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Lord Goodhart: My Lords, I am not an expert on the implementation of the Act, but can the noble Lord think of anybody who is likely to be in a better position to judge it than the Information Commissioner, who has made her views clear?
Lord Grabiner: My Lords, the comments of the Information Commissioner are extremely important and should be taken into account, but she is not the only person who contributes to the debate. The views of the Civil Service and of the administration generally should be taken into account. Everybody involved in the exercise has something to say about how long it is going to take. We would all like to see it done tomorrow, but that does not seem possible. I do not understand how the Act ended up with a November 2005 date. What was the reason for that delay? Surely the answer is that it was to accommodate the sort of debate that we are now having.
Lord Lester of Herne Hill: My Lords, the noble Lord has rightly said that whether one can implement the statute within a year for central government is a question of fact. He is concerned, on behalf of the Government, about the need to train staff. I wonder whether the noble Lord is aware that, almost a year after Royal Assent was given to the Freedom of Information Act, in a Written Answer to me about the timetable for training civil servants and Ministers, the noble and learned Lord the Lord Chancellor explained:
- XA seminar for Ministers on the implications of the Freedom of Information Act is being arranged by the Centre for Management and Policy Studies in the Cabinet Office. We expect this to take place in January next year.
- The training of officials is a matter for each department".—[Official Report, 30/10/01; WA149.]
Lord Grabiner: My Lords, the noble Lord will realise that I do not and cannot speak on behalf of the Government. I respectfully suggest that that question is properly directed at my noble and learned friend the Lord Chancellor. I am sure that he can answer that question; if he cannot, the point made by the noble Lord, Lord Lester, will have considerable force.
In conclusion, my final point is in defence of my noble friend Lady Crawley. For what it is worth, I thought that she was unfairly criticised by both the
noble Lord, Lord Lucas, and the noble Lord, Lord Maclennan of Rogart. I found her contribution clear and helpful.4.40 p.m.
Baroness Wilcox: My Lords, I am grateful to the noble Lord, Lord McNally, for allowing me to speak in the gap. I also thank the noble Lord, Lord Goodhart, for initiating this debate.
As chairman of the National Consumer Council in the 1980s and into the early 1990s, I campaigned long and hard for a freedom of information Act. During those long years among many siren voices, I was always mindful of the fact that whatever government were in post, the Treasury would be whispering in the ear of the Chancellor of the Exchequer that such a provision would cost an enormous amount of money to deliver.
Fortunately, the time had come for something to happen—maybe not the best of Bills, but better than nothing. It truly will cost: I have been to America and seen what it costs to deliver a freedom of information Act effectively and efficiently.
The Government have announced that the right of access under the Freedom of Information Act 2000 will not come into force until January 2005. That is an astonishing delay of more than four years from Royal Assent. I hope that the Lord Chancellor will be able to reassure me that it is not Treasury whispering that is causing that delay, when there are so many other calls on the Government's money.
As we have heard, the date of January 2005 represents a major retreat from the original timetable. The noble and learned Lord, Lord Falconer, told Peers that government departments would be covered by the Act,
- Xas soon as the commissioner indicates that she is ready to enforce the legislation".—[Official Report, 20/04/00; col. 829.]
As a consequence of the delay, there will be a substantial loss of momentum, especially from government departments, which have been working towards a summer 2002 start date. As my noble friend Lord Lucas so eloquently described, a Xbig bang" approach removed the opportunity for authorities to learn from the experience of any early implementers. The commissioner's office is likely to be swamped if the right of access comes into force for all authorities on a single day.
I rose to speak in the gap to make my first point about the Treasury and the following point: delay gives a damaging signal about the Government's commitment to the legislation. That is bound to be noticed by officials and will inevitably be reflected in their approach to the Act. My deep concern is that, at
the end of the day, officials here will adopt the European Union's method of making access to information a purposely slow and off-putting process. That has made it a frustrating nonsense and a brick wall of bureaucracy. Surely a British Government can do better than that.4.43 p.m.
