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Lord Falconer of Thoroton: My Lords, I apologise for interrupting the noble Lord. Helpfully, he gave us a list of his particular concerns about the Bill. He went through a number of the exemptions, in particular that information is exempt,
Lord Alexander of Weedon: My Lords, I can see a government saying, if they are engaged in a delicate negotiation that may lead to a compromise with another state, that the nature of that negotiation, that compromise, should not be disclosed. I mentioned arms to Iraq, arms to Indonesia, and relations with Zimbabwe. I should have thought that that is, at least, a classic illustration of a "serious harm" test.
I do not remember seeing for some time a Bill that has been widely condemned by opposition parties, by committees of both Houses of Parliament, by groups ranging from the British Safety Council, to the Federation of Small Businesses and the Consumers' Association, and, I believe, by implication almost, by the Prime Minister. In 1996, he said,
The Minister and I are from a profession whose leitmotif is the championing of the individual, of fairness, and of openness against an over-mighty state. He too will remember the great jurist--he may even remember the name--who once remarked that,
I hope at least that the Minister will not be too sad if the House does its duty, strikes a blow for democracy, and delivers a Bill that accords with the expectations on which the public were sold the Government's manifesto commitment. In effect, if he invites the House to do so, or accepts it, ironically that will implement the Salisbury/Addison convention because to give effect to the manifesto, something is needed. As The Times said, this is a manifesto commitment which so far has been quietly strangled. I hope that this House will rapidly amend the Bill.
Baroness Thornton: My Lords, I hope that the noble Lord, Lord Alexander of Weedon, will not mind me saying that in my view this process is about fulfilling the election manifesto. I believe he may have misread the nature of this debate. In his opening remarks, the Minister invited the House to participate in improving and amending the Bill. In my view, that is the process upon which we have now embarked.
In the two years since I joined your Lordships' House, I am sure noble Lords will have realised that I am an enthusiastic supporter of New Labour and the work of the Government. All my life I have been an active supporter of more openness in government. I congratulate the Government on the way in which they have made practical efforts to make their dealings more open. I love the website "opengov.org" and use it all the time. I am enormously impressed by the information that is available from government departments and other public bodies on what they are up to and how that information has improved. The Government are to be congratulated on the already increasing quality and quantity of information available.
Today we are addressing the issue of information which is not readily available and not accessible at the click of my mouse. I would have been amazed and horrified had my party not made a commitment to pass a Freedom of Information Act in our manifesto, and I welcome the introduction of this Bill. Transparency and openness are important ingredients of a democratic and accountable system of public administration. This Bill is the most important consumer and citizen issue that this Parliament will consider.
For too long there has been a regime of Whitehall secrecy and the time has come to begin the process of creating a culture of openness. This Bill is the start of a process to change a culture. The culture of secrecy and changing the habits of civil servants will be a longer job than just the passing of this Bill. I know that many will welcome the change. But there are also those who, like people who are addicted to tobacco, will need support and encouragement for them to change their previous habits. It will be a little like introducing a nicotine patch to help them say yes, rather than say no.
Those entrenched habits and that conditioning of secrecy are why the tone as well as the content of this Bill are so important. The rules and habits which govern the people who have to carry out the content of this Bill are the reason why the Government's intentions and political will must be absolutely clear. It is because I believe the Bill to be just the start of a process that I believe it to be in need of some improvement, despite the changes which have already been made as a result of deliberations in another place--changes on which I congratulate the Government.
I wish the Bill shouted its presumption in favour of the disclosure of information, instead of conveying a message which is about what we may not be told--a list which appears to grow at every turn. Specifically,
I am confident that the Ministers in this Government will not use that exemption because I know that they have a genuine commitment to be open and accountable. But we are not here discussing the actions of this Government only; we are also discussing the actions of future governments, whatever their politics. The party opposite, who I hope will not be in government for a long time to come, if ever, has a pretty abysmal record on the accessibility stakes. I am sure therefore that, were the Opposition ever to be back in office, they would use the full powers of this Bill to the detriment of both openness and accountability. And even if they never get back into power, they already run local authorities. I want to be sure that Conservative-led local government, as well as all local government, cannot use other parts of this Bill to wriggle out of their obligations to openness and disclosure.
