Lord Whitty moved Amendments Nos. 449 to 451:
FAILURE TO PROVIDE INFORMATION TO PPP ARBITER
Page 249, line 24, leave out (his duties under Part I of this Act") and insert (the duties imposed upon him by or under this Act or any other enactment (whenever passed or made)").
Page 252, line 27, leave out sub-paragraph (3).
Page 252, line 38, leave out from (provisions") to (which") in line 39.
On Question, amendments agreed to.
The Deputy Speaker (Lord Brougham and Vaux): My Lords, Amendments Nos. 449 to 460 have all been spoken to. Amendment No. 452. Unless any noble Lord objects, I shall move all these amendments en bloc: as many of that opinion say Content", to the contrary Not-Content"; the Contents" have it.
Earl Attlee moved Amendment No. 461:
Page 114, line 2, after (to") insert (give priority to the objective in subsection (3) above (efficiency and economy) and in making his decision the PPP arbiter shall").
The noble Earl said: My Lords, I am a little concerned that the Minister does not appear to have moved his Amendments Nos. 452 to 460, 462, 464 and 465. However, I now move Amendment No. 461.
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It is quite correct that the Bill as drafted requires a PPP arbiter to act as a third party referee in any disputes. Most significant construction contracts in the commercial world would have some form of expert umpire to resolve disputes. It is furthermore extremely helpful that the Bill sets out the principles on which the PPP arbiter is to act so that everyone has some idea of where they stand.
However, as drafted, the Bill is unclear as to what should happen in the event that these principles clash. This places the PPP arbiter in an invidious position. This amendment cures a defect in the Bill by stating which principle takes priority. The Minister may feel that something else should take priority. Perhaps planning the future performance of the agreement may be the Minister's priority for the arbiter. I look forward to hearing the Minister's views. I beg to move.
Baroness Farrington of Ribbleton: My Lords, it is my understanding--I think that it is important that we clarify this for the record--that Amendments Nos. 452 to 460 and 462, 464 and 465 were moved together. I think it would be helpful to clarify the position particularly with regard to Amendments Nos. 452 and 460.
The Deputy Speaker: My Lords, Amendments Nos. 452, 453, 454, 455, 456, 457, 458, 459, 460 were all spoken to with Amendment No. 452.
Earl Attlee: My Lords, I shall not lose any sleep over this.
Baroness Farrington of Ribbleton: My Lords, for the assistance of the House I suggest that it is recorded that these amendments were moved en bloc.
The Deputy Speaker: My Lords, is Amendment No. 461 not moved or withdrawn?
Earl Attlee: My Lords, I have spoken to Amendment No. 461.
Lord Macdonald of Tradeston: My Lords, this amendment seeks to require the arbiter to make efficiency and economy his key priority when making a direction or issuing guidance. I understand that the same amendment was brought forward at the Committee stage of the Bill.
As my noble friend Lady Farrington of Ribbleton made clear on that occasion, we are firmly of the view that there are no substantial benefits to be had from the objectives being ranked in a pre-defined order of importance. Subsections (2) to (5) of this clause clearly define the objectives set for the arbiter, of which subsection (3) deals specifically with efficiency and economy. We agree that efficiency and economy are
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important, but we do not wish to make these considerations pre-eminent. I therefore ask the noble Earl to withdraw the amendment.
Earl Attlee: My Lords, I shall read carefully what the Minister says in Hansard tomorrow. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whitty moved Amendment No. 462:
Page 114, line 11, leave out from (the") to (and") in line 13 and insert (PPP agreement--
(a) contains provision specifying, or for determining, the rate of return which the PPP company in question might reasonably expect to earn;").
On Question, amendment agreed to.
Clause 206 [Provision of information to the PPP arbiter]:
Lord Whitty moved Amendments Nos. 463 to 465:
Page 115, line 1, leave out paragraph (c) and insert--
((c) any PPP related third party.").
After Clause 206, insert the following new clause--
( .--(1) If a person fails to comply with a request under section 206(1) above, the PPP arbiter may serve a notice on that person requiring him--
(a) to produce to the PPP arbiter, at a time and place specified in the notice, any documents which are specified or described in the notice and are in his custody or under his control; or
(b) to provide to the PPP arbiter, at a time and place and in the form and manner specified in the notice, such information as may be specified or described in the notice.
(2) No person shall be required under this section--
(a) to produce any documents which he could not be compelled to produce in civil proceedings in the court; or
(b) in complying with any requirement for the provision of information, to provide any information which he could not be compelled to give in evidence in any such proceedings.
(3) A person who intentionally alters, suppresses or destroys any document which he has been required to produce by a notice under subsection (1) above is guilty of an offence and liable--
(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on conviction on indictment, to a fine.
(4) If a person makes default in complying with a notice under subsection (1) above, the court may, on the application of the PPP arbiter, make such order as the court thinks fit for requiring the default to be made good.
