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Lord Campbell of Alloway: My Lords, before the noble Lord sits down, perhaps I may ask him a question. Does he agree that with each Bill the mandatory legal advice should be supplied on which the statement of compatibility with the Human Rights Act is given?
Lord Williamson of Horton: My Lords, I intervene in the debate, having spent about 40 years handling information in the public service, ever since as a very young official I received with trepidation my first Prime Minister's personal minute which related, I recall, to a possible bounty on the tails of squirrels.
I welcome the Government's decision, foreshadowed in the manifesto, to present a Freedom of Information Bill and the fact that it has arrived at the starting gate in this House. Over a long period, public authorities in many countries have been hesitant, not to say suspicious, about wide-ranging requirements to make information available, principally because it was thought--in some cases, no doubt rightly--that it would complicate the work of those authorities or of the governments themselves, or be likely to generate pressure before the arguments for or against a decision had been fully explored within the public service.
The Bill is therefore a step forward, creating a system under law by which a lot of information in the possession of public authorities will be available to those who seek it. I want to stress that point because there are also important points on which I hope the Bill will be improved during its passage through Parliament, in particular through your Lordships' House.
Despite my career as a civil servant--or, worse still, a faceless bureaucrat--my own views go very far in the direction of greater openness in the availability of information. So far, indeed, that I fear that it may be at least 2025, when perhaps newer than new Labour will be gracing the Front Bench here, before I see them implemented. I go even further than The Times in its editorial entitled "Mournful ghost". I am more transparent than the ghost! But I shall be content if there is some modest further improvement in this direction during the course of the passage of the Bill, and I shall come on to those principal points.
First, however, I want to stress that the Bill is complex and the scope of some of the exemptions is not always easy to follow or to assess. Since its purpose is to provide for the disclosure, for the benefit of the citizen, of information held by public authorities, there is a particular importance in reducing as far as possible the complexity and in making the Bill as far as possible intelligible to the citizen. It would be a sad day if, when a citizen wished to take benefit from this citizen's Bill, when enacted, he had first to take legal advice in order to understand the text and the scope of the exemptions. For example, if we asked the public whether they understood Clause 13(1)--and the Minister stressed the importance of Clause 13--on disclosure in the public interest, we would surely get a 99 per cent "No" vote. The noble and learned Lord the Minister would be in the 1 per cent, so he does not count!
I realise that the codes of practice provided for in Clauses 44 and 45 and the general duty on the information commissioner to promote the following of good practice by public authorities will help. But it is none the less important that the legislation should be as clear as possible because the Bill presents a heavy legal system: inter alia through a possible application by a complainant to the commissioner for a decision; the notification of the decision to the public authority; the serving of an information notice by the commissioner, followed by an enforcement notice, with the possibility of appeals to a tribunal against a decision notice, an information notice or an enforcement notice; and the possibility for any party to an appeal to the tribunal to appeal to a court on a point of law.
I turn to the exemptions. I recognise that disclosure cannot be required for information relating to security, national security, defence and international relations; nor for personal information or information provided in confidence, in particular in commercial confidence. I am fully content with Clauses 21 to 25 and Clauses 38 to 41, which cover those exemptions.
I also accept that information which might prejudice actual or expected court cases should not be disclosed, but Clause 28, to which reference has been made, goes much wider than that, in particular because it refers to information which,
We come to the crux of the matter: Clauses 33 and 34 which deal with the non-disclosure of information relating to the formulation or development of government policy and information which might be judged to prejudice, or be likely to prejudice, the effective conduct of public affairs. I believe that the risk from the disclosure of information held within public authorities in relation to forming and developing government policy is markedly less than is currently supposed and is offset by the broader advantages of transparency in government.
I would be prepared to reverse the situation and to replace Clauses 33 and 34 by a system under which all the information would be open to disclosure unless the Minister certified that disclosure would cause "serious harm"--a phrase which is easily interpretable--to the effective conduct of public affairs. That would be a substantial reversal of the onus of proof and a much stricter test. However, I agree with the Government that such a decision both in the current text and in any amended text would need to be made by the Minister and not by the information commissioner.
It is an advantage for the agreed objective of greater freedom of information for the public that the Bill covers a huge range of information holders, not only in government departments but also in local government, the National Health Service, education and the police. That is much to be welcomed. In addition, there are also in Schedule 1 about 440 other public bodies--quangos or other advisory committees--which are probably doing good work and are correctly included here, but demonstrate how far the process of government by quango has gone. The public may be surprised to find that bodies such as the Advisory Committee on Borderline Substances, the British Potato Council, the Advisory Committee for the Purchase of Wine and the Subsidence Adviser are to be required by Clause 17 to adopt and maintain schemes which relate to the publication of information and to be approved by the information commissioner and to publish those schemes. Of course, that can be simplified to some degree by the use of model publication schemes, but why do not these bodies simply disclose everything, if requested to do so, subject to the exemptions laid down in the Bill?