My second major concern--I know I will be joining with others in this House in asking the Government to reconsider this part--is the provision which allows Ministers and local authorities to override the information commissioner. This undermines one of the fundamental principles of freedom of information; that is, that decisions on disclosure should be free from political interference. I am grateful for the detail in which my noble and learned friend explained the provisions of Clauses 13 and 52 in his opening remarks, and am less concerned now than I was. But I am not convinced that the White Paper of 1997 was incorrect when the Government considered the case for a veto and explicitly rejected it. The White Paper, Your Right to Know, said,
I do not believe that the two changes I have mentioned, which will strengthen the Bill, need upset the balance which my noble and learned friend explained in his opening remarks; a balance which I wholly accept as being essential. I hope that these
Lord Campbell of Croy: My Lords, when the Bill was originally introduced last year in another place, it became clear that there was a sharp difference between the impressions that had been given by the Labour Party before the general election and the contents of the Bill.
The pressure groups and other interested organisations who have been pursuing the possibility of a freedom of information measure for many years, have been shocked by the outcome after three years of Labour government. The explanation may be that 18 years out of office led to a temptation to please pressure groups and to an unfamiliarity with the requirements and processes of government. That is an explanation which I generously put forward. But it is not a valid excuse for the difference between the undertakings that were made before the general election and what has since happened.
A feature of the Bill which changes the whole character of what was thought to be the measure that was coming forward, is the series of exemptions, including entire classes of information instead of, as we would have preferred, particular contents. The Government now seem to be attempting to carry out an electoral damage-limitation operation so that they will be able to say, when the next election arrives, "We delivered a Freedom of Information Act"; that item on the list can be ticked.
The word "delivered" is over-used in new Labour's propaganda. Something that was in the manifesto is now "delivered" in name and in some sort of shape. But what matters to the public and to Parliament is whether it works better than the previous arrangements and is effective. The public are not concerned with whether a code is being advocated, as introduced in the 1990s and advocated by the Labour Party in 1979 when they were in government; or whether it be in the form of so-called "rights". They are concerned about the practical effect, and on freedom of information the Government appear to be going backwards. I hope that that is not so, and I am glad to know that important government amendments are coming to this House, as foreshadowed by the Home Secretary and confirmed today by the noble and learned Lord.
The Bill proposes massive exemptions relating to the formulation and development of government policy. This is a difficult area, but the Bill goes too far unnecessarily. There are very good reasons for protecting the processes of Cabinet government, but
The alternative is to give up collective responsibility and adopt another system. Some people may say, "Let's do away with the present Cabinet system and start something else". I do not favour that course. It would be far too difficult and dangerous. There seems to be no obvious reason that connected factual information should not be made public: indeed it might help the media, Parliament and the public to understand the decisions when they are announced. I understand that the Government claim that it is too difficult to separate factual information from Ministers' views and the advice that they receive, although the Lords' ad hoc committee received an expert opinion that that could be done.
The Government have also claimed in the other place that the term "factual information" could not be defined and so could not be used; but it already appears in the Bill in Clause 13(5). I emphasise that I support the protection of the process of Cabinet and government decision-making, and I speak from my own experience as a Cabinet Minister, as a junior Minister in an earlier government and, more significantly, as an official when for two years I was assigned from the Foreign Office to be Private Secretary to the Secretary of the Cabinet (then Sir Norman Brooke) when Sir Winston Churchill was Prime Minister. I remember at least one episode when the departmental Minister, who had to make the subsequent announcement in the other place, had been opposing in internal discussions and in the Cabinet the decision that was collectively and finally taken. Of course he had the option of resigning, but he thought it was not such an important subject that he needed to do so even though he was virtually defending in public what he had been opposing behind closed doors.