(5) Any such order may provide that all the costs or expenses of and incidental to the application shall be borne by the person in default or by any officers of a company or other association who are responsible for its default.
(6) In this section--
(a) any reference to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form; and
(b) the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
(7) In this section the court" means the High Court.").
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After Clause 206, insert the following new clause--
RESTRICTIONS ON DISCLOSURE OF INFORMATION
( .--(1) Subject to the following provisions of this section, no information with respect to any particular business which--
(a) has been obtained by the PPP arbiter under or by virtue of any of the provisions of this Chapter, and
(b) relates to the affairs of any individual or to any particular business,
shall, during the lifetime of that individual or so long as that business continues to be carried on, be disclosed without the consent of that individual or the person for the time being carrying on that business.
(2) Subsection (1) above does not apply to any disclosure of information which is made--
(a) for the purpose of facilitating the carrying out by the Secretary of State, the Mayor of London, Transport for London or the PPP arbiter of any of his or, as the case may be, its functions under this Act;
(b) for the purpose of facilitating the carrying out by the Secretary of State, the Rail Regulator, the Franchising Director, the Competition Commission or the Mayor of any of his or, as the case may be, its functions under the Railways Act 1993;
(c) for the purpose of facilitating the carrying out by--
(i) any Minister of the Crown,
(ii) the Director General of Fair Trading,
(iii) the Competition Commission,
(iv) the Director General of Telecommunications,
(v) the Director General of Gas Supply,
(vi) the Director General of Water Supply,
(vii) the Director General of Electricity Supply,
(viii) the Civil Aviation Authority,
(ix) the Insolvency Practitioners Tribunal, or
(x) a local weights and measures authority in Great Britain,
of any of his or, as the case may be, its functions under any of the enactments or instruments specified in subsection (3) below;
(d) for the purpose of enabling or assisting the Secretary of State or the Treasury to exercise any powers conferred by the Financial Services Act 1986 or by the enactments relating to companies, insurance companies or insolvency or for the purpose of enabling or assisting any inspector appointed under the enactments relating to companies to carry out his functions;
(e) for the purpose of enabling or assisting an official receiver to carry out his functions under the enactments relating to insolvency or for the purpose of enabling or assisting a recognised professional body for the purposes of section 391 of the Insolvency Act 1986 to carry out its functions as such;
(f) for the purpose of facilitating the carrying out by the Health and Safety Commission or the Health and Safety Executive of any of its functions under any enactment or of facilitating the carrying out by any enforcing authority, within the meaning of Part I of the Health and Safety at Work etc. Act 1974, of any functions under a relevant statutory provision, within the meaning of that Act;
(g) for the purpose of facilitating the carrying out by the Comptroller and Auditor General of any of his functions under any enactment;
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(h) for the purpose of facilitating the carrying out by the International Rail Regulator of any of his functions under any subordinate legislation made for the purpose of implementing--
(i) the Directive of the Council of the European Communities dated 29th July 1991 on the development of the Community's railways; or
(ii) Council Directive 95/19/EC on the allocation of railway infrastructure capacity and the charging of infrastructure fees;
(j) in connection with the investigation of any criminal offence or for the purposes of any criminal proceedings;
(k) for the purposes of any civil proceedings brought under or by virtue of this Act or any of the enactments or instruments specified in subsection (3) below; or
(l) in pursuance of a Community obligation.
(3) The enactments and instruments referred to in subsection (2) above are--
(a) the Trade Descriptions Act 1968;
(b) the Fair Trading Act 1973;
(c) the Consumer Credit Act 1974;
(d) the Restrictive Trade Practices Act 1976;
(e) the Resale Prices Act 1976;
(f) the Estate Agents Act 1979;
(g) the Competition Act 1980;
(h) the Telecommunications Act 1984;
(j) the Airports Act 1986;
(k) the Gas Act 1986;
(l) the Insolvency Act 1986;
(m) the Consumer Protection Act 1987;
(n) the Electricity Act 1989;
(o) the Property Misdescriptions Act 1991;
(p) the Water Industry Act 1991;
(q) the Water Resources Act 1991;
(r) the Railways Act 1993;
(s) any subordinate legislation made for the purpose of securing compliance with the Directive of the Council of the European Communities dated 10th September 1984 on the approximation of the laws, regulations and administrative provisions of the member States concerning misleading advertising.
(4) The Secretary of State may by order provide that subsections (2) and (3) above shall have effect subject to such modifications as are specified in the order.
(5) The prohibition imposed by subsection (1) above shall be enforceable by civil proceedings--
(a) by the individual mentioned in that subsection, or
(b) by the person for the time being carrying on the business there mentioned,
for an injunction or for any other appropriate relief or remedy.
(6) In this section the Franchising Director" means the Director General of Passenger Rail Franchising.").
On Question, amendments agreed to.
Clause 210 [Interpretation of this Chapter]: