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Mr. Hughes: That is certainly a possibility.
Four of the amendments before us are in two groups. Interestingly, they were described by the hon. Member for Surrey Heath (Mr. Hawkins) as cross-Bench amendments. It is an interesting concept that once we have a coalition in this place, we shall become cross-Benchers and depoliticised.
Mr. Hawkins:
Cross-party groups.
Mr. Hughes:
I accept that the hon. Gentleman meant that.
Mr. Rogers:
It is not so difficult for Liberals.
Mr. Hughes:
No, it is not so difficult for Liberals.
Amendments Nos. 31 and 32 seek once again to ratchet up the threshold. They are simple because they seek to insert "substantially" as the prejudice test. We shall come later to what the prejudice test should be generally in relation to the public sector. The amendments seek to ensure that we get that test in the private sector. Potentially--I refer to clause 41--there would be prejudice to
This issue may not be put to the vote tonight, but I urge colleagues to say that, if we are to have the ability to get information about the public sector elsewhere in the Bill, we must ensure that clause 41 has parallel provisions. In the interests of a traditional or old-fashioned view about commercial interest, we should not lack awareness of the modern world in which people regularly seek and obtain information and act accordingly on the basis of other people's commercial practices. We must not give protection to the commercial sector that is not given elsewhere.
Mr. Bercow:
I understand the point that the hon. Gentleman is making about the alleged disparity of treatment between the public and private sectors. To approach the issue from a slightly different vantage point, does he agree that commercial organisations should have rights that are equal to those of private individuals to know exactly what information is held about them at a given time by a public authority?
Mr. Hughes:
I agree with that proposition. I do not want to get distracted, but there are different tests for individuals' rights to information and protection of privacy, and the rights of corporate organisations. The same harm is not caused to a corporate organisation as can be caused to an individual. However, the hon. Gentleman is right to say that the right to know what information is held should be guaranteed.
We are considering yet another example of the Bill failing to get it right. The Government bizarrely resist change and defend interests that are not theirs, or are not usually those of the state. I hope that they heed the widespread all-party view, which, for the fourth consecutive debate, shows that it is them against the rest. It would be surprising if all the rest were wrong.
Mr. White:
I shall not support the amendment that the hon. Member for Surrey Heath (Mr. Hawkins) tabled, no matter how often he prays me in aid, because, in the words of my hon. Friend the Member for Cannock Chase (Dr. Wright), I am a serial loyalist. That is why I am grieved about amendment No. 7 and new clause 6, which we shall consider later.
We have not learned the lessons of what happened in the United States. The points that my hon. Friend the Member for Cannock Chase made about commercial confidentiality are correct; we have not got the balance right. Evidence to the House of Lords said that there would be a code of practice, which would set out a duty to consult with commercial interests.
The Bill will lead to much litigation about breaches of confidence. I suspect that those on the Front Bench are happy about that because they are lawyers. However, that is the wrong way for the Bill to develop. There is a problem in achieving the right balance between commercial confidentiality and the release of commercial information. The Minister should reconsider that balance.
Mr. Rogers:
I am confused about what is in hon. Members' minds when they present their arguments. The easy method of separating public interest and commercial confidentiality and the interests of private companies has been blurred substantially in recent years. I was a spokesman for defence procurement for a time. Trying to get to the heart of enormous defence contracts and finding out what was happening to billions of pounds of public money was impossible. The right hon. Member for Haltemprice and Howden (Mr. Davis), who is Chairman of the Public Accounts Committee, knows that even members of that Select Committee cannot gain information on specific aspects of public procurement.
Private finance initiatives have been extended. Huge projects are being introduced. The right hon. Gentleman knows about them. Where is public accountability and consideration for the public interest in those matters? The Government have got it almost right. They are trying hard to bring all the secrets and conspiracies out of the closet. They are trying to expose the cosy relationship that existed between the previous Government, of which the right hon. Member for Haltemprice and Howden was a distinguished member, and private industry.
Under the previous Government, we witnessed the revolving door syndrome whereby civil servants and military defence people left government only to appear the following day on the boards of big companies that had just been awarded contracts. I should hate to make even a rough calculation of the number of Conservative Members who shifted out of Government posts and landed on the boards of big companies. There is a lot of hypocrisy--[Interruption.] I am not pointing the finger at anyone. A lot of hypocrisy has been shown in the debate. I have still to hear any concrete reasons for why companies should have a 40-year exemption from having to divulge information when there is a lower limit for highly sensitive aspects of national security.
I do not claim that the Bill is perfect. It may well have to be amended and tested in the courts. However, most legislation evolves in that way, especially on subjects such as that which we are discussing.