That is part of our system, and if we change that we must change the system too. I am very glad that the noble Lord, Lord Armstrong of Ilminster, will be speaking shortly, because he has more experience than I have of these things. It would be virtually impossible for Ministers and officials to function in that way if proceedings at these stages were made public, or were made public in many cases during a subsequent period of a few years. At the same time, I believe that factual information can and should be separated from advice and from the records of meetings.
I turn to a controversial matter: that is the power of the ministerial override in the Bill--override of the commissioner's decisions. We are promised government amendments on this, which is good news, and so I will not pursue that point now. However,
Lord Young of Dartington: My Lords, I should like to say a few words about the consumer issues raised by this Bill. In doing so I must declare an interest. I was the founder 48 years ago of the Consumers' Association and I am now its president. I speak today on behalf of the position taken up by the Consumers' Association on this Bill.
Like so many other noble Lords, I heartily welcomed, as did the association, the publication of the White Paper Your Right to Know in December 1997. We have more recently given at any rate a guarded welcome--not that it goes far enough--to the proposals of the Scottish Executive for a somewhat stronger reform than we are discussing today. For once I am quite pleased that the two governments are divided on this matter. I hope that if they cease to be divided it will be more on the side of the Scottish Executive than on the side of the Government in Whitehall.
That White Paper gave what we reformers have been campaigning for for at least 10 years. Other campaigners along with us hoped that at last there would be an end to the secrecy which has shrouded the British Government for so long and which, if acted upon, would bring us somewhat into line, at any rate in principle, with what has happened in the United States, Australia, New Zealand and Ireland, as several speakers have already mentioned.
We thought that the commitment in the Labour manifesto was at last to be honoured, for freedom of information is the essential nutrient to the good working of a thriving democracy; and how hard it is that the citizens' right to participate in their own government which is talked about in this Bill can only be properly acknowledged in practice if they have the vital information they need. In this Bill vital information looks as though it is going to be withheld.
It is a mystery to me why the Bill should have appeared so soon before another general election when, at any rate from my point of view, it is a vote-loser on a large scale. It is a "give-and-take-away" Bill. A bow is made towards open access, and that is very welcome, but then the bow is almost wholly negated by class after class of exemptions. As understanding of the Bill spreads, I would expect that votes would be lost left and right. This is perhaps one of the main reasons why no one, apart from the Government, spoke in favour of the Bill in the other place. They left the cause of democracy, almost deliberately in some cases, to the House of Lords--an odd outcome, as the noble Lord, Lord Alexander, has just said.
Voters in large numbers care about price fixing, but a little earlier we received not much help from the Government. The report of the Office of Fair Trading on Volvos, one of the companies, was welcome because it showed that it was involved in an anti-competitive car-pricing cartel. But when we asked for more information on a number of important points, our application was rejected. The same thing has happened with many other applications that we have made for access. For instance, when we asked about the policy of the Driver and Vehicle Licensing Agency in Swansea in selling personal details about motorists to parking enforcement firms that work for the owners of private property used for parking, our request was refused.
We also asked for access to the information held by the Treasury and the Financial Services Authority about the extent to which the Prudential and other companies are paying so much of their so-called "orphan assets" to shareholders and not to policy holders: application denied. It was the same with our attempts to find out more about the mis-selling of unsuitable endowment policies as a means for the repayment of mortgages. It was also the same with the figures for the number of poor people whose electricity supply had been disconnected: application refused.
The Government have almost invariably protected commercial interests and the provisions of this Bill in its present form will do nothing to redress the balance. Some of the same Ministers who have been so unresponsive on so many consumer issues in the past will still be there with the same sweeping powers to deny information when this new Bill finally comes into force.
