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Lord Lester of Herne Hill: My Lords, I am grateful to the noble Baroness for giving way. Although I follow her argument completely, she will appreciate that the Motion in the name of the noble Lord, Lord Goodhart, focuses only upon central government. Is it her argument that the fact that many other public authorities are affected justifies not bringing the Act into force for central government for another several years? Is that her argument?
Baroness Crawley: My Lords, no. My argument is that the time between now and 2005 used productively
will relate to central government and all the departments within central government. However, it will also relate to the effectiveness of the other public authorities beyond central government. Even within central government, it is better to have the measure delivered effectively, rather than speedily but ineffectively.
Lord Maclennan of Rogart: My Lords, does the noble Baroness reject the view expressed by Mrs France—the Government appointed her to advise on the implementation—that it would not only be more timely but better to move, first, on central government and to do so by 1st October of next year? Does she specifically reject the advice of the person appointed by her right honourable friend?
Baroness Crawley: My Lords, I thank the noble Lord. It is important for government to listen to all expert advice including that important source. It is then the responsibility of government to make decisions on that advice but also on their own analysis of what is possible.
I am persuaded that the Government are wise to bring the duties into force incrementally with the Xbig bang" date for individual rights of access in 2005. Provided that the time between now and 2005 is used productively, it will ensure that those rights are delivered effectively after proper time for planning. Setting up the public schemes first allows departments to get their records in order in readiness for the individual right to apply. It also spreads the workload and cost over three years, ensuring that the work of the department can continue without disruption while the necessary cultural change, which will be massive, is delivered.
In getting the balance right between the speed of implementation—that is what we focus on today—and delivering new rights, my noble and learned friend the Lord Chancellor was criticised during debate on the Human Rights Act. But it is accepted now that the preparation period taken to implement that Act was in fact very worth while.
Critics of the Government's chosen method of implementing the Act have referred to overseas legislation to support their case. The noble Lord, Lord Goodhart, referred to the implementation timetables of other countries. Ireland is often used as a comparison. Yet Ireland's legislation is not retrospective, as is ours; and I understand that four years after its Act has been passed, it has not rolled it out to anything like the equivalent number of bodies that the Government intend on their timetable.
Approximately 70,000 public authorities and their work are covered by the Act. The preparation and awareness-raising of both the public and the authorities must begin in earnest as soon as possible. I should be grateful if my noble and learned friend the Lord Chancellor would set out today in his response how that awareness-raising is to take place. The best delivery of people's legal rights under the Act is what concerns us all and must be our ultimate goal.
3.34 p.m.
Lord Lucas: My Lords, one of the difficulties with this form of debate is that we get to the meat of it only when the noble and learned Lord the Lord Chancellor replies. Many of us would like to know what he will say so that we can deal with it in the course of our speeches. Thankfully, someone has provided the noble Baroness, Lady Crawley, with a brief. It was pretty tedious and boring but at least it gave an idea of the Government's attempted defence.
I believe that we did the Government an injustice when we debated the Freedom of Information Act. At that time, we accused them of backsliding and producing a mouse rather than a lion of an Act. We were generally abusive about what they put before us. We should have been extremely grateful. It is clear that we were lucky to get anything and that had we left the issue another few months any commitment to freedom of information would have disappeared entirely.
The Government are now making the maximum possible use of the timescales under the Act to backslide from what was a clear, open and ministerial commitment to begin the publication of the availability of central Government information in late 2002. That commitment was backed up by departmental understanding of what it meant to have a Freedom of Information Act because departments have operated the code for so long. They clearly understood that late 2002 was the likely timescale. Ministers have committed themselves to that timescale on many occasions in public. We are now told that we are not to be allowed that access until early 2005, two and a half years after it had been promised.
What are the possible reasons for that change in date? Let us consider briefly some of the practical arguments.
Could it be that government departments could not get ready in the time between the passing of the Act and late 2002? That is not what government departments said at the time. It is not what has happened in other countries. There has been no indication that government departments find any difficulty with that timescale.
Could it be that the preparation of publication schemes has to come long before public access? No, my Lords. Publication schemes are only a peripheral activity. One could have, as we have now, public access before publication schemes. The two need not go in tandem.
