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Lord Falconer of Thoroton: My Lords, will the noble Lord give way? The issue of whether information would be prejudicial to the economy of the country would be a matter on which the information commissioner would have the last word, without any executive override. I am sure that the noble Lord would agree with that.
Lord Norton of Louth: My Lords, I would; however, I still believe that there needs to be a stricter test in terms of more than simple prejudice. It is not so much a matter of who is defining it but of the test that is being applied to it. One can see that with other clauses as well if one approaches the matter simply in terms of prejudice. Indeed, Clause 34 is even more sweeping in its content, as the noble Lord, Lord Tomlinson, has said. I should be interested to hear from the Minister precisely what is the justification for Clause 34(1)(c).
In replying, will the Minister also confirm that other leading countries, such as the United States, Ireland, Australia, Canada and New Zealand, have laws stipulating a "real harm" test. Incidentally, I noted that in his highly selective reference to freedom of
Lord Norton of Louth: Yes, my Lords, it does. I am grateful to the noble and learned Lord. That point has been mentioned by other speakers and I am happy to concede it. My point was that the noble and learned Lord made no reference at all to New Zealand. There are other provisions which are relevant in the context of this discussion; the Minister was selectively taking from other countries occasional points to support his case but he did not look at others which conflicted with the provisions of the Bill. The information that I have about New Zealand suggests that one should be looking at it in slightly more rigorous form than has been the case today.
The fourth failing is in respect of the number of exemptions. I have already touched on those that are subject to the test of prejudice. In addition, and more controversial, are the class exemptions. Again, as we have heard, the White Paper did not propose class exemptions. Information is exempt even if its release would not cause any harm at all. As the Minister has stated, in order to obtain such information an applicant would have to show that its release would be in the public interest. The onus is on the applicant, not on the public authority.
The protection of information goes beyond what even some of the bodies concerned regard as reasonable. The Bill is, by comparative standards, excessive in the protection that it accords to information. It is excessive not only in relation to the freedom of information laws in other countries but in relation to the code of practice on access to government information that it supersedes. My noble friend Lord Hunt of Wirral has already put questions to the Minister on this matter and I do not repeat them. However, given the range of exemptions already on offer, how does the noble and learned Lord justify Clause 43? After all, one must ask what is left given the range of exemptions in the Bill. Following on from what a number of noble Lords have said, can the Minister identify a single Back-Bench Member of the other place who spoke in support of class exemptions when they were discussed at Report stage?
This is a substantial Bill which I fear the Government may get wrong. If we are to have a freedom of information Bill, why not stick to the proposals in the White Paper rather than adopt the prejudices of certain Members of the Government? I have put a number of questions to the Minister. I trust that the answers that I seek do not fall into an exempted category, because the House is entitled to full answers.
Lord Dubs: My Lords, I am pleased that we are taking some further steps away from a culture of secrecy to more openness in government. Despite the criticisms which have been made of the Bill, I believe that it is another step on the path to openness. My noble and learned friend Lord Archer of Sandwell very much regrets being unable to be here today, but I am sure that he will play an active part in the further stages of this Bill. My noble and learned friend has been committed to this cause for a long time and no doubt will want to be vocal in advocating it as we proceed to the Committee stage.
I have been swamped with information about the Bill, so much so that it is virtually unmanageable. In addition, I find the Bill very complicated and hard to follow, but perhaps that is because I am not a lawyer. I believe that, by and large, the Government are committed to openness despite the criticisms that have been made. But this Bill is not solely about freedom of information as it would be practised by this Government. We might at some future point have a government which was not committed to the cause of openness. Therefore, it is right that we should look at the Bill carefully to see whether it would protect our rights under any government, not just one that is sympathetic to openness.
My noble and learned friend indicated in opening that the Government were open-minded about some of the detailed proposals. He suggested that the Government would themselves table amendments at Committee stage to deal with some of the points raised in another place and today. But my noble and learned friend also indicated that the Government were open to persuasion. I speak as someone who welcomes the Bill but seeks to give the Government a gentle nudge here and there. I trust that the Minister appreciates the positive spirit in which some of us on the Government Benches approach this Bill.
