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Anti-terrorism, Crime and Security Bill

3.8 p.m.

The Minister of State, Home Office (Lord Rooker): My Lords, I beg to move the Motion standing in my name on the Order Paper. Perhaps I may first give a one-minute XEnglish translation" of it. There is a note in the Printed Paper Office setting out the areas of the Bill involved for tomorrow's debate. This is merely a suggestion. The list is as follows: disclosure of information; police powers, retention of communications data; immigration and asylum; and terrorist property and freezing orders. The suggested list for Monday is: the Justice and Home Affairs Council, race and religion, and the remaining parts of the Bill as set out on the Order Paper. I commend the Motion to the House.

Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clause 17, Schedule 4, Clauses 18 to 20, Clauses 90 to 102, Schedule 7, Clauses 103 to 107, Clauses 21 to 36, Clause 1, Schedule 1, Clauses 2 and 3, Schedule 2, Clauses 4 to 6, Schedule 3, Clauses 7 to 16, Clauses 111 to 121, Clauses 37 to 59, Schedule 5,

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Clauses 60 to 71, Schedule 6, Clauses 72 to 89, Clauses 108 to 110, Clauses 122 and 123, Schedule 8, Clauses 124 to 127.—(Lord Rooker.)

Lord Renton: My Lords, the noble Lord, with his usual courtesy, has tried to give some justification for the appalling confusion as regards the consideration of the Bill on Report which taking the clauses and schedules in the order in which they are listed on the Order Paper will create.

Clause 17 comes first, followed by Schedule 4 and then Clauses 18 to 20; then Clauses 90 to 102. Not until we have dealt with still more clauses, up to Clause 107, shall we begin debating Clause 1. I have often seen these confusing sequences, but I have never seen a more confusing one than this. Why has this Motion been placed before the House?

Lord Rooker: My Lords, the short answer is that it is thought by the opposition parties that it is for the convenience of the House to take first on both days the key issues that they want to debate. Clearly, Clause 1 is not one of them. Therefore, it is wholly sensible to make this arrangement. It is certainly consistent with normal parliamentary procedures to debate the big issues in the early part of both days. It makes sense to split them between the two days, so that we do not spend the whole of the first day on the big issues, with nothing to debate on the second day. It is a much more sensible arrangement than to debate the issues in the order in which they appear in the Bill.

Lord Cope of Berkeley: My Lords, I agree with the Minister's comments. He was right to say that the list was drawn up at the request of myself, my colleagues and also the Liberal Democrats. Debate on the second day is likely to begin at Clause 111.

Lord Renton: My Lords, if I may say so, there ought to be greater and wider consultation on the matter than simply a conspiracy between the two Front Benches.

On Question, Motion agreed to.

Freedom of Information

3.10 p.m.

Lord Goodhart rose to call attention to the case for individual rights of access under the Freedom of Information Act 2000 to information held by central government departments to come into force at the same time as publication schemes are implemented in November 2002; and to move for Papers.

The noble Lord said: My Lords, exactly five years ago in December 1997 the Government published a White Paper entitled, Your Right to Know. It was published in pursuance of the Government's

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manifesto commitment to freedom of information. The Minister responsible for the White Paper, Dr David Clark, the then Chancellor of the Duchy of Lancaster, and now the noble Lord, Lord Clark of Windermere—I am delighted that he is to speak in the debate—said in the first paragraph of his foreword to the White Paper:

XOpenness is fundamental to the political health of a modern state. This White Paper marks a watershed in the relationship between the government and people of the United Kingdom. At last there is a government ready to trust the people with a legal right to information. This right is central to a mature democracy".

The first two paragraphs of the White Paper state:

XUnnecessary secrecy in government leads to arrogance in governance and defective decision making. The perception of excessive secrecy has become a corrosive influence in the decline of public confidence in government. Moreover, the climate of public opinion has changed: people expect much greater openness and accountability from government than they used to.

That is why we pledged before the election to introduce a Freedom of Information Act. The purpose of the Act will be to encourage more open and accountable government by establishing a general statutory right of access to official records and information".

Those are sentiments with which I could not agree more powerfully.

The introduction of freedom of information legislation was not before time. As the White Paper points out, Sweden has had a public right of access to official information since the 18th century; the US since 1966; France since 1978; Canada, Australia and New Zealand since 1982; and the Netherlands since 1991. In addition, Ireland adopted a Freedom of Information Act in 1997.