In view of the situations about which I have been talking, we were not surprised when the results of an opinion poll commissioned by the Consumers' Association were highly critical of the Government: 70 per cent of the public did not trust Ministers to release information; 94 per cent believed that members of the public have a right to know all of the information that might affect their own decisions; 92 per cent agreed with the statement that,
The Bill is fundamentally important to the rights and well-being of consumers and citizens in the United Kingdom. For consumers, the past decade or so will be associated with a series of major corporate scandals, transport disasters and public policy and regulatory failures, the most infamous of these being BSE, and major rail disasters such as happened at Paddington. The direct causes may have been different in each case, but there has been a common theme; namely, that by the time consumers had found out what had gone wrong, or the full extent of the damage had become clear, it was just too late. Consumers and taxpayers have picked up the pieces and paid the price for decisions made behind closed doors. There is a very real need for a decent freedom of information Act.
We at the Consumers' Association believe that the Bill is fundamentally defective. I know that some noble Lords have already spoken about some of these points, but we call attention to four major areas of weakness which affect the consumer interest in particular. The first is policy exemption. Any information held by a government department is exempt if it relates to the formulation and development of government policy. This includes even the facts and figures that are used to formulate policy. That is an incredible exemption--indeed, when one reads it, it is almost impossible to believe--considering all the lessons to be learned from the major consumer scandals of the past.
The desirability of disclosing "advice" may well be debatable, but there is no justification for refusing to give the public a statutory right to know the facts and figures behind policy decisions. Other countries have designed and operated freedom of information regimes which cope perfectly well with this distinction. Indeed, our friends in the Scottish Executive propose that facts and figures should be published as a matter of course.
The second weakness is to do with public authorities and regulators. There are a number of clauses in the Bill that will allow public authorities and regulators to withhold information which might compromise their position and hold them accountable. Investigations into safety or regulatory transgressions may be concealed. Transparency is critical, as these public authorities and regulators are responsible for implementing public policy and are charged specifically with protecting the consumer and public interest. The noble Lord, Lord Alexander, spoke about this earlier and I very much agree with what he said.
Finally, there are the limitations on the powers of the information commissioner about which much has already been said and with almost all of which I thoroughly agree. The small concession that has been made on this point is not so far a meaningful concession and compromises one of the fundamental principles of freedom of information legislation--that the only way to ensure that information will be released in the public interest is to have an independent arbiter deciding between vested interests.
Giving real authority to the independent information commissioner to rule on the public interest would at last remove the dilemma of allowing Ministers the final say on disclosure of critical information that compromises the Government's or the Minister's own position. When I spoke about this to policy analysts of the Consumers' Association, they told me that in all the major areas of consumer activity in which the association has an interest a government policy initiative has been or is in the process of being implemented; for example, the Food Standards Agency, the Financial Services and Markets Bill, the Utilities Bill and the Competition Act. There is also the Transport Bill, with the serious implications for rail safety and air traffic control.
In each of those cases the Consumers' Association has serious reservations about the specific provisions for disclosing information. Disclosure of information collected by the lead regulators, agencies or departments is either prohibited by statute or is at the discretion of the various regulatory heads or Ministers in charge. However, in all this there is no comfort to be gained from the Freedom of Information Bill.
The protection given to commercial interests; the exemptions on accident and regulatory investigations; the exemptions on information relating to policy development; and the restriction on the powers of the information commissioner--all these weaknesses mean that there is little leverage to be gained from the Bill. We greatly hope that important concessions will be made by the Home Secretary and by the Government generally and that the Bill will emerge from this House a much better Bill that can gain support in the other place. We have a great responsibility to do what we can.
Lord Armstrong of Ilminster: My Lords, I am afraid that I must start by disappointing the noble Lord, Lord McNally. I cannot enlighten him on the reasons why responsibility for these matters was transferred from the Cabinet Office to the Home Office towards the end of 1997. I had been out of the public service for 10 years when that happened and I could be completely elevated and impartial on the subject as before I served as Secretary to the Cabinet, I served briefly as Permanent Secretary at the Home Office.
