Consumers, Estate Agents and Redress Bill

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Clause 18

Secretary of State’s power to require reports
Mr. Prisk: I beg to move amendment No. 16, in clause 18, page 11, line 5, leave out ‘may’ and insert ‘shall’.
The Chairman: With this it will be convenient to discuss amendment
No. 17, in clause 18, page 11, line 5, at end add—
‘(3) In exercising the powers under this section the Secretary of State shall respect the independence of the Council.’.
Mr. Prisk: These two probing amendments seek to establish just how open the Government will be in requiring reports. We believe that maximum transparency is vital. It is vital for the council if it is to have authority and it is also important for the consumer as a whole. The Secretary of State should not therefore be in a position to cherry pick which reports get published or, for that matter, to be seen to cherry pick. The way in which a Secretary of State might reasonably make a decision is important.
We have just discussed the obvious controversy of the post offices, but there are other areas where there will be tension and there is an understandable problem. Take the question of food safety and consumer information. Quite understandably a Government may say that there are serious and complex issues about food safety. I recognise, as most hon. Members probably do, that there is no such thing as no risk. But in the area of food safety there will always be a problem because it can often get misreported. It is often overblown in the media and can frighten people. There will be a natural tension there and Ministers may wish to think carefully about how information on food safety issues is released. Obviously the NCC will have a narrower remit. Its purpose will be to ensure that it can produce consumer information, of whatever character.
The purpose of amendment No. 17 is to establish the NCC’s independence. As I say, these are probing amendments. I want to explore with the Minister how the Government would approach the issue, because it is an important area on which we need some clarity. When the Bill is passed and becomes law, there is a clear understanding about how the Government would approach that kind of more awkward situation in which Ministers will be acting, quite reasonably, on scientific advice, but where there will be a potential—this is what we are concerned about—that the ability to have flexibility may not be in the interests of the Government of the day.
Jim Fitzpatrick: The amendments concern a discretion of the Secretary of State not to publish a report prepared for him by the new council under clause 18. That issue has already been extensively debated in the other place, and I am sure that the hon. Gentleman has looked at that. It was clear from that debate that the concern here is essentially about the need for transparency in the Government’s dealings with the new council, and the need for public accountability, because of the tensions that have been correctly described by the hon. Gentleman. I would like to reiterate that the Government are in total agreement with those intentions, and we have made the case that the discretion afforded to the Secretary of State not to publish a report prepared for him by the council impacts in no way on either of those principles. The point to note here is that the discretion under clause 18 for the Secretary of State in relation to the publication of a report is necessary to deal with particular circumstances, such as instances where the report contained sensitive information that was commercially confidential or price-sensitive. That is not a new concept, and would apply in circumstances in which, for example, disclosure of information provided by a company would weaken its position in a competitive environment by revealing market-sensitive information or information of potential usefulness to its competitors.
Under clause 29, the council will have to consult a business or individual if a report that it makes contains business or personal information before that is disclosed in the report. The value of the report to the Secretary of State might be significantly diminished if the information were not contained in the report. However, in those circumstances the Secretary of State would have to consider whether it was right to publish the report.
Section 244 in part 9 of the Enterprises Act 2002 sets out considerations that apply where a public authority is considering disclosing certain specified information, including commercial information whose disclosure the public authority thinks might significantly harm the legitimate business of the undertaking to which it relates, or information relating to the private affairs of an individual whose disclosure might significantly harm the individual’s interests. That provision applies generally to the disclosure of information obtained by the council under the Bill, but not to reports of the council, where the different provisions that I have mentioned in clause 29(5) apply.
Information of a confidential nature might be necessary to support the recommendations in a report. A requirement on the Secretary of State to publish every report submitted by him might create a deterrent effect on external experts or stakeholders, who might be reluctant to provide particular information because it might be published. It is not inconceivable that a report prepared by the new council for the Secretary of State could contain such information that was given on condition that it would not be published.
