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Mr. Maclennan: I do not know how often "often" is, but it has been invoked on a number of occasions. It has achieved its purpose, in that it has indicated where the balance of the legislation lies. If there is a discretion to be exercised, the authorities should lean in the direction of recognising the public's right to know. In a sense, even if this had been cited only once--and I know that it has been cited more than once--it would have established, or helped to establish, as a matter of jurisprudence, that the Bill was leaning in that direction.
New clause 1 also seeks to underline that the process is perceived as dynamic. We are not passing a law that will always be precisely reflected in the behaviour of
officials without change and without the benefit of experience. In cases in which discretions must be exercised, it can be used progressively, and perhaps more openly, once initial concerns about the consequences for administration of openness of government are mitigated by the evidence that it achieves the purposes set out in the new clause.
I hope that the Minister will be strongly sympathetic to the purposes of the new clause, and will embrace it, for there is no mischief in it. The Minister may argue--as it was argued in Committee when similar attempts to introduce such a provision were made--that this is not necessary. I put it to him that it is necessary to remove doubt as to how the Bill is to be interpreted when issues come up for decision, and against what general rubrics such decisions should be taken.
New clause 1 has perfectly good precedents in other British legislation. I will not repeat what the hon. Member for Aylesbury has said, but I will refer again to the evidence given to the Select Committee on Public Administration by Elizabeth France, who is to be the commissioner. Her evidence must be given the greatest possible weight, as she will have the task of policing the legislation and ensuring that it is effective. She has straightforwardly said, about the idea of having a purpose clause:
Mr. Mark Fisher (Stoke-on-Trent, Central):
It is a pleasure to follow the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) who contributed so much to the scrutiny of the Bill in Committee.
I urge the Government to be sympathetic to new clause 1 and amendment No. 100, both of which, as the hon. Member for Aylesbury (Mr. Lidington) said, seek to insert a general purposes clause in the Bill. I believe that to do so would set the tone of the whole Bill. That is what such clauses do in the legislation of New Zealand and in that of the other countries that we looked at for comparators.
I believe that the tone that I seek is the tone that the Government want to set. That tone would emphasise that the Bill aims to empower and liberate and to give people rights to be informed. It should give people the right to know what is going on in our society. Surely there can be no better way to frame such legislation than to include a simple purpose clause setting out its aims and objectives, establishing a presumption in favour of the right to know.
The Minister may say that the Bill is more complicated than that, which is true of such legislation in every country in which it has been introduced. There is a difficult balance between the rights of good government
and people's right to know, a point understood on both sides of the Chamber and by anyone who has studied freedom of information legislation. The principles are simple and clear, but achievement of freedom of information is difficult. To get the balance right while maintaining as the spine of legislation a presumption in favour of a right to know is the problem that a purpose clause would be valuable in tackling.
Sadly, I fear that that is precisely why the Government will resist the amendment, as they did in Committee. I remind the Minister of what he said then:
The Bill is understandably and, in most instances correctly, hedged about with caveats. Over the next two days, we shall deal with many difficult matters on which the balance is fine. If we are to do right, however, we must hold in our minds a general presumption in favour of freedom of information and the right to know. A purpose clause at the beginning of the Bill would help us to do so.
The Minister may well be right to say that such a clause would change the Bill's balance, but I believe that it would do so constructively, ensuring that the Bill's thrust was positive and liberating, rather than reluctant. At present, I fear, the Bill has a grudging tone. That should not be so. The Government should be proud of it, and the people of the country should be liberated by it and proud of a Government who introduce it. However, wherever a balance must be struck between the rights of the public authority to withhold intellectual property--the information that it holds--and the rights of an applicant to have access to that information, the Bill comes down time and again in favour of the authority.
There is much good sense in the Bill, and we want to get it into statute as soon as possible and in the best possible state, but if it is to be the liberating legislation that it ought to be, it needs a framework that states clearly that it is on the side of the applicant and of people's right to know. For that reason, I hope that the Government will think again about this issue and find a way to draft a purpose clause that will declare their interest, and the public's interest, in information at the very start of the Bill.