Noble Lords will not be surprised to hear me say that I intend to address my remarks primarily to access to information held by the public authorities defined in Part I of Schedule 1 to the Bill, and particularly by government departments. I am, and have for a long time been, very much in favour of more openness--as much openness as is reasonably possible--in government. Having said that, I am glad that the Bill provides exemption for advice to Ministers and for exchanges between Ministers on the formulation and development of policy because I do not believe that those processes can be conducted in a goldfish bowl. I am afraid that I part company with my noble friend Lord Williamson of Horton in thinking it impractical to divide advice into advice which can be disclosed and other advice which cannot. There has to be a class exemption here if there is to be good government, by which I mean integrity of administration, effectiveness in the conduct of public affairs, and free and frank discussion among Ministers and between Ministers and officials.
I am also glad that the Bill sets out to protect the convention of collective responsibility. Here I share the views of the noble Lord, Lord Campbell of Croy. I am clear that this convention is not an outmoded tradition but is a necessary condition of coherent and joined-up government. If we did not have the doctrine, we should have to invent it. However, I have for long thought that when a policy decision is announced, or at least a major policy decision of the kind that ought to be announced first in Parliament--but too often is not nowadays--the Minister should disclose as fully as possible the facts, figures and considerations that were taken into account in arriving at the decision. Not only do I believe that as a matter of accountability the Minister owes it to Parliament and to the public to do that, I also believe that the process of decision-making in government will be improved if it is recognised from the outset that that will be done.
I recognise, of course, that it is not generally possible within the constraints and pressures on parliamentary time to give a comprehensive account of the facts, figures and considerations taken into account in the course of an announcement in Parliament. However, that more comprehensive account of the facts and figures and so on should be given in a parliamentary or command paper published as soon as possible after the decision is announced. Ministers should not wait until the information is requested before making it available.
I agree with the noble Lord, Lord Butler of Brockwell, my successor as Cabinet Secretary, that it would be possible to maintain the distinction between information and advice and to prepare the material on information which was to be disclosed at the end of the day while the discussion of policy was going forward. I believe that such a process would not only benefit parliamentary and public understanding of the reasons why a particular decision has been taken, I believe also that the knowledge from the outset that that would eventually be done would make for more
As I read Clauses 33 and 34 of the Bill, that kind of process is by no means excluded. I do not understand why the clauses are being read in that way. If they are obscure or not clear, we had better clarify them, but they do not appear to me to inhibit Ministers and government departments from proceeding in the way I have suggested.
As the noble Lord, Lord Hunt of Wirral, has said, the code of practice introduced in 1994 went a long way towards achieving that kind of objective, even if it did not go as far as some would have liked. But, like him, I believe that the code of practice route rather than the legislative route would have been the right way to make progress in this field.
I fear that a Freedom of Information Act, with its complex structure of legal rights and duties, exemptions, elaboration of commissioners, appeals and enforcement will not help us much in this context. I share the fear that it would be liable to encourage Ministers and officials to think not about what they should be doing or disclosing, but about what they can get away with not doing or not disclosing. I believe that we should be trying to create a positive climate of opinion in which a government want to do what it is right that they should do, want to disclose information to the greatest possible extent, and recognise the benefits to administration and to public understanding which will flow from doing that, and thus voluntarily commit themselves to a code of practice accordingly.
I do not believe that this or any other legislation is likely to make it possible to prise out of government information which they really do not wish or think it right to disclose. Echoing the comments of the noble Baroness, Lady Hilton of Eggardon, I fear that it will always be possible for governments to find means by which they can avoid the disclosure of information which they really do not want or think it right to disclose, without technically failing to comply with the legislation. But I also fear that the resort to such means would tend to impair the integrity of administration and the effective conduct of public affairs. It could create a situation in which information was not properly recorded; a situation in which information would be imparted only by word of mouth or on the backs of envelopes; a situation in which meetings and discussions would tend to be held in holes and corners--in ways and in forms in which they would escape the requirements of the legislation.
The risk is that the result would corrupt the process of administration and would impair the effective conduct of public affairs without yielding improvement in parliamentary and public understanding. None of the benefits which freedom of access to government information is supposed to give would follow. However, I recognise that we shall have a Freedom of Information Act and that no self-respecting modern western democracy can be without its own Freedom of Information Act. In constructing
I even accept the principle of ministerial override. It seems to me that that is a necessary protection at the end of the day. We may be asked to consider changes to the way in which override should be exercised, but the point surely is that the situation created by the Bill--I refer to the commissioner, for example--would ensure that, as a matter of political reality, no Minister would exercise the override unless he or she had the most cogent reason for doing so. If he or she did not have a cogent reason for doing so, that would very quickly be found out.
