| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
(" . The applicant may appeal to the Commissioner where a public body refuses to comply with a request for information under this Act and the Commissioner shall determine whether it is in the public interest to comply or not, and shall direct the public authority to comply where he finds that, on balance, it is in the public interest to disclose.").
The noble Lord said: Amendment No. 259 seeks to insert a new clause. The groupings list suggests that a large number of provisions, including the Question that Clause 52 stand part of the Bill, are to be considered with Amendment No. 259. That gives the clue to what all of these amendments are about in one way or another; namely, the ministerial veto. The White Paper considered ministerial veto over disclosure and specifically rejected it. It stated:
In another place, arguments were put forward to justify this, including the comment that if the information commissioner was able to override Ministers and officials, that,
That is most certainly an arguable point. In any case, we believe that it is for the commissioner and, ultimately, Parliament to take the leading role in ensuring that government and public authorities are as open as possible.
I am aware that government amendments have been included in this grouping. Under the ruling imposed earlier by the noble and learned Lord, Lord Archer, during our debates on the previous Bill, I should not refer to future amendments, but only to the one standing in my name. However, perhaps I may say that we support moves to give more power to the commissioner, linked to moves to make the enforcement body accountable to Parliament. Amendment No. 259 would achieve this in a relatively straightforward and understandable way, but perhaps that would make it less watertight legally than some of the more elaborate formulations which have been tabled in later amendments. I beg to move.
Lord Goodhart: This group of amendments is the last grouping which gives rise to an important point. I believe that the ministerial right of veto is an extremely serious and important matter.
I should say that I am reasonably grateful to the Government for modifying the original version of Clause 52 with their own proposed amendments. Those amendments will limit the possible override to Cabinet Ministers or the senior Ministers in the devolved parliaments or assemblies. I would be more grateful if I were sure whether one ought to be grateful to people for not doing something that they ought never to have done in the first place. However, it represents a significant step in the right direction.
As I have said, this is a serious issue. I accept that it is probably relatively unlikely that it will be used, because any Cabinet Minister who decided to override a decision made by the information commissioner would be likely to be severely criticised. Furthermore, the fact that a Cabinet Minister had overridden a decision of the information commissioner obviously would be something that would come immediately into the public domain. However, I believe that, in principle, this is wrong.
The justification that has been put forward--namely, that it is somehow undemocratic for a commissioner to compel a government or public authority to disclose information against their wishes--seems completely bogus. What is of concern here is the concealment of information, not by Parliament but by the executive. It is and always has been one of the clear roles of the judiciary--for this purpose I would include the information commissioner among the judiciary--to control the executive. It is Parliament's inability to control the executive which causes many of our democratic shortcomings. So that argument goes out of the window.
We have here an entirely byzantine structure. We have initially a public authority--it may be a government department, a local authority or one of a
But there is a shortcut. Instead of the public authority going to the tribunal and obtaining a decision there, a Cabinet Minister may come in and override the information commissioner. The Cabinet Minister can say, in effect, "I think the information commissioner took the wrong decision. I agree with the original decision of the public authority that this information should not be disclosed".
What happens then? No doubt the noble and learned Lord will put me right if I am wrong, but it seems fairly clear that that decision would be judicially reviewable--I see the Minister nodding his head in confirmation--but what happens with judicial review? Under Clause 52(2), the accountable person is supposed to inform the complainant of the reason for his opinion, and those reasons are a basic necessity for the purposes of judicial review.
But we then go on to Clause 52(3), which states:
So where does that leave the judicial review? The court hearing the judicial review application will be in a very peculiar position. It appears to me--if I am wrong, I shall be glad to be put right--that the court hearing the judicial review application cannot ask to see the information. It is therefore in a weaker position than the information commissioner who can at least see the information. Once a matter goes to court for judicial review, it will be extremely difficult--at any rate, without some clear statutory provision--for the court to look at information which has not been disclosed to the parties. I suppose there may be exceptions in cases where there is a PII certificate, but the clause does not propose anything like that.
The court will not be able to see the information and, because of Clause 52(3), in some cases it will not be able to see what are the accountable person's reasons. Therefore, the possibility of effective judicial review seems to be non-existent. Even if this clause was in principle acceptable--I do not believe that it is--we are left in a position where, although an application is apparently judicially reviewable, in some cases it will not be effectively reviewable because the court will not know the information, and the court will be unable to find out the reasons of the accountable person. It will be operating in a complete fog, and that is an impossible position.
That is an example. It is not merely a defect which is curable; it shows some of the fundamental problems with the clause itself. The Government should take the view--the view adopted by the Select Committee--that they should trust the information commissioner, backed up by the tribunal, to get the decision right and should not seek to reserve a right to override the decision of the commission.
"We have considered this possibility, but decided against it, believing that a government veto would undermine the authority of the Information Commissioner and erode public confidence in the Act".
However, as it stands, Clause 52 gives Ministers the right to veto any order made by the commissioner requiring the Government to release information on public interest grounds.
"would, artificially and unnecessarily, create a democratic deficit.--[Official Report, Commons Standing Committee B, 8/2/00; col. 431.]
"The accountable person is not obliged to provide information under subsection (2) if, or to the extent that, compliance with that subsection would involve the disclosure of exempt information".
