Clause 1 — Exemption of House of Commons and House of Lords

Orders of the Day – in the House of Commons at 10:00 am on 18th May 2007.

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Amendment proposed [20 April]: No. 2, in page 1, line 5, leave out subsection (3).— [Norman Baker.]

Question again proposed, That the amendment be made.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker 10:06 am, 18th May 2007

I remind the House that with this we are discussing the following amendments:

No. 14, page 1, leave out lines 7 to 12 and insert—

'(1) For the purposes of section 41(1), information which—

(a) is held only by virtue of being contained in a communication between a member of the House of Commons, acting in his capacity as such, and a public authority, and

(b) consists of information relating to the personal affairs of a constituent of that member shall, unless the contrary is indicated, be deemed to have been communicated in circumstances importing an obligation of confidence.'.

No. 40, page 1, leave out lines 7 to 12 and insert—

'(1) For the purposes of section 41(1), information which—

(a) is held only by virtue of being contained in a communication between a member of the House of Commons, acting in his capacity as such, or a member of the House of Lords, and a public authority, and

(b) in the case of a member of the House of Commons, consists of information relating to the personal affairs of a constituent of that member, shall, unless the contrary is indicated, be deemed to have been communicated in circumstances importing an obligation of confidence.'.

No. 10, page 1, line 7, leave out from beginning to end of line 9 and insert—

'(1) Information is exempt information if—

(a) it is held only by virtue of being contained in any communication between a member of the House of Commons, acting in his capacity as such, and a public authority, and

(b) it consists of personal data relating to a constituent of that member, and

(c) the constituent has not consented to its disclosure.'.

No. 11, page 1, line 7, leave out from beginning to end of line 9 and insert—

'(1) Information is exempt information if—

(a) it is held only by virtue of being contained in any communication between a member of the House of Commons, acting in his capacity as such, and a public authority, and

(b) it consists of—

(i) personal data relating to an individual in connection with whom the member has made representations or enquiries and the individual has not consented to its disclosure, or

(ii) information relating to the personal affairs of a deceased individual.'.

No. 41, page 1, line 7, leave out from beginning to end of line 9 and insert—

'(1) Information is exempt information if—

(a) it is held only by virtue of being contained in any communication between a member of the House of Commons, acting in his capacity as such, or a member of the House of Lords, and a public authority, and, in the case of a member of the House of Commons,

(b) it consists of personal data relating to a constituent of that member, and

(c) the constituent has not consented to its disclosure.'.

No. 42, page 1, line 7, leave out from beginning to end of line 9 and insert—

'(1) Information is exempt information if—

(a) it is held only by virtue of being contained in any communication between a member of the House of Commons, acting in his capacity as such, or a member of the House of Lords, and a public authority, and

(b) if consists of—

(i) personal data relating to an individual in connection with whom the member has made representations or enquiries and the individual has not consented to its disclosure, or

(ii) information relating to the personal affairs of a deceased individual.'.

No. 12, page 1, line 9, at end insert

', except insofar as it relates to any representations which the member has made to the authority in connection with—

(a) any matter of policy which it has adopted or may adopt, or

(b) any decision which it has taken or may take other than a decision expressed in terms which affect only the personal affairs of a particular individual or individuals.'.

No. 24, page 1, line 9, at end insert—

'(1A) Information is not exempt by virtue of this section if it is—

(a) contained in a communication made to or received from a public authority from whom the member receives any remuneration or benefit, and

(b) relates to that remuneration or benefit whether or not the remuneration or benefit is recorded in the Register of Members' Interests.'.

No. 44, page 1, line 9, at end insert—

'(1A) Information is not exempt by virtue of this section if it is contained in any letter between a member of the House of Commons or House of Lords and a Government minister.'.

No. 25, page 1, line 12, at end insert—

'(3) For the purposes of this section "communication" means a communication in writing, or by electronic means, made by a member to a public authority or by a public authority to a member but does not include a record of a meeting, or of a conversation, between a member and a person or persons acting on behalf of the public authority.'.

No. 26, page 1, line 12, at end insert—

'(3) This section does not apply to any communication made before the Act comes into force.'.

No. 39, page 1, line 12, at end insert—

'(3) Information is not exempt by virtue of this section if it is contained in a communication between a member of the House of Commons, acting in his capacity as such, and a public authority, relating to any proposed legislation which was before either House of Parliament at the time of the communication.

(4) In this section, "legislation" means any of the following—

(a) a public general Act or local Act (whether passed before or after the commencement of this section), or

(b) any Order in Council, order, rules, regulations, scheme, warrant, byelaw or other instrument made under an Act referred to in paragraph (a).'.

No. 45, page 1, line 12, at end insert—

'(3) For the purposes of this section "letter" means a communication in writing, made by a member to a public authority or by a public authority to a member, but does not include—

(a) exclusively electronic means of communication, or

(b) a telex, telegram or facsimile transmission.'.

No. 16, page 1, line 13, leave out subsection (4) and insert—

'(4) After section 63(1) insert—

"(1A) Information contained in a historical record cannot be exempt information by virtue of section 34A except insofar as it consists of personal data information relating to the personal affairs of a living individual who can be identified from that record or from that record and other information which is in the possession of, or is likely to come into the possession of, the public authority."'.

No. 36, title, line 2, after second 'and', insert 'certain'.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I heard your comments of course, Madam Deputy Speaker, a few moments ago and I will abide by them, naturally. It is my intention not to repeat anything that was said on a previous occasion. There are many others—not least on the Liberal Democrat Benches—who wish to contribute to this debate and I am very keen that they be heard.

For the sake of clarity, I have formally moved amendment No. 2, which is the lead amendment in this group. According to column 602 of Hansard of 20 April 2007, I have already done so. I do not believe that I did, but for the avoidance of doubt I do so now and indicate that I wish to divide the House on this crucial amendment, as and when we reach that stage.

I should say how grateful I am to Mr. Speaker for his response to Mr. Winnick on Wednesday, when he said:

"I am here to defend Back Benchers, and on Friday everyone will get a voice in this Chamber."—[ Hansard, 16 May 2007; Vol. 460, c. 625.]

That is a splendid statement from Mr. Speaker, and I am very grateful to him for allowing that to be the case.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I am very interested in what the hon. Gentleman, who is speaking from the Liberal Democrat Front Bench this morning, is saying. Can he explain why, when this Bill was in Committee, Liberal Democrat Front Benchers not only did not oppose it or table any amendments to it, but actually supported it?

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I think that you would rule me out of order, Madam Deputy Speaker, if I re-opened what happened in Committee; I am keen to make progress this morning. In any case and for the sake of clarity, I am not on the Liberal Democrat Front Bench in terms of my role. I am simply sat here geographically, as opposed to that being the result of any appointment process.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. For the avoidance of any misunderstanding, may I remind hon. Members that we are debating the group of amendments to which the lead amendment is No. 2?