It is clear that this Bill will not satisfy the more ardent advocates of freedom of information legislation, or those who want to extract as much information as possible from public authorities--by leak if not by disclosure--almost irrespective of the possible consequences. But probably no legislation which any responsible government could introduce would completely satisfy such people. Whatever information becomes freely accessible, they will always want more; and they are always going to be disappointed.
There may be detailed changes that can be discussed in Committee, but I urge the Government to stick to the general principles of their proposals and to resist the siren voices calling on them to go a good deal further. After all, if we were to go too far, it would in practice be impossible to go into reverse. If, on the other hand, when we have had some experience of the arrangements provided for in this Bill, it seems to be desirable to go further, we should be able to see where further change would be appropriate and desirable and to make further provision accordingly, whether by legislation or by other means, such as a new or revised code of practice.
I am afraid that the House may feel that I am lending rather grudging support to the Bill, but, all things considered, I accept that your Lordships should give the Bill a Second Reading. As I say, I hope that my support for the position taken by the Government and by the noble and learned Lord in his speech will not embarrass him.
Lord Tomlinson: My Lords, I felt almost intimidated from speaking in the debate on freedom of information by the awesome expertise that there is in your Lordships' House--but only "almost". Three main reasons made me overcome my reticence. First, I wanted to say to my noble and learned friend that I suspected that the Government would not have many
My political instincts are not naturally rebellious. They are usually based on a fairly unreserved loyalty to a government of which I remain a proud and loyal supporter. However, there are times--and this is one--when the principles involved are so basic and fundamental that, in the nicest possible way, one needs to say to one's own government, "You have time; use it. You have already improved the draft Bill. Listen to your friends, listen to your supporters, listen to Parliament. Take those extra steps which were quite easy to see in opposition but which have become progressively obscured by office".
Apart from merging the guardian angel of transparency (the information commissioner) with the custodian of privacy (the data protection registrar)--an almost incomprehensibly bizarre decision, albeit for only two years--there are, for me, three areas of the Bill which need fundamental improvement.
First, the sweeping exemptions, both in number and scope, bias the Bill too far against disclosure. I urge my noble and learned friend to undertake to look again seriously at the exemptions, as it is the scope of the exemptions that make me sympathetic towards the demands for a purpose clause. I would not normally be much interested in a purpose clause; I would normally be sympathetic to the view expressed by Mike O'Brien in Standing Committee in another place, that a pro-disclosure purpose clause would make the Bill too unbalanced. However, I believe that it is the sweeping nature of the exemptions that unbalances the Bill. A different approach to exemptions would render a purpose clause unnecessary.
Let me make a brief comment on both the harm test exemptions and the class exemptions. My noble and learned friend Lord Falconer mocked the use of words such as "substantial" in the harm test. However, the harm test proposed in the White Paper was that to withhold disclosure the authorities would need to demonstrate that "substantial harm" would result from disclosure. The Bill adopts the much weaker test of "prejudice"--this despite the fact that the Scottish executive, in its own freedom of information proposals, rests on including the word "substantially" to qualify the word "prejudice". I do not share the view that merely mocking the inclusion of the word is a fully adequate response. With the large number of class exemptions, it will mean that in substantial areas of public policy exemptions would apply whether or not the disclosure would cause harm. The result would be unjustified secrecy and could be greater secrecy than even the current openness code.
