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Lord Norton of Louth: My Lords, I rise to speak to Amendment No. 11, which is grouped with the amendments tabled by my noble friend. His represent the modest option; mine represents the radical option. I thank the noble and learned Lord in advance for what I am sure will be a constructive response to my amendment. In an ideal world, I would be thanking him in advance for accepting it.

In Committee and on Report, the noble and learned Lord stressed that any Minister issuing a certificate under Clause 53 would be accountable to Parliament for that action. He said that the Bill provides that decisions must be transparent and that a Minister signing a certificate must give reasons for that decision. There is no dispute about the importance of

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ministerial accountability. The disagreement relates to how effective accountability can be achieved. My amendment is designed to ensure that Parliament is provided with a means of achieving that desirable end. It requires that a certificate issued by a Minister has to be confirmed by both Houses; it provides for a Joint Committee to have sight, on a confidential basis, of the material that is the subject of the veto. The amendment thus ensures that Ministers cannot avoid parliamentary scrutiny. Scrutiny will take place. Ministers will have to answer to both Houses. The amendment also ensures that Ministers cannot fall back on some broad defence, parliamentarians being unsure as to whether or not that defence is justified. The House would be able to have the advice of a Joint Committee as to whether or not the defence was justified.

In Committee, I proposed that the relevant departmental Select Committee of the House of Commons--or, if the certificate covered an issue of national security, the Intelligence and Security Committee--should have confidential sight of the material. On reflection, I have decided that a Joint Committee of both Houses would be appropriate. However, if the certificate relates to an issue of national security, which, of course, is a distinct possibility, I suggest that it should also be referred to the Intelligence and Security Committee.

Making use of a Joint Committee would be feasible and appropriate. It would be feasible because the issue of a certificate would be rare. I take the Government at their word on that. Both Houses would, therefore, rarely be called upon to nominate members to serve on such a committee. It would be appropriate because both Houses would be called upon to confirm the certificate, and it would allow both Houses to appoint senior members to serve on the committee. The Intelligence and Security Committee, which is a statutory body, comprises senior Privy Counsellors. I envisage the Joint Committee comprising a similar membership. It would thus be a body of high standing and integrity.

I made the case for strengthening parliamentary accountability on Report. I do not intend to repeat what I said then; rather, I propose to explain briefly why the Minister's response on that occasion was not persuasive, and hence why I have returned to the issue at Third Reading. On Report the Minister advanced the argument that existing arrangements were satisfactory and that my proposal had two principal defects.

The Minister's justification for the Bill's provisions was that the commissioner, who would have had an opportunity to see the relevant information could,

    "report any shortcomings in the decision-making procedure to Parliament".--[Official Report, 14/10/00; col. 259.]

Doubtless the commissioner could. However, I am not concerned here with shortcomings of the decision-making procedure. I am concerned with the decision itself. The Minister argued that my proposal was deficient because it would not add any greater

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transparency to the process and because the action of issuing a certificate was an executive and not a legislative power.

I would argue that my proposal should be seen in terms of legitimacy. Under the clause as it stands, Ministers will be judge and jury in their own cause. There will always be the suspicion--it may be groundless, but it will exist--that Ministers will exercise the veto to avoid embarrassing material being put into the public domain. My proposal provides for Parliament, enjoying a legitimacy of its own, to confirm that the Minister's reasons for exercising the veto are reasonable.

I would also contend that my proposal does aid transparency. Knowing that they will be answerable to Parliament for their actions--something they cannot avoid--is likely to ensure that Ministers provide as full a justification as possible; and, indeed, that they will not embark on a course of action unless they are sure that they can justify it to Parliament.

As regards the argument for it being an executive power, I understand the case the Minister advances but I do not think that it is conclusive. Parliament confers powers upon Ministers, but variously makes the exercise of those powers subject to parliamentary approval. The ministerial veto here is a power conferred by Parliament. We are not dealing here with executive actions derived from the prerogative.

