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Lord Lester of Herne Hill: My Lords, does the Lord Chancellor agree that in making that choice, which is the Government's choice, one should remember the well-known legal maxim that no one should be judge in his own cause? In this case, the judges of their own cause are the Government themselves, with their own convenience involved.
The Lord Chancellor: My Lords, not at all. I was very clear. In fact, I was remarkably forthcoming by the standards of some evidence that one reads to Select Committees of the House of Commons. I said, quite frankly, what were the policy choices and spelt out the arguments on either side.
What are we doing between now and January 2005? Why do we need this time to bring the individual rights of access into force? I published my first annual report on the implementation of the Act to Parliament on 29th November. I reported that two inter-departmental groups have been set up to support the existing Ministerial Committee on Freedom of Information. These groups are chaired by senior officials in my department. The groups will help to broaden ownership of the legislation, emphasise cross-departmental working and act as a forum for sharing best practice.
I also announced in the report the formation of the advisory group on implementation of the Act, which will be jointly chaired by one of my Parliamentary Secretaries, Michael Wills, and the Information Commissioner. This will bring together representatives of all parts of the public sector and independent experts to advise on all aspects of implementing the Act.
The noble Lord, Lord Goodhart, rightly gave a good deal of credit to Parliament for strengthening the Act. But it is a strong Act. Think of the powers that the Information Commissioner has. She can substitute her judgment for that of the public authority on an issue of disclosure, subject to appeal to the Information Tribunal; she can require information from any public authority to enable her to come to a decision on an issue of disclosure; she can apply to a circuit judge for a warrant to enter premises for the purposes of search; to issue an enforcement notice if she believes that any public body is not fulfilling its duties under the Act—with all these powers reinforced by the contempt powers of the High Court. She has the remarkable power to approve and decide on the adequacy of each and every publication scheme.
The noble Lord, Lord Goodhart, asked why the Government did not accept the Information Commissioner's advice on implementation. Let me
say, first, that I asked for the advice—she did not take the initiative—because I wanted to know her views. We certainly took her advice into account. The noble Lord, Lord Maclennan, essentially asked why we did not act on it. The noble Lord, Lord Grabiner, gave the answer: the Government had to take account of the views of all departments of state which have to deliver the rights under the Act. The Information Commissioner oversees the Act, but it is the 70,000 bodies covered by the Act which have to deliver. She has made it plain—she is, of course, right—that the decisions on implementation are for the Government.The noble Lord next asked—and again the noble Lord, Lord Grabiner, gave the answer—whether I was collectively mugged by my colleagues. Perish the thought. A collective decision was taken, which, as I predicted to HASC, was a decision between two broad options, and was very much on balance.
I have already dealt with the strength of the Act. I am grateful to the noble Lord, Lord Lucas, for acknowledging the strength of the Act.
Lord Maclennan of Rogart: My Lords, if the matter was, as the Lord Chancellor said, decided very much on balance, does that not fortify the view that it was extraordinary that the advice proffered by the Information Commissioner did not prevail?
The Lord Chancellor: My Lords, I do not agree. Of course close attention is paid to her advice, but she does not deliver the Act. She has a very important function in overseeing and ensuring its delivery, but its delivery is by others.
Critical for the successful implementation of the Act is the Office of the Information Commissioner, which was created on 30th January and subsumes within it the post of Data Protection Commissioner. Let us get down to brass tacks. The staff in her office—currently about 150—associated with data protection will, over time, have to double to manage the Freedom of Information Act. The commissioner must be in a position to approve the publication schemes of around 70,000 public authorities covered by the Act. Detailed guidance and model schemes will need to be prepared, as will guidance on other areas of the Act. Recruitment of the right people in these numbers, with experience of how the public sector operates and with investigative skills, will take time.
My officials are currently working on a review of more than 300 statutory bars to the disclosure of information. Our aim is to repeal or amend a good many of them using the order-making powers set out in Section 75 of the Act. Many of these statutory bars are necessary to fulfil a European Commission directive or some other international obligation, so it will not be necessary to repeal all of them. However, a number have been identified as candidates for repeal or amendment and I expect to make an interim report on the progress of the review in April.