Mr. Quentin Davies (Grantham and Stamford):
I support the amendment moved by my hon. Friend the Member for Aylesbury (Mr. Lidington). I agree with him that new clause 1 would give us the same protection, so
Freedom of information represents the most strikingly unpredicted disappointment with the new Labour Government. There are lots of predictable disappointments, such as the fact that they have raised taxes even when they said that they would not and the fact that they have run the health service into an even worse crisis. I remember predicting those outcomes myself at the last election, but some disappointments were not predicted by anyone.
Perhaps naively, I took seriously the new Labour Government's commitment to freedom of information. I was struck by the strong language of personal commitment used by the Prime Minister in that connection. The year before the election, he said that freedom of information was absolutely fundamental to how Labour saw politics developing in this country over the next few years. He said that it would signal a new relationship between Government and the people. I did not realise that that was nothing more than political hyperbole and eyewash.
In many ways the Bill represents a retreat from the status quo and the previous Conservative Government's non-statutory code--which in my view was entirely inadequate--in important respects such as the obligation to state reasons for refusing information and the obligation that manuals issued by Departments of State should be made available to the public.
The Bill is a substantial retreat also from the White Paper drafted by the right hon. Member for South Shields (Dr. Clark). Although I understand Labour Members' reticence about being too offensive to Ministers, I have no doubt that many of them, and millions of people across the country, share my enormous disappointment that the new Labour Government did not live up to their undertakings. To give him his due, the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) has a long and honourable record on this matter, and I am sure that he is one of those disappointed Labour Members.
The right hon. Member for South Shields sacrificed his career for this issue. He probably does not want to say that this afternoon, but he may do. I have no doubt that he genuinely stood behind his White Paper and, when he was in the Government, said, "The new Labour Government must live up to our undertakings and the expectations that we have aroused. We must introduce radical freedom of information legislation to make real change, as the Prime Minister promised we would. We must therefore be prepared to take risks, if necessary, to change the inward-looking culture of the public service and bureaucracy in general, which is suspicious of the public." I have no doubt that he went on saying that and battling up to the point at which the new Labour Government got rid of him because that point of view was extremely unwelcome.
The White Paper was buried and the right hon. Gentleman was fired, which is a pretty remarkable and memorable state of affairs. I do not think that anybody in this country who follows this matter, whether or not they are a supporter of a political party, can fail to have been struck by that and to share our serious disappointment.
Nothing is more important than how a Bill starts. How it starts, its title and, in this case, an introductory clause or statement of intention not only alert the public to
its aim, but could give guidance to the courts, the commissioner and, indeed, the bureaucracy--to the executive government machine--about the Bill's real purpose. If the Government fail at that first fence and are not prepared even to take on board the reasonably worded amendment or new clause, those of us who have already suffered great disappointment will find that it has been thoroughly confirmed.
That is particularly so because the argument for having words along the lines of the amendment and new clause has been pressed on the Government not from any party political point of view, but, as the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) said, by many people with a dispassionate, entirely non-party political interest in the matter, including Elizabeth France, the person who will be responsible for implementing the Bill.
The Government will have to find incredibly good reasons to resist the amendment and new clause. Until we hear those reasons, many of us, in all parties, will continue to feel great disappointment and scepticism.
I think it would be very helpful in making judgments about discretionary decisions . . .
She said in her oral evidence given in June 1999, question 187:
I would agree with Lord Burns that officials will look in detail at what is written in the statute unless a very clear lead is given from the top of the public bodies as to what action is appropriate. If there is nothing there that tells them to weigh in the balance a general interest in disclosure then they will not do so.
It is for that reason, above all, that we would do well to follow the precedents established overseas and incorporate them into the Bill.
We must assume that such a clause would be given legislative effect by the commissioner, the tribunal and courts, and that it would therefore change the balance of rights and put a gloss on the Bill as a whole. That may be unpredictable and uncontrollable.--[Official Report, Standing Committee B, 11 January 2000; c. 29.]
Of course, a purpose clause would set a tone, but I think that it would put a constructive gloss on the Bill. I do not agree that it would be unpredictable and uncontrollable; plenty of controls are built into the Bill, and the commissioner will have plenty of powers.
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