Could it be that the electronic records management system which the Government are supposedly to have in place by late 2004 is needed before we can have an effective public access to information? No, first, because we can have such access now; secondly, because most of the access which the Government are said to be finding difficult concerns past records which will not be subject to the electronic records management system; and, thirdly, because the idea that the Government will succeed in introducing the system in late 2004 is laughable. It is a major IT project within Government. It is bound to be late and extremely useless. There is no chance of the two
coinciding. Even in early 2005 the Government will have to use the information system that they use at present.Could it be that all those who have said that phased implementation was best were wrong? I do not envisage that. The noble Baroness, Lady Crawley, is right: an awful lot of bodies come under the Act. If they are to learn what is involved, they will need people to trailblaze for them. They will need to see how it is working in practice. A body of experience needs to be built up within the public service, starting with departments, to inform the smaller agencies and, beyond that, bodies such as schools. There will need to be a gradual process whereby skills and expertise are built up and transmitted. The idea that central government will come on line the same day as my local primary school is ridiculous. On receiving the first request the school will have no precedent. The local authority will have no expertise to assist it and there will be no expertise within government to help the local authority. Everything will be theoretical rather than practical, based on some sort of training scheme but no real experience.
It was always going to be better to have a phased implementation; that was the one proposal that sugared the pill of the 2005 date in the Act—that there was a real and practical reason for the date and for allowing the system to be rolled out gradually. Central government will be ready for that by 2002; why not let them be subject to it?
Since there are no practical reasons for not doing so, there must be political reasons. What difference would it make to government if we were given access to information by late 2002? We should have two and a half years before the next election in which to discover what a pig's ear the Government are making of public services. I understand why Alastair Campbell would object to that and why it might worry the Prime Minister, who has always been focused on winning the next election. Their concern was that details about the state of the health service and about the mismanagement of education were going to be publicly available to so many digging journalists and individuals for so long that the truth might become evident before the next election. I can see no other reason for the move. No convincing case involving practicalities is being made.
Baroness Crawley: My Lords, is that the reason why the noble Lord's party did not bring in an Act at all?
Lord Lucas: My Lords, I do not defend my party for what it did not do. Looking back at Conservative governments of those days makes it clear that there was a lack of commitment to freedom of information, with which I would not find myself in tune. I find myself entirely in tune with what the noble Lord, Lord Goodhart, said in his opening speech; namely, that openness and freedom of information are a key to good government, to government by consent and to a healthy polity. Secrecy did us a lot of harm in government. The Government should have learnt from that, but they clearly have not. There has always
been a great deal of opposition to freedom of information in this Government. Peter Mandelson spoke against it even before the Government came into office. There has clearly been a rising feeling in the Government that secrecy is what is important.When I debated with the noble Lord, Lord Rooker, the subject of civil defence in the face of terrorist threats, it became clear that all preparations for civil defence are a matter of utmost secrecy. We will simply be told by government that they are looking after us and we are not allowed to know what we should do in the event of a serious terrorist attack. We are not allowed to know—the Department of Health will not tell us—what is going on in relation to the sterilisation of instruments that are used in operations. A serious report has been prepared on the deficiencies of the health service, but it has not been published. The idea that there is a right to know is clearly anathema to many parts of this Government. It is no surprise—but it is a great disappointment—that the Government are now backsliding on the commitment to allow us a right to look into the goings on of government until the last possible moment under the Act, which they passed.
I hope that, in the fullness of time, the Government will find a practical way to phase in the right to know, even if 2005 becomes the date for the implementation of the formal right. I hope that before then we shall start to have an informal right to ask and to receive. It will be such a mess if all the provisions come into play on one day. I cannot see how that could work. With great sadness, I support the Motion.
3.43 p.m.
Lord Clark of Windermere: My Lords, I begin by congratulating the noble Lord, Lord Goodhart, on introducing this debate. He has a long history of promoting the cause of freedom of information. This afternoon's narrow debate is a further example of his commitment.
While I am handing out plaudits, I publicly acknowledge, perhaps for the first time—certainly for the first time in this House—the stalwart defence of and commitment to freedom of information shown by my noble and learned friend the Lord Chancellor. My experience in government, when I was trying to devise radical and progressive freedom of information legislation, was that I received support from my noble and learned friend whenever I asked for it. I publicly thank him for that commitment and I look forward to his comments.
The noble Lord, Lord Goodhart, mentioned the White Paper of December 1997 and kindly acknowledged that it was widely and well received. We did much work in that White Paper. People were pressing us to publish it earlier.