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

Thank you, Madam Deputy Speaker; I am trying to.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

On a point of order, Madam Deputy Speaker. May I seek clarification? Mr. Jones said that Liberal Democrat Front Benchers supported the Bill in Committee. I am not quite sure how one supports a Bill at Committee stage, which looks at each clause of a Bill.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

I am afraid that that is not a point of order. This is turning into a debate on other business. The business before the House is the group of amendments to which the lead amendment is No. 2. Perhaps we can now all focus any contributions on those amendments.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

Thank you, Madam Deputy Speaker. I have dealt with amendment No. 2, so I will not—

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

I am grateful to the hon. Gentleman for giving way. He referred to Mr. Speaker's remarks earlier in the week about everybody having a chance to speak on this Bill. I presume that the hon. Gentleman agrees with me that the most important person to be heard today is the Bill's promoter. This Bill was not debated on Second Reading

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

May I finish my point, Madam Deputy Speaker? Unfortunately, I was unable to be here for the previous debate on Report stage, but so far as I can see from reading the record carefully, the Bill's promoter did not speak then. How is this House to consider the Bill when we have not heard the case for it? Indeed, the last time that this Chamber discussed it, not a single person spoke in favour of it. So as yet, there has been no prosecution of the case for why this Bill is important. I hope that Norman Baker agrees with me that one of the voices that should be heard today—and in some detail—is that of the Bill's promoter. Sadly, the promoter is not in his place; he has left the Chamber.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I think that I have got the point that the hon. Gentleman is making. If Members care to reflect on the Hansard of the previous debate, they will see just how much time was taken up and given to Members speaking, which perhaps precluded other people from making a contribution. I urge today that we make progress, which is why I made the initial remarks that I did to the hon. Member for Lewes, who was on his feet last time. The debate was adjourned and he is now continuing. I wish to ensure that all Members who wish to contribute get that opportunity —[ Interruption. ] I said all Members.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I hope that all hon. Members who wish to contribute will get an opportunity to do so, including those in favour of the Bill.

Photo of Simon Burns Simon Burns Opposition Whip (Commons)

I notice that the hon. Gentleman's amendment seeks to remove clause 1(3). When drafting that amendment, did he consult Bob Russell, who had a local regional daily paper apply under the freedom of information legislation for sight of his correspondence with his local authority? The hon. Gentleman was not happy that the law had been used to secure sight of what he considered private correspondence with his local authority.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I have had no representations from my hon. Friend Bob Russell, but the point is that correspondence between Members and constituents is already covered under the data protection legislation. That is a point that the supporters of the Bill fail to understand.

Photo of Simon Burns Simon Burns Opposition Whip (Commons)

If the hon. Gentleman's interpretation is correct, why was a daily regional newspaper in the eastern region able to secure, under existing legislation, the correspondence of the hon. Member for Colchester with the chief executive of Colchester borough council?

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I am not familiar with the details of that case, but the data protection legislation already prevents correspondence between MPs and constituents from being released. That is the law at present. If the hon. Gentleman is suggesting that the law has been broken—

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

Well, I am trying to answer the point that the hon. Gentleman has already made. If correspondence has been released contrary to the law, the answer is that the law needs to be enforced, rather than simply passing a further law to say the same thing. I am not familiar with the case, but I hesitate to agree, even if I accept that version of events.

Photo of Julia Goldsworthy Julia Goldsworthy Shadow Chief Secretary To the Treasury, Treasury

Perhaps the following quotation from the Committee stage will be helpful to my hon. Friend:

"Clearly if one writes to a public authority and gives the personal details of a constituent, such as their CSA claim, information relating to their children and so on, that information should be protected. It should quite clearly be protected under the current Act. However, inadvertently, someone may release it." ——[Official Report, Freedom of Information (Amendment) Public Bill Committee, 7 February 2007; c. 8.]

Those words were spoken by David Maclean himself.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

Indeed. The suggestion by Mr. Burns is like suggesting that if a murder is committed, we should pass a further law making murder a criminal offence because the original law clearly did not work. That argument is a non sequitur.

Photo of David Winnick David Winnick Labour, Walsall North

The hon. Gentleman will know that Members of Parliament are not usually reluctant to complain. I asked the Library how many complaints had been made before the introduction of this Bill by Members about correspondence being released without their permission. The Library was, as usual, very diligent, but could find only one Member—my hon. Friend John Smith—who intervened in a debate about Liverpool. That was the only recorded protest on the Floor of the House by a Member of Parliament before this Bill. Members of Parliament are not usually reluctant to raise issues when they believe that they are essential to their standing.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

The hon. Gentleman is correct—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. Norman Baker must be allowed to reply to the intervention.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

The hon. Member for Walsall, North is correct. Had there been example after example of MPs' correspondence being inappropriately used or leaked to newspapers, the House would have been in uproar about it. We would have had hon. Members making points of order, but that has not happened. It is not an issue.

Photo of David Winnick David Winnick Labour, Walsall North

Does the hon. Gentleman agree that although, of course, the confidentiality of correspondence is essential—if mine were released without authorisation I would hardly be reluctant to raise it with Mr. Speaker to defend the honour and privilege that I have as a Member of Parliament—this Bill is about concealing our expenses? That is the essence of the Bill.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I have already said this morning that we must focus all our remarks and attention on the amendments under discussion. The point made by the hon. Member for Walsall, North was widening the debate.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I am keen to make progress—

Photo of Evan Harris Evan Harris Science, Cross-Portfolio and Non-Portfolio Responsibilities 10:15 am, 18th May 2007

Mr. Burns made an interesting point, but if we were concerned about breaches of the data protection legislation, the most serious breach would be the release of confidential medical information by the NHS. However, there have been no calls for hospitals and the NHS to be removed completely from the Freedom of Information Act 2000. They know what their duties are under the data protection legislation and it would be illogical to use a Bill such as this to protect Members' correspondence when, important though it is, it is not as important as confidential medical information. If there is a problem, the priority is wrong.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

My hon. Friend makes a telling point, which I had failed to make in my earlier contribution. I am pleased that it has now been made and it underlines the case firmly. This is an inappropriate Bill and would send out all the wrong messages.

Photo of Jo Swinson Jo Swinson Shadow Minister (Women and Equality), Shadow Secretary of State for Scotland, Liberal Democrat Spokesperson (Scotland), Liberal Democrat Spokesperson (Women and Equality)

I was intrigued by the point raised by Mr. Winnick about the number of complaints—only one on the Floor of the House—that had been made before the Bill was introduced. As there has been much publicity since then, has there been a flurry of complaints to Mr. Speaker or on the Floor of the House? I have not been aware of that happening, but I wonder if my hon. Friend has.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

We have been looking for them. Indeed, with the publicity that the Bill has had, we have expected them to come out of the woodwork. We expected MPs from all parties to say, "Yes, this has happened to me." However, that has not happened at all. We have had no such examples. In Committee, all we heard were theoretical examples.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

The hon. Gentleman has accepted the point that my hon. Friend Mr. Winnick made about the Library. Is he also aware that we have a very good Information Commissioner, Mr. Richard Thomas, who has not had a single complaint or query from any Member of Parliament? Indeed, he does not recognise the issue as a problem. If he does not—and he probably knows more about freedom of information and data protection than anybody else in the country—and his office has not been bombarded with complaints, what on earth is the Bill about? It is a Bill to solve a problem that does not exist. If the right hon. Gentleman who introduced the Bill had had problems, he would presumably have taken them to the Information Commissioner, but he has never done so.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

That is correct. David Maclean is in his place. Apparently he has many supporters, including those on the Conservative and Government Front Benches. Perhaps some of them will come forward with some arguments in favour of the Bill, because it is a curious boxing match that has only one person in the ring.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

As I understand the amendments, they seek to protect the law as it stands. Is my hon. Friend aware that for many years now I have tried to obtain information about the deaths at Deepcut Army barracks, especially in regard to Cheryl James, the daughter of two of my constituents? I have found that the existing Freedom of Information Act 2000 is virtually toothless in those attempts. Is my hon. Friend attempting to preserve what little freedom of information we actually have, and is he—like me—concerned that the mood music of the Bill, without the amendments, would make it even more difficult for me to get the important information that Des and Doreen James have been seeking for four or five years about the death of their—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. The hon. Gentleman is aware that interventions should be brief. The hon. Member for Lewes has been generous in taking interventions, but I remind all hon. Members that interventions are not speeches and should be brief.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

As my hon. Friend Lembit Öpik said, the Freedom of Information Act already includes many exemptions for public bodies. The data protection legislation also includes some strict regulations that make the protection of correspondence and information about individuals very strong. It is difficult to obtain information; in fact, Members of Parliament have complained that they are even being asked to sign documentation to the effect that they are acting properly on behalf of their constituents. If anything, public authorities are keen not to release information.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

Has the hon. Gentleman considered the important point made by Mark Fisher, that in a widely leaked brief from the parliamentary Labour party urging support for this dire Bill, there is a request for evidence? That is evidence after the fact, because no evidence for the Bill is available.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

The hon. Gentleman's point makes itself, but it is a telling one nevertheless: this is a Bill in search of a purpose.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Party Chair, Liberal Democrats

My hon. Friend's point is confirmed by the Freedom of Information Act 2000, sections 21 to 44 of which all provide different exemptions from that measure. In addition, section 2 of the Data Protection Act 1998 particularly protects sensitive personal data, which could, for example, deal with the point made by Mrs. Cryer on the radio this morning.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I thank my hon. Friend for that intervention, which is extremely relevant to the debate, and I hope those in favour of the Bill take note of it.

