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Lord McNally: My Lords, perhaps I may seek to clarify my "get lost" remark. The Minister will recall that Billy Budd's excuse was a moment of impulse
instantly regretted. I am sure that that was the case. I am sure that my noble friend Lord Ezra will carefully read the response and reflect upon it. He has drawn attention to a possible conflict. I am sure that when he reads the Minister's response he will be assured that his concerns are to be examined. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
9.30 p.m.
Lord Haskel moved Amendment No. 174F:
The noble Lord said: My Lords, the House has already debated this amendment. I beg to move.
On Question, amendment agreed to.
Lord Haskel moved Amendments Nos. 174G to 174J:
The noble Lord said: My Lords, I beg to move Amendments Nos. 174G to 174J en bloc.
On Question, amendments agreed to.
Clause 53 [General restrictions on disclosure of information]:
Lord Kingsland moved Amendment No. 175:
The noble Lord said: My Lords, Amendment No. 175 and the other amendments in this grouping were dealt with at Committee stage. Clause 53(3) of the Bill exempts quite widely from the rules of confidentiality disclosure of information made for the purpose of facilitating the performance of any relevant functions of a designated person. "Relevant functions" and "designated persons" are dealt with in Schedule 11 to the Bill. We debated this matter at some length in Committee. I believe that the Minister will agree with me if I describe his reaction to my submissions as pretty dusty.
I have retabled the amendments that I tabled in Committee. Amendment No. 176 seeks to remove Clause 53 (3)(a)(i) from the Bill. By so doing it removes the associated designated persons and relevant functions listed in Schedule 11. Given his reply in Committee the Minister may not feel that he can go as far as to agree with me totally this time. I have therefore presented him with some alternatives.
The first is in Amendment No. 175 itself, which seeks to cut down the circumstances in which Clause 53(3) applies, requiring a delayed period before any information given to one of those designated persons can be passed on to another designated person.
The problem is that if, together with the schedule, the clause stands in its present form, a huge pool of information will be created, consisting not just of the Director General of Fair Trading and the regulators, but a whole range of other people over whom there will be no control or discipline with respect to how they disseminate that information. So any regulator who has grounds for suspecting that something is going on in his particular sector, can tap into that pool, as it is presently established, without any constraint on his ability to do so, or any protection for the person to whom the information in the pool refers.
If the Minister is not prepared to accept the blockbuster amendment, he has the option of going for Amendment No. 175, connected with Amendment No. 178, which will require a period of notice before information given for one purpose is allowed to be used for another purpose. Alternatively, there is a series of amendments which can be made to Schedule 11 itself, which would cut down and control the definition of "designated person" and "relevant function".
Clause 53 is an enormous gap in the system of protection to which an individual is entitled if he is under investigation. I hope that the Minister will look carefully at these amendments and respond positively. I beg to move.
Lord Simon of Highbury: My Lords, we are dealing here with a large group of amendments which cover various aspects of confidentiality. That confidentiality of information is an important issue is not doubted by either side of the House. The noble Lord, Lord Kingsland, should be in no doubt that I understand that this is a sensitive matter, especially for business. It is for sure, and my memory is still fresh on those issues. We have accordingly framed the relative provisions in the Bill carefully.
Some of the amendments in the group are new. Nevertheless, I was slightly disappointed that we have again to go over the ground that we debated in Committee, but I shall. It was not that I thought that I was dusty. It would have been difficult to have read that into my mind at that time. I was desperately hoping
Lord Kingsland: My Lords, perhaps I may help the Minister; by the expression I meant "dismissive".
Lord Simon of Highbury: My Lords, no, that would not have been right. This is an important issue and I would not have been dismissive about it. We have explained carefully the basis for our position on these points. The disclosure provisions in the Bill are fully in line with the type of disclosure provisions contained in many other UK regulatory statutes. Let us make no mistake about it, we agree that the provisions are tough, but they are carefully balanced and closely defined.