I therefore do not find the Minister's arguments persuasive. I am greatly tempted to tell the noble and learned Lord that I have applied a balancing test, weighing the needs of the executive against the imperative of parliamentary scrutiny. It is really no contest. Government must be accountable to Parliament.

In this clause we are giving an important power to Government without balancing it with an effective provision for parliamentary scrutiny. My amendment is designed to provide for that scrutiny. I hope that Members of this House will always act to maintain effective scrutiny of the executive.

Lord Falconer of Thoroton: My Lords, we agree on the need for proper accountability in relation to Parliament for the giving of a certificate under Clause 52 which has been described as the ministerial veto. Amendments Nos. 9 and 10 are alternative methods of directly notifying Parliament of that. We have considerable sympathy with the spirit behind the amendments.

Amendment No. 9 is vague because it states that the relevant accountable person should draw the attention of the relevant body to the details of the certificate. That phrase is somewhat vague. Amendment No. 10 does not suffer from the same defect. It states that the accountable person shall lay a copy of the exception certificate before each House of Parliament or the appropriate devolved assembly. We have always made it absolutely clear that the relevant Minister should be accountable to Parliament. We therefore accept that amendment and would support it if the noble Lord,

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Lord Mackay of Ardbrecknish, is minded to move it. He has made his contribution to the Freedom of Information Bill.

I turn to Amendment No. 11 tabled by the noble Lord, Lord Norton of Louth. The effect of the amendment would be that the certificate would be invalidated unless approved by a resolution of both Houses within 20 sitting days. The amendment would also have the effect that a Minister, having signed an exception certificate, would be required within the same period of time to pass in confidence to a Joint Committee the information in question.

As I said in the debate on an identical amendment on Report, that would certainly result in additional delays in reaching a view on whether information might be disclosed or withheld, but I do not believe that it would lead to any greater transparency than the Bill already provides, in particular with the amendment soon to be moved by the noble Lord, Lord Mackay of Ardbrecknish. It is clear that the exception certificate process is not something which would be undertaken without very serious consideration. There are safeguards to ensure that decisions must be transparent. The Minister must give public reasons for the decision. The commissioner will have had the opportunity, if she wishes, to see all the relevant information. She can report under Clause 49 any shortcomings in the decision-making procedure to Parliament, and Parliament itself can, at any time, hold the Minister to account for his actions. We think that that is sensible. It delivers the objectives that the more complicated procedure proposed by the noble Lord, Lord Norton of Louth, also seeks to deliver.

We have repeatedly made our position clear on why it is important that Ministers are and must be seen to be responsible in relation to decisions of that sort. We believe that it is right that Ministers, backed by the collective responsibility of Cabinet, should be seen to be responsible for taking decisions in areas such as these and that this is preferable to a position in which that responsibility is transferred to Parliament. In effect, that is what the amendment tabled by the noble Lord, Lord Norton, would do. It is right that Parliament holds Ministers to account in relation to that in a way which involves reasons, direct knowledge of what is happening and an independent person able to report any shortcomings. However, ultimately it is for Ministers accountable to Parliament, with Parliament being provided with the proper information, who have to take the decisions. In all the circumstances, I would invite the noble Lord, Lord Norton of Louth, not to move his amendment.

Lord Mackay of Ardbrecknish: My Lords, I am grateful to the Minister for accepting the argument put forward by myself and noble friend Lord Norton. I am sure that my noble friend accepts that his amendment was pretty much a nuclear option and would require much more parliamentary procedure than my amendment. However, I am grateful to the Minister for accepting that Amendment No. 10 carries out that for which we were searching at Report and, indeed, in Committee; that is, a way for Parliament to be

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informed expeditiously about the occasions on which government Ministers have used the veto. I suppose I can mark that as a triumph. I shall now be able to look the noble Lords, Lord Lester, and Goodhart, in the face in the competition for who made any amendments to this Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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