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Lord Goodhart: I am a little puzzled by that reply because, as the noble Lord, Lord Lucas, said, the test for removing confidentiality in court is one of serious misbehaviour; that is, there is a vital public interest. It usually states that there is no confidentiality to protect iniquity. I believe that "iniquity" is the word that is used in most cases. That, of course, is fairly narrow. I hope that there are not too many cases where the behaviour is iniquitous.
Here, we are considering the withholding of information which it would be tiresome or inconvenient for the public authority to disclose. Given that, where information is accepted on the footing that the receiver of the information will treat it as confidential or that the disclosure of information will give rise to an action for breach of confidence, we feel that the test imposed by Clause 39 is too narrow. It may be correct in itself but it comes too late in the whole game. One wants to ensure that the public authority does not accept information on a confidential basis where it is not properly justified in doing so.
Perhaps I may continue from the point that I was about to reach when the noble Lord, Lord Lucas, intervened. On this occasion, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 210 to 212 not moved.]
Clause 40 [Legal professional privilege]:
[Amendment No. 213 not moved.]
Clause 41 [Commercial interests]:
Lord Cope of Berkeley moved Amendment No. 214:
- Page 23, line 8, at end insert ("and there is no overriding public interest in complying with the request for information").
The first oddity about Clause 41 is that there are two separate tests in subsections (1) and (2). Subsection (1) states that:
- "Information is exempt ... if it constitutes a trade secret",
- "if its disclosure ... would be likely to, prejudice the commercial interests of any person (including the public authority holding it)".
There is also the question of whether a trade secret, simply because it is a trade secret or one defined as such in subsection (2), should automatically be exempt in all circumstances. Amendment No. 219 and, for that matter, Amendment No. 214--and other amendments have been suggested by other people--attempt to insert that where the public interest in complying with the request for the information exceeds the harm that would result from releasing it, the information is not exempt. In different ways, we are attempting to provide that the public interest may still permit the release of what would otherwise be a trade secret or a matter that was commercially confidential.
Amendment No. 222 looks at the question of retrospection by saying that information is exempt if it was supplied to the public authority by a company or a commercial organisation before the coming into force of this Act. I believe that retrospection is always difficult. Business requires stability and it is important that business should be able to rely on the laws as they stand--in this case, at the time when the information is given to the public authority--and should not find retrospectively that something they were told falls under this legislation.
Amendment No. 325 concerns information which might last for ever. Some trade secrets remain valuable for a very long time, particularly when they concern matters such as patents or items which cannot be patented but on which businesses rely for making sales. This amendment attempts to ensure that such information is not automatically released after 30 years under Part VI of the Bill as otherwise it would be. The City of London in particular is often criticised for short-termism. However, sometimes there is long-term commercial interest in information. We are attempting
to allow that protection to continue for longer and for it not to be subject automatically to the override of the later clauses in the Bill. Therefore, I beg to move Amendment No. 214.
Lord Archer of Sandwell: I congratulate the noble Lord, Lord Cope, or perhaps it should be his noble friend Lord Mackay, on his skill in drafting this amendment. It says broadly the same thing as mine but he drafted it so that it came first in the text and therefore opens the bowling. I should like to speak to my Amendment No. 218 and, since the noble Lord deployed the case, it will not benefit from repetition.
However, I invite my noble and learned friend to consider a hypothetical situation. Suppose a public authority is told that a specific retailer is selling foodstuffs which are toxic, and it ascertains that that is true. Clearly to reveal that would prejudice the commercial interests of the retailer. The Bill would not preclude the authority from making it known if it chose, but if someone were to ask the authority whether or not the retailer was selling toxic goods, we might have hoped that it would be under an obligation to disclose the answer.
It is not unknown in the experience of most of us for an authority or a government which is aware of a danger to decide that it would be better to keep the public in ignorance, so as not to create alarm, for example, or not to damage our export trade. Members of the public will not know about the information until they complain about the epidemic. I assume the philosophy of the Bill is that information of that kind ought to be made known to the public. Would it not be wise to ensure, therefore, that danger to a commercial interest is not the only consideration to be taken into account?
Lord Goodhart: We tabled Amendment No. 221, which comes within this group. It is fair to say that we are not particularly concerned about Clause 41(1)--the definition of "trade secret" is fairly widely recognised in existing law. But we are concerned about the width of Clause 41(2). While we accept that this is not an absolute exemption and therefore the balancing test under subsection (2) has to be applied to it, the present width of Clause 41(2) is a serious problem.
Our solution--it is certainly not the only possible solution--is that there should be in the clause something equivalent to what was Clause 13(5) and which we have been assured will be brought back; that is, that the authorities must have particular regard to the public interest in the effective oversight of public funds; in making sure that the public are adequately informed about risks to health and safety or risks to the environment; and that regulators are discharging their responsibilities effectively. We believe that the public interest element in Clause 41 needs strengthening considerably and that our amendment is the appropriate, if not the only appropriate, way of doing it.