Lord McNally: My Lords, the noble Lord, Lord Grabiner, implied that this was a rather narrow debate about timing. That is not so. It is also, as the noble Baroness, Lady Wilcox, has just said, about momentum and commitment. To put it baldly, we are anxious to know from the Lord Chancellor whether the Prime Minister has succumbed to the mandarins' embrace that he so feared when in opposition.
As the noble Lords, Lord Goodhart and Lord Clark of Windermere, made clear in their remarks, the point about freedom of information is that it is fundamental to a modern state and mature democracy. The noble Lord, Lord Clark, put it quite well when he cited the Canadian Information Commissioner. This country raised secrecy to an art form. In all our early debates about freedom of information, the big challenge was seen to be how we removed that culture of secrecy from Whitehall and our other public bodies. We viewed that as a challenge because that culture was an impediment to both good government and effective citizenship.
In fact, there was a kind of pass the parcel. As we heard, it was first under the stewardship of the noble Lord, Lord Clark, when he was in the Cabinet Office. It was then nervously passed to the Home Office. At the time, I said that that was a bit like giving Count Dracula supervision of the blood transfusion service. No matter, it was quickly moved on to the Lord Chancellor's Department and the Lord Chancellor himself.
Like the noble Lord, Lord Grabiner, I do not believe that the Lord Chancellor can be mugged or intimidated. The reason that the Lord Chancellor has got the job is the same reason why, if ever I were found with a gun in my hand, a bleeding body on the floor and a message on the answerphone saying, XIt was McNally what done it", I would send for the Lord Chancellor to defend me. I know that he is a skilled advocate who can defend the indefensible. I suspect that that is why the parcel of freedom of information has ended up in the Lord Chancellor's Department.
As my noble friend Lord Maclennan of Rogart said, my interest in the subject dates back to my membership of the Cook-Maclennan committee. It was and is one the proudest events of my political life to have served on a cross-party committee that set a programme of constitutional reform of which both our parties can be truly proud—although, as my noble friend suggested, the Prime Mininster has cooled on it. Between 1997 and 2001, we passed a series of constitutional reforms that will stand as an historic achievement of this Government.
I am afraid that we sometimes now feel like old friends of a lottery winner. As we stand on the pavement shivering, they sweep past in their big cars,
having forgotten the radicalism of their youth. That is the real worry: that the Government are losing their radical edge and commitment. Reference was made to the deal that we made with the Government just before the general election. As one of those who made that deal, I defend it now more than ever. It is clear that, as we were warned at the time, if we had not taken that deal, we may have lost the Bill altogether because too many people in government would happily have seen it die. Rather than being a squalid deal, it was an achievement to get the Act on the statute book.The problem, as we all know, is that the culture of secrecy is getting worse, not better. As the Government have remained in office, they have been too in love with news management and No. 10 control. My noble friend Lord Maclennan of Rogart referred to the noble Lord, Lord Butler of Brockwell. It is a pity that some mandarins do not participate in the debate. If anyone knows where the bodies are buried, it is them. The noble Lord, Lord Butler of Brockwell, was quoted as saying—I do not think that he has ever denied it—that he would accept freedom of information over his dead body. Presumably, that is why he looks in such robust health today.
The press speculates that the big change in government policy has been a pincer effect by Sir Richard Turnbull and Alastair Campbell. Today we are anxious to discover why momentum has been lost and there has been delay. There were about 18 years when the Tories did nothing. None of us thought in 1997, when we attacked, that 18 years would become 25 years. A response is needed.
The question of training has been raised. I served on the ad hoc Select Committee. One of the most powerful pieces of advice came from the Irish Commissioner. He said that one should implement as early as possible an effective training programme of the civil servants who would implement the Act. Unless that mindset changes—and in the case of this country it has existed for centuries—one will not achieve freedom of information simply by legislating. Perhaps the Lord Chancellor will explain what proper training programme, not a ministerial awayday, is in place. As the noble Lord, Lord Grabiner, rightly said, if no training is in place it is a very serious criticism and expose of the lack of commitment and momentum in making the Freedom of Information Act really work.