In this morning's newspapers reference is made to the release of certain MI5 files which reveal that Hitler had personally ordered the execution of 50 allied prisoners of war, mainly British, who had escaped and been recaptured. This information comes to light more than 50 years after the event. I cannot for the life of me see what purpose has been served under our public records legislation by keeping such information secret for over 50 years. Perhaps the Minister can give an indication as to whether under this Bill the position will be more relaxed. I interpret Clause 61 as saying that in future such information may be available after 30, not 50, years. I give this example only to point out that there are times when, for reasons not revealed to us, information which could not possibly cause any damage or harm to government or anybody else is kept secret for far too long. I very much hope that the Bill will prevent the kind of secrecy of which I have given an example.
I recall that during my time as a Minister in Northern Ireland there were one or two leaks of such documents that were very damaging, because they were used by the opponents of the peace process to undermine it. I was also in my department the victim of one such leak, which the Democratic Unionist Party used to try to embarrass the government, although it was simply a letter that I wrote to a fellow Minister about particular aspects of financing housing. They were sensitive housing matters, because they concerned how we dealt with police officers who had been intimidated out of their homes at the time of Drumcree. The matter took a week to be resolved. In the meantime, the DUP stepped in and tried to embarrass the Government. Clearly, such things should not become public.
There is a distinction between making public policy advice and policy documents which can harm the work of government and the bulk of documents that I saw as a Minister which do not harm government. I followed the discussion about the distinction between facts and policy. It would require civil servants to write different sorts of documents or to separate the facts from policy. In my experience of the submissions I received from civil servants about policy, facts and argument were intertwined. They would have to write the documents differently in order to separate them. What we do not want is an outcome which means that civil servants have to doctor their documents or write them less persuasively for Ministers simply to meet the requirements of legislation like this. Worse still, as the noble Lord, Lord Armstrong of Ilminster, mentioned, one might get verbal rather than written briefings, and that would not be desirable.
However, the noble Lord also referred to the statement of the noble Lord, Lord Butler of Brockwell, to our Select Committee that the Civil Service could manage without loss of helpfulness in its documents to separate facts from opinion. I am not sure about that. It is certainly one view.
Another approach might be to apply the test of harm, or substantial harm. That might be an easier path down which to go, because so many ministerial documents are quite innocuous. Some time ago I was approached by some reporters from the Guardian, who said with glee that they were getting from the Irish Government under that government's freedom of information provisions certain documents about meetings I had had with Irish Ministers. That sounded ominous, but it was not at all. It concerned a meeting I had had with an Irish Minister to publicise a joint approach to improving road safety in Northern Ireland and the Republic. After the meeting I had gone on television and announced what the meeting was about as fully as I could, so there was not much that was sensitive in that document. But the freedom of information provisions in Dublin led to the production of a document for the Irish Minister saying "Items which may be raised by Lord Dubs in
I should have liked to see some relaxation in the Bill's approach to government documents and advice to Ministers. I have said that some are very sensitive and should under no circumstances be made public, but others are not. Of course, we do not want them to cause damage to the work of government. Reference has been made to the United States freedom of information provisions. I have here a letter written by my right honourable friend the Deputy Prime Minister to the US Secretary of Transportation concerning aviation policy. The Americans produced the document. I do not suppose we would go that far. I should like to quote briefly from the letter, as follows:
I understand that under the Bill's provisions government policy advice would be kept for 30 years. I have argued that perhaps a different test might release some of the information earlier. I believe that 30 years is a rather long time. After all, in Britain we have the publication of minutes of meetings between the Chancellor and the Governor of the Bank of England, and of the Bank's Monetary Policy Committee. Those are highly sensitive issues and yet they are published. In my experience as a Minister, almost invariably the "line to take" document for meetings with outsiders was one which I could have handed to them at the beginning of the meeting.
I welcome the New Zealand practice of publishing advice to incoming governments. I believe that we call them first day briefs. We could do that fairly easily in this country. My experience of first day briefs--apart from the fact that they are voluminous--is that they present good background information but nothing sensitive.
Finally, I refer to the protection of consumers under commercial confidentiality and provisions about investigations. I do not think that the Bill has got it right. We need to do more to ensure that consumers are given information about their own health and safety. I fear that the provisions of the Bill as drafted would deny us information which should be in the public domain. After all, information belongs not to the Government but to ordinary people. In their capacity as consumers, people should have the right to some of that information and I hope that we can amend the Bill accordingly.