Another initiative which is currently under way, and to which I refer in my report to Parliament, is the pilot publication schemes. The Information Commissioner
is liaising with the Medicines Control Agency, the Department for International Development, the Public Record office, the Ministry of Defence and the Health and Safety Executive to set up and run pilot publication schemes. All five schemes should be available by the end of this year and evaluation of these pilots will help to determine the shape of publication schemes for the first wave of authorities—mainly central government—which will have to apply such schemes from November next year.I draw a parallel with the implementation of the Human Rights Act. We took two years to implement that Act—for which we were, inevitably, criticised. The noble Lord, Lord Lester, was, understandably, conspicuously impatient for much earlier implementation of an Act which had been a gleam in his eye over many decades. But that time was used for intensive preparation across Whitehall and with training of the judiciary extending to the 30,500 lay magistrates. The opponents of the Act predicted absurd decisions and chaos in the courts. The implementation of the Act, as I know the noble Lord will agree, has been a triumph and the prophets of doom have been comprehensively routed.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for giving way. I am glad to agree with him that people like myself who pressed for early implementation were shown to have been somewhat over-hasty and that the two-year period was well spent. But will the noble and learned Lord tell the House why, in contradistinction to what has happened in relation to the Human Rights Act, there has been no effective progress in a training programme during the first year since Royal Assent; why there is no training programme for civil servants now before the House; and why, dealing with central government, we cannot do what has been done, for example, in Canada, Ireland and New Zealand for central government—namely, implement the arrangements another year from now or, at worst, another 18 months? So far, the noble and learned Lord has given no facts—to return to the question raised by the noble Lord, Lord Grabiner—as to why we cannot do what other democracies have done.
The Lord Chancellor: My Lords, I rather thought that that was a short speech dressed up as a series of questions. I am trying to persuade the noble Lord, by reason, not to be over-hasty and over-impatient in relation to the Freedom of Information Act in just the same way as he has been good enough to acknowledge he was in relation to the implementation of the Human Rights Act.
The noble Lord asks about training. A great deal of awareness training has taken place during the past year. My officials undertake regular presentations to a wide range of organisations. Ministers have also addressed conferences. A specific seminar for Ministers has been organised to coincide with the announcement of the implementation timetable. I do not dispute that what is required is a campaign of
training and awareness training to win the hearts and minds of the people who have to deliver this legislation in the spirit in which its makers intended.I agree with the comments by the Irish Information Commissioner, which have been quoted, that training is essential. A programme will begin with the ministerial seminar in January and a minimum of two awareness seminars a week until the end of April, led by the Parliamentary Secretary in my department, Mr Wills. They will be followed up with a further programme in the autumn. We have also produced a blueprint for detailed operational training for departments to use to assist in a battle to win the hearts and minds of those in the Civil Service. I remind noble Lords that freedom of information has not been in this safe haven for very long.
The noble Lord, Lord Lester, makes comparisons with other countries. But we must make sure that we compare like with like; otherwise, comparisons are not valid. Some countries did implement their Acts more quickly. The Australian Act came into force nine months after it was passed, but it was not fully retrospective, and it applied only to federal government. Likewise, Canada's Act came into force one year after it was passed, but it was not fully retrospective either and it applied only to federal government. Ireland's Act, which is not retrospective except for personal files, does not, five years after it was passed, apply to nearly as wide a range of public authorities as our own Act will cover. A better comparison would be the Data Protection Act 1984, which created a right of subject access to personal data held on computer, and therefore readily accessible, but the subject access provisions did not come into effect until 1987.
We must take great care with the implementation of freedom of information legislation. It applies to all written requests for information. So all staff in public authorities who will deal with such correspondence must be trained. The Act covers some 70,000 bodies. It applies not just prospectively to future paper, but retrospectively to all paper.
I have told your Lordships about training. Beyond that, my officials are working on the code of practice under Section 45, which will provide guidance on the practice that all public authorities should follow when dealing with requests for information. Officials in the Public Record Office, for which I am also responsible, are drafting a code of practice relating to records management which all public authorities should follow. Both codes will be discussed at the first meeting on 9th January of the advisory group on the implementation of the Act and will then be submitted to the Information Commissioner for formal consultation under the Act. The latest drafts of the code are available on the departmental website and the Public Record Office website. I shall place copies of the versions sent for statutory consultation in the Library in due course.