Photo of Vincent Cable Vincent Cable Shadow Chancellor of the Exchequer, Liberal Democrat Spokesperson (Treasury)

Does my hon. Friend agree not only that the Data Protection Act provides substantial protection for confidential data in correspondence, but that there is a double lock, as he will recall, in the form of the Data Protection (Processing of Sensitive Personal Data) (Elected Representatives) Order 2002? The order addressed the fact that Members could not get access to confidential information in the course of their correspondence, so our constituents are protected not merely by the Data Protection Act but—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. Once again I remind Members that interventions are to be brief.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

My hon. Friend Dr. Cable makes an important point, which reinforces yet again the already strong safeguards in place.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I feel like Frankie Howerd in the prologue to "Up Pompeii!"—I give way to my hon. Friend.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

To finish the point about Deepcut, does my hon. Friend fully understand the concerns, and does he agree that we should actually be proposing amendments to make it easier for Members to get information that helps us to represent our constituents, rather than making it more difficult for our constituents to get information about us?

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I must not go too far along that line, Madam Deputy Speaker, or you will tell me off. Suffice it to say that the Freedom of Information Act is a flickering candle and I fear that if the Bill goes through it could be extinguished.

I dealt with amendment No. 2 in a previous sitting. I have also dealt with amendments Nos. 14 and 40, so now I want to address amendment No. 10.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

Before my hon. Friend moves on, may I express some concern about amendment No. 2? By deleting subsection (3), while retaining subsection (2), Parliament is made not to be a public body—absurdly—yet the converse does not apply for bodies that have a conversation, dialogue or correspondence with a Member of Parliament. The situation will be one-sided: a Member who writes to a body may be protected but the reverse would not be the case. If the amendment were accepted, would not that imbalance occur?

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I have some sympathy for my hon. Friend's viewpoint. Let me make it plain: the best solution entirely would be that the Bill does not go through, because the current arrangements are working quite well and there is no need to change them. However, my hon. Friend and I, with others, are trying to find a way to accommodate the concerns that have been expressed. I have taken those concerns at face value and as genuine, and tried to find an amendment that would deal with them, but I re-emphasise that the best solution is not to have the Bill at all.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Many of the amendments are tabled in the name of Simon Hughes. As he is speaking from the Liberal Democrat Front Bench on behalf of his party, can he explain why the Liberal Democrats made no such amendments in Committee and why their Front-Bench spokesman there supported the Bill?

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I fear that the hon. Gentleman may be guilty of tedious repetition if he carries on in that way. Concerns were expressed by the one Liberal Democrat member of the Committee, my hon. Friend Nick Harvey, who said he was squeamish about the measure—if I may paraphrase him. Our position is a logical progression.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Party Chair, Liberal Democrats

In the hope that dealing with the question put to my hon. Friend will stop further interventions, my hon. Friend Nick Harvey—not speaking on behalf of the Liberal Front Bench—said:

"I confess that I am slightly queasy about the suggestion that the solution is to take Parliament out of the Freedom of Information Act altogether, and I imagine that some of my colleagues, not least my hon. Friend Norman Baker, will have strong views on the issue on Report. However, it is up to those who do not believe that the Bill, which has the advantage of clarity and simplicity, is the way to address these very real issues to come up with a better suggestion." ——[Official Report, Freedom of Information (Amendment) Public Bill Committee, 7 February 2007; c. 17.]

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

rose in his place and claimed to move, That the Question be now proposed.

The House proceeded to a Division.

Photo of David Winnick David Winnick Labour, Walsall North

On a point of order, Madam Deputy Speaker. It goes without saying that I always respect the Chair, but many of us are very surprised that after only a short debate, when no other Members were allowed to contribute, the closure motion has been accepted. It will inevitably be seen as gagging Parliament and I must protest.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Far from attempting to gag Parliament, the motion is to allow the question to be proposed, to enable discussion and the contributions from Members that are clearly wanted on this group of amendments. It is not a closure motion.

Photo of David Howarth David Howarth Shadow Minister (Energy), Trade & Industry

Further to that point of order, Madam Deputy Speaker. My difficulty is that I thought I heard my hon. Friend Norman Baker say that it will be recorded in Hansard that at the start of his speech he did in fact propose the question. He proposed the question in the course of his speech, too, so I cannot see why we should vote on something that has already been done.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

May I remind the hon. Gentleman of procedure? The question is not actually proposed until it is proposed from the Chair; it is moved by the Member, but proposed by the occupant of the Chair. That is what we are now proceeding to do, which will, I hope, enable further debate to take place.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

On a point of order, Madam Deputy Speaker. Given that it would seem that more hon. Members are going through the Aye Lobby, which has managed to clear successfully, would it be in order to investigate the delay in the No Lobby?

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

The right hon. Gentleman is clearly a mind reader. I was about to ask the Serjeant to investigate the delay in the No Lobby.

The House having divided: Ayes 113, Noes 27.

Division number 119 Freedom of Information (Amendment) Bill — That the Question now be proposed

Aye: 113 MPs

No: 27 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 502 MPs

Absents: A-Z by last name

Question accordingly agreed to.

Question accordingly proposed, That the amendment be made.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

I will comment briefly on the group of amendments to which Norman Baker spoke. I will be brief for a simple reason: the hon. Gentleman and several of his hon. Friends are quoted in the Press Gazette and other press reports as going all out to wreck the Bill. It is said that they intend to stop it and do not wish it to reach the other place.

The hon. Gentleman takes the high-minded view, as is entirely his privilege, that if the Bill was passed, it would somehow strike a general blow to the Freedom of Information Act 2000, but I do not accept that argument. The amendments are deliberately intended not to improve the Bill, to make a few tweaks to it or to make it operate better, but to wreck and stop it. The delay in the No Lobby was further evidence of that. I think that the House will thus understand why I will not go into detail on any of the amendments, which I consider to be bogus.

If we get to Third Reading, as I hope that we will, I will set out in slightly greater detail the reasons behind the Bill. However, at this stage it is suffice to say that I did not wake up one morning and suddenly decide that I must change the Freedom of Information Act. I have the honour and privilege of serving on the House of Commons Commission, along with senior colleagues from both sides of the House. I am aware of the growing problem of correspondence being released.

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough

Will the right hon. Gentleman give way?

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

I apologise to the hon. Lady, but I am going to be very brief.

Of course the Library will not know some of the details of the problem. I have in my hand a letter sent to an hon. Member by a third party that boasts that that third party has acquired correspondence from that Member that was sent to a public authority on behalf of a constituent. I have other examples.