The sanction for infringing these provisions is also very tough. Unlawful disclosure of information obtained under the Bill will be a criminal offence. Whether or not a great pool of information is available to the regulators as a result of the Bill and the exchange of information, they will still be subject to a--and I would use the word--"draconian" regime of punishment for improper use.
Amendments Nos. 175 and 178A are to do with information passed by a person who obtains it under the Bill to one of the regulators specified in Schedule 11. There is no case for imposing the restrictions set out in this amendment on such co-operation. We have explained before that the provisions for disclosure between regulators in this Bill are entirely within the mainstream of UK regulatory statutes. There are no such restrictions in those other statutes and nor should there be. Our view is that the provisions of Clause 53 as to disclosure will continue to apply to information obtained under the Bill when it is disclosed to another regulator for the purposes of this Act. The information is therefore fully protected against being used except for authorised purposes.
Amendment No. 175A relates to subsection (2) of Clause 53. Subsection (2) is a very restrictive provision. It requires that information may not be disclosed without the consent of both the person who initially provided the information and, if they are different, the person or business to whom that information relates. That is a tougher restriction than appears in most other regulatory statutes. The amendment seems to me to add nothing. The relevant person will have to be told the purpose for which the information is to be used in order to secure his consent. If he does not wish to give consent, he need not do so.
We discussed a similar amendment to Amendment No. 176 in Committee. We explained on that occasion that this amendment would wreck the Bill. That remains the case. The amendment would prevent any disclosure of information for the purposes of functions under the Bill, except with consent. It would prevent, for example, the disclosure of information between the director and the competition commission to assist the Commission to hear appeals. It would likewise prevent the director from disclosing to parties who were subject to an investigation the information necessary for them to
Amendment No. 177 is another that we discussed in Committee. It would delete subsection (3)(a)(ii) of Clause 53, which enables information to be disclosed to the European Commission to help the Commission perform its functions under European competition law. As my noble friend Lord Haskel explained in Committee, we believe it is right to give the director the power to help the Commission to enforce community competition law.
Amendment No. 177A relates to similar territory. We think it is unnecessary. If disclosure of information is not required to meet a Community obligation it cannot be disclosed under Clause 53(3)(d). Unlawful disclosure is a criminal offence.
Amendment No. 179 would remove subsections (5) and (6) of Clause 53. These provisions enable the Secretary of State to specify additional persons and purposes to whom and for which disclosure is to be permitted. This power is exercisable by order, subject to annulment by either House. The purpose of this power is to ensure that there is sufficient flexibility in the Bill to respond to developments in regulatory and competition policy without need for fresh primary legislation.
Amendment No. 179A, like 177A, misses the point that disclosure of information obtained under the Bill is prohibited unless it is specifically permitted. The subsection (5) power enables an order to be made permitting information to be disclosed for the purpose of specified functions. Information not meeting those purposes may not be disclosed. I am glad of the opportunity to make this clear. I hope the noble Lord will therefore agree that the amendment adds nothing to the firmness of that position.
Turning to Amendments Nos. 180 and 180A, they seek to impose a statutory duty on the recipients of information passed through the disclosure gateways in Clause 53. As I have already explained, our view is that the provisions as to the disclosure in Clause 53 will continue to apply to information obtained under the Bill when it is disclosed to another regulator for the purposes of the Act. The information is therefore fully protected against being used except for authorised purposes.
In the context of information passed to the European Commission, such a provision cannot be made to apply. However, such information will be subject to European law, which will restrict its disclosure. If we turn to Clause 53(3)(c), for example, do noble Lords think that if a policeman is passed information about an offence he should not be allowed to disclose that further? No, it would be quite wrong to interfere with disclosure in criminal proceedings, which must remain a matter for the criminal law and the courts dealing with those proceedings.
Turning to the persons listed in Schedule 11, it would frustrate the whole purpose of the gateways in the Bill if a regulator were to be prohibited from disclosing information provided to him to perform a statutory function if such disclosure were needed in order to
As I understand it, the purpose of Amendment No. 180B appears to be to apply the duties contained in Clause 54 to any disclosure of information made under Clause 53. That is already the effect of the Bill as it stands. I hope that that clarification is helpful.
Amendments Nos. 180C to 180E, 181, 182 and 182A all seek in one way or another to interfere, in differing degrees, with the ability of those who obtain information under the Bill to disclose it to other persons specified in Schedule 11 for the purposes of their statutory functions. For those reasons, noble Lords will understand that I do not believe that they add to the safeguards that are already introduced into the gateways.
Amendment No. 183 is another which relates to the confidentiality of information obtained under the Act and passed to another person. The same points as I made in relation to Amendment No. 180 apply.
I have gone fully through the system because, as I said when I started, we regard the balance of safety in the area of confidentiality for the individual and the business as being an important matter to which we must all attend with due seriousness. I have tried to attend to it in that way.
I hope that having heard what I have said noble Lords will accept that what we have set out in the Bill strikes the right balance between the importance of protecting information and the need to ensure that the new regime is fair, transparent and workable.
We have taken considerable care in framing them, recognising that this is indeed an extremely important issue, particularly the issue of fairness which the noble Lord, Lord Kingsland, put to me so clearly. We think that the Bill is entirely in line with existing UK precedents. I therefore urge the noble Lord to consider the withdrawal of the amendments.
Lord Kingsland: My Lords, I wish to thank the Minister very much for going through each amendment so carefully and assiduously. I am especially grateful to him for his reaction to Amendment No. 180B, in which he made it absolutely clear that Clause 53 is subject to the contents of Clause 54. I would prefer it to be on the face of the Bill, but, if the Minister is not prepared to do that, I shall take his statement as being absolutely clear from an interpretive point of view.
The purpose of this group of amendments is to reinforce the point that I was aiming to make at an earlier stage of our proceedings today about the importance of keeping distinct the jurisdictional powers which relate on the one hand to the Bill and on the other hand to the regulator. My concern was that the pool of information that would be gathered under Schedule 11 should be used strictly for Bill purposes and should not seep into the regulatory sphere. That would be including things in the regulatory acts which it was not the intention of Parliament to do.
I have listened as carefully as I could to the Minister's response. I shall read Hansard with equal care and reflect as to whether I should return to the matter on Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 175A to 177A not moved.]
[Amendment No. 178 had been withdrawn from the Marshalled List.]
[Amendments Nos. 178A to 180B not moved.]
Schedule 11 [Interpretation of Section 53]:
[Amendments Nos. 180C to 183 not moved.]
Page 81, line 19, at end insert--
("( ) After section 145(6), insert--
"(6A) Information obtained by the Regulator in the exercise of functions which are exercisable concurrently with the Director General of Fair Trading under Part I of the Competition Act 1998 is subject to sections 53 and 54 of that Act (disclosure) and not to subsections (1) to (6) of this section."").
Page 82, line 15, leave out from beginning to first ("the") in line 16 and insert ("In selecting a group to perform the Commission's functions in relation to any such reference,").
Page 82, line 42, at end insert--
("( ) At the end of Article 61, insert--
"(7) Information obtained by the Director in the exercise of functions which are exercisable concurrently with the Director General of Fair Trading under Part I of the Competition Act 1998 is subject to sections 53 and 54 of that Act (disclosure) and not to paragraphs (1) to (6)."").
Page 83, line 29, at end insert--
("( ) At the end of Article 44, insert--
"(8) Information obtained by the Director in the exercise of functions which are exercisable concurrently with the Director General of Fair Trading under Part I of the Competition Act 1998 is subject to sections 53 and 54 of that Act (disclosure) and not to paragraphs (1) to (7)."").
Page 26, line 17, leave out ("subsection (2) is") and insert ("subsections (2) and (4A) are").
9.45 p.m.
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