I was determined that the White Paper and the legislation should be based on three pillars. First, I passionately believe that no modern democracy can build trust with its constituents—its citizens—unless they have a right to know what is being done on their behalf. Secondly, I happen to believe—this is where I disagree marginally with the noble Lord, Lord
Lucas—that good governance and good administration will come about by having more freedom and greater accountability than we currently have. Thirdly—this may be the most critical pillar—when we were devising the White Paper and the legislation, we looked at the situation in the rest of the world and decided that we would design a Bill that was not for what my noble friend Lord Rooker would call the legal trade, the press or commercial interests but for the ordinary men and women of this country. That is why this debate is so critical.The whole point about the Freedom of Information Act is that the individual—the ordinary citizen—has the right to apply for information. If that right is delayed, the Act is clearly not being fully enforced. I therefore find myself at a loss to understand the Government's position. On grounds of good politics and good governance, there is nothing to be gained from delaying the phased introduction of the right. If one delays the right, we as a government throw ourselves open to the charge—it was made by the noble Lord, Lord Lucas—that we are trying to hide something before the general election. I happen to believe that we have nothing to hide. For the sake of good politics, we should be up-front and open in this respect. There is a fundamental weakness in terms of practicalities. I shall return to those two points.
During the momentous 1997 general election campaign, we had a fantastic amount of good will on this issue and in terms of practical politics, we made great headway. We united the Labour Party and the Liberal Democrats and, at last, we also converted the Conservative Party to our cause. There was cross-party support for the initiative that we were pushing forward.
I also claimed that the effort had international support. I want to make that point in a rather amusing way. One of the most radical freedom of information systems is that in Canada. In the Information Commissioner's annual report for 1997-98, he said that even Canada might be being left behind with regard to freedom of information and that the Canadian provinces had already overtaken the federal government. He said that it was sad that Canada was being left behind compared with our country, and he continued:
- XBut by the nation that raised secrecy to an art form, that produced Yes Minister and Sir Humphrey's law? That is the cruellest cut of all".
I was clearly disappointed that the Government refined the White Paper. However, that is the nature of politics. We have clawed back some of the disadvantages and made some progress during the draft Bill process—a very open process—and in debates in both Houses of Parliament.
It is interesting to note that throughout the toing and froing there was one consistent aspect. Generally it has been accepted that the timing of release to individuals would be phased in. That has never been challenged. It has been accepted that that is the
sensible way to bring about a piece of legislation that covers more public bodies and is the most comprehensive anywhere in the world. Clearly there was a problem.As recently as 16th October this year the noble and learned Lord the Lord Chancellor appeared before a Select Committee of the other place and said,
- XThere is a powerful case for not going for a big bang, for doing it gradually, and modulating how you go according to the readiness in particular areas".
I turn to the argument on practicalities. I hinted at this point when I spoke about the comprehensive nature of the Bill. The noble Baroness, Lady Crawley, emphasised that particular point. It needs to be emphasised. The Bill is very wide. It seems to me that the argument for phasing in the right of the individual—I emphasise the right of the individual—to information outweighs the big bang theory. We accept that there will be difficulties and some resistance. Some civil servants are not over the moon about this piece of legislation.
By introducing the Act gradually we can learn from experience. We can iron out some of the hitches that will occur. We can redefine more precisely the role of the information officer and the compliance officer within the department or within the public body. We can learn by proceeding gradually. There are other advantages. If there is a delay, we could find that government departments and the Information Commissioner's office are swamped. I also believe that we could lose momentum as we move towards a more radical access to information.
I am disappointed. I am at a loss to understand why the Government have taken this line. But we are where we are. Perhaps I can make some suggestions and press the Government to see whether we can make the best of this bad job. As a member of the Cabinet, will the noble and learned Lord the Lord Chancellor be prepared to write to his Cabinet colleagues, pointing out that we have a code of access and that this Government's policy is to interpret that code as openly and as freely as possible? Perhaps the Government's policy could be emphasised to the group of officials who are studying or monitoring freedom of information and to the parallel ministerial committee.
As I understand the matter, the Government are trying to make progress in an orderly fashion. I understand that early in the new year there is to be a ministerial seminar on how to proceed. Perhaps on that occasion the noble and learned Lord the Lord Chancellor could draw to the attention of Ministers the need to be as open as possible in interpreting the code.
I understand the Government's situation, but I believe that the Government have made a mistake. They have thrown away good will. I return to my two
basic points: it does not make sense in terms of politics and good governance and it does not make sense in terms of practicalities.3.55 p.m.
