinary citizens".

I believe we can exempt the Government from that sin. Fifthly, there is decision-making; namely,

    "Undermining the essential access to an independent decision maker".

The next sin is interpretation. The judge said,

    "the judiciary, and not the politicians, may be answerable".

But remember that,

    "judges also grew up in the world of official secrets and bureaucratic elitism".

Finally, there is the changing administrative culture. Beware of believing that,

    "the passage of freedom of information legislation is enough of itself to work the necessary revolution in the culture and attitudes of public administration".

20 Apr 2000 : Column 840

I ask your Lordships to remember that those warnings were given two years before the Clark White Paper; six months into a Labour Government and not after 1,000 days, as we are today. The Minister has promised to listen and, if convinced, to amend. I believe that that is a great opportunity for the House of Lords. It is the Minister's failure to resist Mr Justice Kirby's seven deadly sins of which he stands accused today. It is the task of this House to save the Government from themselves and return them to the path of righteousness, a duty we shall carry out in Committee.

Next Section Back to Table of Contents Lords Hansard Home Page