Similarly incomprehensible is the scope of Clause 34(2)(c) which gives authorities an unrestricted right to withhold information on the basis of the "reasonable opinion" of a "qualified person" that disclosure would,
The second part of the Bill which I believe needs substantial re-examination concerns the Data Protection Registrar. Apart from the incongruity of locating the information commissioner's role together with that of the Data Protection Registrar, I am astounded that paragraph 19 of Schedule 2 applies the secrecy clause of the Data Protection Act to the information commissioner. I do not like emotive language about "gagging" clauses, but is that not indeed an apt description of the effect of it? Could we not find ourselves in the somewhat ludicrous position of the information commissioner breaching the secrecy obligation by disclosing that which members of the public could obtain for themselves under the Bill? If that is the case--I believe it to be so--that would be ludicrous indeed.
The third area of the Bill that causes me concern is that of the ministerial veto. In 1997, the Government White Paper explicitly rejected the proposition that the commissioner's power to order disclosure of exempt information where public interest favours disclosure should be subject to such ministerial veto. The case against the veto was compellingly made by the Government themselves in their 1997 White Paper:
I conclude with a clear expression of view to my noble and learned friend. I want freedom of information legislation. I want to protect government information that should be protected. In this Bill the exemptions are too broad and will allow too much information to be protected, not always for the worthiest of reasons. Amendments can and should be made. I hope that they will be made as I really do want to be able enthusiastically to support my Government in the Lobby at all stages in the passage of the Bill.
Like the noble and learned Lord the Minister, I have sat here throughout the debate. I cannot help expressing the opinion that when the House meets at 11 a.m. there may be a case for us having a lunch hour. I make that point because I think that it may be the only one I make today on which I am able to carry the noble and learned Lord with me.
I very much agree with my noble friend Lord Hunt of Wirral. What is involved here is an issue of culture. As an academic, I inhabit a culture where there is a propensity to openness. Academics do not so much withhold information as rush to publish it. It is appropriate that Parliament gives the Bill the most thorough consideration. In comparative terms, this Parliament is one of the most transparent that there is. The problem we are looking at is not one of Parliament but rather of government where there is a culture of secrecy.
As my noble friend Lord Alexander of Weedon said, the Bill has been subject to extensive criticism by commentators outside the Palace of Westminster as well as by Members of the other place. The Bill has been a long time in coming, and what has emerged is a watered-down version of what was envisaged in the White Paper.
I shall not take up the time of the House by repeating what has been said. I want briefly to identify what I see as the four main failings of the Bill, drawing together some of the points that have been made in this debate and in the course of so doing putting a number of questions to the Minister.
The first failing is that the Bill does not give sufficient power to the information commissioner to require the disclosure of information. The point has been touched on by various speakers. There has been a limited amendment to the Bill, but the general criticism still holds. Clause 52 remains the crucial limitation. Even if the Bill is amended as the Minister has indicated, the veto will be exercised only by Cabinet Ministers acting with their colleagues' support, and the fact remains that Ministers can still have the final say. The justification offered in another place by the Home Office Minister, Mr Mike O'Brien, is that it would "profoundly undemocratic" for the commissioner to have the power to require disclosure.
Given that the topic has been well aired, I shall not refer to it at length. Instead, I simply ask the Minister; are not decisions taken by judges "profoundly undemocratic"; yet have not decision-making powers in other areas been transferred from the Home Secretary to the judges and, indeed, to other bodies? What is it that distinguishes this particular case--that of the commissioner--from the others?
The Home Secretary has claimed that the problem is that it is not possible to draw a distinction and to define factual information. In introducing the Bill today, the Minister referred to the problem of "disentangling" the two. The implication is that if a water-tight or usable definition could be produced, factual information could be placed in the public domain.
Does not such a distinction already exist in practice? Do not civil servants appearing before Select Committees have to draw a distinction between policy advice and straightforward information? As my noble friend Lord Campbell of Croy mentioned, the distinction appears in the Bill at Clause 13(5). Also, will the Minister confirm that most other freedom of information Acts exclude information from an exempted category?
The third failing is that the test of "prejudice" is too weak. The White Paper proposed the "substantial harm" test, applied against seven specific interests. The Bill represents a massive shift from the proposals embodied in the White Paper. As the secretary for political affairs of the Methodist Church has put it, the term is,
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