Hon. Members who have supported me in the Aye Lobby have told me that some of their correspondence relating to a constituent has been released against their will. Theoretically, it could be protected under data protection—[Hon. Members: "Legally!"] But it has not been. An officer of a local authority—inadvertently, by mistake or by design—released correspondence that the hon. Member to whom I referred thought was confidential. That is damaging. My Bill is necessary to give an absolute guarantee that the correspondence that Members of Parliament write to public authorities on behalf of our constituents or others remains confidential.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

The piece of paper that my right hon. Friend held in his hand and cited as evidence to the House was heavily redacted—people's names had been extracted from it. It thus did not identify the constituent at all.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee) 10:45 am, 18th May 2007

My hon. Friend might have been making a good point—but on this occasion he is utterly wrong. The letter is redacted because the Member of Parliament who handed it to me made the deletions to disguise his constituent in case I left it lying around the House today.

Photo of Martin Salter Martin Salter Labour, Reading West

May I read into the record the fact that the document that I handed to the right hon. Gentleman was a letter to me from someone who was able to access correspondence that I took up in confidence on behalf of a constituent, which identified the name of the original complainant? It is absolutely monstrous that the sanctity of confidentiality is being breached.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

I am grateful to the hon. Gentleman for giving the House vital information.

If the hon. Members who oppose the Bill had bothered to read the Committee proceedings, they would have seen that Members of all parties—Liberal, Labour, Conservative and the Democratic Unionist party—support the Bill. Committee members said that organisations—some thought the British National party; some thought criminal organisations—were attempting, as third parties, to access files of correspondence and get information that should not be in the public domain because it was confidential and related to constituents.

I conclude my remarks, and will speak further on Third Reading, if we reach it.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

Let me make it clear right from the start not only that this is not a Government Bill, but that the Government are neutral on the Bill. The earlier remarks of Norman Baker were thus quite wrong. The Government have been neutral on the Bill throughout. We believe, as I and others have said, that this is a matter for Parliament to discuss, not for the Government to decide.

Photo of David Howarth David Howarth Shadow Minister (Energy), Trade & Industry

If the Government are not supporting the Bill, how does the Minister explain the fact that when we voted on this matter a couple of weeks ago, the vast majority of the people who voted in the Bill's favour were Government Ministers, Government Whips and Opposition Whips?

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

And Parliamentary Private Secretaries.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

Dear, oh dear, oh dear. It comes to something when Members are expected not to vote on private Members' Bills. I thought that that was the whole point of them.

Let me point out two things to David Howarth. First, it is has become clear this morning that most Liberal Democrat Members do not understand parliamentary procedure. Secondly, as he will know, on every occasion on which the Bill has been before the House, whether on consideration of amendments or otherwise, I, representing the Government and the Department that deals with freedom of information, have not voted in favour of it.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Party Chair, Liberal Democrats

Since the Minister has been in her job, have any of her colleagues in her Department or its predecessor Department, the Department for Constitutional Affairs, seen evidence that the Freedom of Information Act 2000 or data protection legislation has been breached in a way that would cause us to need to pass such a Bill? Have there ever been any discussions about such a plan in her Department?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

We have had no discussions in the Department about a plan to do such a thing. The hon. Gentleman will know from answers from me and from the Leader of the House to written questions that we have said that because this private Member's Bill is up for debate, we are leaving it to Parliament to come to a decision. There is clearly an appetite for debate on the Bill, so it would be inappropriate for the Government to intervene.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

The hon. Lady will know that through parliamentary correspondence over four years—and more recently, actually—I have been trying to get the release of a Devon and Cornwall police report on Surrey police's handling of the death of the daughter of one of my constituents. The Government have not been forthcoming in helping me to use existing freedom of information legislation to get that information. Does she not understand that our personal experiences—such as mine in relation to Deepcut—of the mood music coming from the Government make us sceptical? It appears to us that the Government are keen to see the Bill pass. Can she give us an assurance that the Government really do believe in the tenets of the Freedom of Information Act, which they originally supported?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

Not only did we support the Act, but we are the Government who brought in the Freedom of Information Act. I cannot think how our support for freedom of information and for the release of information by the 110,000 public authorities that are subject to the Act could be more obvious.

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough

The Minister says that the Government have taken a neutral stance on the Bill. Later, there will be opportunities to vote for amendments to the Bill. The amendment moved by Norman Baker would remove the reference to the entirety of Members' correspondence, not only the type of correspondence that has been the subject of debate—correspondence about individual constituents. Alternative amendments offer an opportunity to exclude that type of private correspondence. Will the Minister enable the House to understand whether the Government might take the opportunity to support one of those alternative amendments, so that Members can be confident that confidential matters relating to their constituents will be protected, but that material on matters of public policy on which they correspond with public authorities will be available to be revealed in public—something that all of us as Members of Parliament should be prepared to allow?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I am grateful to my hon. Friend, because she allows me to explain why I feel that the amendments would make the Freedom of Information Act more difficult to operate and complicate the work of the 110,000 public bodies that have embraced freedom of information.

Photo of Barry Sheerman Barry Sheerman Chair, Education & Skills Committee

I am one of the Labour Members who do not particularly like the Bill, but what sticks in my craw is the behaviour of the Liberal Democrats. I listen to them on the radio, and in any forum in which they can be heard, hijacking the issue for party political purposes. I have not had pressure put on me to vote either way on the Bill, and do not know of any colleague who has. In fact, I have received e-mails expressing every sort of view within my party, but nothing from Whips or any member of the Government. I do not like the Bill, but I do object to the Liberal Democrats—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. Interventions are to be brief.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

My hon. Friend makes his point well. The matter should be for Parliament to decide, not the subject of party political grandstanding.

Photo of Tim Farron Tim Farron Leader's Parliamentary Private Secretary, Cross-Portfolio and Non-Portfolio Responsibilities, Shadow Minister (Home Affairs)

The Minister says that 110,000 public bodies are subject to the Freedom of Information Act. Does she not think it peculiar that here we are in the House of Commons considering the exclusion of just one of them—this one? Does she not believe that that is an utterly self-regarding proposal, which brings MPs and Parliament into disrepute?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

If I may say so gently to the hon. Gentleman, for a Liberal Democrat to talk about people being self-regarding must be rather like looking in the mirror. It is for David Maclean, whose Bill this is, to justify its being before the House; it is for me, as a member of the Government in whose Department freedom of information sits, to explain why the amendments are not appropriate.

Amendment No. 2 would remove or limit the power of the new exemption for Members' correspondence in the Bill. Whether such an exemption should exist is a question for Parliament to consider, but the amendment would clearly scupper an important part of the Bill.

Photo of John Redwood John Redwood Conservative, Wokingham

Is the Minister speaking as an individual or is she giving the Government's view? Are Ministers and PPSs allowed to vote against the view that she expresses today?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I am giving the Government's view on the Bill. In debates on private Members' Bills, it is entirely for Members of Parliament to decide whether to support or oppose them. In the past, the Government have supported private Members' Bills, opposed them, or remained neutral. On this Bill, the Government are neutral.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

Moving on to discuss amendments Nos. 12, 24, 39 and 44, which would qualify the new exemption—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. The Minister makes the point for me. It is up to the Member on their feet to choose whether to give way. The Minister has given way several times, but clearly she is now making progress with her speech.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

Thank you very much, Madam Deputy Speaker. I want to move on, so that we can move the debate on.

Amendments Nos. 12, 24, 39 and 44 would qualify the new exemption so that public authorities would need to consider the public interest in withholding or releasing Members' correspondence. The public interest test can encompass all the factors mentioned in the amendments, including any relationship that the Member may have with the public authority in question and the nature of the information—whether it is about general policy or an individual case.

