Freedom of Information Bill

Part of the debate – in the House of Lords at 11:15 pm on 14th November 2000.

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Photo of Lord MacKay of Ardbrecknish Lord MacKay of Ardbrecknish Crossbench 11:15 pm, 14th November 2000

My Lords, in moving the amendment, I speak also to Amendment No. 57. These amendments have to do with the veto that we have touched on several times. Amendment No. 56 puts in a serious-harm-to-the-public-interest test, because at present the Ministerial veto under Clause 52 can be invoked where the Minister has on reasonable grounds formed the opinion that the public interest in maintaining the exemption outweighs the public interest in disclosing the information or confirming whether it is held.

If the Minister maintains that the commissioner has got it marginally wrong, he can veto the decision even if no real harm would flow from the disclosure. The amendment would insert an additional test: that the Minister had reasonable grounds for believing that complying with the commissioner's notice would cause serious harm to the public interest. This is the test which the last government adopted for claiming public interest immunity following the Scott report. The then Attorney-General, Sir Nicholas Lyell, announced in 1996 that:

"Under the new approach, Ministers would focus directly on the damage that disclosure would cause. The former division into class and contents claims would no longer apply. Ministers would claim public immunity only when it is believed that disclosure of a document would cause real damage or harm to the public interest.

The new emphasis on the test of serious harm means that Ministers will not, for example, claim PII to protect either internal advice or national security material merely by pointing to the general nature of the documents. The only basis for claiming PII will be a belief that disclosure will cause real harm".--[Official Report, Commons, 18/12/96; cols. 949-50.]

The present Government, in the person of the Home Secretary, said on 3rd March 1999 at col. 761 of Hansard that the present Government followed, and I quote:

"the same approach to public interest immunity."

The Foreign Office has explained that a PII certificate has been issued in relation to documents whose disclosure,

"would have caused serious harm to the UK's foreign relations."--[Official Report, Commons, 26/7/99; col.149.]

The new test I am proposing would make judicial review a much more realistic safeguard. Under the Bill as it stands, a Minister would be entitled to such wide discretion in exercising the veto that it is difficult to imagine circumstances in which the courts would normally set aside a veto, so long as he could offer any public interest argument against disclosure. The courts would not look at whether the Minister had reached the right decision in the balancing exercise. The additional test would require the Minister to demonstrate to a court that he had reasonable grounds for believing that disclosure would cause "serious harm".

Amendment No. 57 discusses how Parliament should be informed of these issues. At the moment there is no duty on Ministers to notify Parliament when they issue a veto. The Minister, or other accountable person, is required only to give the veto certificate to the commissioner and to tell the complainant why he has done so. The complainant could make the fact of the veto public, but may not bother, perhaps assuming that the matter would be of no interest to anyone else anyhow. Parliament may not learn about the veto until the commissioner's next annual report, which may be months down the road. Yet Ministers have argued that the prospect of having to justify the veto to Parliament is the main deterrent against its abuse. The noble and learned Lord, Lord Falconer, said in your Lordships' House on the 25th October, and I quote from col. 441 of Hansard, that the veto:

"will be available only on the signature of a senior member of the Government ... we can be sure that this House and the other place will hold such signatories accountable for their actions".

At col. 442 he said:

"A Minister making any such decision would be required to inform the applicant of the reasons for his decision and, as I said, would be accountable to Parliament, his Cabinet colleagues, his constituents, members of his own party and the wider population for that decision".

At col. 444 he said:

"Ministers would expect to have to explain to Parliament the grounds on which the certificate has been requested and approved".

My question simply is: if the Minister believes that-- I have no doubt that he does--how is Parliament to be informed? It really is not good enough for Parliament to be informed months later in a report. The amendment before your Lordships this evening would require the Minister to lay a copy of the veto before Parliament. The veto would have to be approved by both Houses within 20 sitting days. If the support was not forthcoming, the veto would automatically lapse and the Minister's words would be honoured in the deed, because the Minister would have had to account to Parliament for the veto. I beg to move.