So the accountable person--in this case the Cabinet Minister--says, "I am not going to tell you what my reasons are. I could not tell you without revealing exempt information".
10.15 p.m.
Lord Archer of Sandwell: This is another rather curious grouping. Some of the amendments relate to the powers of the commissioner, but the principal concern of most of the amendments relates to ministerial override. Perhaps that is the issue which goes most directly to the whole purpose of the Bill.
I should like to speak to Amendments No. 273, 286 and 288. I accept that as a matter of drafting they have been overtaken by events. But, as my noble and learned friend was at pains to explain to us some days ago, the substantial redrafting to which the Government have subjected the Bill does not betoken sincere repentance; it is just better drafting.
The White Paper seems a very long time ago. The noble Lord, Lord Cope, quoted what it said about this matter. Bliss was it in that dawn to be alive! The whole subject of freedom of information was alight with promise. Now the clouds have gathered. This is one of the clearest examples of that position. I am falling into the trap against which I warned my noble and learned friend. I am replying to his reply before he has said it. But he will understand that I have gathered the arguments which have been used about this in previous debates. There is the democratic deficit. That is absolutely breathtaking. In a constitutional law paper, a student who came up with that would not even be allowed to continue the course.
As the noble Lord, Lord Goodhart, said, Ministers are accountable to judges. They are accountable every day of the week to people passing judgment in accordance with the rules. That is exactly the commissioner's function. It is not a democratic deficit; it is called "the executive being subject to the rule of law".
The noble Lord, Lord Goodhart, dealt with the judicial review argument. It will not benefit the argument if I repeat it. I was once privileged to chair the Council on Tribunals. I learned that to have someone in post who has acquired expertise in a relatively narrow field is a very good way to have something reviewed. I am not in any way denigrating High Court judges. Some of my best friends are High Court judges. But they do not replace the expertise of someone like the commissioner.
We have not yet had the argument that Ministers will override the commissioner only where they believe it to be essential to the public interest. That betokens a certain naive faith. Ministers have their share of original sin. Again, I am not being rude about Ministers. I have a history of being a Minister; I have previous convictions. But to suggest that they may disregard any possible interest which they might have
in non-disclosure is really expecting a higher standard of ethics than almost any human being could be expected to deliver, particularly when the chips are down.If reliance is to be placed on the collective wisdom of Cabinet Ministers, of course a Cabinet Minister will have to go to his colleagues and get them to agree, but it is precisely when a government have their back to the wall that they develop a collective stampede into secrecy.
When freedom of information legislation was introduced in New Zealand, the Danks committee, which considered the matter there, expressed its confidence that the ministerial veto would be issued only in compelling cases. The Attorney-General used the argument to which the noble Lord, Lord Goodhart, has just adverted. He said that it would be a brave Minister who exercised the power. Yet in the very first year there were vetoes on forecasts about the labour market, on estimates of the number of unregistered unemployed people, on the establishment of an investment bank, on a tender for a post office contract, on an evaluation of computer use in schools and on the tender price of a contract for wall plugs--all those in the first year. Then, of course, the legislation was changed because it was found that it did not work.
The veto might have been more acceptable if the list of exclusions with which we are dealing had not contained so many category exclusions. If it had subjected more of them to a harm test, the information would have been disclosed unless some identifiable harm was likely to result. But, in the absence of a harm test, disclosure may be refused even if no harm is likely to result. The only safeguard against that--the only long-stop--is the public interest override. If, in the application of that test, Ministers are to be judges in their own cause, we are back to the position that Ministers decide what shall be revealed and what shall be hidden. That is precisely where we were before there was a Freedom of Information Bill.
The noble Viscount, Lord Colville of Culross, tabled an amendment to limit the number of exemptions to which the veto is to apply and to limit it to Ministers and certain other senior officials. Again, to some extent that has been overtaken by my noble and learned friend's amendment. I explained in an earlier debate that the noble Viscount, Lord Colville, asked me to say that he apologises for his absence. He is unavoidably out of the country but he asked me to refer to his amendment. Perhaps when he replies my noble and learned friend will explain why it is necessary to have a ministerial override in respect of information which is already accessible to the public. It may be that I am becoming slow in my old age, but I really have not understood the logic behind that.
What do the Government fear will wash out of Pandora's box through that sinister escape route? I really do wonder why it is necessary to have a ministerial override at all, which is why I tabled Amendments Nos. 286 and 288. I accept that they have been overtaken by my noble and learned friend's
amendments, which may be why he added his name to my Amendment No. 284. I am grateful to noble Lords who added their names to that amendment, but I was pleasantly surprised to see that they included my noble and learned friend.It is true that in an earlier debate I renounced proverbs about Greeks bearing gifts, but I have thought of at least two possible reasons why my noble and learned friend may wish to add his name. He may simply have noticed that the subsection is out of date because it refers to Clause 13, which on any showing is destined for exile, and decided to man the gun after it was no longer loaded; or he may wish to accord a right of appeal to the tribunal against ministerial override, which is what the amendment suggests. I should be grateful if, when he replies, he would let us into that secret.
I also tabled Amendment No. 317 to delete subsection (3) of Clause 56, which makes it clear that there is no right of appeal to the tribunal against a decision notice or an enforcement notice.
Next Section
Back to Table of Contents
Lords Hansard Home Page