Lord Lester of Herne Hill: My Lords, it is a great pleasure to follow the powerful speech of the noble Lord, Lord Clark of Windermere. I suppose that his White Paper was the high-water mark of enlightenment by this Government in relation to freedom of information. I do not know how he accomplished it. I am sorry to say that if the present Government were taking key decisions now they would never have dreamed of putting their names to that White Paper any more than they would dream of introducing the Human Rights Act now.
One has to be very fit to campaign for freedom of information. This is probably the longest running Whitehall farce of my lifetime. My memory of this matter goes back to 1974 when I was special adviser to my noble friend Lord Jenkins of Hillhead at the Home Office. The then Labour government—the first Wilson government—had pledged in its manifesto to introduce a measure to put the burden of proof on public authorities to justify the withholding of official information. I suppose they realised that official information is the property of the citizens and not the government. People are entitled to know about the workings of government and in 1974, with an enlightened view of democracy, they wrote that into their manifesto.
My noble friend Lord Jenkins and I went to the United States to look at the freedom of information legislation there in the hope that we might be able to introduce some such legislation in this country. Only four members of the Cabinet were in favour of freedom of information legislation despite what appeared in the manifesto. One was my noble friend Lord Jenkins, another was our present leader, my noble friend Lady Williams of Crosby, and the other two were the noble Lord, Lord Healey, and Mr Wedgwood Benn. The rest of that Cabinet displayed total opposition or complete indifference. So we got nowhere, except for a string of Green Papers, very Green Papers and no papers at all.
Then a Conservative government came into power. I pay tribute to the government of John Major, which made significant progress on the voluntary code of access. I believe that that was a real step forward. Unfortunately it was unenforceable in practice, although it made an important cultural change.
The present Government came into office in 1997. Sitting on our Front Bench, as the noble and learned Lord the Lord Chancellor will remember—he sat only a few feet away from me—I was fulsome in my tributes on the government White Paper. Perhaps we on these Benches were over-fulsome. We praised it extremely highly. Unfortunately, the forces of conservatism took over. I doubt that they came only from the Home Office; I suspect they came also from the Cabinet Office after the noble Lord, Lord Clark, had been removed. The draft Bill that was introduced, and on
which there was a Joint Committee, was like a colander—full of holes. It was wholly unsatisfactory and much attacked.The Government produced the Bill and the three guilty men now sitting on the Liberal Democrat Benches, my noble friends Lord McNally, Lord Goodhart and myself, were induced by the blandishments and pressure of government as we approached the second general election to strike a compromise with the Government. We were under very heavy pressure indeed. Just before the election we were told that if we did not compromise we would lose the Bill. We were told to accept half a loaf rather than no bread. We decided to accept half a loaf. The Campaign for Freedom of Information roundly denounced us for our cowardice. It told us that we should have gone to the wire. Perhaps in retrospect it was right.
However, we made the compromise. I must say to the Lord Chancellor whose misfortune it is to have to reply to the debate and to put as brave a face and as subtle an argument as he can upon this appalling tale that I am becoming a little cynical in my old age. I shall now think much more carefully before I advise my colleagues to enter into compromises on a pragmatic basis with the present Government. Why do I say that? I say it because we have been given assurance after assurance about the speedy implementation of at least the part of the Bill that deals with central government.
My noble friend Lord Goodhart referred to part of the story. I want to supplement that by giving one or two other facts. On 16th March 2001, not very long ago, the noble Lord, Lord Bassam of Brighton, gave a Written Answer to my Question as to whether the Government had revised their timetable for bringing the Act into force. The noble Lord explained that the Act must be implemented across the whole of the public sector by 30th November 2005. He went on to say:
- XHowever, the Government, as part of their commitment to increasing openness, have stated that they intend to implement the Act much earlier than this".—[Official Report, 16/03/01; col. WA 115.]
We are concerned only with the bringing into force of the Act in relation to central government. I put down a number of other Questions asking about the pattern of implementation in other countries. My noble friend Lord Goodhart has referred to the Answers that I obtained. New Zealand took seven months to implement the legislation. Ireland took one year to fully implement it for central government—I emphasise Xfor central government". The provisions were not implemented for all public authorities in the Irish Republic. The same situation applies for New Zealand.