We must also guard against the risk that, in formalising in law the requirements on the disclosure of information and the exemptions from disclosure, we may create a certain element of defensive caution because those responsible do not want to be blamed for releasing information which may be thought to be covered by the exemptions. The information commissioner will have to pay particular attention to that point.
I speak from personal experience in this matter. When I first had responsibility as a secretary-general in Brussels, there was no formal code and the practice of disclosure of information was almost total. I believe that in my first five years there I never refused a request for information, although there may have been one or two refusals to disclose information of commercial confidence relating to EURATOM or to court proceedings.
However, when a code of practice was introduced which was in some ways similar to the Bill because it was justiciable, the first reaction of officials was to check whether information requested fell within the
I should add that the record of the European Commission as one of the most open institutions in the world remained, and we calculated that the record of disclosure of information to the public was similar to that of the United States authorities under their legislation.
Lord Hunt of Wirral: My Lords, first, I thank my noble friend for his very kind remarks. However, I pass them on to my noble friend Lord Waldegrave, who, with the then Prime Minister, John Major, was very much the brains and the spearhead behind the publication of the White Paper in 1993 and the code itself in 1994. When I took over as Chancellor of the Duchy of Lancaster in 1994, I and my successor, my noble friend Lord Freeman, did everything that we could to continue to strengthen the code.
I believe that we face a very interesting situation so far as concerns this particular Bill. We have it within our power to rise to the challenge put to us by the noble and learned Lord, Lord Falconer, to improve the Bill.
I go back to the code for a moment and say to the noble Lord, Lord McNally, that, although he was correct in saying that the obligation to produce a freedom of information Bill has been in every Labour Party manifesto since 1974 (when he was still, I believe, a member of the Labour Party), between 1974 and 1979 no Bill appeared. Perhaps I may pay tribute to a particular White Paper produced by that past Labour government in 1979. I believe that its correct title is Cmnd. 7520. It was a White Paper on open government which said that the then Labour government had reached the conclusion that, rather than produce freedom of information legislation, the best way forward lay with the production of a code.
Therefore, I pay tribute to the immediate past Labour government in coming to what I believed was a very sensible conclusion. Indeed, I am proud of the fact that when I was responsible for the code, and then the Civil Service code which I introduced later in 1994 and, indeed, the whole Nolan inquiry, complete emphasis was placed on bringing about the maximum disclosure of information and on giving the public access to all the information that we could possibly disclose.
Through the mouth of the noble and learned Lord, Lord Falconer, the present Labour Government said that a code is no good because it is only discretionary and one has to rely on the government to disclose. It is an interesting reflection of his lack of faith in his colleagues that he believes that, by continuing a code
Although the noble and learned Lord, Lord Falconer, had another opportunity in this debate to correct the situation, it was interesting to note that he did not deny that. He did not deny the fact that more information was disclosed under the code than will be disclosed under this Bill. He sought to attack the code as being a purely discretionary mechanism. I should be very interested to hear from him whether he believes that, once the present Bill is enacted, if it remains as it is, it would, as most independent commentators say, result in less information being provided. I believe that to be the case.
In trying to make sure that the public have access to the information that they need, the Government have now decided that there should be a statutory right. It is interesting to reflect for a moment on what my noble friend said should be our attitude from these Benches. We now face the situation of impending legislation on the statute book. Having won the general election in 1997, it is this Government's right to put legislation on to the statute book; but what should our view be? I hope that noble Lords will accept that my attitude--and, I believe, the attitude of these Benches--will be that, if there is to be an Act of Parliament, it must be effective.
Ideally, I would hope, as with the Civil Service code, that we could reach all-party agreement. Whether a party is in government or in opposition, there should be a co-ordinated and consensual approach to what is, after all, an Act of Parliament that will govern a very important and sensitive area; indeed, it will move the arena from Parliament to the courts. That is one reason why I have always been very nervous about a statute that gives freedom of information. I know that the noble and learned Lord, Lord Falconer, said that if one wants to go to the ombudsman, one must go through a Member of Parliament. But I believed that that was always a good safeguard. In addition, it always meant that a government were tested in the Mother of Parliaments as to whether or not they had done the right thing in failing to disclose information or, indeed, in disclosing information.