It is not only on these Benches that there are doubts. I understand that some 173 MPs have already signed an Early Day Motion on this matter, and technical concerns about the big bang approach and the danger of the commissioner being swamped by the delayed implementation have already been expressed by other noble Lords.
We are worried that when we probe and ask questions no practical reasons are given which fully explain the delay to 2005. It can be explained fully only by the victory of those who see the merits of spin as opposed to truth. I believe that the noble Lord, Lord Corbett, got to the heart of the matter. Why we are so deeply concerned is that the delay in bringing about freedom of information reinforces the cynicism about
our democracy that is all too prevalent and the apathy, or worse, about participating in democracy. It is extremely worrying that more people in the 25 to 35 age group voted in XBig Brother" than the general election. The director of news of the BBC said that, generation to generation, there is a worrying lack of people who watch news. Once it was the under 25s who did not watch news programmes; now it is the under 35s. He worries that that tendency is moving through the generations. Perhaps that is in part a reflection on news management and the cynicism that that produces.There is a real danger that the Government, who have been in office for nearly five years, are beginning to lose their radical cutting edge and displaying all the arrogance of power of which we know. When at this very spot I asked the first Question of the new Parliament about progress on freedom of information the Lord Chancellor told me, with a gentle pat on my head, that Rome was not built in a day. The case that he must answer is that although no one has ever mistaken the Lord Chancellor for Bob the Builder, we are worried that he is Derry the Demolition Man. The most important role that the Lord Chancellor can play tonight in replying to the debate is to recommit the Government in both momentum and philosophy to freedom of information.
If the Lord Chancellor looks around the House he will see some of the great campaigners of freedom of information who have made powerful speeches against the delay which now stretches back 25 years. The noble Lord, Lord Clark, said that when he fought his battles in Cabinet he saw the Lord Chancellor as an ally. Tonight in this House can we look to the noble and learned Lord as an ally?
4.56 p.m.
The Earl of Northesk: My Lords, like other noble Lords, I congratulate and thank the noble Lord, Lord Goodhart, for bringing this matter to our attention today. I admit to some embarrassment that I am a mere layman among the expertise of those of your Lordships who have contributed to this debate and the earlier one. Notwithstanding the august company that I find myself keeping, I shall do my best to maintain the standard and quality of the contributions thus far.
The substantive point that lies at the heart of the Motion moved by the noble Lord, Lord Goodhart, is that there is no good reason why individual rights of access to information from government departments should not come into force at the same time as publication schemes are implemented in November of next year. After all, as the noble Lord explained in such eloquent detail, there had been a firm expectation within Whitehall and more widely that such a timetable would be adhered to.
The noble Lord, Lord Goodhart, has already referred to the observations of the noble and learned Lord, Lord Falconer, at Second Reading, and I shall not weary your Lordships by repeating them. The fact is that on 18th October the Information Commissioner made it clear that she would be ready to enforce the
Act in relation to central government by 1st October 2002. In the circumstances, there is some credibility in the contention of my noble friend Lord Lucas that the delay to January 2005 represents back-sliding.I need not elaborate on the history of the Act. Nonetheless, a little background will help. I recall that a particular feature of our debates on the Bill was the perceived need to change the culture of secrecy by and with which it is alleged Whitehall and Westminster have been cursed. The means by which this would be achieved was to create a presumption in favour of the release of information. Fair enough; I acknowledge the merit of that. But it is worth contemplating how much impact the Act has had on that culture since it received Royal Assent a year ago on 30th November.
The means to assess this can be found in various reports from the Parliamentary Commissioner for Administration. In this context it is much to the credit of the noble Lord, Lord Goodhart, that he asked a Question on the ombudsman's report for the period April to December 2000 on 19th February of this year. That serves as the starting point to judge the prevailing mood, if I may put it that way, into which the Freedom of Information Act was thrust. In that report the ombudsman stated:
- XThe reports show that, while some [government] departments have clear and efficient procedures for the processing of information requests, others fail even to identify the need to deal with such requests under the code [of practice on access to government information]".
- XGiven that the code has now been in existence for nearly seven years, there can be no excuse for this".
I now invite noble Lords to turn to the most recent report from the Parliamentary Ombudsman, referred to by the noble Lords, Lord Goodhart and Lord Lester. The ombudsman states that,
- Xthere is no valid reason under the Code of Practice on Access to Government Information why this information should not be released, and that there is a public interest in making it available".
- Xthis is the first occasion on which a Government department has refused to accept the conclusions of the Ombudsman on a question of disclosure of information under the Code of Practice".
I mentioned that I would return to the longevity of the Code of Practice on Access to Government Information. As the noble Lord, Lord Goodhart, generously conceded, this was a construct of John Major's administration. I am bound to say here that I prefer the fulsome tribute of the noble Lord, Lord Lester, to the gentle criticism of the noble Lord, Lord Corbett; but in passing I would say that I agree with the observations of the noble Lord, Lord Corbett, on disengagement.
Noble Lords will be aware that the terms of the code, albeit not based in statute, were and are more demanding than those of the Act. I make no judgment about that, but rather merely observe, as it were to reinforce the point about the culture of secrecy, that, whatever the strengths and weaknesses of the code, its effectiveness is wholly dependent on the willingness of those to whom it applies to comply with it. Indeed, that was the grand premise on which the Act was based—the code required the force of law to be effective. However, as things stand, the Parliamentary Ombudsman's most recent report offers us neither comfort nor encouragement that the code is being operated in a way which could be described as effective. Worse, there is scope for imagining that it is being actively and deliberately ignored.
There has long been a widespread presumption—here I echo faintly the words of the noble Lords, Lord Maclennan and Lord McNally—that one of the unfortunate consequences of the acquisition of power, of being in government, is that it tends to compromise the good intentions of opposition. One could be forgiven for supposing that the apparently shifting sands of government policy towards freedom of information are a case in point. On 19th February this year, the noble Lord, Lord Bassam, in his capacity as Home Office Minister, waxed lyrical about the Act. He said that,
- Xthe Government's Freedom of Information Act is a profound piece of legislation. I believe that it is as profound as the Human Rights Act. I believe that, over time, it will change the culture of secrecy which many in your Lordships' House sought to defend for far too long. I believe that our Act is effective and robust and provides an important right of access for the people of our country".—[Official Report, 19/2/01; col. 497.]
Throughout the debate noble Lords have speculated on the reasons for delay. I do not pretend to have an answer to that question, but I can contemplate factors that might have contributed. There is persistent currency in the view that the Government are overly obsessed with presentation and spin. The noble Lord, Lord McNally, touched on that. Alastair Campbell may have adopted a lower profile and Peter Mandelson may be languishing on the Back Benches,
but their spirits linger on in the machine. The furore—wholly justified—about Jo Moore's infamous e-mail attests to that. Of course the difficulty with spin is that the message and its substance become less important than how it is delivered and perceived. It is a selective release of information. In other words, it is antipathetic to proper freedom of information. Here the trend towards institutionalisation of ministerial evasion seems to have gathered momentum. Perhaps it was ever thus, but it does seem that it is being taken to new extremes.We have had the Government's intransigence over holding a public inquiry into foot and mouth disease. We have had the sorry debacle over Railtrack and Stephen Byers' curious air of reticence. We have had the Government's coyness about their plans for the Dome. Then, of course, as was revealed in a Written Answer yesterday, there is the Government's tangled web of advocates, advisers, champions, envoys, czars and the like, who occupy the hinterlands of the parliamentary process free of adequate scrutiny. All those are areas where the public interest would be best served by information being made much more freely available.