Mr. Lock:
This has been an interesting and good debate. I am grateful to right hon. and hon. Members who have spoken. We are dealing with amendments that
Before I address the amendments in detail, I refer hon. Members to the structure of clauses 39, 40 and 41. Clause 39 deals with information that is exempt if it has been provided under a legal duty of confidence. If at the time that the information was provided--or subsequently, because of the circumstances--there was a legal obligation of confidence, that information is exempt and is excluded from the balancing act under clause 13.
By definition, information under clause 41 is information that has not been provided by the public authority under a legal duty of confidence to respect the confidentiality of that information and not to disclose it to third parties.
Clause 41(1) refers to information that constitutes a trade secret. A trade secret is a well known term of art in-law. Clause 41(2) refers to information being exempt
Even if the information would prejudice a company's commercial interest, clause 41 comes within the balancing public interest test under clause 13, as I mentioned in an intervention on my hon. Friend the Member for Cardiff, Central (Mr. Jones). The relevant provisions are in clause 13(3) and(4), which deal with the balancing act to decide whether the public interest in disclosure is greater than the public interest in confidentiality. That can be judged only according to the circumstances of the individual case.
I shall now deal with amendments Nos. 37, 38, 98 and 99. We are faced with two conflicting sets of amendments. Amendments Nos. 37 and 38 would restrict the amount of information to which clause 41 applies, whereas amendments Nos. 98 and 99 would increase the amount of such information. The Government are in the middle, and all I can say with confidence is that these two sets of amendments cannot both be right.
I shall take the four amendments in turn, and then explain why the Government have taken the middle path between them. I hope that my hon. Friend the Member for Cannock Chase (Dr. Wright) and the right hon. Member for Haltemprice and Howden (Mr. Davis), who made a thoughtful contribution, will accept that we are addressing the problems that they have raised but by a slightly different route.
Amendment No. 37 is a complex amendment which would restrict the exemption either to information that had been supplied in confidence and whose disclosure would unreasonably prejudice the supplier's commercial
interests, or to information that had been treated as confidential by the authority and whose disclosure would unreasonably prejudice the authority's commercial interests.
That represents a change from the Bill as drafted, in two respects. First, there is the introduction of the concept of unreasonableness to the prejudice test; secondly, there is the question of the status of the information--whether it has been supplied or held in confidence. The amendment would restrict the commercial interests that could be taken into account to those of the supplier of the information or the authority itself, which is highly limited.
I consider the amendment unnecessary, inappropriate and too restrictive. It is unnecessary because information provided in confidence is already covered by clause 39, and therefore does not need to be covered again by an amendment to clause 41. It is inappropriate because it introduces the concept of unreasonable prejudice. The distinction would be difficult to make in practice. We agree that some such concept is required, and that the mere fact that information might prejudice a commercial interest is not enough to justify the restriction of the information per se. The public interest test arises not in the context of unreasonable prejudice, but through the application of clause 13 and the balancing act required therein.
In that respect, amendment No. 37 is unnecessary, but it is also too restrictive. It seeks to limit the exemption to information whose disclosure would unreasonably prejudice the commercial interests of the supplier of the information, or the authority itself. That ignores the issue of information that is supplied in confidence by one person, but whose disclosure would prejudice the commercial interests of a third party. For example, a trade association might supply a public authority with commercial information about a firm. The disclosure of that information would have no effect on the trade association, but it could have a devastating prejudicial effect on the commercial interest of the firm. We must recognise the need to protect third parties' commercial interests when it is in the public interest to do so, but not otherwise--hence the requirement for clause 13 to apply.
The amendment is over-restrictive, in that it requires a public authority to have consistently treated the information as confidential before being able to invoke the commercial interest exemption where it would be the authority itself whose commercial interests were prejudiced. That would provide a very narrow exception, and would place an undue burden on public authorities in the managing of dealings with suppliers, private finance initiative contracts and so on. A range of information might in particular circumstances, at a particular time, prejudice an authority's negotiating position or the public interest in regard to value for money; but at other times, when it would not do that, it might be disclosed perfectly properly. Information that authorities have at one time will not necessarily be inappropriate for disclosure at another time. Again, that is a requirement of the balance provided by clause 13.
The amendment also fails to take account of circumstances in which an authority itself has generated information, but its disclosure would prejudice the commercial interests of another party. Such information could include, for example, expert forecasts of whether a business were likely to succeed, or opinions on whether it were properly managed. The amendment would remove
protection from such material, which it is necessary from time to time for public authorities to generate, especially when considering whether to enter into a PFI contract.