Baroness Hanham: My Lords, we have concentrated today mainly on the governmental aspect of the Bill, but it is also notable that it is destined to encompass local authorities. I speak today as a member of one of those local authorities.
For years there has been steady pressure on local authorities to be open and transparent in the conduct of their business, their openness of meetings, availability of material and their dealings with the public. Some local authorities have been compliant with that and others, it has to be acknowledged--not my local authority--have been somewhat non-compliant.
However, the expectations and the legislation have been there. For example, information held on any individual client has been available to that client under the Data Protection Act 1984. That Act introduced a statutory right of access to files and records. These rights were extended by the Access to Personal Files Act 1987 and by the further Data Protection Act 1998.
On access to details behind policy and background information, the Local Government (Access to Information) Act 1985 provided that that information has to be given on request. It was, therefore, within local government that the initial requirements for freedom of information were directed. It is somewhat ironic that the enactments brought under various Conservative governments are only now being brought to bear on other public bodies.
There is a further irony in that the Home Office is bringing forward this legislation while the Department of the Environment, Transport and the Regions is undermining it in two recent pieces of legislation. Your Lordships will recall that in the Local Government Bill, which is still being considered in the other place, new executive structures will be permitted to consist of members of just one party and that their decisions will be able to be made in private. There will be fruitful ground here for those seeking access to the rationale behind those decisions to seek remedy from the commissioner.
However, I turn to the role of the commissioner in the local government context and ask for an explanation of the process which would enable those who feel aggrieved to take matters straight to her. At present in local government, those seeking information which has so far been denied them have recourse to the chief executive of the local authority; the director of legal services and/or the monitoring officer, if not the same person; their local councillor and the ombudsman. In that context, what aspect or role will the ombudsman play in future because at present the ombudsman has the right to insist on information being provided? Will there be a direct relationship between local government ombudsmen and the commissioner? As has already been stated, the applicant will have rights to go to court.
Is it the intention that these routes and roles should be abolished and that recourse should be only to the commissioner, or is there to be a right of arbitration from, say, a scrutiny committee, with potentially a ministerial veto in local government provided, for example, by local councillors? How will we prevent the commissioner having "fishing expeditions" put on her through information given and then having to find out a great deal about it from local authorities?
As regards decisions made within the new local authority executive structures, will they be capable of implementation if access to information behind those decisions is being challenged? For how long will they be held up if they are challenged by reference to the commissioner? Indeed, will there be any reason for the matters to go forward while the challenge is taking place?
As regards the costs of the commission, the Bill allows local authorities to make charges for providing information, but the expectation is that all other costs will be absorbed. In opening, the Minister said that there will be no costs for application to the commissioner, but will there be costs to those who provide information? Will there be an expectation that those will be absorbed within the council tax?
Even in terms of local government, a distinction is to be made between advice that is given to the ruling party and the information behind that guidance. It is my experience that practically always the background papers and reasons can be made public--and they should be--but that sometimes, as the noble Lord, Lord Armstrong, said earlier, advice should be given in private. That is an aspect of the Bill which will have to be clarified as we go through it if we are not to finish up with people in very considerable confusion in future.
This is not a new idea. We in the civil service prepared for it many years ago, incidentally, with the backing of the First Division Association, our trade union. But the government of the day did not eventually bring forward a law of that kind, although, if I may respectfully say so, I readily acknowledge that the heart of the noble Lord, Lord Hunt of Wirral, seemed to be in the right place. It is welcome to see a reference in law at last.
The idea of a public right to the factual information which informs the decisions of public authorities is not, I suggest, given proper weight in the Bill. I hope that improvements can be made in that and in other areas. The Bill provides that the only time a member of the public could have access to factual information related to the formulation and development of policy, would be if the authority which owned it chose to disclose it, although it must have regard to the public interest in disclosure. That does not constitute a real right to the factual basis of political decisions.
I do not see how anyone who has seen the processes of government can object to keeping back the policy discussions. That and the justifications of other exemptions have already been described in the debate.
