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Baroness Buscombe moved Amendment No. 20:

("(5) Nothing in this section authorises the Council to direct the Authority to supply information which is subject to the restrictions on disclosure contained in section 55 of the Competition Act 1998 nor authorises the Authority to comply with such a direction.").

The noble Baroness said: My Lords, in moving Amendment No. 20, I shall speak also to Amendment No. 21. Section 55 of the Competition Act 1998 restricts the disclosure by the competition authorities of information obtained under that Act regarding the affairs of any individual or business to "designated persons" in the performance of "relevant functions". Typically, those are other regulators exercising their sectoral regulatory powers. If the council, which is not within that pool of designated persons, was able to obtain information which it would not otherwise be

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entitled to via the exercise by the authority of its competition powers, it would mean that information could be disclosed without being subject to the safeguards provided under the Competition Act. It would also undermine existing arrangements for the separation of the regulator's Competition Act powers and sectoral powers. Amendment No. 20 prohibits the council from seeking, and the authority from disclosing, information protected by Section 55 of the Competition Act.

Turning to Amendment No. 21, Clause 27 gives the Secretary of State the power to specify by regulations the types of information which need not be supplied to the council. The extent to which certain categories of sensitive information, such as trade secrets and legally privileged communications, will be protected will therefore be determined only after the Bill receives Royal Assent. While the Government consulted on their proposals for regulations before the Bill was published, those proposals were only in outline and there is no obligation to consult on the form of the regulations themselves. Amendment No. 21 provides transparency in the exercise of the Secretary of State's power by requiring him to consult interested parties before making any regulations under this clause. I beg to move.

Lord McIntosh of Haringey: My Lords, perhaps I may deal with Amendments Nos. 20 and 21 in turn because they are not quite the same.

As noble Lords will be aware, in March the Government published a consultation document on categories of information which the authority and the licensees should be entitled to withhold from the consumer council. Information obtained by the authority other than from licensees under the powers it has as gas and electricity regulator was in the second of the classes in the document. Information obtained under the Competition Act 1998 is a subset of that group.

There are a significant number of Acts under which information could be obtained where that information might subsequently pass to the authority. I see no good reason to single out the Competition Act 1998 for explicit treatment here. In any case, for reasons I am about to give, I do not believe information will reach the council anyway. Under the regulations which we are to make, and on which we consulted, information such as information to which Section 55 of the Competition Act applies will be information which the authority is not obliged to pass to the council under Clause 24 of the Bill. The question, therefore, is whether it could do so.

The Bill does not add the consumer council to those bodies to whom Competition Act information, if I may call it that, may be passed under exceptions to the prohibition in that Act on disclosing such information. The prohibition on disclosure of information in this Bill expressly provides in Clause 104(11) that information obtained by the authority in the exercise of its concurrent competition functions is subject to the Competition Act prohibition on disclosure, and

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not to the one in the Bill. I hope that that reassures the noble Baroness, Lady Buscombe, that Amendment No. 20 is unnecessary.

Amendment No. 21 would add a requirement to consult the authority, the council and licensees' representatives on regulations under Clause 27. Clause 27 contains two regulation-making powers: in subsection (1), a power to set out the sorts of information the authority and licensees need not supply to the council, or the council supply to the authority; and in subsection (3), a power to appoint an adjudicator to determine disputes about whether information requested by the council or the authority can be withheld.

Taking the regulations under subsection (1) first, we have already sought views on what the regulations under Clause 27(1) should contain. We are now analysing representations received and will announce our future intentions in due course. In this case, therefore, the requirement is unnecessary and if there were to be subsequent amendments we would consult on those as well.

The House may recall that when we introduced subsection (3) of Clause 27 I noted that the information commissioner is a possible adjudicator under regulations. She is the front-runner, as a result of representations from various quarters in recent months. If we proceed to make regulations appointing her, I am not sure what more there would be to consult about. An express obligation to consult might oblige us to delay introducing regulations in order to comply with the duty and I do not believe there would be any benefit from that.

In those circumstances, without in any way being antagonistic to the thinking behind the amendments, I hope they will not be pressed.

Baroness Buscombe: My Lords, I thank the Minister for his full reply in regard to both amendments. I shall read what he had to say with care, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 21 not moved.]

Clause 30 [Licences authorising supply etc. of electricity]:

Lord McIntosh of Haringey moved Amendment No. 22:

    Page 28, line 27, leave out ("or condition").