Lord Young of Dartington: I wish to speak to Amendment No. 220, tabled in my name. I say
immediately that I am very much in favour of the proposals made by those noble Lords who spoke before me on other amendments in this group.After saying that, I join with my noble and learned friend Lord Archer of Sandwell in paying tribute to the Freedom of Information Campaign, Maurice Frankel and the two co-chairmen in particular for their great persistence over many years and their willingness to come back after the series of disappointments which they endured.
Looking back over the period at which the campaign has been at work, two things seem to be at odds. One is that the public realm is becoming more accessible to those members of the public who are interested. That is because of the growing reach of the media; because of often invasive journalism; because of the--almost-- respectability which whistleblowers are receiving and the leaks that are becoming endemic on almost every subject that the Government touch--at least when there is any suggestion of any scandal or misdoing.
The public may get a strange, misinformed and biased view of what is going on in various parts of the government but they get a view. The kind of view they get does little to favour the esteem in which governments are held. The Consumers' Association recently conducted a survey into the public's confidence in Ministers. It showed that the majority of people did not have great confidence in them and that that lack of confidence is probably growing.
On the other side of the coin has been the Government's long-term resistance to letting the public know what is going on behind closed doors. That may have excited the media to try to discover many things, some of which are inaccurate, in order to satisfy an appetite. It seems to me that if only there were more openness--more than is shown in the Bill--the Government would not be so greatly affected by the media slights which are such a pain to Ministers and others in many ways.
The provision is crucial from the point of view of consumer interests. As I said at an earlier stage of the Bill, I was founder and I am now president of the Consumers' Association. It has been a major funder of the freedom of information campaign and is proud to be. If that means that I should declare an interest, I certainly do. The association has been foiled on so many issues in its attempt to provide information which would be of interest to consumers in trying to make a balanced decision about a particular issue. When the association first began, we were afraid that our chief enemies would be large companies and others which would get on our back because we were trying to give--and were generally succeeding--information about goods and services on the market.
We thought that in some way the confidentiality, secrecy and so forth would be difficult to overcome. To some extent, that has been overcome. Now our chief difficulty is trying to discover official information. Consumer confidence has been shaken by a series of scandals about BSE, GM food scares, major transport disasters, pensions mis-selling, mortgage endowments
and large-scale price fixing in the car industry. The root cause of all those scandals may be different but they had one thing in common. By the time consumers discovered what had gone wrong, or the full extent of the damage had become clear, it was too late. Citizens in the UK have paid twice, both as taxpayers and consumers, for many decisions on the part of public authorities in refusing to disclose information and decisions which are therefore made behind closed doors. In our view, that has become the single most important consumer issue before Parliament.As there is no adequate freedom of information, we have had to consider what we can do within the existing law. I should like to give as an example the so-called "orphan assets". Earlier this week, the Consumers' Association filed a pre-emptive cost order to try to give it the right to tackle a leading French insurer, AXA. It is one of the many insurance companies which has orphan assets which, in the view of the Consumers' Association, should belong mainly to policyholders and where the decision rests partly with the Government.
There have been long-drawn-out negotiations between AXA, the Financial Services Authority and the Treasury about what to do with those orphan assets, which are very large overall when one considers all the life insurance companies; indeed, they are estimated to amount to between £20 billion and £30 billion. This is certainly a very important consumer issue. All that we could find out--we managed to get 500 AXA policyholders organised on this issue--is that the FSA said that the offer made to policyholders fell within a "reasonable range".
We have asked many times what is that "reasonable range", because it is a matter that concerns every policyholder who may be called on to vote on AXA's proposed scheme. They will want to know whether the actual figures are at the high level or the low level of the range. But, as I said, we have not been able to get anywhere. That is why we are trying to get the courts interested. However, in our view, it should not be necessary to do so: the FSA should have given this information, with the backing of the Treasury, without question.
Clause 41 would continue to make life very difficult for consumers and all those who support their interests. It is a sweeping clause that will make any disclosure exempt if it would prejudice "commercial interests". As I say, that is a very wide sweep. Commercial interests have always been cited as the main reason for non-disclosure where it affects consumers. The purpose of my amendment would be to ensure that the requirement to disclose information that helps consumers to make informed choices or serves to improve the quality of markets for the general good would override the protection given to narrow commercial interests.
We recognise, of course, that commercial interests do need protection; indeed, no one can dispute that fact. However, there is a strong case for disclosing information that allows consumers to obtain redress. It would be a great improvement if there were a
reference to a public interest. I am not suggesting for a moment that the particular words in this amendment are necessarily the right ones, but they express a resolve on our part. It is possible that the Minister will not be able to accept all of my amendment. However, if he is able to say that he will consider the points that I have raised and perhaps return at a later stage with a form of words that would make the clause less sweeping and more favourable to consumer interests, that would alleviate a little of the misery that has been discussed in the debates on the Bill.
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