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Baroness Sharp of Guildford: We on these Benches very much support the two amendments brought forward by the noble Baroness, Lady Wilcox. In many senses, they pick up the spirit of the amendments that we put forward in terms of openness of information to the consumer councils. We endorse fully what the
noble Baroness said about the need for the new authority to be seen to be open and available to consumers.
Lord Jenkin of Roding: I should like to pick up on one point that was touched on by my noble friend Lady Wilcox. As I understand it, the Government have already made clear in relation to the two industries whose regulation was withdrawn from this Bill at an earlier stage in another place--namely, water and telecommunications--that it remains their intention that the provisions so far as concerns the consumer councils shall follow broadly the same pattern so far as is possible, having regard to the different natures of the four industries. To my mind, it is therefore important that we get these provisions right in this Bill.
Although it may be perfectly possible in theory to move a whole lot of amendments about the consumer provisions in the legislation for telecommunications and water--it may be one Bill; it may be two--we anticipate the possible argument that "the House accepted this in the Utilities Bill and therefore we are not going to listen to any further arguments".
The noble Lord, Lord McIntosh, always listens to the arguments and then mostly says "No".
Lord Jenkin of Roding: Not today we hope. It is important that in debating these provisions about the consumer councils we have in mind that the Government have indicated that they will want to harmonise them as much as they can in future legislation.
Having said that, I am absolutely certain that the key words of "openness" and "transparency" are vital--particularly in giving the reasons for decisions. If an authority has to turn down a request, it is enormously important that everyone should understand very clearly the reason for that. In that sense, I, too, support my noble friend's amendments.
Lord Kingsland: So far as concerns the disclosure of information in the Bill, generally the Opposition will need to be persuaded that any change from what is likely to be the ultimate content of the Freedom of Information Bill is desirable before we would be prepared to depart from the terms of that Bill.
5.15 p.m.
Lord McIntosh of Haringey: Perhaps I may first say to the noble Lord, Lord Jenkin of Roding, that I do not first listen to the arguments and then say "No"; I listen to the arguments and persuade noble Lords to withdraw their amendments.
I should say to the noble Lord, Lord Kingsland, that we will be discussing the Freedom of Information Bill. That Bill is drafted in such a way that there are specific information regimes in specific sectors which can be different from the basic minimum requirements of the Freedom of Information Bill. It is important that we
should understand that. I shall be setting that out in more detail when we come to the appropriate amendments.I have listened to the arguments and I am aware of the views of the National Consumer Council. I take them very seriously.
The amendments seek to make a number of changes to the publication function of the authority. They make publication of information and advice in the consumer interest a duty rather than a power, as the noble Baroness, Lady Wilcox, made clear. But we believe that this is mistaken. The authority has a primary duty to protect the interests of consumers, and the power to publish information and advice is one of the tools it has in carrying out this primary duty. Sometimes--but not always--that duty will prompt it to exercise this power.
In addition, the concept of a broadly defined duty to publish can be mistaken. The publication role is one of the many activities of the authority. That means that it has to decide priorities between its activities and allocate resources accordingly. If the duty to publish information is not to distort the setting of priorities, the authority would have to have some discretion as to what to publish and what to leave unpublished. I am sure that that is what the noble Baroness intends. However, this element of the discretion would make the duty very difficult to enforce. In our view, this kind of function is better encapsulated in a power rather than a duty, and that is what the Bill provides.
Secondly, a new duty on the authority to make available the records of its decisions, and the information on which they are based, is proposed. The Bill already requires the authority and the Secretary of State to publish their reasons for key decisions. In addition, the Freedom of Information Bill, which will apply to the authority when it becomes law--I refer here to the matter raised by the noble Lord, Lord Kingsland--will oblige the authority to maintain and operate an approved publication scheme which the authority must adopt having regard to the public interest in the publication of reasons for its decisions.
The authority will be making decisions every day. I assume that the noble Baroness, Lady Wilcox, is seeking a record of decisions with regard to the exercise of key regulatory functions. The Gas and Electricity Acts already require the regulator to keep a public register in which the provisions of every licence, exemption, modification or revocation of licence conditions, direction, consent or determination made under licences and enforcement orders must be entered.
We do not believe that the requirements proposed in the amendments add anything to those requirements and we have to oppose this feature of the two amendments.
The third and last aspect of the amendments seeks to replace the existing disclosure test with one which obliges the authority to weigh the public interest in disclosure against any serious and prejudicial effects. Again, we do not think that this adds anything of
substance to the power that the authority already has. Under Clause 6, the authority must have regard to the need for excluding matters which would cause serious and prejudicial effects. It is not required to exclude them. This means that the authority has the power to decide that, even though serious and prejudicial effects are likely, the interest in publication is strong enough to justify publication.I said earlier that the Conservatives appear to be looking to limit the grounds for publication and that the Liberal Democrats, on the whole, are looking for ways to extend them. Although I do not think it is intended, this amendment would limit the power of the authority to publish information because it would take away the "have regard" criterion for excluding matters which would cause serious and prejudicial effects and replace it with a requirement. I do not think that that would be the right move. I urge the noble Baroness not to press the amendment.
Baroness Wilcox: In his reply the Minister referred to the National Consumer Council, but when I spoke I did not refer to that body. I should have done so and for that I apologise. The National Consumer Council, of which I was chairman, and the National Federation of Consumer Groups, of which I am president, along with other consumer groups, have all pressed for the wording to be changed here.
I have come across this kind of wording many times in the past. I recall, some seven years ago, when I first saw the introduction of the banking code. All the way through the code stated that the consumer or customer "shall", while the bank "may". Perhaps I attach more importance to those words than do the Minister and his advisers in the Box.
I should like to take this opportunity to thank the noble Baroness, Lady Sharp of Guildford, for supporting these amendments, and my noble friend Lord Jenkin, who also demonstrated his support.
I think that this represents a missed opportunity. If the people of this country are to be convinced that we are moving away from secrecy towards greater openness and if there is to be a presumption of openness, the words chosen to be put on the face of the Bill are extremely important. I shall not press my amendment today, but this issue will be raised again and again--indeed, each time a new body is set up. I repeat: I should prefer to see the word "shall" used in place of the word "may". However, for the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey moved Amendment No. 21:
- Page 4, line 17, leave out from ("matter") to end of line 20 and insert ("which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where publication of that matter would or might, in the opinion of the Authority, seriously and prejudicially affect the interests of that individual or body.").
The noble Lord said: In moving Amendment No. 21, perhaps I may speak also to Amendments Nos. 22, 24, 25, 76, 78, 94, 147, 281, 289, 296, 309, 333 and 343. It
may be appropriate for me to remind the Committee of what I said at Second Reading; namely, that every part of this Bill has been duplicated because it amends both the Gas Act and the Electricity Act. Of course, that means that virtually every amendment has also had to be put down twice. For that reason, this group is not quite as long and complicated as it may appear at first sight.All the amendments concern the power of the authority to publish and to bar unauthorised disclosure of information. Amendments Nos. 21, 22, 24 and 25, concerned with the authority's power to publish information and advice in the interests of consumers under Clause 6, are essentially tidying up provisions. Amendments Nos. 21 and 24 make it clear that, as is the case with the regulator's existing powers to publish which Clause 6 adapts, it is only the possibility of serious and prejudicial effects for the body to which the information relates, as opposed to any body, with which the disclosure test is concerned. Amendments Nos. 22 and 25 make it clear that the interests of consumers includes the interests of future as well as present consumers.
The other amendments in this group carry forward the well-established practice of providing, in legislation which empowers public authorities to require information from individuals and businesses, that unauthorised disclosure of information so obtained shall be a criminal offence.
At present, the Gas and Electricity Acts each contain a provision to this effect, but they are slightly different from each other. The amendments repeal those sections and replace them with one regime; namely, the new clause to be inserted by Amendment No. 281--the key amendment after Clause 102--which will apply to information obtained under either Act, as befits a situation where there is a single licensing authority operating lined-up--I almost said "joined-up"--licensing regimes.
Like the existing provisions, the new clause works by prohibiting disclosures and then defining exceptions where disclosure is permitted. Generally these exceptions are for disclosures from one regulatory authority to another for the purpose of facilitating the performance of the other authority's statutory functions.
In addition, the various publication powers conferred on the authority and the council elsewhere in the Bill are, as a rule, exceptions to the prohibition on disclosure. However, each typically is subject to its own "harm test" limiting what may be disclosed without the consent of those to whom the information in question relates. Furthermore, the protection afforded by the new clause will apply to information obtained under the Bill, for example, by the consumer council under Clause 24.
In summary, the amendments carry forward the principle that unauthorised disclosure should be a criminal offence, and establish a common regime for
each of the three statutes--the Gas Act 1986, the Electricity Act 1989 and the Bill. I commend the amendments to the Committee. I beg to move.
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