A key consideration here is that there may be good reasons why the content of reports prepared and submitted to the Secretary of State to aid the decision-making process should not be published. The decision not to publish a report in those circumstances would be to protect the confidences of individuals and businesses, not for the purpose of protecting Government.
Clause 18 must be viewed in the wider context of the other clauses that give the new council the statutory basis to carry out its duties. The need for the new council to be able to act without being constrained is fundamental to what we are trying to achieve with the introduction of these measures, and is in no way compromised by the powers given to the Secretary of State by the clause. It is not about taking away from the new council; it is about allowing the council to give relevant information to Government.
If the council determines that the issue of the report that it has prepared for Government under clause 18 is one of interest to consumers more generally, and the Secretary of State has decided not to publish that report, the council can choose to exercise its powers elsewhere within the Bill, such as under clause 17 or clause 19.
Clause 17 enables the council to prepare and publish a report on any matter falling within the scope of its functions. Clause 19 enables the council to publish advice or information about consumer matters for the purpose of bringing issues of importance to the attention of the consumer.
A report prepared under the powers in clause 17, for example, which covered the same issue as a report prepared under clause 18, could be published without information that was considered to be sensitive and in a format that may be more in line with the needs of consumers. That matter would be one for the discretion of the council, but with those reassurances. The council, therefore, has the ability to determine what it publishes, but the Secretary of State has some discretion in being able to withhold information that may be price-sensitive. I hope that reassures the hon. Gentleman.
Mr. Prisk: Is he saying that it would normally be the intention of the Secretary of State to publish, except in those circumstances just outlined?
Jim Fitzpatrick: I think we can generally expect that the intention will be more to publish than not to. The qualifications I gave are examples that may not be entirely exclusive, but are sensible ones, which are pretty de rigueur for Government reports. I think that the reassurances in clauses 17 and 19 give the hon. Gentleman the safeguards that he is seeking. If the council thinks that it would help and be appropriate for consumer protection and interests to publish, it can do so regardless of what the Government say.
Susan Kramer: I thank the Minister. The Liberal Democrats have fully supported the two amendments. In those circumstances, if the Minister’s only intent is to provide protection for necessary commercial information, which should not be shared because of detriment to the provider or to an organisation, would he consider introducing such language into clause 18(2), to make that clearer? We live in a cynical world, and when a clause allows so much scope not to publish, no matter what the intent, if the intent is so narrow, why not include it in the language? Indeed, why not incorporate the language from the Enterprise Act?
Jim Fitzpatrick: The only thing that I would say to the hon. Lady is that clauses 17 and 19 provide strong protection for the council to publish regardless of what the Government suggest.
Mr. Prisk: This has been a useful if short debate. I think that in another place a different argument was cited—costs. I am glad that the Minister has not chosen to use that one, because it was frankly unbelievable at the time and gets no better when read a second time. The Minister went for argument no. 2—commercial confidentiality—which the Department wheeled out and dusted off. That is a more credible and reasonable argument, because it is perfectly sensible to suggest that there will be circumstances—whether of confidentiality or sensitivity—when there needs to be an element of discretion. I was particularly grateful to the Minister, in response to my intervention, for making it quite clear—future Secretaries of State will be grateful that he did not make it absolutely clear—that the intention would normally be to publish rather than not. With that on the record, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 ordered to stand part of the Bill.

Clause 19

Advice, information and guidance
Lorely Burt: I beg to move amendment No. 55, in clause 19, page 11, line 11, leave out ‘may’ and insert ‘shall’.
The Chairman: With this it will be convenient to discuss amendment
No. 54, in clause 19, page 11, line 13, after ‘consumers’, insert
‘or is otherwise in the public interest’.
Lorely Burt: The clause is all about advice, information and guidance. Amendment No. 54 seeks to widen the ability of the NCC to issue advice or guidance on any matter affecting the interests of consumers or
“otherwise in the public interest”.