We must remember that there is no locus--no standing provision--for the seeking of information. We should bear in mind the experience of the United States. I accept what was said by the right hon. Member for Haltemprice and Howden, but I am sure that some commercial entities will seek the information. Not to allow the disclosure of such information when it is prepared with a view to analysing the commercial competence of a company would be prejudicial, and would not constitute the proper exercise of a freedom of information regime.
Amendment No. 38 seeks to limit the exemption further by disapplying it when information relates to
Amendment No. 38 is unacceptable also because the phrase
The second limb of the amendment seeks to set out the purpose of the disapplication--the exercise of more informed choice. However, that is also capable of very wide interpretation. Factors affecting consumer choice include price, quality, the product's environmental impact, origin, and location at the point of sale, how it is marketed and many other factors. The effect of the second limb would be to remove the protection of exemption from any commercially sensitive information that touched on those or other factors.
We think that that range of information is too wide, and that the better route is through the public interest balancing test, in clause 13--in which those factors can
be taken into account, although the existence of any one of those factors does not preclude considering the overall balance in determining whether it is in the public interest to disclose that information.
Amendment No. 38 also requires the public authority to make a judgment on whether the information is accurate. However, the authority may not know whether the information is accurate, and the cost ceiling for charges made under the freedom of information regime is designed only to cover finding and retrieving the information. The public authority should not have to go to further unlimited lengths in verifying the accuracy of information. If information is disclosed by a public authority under the duty and is subsequently found to be inaccurate, the manufacturer could subject the decision to legal proceedings, thereby placing severe burdens on a range of public authorities on whom the duty was placed. I remind hon. Members that the provisions of clause 13 apply, and that those are the better route.
By contrast with those two amendments, the amendments tabled by Conservative Members, amendments Nos. 98 and 99, seek to restrict the scope of the exemption. I shall be able to consider those amendments with greater brevity.
Amendment No. 98 would have the effect of allowing the exemption in clause 41 in relation to commercial interest to apply in perpetuity. That is unnecessary. The circumstances of commercial life change so rapidly that the Government are simply unable to foresee any circumstance in which a company's commercial interests would still require protection after 30 years. I am grateful to my hon. Friend the Member for Rhondda (Mr. Rogers) for raising that issue with the hon. Member for Surrey Heath (Mr. Hawkins), who could not think of a single example to justify the amendment. That fact alone should persuade hon. Members that the amendment should not be supported.
Amendment No. 99 would effectively introduce a new exemption that would apply to information that was supplied to a public authority by a company or other commercial organisation before the Freedom of Information Act came into force. That formula is capable of extremely wide interpretation. The amendment would cut swathes through the Bill and would in part reverse the policy of retrospection in relation to commercial information alone, although of course clause 13 would still apply. That would be nonsensical, as information should already be available under the non-statutory code of practice on access to Government information that was introduced by the previous, Conservative, Government.
the commercial interests of any person
if almost any information were revealed. So far, both on Second Reading and in Committee, we have heard nothing from the Minister to suggest that the test does not effectively allow the maximum concealment of information and the minimum threshold possibly available for people who have to pass it.
if its disclosure under this Act . . . would be likely to . . . prejudice the commercial interests of any person.
I draw hon. Members' attention to the fact that the Bill includes a prejudice test--a harm test. The Confederation of British Industry asked for a harm test, as opposed to a substantial harm test:
We believe the test for disclosing information should be one of simple harm and not substantial harm. Any attempt to limit the ability to withhold information to that which may cause substantial harm to a business may prevent the voluntary disclosure of information to Government. Without proper assurances, we do not consider that the Government's approach will achieve the objective of two-way openness and trust.
We have listened to the CBI, which is why the harm test in clause 41(2) is not a substantial harm test, as has been suggested.
the quality or safety of the goods or services produced or supplied by the person
who supplied the information in confidence,
or the conditions under which those goods or services are produced or supplied;
and when
the prejudice to that person's commercial interests would result from the exercise of more informed choice by persons seeking to acquire those goods or services.
Information that relates to the quality or safety of goods or services, however, may include, for example, manufacturing processes by which the quality or safety of a particular product is assured or a firm's plans for promoting or marketing a particular product when the quality or safety are to figure in the promotion. Such information would be of interest primarily to a firm's competitors rather than to the general public. The Government's view is that a freedom of information regime should not allow one company to steal a march on its competitors merely because, for one reason or another, information had to be passed over for the operation of a proper regulatory regime.
conditions under which those goods or services are produced or supplied
is capable of over-wide interpretation. It could range from manufacturing processes to conditions in supply contracts and marketing plans. Again, it could include information that would be not only of great interest to a firm's competitors, but not in the interest of the general public to know.
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