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Lord Haskel: This is a complex area. Perhaps the best course would be for me to write to the noble Lord about it.
Lord Lucas: I wish to make a point in support of my noble friend. It seems to me that the way this provision is drafted gives all these designated persons listed in Schedule 11 access to the immense powers which are contained in this Bill and which they do not have under their own Acts. Effectively it enormously enlarges the powers of these regulators, because if information is produced using the enormous investigative powers under this Act, it then becomes available to the regulators and it therefore becomes a channel, which they did not have before, through which to obtain information and effectively to act in ways which Parliament had not allowed them to do.
If that is to be the case, it requires the closest scrutiny. I would much prefer to see this clause drafted more narrowly so that the kind of information which these Schedule 11 designated persons can obtain has not been obtained by means which they would not normally have access to under their own regulations.
Lord Haskel: But this clause prohibits the disclosure of information obtained under the Bill except with consent or for the particular purposes specified in the Bill. As I said at the beginning, unlawful disclosure of information will be a criminal offence. Surely that is a safeguard.
Lord Kingsland: I am grateful that the noble Lord is prepared to take the trouble to write to me on this matter. However, I hope that before he writes to me he will reflect again on the points that I have made, not just with respect to the breadth of the interpretation to which I believe the words used in the clause are subject, but also the wider issue of the EC law. If Clause 58 means what it says, in my submission the confidentiality ingredients of the Bill cannot go wider than those contained in EC law.
The Minister has already spoken on this matter and I do not wish to weary him with the prospect of having to respond again. In writing his letter to me I should be much obliged if he will cover that point too. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie moved Amendment No. 246B
The noble and learned Lord said: In view of the offer by the noble Lord to write to us about this matter I think I would be labouring the point if I were to address any argument to him now. This matter depends not only on the argument which has already been addressed to the Committee by my noble friend, but also carries further the argument we addressed earlier this evening about the separation between the regulatory and competition functions of the Director General of Telecommunications. I suggest that the noble Lord needs to say nothing more to me than, "Yes, he will", if I invite him to add, when he writes to my noble friend, the response he would otherwise have provided to me on the Floor of this Chamber. I beg to move.
Lord Fraser of Carmyllie: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland moved Amendment No. 247:
The noble Lord said: In moving the amendment, I wish to speak also to Amendment No. 248. The amendment again deals with the issue of confidentiality under Clause 53(3). We are not considering subsection (3)(a)(i) but subsection (3)(a)(ii) which provides for,
in the context of subsection (3)(d),
Is there some overlap between those two provisions? If not, what is the distinction between the two?
Amendment No. 248 refers to subsections (5) and (6) of Clause 53. It is intended to be a probing amendment to find out what the Minister has in mind. Subsection (6) states,
In what circumstances does he envisage the Secretary of State making that order? I beg to move.
Lord Lucas: Perhaps I may raise a point on subsection (3)(a)(ii). One of the dangers in this and the previous subsection is that once the information is released to other parties without guarantee by them that they will respect the confidentiality in their turn, it is effectively releasing the information to the world. I know that the Commission keeps confidences sometimes, but under the regulations set out in the Bill it would have no obligation to keep confidences. It would not be bound by anything in the Bill, unless we have a requirement in the Bill that anyone receiving information will express themselves bound by the confidentiality provisions contained in the Bill.
The clause continues to worry me. I shall appreciate it if at the very least the noble Lord, Lord Haskel, will "copy me in" on his letters.
Lord Haskel: I can promise that we shall copy the noble Lord in on the letters. We dealt with confidentiality on the last amendment. It is a criminal offence to misuse such information. I turn to the question of European law. The amendment deletes subsection (3)(a)(ii) which enables information to be disclosed to the Commission to help the Commission perform its functions under European law. We believe that it is right to give the director the power to help the Commission to enforce Community competition law. After all, this law is directly applicable in the UK too. If the UK authorities have information about possible contraventions of EC competition law, is it right that they should have to keep the information from the Commission? Surely they should be free to give this information to the Commission. If they had to withhold the information from the Commission, the result would be that the Commission would have to duplicate the work by the UK authorities. The Commission would have to use its own investigation powers to obtain the information. All that would create a lot more work. Frankly, that outcome would be contrary to the sensible
Clearly, we need to be able to disclose information to the Commission where that is required to meet a Community obligation in order to ensure that we are able to meet our duties under the EC treaty.
We considered carefully whether the power in subsection (3)(a)(ii) was needed in addition. We concluded that it was, partly because of the experience under the Fair Trading Act. This is because, as I said, there may be circumstances where it would be sensible and right for the director to give to the European Commission information about a case which he has obtained under his powers in the Bill. While there may be situations in which the UK's Community obligations would require the director general to provide the information, that may not always be the case. Further, it would not always be clear whether there is a Community obligation to provide particular information. We do not wish to place the director at risk of committing the criminal offence in making disclosures about which I spoke earlier. On the one hand, unlawful disclosure of information is a criminal offence under the Bill. On the other hand, if the director got the judgment wrong, the UK might find itself in breach of its Community obligations. I am sure that Members of the Committee do not want that to be the case.
On Amendment No. 248, the noble Lord, Lord Kingsland, asked about subsections (5) and (6). These enable the Secretary of State to specify additional persons and purposes to whom and for which disclosure is to be permitted. However, this power is exercisable by order subject to annulment by either House. So there is some protection to deal with the noble Lord's concerns. The purpose of the power is to ensure that there is sufficient flexibility in the Bill to respond to development in regulatory and competition policy without need for fresh primary legislation. I hope that that explanation will satisfy noble Lords.
Lord Lucas: The noble Lord has not addressed in the slightest the point that I raised. In case the Box has not had time to send an answer, the question is this: does the duty of confidentiality under the Bill extend to the Commission if the Commission is given information obtained under the Bill? If it does not, there should be provision in the Bill to ensure that it does.
The same argument applies to people specified in Schedule 11 who receive information under the Bill. It does not appear obvious that they are bound by the confidentiality provisions under the Bill. As they are UK entities, perhaps they are. But the Commission surely is not, because it is not subject to the Bill. Therefore there is need for the safeguard that information given to the Commission will be treated confidentially.
Lord Haskel: I am sorry if I did not address the noble Lord's question. If the information is given to the
Page 26, line 31, at end insert ("other than those of the Director General of Telecommunications under the Telecommunications Act 1984").
Page 26, leave out lines 32 and 33.
"facilitating the performance of any functions of the Commission in respect of Community law about competition",
"which is required to meet a Community obligation".
"'specified' means specified in an order made by the Secretary of State".
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