Since 1994 the United Kingdom has, of course, had a non-statutory code of practice on access to government information which is overseen by the Parliamentary Commissioner for Administration, the ombudsman. That was undoubtedly a step forward. We are happy to acknowledge the role of John Major's government in achieving that step. But the code is no substitute for proper freedom of information legislation. I note in passing that the Government, in the person of the Foreign Secretary, have in the past two days for the first time rejected a recommendation of the ombudsman for the release of information under the code.

The 1997 White Paper received an almost unconditional welcome from people concerned with freedom of information. Unfortunately, in July 1998, the noble Lord, Lord Clark, lost his place in the Cabinet and responsibility for freedom of information was transferred to the Home Office. At that point, unfortunately, the rats got at it. In May 1999, the Home Office published a further consultation paper containing a draft Bill. Supporters of freedom of information reacted with horror to some of the contents of that Bill. The draft Bill was the subject of reports from the Select Committee on Public Administration in the other place and from an ad hoc Select Committee in your Lordships' House chaired by the noble and learned Lord, Lord Archer of Sandwell. I am glad that several members of the Select Committee of your Lordships' House are among the

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speakers today. I am sorry that the noble and learned Lord, Lord Archer of Sandwell, is not able to contribute. Although wishing to do so, he has another engagement.

Both reports were highly critical of many of the provisions in the draft Bill. As a result of the reports and pressure from Members of both Houses of Parliament, the eventual Freedom of Information Act was a considerable improvement on the draft. But it remains far from perfect and undoubtedly needs significant further amendment.

For the purposes of today's debate, it is important to note that the Act requires public authorities to adopt publication schemes relating to the pro-active publication of information by authorities. But, separately and much more importantly, the Act requires public authorities to comply, subject to exemptions, with requests from members of the public for information held by those public authorities.

Under the commencement provision of the Act, in the usual way rule-making powers come into force immediately on enactment. But the substantive provisions of the Act are to come into force five years after the date of enactment, or on such earlier date as the Secretary of State will direct.

I return to the history of the Bill's enactment. It was introduced in the 1999-2000 Session and received its Second Reading in your Lordships' House on 20th April 2000. In opening that debate, the noble and learned Lord, Lord Falconer of Thoroton, said,

XI draw your Lordships' attention to the commencement provisions . . . 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".—[Official Report, 20/4/00; col. 829.]

The Bill obtained Royal Assent on 30th November 2000, so commencement must take effect not later than 30th November 2005. At the time of enactment it was made clear that the Government intended to introduce a public right of access under the Freedom of Information Act by a phased programme starting with central government departments in the summer of 2002. Other public authorities would follow in due course. Central government departments had already had over six years' experience of compliance with the code of practice.

A target date of July 2002 for central government information was predicted by Mike O'Brien, who was then the Parliamentary Under-Secretary at the Home Office, at a conference which I attended in March this year. A similar target date had been given by David Lock, then the Parliamentary Secretary at the Lord Chancellor's Department, in the Committee stage of the Bill in the other place. Internal government circulars made similar assumptions.

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At no time until 13th November this year did the Government make any public statement indicating a departure from that timetable. As I have already mentioned, the noble and learned Lord, Lord Falconer of Thoroton, said at Second Reading that he expected that the Act's provisions would apply to central government as soon as the Information Commissioner was able to enforce them.

On 10th October this year, the noble and learned Lord the Lord Chancellor met Elizabeth France, the Information Commissioner, and asked her to let him have her suggested timetable for publication schemes and access rights under the Act. She replied in a letter of 18th October. The commissioner made it clear that in her view adoption of publication schemes should coincide with the implementation of the public right of access to information. Her letter states:

XIt seems sensible to me to implement the Act in tranches, bringing public authorities onstream sector by sector. This will enable us to concentrate on groupings of public authorities operating in similar areas, with broadly comparable responsibilities and often holding similar classes of information".

Then, omitting a paragraph, the letter continues:

XAnother point of principle on a phased implementation programme which has been raised in the past is whether to make a distinction between implementing the duty to adopt and operate a publication scheme and implementing the duty to respond to requests for information not included in a publication scheme. One model would be to have, say, a 3 month period elapsing between publication responsibilities being introduced and individual rights of access coming onstream. Whilst this might be convenient for public authorities, further reflection suggests to me that it would be confusing and possibly frustrating for the citizen. If information for publication has been identified and is available under a publication scheme, surely the public authority ought to be ready to deal with individual requests for other information. Citizens will not understand why they can have information referred to in a publication scheme but cannot be told whether they can have other information".

She added:

XI would therefore not favour splitting the implementation of a publication scheme from the implementation of related individual access rights".

The commissioner went on to suggest what she described as,

Xa realistic and comprehensible timetable for implementing the Act".

