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 Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office 11:30 pm, 14th November 2000

My Lords, as identified in Committee and in the earlier stages of the Bill, the Government believe that there will be certain cases dealing with the most sensitive issues where a senior member of the Government, able to seek advice from his Cabinet colleagues, should decide on the final question of public interest in relation to disclosure.

We believe that Cabinet Ministers are accountable in a way in which the commissioner cannot be. It is right that responsibility and accountability should rest at that level for this very important aspect of the freedom of information regime. As noble Lords have pointed out in the course of this short debate, a provision in Clause 52 requires the person exercising the override to specify the reasons for so doing. That is the purpose of the override, and that is the basic way in which it works.

I turn to the amendments. First, Amendment No. 56 in the name of the noble Lord, Lord Mackay of Ardbrecknish, would introduce a new and different test at the stage at which the accountable person was being asked to consider whether the public authority had properly carried out its responsibilities under the freedom of information legislation. Whereas the authority would look at all the circumstances of the case in reaching a decision on the balance of the public interest, the accountable person, pursuant to the noble Lord's amendment, would have to ask not whether it had been done properly but, if the authority had applied a different test, would the accountable person be able to confirm that he was right not to disclose the information requested? Therefore, a new test is being introduced at a very late stage in the process.

At a late stage, the amendment seeks to introduce a concept of "serious harm" to the public interest. Throughout the debates on the Bill the Government have made clear why they are unhappy with any suggestion that it would be sensible or even practical to introduce words such as "substantial" or "serious" to qualify the nature of a harm. The same obviously applies in this case.

The public, and public authorities, will want to be clear about how the judgment about the balance of the public interest will be made. As drafted, the accountable person must be satisfied that the authority has correctly identified and weighed the competing interests. The amendment would add an unwelcome element of subjectivity to that assessment of what is serious harm and what is not. I believe that the amendment proposed by the noble Lord, Lord Mackay of Ardbrecknish, is misguided and I urge him to withdraw it.

I turn now to Amendment No. 57. The Government have made their position clear on why, having listened to the arguments here and in another place, they believe that the right people to be accountable for issuing an exception certificate are Cabinet Ministers. The effect of Amendment No. 57 would be to transfer that accountability to Parliament.

I wonder what would be gained by such a procedure. There would certainly be additional delays in reaching a view on whether information might be disclosed or withheld, but I doubt there would be any greater transparency than the Bill already provides. We are not discussing a power which the executive can exercise lightly or unadvisedly. The Bill provides that decisions must be transparent. A Minister signing an exception certificate must give public reasons for his decision. The commissioner, who will have had an opportunity if she wishes to see all of the relevant information, can report any shortcomings in the decision-taking procedure to Parliament; and Parliament itself can at any time hold the Minister to account for his actions which are, in effect, an act of executive power, rather than legislative power, which is what the effect of the amendment would turn it into. Those are significant and sensible safeguards which operate without the need for the superstructure and delay inherent in the amendment.

Finally, I turn to Amendment No. 57A tabled by the noble Lord, Lord Norton of Louth. This amendment is complementary to Amendment No. 57. It would have the effect that a Minister, having signed an exception certificate, would be required within 20 sitting days to pass in confidence to a relevant Select Committee the information in question.

The Government's objections to those proposals are similar to those which I set out in relation to Amendment No. 75. They provide delay without providing any additional transparency of any sort. To some extent, they duplicate the position of the commissioner, who will, in the process, have seen the documentation or information with which the application is concerned. She is in a position, where appropriate, to report to Parliament on any shortcomings in relation to the decision-taking procedure. Because the Cabinet Minister is obliged to set out his reasons for exercising his executive override, the individual Minister will be accountable to Parliament.

For all those reasons, I invite noble Lords not to press their amendments.