The noble Lord said: My Lords, in moving Amendment No. 22, I shall speak also to Amendments Nos. 23, 33, 34, 68, 79, 94, 97, 121, 122, 123 and 127. This group contains amendments which all relate in some way to the licences and licensing provisions of the Bill.

Amendment No. 22 needs to be considered together with Amendments Nos. 121, 122 and 123. The Government and Ofgem, with which we are working closely on the development of new standard conditions of licences, had it in mind to provide that in future provisions in licences as to licence revocation would be conditions. At present they are terms of the licence.

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The distinction between "terms" and "conditions" may not be self-evident but it may help if I say that terms of a licence may not be amended without the consent of the individual licenceholder whereas the legislation sets out procedures whereby licence conditions may be modified without such consent.

As well as moving the revocation provisions from one part of the licence to another, we also wanted to take the opportunity when determining standard licence conditions to update the revocation provisions themselves. We have recently completed a major consultation on all the draft standard licence conditions. It has become apparent that the industry is very uneasy about the proposal to move the revocation provisions, but, by and large, is supportive of the substance of the changes we wish to make to the provisions themselves. I might add, by way of an aside, that this is principally a matter for electricity licenceholders as the changes we propose, in the main, would bring electricity licences into line with gas licences.

In recognition of the response we have received, we now propose that revocation provisions remain licence terms; in other words, they may not be amended without the consent of the individual licenceholder. Amendment No. 22 reflects this by removing from Section 6 of the Electricity Act, as amended by Clause 30, a reference to conditions of a licence in the context of the revocation provisions of a licence.

But we still need a vehicle for making the changes to the provisions themselves. We have identified the licensing scheme as the most appropriate vehicle for making these changes. Amendments Nos. 121, 122 and 123 give the Secretary of State the power he needs to make these changes when the licensing schemes which Schedule 7 provides for are made.

Amendment No. 23 to Clause 43 and Amendment No. 79 to Clause 88 correct omissions from the Bill. They would ensure that when the Competition Commission considers a reference made to it in connection with a proposal to create a new licensable activity, it would have regard to the same matters as the authority would have regard to in carrying out its functions. The current drafting is incomplete.

The remainder of the amendments in this group are minor and technical and in one or two cases consequential. In the main, they are aimed at correcting or improving the existing drafting of the Bill and raise no issues of substance. I beg to move.

Lord Fraser of Carmyllie: My Lords, I am grateful to the Minister for that full explanation, although I shall want to read carefully what he has said. I had thought that the Minister would bring forward a further amendment, which, unless I have missed it, he has not included. I am concerned about the following matter. As I understand the scheme of things, it will be for the Secretary of State to set the standard conditions. He may talk to GEMA and reach a view as to what is appropriate but he will set the standard conditions. There are certain circumstances in which GEMA might ask the competition authorities to report on a

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matter. That is clearly a desirable provision. However, as I understand the position, under Clause 35 it is open to the authority to modify the standard conditions.

I ask the Minister to consider the following circumstance. Let us consider a standard condition that has been modified by the authority. At some subsequent time the authority takes the view that that modified standard condition has been breached. In those circumstances the authority looks to its powers under what is now Clause 59. As I understand the position, having discovered a breach of a condition in those circumstances, the authority could impose an unlimited fine. In such circumstances where the authority is, as it were, the legislating body in that it can modify the standard conditions, it is the authority that conducts the investigation and acts as jury in determining whether there has been a breach and as a judge in imposing an unlimited fine.

I hope that the Minister will reassure me that in those circumstances, notwithstanding the statement that he made on the first draft of the Bill that reached your Lordships' House, he continues to have no unease that the matter that I have mentioned does not in any way breach the European Convention on Human Rights. I believe that some unease should be felt at a situation where a single authority performs all those different functions. Those functions can only be separated out when the authority decides to refer the matter to the Competition Commission; it is not a matter that that body can address itself. I am uneasy about that situation. I would welcome hearing the Minister say yet again that he is confident that there is no prospect of breaching the European convention in these circumstances.

4.45 p.m.

Lord McIntosh of Haringey: My Lords, the noble and learned Lord, Lord Fraser, is entitled to make the points that he has made. However, he makes them in the context of a series of amendments which should reduce his fears, at least in respect of revocation provisions of a licence. We shall take out what was originally proposed as being conditions of a licence which could, as the noble and learned Lord said, be changed under certain circumstances without consent and make them terms which cannot be changed without consent. To that extent, any change which is being made now gives me greater confidence in asserting--as I did at the beginning of our discussions--that the Bill is compatible with the European Convention on Human Rights.

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