I am not sure that the House would wish, through amendments Nos. 25 and 45, to create an exemption limited to letters and electronic correspondence. I suggest that we should guard against inhibiting such communications, which might cause Members to decide to discuss some of the important matters that their constituents raise only in meetings or on the telephone, rather than commit themselves to paper.

Amendments Nos. 10, 11, 16, 41 and 42 relate to personal data. The personal information contained in MPs' correspondence is already covered by the exemption as drafted. It is for the House to determine the scope and the extent of that exemption, but I remind hon. Members that there is already an exemption for personal data.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I am most grateful to the Minister, first for giving way and secondly for making that clear point. That very clear exemption is the reason why many of us oppose the Bill. Is she aware that some of her earlier arguments are the exact reverse of the arguments adduced in the Standing Committee on the Freedom of Information Bill, on which I had the honour to serve, with Mark Fisher? In that Committee, the Minister told us that class exemptions, rather than general exemptions, were absolutely essential, and that is why the Freedom of Information Act is framed as it is.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

The original intention was to exempt Parliament from the Freedom of Information Act. It was a later decision that brought Parliament within its scope.

Let me put one point clearly on the record. There has been much discussion of the role of the Data Protection Act. That Act applies only to personal data. Where a Member's correspondence contains personal data it should be withheld only if disclosure would breach one of the data protection principles—

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I would like to finish my point first.

That does not mean that in all cases personal data will be protected. In common with many exemptions from the Freedom of Information Act, the Data Protection Act requires public authorities to conduct a balancing act when deciding whether to disclose. The cases that some hon. Members have raised of information being brought into the public domain shows that that balancing act is not always simple.

Photo of David Winnick David Winnick Labour, Walsall North

Is it not of some interest that the Information Commissioner's office stated that in nearly two and a half years since the Freedom of Information Act came into force, it had not received a single complaint from a Member of Parliament or from a constituent concerning the improper disclosure of such correspondence—not a single complaint? Surely that demonstrates that what David Maclean said a few minutes ago in favour of his Bill simply does not add up. I hope that the Minister will bear that point in mind.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I hear what my hon. Friend, and indeed other hon. Members, have said about the Information Commissioner not having received any complaints. I cannot speak on behalf of other Members and say why they have not raised issues with the Information Commissioner. I know that some hon. Gentlemen on the Opposition Benches have raised that point, both with the Leader of the House and with me. There is a tragic case in my constituency that I heard about only yesterday, in which information was disclosed to a husband who, it is alleged, commits domestic violence. I corresponded with a public authority on behalf of my constituent, and information in that correspondence was released to that husband. I now fear very much for my constituent's safety, and indeed for the safety of my constituency staff, as the husband has been to my constituency office. Hon. Members may say to me, "That information shouldn't have been released," and that may well be the case, but there is not much point in saying that after the fact.

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough 11:00 am, 18th May 2007

The Minister makes the reasonable point that it is not good enough to say that information should not have been released once it has been released—but I ask her, as the Minister responsible for the Freedom of Information Act 2000, what action she is taking with regard to authorities that wrongly release information. What training scheme does she have in place? As she pointed out, public authorities have released information when legally they should not have done so; how will she prevent them from doing that, and why does she believe that another law will be better obeyed than the present law?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

The Department for Constitutional Affairs issued guidance on the subject on more than one occasion, and as I understand it, the Information Commissioner issues guidance to public authorities. However—this is the nub of the debate—it is for the House to decide whether the 2000 Act, as it stands, is sufficiently robust on the issue. It is up to the House to make that decision.

I shall move on to the confidentiality amendments, Nos. 14 and 40. Replacing the exemption as currently drafted with a presumption that the holder has an obligation of confidentiality will merely have the effect of making it easier for public authorities to refuse requests for Members' correspondence. In Committee, hon. Members agreed that there are occasions when it is right that such correspondence should enter the public domain—I think that my hon. Friend Fiona Mactaggart raised that point—and the exemption, as currently drafted, recognises that. It is a qualified exemption subject to the public interest test. The amendments would add a rigidity, so the House needs to consider that carefully.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

The exemption, as currently drafted, is already subject to the public interest test. If the amendments were made, it would make it much more difficult for public authorities to carry out requests.

My final point is that that the Bill as drafted contains express provision to ensure that it will not have retrospective effect. It is important that the House is aware of that. Any request for information received by a public authority prior to the commencement of the Act, should the Bill ever become an Act, will be treated as though the Act were not in force. It would be for both Houses of Parliament to comply with freedom of information requests received up to the date of commencement. Amendment No. 26 would put a limit on the exemption, and that is inconsistent with the rest of the Freedom of Information Act 2000. It would unnecessarily complicate the operation of that Act.

As I said at the beginning, the Government remain neutral on the Bill. It is for the House to make up its mind whether it thinks that the 2000 Act, which I commend to the House as an excellent piece of legislation that created transparency that was not there before, needs to be further enhanced in this private Member's Bill. That is a matter entirely for the House, but I can tell the House that, on behalf of the Government, I will not vote in Divisions on the amendments, or on the Bill's Third Reading, should we reach it.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

It is a pleasure to speak on the large group of amendments before us. As I said in an earlier intervention, I had the pleasure of serving on the Standing Committee that considered the Freedom of Information Bill, along with Mark Fisher, although when I asked him about it earlier, he had forgotten that he served on it, so broad is his experience in the House. He did indeed serve on the Committee, and he made a valuable contribution to it. I feel a degree of proprietorship over the provisions of the 2000 Act. In many ways, it was not perfect, and we tried hard to make it stronger. Nevertheless, it fulfilled some of its objectives. That is why I am loth to accept anything that waters down its provisions, especially when the arguments for doing so are so sparse, so badly expressed and so vacuous in nature.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

As my hon. Friend says, those arguments are unsupported by the evidence, too. We have asked time and again for the evidence in support of those arguments. That is why the group of amendments is so important.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

The hon. Gentleman says that the arguments in favour of the Bill are sparse, but hon. Members in the Chamber have not heard any of them. The proposer of the Bill, David Maclean, has yet to speak on the Bill; is that not an extraordinary state of affairs? We are being asked to consider a piece of legislation, but the person proposing it has not made the case in favour of it. He kindly tells us that he will bide his time until Third Reading, but by that stage, we will have already discussed amendments. If we are to have an intelligent debate on the amendments, do we not need to hear the proposer of the Bill tell us what the Bill is about? Plainly, we are all very confused in opposing it, but we have not yet heard—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. The hon. Gentleman is going on at length in his "brief" intervention. I call Mr. David Heath.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I am most grateful, Madam Deputy Speaker. The hon. Member for Stoke-on-Trent, Central is not exactly right, because of course we just heard from David Maclean.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I will in just a moment. On the sparseness of the argument, I suspect that I know why we have not heard a proper rebuttal of the amendments. The right hon. Gentleman can correct this impression when he intervenes on me in a moment, but he gives the impression that consideration of the Bill on Report is a sort of procedural anomaly that must be borne with forbearance, rather than a crucial part of the House's consideration of a Bill that will have a profound effect on not only the operation of the Freedom of Information Act 2000, but the reputation of the House. That is what causes many of us concern.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

I just want to put on record that my Bill had been on the Order Paper for some time. It received a completely unopposed Second Reading, and I could not talk on a Bill with an unopposed Second Reading. In Committee, it had the unanimous support of Labour, Conservative, and Ulster Unionist Members, and the support of the Liberal Democrat Member— [Interruption.] If I get to Third Reading

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I call David Maclean, who is on his feet.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

It is not outrageous. Those are the facts, and the facts on the record speak for themselves. The Bill had unanimous support in Committee. If we get to Third Reading, I will speak.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I am grateful to you, Madam Deputy Speaker. There was a risk of interventions on interventions, and it is important that we keep in order.