Now, of course, the arena will move from Parliament to the courts. That is why I am sure that, in trying to improve the Bill, we must make it fair, simple, concise and effective. I hope that noble Lords will not believe that I have changed my mind; I still believe that a code is better. However, being faced now with the fact that there is to be an Act, I believe that we must ensure that it works.
I should like to make three points. First, in setting out his challenge to us all, the noble and learned Lord, Lord Falconer, said that he would "give a fair hearing"--I believe those were his exact words--to amendments which sought to improve the Bill, provided that they were in accordance with the purpose of the Bill. But then the purpose, as he is seeking to define it, is only within the Long Title. I have never known a situation where a government have resorted to explaining the purpose of legislation merely by reference to the Long Title.
That is why I believe that my noble friend is right in saying that we should have a purpose clause. I was pleased to hear the noble Lord, Lord McNally, say the same. I hope that the noble and learned Lord will listen to that and perhaps, at the conclusion of this debate, indicate that the Government are prepared to sit down with the opposition parties to work out a purpose clause that would be clear and set out the objective of the legislation in terms which would make the matter very simple to everyone. So I hope that we shall have an effective purpose clause.
My second point lies with the second test which the noble and learned Lord, Lord Falconer, gave for accepting amendments; namely, that they should not undermine the ability of government to keep secret sensitive areas of information. The noble Lord, Lord Williamson, made a very valuable contribution when he gave from his European experience an example of what happens when you move from a code to something more strict and rigid. We must now turn our attention to making sure that we do not extend the exemptions so widely that they catch areas that would have been disclosed under the old code. We must make the test more narrow. My noble friend indicated ways in which that could be done. As the noble Lord, Lord Williamson said, there must be some evidence of "substantial harm" or "serious prejudice". Whichever phrase is used, there must be quite a rigorous test.
As noble Lords will know, I am a solicitor and I have received an excellent brief from the Law Society. There are two areas in which it wants to see exemptions mitigated to allow the greater disclosure of information. The first is in relation to Clause 28 and the second is in making sure that Clause 13 does not become a mechanism for preventing disclosure. In relation to Clause 13, the noble and learned Lord used the phrase that there was a "strong steer" for disclosure. But the courts require a little bit more than
As regards my third point, I look forward to the speech of the noble Baroness, Lady Whitaker, because I remember all the excellent briefs that she used to give me when I was a Minister. I hope that she will acknowledge that, whenever possible, I erred on the side of disclosure. I look forward also to the speech of the noble Lord, Lord Armstrong, in that regard.
It is important to recognise that when you are a Minister, any brief you receive, particularly on an important decision, contains a substantial amount of factual background. That factual basis often created a sensible background against which to make the decision. I never understood why there could not be greater disclosure. When I was in the Cabinet, we tried to find ways of publishing that information more widely.
There has crept in a tendency to merge policy advice with factual background. I believe that with this legislation, it is possible that we shall revert to a situation (which Ministers found much more useful) of having the factual information clearly set out in a separate document from the arguments for and against, which, quite often, from a special adviser--although we did not have many of them; there are now many more--set out some examples of the political sensitivity of the decision. I can see that there must be some safeguard in relation to such documents, which are quasi-Civil Service, and I would also include the civil servant's own advice on the pros and cons of the decision from a policy point of view. That is particularly so where embarrassment or serious prejudice or harm may be caused to individuals. When I refer to embarrassment, I mean so long as there is evidence of serious harm or serious prejudice. In Committee, I hope that we can find a way of ensuring that as much as possible of the advice to Ministers can be disclosed.
My final point is that there is, and has always been, a culture of secrecy around any government, whichever party is in office. That is a fact of life. In this House, we now have an opportunity to change that culture in a clear and emphatic way, as we tried to do with the code. We must make it clear to everyone that this Government, this Opposition, and this House are wedded to a culture of openness. We can demonstrate that by producing, in response to the challenge from the noble and learned Lord, a really effective Freedom of Information Act.
Baroness Hilton of Eggardon: My Lords, in this country we like to think that we live in a mature democracy which has served as a model for other nations. We used to claim that we had a unique and flexible constitution and that we were a shining example of a democratic relationship between people and government. That was, of course, always an exaggeration and we are still one of the most secretive
The White Paper raised our hopes and expectations of genuinely greater openness. But this Bill, alas, has much less to offer. Indeed, it is clearly not the offspring of the 1997 White Paper but rather a hybrid of the fears of civil servants and the caution of lawyers.
Politicians of all parties deplore the increasing apathy and lack of interest in politics shown by the public, with the consequent slow but steady diminution in the turn-out at local and even parliamentary elections. It is scarcely surprising when political decisions are made behind closed doors on the basis of facts that cannot be revealed apparently to the public. Therefore, people become cynical about politicians, both local and nationally.