It will not surprise your Lordships that I do not share all the strictures against civil servants that I have heard today. We took the view that the public should be in a position to understand judgments and decisions about the nature of risk from, or the costs and benefits of, for instance, nuclear or industrial chemical activities, and that it needed to be informed in order to provide that degree of consent on which democratic governments must rely in resolving conflicts of interest, as my noble friend Lady Hilton of Eggardon has said. Ignorance was often a condition of scaremongering--harmful to industry and safety alike. That may be why the CBI also supports a right to the release of factual information.
Therefore, I hope that my noble and learned friend the Minister can refine the text of the Bill to enable a clearer right to the evidence on which decisions are taken. At bottom, the arguments seem simple. Money is spent in people's names; decisions are taken on their behalf; and risks are taken with their interests. Do they not have a right to know the factual basis of decisions? I look forward to hearing how the Bill can accommodate that straightforward entitlement.
Lord Lucas: My Lords, as the Prime Minister said, a freedom of information Act is intended to mark a change in the contract between government and the governed; to institute a culture shift in public authorities towards the provision of information to the public. Therefore, the first question that we must ask of this Bill is: does it achieve that? Is this a true freedom of information Bill?
As the Bill comes before us today, it is not. It has a structure with an enormous number of exemptions from the basic right to information. I believe that that is liveable with. I listened to many of the arguments in the course of our examination of the draft Bill, and I can see that we could live with a structure like that. In certain circumstances, it allows for the information commissioner to be overruled by politicians. I believe that we can live with that, provided that it is done in a way which makes it difficult for the politicians to act in such a way because it will be unusual and out in public. In most cases, it provides for public interest to be taken into account. I hope that there may be opportunities to widen the cases which are taken into account under Clause 13. That is crucial.
However, the whole essence of the Bill is killed by Clauses 52 and 34. They prevent the information commissioner from taking a role in decisions under Clause 13. They mean that a whole range of minor officials and functionaries of one-party-state local governments have the right to say, "No, the balance of public interest is against its release", and the
The way in which the Bill is now written means that it is not a freedom of information Bill; it does not fulfil the Government's promise in their manifesto, and I believe that we are entitled to treat it with great roughness. Therefore, I await with considerable interest the Government's proposed amendments to Clause 52. I understand what they are doing at government level to make that a collective Cabinet decision. That would satisfy me if it could be written into the Bill in that way. But what will happen to all those lesser functionaries who occupy two-thirds of the clauses? There are all those little bits and pieces which are done in local government and the ability to delegate that power to issue certificates to all and sundry down the chain. That seems to me to be extremely dangerous. If the Government recognise that decisions under Clause 52 must be taken in the full glare of publicity so that they are taken rarely and only when they are really justified, we cannot have that proliferation of people who are allowed to issue those certificates under Clause 52.
Similarly, as regards Clause 34, there must be similar restrictions on the people who are allowed to create exemptions. It is such a widely drawn clause that it can be used to apply to almost anything that public authorities do. There must be a considerable limitation on those who are allowed to do that. If it is so widely drawn, as it is in the Bill at present, it becomes extremely difficult to hold anybody to account because the resources and mechanisms for doing that just do not exist.
But I am encouraged by what the Minister said. I hope that he will produce his amendments in time for us to produce amendments to his amendments. That will be essential if we are not to ask for re-committal, and I am sure that the noble and learned Lord will not wish to take up time in that way. I hope to see his amendments at least a couple of days before--and my noble friend would like to see them before that. I know the pressure that we found ourselves under in those circumstances, but I shall certainly want to be able to table amendments to the government amendments on Clause 52.
Many noble Lords have raised great issues of principle in their speeches. I hope that they will follow that through and that they will table their own amendments for the Committee stage. It is no good relying on an over-worked Front Bench and the odd inspiration from Back-Benchers to produce a proper set of amendments on a Bill such as this. We must all pursue our own individual inspirations so that the Government may have the benefit of as many ideas as possible as regards how the Bill might be improved.
Secondly, there is the problem of Crown copyright. A lot of information is "produced" to the public but remains under Crown copyright. I believe that it must be for a person who obtains information under the Bill to publish it on the Internet so that is made available to other people through the medium which is now commonly used to disseminate that information. This Bill must recognise that that is the way that things should be done. We must make the necessary provisions and changes for regulations and fees, if that is what it takes, so that we can use a modern means for communicating the information which we get under the Bill.
I have had a little difficulty which may illustrate the problem. I have been trying to obtain permission to publish on my website the list of schools which Ofsted published in 1998 as being worthy of special attention. Ofsted claims that it does not have that document in electronic form; it is not available over the Internet; and under Crown copyright it has, as yet, two months after the request, failed to give me permission to publish it, even though that list was issued to newspapers and has been widely reproduced in them. We should not allow that sort of practice to continue under this Bill.
Secondly, I wish to examine in considerable depth the question of there being no compulsion to confirm or deny the existence of information. As the Bill is currently drafted, if there is information of the type that does not have to be confirmed or denied, then the authority must say that there is information of this type. If there is not information of this type, then it does not have to say that there is information of this type. In other words, the Bill is so set that the ability not to confirm or deny that information exists is actually negated by the fact that the public authority has always to state that there is information that it is not confirming or denying exists. When there is not such information, it does not make that clear.
It is difficult to see how that will work in practice; whether the Government actually mean that in any case where there could be such information there would have to be a statement to the effect, "By the way, there might be information that we're not telling you, but we don't have to tell you", in which case, everyone will have to go to the information commissioner and ask, "Is there such information?"; or whether they have put themselves in a position where the whole system is unnecessary because it is only when there is information that they are hiding that they have to say that there is information that they may be hiding, by which it becomes clear that they are hiding information.
I am confused as to how that process will work and I am uncertain as to why it should appear in so many clauses. It seems that it has just been stuck in there as a bit of sticking plaster in case there might possibly be information of that kind. I shall look to Committee stage to examine individually the occasions where that provision appears and to seek from the Government examples and justification as to why that should be so.
I share also the concern of many noble Lords on the question of confidentiality, which appears in several guises in several clauses. It seems essential that public authorities should be under a duty at least to ask whomever it is who holds that confidentiality in his gift whether he is prepared for the public authority to disclose that information. Again, perhaps I may draw on a recent example. I asked in this House what was the genetic make-up of a particular patient who appears to have NV CJD. I was told by the Minister that that could not be revealed because of patient confidentiality.
I have talked to the person who is guardian of that confidentiality, who has told me the answer. The fact that the Government refuse to talk to that person and refuse therefore to obtain permission for themselves so that they cannot publicly state the information means that we cannot have the debate on the crucial consequences of the answer. The answer reveals something which should lead to public debate and should be open to us to pursue in detail. I quite understand that confidentiality must be respected in many cases, but to be able to rely on it by refusing to ask permission to break it is quite extraordinary. That is something which again we must not allow to continue.
We must also be careful to ensure that in those circumstances where partial information would be enough, that partial information is provided. If there is some information in the answer to a question which should remain secret, the Government should make efforts to anonymise the information or to render it in other ways publishable. I have seen that done many times; for example, with exam information, where clearly one does not want to distribute the names of individual pupils in schools as to how well they have done. That is private information, but distributing examination information about schools should be something which can be done publicly. Under the Bill as it stands, there is no obligation to disclose the partial information because disclosing the full information would clearly be in breach of the Data Protection Act.
We must seek to remedy that. Indeed, we should go further and place a general duty on public authorities to assist those who seek information and to do their best to help such people obtain what information can sensibly be obtained, rather than just duplicating the game we play with Written Questions at present whereby officials try to not-quite-answer the Question asked and not quite to provide the information one would have asked for if one had asked the Question in a slightly different way. An attitude of helpfulness, having experienced many years of the other attitude from both sides, would be enormously appreciated by
Many times I have stated my support for a purpose clause and this Bill would support such a clause. It would inform all decisions taken under the Bill. The clause would not need to be complicated, but it could be a simple statement of what the Bill is about. For those many hundreds of thousands of people who, as part of their working lives, will have to take decisions under this Bill, life would be made easier if there were a clause at the front of the Bill stating what it is about. If that were so, they would not have to rely on their own interpretations of the rather obscure meaning of the difficult wording in many parts of the Bill.