Several hon. Members:

rose —

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

Having said that, I will take two interventions before I move on to the substance of the amendments. I will give way first to my hon. Friend Julia Goldsworthy, and then to Mr. Shepherd.

Photo of Julia Goldsworthy Julia Goldsworthy Shadow Chief Secretary To the Treasury, Treasury

A number of anecdotal examples have been given today; one was given by David Maclean, and another was given by the Minister. However, we have not heard whether, in those cases, the personal information was released as a result of a freedom of information request.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

Let us take the charitable view and suggest that the cases involved a properly constructed freedom of information request to a public authority, and that, for some reason, the bureaucrats involved had no idea what the law says, and were therefore prepared to provide information that they should not have provided, in contradiction to the laws that are already in place to give protection. Let us say that the information was put into the public domain in that way. If that is the case, it raises two important questions. First, was any action taken subsequent to the release of that material? Was it referred to the Information Commissioner? Was the public authority involved reminded of its duties under law? Was there any subsequent action? [Interruption.] The right hon. Member for Penrith and The Border says from a sedentary position, "They just did it". Yes, and they will continue to just do it if his Bill is enacted, because somebody who is ignorant of the provisions of the Data Protection Act 1998 and of the Freedom of Information Act 2000 as it is currently constituted is just as likely to be ignorant of the provisions of his law.

Several hon. Members:

rose —

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

The hon. Gentleman was talking about the process, and process is important. Is it not the case that for a private Member's Bill unopposed at its Second Reading, the construction of the Committee is entirely in the hands of the promoter, and that therefore this was more of a—

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

—stitch-up, to quote Norman Baker, than a properly balanced Second Reading Committee?

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I could not possibly use the word "stitch-up". It is inappropriate language. I shall return to the amendments before us, rather than discuss the process by which we reached them. The amendments are important and I want to do them justice, but I notice that there are still at least two hon. Members wishing to intervene.

Photo of David Winnick David Winnick Labour, Walsall North

The hon. Gentleman will have heard my intervention in the Minister's speech, when I said that the Information Commissioner had not received complaints. If there is a genuine problem, which I doubt, would it not be more appropriate to strengthen the Data Protection Act, if need be? What is proposed in the Bill would spread the suspicion among many, many people in the country that we want to conceal information—I shall not go into what sort of information, as that would be out of order—and that we want to be separate. Everybody else would be subject to the Freedom of Information Act—public bodies, local authorities, the devolved institutions—but not us.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I agree, of course, but my concern is that we are straying into Third Reading territory rather than dealing with the amendments before us. I want to make sure that I concentrate on the amendments, but I shall take one more intervention before making progress.

Photo of Jim Cousins Jim Cousins Labour, Newcastle upon Tyne Central

May I bring the hon. Gentleman back to the intervention by his hon. Friend Julia Goldsworthy? Let us set aside for a moment the issue of Members of Parliament. If there had been a widespread misuse of the public interest override on release of personal data, the House would have expected the Information Commissioner to report on that and bring it to the attention of both the Government and the House. No such thing has happened, and my hon. Friend the Minister made no such claim in her speech.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office) 11:15 am, 18th May 2007

I am grateful to the hon. Gentleman for that intervention, which crystallises many of the arguments about the lack of evidence. First, he makes the point that none of the reports of the Information Commissioner has suggested that the problem is widespread. Secondly, the public interest override is retained.

The Minister asserted that amendment No. 14 made matters more complicated because it made it more difficult to interpret the public interest override. Absolute nonsense. It is still there. Whoever wrote that briefing for her was in a very confused state of mind when doing so. Nothing changes as a result of the amendment being passed, other than a tightening of the exempt material so that we are clear what is the exempt material and the mischief that the right hon. Member for Penrith and The Border presumably has it in mind to remedy. Some of us do not believe that mischief exists, but he does. We are therefore helping him by tabling amendments that identify that mischief in specific terms, rather than in general terms that are likely to bring the House into disrepute.

Photo of John Redwood John Redwood Conservative, Wokingham

Will the hon. Gentleman confirm that my right hon. Friend's Bill would never allow the House to withhold information such as the personal expenses of MPs? The real argument is about the Government's and my right hon. Friend's proposal to exempt our correspondence to public bodies about public policy matters, whereas the amendment tabled by my hon. Friend Mr. Shepherd, amendment No. 40, is more strictly controlled so that it protects what we all want to protect, which is correspondence on behalf of individual constituents?

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I am grateful to the right hon. Gentleman for his intervention. Some of those matters were debated on the previous occasion, so I would be out of order were I to go on any excursions into that territory.

It worries me that the consequence of the Bill as currently drafted is that the whole of Parliament is exempted as a public body. The House of Commons is no longer a public body, according to the Bill if it is passed. What an extraordinary state of affairs.

Several hon. Members:

rose —

Photo of Sally Keeble Sally Keeble Labour, Northampton North

In discussing the amendment, will the hon. Gentleman take into account my experience of freedom of information requests made to me and to the county council about information that it holds about a constituent? Before such information is released, the local authority writes to me and gets me to sign, so there is ample opportunity for me to object if safety issues affecting my constituent are involved. There is no need for the amendment.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

Of course there is ample opportunity. There are all manner of provisions in the original enactment that safeguard the interests of the individual. That is why the whole Bill is otiose in the extreme.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I must make progress. I have not reached amendment No. 2 yet. This is the last time that I shall give way, as I want to address the arguments on the amendments.

Photo of David Howarth David Howarth Shadow Minister (Energy), Trade & Industry

I thank my hon. Friend for giving way and understand his impatience to get on to the substance of the amendments before the House. To reassure Ms Keeble, it is an important principle to bear in mind that we are talking about Parliament being a public authority and subject to the Act, not individual MPs. Individual MPs have never counted as public authorities and therefore have never been subject to the Act.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

My hon. Friend is, of course, absolutely right. Let me deal with amendment No. 2.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I would be accused of inconsistency if the very last words that I said prior to taking the last intervention were that that would be the last intervention before I got on to the amendments, and I then took an intervention from my hon. Friend Norman Baker, despite the fact that I would love to do so. I shall store it up and take it later.

In an earlier intervention I expressed my disquiet with amendment No. 2. It seeks to remove many of the obnoxious elements in the Bill and I could not quarrel with that intention. If my hon. Friend intends to press the amendment to a Division—because of the procedural shenanigans earlier, we were not allowed to hear his speech in favour of other amendments, but he may have an opportunity to return when he sums up the debate.

My problem is with amendment No. 2, and the reason that I prefer some of the other amendments, is that if it were accepted, the result would be that clause 1(3) would be removed. It would not exist. We would have subsection (1), subsection (2), subsection (4), which would become subsection (3), and subsection (5), which would become subsection (4). Subsection (2) has already been discussed, so we cannot revisit it. It removes the House of Commons and the House of Lords from schedule 1 of the Freedom of Information Act 2000. Schedule 1, which is the list of public authorities to which the Bill would apply, would be minus the House of Commons and the House of Lords which, as I said earlier, are an absurdity if they are not public authorities.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

Let me develop my argument a little, if I may.

There would be a serious imbalance in interpreting the legislation on the part of other authorities or individuals, because the House of the Commons and the House of Lords would not be a public body, but the body to which we were corresponding—which is, by definition, one of those covered by the 2000 Act—would. We would be in the extraordinary position that no application could be made to the House of Commons or the House of Lords on one side of any dialogue or correspondence, but the application could be made—without exemptions, were the amendment to be made—on the other side. There would be a fundamental imbalance.