She proposed that the Act should be implemented in respect of government departments on 1st October 2002 and should proceed by a series of steps ending on 1st October 2004, by which time the Act would be fully implemented.

The views of the commissioner seem to have coincided with those of the noble and learned Lord the Lord Chancellor. His preference for phased implementation rather than a Xbig bang" is on record, most recently in evidence to the Home Affairs Select Committee in the other place on 16th October this year. But phased implementation is not what happened. On 13th November, the Lord Chancellor published a timetable providing for publication schemes to be brought into effect by stages, starting with central government in November 2002 and ending in June 2004. But the much more important

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right of public access to information will not be implemented at all until January 2005 and will then be implemented in a single big bang.

That raises important and unanswered questions. First, why did the Government reject the Information Commissioner's recommendation that publication schemes and right of access to unpublished information should be implemented at the same time? Secondly, why did the Government decide to defer the right of access to public information for central government until January 2005 instead of October 2002, as recommended by the commissioner? Thirdly, when were those decisions taken? Was the commissioner being led up the garden path by being asked to comment on issues which were already decided? And, fourthly, was the Lord Chancellor's preference, stated as recently as 16th October this year, for phased implementation overruled, and, if so, by whom?

The inference that I shall draw, unless those questions are answered very persuasively, is that the noble and learned Lord and the commissioner were mugged by a gang of departmental Ministers who did not want freedom of information at all. I suspect that January 2005 was chosen as the last date which would avoid the embarrassment of fighting a general election in the spring or summer of 2005 with the Freedom of Information Act still not implemented.

The time that will be taken to implement the Act is unnecessarily and unacceptably long. The lapse between legislation and implementation was seven months in New Zealand, nine months in Australia, one year in Canada and, for central government, one year in the Republic of Ireland. Why do we need more than four years in the United Kingdom? Central government have had seven years' experience of working with the code. Therefore, the changeover to the Act should not create serious problems for them.

I began by talking about the White Paper of the noble Lord, Lord Clark, Your Right to Know. The last sentence of that report states:

XThe long wait for the right to know is nearly over".

Even now, the long wait is not nearly over. The wait will last for another three years and it will have lasted for seven years from the date when the White Paper was published. That is far, far too long. My Lords, I beg to move for Papers.

3.25 p.m.

Baroness Crawley: My Lords, I am grateful to the noble Lord, Lord Goodhart, for the opportunity he has given the House to debate aspects of the Freedom of Information Act, and I acknowledge his long-term commitment to its creation.

This Act will bring about an irreversible culture change in the transparency of government and of the entire public sector. Of course, as we heard from the noble Lord, Lord Goodhart, it did not go as far as some noble Lords would have wanted. From my time on the House of Lords ad hoc Select Committee on the

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Bill in 1999, I well remember the arguments and the controversy over content and over the famous 23 exemptions.

But one should never lose sight of the fact that this Government have been the first ever in our history to enact a general statutory right of access to information. Of course, the present code of practice, referred to by the noble Lord, Lord Goodhart, was brought in by the Official Opposition when in government. However, the code is extremely limited: it is discretionary and cannot be enforced. It also covers only central government and some quangos and is largely unknown and unused by the public.

The need for an Act that went beyond the rights that individuals already have to access their information held on computer under the Data Protection Act was rightly accepted by the Government. But I hope that, in the period leading up to full implementation of the Freedom of Information Act, the code of practice will be viewed in the context of the new Act and that those seeking information under the code will be taken extremely seriously in their endeavours.

Our debate this afternoon is specifically about the timing of the Act's implementation. In order to grasp the scale of what is involved in implementation, I believe that it is useful to look at the list of public authorities covered by this most important Act. They are: all government departments; local authorities; and NHS bodies, including hospitals, dentists, pharmacists and opticians. Schools, colleges and universities are also covered, as are the police, both Houses of Parliament, the Northern Ireland Assembly and the National Assembly for Wales. There is also a long list of other public bodies, ranging from various official advisory and expert committees to regulators and organisations such as the Post Office, the National Gallery and the Parole Board—70,000 authorities in all.

This is the most determined unlocking of information to public scrutiny that we have ever attempted in this country. It will, over time, transform the way that we are governed. Transparency will become the norm rather than the exception. Therefore, given the enormity of the task ahead and the fact that government have a responsibility to ensure that public administration continues to run effectively as the duties set out in the Act are imposed, I am persuaded that the Government are wise to bring the new duties and rights created by the Act into force incrementally, with an individual's right to access created in January 2005. Provided that the time between now and 2005—

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