In its place, however, we have the worst of all worlds. We have the force of law by virtue of the Act. But in more ways than one it is a thing of straw because its full implementation to the benefit of the public, let alone Parliament, is to be delayed until 2005. We have the code of practice, which some would argue is being subjected to serial abuse. Yet the culture of secrecy, battered but unbowed, rules supreme, a discredited notion that nonetheless seems to have infected the mindset of the Government. As a leader in today's Daily Telegraph observes, we find ourselves in a position that,
- Xhardly amounts to the sort of freedom of information and see-through government that were the watchwords of this administration when it came to power".
I have one further thought. At the moment, the greater part of our energies is committed to the scrutiny of the Government's emergency legislation. I could perhaps therefore suggest that it is a blessing to have had this debate to work on as some light relief from the anti-terrorism Bill. Would that it were so. The reality is, as was made so apparent in our debates yesterday, that information figures strongly in that measure in Parts 3 and 11. Is it not extraordinary that, when it comes to information that the Government want from us, they are willing and able to legislate and implement at lightning speed and—again, on the evidence of our debates yesterday—with little or no understanding of the issues involved, yet, when it comes to information that we might wish to glean from the Government, the process slows to an unhurried amble?
5.7 p.m.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, today's debate has been timely. First, let me tell your Lordships a little more of the background.
I chaired the Cabinet Committee appointed after the 1997 general election to consider freedom of information, as I chaired all the other Cabinet
Committees concerned with constitutional reform during the last Parliament. The FOI committee succeeded in producing the White Paper entitled Your Right to Know in December of that year. I pay tribute to my noble friend Lord Clark of Windermere who, at the time as noble Lords will know, had ministerial responsibility in this area. I acknowledge his generous observations of my own role. After that, policy responsibility transferred to the Home Secretary and a draft Bill was the subject of a consultation paper and pre-legislative scrutiny during the summer of 1999. The Act gained Royal Assent on 30th November 2000.The subject area transferred to my department, along with other areas of a constitutional character as a result of the machinery of government changes announced after the general election in June 2001. I am very sorry that the noble Lord, Lord McNally, is in one of his worrying spasms of cynicism as he speculates with all the fervour of a gossip columnist who has a talent for getting it wrong. It is true that freedom of information has been a parcel that has been passed around the departments, but the noble Lord should applaud and marvel at the fact that it has now reached the safe and hospitable haven of the Lord Chancellor's Department. I am surprised that the noble Lord should even think to ask for confirmation that I am not for turning on freedom of information, but, if it will please him, I shall confirm that I am not.
I made my first detailed comments on the implementation of the Act, as has been referred to, in my evidence to the Home Affairs Select Committee on 16th October. The next day, my evidence appeared on the House of Commons website. I was asked how we would approach the implementation of the Act. I said that there were two basic approaches under consideration, and I said in terms that there was much to be said for both approaches. I mentioned the possibility of a stage-by-stage approach, in which publication schemes could be published on particular dates in particular sectors, followed, a period of time later, in each particular area, by the individual right of access coming into force. I then explained how such a programme might incrementally unfold.
I then dealt with the other option. I said:
- XThe other way of looking at it would be to roll out the publication schemes, perhaps across a similar model, but then have a big bang so that the individual's right of access does not come until a single date before November 2005, obviously".
- XI will be quite frank: there is discussion going on around these two alternatives. Both can be argued—I emphasise these words—but what I can say is that one or other, a variant, is going to happen and that we will of course comply with the statutory outer limit of November 2005".
- XIs that not a case for not going for a big bang?".
- XYes. There is a powerful case for not going for a big bang, for doing it gradually, and modulating how you go according to readiness in particular areas. On the other hand, there are in fact arguments the other way as well, but that is the broad outline".
I hope that your Lordships will think that I was very frank with the Select Committee. Not only did I make it clear that the Government were considering two options for implementation, but I set out the details of the two options under consideration and I explained that the choice between the two options was a balanced matter.
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