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Lord McNally: My Lords, I heard the Minister make similar comments from a sedentary position. I really do think that he has misheard the debate if he does not see that some very solid, common criticisms were made in a range of contributions. He really must take on board those common criticisms. If he did not take them on board while he was listening to the debate, I suggest that he reads Hansard and they will become very apparent to him.
Lord Falconer of Thoroton: My Lords, I was listening very closely. I shall go through the main areas and explain the nature of the criticisms and where there were differences. But perhaps I may start with a number of points of principle.
First, we as a government are committed to introducing a legally enforceable right for the citizen to obtain information from the Government. Contrary to the views expressed by the noble Lord, Lord Hunt of Wirral, whose personal commitment to disclosure I do not for one moment doubt, and contrary to the views of the noble Lord, Lord Armstrong of Ilminster, this cannot be done by a code of practice; it must be done by a legal right. We are the first government who have ever undertaken that burden. It is not without irony that we are criticised by the main Opposition party across the Dispatch Box for doing it in a particular way when it had 18 years in which to introduce such a Bill and never for one moment thought of doing so.
I cannot help but mention the irony of the noble Lord, Lord McNally, a man of influence in the 1974-79 government who concluded, after five years in power, that, if there was time, they thought they might introduce a code of practice. Sitting beside the noble Lord, Lord McNally, is a member of the Cabinet of that same government who has just delivered--the opportunity having passed by approximately 21 years ago to have made a difference about it--criticisms of our introduction of a legal right for people to have
Baroness Williams of Crosby: My Lords, perhaps I may respond to the noble and learned Lord very briefly. First, he may remember something called the Croham directive, introduced in 1977, which produced a very substantial reduction in the amount of protected information. Secondly, perhaps I may say--because it has appeared in public in a book--that I was one of three Ministers in the 1976-79 Cabinet who supported a Freedom of Information Bill.
Secondly, I accept all of the points made in relation to the fact that a Bill such as this should be as clear as possible in what it is trying to achieve. If any amendments assist in relation to clarity, we shall hear them with a very sympathetic ear and make changes to give effect to that principle of clarity. No one could disagree with that.
Thirdly, as I said at the outset, we shall equally remain open-minded about any proposals in relation to the Bill that could improve it in the context of the balance which the Bill seeks to strike. Whatever the detailed criticisms may have been, there appears to be broad consensus in the House that a number of interests have to be balanced. This is a Bill to compel disclosure of information. That compulsion, however, must be seen in the context of not damaging badly collective responsibility, and of giving government the freedom within which to make policy decisions. It should not unrealistically intrude on people's privacy and it should not trample over appropriate confidentiality. No one would disagree with those principles. The question is the extent to which we have the balance right; and, if we have the balance right, whether the drafting of the Bill is appropriate to give effect to that balance.
The difficulty in relation to the whole debate on the Bill is that, in expressing criticisms and concerns, people refer to different parts without looking at the balance as a whole. With a few exceptions, people have not stepped back and asked: is the balance about right? We believe that we have got the balance about right. If one moves the balance one way or another, it becomes difficult to have a Bill that achieves the necessary freedom to disclose information while also preserving people's individual rights and good government.
Several speakers referred to the number of exceptions; quantity was a real concern. They referred to the term "exemptions", claiming that it meant all the various provisions in the Bill which step back from a full obligation to disclose: that included not merely what may be termed class exemptions, but also those depending on a prejudice test.
Criticism having been expressed in regard to the number of exemptions, not one speaker suggested that any of the areas covered by them should not be covered in some way or another. No one, for example, said that there should not be some exemption in relation to policy, international relations or criminal investigation. So, having accepted that there must be some dilution in relation to the areas covered by what may loosely be described as "exemptions", whether class or prejudice, no one indicated that their number should be reduced, despite constant reference by a number of noble Lords to the number being too high.
I wonder whether that is a hangover from the comparison between the wording of the White Paper and the terms of the Bill. Although the wording of the White Paper was in many respects different from that of the Bill as originally drafted, the areas in which there is dilution are not substantially different from the proposals in the White Paper. So, although we shall have to explore this area again in Committee, I wonder whether the reference to complaints about numbers was properly thought out.
There were also complaints about the "harm" test. A number of noble Lords said that the reference should be to "substantial harm". That was the kind of test they were looking for. The word that was chosen where we are dealing with a harm test is "prejudice". To all lawyers present--there are depressingly few--"prejudice" will mean some real harm to government, or whatever the reference is in a particular part of the Bill. It is something real, and it is harm. Should it be "substantial harm", or should it be "prejudice"? That sounds like the kind of discussion that a lawyer would like to enter into, but it does not cut to the heart of the debate. It sounds much more theological, if I may use that word in this context, rather than cutting to the fundament of the Bill.
Lord Mackay of Ardbrecknish: My Lords, I thank the Minister for giving way. If it does not make that much difference, why will the Government not accept the change to "substantial prejudice", and be on all fours with the Scottish Executive?
Lord Falconer of Thoroton: My Lords, the word "prejudice" is more precise legally. I do not think it right to add into statute unnecessary wordage. The matter should be focused exactly where one thinks it should be, and it should be accurate.
There have been complaints that there are blanket exemptions; for example, that under Clause 33, in respect of which there has been substantial debate, all information relating to the formulation or development of government policy is exempt; and it is asked why we do not simply provide that kind of exemption on a harm basis as well, rather than on a class basis.
I take Clause 33 as an example to indicate how the Bill works. The provision demonstrates that what applies to the class exemption in that clause applies also to every other substantive class exemption. It must be determined whether the information relates to the formulation or development of government policy; if so, it is exempt as a class. However, under Clause 13 the Minister is obliged to consider whether the public interest in maintaining the exemption is outweighed by the public interest in disclosing information which would otherwise be exempt. The exemption having been established, the Minister is nevertheless obliged to consider whether the public interest in disclosure outweighs the existence of the exemption.
In relation to Clause 33, much reference has been made to the fact that when a Minister makes a policy decision there will be a good deal of factual background material, the disclosure of which will cause absolutely no harm but will assist the citizen in seeing how government operate. Indeed, there will be. Under Clause 13(5) it is specifically provided that in making any decision under subsection (3) or (4) in a case where the information is exempt, the Minister must have regard to the public interest in communicating to the applicant the factual information which has been used, or is intended to be used, to provide an informed background to decision-taking.
Therefore, in relation to the Clause 33 exemption, the Minister must consider whether the public interest in disclosure outweighs the exemption. He is specifically directed by the terms of Clause 13 to the public interest in disclosing the factual background that is relevant to the decision-taking. Many noble Lords have said that that should be done. Noble Lords have accepted that Ministers should be given space within which to take decisions. Collective responsibility requires that one should not be able to disclose what one Minister said to another, which it might be appropriate for a Cabinet Minister to say 21 years later.
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