Some might argue that amendment No. 2 would be an improvement because it would make it even more obvious what an absurd Bill it is. However, on balance I prefer a Bill to have a degree of internal integrity and equilibrium in its structure. I fear that the amendment would lose that and create an unbalanced Bill.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

The hon. Gentleman referred to the House of Commons "or" the House of Lords. In subsection (3), new section 34A applies only to the House of Commons, not to the House of Lords. This is a matter for Parliament—both Houses—yet the Bill appears to confine itself to the House of Commons. Am I wrong, or have I missed something?

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

The hon. Gentleman is not wrong, nor has he missed anything—he is absolutely right in his interpretation. The right hon. Member for Penrith and The Border is the only person who can explain this; perhaps he can return to it on Third Reading. For some reason, under subsection (2) the House of Lords would no longer be a public authority. It is arguable whether the House of Lords as currently constructed is a public authority, but it is the upper House of Parliament until it is reformed, and I would say that it is a public authority. It is exempted in subsection (2) but not mentioned in subsection (3), which relates only to communications with the House of Commons. Were one to accept the difficulties that the right hon. Gentleman raises, which I do not, one could argue for that difference on the basis that Members of the House of Commons have constituents and Members of the House of Lords do not, although they often take up cases on behalf of individuals.

One of the questions that has often been asked in relation to the Bill is what the difference is between a Member of the House of Commons taking up a matter on behalf of their constituents and a county councillor doing so. I was a county councillor for 12 years, and I used regularly to write to public authorities on behalf of my constituents. There is no difference in kind between a Member of the House of Commons and a county councillor, a district councillor, a parish councillor, a member of a community council or a member of a unitary authority. That is an inconsistency that the right hon. Member for Penrith and The Border would do well to explain when the Bill reaches Third Reading.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Party Chair, Liberal Democrats

We have tried to address that in the amendments that were tabled and from which Mr. Speaker has selected. The House has an option. If it supported amendment No. 14, the provisions would relate only to the Commons, but if it supported amendment No. 40, they would apply to the Commons and the Lords. It is a perfectly proper question, and the selection allows us to make the choice.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

It is a proper question. I am about to move on to amendment No. 14, because we may have exhausted amendment No. 2.

Photo of Alan Reid Alan Reid Shadow Minister (Northern Ireland)

My hon. Friend has hit on an inconsistency in the Bill. He referred to county councils, but there is also the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. Subsection (3) would create the absurd situation whereby if the constituency MSP and I wrote a joint letter on behalf of constituents concerning public policy, it could not be released, but if we wrote separate but identical letters, the MSP's letter could be released and mine could not.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

My hon. Friend has opened up a whole new area of debate. He is right, and we should have an amendment to that effect. As I sit for a Somerset constituency, I am afraid that I had not appreciated that glaring discrepancy.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

The hon. Member for Banff and Buchan would have to write very clearly at the top of his letter, "I am writing this as a Member of the House of Commons", or "I am writing this as a Member of the Scottish Parliament." If he wrote the letter as First Minister, he would be writing as a member of the Government, and there are Government exemptions within the scope of the original enactment. We would need to check whether his letter was written as from the hon. Member for Banff and Buchan, as from the MSP for Gordon, or as from the First Minister. Does it contain personal information? Does it contain policy discussion? Is that policy discussion based on information that he has received from the civil service in Edinburgh, in which case it may be exempt information, or is it from the Government here, in which case it falls into a completely different category? There are all sorts of complexities, and I wish I had not started thinking about it. The more I do so, however, the more I realise that this whole area requires the Bill to be recommitted, because it fails to address the new and important issue about hon. Members with dual membership. However, that has nothing to do with amendment No. 2.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

My hon. Friend is going to tell me that it does have something to do with amendment No. 2.

Photo of Jo Swinson Jo Swinson Shadow Minister (Women and Equality), Shadow Secretary of State for Scotland, Liberal Democrat Spokesperson (Scotland), Liberal Democrat Spokesperson (Women and Equality)

It is indeed relevant to the amendment. As a Member of this Parliament and a Scottish Member, under the Bill a letter that I wrote to a Scottish authority in my capacity as MP—to the Greater Glasgow health board, for example—would be treated entirely differently from correspondence under the stronger Freedom of Information (Scotland) Act 2002. That correspondence would not be exempt, but any correspondence to, say, the Department for Work and Pensions would be exempt. I do not know whether it would matter whether I had written to the DWP office in Scotland or the office in London. The Bill would bring many confusions to Scottish Members of Parliament.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I am so happy that we simple souls in Somerset do not have these problems. It must be a daily problem for Members who represent Scottish and Welsh seats to work out exactly what is what. We see that every time there are Scottish or Welsh questions, because the question nearly always concerns something that is not the responsibility of the Minister on the Treasury Bench.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

My hon. Friend is neither Scottish nor Welsh. Surely he does not suggest that there is a further difficulty in Cambridge.

Photo of David Howarth David Howarth Shadow Minister (Energy), Trade & Industry

There is a further difficulty everywhere. My hon. Friend's comments are relevant to the amendment. If I manage to catch your eye later, Madam Deputy Speaker, I am happy to expand on the point. The Bill as it is currently drafted refers to what Members of Parliament do in that capacity. The meaning of those words is unclear. For example, if I wrote a letter to my local authority protesting about a planning application from my next-door neighbour, would I be acting in my capacity as a Member of Parliament or not?

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office) 11:30 am, 18th May 2007

That is a cogent point, which we tackled in the Standing Committee that considered the original measure. Some of us argued that there should be a more objective test of the exempt material. However, Ministers told us that it had to be subjective and at the discretion of the public authority and, subsequently, of the Information Commissioner. That is why the Under-Secretary's response to the amendments is so perplexing because she turned that argument on its head and said that the position that I described is no longer the Government's. She said that they no longer expect that extent of subjectivity, which was prayed in aid by the Solicitor-General, who was then Minister of State at the Home Office, and Mr. David Lock, who was then Solicitor-General.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

rose in his place and claimed to move, That the Question be now put.

Question put, That the Question be now put:—

The House proceeded to a Division.

Hon. Members:

On a point of order, Madam Speaker.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Under the Standing Orders of the House, the occupant of the Chair is directed to put the Question forthwith. A Division has been called.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

On a point of order, Madam Deputy Speaker. You have not allowed a single Labour Member to speak. The Speaker said that he would give voice to everybody in the House.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

I remind hon. Members that numerous interventions were made during the debate.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

Further to that point of order, Madam Deputy Speaker. There have been no speeches from Labour Members. It is outrageous.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

May I make it clear to hon. Members that, as the occupant of the Chair, I am bound by Standing Orders? When a closure is moved, if granted, the Question must be put forthwith.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

Further to that point of order, Madam Deputy Speaker. My understanding is that putting the Question is at the Chair's discretion. You have accepted closure on a limited basis, after announcing at the beginning of our proceedings that you would give all hon. Members a chance to speak. I tabled amendments but I have not been able to speak about them. No Labour Member has been able to speak about their amendments and no other Conservative Member has been able to speak against the dire Bill during consideration of the amendments.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

The decision is in the hands of Members. The Division has been called. I have allowed more than two-and-a-half hours of debate and it is now up to hon. Members to determine the outcome of the vote.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

Further to that point of order, Madam Deputy Speaker. With respect, Standing Orders indicate—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. A Division is in progress. I shall not allow further points of order.

No Member being willing to act as Teller for the Noes, Madam Deputy Speaker declared that the Ayes had it.