We feel that it would be appalling if the NCC held information that was in the public interest but, because of the narrowness of the definition, was not able to publish. We have already discussed Postwatch, which the Minister said was not a social policy think-tank. The challenge is how narrowly one defines the interests of consumers. It is a probing amendment. We are asking the Government whether the clause is a bit too limiting. It could be argued that anything could be defined as being in the public interest. We are seeking a bit of clarity about how the Minister defines what is in the interests of consumers and how that differs from the public interest.
Amendment No. 55 would convert another “may” to “shall”. We are not seeking to employ a scattergun approach, but we think that it is important for this particular measure to read:
“The Council shall publish advice or information about consumer matters if it appears to the Council that its publication would promote the interests of consumers.”
I should like to turn that on its head and ask the Minister where the harm is in strengthening “may” to “shall”. Is the purpose of the measure to provide the NCC with a get-out clause if it is under pressure from the Government to cut costs?
Stephen Pound: I referred earlier in the week, possibly injudiciously, to being seduced by the hon. Lady’s Front-Bench colleague, but I must say that the hon. Lady makes a similar capture of my emotions on this occasion. She makes a powerful case, but does she not accept that for the council to publish advice or information, it must produce that advice or information anyway? If it produces it, surely it will not decide not to publish it. Is she not talking about dissemination rather than publication? If the NCC calls in a piece of work and produces it, it will not then sit on it. Inevitably, it will publish it.
Will she not also consider that the advantage of “may” is that it provides for all the issues of commercial confidentiality, sub judice and cases that might be continuing? Will she not break the habits of a lifetime and trust the Government and the National Consumer Council on this occasion?
Lorely Burt: I am extremely grateful to the hon. Gentleman. I take his point, but on one hand, he is discussing the semantics of whether publication is the same as dissemination, and on the other, he is saying that the NCC will automatically publish. I refer back to my original question. If we replace “may” with “shall”, it will remove a fear in the minds of some of us who might be slightly sceptical about an automatic requirement or the idea that we can always trust the Government. If we had “shall” there, we would not feel that the measure could be used as an excuse for a cost-cutting exercise.
Jim Fitzpatrick: The amendments relate to the powers of the new council to publish advice or information about consumer matters and its discretion in deciding on publication. As drafted, the Bill allows the new council to publish advice or information about consumer matters if it considers that publication will promote the interests of consumers.
Amendment No. 55 would impose a duty on the new council to exercise the power in clause 19(2) to publish advice or information about consumer matters if it appears to the council that its publication would promote the interest of consumers. As drafted, the clause allows the new council to consider whether publication of such advice would be in the interest of consumers before exercising its discretion over publication.
The new council is being established as an independent body. It must surely be allowed to make decisions about allocation of its resources in accordance with its identified priorities. We believe that the discretion is necessary to enable the new council to take action that it considers appropriate in the overall best interests of consumers. We are not aware of any reasons why the new council, having taken a view on the merits of publication, would then not follow that up with the appropriate action.
Amendment No. 54 suggests that the power to publish advice and information about consumer matters should be extended beyond publication where that is considered to be in the interest of consumers, thereby covering occasions that have been identified as
“otherwise in the public interest”.
The amendment falls short of stating what criteria would be used to identify when occasions for the publication of advice or information about consumer matters in the public interest, which is not already promoting the interests of consumers, might arise. The new body is being established as a consumer advocacy body, therefore its remit is to cover issues from a consumer interest angle and it would typically be able to take a view on the scope of consumer-related issues within its fundamental area of expertise. As a cross-sectoral consumer body, it will be able to cover a wide range of consumer issues.
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As it is drafted, the clause sufficiently covers the appropriate scope, which may cover certain issues of public interest from a consumer’s general point of view. There is no reason to extend the focus of the council more widely than its principle remit, which is to work in the interests of consumers. The new council has been given the statutory tools for the job and must be allowed to carry out this function as it sees fit. There is no need for the amendment, so I ask the hon. Lady to ask leave to withdraw it.
Lorely Burt: The Minister’s definition of what is in the consumer’s interest and what is in the public interest is sufficiently wide to give fair reassurance. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 ordered to stand part of the Bill.
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