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Lord Falconer of Thoroton: The noble and learned Lord said that I added my name to Amendment No. 284. Did he mean Amendment No. 286?
Lord Archer of Sandwell: I thought that was what I said. I apologise if I said Amendment No. 284. I meant Amendment No. 286. I am grateful to my noble and learned friend. At least it was not a misprint. He accepts that he added his name to it. We shall learn the secret in a few moments.
My noble and learned friend has been helpful and quite accommodating from time to time in these debates. With a concession on this issue, he could build up a store of moral capital which might well see him through the remainder of our debates. If he opposes the amendments, I say at once that I should not support them today in the Division Lobby and I certainly do not propose to press mine. However, since we appear to be embarking on a constructive dialogue, I hope that that question will not arise.
Lord Brennan: The Committee heartily endorsed the remark of my noble and learned friend the Minister about a cultural change being achieved by the Bill. That change must not only involve government (either Ministers or civil servants), but also the public. They are the crucial element in this exercise. They must have confidence in the process created by the Bill. It will, therefore, be important for us to be able to explain to the public the way in which the Bill works.
If asked by a member of the public how the citizen will receive information under the Bill, a simpler explanation, allowing for the success of government Amendment No. 297, would be as follows: "Save as prohibited by a certificate signed by a Cabinet Minister, there shall be a right to information as hereinafter provided." I hope that I shall be forgiven for putting it so briefly, but that is the effect of eliding Clause 52 with Clause 1. The public will ask: "Why should there be such a veto?"
There is a perfectly reasonable explanation as regards Clauses 21 and 22 dealing with national security; and there is a specific right of appeal under Clause 59 in relation to such certificates. I am sure that that would be acceptable. But further explanation that, on top of that, a ministerial veto would be allowed for any one of the other 18 exemptions would be a little surprising to the ordinary citizen.
If one is then to say that the Minister will exercise the veto on a certain basis, I invite my noble and learned friend to say how the veto would be exercised. First, if it is only to be exercised by a Cabinet Minister, the Home Secretary said in a debate in April in the other place that he promised to require that Cabinet colleagues be consulted before a veto was issued and that that should be required on the face of the Bill if possible or, failing that, under the ministerial code. Is that still the proposal? If it is, it would mean that any veto--subject to the fears mentioned by my noble and learned friend Lord Archer--would be the veto of all, not just one.
Secondly, one asks the question: if the veto is to be exercised in that fashion, on what basis will it be exercised? It will arise after a commissioner has considered the public interest and prejudice; and if the Minister disagrees and has to give reasons for that disagreement, there must be a set of principles on which it is anticipated such a veto would be exercised. What are they?
I ask these questions following my opening comment that, at the end of the day when the Bill becomes law, it must have public confidence. A wide-ranging right of ministerial veto will be a very difficult matter to explain to the ordinary citizen under the umbrella of freedom of information.
The Committee may like to note that only a few days ago the noble and learned Lord, Lord Steyn, one of our most distinguished Law Lords and one of our leading commentators on the constitution, made a speech in which he regarded freedom of information as a highly normative aspect of constitutional government. By that, he meant that it was vital to the exercise of democratic rights. He put it in this way. We now have a fully participatory democracy--Lincoln's government of the people, by the people, for the people. That is only possible if the people have the necessary knowledge or, at least, the means of acquiring that knowledge.
Freedom of expression is the very lifeblood of democracy, but it is truly meaningful only if there is full and effective freedom of information. A comprehensive freedom of information Act is the most important piece missing from the jigsaw of our law. Let us hope that Parliament will supply it. With that objective in mind, why supply it with this veto?
Lord Norton of Louth: It is a pleasure to follow the noble Lord, Lord Brennan, and, not for the first time, to reinforce the points that he made, which I believe are extremely telling in the context of this clause. Like him, I should like to remind the Minister, not for the
first time, of the intention behind the Bill. That intention is quite clear and it is stated in the foreword to the draft code of practice. Paragraph 2 opens with:
- "It is the Government's intention that the Freedom of Information Act will be a catalyst for a change of culture within the public service towards greater openness".
I appreciate the point made earlier by the noble Lord, Lord Goodhart, that such vetoes may be used in exceptional circumstances. That is the claim. I was going to go on to make the very point that the noble and learned Lord, Lord Archer of Sandwell, made about the experience in New Zealand, where, I gather, the veto was used 14 times in the first four years. The noble and learned Lord gave specific examples. As he mentioned, it was then tightened up, and I appreciate that the Government intend to move some way in that direction, although they will not go so far as the provisions in New Zealand.
Therefore, for the reasons that have been given, I believe that there is a substantial problem with this clause. As those reasons have been explained so eloquently by the noble Lord, Lord Brennan, and the noble and learned Lord, Lord Archer, I shall not repeat them.
I suspect that the Minister may fall back on what I believe is the well-tried formula that he employs in dealing with catch-all or broadly-drawn provisions. He cites examples where the use of the particular power would be appropriate. However, if one looks at the occasions on which he has cited such examples, they have never been sufficient to justify the breadth of the provision. His examples could be encompassed within a much narrower framework. Indeed, I find that what Amendment No. 293 seeks to achieve is as attractive. Certainly, I believe that we need to move in that direction. I take the view that if there is no shift in that direction, I should prefer the clause to be removed.
10.30 p.m.
Lord Falconer of Thoroton: When the Freedom of Information Bill becomes law, we intend that it should be a catalyst for a change in culture. The amendments that we have tabled under Clause 52 will ensure that the executive override is limited in application. It will be available only on the signature of a senior member of the Government. Although, for reasons that I shall explain in a moment, it cannot be put on the face of the Bill, it is intended that the exercise of the override should occur only after consultation within the Cabinet. Its use will be subject on the face of the Bill to a clear duty to explain the circumstances. We can be sure that this House and the other place will hold such signatories accountable for their actions and that they
will also be accountable in court pursuant to judicial review proceedings. I shall deal with the points made by the noble Lord, Lord Goodhart, in due course.There will be a limited, defined, restricted override. Having said that, in our judgment it is inescapable that there will be occasions, probably few in number, when the protection of the override will be necessary. We believe that in such cases, which will be those dealing with the most sensitive issues, it should be a senior member of the Government, able to seek advice from his Cabinet colleagues, who should decide. Cabinet Ministers are accountable in a way which the commissioner cannot be. It is right that responsibility and accountability should rest at that level for this aspect of the freedom of information regime.
It is right and responsible that the Government accept that there will be rare occasions when they take the view that non-disclosure--even though the commissioner may feel that disclosure should take place--is appropriate. That is the view taken in other freedom of information regimes--not all--in particular that in New Zealand. An example was given by my noble and learned friend Lord Archer of Sandwell indicating what happened immediately after it was introduced. It was then, so the notes from the regional newspaper briefing indicate, that it was tightened up considerably, not entirely in ways parallel to ours. But we too have tight rules. It has rarely been used since then.
Lord Archer of Sandwell: I thank my noble and learned friend for giving way. Is he really saying that the safeguards which are now proposed in this Bill are as secure as the safeguards which the New Zealand Government found it necessary to install?
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