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. 10
am
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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