Question put accordingly, That the amendment be made:—

The House proceeded to a Division.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

On a point of order, Madam Deputy Speaker. Once again, those in support of me and the Bill have managed to clear the Lobby. I anticipate that they are in the majority, but the opponents of the Bill seem to be delaying once again.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

I ask the Serjeant at Arms to investigate the delay in the Aye Lobby.

The House having divided: Ayes 33, Noes 100.

Division number 120 Freedom of Information (Amendment) Bill — Continue to disclose MPs' correspondence — rejected

Aye: 33 MPs

No: 100 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 509 MPs

Absents: A-Z by last name

Question accordingly negatived.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I understand that separate Divisions are sought on a number of amendments. The approval of subsection (3) by the defeat of amendment No. 2 limits that choice substantially, but I am prepared to allow a Division on amendment No. 40.

Amendment proposed: No. 40, in page 1, leave out lines 7 to 12 and insert—

'(1) For the purposes of section 41(1), information which—

(a) is held only by virtue of being contained in a communication between a member of the House of Commons, acting in his capacity as such, or a member of the House of Lords, and a public authority, and

(b) in the case of a member of the House of Commons, consists of information relating to the personal affairs of a constituent of that member, shall, unless the contrary is indicated, be deemed to have been communicated in circumstances importing an obligation of confidence.'.— [Mr. Shepherd.]

The House divided: Ayes 32, Noes 96.

Division number 121 Freedom of Information (Amendment) Bill — Exempt constituents' letters only — rejected

Aye: 32 MPs

No: 96 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 514 MPs

Absents: A-Z by last name

Question accordingly negatived.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Party Chair, Liberal Democrats

On a point of order, Madam Deputy Speaker. I understood your point about our not voting further on matters covered by earlier votes, but I wonder whether you could reflect on whether it would be possible for us to consider and vote on amendment No. 16, which does not appear to be linked with earlier votes in the same way.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

I understand the hon. Gentleman's point, and I have reflected on it. Having done so, I must stick to my original ruling. I decided to allow a second vote, and that was the vote on amendment No. 40.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

On a point of order, Madam Deputy Speaker. I understand your ruling and the thinking behind it, but amendments Nos. 41 and 42, tabled by Mr. Shepherd and me, raise a wholly different point about the House of Lords, which we have not covered at all.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

It has never been the practice of the occupant of the Chair to engage in a discussion on the Floor of the House about the selection of amendments. As I said, I have already given the House an opportunity to vote on amendment No. 40. My decision was marginal, but I thought that hon. Members should have the benefit of the doubt. Now we must move on.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

On a point of order, Madam Deputy Speaker. I refer you to Standing Order No. 36, which states

"After a question has been proposed a Member rising in his place may claim to move, 'That the question be now put,' and, unless it shall appear to the chair that such motion is an abuse of the rules of the House, or an infringement of the rights of the minority, the question 'that the question be now put,' shall be put forthwith."

The point of order for you, Madam Deputy Speaker, is this: a large number of Members—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I am sorry, but we are now entering into a debate. I have made a ruling and a decision, and we must now move on.

Order for Third Reading read.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Party Chair, Liberal Democrats

On a point of order, Madam Deputy Speaker. May I seek your leave to move that further consideration be now adjourned?

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

I must inform the hon. Gentleman that consideration has been completed, and we are now debating Third Reading.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee) 12:08 pm, 18th May 2007

I beg to move, That the Bill be now read the Third time.

I accept the genuine opinions of Members in all parts of the House who take a serious view of the Freedom of Information Act, support the Act, and oppose the Bill on principle. But I must tell some Members that I do not think they have helped their cause by supporting Norman Baker, who has made clear in the press on countless occasions that his intention on the past few Fridays has been not to amend the Bill or make it work better, but to prevent it from passing to the House of Lords today. He has stated:

"This will do nothing to enhance the reputation of MPs and I and others"—

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough

Will the right hon. Gentleman give way?

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

I will, but I should like to make a bit of progress first.

The hon. Member for Lewes said:

"I and others will attempt to stop the bill."

That has obviously coloured my view of the hon. Gentleman's amendments. I believe that moving the closure motion after two hours and 40 minutes was perfectly legitimate, given that all the amendments were designed not to improve the Bill but to wreck it. I think it right that the House has made legitimate progress.

As I said earlier, I am honoured and privileged to serve on the House of Commons Commission, along with other Members who are infinitely more distinguished than I. It was because of my work on the Commission—

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough

Will the right hon. Gentleman give way?

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

I will in a moment.

It was because of problems that I saw arising through my work on the Commission that I decided to table the Bill. Of course, the House of Commons Library might not have details of some of the problems that Members have experienced, but I am aware of many of them and I referred to one today. I have also been informed by other Members of problems that they have encountered when correspondence that they have written in confidence on behalf of a constituent to a public authority has been released on the say-so of someone else. Theoretically, if the law is to work properly, when a third party attempts to access a file containing a letter from a Member of Parliament to a public authority, an officer of the public authority should consult the Member and should look at the file, and then should make a decision on whether it should be released. If it contains personal information, the officer of the authority should invoke the Data Protection Act 1998 and should not release it. There are an awful lot of "shoulds"—there are a lot of things that should happen—but unfortunately I have come across cases when they have not happened.

If the word gets out more widely that some of the information Members of Parliament receive in confidence when talking to our constituents will get into the public domain—perhaps inadvertently, by accident or by negligence—that will be damaging to the relationship that we have with our constituents. It is not good enough to say, "Well, if the current law is not working, how will this one improve it?" If my Bill is scrutinised in the other place and is enacted, I hope that we will be able to circulate the news to all public authorities that correspondence with a Member of Parliament relating to a constituency matter is now sacrosanct. Therefore, if Members wish to release correspondence, we make that decision. I am perfectly content for Members of Parliament to decide to press release their letters to constituents if they wish—I am content for them to release anything they wish. However, the decision on whether letters relating to our constituents are released should not be made on the whim of a chief constable or in the judgment of a junior clerk in one of 2,000 public authorities who will now have the right to determine these matters.

I have in my file records of cases from Members of various parties about worries that they have had on the release of their correspondence.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

Let me conclude this point. Such concerns were stated in Committee, not by me or other Conservatives but by Labour Members and also by the Liberal Democrat Committee member. Let me say this about that Member: he is a very honourable Member and he is also a member of the House of Commons Commission. As the Liberal Democrat Member who served on the Committee—which was unanimous in its opinion on the Bill—is also a member of the House of Commons Commission, I say to his Liberal Democrat colleagues that it is clear that he has information that most Members of this House are not party to. I consider his opinions and views on the matter under discussion to be decisive.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

Let me make a final point before taking any interventions.

We must make decisions about the sanctity of our correspondence on behalf of constituents with public authorities. We have to be able to look constituents in the eye when they come to us about tax credit cases, Child Support Agency cases or their dealings with the police or the council. We must be able to say to them, "I will take up that case on your behalf and pass on your letter or write on your behalf and I guarantee that that will not be released." We cannot at present give that guarantee. The procedures in place allow someone else to make that judgment. If they make an erroneous judgment, that damages us. I shall now give way to Fiona Mactaggart.

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough

The point I wished to intervene on was that the right hon. Gentleman referred to the number of amendments that had been tabled and said that that was part of a movement to oppose the entire Bill. Does he accept that one of the reasons for that is his failure to justify his Bill? He has not spoken in favour of it until now.

Also, the point that the right hon. Gentleman is now making would have been covered by an amendment which he has voted against. The issue on which he is depending is that the Bill is required in order to protect correspondence about individual constituents, but he voted against an amendment which narrowed the protection precisely to that point, and which stopped the protection in his Bill in respect of much wider areas of correspondence. Will he use the opportunity of this Third Reading speech to justify that?