What arguments can the Lord Chancellor properly make as to why what happened in New Zealand, in Ireland and in Canada should not apply in this
country? In the Written Answers that I was given, some arguments were: XWell, these are very small countries; they have fewer people than we do; our Bill is a much wider Bill and will affect many more public authorities". I fully accept that the statute is much wider, that it affects many more public authorities, and that that is a reason for delaying for several years its implementation in respect of the many regional and local authorities. But what we on these Benches cannot accept is that a further delay of more than one year is justifiable for central government.The noble Lord, Lord Lucas, asked what was the Government's real reason for dragging their feet. There was a brilliant article published in the London Review of Books on 10th August 2000 by one of our wisest judges, Sir Stephen Sedley, a member of the Court of Appeal. He was writing about the right to know. Sir Stephen wrote:
- XWe have come some way over the past half-century towards recognising information as more than a discretionary gift from those who hold it. Governments pay constant tribute to its importance, and the present Government is in the throes of legislating to give the public an enforceable right of access to some official information".
- XIt is important to appreciate why Governments are perennially cautious about opening their cupboards and filing cabinets. It is not the product of some Freudian hang-up affecting Permanent Secretaries, nor of mere nervousness or embarrassment on the part of Ministers. It is because the absence of direct access to Government information is a necessary condition of the ability of Ministers to feed their versions of fact through lobby journalists to the public".
- XOh God, they have deceived me".
Finally, and only half jokingly, perhaps I may remind the Lord Chancellor of an illustration of the lack of glasnost or perestroika in the Government. It is about correspondence that he and I had when I sought to obtain the policy studies upon which the Human Rights Bill was based for the purpose of writing a little book. After long and protracted correspondence in which I undertook humiliatingly to accept the Cabinet Secretary's diktat to submit the manuscript in advance, not to publish it for five years and not to see any documents referring to any Minister or his responsibilities. I pointed out that I would have to wait another 30 years and that I was already 64.
The Lord Chancellor's reply was that he had every confidence that I would live to be 94 in order that I could write the book. I replied that I did not know whether he had consulted an actuary but that I did not intend to wait that long in any event. As an individual I cannot go to the Parliamentary Commissioner for Administration for relief because we now know that the Government do not accept rulings by the Parliamentary Commissioner on the code and its access. Therefore, if I go to him and the Parliamentary Commissioner disagrees with the Government they
will or may disregard his decision. So I personally must wait apparently until 2005 even to go to the Information Commissioner in order to ask her to examine the ludicrous posture adopted by the Government towards this non-ministerial and non-collective responsibility piece of official information.That is why I began by saying that we must all keep fit and live a very long time in order to act as watchdogs and bloodhounds in seeking to call the Government to account and in getting the Act implemented sooner rather than much later.
4.7 p.m.
Lord Corbett of Castle Vale: My Lords, I congratulate and thank the noble Lord, Lord Goodhart, for initiating the debate. It is a great pleasure to follow my noble friend Lord Clark of Windermere. He has such a long and distinguished record in the campaign to secure a Freedom of Information Act.
I share the delight of my noble friend Lady Crawley that it is this Government which have finally put a Freedom of Information Act on the statute book. Whatever its shortcomings, it will begin to break down the doors behind which so much of what the citizen is entitled to know has been kept hidden for far too long.
As a nation, we have had this obsession with needless secrecy. I am old enough to remember when we did not name the head of the security services although we named the person who held the personally more risky job of General Officer Commanding in Northern Ireland. If one published what was on the menu at the Ministry of Agriculture, Fisheries and Food one ran the risk of prosecution. One can continue with even more idiotic examples of this obsession with keeping everything secret.
After having personally campaigned for freedom of information for more than 20 years with others—including my noble and learned friend Lord Archer of Sandwell who cannot be here today—and once even tabling a right-to-know Bill in the other place just ahead of the 1987 general election, I think that congratulations are more in order than carping. I also congratulate the director of the campaign for freedom of information, Maurice Frankel. Over the best part of a quarter of a century he has been a persistent and insistent campaigner in the cause.
Of course, the provisions of the Act could have been brought in sooner and its various provisions made operative in a different order. But I do not believe that those complaints should be allowed to mask the important culture change which the passing of this Act involves. It is a huge and very significant step forward in the governance of this country.
In my view it is more important in an age of what I call XBig Brother" and XPop Idol" politics. In such programmes television viewers are invited to watch a programme and then to dial a dedicated phone line and watch as XNasty Nick" is thrown out of the Big Brother House or XHeavyweight Rick" makes it into the final 10 bidding to be a pop star. What is
important about that is that significant numbers of the population, mainly its younger members, go for instant results. They use modern technology, on the basis of the information that they have just received, to press a button and get instant results. That is perhaps a trivial example, but I believe that at a time of increasing disengagement from politics—disengagement not because of apathy, but because increasing numbers of people, especially the young, believe that politics do not matter to them—there are lessons to be learned in the opening up of information which is held on behalf of the citizen.I shall take the absence of speakers on the Conservative Benches opposite in this debate as an apology for not having brought in a Freedom of Information Act in their 18 years of government. It is all right for the noble Earl on the Front Bench to shake his head, but that is the fact of the matter. Whatever arguments there may have been in the Labour Party about freedom of information, for 18 years the party which he supports had the opportunity and the majority in the other place to put such legislation on the statute book, but did not. I am pleased to welcome the noble Lord, Lord Lucas, who has been a supporter of freedom of information for many years.
As I said to your Lordships, previous Conservative governments had 18 years in which to introduce a freedom of information Bill, but did not. Very reluctantly and hesitatingly, they produced a code of practice which is a long way short of what is now needed and encompassed in the Freedom of Information Act.
I confess I have a tad of sympathy with the noble Lord, Lord Goodhart, and his colleagues over individual rights of access which could have been made earlier. I believe that the Government were stretching things when they claimed that implementation of the Act would be completed 11 months ahead of the timetable set in the Act. The fact of the matter is that a timetable was never set in that sense. The date January 2005 to achieve full implementation was never meant to be a timetable. In both Houses Ministers went out of their way to make that clear. In your Lordships' House on 20th April 2000 (Hansard, col. 829.) my noble and learned friend Lord Falconer said that the date January 2005 was a Xfailsafe provision". He added,
- XIt is the Government's intention to bring the legislation into force as quickly as possible".
In a Home Office paper—and few would believe that that department is among the most ardent advocates of freedom of information—to the Advisory Group on Openness in the Public Sector, it promised,
- XThere is a clear intention that the Act will be implemented more quickly than that",
That said, this is a huge change for government departments and for civil servants who have grown up and spent all their working lives in a climate of secrecy.
Of course, that has changed a little over the years, but inherently, those who have information have not felt able, for most days of the week, to share it.I understand the points which the Government make that they will need time and resources to tackle the workload and implement the proposed programme of electronic records management, which is due to come into force by the end of 2004. Perhaps my noble and learned friend the Lord Chancellor will confirm that this new system of electronic records management applies only to newly created records and not to what we are told are the miles and miles of paper records with which Whitehall is littered?
The electronic records management programme applies only of course to government departments and not to any of the other bodies covered by the provisions of this Act. Will my noble and learned friend the Lord Chancellor be kind enough to confirm that all government departments are currently capable of responding to requests under the open government code and that there is no reason why the requirements of the Freedom of Information Act could not be dealt with under these arrangements had a shorter timetable been chosen?
Others will argue that stretching out access to central government information across four years indicates that the Government are not wholly committed to this process. I and your Lordships will know that some Ministers in the present Government were more keen than others on freedom of information on the grounds that access to what could be politically sensitive information around the time of a general election could be embarrassing. If that is the case my answer is: so what? Surely, a government which believe in what they are doing on behalf of the citizen can stand a bit of embarrassment as part of the political process in the course of giving out information to which the citizen is entitled, embarrassing or not.
I know that my noble and learned friend the Lord Chancellor will want to ensure that throughout this timetable there is no loss of momentum in government departments which may have been working to an earlier timetable for implementation. I hope that he can assure your Lordships that the Information Commissioner will have the staff which she needs in place by January 2005 to deal properly with complaints under the new timetable. They are all likely to arrive within a similar period. It will injure the provisions of the Act and its implementation if there is avoidable delay in resolving the complaints.
I conclude by saying that of course speedier implementation would have been welcome and possible. But what matters more is that the public are to gain rights of access for too long denied them. We shall now rightly expect all those working in the 70,000 public bodies affected by this Act, to do their best, and willingly, to make it work as intended and ensure that our citizens are able to get the information to which they are entitled.
4.17 p.m.
Lord Maclennan of Rogart: My Lords, the Government's attitude to freedom of information is well encapsulated by their decision, to which my noble friend Lord Goodhart referred, to refuse access, as recommended by the Commissioner for Information. The refusal of the Foreign Office contrasts very sharply with an earlier decision of a Labour Foreign Secretary, shortly after the office of the ombudsman was established, to agree, despite all his reservations, to implement the recommendation of the ombudsman in respect of the Sachsenhausen case, which was the first to be considered, and with which my noble friend Lord Rodgers of Quarry Bank was closely involved as a junior Minister at the Foreign Office at that time.
The focus of our discussion today is more sharply on the implementation of legislation which was conceived well before the Labour Government took office in 1997. I had very good cause to be aware of and remember the decision of the Labour Party to secure by law the right of access to information held by public authorities. In the early spring of 1997, Mr Robin Cook and I, on behalf of both our parties, announced a joint platform of proposed constitutional reforms on which Labour and Liberal Democrats would campaign and which we would together seek to implement within the lifetime of the next Parliament.
That agreement led to the establishment after the election of a Joint Committee, on which I served under the chairmanship of the Prime Minister, to oversee the implementation of that programme. Some elements of it have caused considerable difficulty and compromises have been required to reach agreement, for example, on the issue of electoral reform; but on the subject of freedom of information there were no pre-election difficulties for either party. Both parties were convinced that although the code introduced by the Conservative government marked a valuable advance, it was insufficient to secure the right of access to information that both parties saw as a necessary ingredient of our common programme to strengthen our democracy.
It is worth recalling the twin arguments that exercised our minds. The first was that information held by public authorities is in effect held in trust for the public. It is not so much government information as public information stored by government for use in the government of the people, for the people and, we believe, by the people. The second consideration was that the quality of decision-making by government would be improved by more widespread dissemination of the information available to decision makers. What Labour spokesmen described as the XWhitehall culture of secrecy" was widely held to be inimical to good government. That judgment was strongly reinforced by the arms-to-Iraq affair, which led to the Scott inquiry, and the BSE epidemic, which has been so devastating to our livestock industry.
I mention this pre-legislative history in part because it is generally less well known than what followed, and in part to remind Ministers of it. It is difficult to explain, as several of your Lordships have said.
Perhaps an earlier apercu of my noble friend Lord Lester of Herne Hill went some way towards explaining the position when he said that power delights and absolute power is absolutely delightful.Others have observed the paradox at the heart of new Labour. I am speaking of the Prime Minister himself. No previous Prime Minster has presided over the implementation of a more considerable programme of constitutional reform than the present one, and none has taken less pride in the achievement. It is remarkable that following the 1997 election the Prime Minister fell publicly silent on the issue of constitutional reform, while others proceeded with its enactment. Not one word of explanation or justification was heard. There was no manifestation of satisfaction and still less of pride in the programme, which may be thought to be the most lasting contribution to the United Kingdom's development in the previous Parliament—the first under the present Prime Minister. It is almost as if his programme, having done its work in lining up the bien pensants behind Labour, was more important than its implementation.
It is worth recording the pre-legislative history of the freedom of information programme as it marks the last period before the Prime Minister himself was significantly influenced by what he called, Xthe Civil Service culture of secrecy". The Bill, which was enacted, fell far short of what was initially proposed in the White Paper and championed by the noble Lord, Lord Clark of Windermere. We shall not know for many years who got at which Ministers.
This House is enriched by the membership of the then Cabinet Secretary, the noble Lord, Lord Butler of Brockwell, who is not present for this debate. I do not doubt that, without betraying any secrets, he could give us something of the flavour of the atmosphere in which he moved at the time and the concerns that led to the emasculation of the Bill, without of course pointing fingers.
We are often advised that the strength of your Lordships' House is drawn from the unrivalled experience of its Members. None of us has experience of the culture of secrecy to match that of the noble Lord, Lord Butler. His historical contribution to our deliberations could be correspondingly of unrivalled value.
Lest it be thought that I am casting blame on the Civil Service for this rather difficult to explain enforced delay of implementation, I should make it abundantly clear that the announcement of the noble and learned Lord the Lord Chancellor on the new timetable took your Lordships by surprise because so many Ministers have on previous occasions given an entirely different account of the Government's intention. Much of that has been alluded to already, so I shall not repeat the quotations, many though there are.
Most telling of all was the letter from which my noble friend Lord Goodhart quoted from the Information Commissioner, Elizabeth France, which was written as recently as 18th October. It refers to the
phased implementation of the Act, mirroring the well-known and expressed preference of the noble and learned Lord the Lord Chancellor, starting with central government on 1st October next year. That mirrors the publicly expressed views of Ministers on the matter.The advice of Elizabeth France was clearly not just casually dropped into the Government's lap, as the noble Baroness, Lady Crawley, implied. It is the deliberation of someone who has been appointed to carry out the obligations of the Act, to oversee its implementation and to consult with all departments. I am a new boy in this House, but I have rarely heard in the House of Commons speeches of such deference to political leadership as that which passed from the lips of the noble Baroness, Lady Crawley, today.
It has come to my notice that the reappointment of Elizabeth France falls due long before the Government's proposed date for allowing access to the information that they hold. I must express the strong hope that in the resignation of Ms Filkin from her office, which oversees standards in another place, we are not witnessing a trailer for the resignation of Elizabeth France, whose advice has been similarly rejected and who has been similarly denied the co-operation of the Government in the implementation of the Freedom of Information Act.
If the buck stops at the Prime Minister's door, we should bear in mind the example of Winston Churchill. In just over four years following his appointment as Prime Minister in May 1940, he managed to achieve victory in Europe. It seems rather less to ask the present Prime Minister to seek to implement the Freedom of Information Act in just under four years. We hope that the noble and learned Lord the Lord Chancellor, whose contribution to the modernisation of our constitution has been outstanding in other spheres, will prevail upon his more timid colleagues to take the plunge and not to stand shivering at the edge of the pool.
4.30 p.m.
Lord Grabiner: My Lords, I am sure that all of your Lordships believe that individual rights of access to information held by central government departments should come into force as soon as is reasonably practicable. I particularly emphasise the point about the practicalities. A number of other noble Lords have made a similar point.
The noble Lord, Lord Goodhart, says that access should be provided in November 2002. It follows that the issue for debate is a narrow one. Is it reasonably practicable to achieve the November 2002 target? That is essentially a question of fact. It does not lend itself naturally to assertion and counter-assertion.
Other noble Lords have given or will spell out the detailed background. In brief, the Freedom of Information Act received Royal Assent on 30th November 2000. It was always appreciated that the Act would be brought into force progressively over a period of years and that it would be fully in force by 30th November 2005.
My noble and learned friend the Lord Chancellor told the Home Affairs Select Committee:
- XThe Act will be fully implemented by January 2005".
My noble and learned friend the Lord Chancellor also explained that the publication scheme provisions would be implemented on,
- Xa rolling programme starting with central government in November 2002".
I do not pretend to have immersed myself in the detail, but I understand that the preparations that are necessary to meet those time limits are complex and that the relevant management structures across government have been put in place. Perhaps my noble and learned friend the Lord Chancellor could say something about those structures when he replies.
The Freedom of Information Act is an example of modern legislation that brings with it the need to ensure that the underlying arrangements for the associated public administration are in good working order and well able to accommodate the demands made by the Act. The other examples that I have in mind are the Human Rights Act 1998 and the Data Protection Acts.
A common feature of all those Acts is that civil servants and administrators have to be educated and trained into a more modern way of thinking. That takes time and expense. For example, it will be necessary to tie in the arrangements with the completion of the Government's electronic records management project. No doubt my noble and learned friend the Lord Chancellor will deal with this point, which has already been raised by at least one other noble Lord. As I understand it, only new records will be created and stored electronically, but the work done to that end will improve the organisation of the existing paper records. In the result there should be a clear audit trail from what will be the old paper records into the new electronic ones.
I am sure that we are all very keen for the legislation to work. We do not want administrative chaos. The experience of the human rights and data protection legislation is that the time that was taken before the Acts came fully into force was time well spent. If my noble and learned friend the Lord Chancellor believes and is advised that time is needed on this occasion, I shall accept that. I do not understand what has happened since the Freedom of Information Act was passed—which was not too long ago—that enables the noble Lord, Lord Goodhart, to contend that the target of November 2005 can safely be replaced by November 2002.
The noble Lord, Lord Goodhart, made the remarkable suggestion—I suspect that it was made only in good humour—that the apparent change of position was the result of the noble and learned Lord the Lord Chancellor having been the victim of a mugging. Over the past 30 years or so, on and off, I have had quite close relations with the noble and learned Lord. The suggestion that anyone would ever have the guts to try to mug him, still less that they would have had the capacity to get away with it, is interesting and, one might say, perhaps laughable. No doubt that was the noble Lord's intention in any event.
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