Public assumptions about the secretive power of civil servants and officials are also common currency in this country, as exemplified by the TV series "Yes, Minister", its success being largely due to our knowledge of the ways in which bureaucracies muffle and obscure the truth and partly because it confirmed our worst fears about politicians.
If we wish people in this country to be involved in the processes of democracy and to discuss policy issues with insight and maturity, we must not leave them relying on the half-truths and distortions of the mass media, with their limited attention span and their need for sensation and confrontation. People in this country deserve to be taken into equal partnership with government and to be provided with the facts and background information upon which political decisions are made.
My experience of bureaucracies encompasses not only the Metropolitan Police but many negotiations with the Home Office and also as a student representative at Manchester University. All such organisations are self-protective and they close ranks in the face of anticipated criticism. They conceal and sanitise their proceedings, however innocuous, rather than reveal them to the public gaze.
During my time in the Metropolitan Police, I served under a variety of regimes and observed that, depending on the commissioner, the extent to which the force was willing to talk to the press and the public could be used as a measure, a barometer, of the extent to which we matured and developed. Thus, under Sir Robert Mark not only was police corruption exposed but we were also encouraged to talk to the press and public, which enhanced the status of the force and increased the confidence of individual officers.
Under David McNee, however, we were plunged back into the dark ages of total concealment, frightened to speak to the press. As a Chief Superintendent at Chiswick and Brentford, I was not even allowed to tell my local community how many, or rather how few, police officers I had to patrol the streets of Chiswick. The force stagnated, effectively, for five years.
Sir Kenneth Newman had a totally different attitude and dragged us rather reluctantly into the 20th century and the realisation that the public are entitled to know everything about their police service, provided, of course, that it does not hinder the investigation of specific crimes.
The inference I draw from that is that the public are entitled to know almost everything about the processes of government. This disappointing Bill fails to ensure that. If countries as diverse as Ireland, Australia and the United States can provide greater openness for their citizens, I do not understand why this country needs to be more secretive. Even Scotland appears to be moving towards greater openness.
The Bill could be improved in many ways. In particular, I too should like to see the insertion of a purpose clause. Indeed, surprisingly, I had backing on that this morning from the briefing of the CBI. The Bill needs to counteract the impression that it is largely about restricting the flow of information. It has so many negative restrictions and exemptions that it is likely to act more as an inhibitor than as an encourager of openness. Any official worth his salt would be able to find in the Bill a class exemption covering any piece of information that he wished to conceal. A purpose clause would provide a positive context for the rest of the Bill. It might encourage the idea that it is the duty of public servants to reveal rather than conceal information.
More important, and a matter upon which I hope the House will achieve consensus, is the ministerial override or veto. The information commissioner is far more likely to take a balanced and detached view of what constitutes "the public interest" and should therefore have the final say, except on matters of national security.
The exemption for commercial interests also seems too wide. When I was chairing the environment committee of the House and we looked at the European drinking water directive it was disturbing and much to our surprise to find that the analysis of effluent from factories could not be published because it constituted a commercial secret. Matters of public health should override commercial interests. If that had been so in the past, we might have avoided the scandals of asbestos, tobacco, BSE and nuclear discharges.
Finally, as I have already made clear, I believe that the provisions of Clause 34 on the facts and figures underlying the formulation of public policy are wholly wrong and contrary to what is appropriate in a mature democracy. I do not accept that facts and options cannot be untangled from opinion or advice. I hope that the Bill will be greatly improved during its passage through this House and not only by an unholy alliance of the parties opposite.
I marvelled at the Minister, as I have before, when he suggested that this was a good Bill and, with his skilful advocacy, suggested that ministerial discretion would be sympathetically exercised in favour of disclosure. On the contrary; rarely, if ever, can a Bill whose title trumpets the cause of freedom have so acutely disappointed so many who care about liberty. It is all the more a cause of concern because over the past century the power of government, and its ever-deeper reach into our lives, has grown inexorably as never before in our history. We are so conditioned to the intrusions of the state and to raft upon raft of controls and regulations that it is hard to believe that the historian A J P Taylor could write that before the First World War,
In the area of law, there has been a direct and counter-veiling response to that accretion of powers. The development of administrative law as a check on executive absolutism, now admirably buttressed by the Human Rights Act, has developed a valuable separation of powers. In the area of politics, the widening of universal suffrage, the grant of voting rights to women and the lowering of the voting age to 18 have all enhanced democracy. But the right to freedom of information has so far been the Cinderella of our democratic rights. The "right to know"--as I believe it is properly called--has been fiercely resisted by politicians and bureaucrats striving to be less accountable to the public they nominally serve by shrouding their work in secrecy.
