Freedom of Information Bill

Part of the debate – in the House of Lords at 11:30 pm on 14th November 2000.

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Photo of Lord Norton of Louth Lord Norton of Louth Conservative 11:30 pm, 14th November 2000

My Lords, I presume that it will be for the convenience of the House if I speak to my Amendment No. 57A, as an amendment to Amendment No. 57, tabled by my noble friend Lord Mackay of Ardbrecknish. I imagine that the Minister will wish to reply to both at the same time.

I fully support my noble friend's amendment, which is designed to ensure that certificates issued under Clause 52 are subject to parliamentary scrutiny. The Minister can have no quarrel with that aim.

In Committee, the Minister advanced three arguments in response to criticisms of the clause. The first was that the provisions were not as all-encompassing as some Members of your Lordships' House suggested, because they covered only material that was exempt. The second was that the breadth of coverage was necessary to cover matters that were,

"not predictable from where we stand at present".--[Official Report, 25/10/00; col. 445.]

The third was that the Minister making the decision would be accountable,

"to Parliament, his Cabinet colleagues, his constituents, members of his own party and the wider population for that decision".--[Official Report, 25/10/00; col. 442.]

My noble friend Lord Lucas dealt effectively with the first point in Committee, pointing out that:

"under Clause 34, anything that will cause a Minister distress is exempt".--[Official Report, 25/10/00; col. 446.]

That leaves Ministers with remarkable scope for preventing material being made available.

The noble and learned Lord, Lord Falconer, made it clear in Committee that the Government were not prepared to accept any narrowing of the scope of the clause. I have already quoted his justification for that stance. That leaves us with only two options. One is to remove the clause. That is--or rather was--the position of the noble Lord, Lord Goodhart. The other is to ensure that the powers exercised by Ministers under the clause are subject to effective parliamentary scrutiny. My noble friend's amendment is designed to ensure that Ministers are accountable to Parliament for their actions.

It is formally correct that Ministers are accountable to Parliament for their actions, but ensuring that accountability is another matter. Ministers are often adept at bypassing scrutiny, not least because of the pressures on parliamentary time.

My noble friend's amendment would require a copy of the certificate to be laid before Parliament and approved by both Houses. That is a necessary step towards ensuring parliamentary accountability. However, I am not certain that it is sufficient. Ministers have to give reasons for their decisions. Members of both Houses will be able to consider those reasons. The problem is that it will be difficult to know how valid those reasons are if Members do not know what is in the material being sought. There may well be occasions when it is clear from the request what information is being sought and the Minister's reasons for refusing it may be clear and acceptable to Members of both Houses without them having sight of the material. However, on other occasions it may be difficult, if not impossible, to judge whether the veto is justified without seeing the material in question. That may be particularly relevant when the Minister's reasons are broad.

My amendment addresses that problem. It would give Parliament an opportunity to judge the appropriateness of the Minister's action without putting into the public domain material that should be kept secret. The appropriate departmental Select Committee of the House of Commons, or, in matters of national security, the Intelligence and Security Committee, would be permitted to have confidential sight of the material that was the subject of the certificate. The Committee would not be able to put the material in the public domain, but it would be able to issue a report saying whether, on the basis of its review of the material, it believed that a certificate should have been issued. It would be open to the Committee to have a meeting in closed session with the Minister before issuing its report.

I appreciate the limitations of that approach from the perspective of Parliament and of the Minister. Members of Parliament may want more than a recommendation from a Committee. They may well feel just as much in the dark as before. However, a recommendation from a Select Committee would at least offer Members an informed opinion other than that of the Minister. If the committee states that in its opinion the certificate is not appropriate, it is then open to Members to take that into account in deciding whether or not to approve the resolution before them.

The Minister may say that there is a risk in allowing members of a committee to have sight of the material. It may leak. Ministers may draw attention to the fact that some members have leaked material in recent years. However, I draw your Lordships' attention to the fact that members of the Select Committee on Defence may see material up to and including that classified as secret. The Intelligence and Security Committee, which is a statutory body comprising senior Privy Counsellors, has access to intelligence material. So far as I am aware, there is no evidence that either committee has failed in its duty to maintain the confidentiality of material.

Those committees cover the most sensitive areas and those in which I would consider it most likely that certificates would be issued. Providing for a committee to have such access is important in terms of maintaining the integrity of the governmental process; otherwise, one is giving too much power to Ministers to act as judge and jury in their own cause. Furthermore, this provision may have a valuable deterrent effect. If Ministers know that a parliamentary committee, or the Intelligence and Security Committee, has the power the see the material which they seek to withhold, they are likely to be even more rigorous than they would otherwise be in ensuring that their case for issuing a certificate is watertight.

I make two final points. First, I appreciate that, if doubts exist about the security of material, there may be a case for creating a special committee, perhaps even a statutory committee, akin to the Intelligence and Security Committee. However, if the issuing of certificates is to be as rare as the Government claim will be the case, there seems to be little point in crafting a purpose-built committee. On the other hand, I would not rule out such a possibility.

Secondly, my amendment is tabled as an amendment to that of my noble friends, but, if necessary, my amendment could be free-standing. It seems sensible to link it to the proposal put forward by my noble friends, but one can envisage a situation in which parliamentary approval need be sought only in the event of an adverse recommendation from a committee.

My purpose in making those points is to show that it is possible to achieve some flexibility in determining the best method of ensuring that the reasons for Ministers to issue certificates are subject to parliamentary scrutiny.

The noble and learned Lord, Lord Falconer, can have no argument with the end that is involved; that is, accountability to Parliament. We are debating means to achieving that end. If the noble and learned Lord believes that what is proposed is not appropriate, it is up to him to put forward an alternative to give effect to the end which he himself identified so clearly in Committee.