Noble Lords should appreciate that the fact that the Act applies not merely to future paper but to all past paper creates an enormous challenge for the record-keeping arrangements of central government and of
the other authorities—especially as we have also introduced a challenging time limit of 20 working days within which a response must be given.It has not escaped your Lordships' notice—certainly not that of the noble Lord, Lord Lucas—that the individual right of access will come into force in January 2005, immediately after the target for completion of the Government's electronic records management at the end of 2004. This project will ensure that, by that date, all government records can be created and stored electronically. The work on this project and that of preparing records management for the advent of freedom of information are closely related. Aligning the timetable avoids wasteful duplication of effort.
I do not accept the pessimism of the noble Lord, Lord Lucas, that we shall not meet our 2004 target. There is the strongest determination across government to do so, and I stick out my neck and predict that we shall.
A very important factor was the achievement of the ERM target by the end of 2004. We need to have a clear pathway from paper records to the new electronic ones. We need to have good and accurate paper records which will be the base from which electronic records go forward. Departments are now, as part of their preparation for ERM, auditing and putting into good order existing records so that the electronic records can be developed from them. The noble Lord, Lord Grabiner, correctly summarised the position.
Implementation of the individual access rights in January 2005 gives all public authorities the time to make the necessary changes in procedure and culture. I submit that we have the balance right—beating our statutory requirement of implementing the Act in November 2005 by 11 months, and doing so efficiently and after full preparation.
As I have acknowledged, we did consider whether it would be right to bring the right of access in for some authorities ahead of the January 2005 date. Some might be ready earlier, it could be argued. But, on balance, we collectively concluded that it would create an unsatisfactory state of affairs where rights existed in relation to one organisation and not another, even where both were in the same or similar parts of the public sector. Our collective judgment was that a single right of access day across all public authorities would be better understood by the public. It would give a single day to all authorities by which they would know they had to be ready; and meanwhile sector by sector delivery of publication schemes would promote the new culture.
The noble Lord, Lord Clark, asked me about the standing of the existing code. It remains in place. Although we do not believe that the code of itself is an adequate answer to freedom of information, which is why we brought forward the legislation, we shall continue to promote the use of and compliance with the code until the individual rights of access come on stream in January 2005. But when the Act is fully in force, it will generate many more requests
than the code. I am more than happy to undertake to draw that assurance to the attention of my Cabinet colleagues.I listened with the utmost interest to the account of the noble Lord, Lord Lester, of his failure to achieve freedom of information legislation in 1974. What the noble Lord failed to say is that where there was failure in 1974 we have succeeded in getting freedom of information legislation on to the statute book. He referred to his repentance of the compromise to which he asserts he and his Liberal Democrat colleagues were party so as to ensure that the Bill did not fail before the general election. In the world of grown-up politics, compromise is an essential component in the art of the possible. How regrettable it would be if he and his colleagues were ever to exclude compromise from their politics when—I think that I agree with the noble Lord, Lord McNally, on this matter—it is often part of fighting the good fight.
Let me reject any suggestion that the Government have lost their commitment to freedom of information. We have followed a radical agenda of constitutional change: delivering devolution to Scotland and Wales, a Human Rights Act, and have begun an historic process of reform of this House by removing almost nine-tenths of the hereditary Peers. Freedom of information is another historic change. I assure noble Lords that we press on.
5.34 p.m.
Lord Goodhart: My Lords, I am most grateful to all noble Lords who took part in this short debate. I express my particular gratitude to the two speakers on the government Benches who dared to be somewhat critical of their Government, relatively mildly in the case of the noble Lord, Lord Corbett, but somewhat more severely in the case of the noble Lord, Lord Clark.
The noble Lord, Lord Grabiner, had almost persuaded me of my need to apologise to the noble and learned Lord the Lord Chancellor for suggesting that he could ever be one of the mugged rather than the mugger. Nevertheless, as we listened to his speech with its reference to collective decisions being taken and decisions being very much on balance, I was left with the impression that whatever the voting was, the noble and learned Lord the Lord Chancellor had been on the losing side and had been defeated by the combined forces of departmental Ministers and the armies raised by Sir Humphrey Appleby.
Whether or not I am wrong in that conclusion, I continue to believe that the Government have got it wrong and that this delay is both unnecessary and something which casts doubt on the Government's commitment to freedom of information, not, I should say, on the noble and learned Lord's commitment which I entirely accept.
We shall keep an eye on the matter and we shall in due course bring it back for a further debate to make sure that the Government are continually under
pressure to implement the Freedom of Information Act as fast as they possibly can. Having said that, I beg leave to withdraw the Motion.
Motion for Papers, by leave, withdrawn.
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