No profession has witnessed that obsessive struggle to maintain secrecy more vividly than lawyers. When I started at the Bar, all government information, however minor and harmless, was protected from disclosure in litigation by the blanket doctrine of Crown Privilege. Some 30 years ago, that granite-like monolith was chipped away at in the seminal case of Conway v. Rimmer. But for years afterwards civil servants fought like tigers every inch of the way to restrict the impact of that small step towards enlightenment. Fortunately, the late Lord Denning was even more determined to see fair play to our citizens. In the end, slowly, ever so slowly, we arrived at the modern, more civilised doctrine of public interest immunity which applies only if "disclosure will cause real harm". The test is, of course, more stringent than any that will be applied under the Bill.
It has not been obvious that any political party when in office has been over-concerned with the right of the public to know until comparatively recently. They have mostly been content to steer public opinion by selective leaks, whether of Cabinet disagreements or proposed policy. Not only is that nakedly self-serving, but it is all the more pernicious when at the same time the public are denied access to information which
So it was welcome, if now ironical, that it was the Labour Party which promised a freedom of information Act if they won the 1992 election. In the years which followed, the current Prime Minister took up the torch in opposition by asserting that,
Another irony of the Bill is that the principal bastion of our so-called "mature democracy" is meant to be the House of Commons. In 1994, the Conservative's code on openness was introduced. It was welcome, as my noble friend Lord Hunt has described. It was a first good step on the way. None the less, the Select Committee considering the Parliamentary Commissioner for Administration recommended in 1995 that we should go further and introduce a freedom of information Bill. What do we have now? A Bill, yes, but one which, as the Campaign for Freedom of Information and Charter 88 have said, would be weaker than the Conservative code. So perhaps not surprisingly, there was a dramatic lack of enthusiasm for the Bill in the other place. Some 36 Labour MPs voted against it, but it went through when the juggernaut majority prevailed. What do we expect in a democracy where a minority of voters can elect a government with a majority of 180? What can we expect where, as Mr Peter Mandelson put it bluntly soon after the 1997 election,
With that background, and being encouraged by what the Minister has said, I believe that during the progress of the Bill we shall not hear any ministerial assertion that radical amendments would do otherwise than fulfil our role as the guardians of democracy. I hope that no one will tell us that if we stand up for the right to know we shall be going against the will of the democratic House and flexing our muscles too much. The Times was surely right when it said in an editorial:
I view Clause 25 with some concern. It exempts any information likely to prejudice any aspect of foreign relations or the protection of United Kingdom interests abroad. What about arms to Iraq, or to Indonesia? What about our relations with Zimbabwe?
The same advice applies to Clause 26 which covers relations between the Government of the United Kingdom and our devolved institutions. Would we not be allowed to know whether the Government of the United Kingdom and that of Scotland had crossed swords over, say, whether Scottish Ministers should, as they have promised, introduce a far stronger Freedom of Information Bill?
Others have spoken about Clause 28, a class exemption which includes any information--even, as the noble Lord, Lord Williamson, said, relating to past activity--which is held by the police or the Health and Safety Executive. Surely, those are areas that require openness which may be crucial to creating or restoring public confidence. What about information on the impact of BSE or the fall-out from Chernobyl? Why have the Government overridden the clear recommendation of the Macpherson inquiry that said that it saw "no grounds" for a class exemption in that area? How can we deny an increasingly educated, demanding and diverse people information that may affect them or shape the choices that they may be entitled to make about the acceptability of risk?
Others have commented on Clause 33. In my view, it is not acceptable that Ministers should be entitled to deny us information about the facts on which policy is based, and yet they are entitled to refuse to deny or confirm that the facts and the information exist. Whose information is it anyway? Why cannot they tell us the facts?
Recently I saw a list of all those statutes and statutory instruments on which there has been a regulatory impact assessment. Presumably, the contents of the regulatory impact assessment, which have shaped policy, could be exempt from disclosure.
Clause 41, as the noble Baroness, Lady Hilton, said, merits a mention. That clause allows information to be withheld if it would prejudice any commercial interests. Material about potentially unsafe oil tankers, or about the risks of salmonella or listeria, or about malpractice in the selling of personal pensions could presumably be withheld. Powerful commercial lobbying will seek to persuade Ministers to keep information under wraps.
I had intended to speak about the power to override the information commissioner, but I welcome what the Minister said about potential amendments. I too hope that, as in New Zealand, if there is to be such a ministerial override, it will be a collective Cabinet decision.
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