Lord Cocks of Hartcliffe: My Lords, I believe that it is rather unfair to criticise the Government for tabling a Second Reading today. For starters, one can imagine the reception that whipped business would have. As regards legislation, there is a strict code of practice about the time given between various stages of a Bill and the way in which business has to be dealt with. I would write off that criticism as an Oxford Union debating point.
From time to time, when I was Opposition Chief Whip, I must confess that I did suppress information because sometimes one of my Front Bench speakers would rush to me with a leak that I would not allow them to use. I would say, "You think that you are going to be in Opposition permanently, but apart from the ethical side of it, you are not going to do it".
I do not pretend any great morality or standards, because the Conservative Chief Whips treated me in the same way. From time to time they would hand me a piece of paper, often without comment, or they might say something like, "This was left in a photocopier", when in fact they had snaffled it from one of their Members who was about to exploit it and get it back to me. A number of things were done rather differently in those days.
Listening to my noble friends on the Front Bench, I feel some sympathy for them. Perhaps we should be searching for a new procedural phrase such as, "I beg to move the Second Reading and give notice of substantial amendments to follow". We seem to be getting into that habit.
As a son of a Congregational minister, early in life I became familiar with the famous saying by Pasteur Martin Niemoeller about how, as the Germans came for successive groups of people--the Communists, the Jews, the trade unionists, the Catholics--he spoke about nothing that did not concern him, but when they came for him there was nobody to speak up for him.
My speech will not deal with the minutiae of the Bill, but I want to treat this as another major piece of constitutional legislation. We have had a great deal of constitutional legislation from this Government and it is about time that we took stock of what is happening and gave it time to bed in. I am not against it, because
I am not against the Bill per se but, if we are honest with ourselves, we must recognise that a great deal of this constitutional change has arisen through the activities of highly organised, highly professional pressure groups. I feel that my own party has been bounced into accepting much of this. I have only one quotation to illustrate that matter. According to Hansard:
This matter has been pursued by highly specialist people and there is no great groundswell behind it. I am not against the Bill but I object to the fact that as a justification there has been a constant belittling of this country as though it were a second-class state. Sometimes it is almost suggested that it is a police state. That is absolute nonsense. As I do not wish to detain the House, I shall give just one example.
The knocking of this country is extremely unfair. The other day the 190-odd of the 300 Battle of Britain pilots who are still alive held a reunion. We have to be proud of them and proud of what this country has done. We must have had something worth while because, when we were in trouble, people in the Commonwealth came from all over the world to help us out. They did not continually point out that we did not have a written constitution and no freedom of information Act. When we were in trouble they came and helped.
I asked the Imperial War Museum about that. I was told that the total dead from the Commonwealth in the First World War was 203,568--they did not quibble when we needed them--59,000 were killed from Australia alone. In the Second World War, the Commonwealth lost 108,929 people. They had again come to our aid when we needed them. India had 2.5 million serving in the Indian Army by 1945 and suffered 200,000 casualties. It was the largest volunteer army there has ever been.
So there really is something about this country we need to treasure. When we are talking about improvements, we need to bear those factors in mind. If we had not received that help, this country would have gone under and the people abroad who now lecture us about our failings in human rights and so forth would still be under an extremely unpleasant tyranny.
We should also remember the people who came from the Caribbean: there were some 6,000 Caribbean Commonwealth members in the RAF. I always try to remember that point when we are talking about the banana regime and the efforts of the American multinationals to do them out of business in their monoculture regime. We need to call that to mind also.
I do not suggest that we do not proceed with this Bill; it is a good Bill--if I can cast aside my old reincarnation! But we need to pause; to take stock; and to see how these things start to work out. As soon as we have introduced this Bill, there will be further demands for other changes. Earlier this week in the other place Dr Vincent Cable, the Member for Twickenham, asked a Question in relation to the investigation of the personal conduct of judges. One of our Back-Benchers asked whether there was a,
It simply will not do continually to knock what is a fine country. Noble Lords may recall the efforts of police when they were trying to get an old lady out of her house when a bomb was discovered in the East End of London. She said, "I was hit twice and I'm not shifting". We are a marvellous country. We should remember that sometimes. And when we are making these necessary improvements, we should not let others use them as an excuse for running us down.
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