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As the noble Baroness knows, the list of matters in Clause 6 already deals with the impact that any order would have. The list refers to the fact that the Minister must report on the effect of burdens imposed by the proposal; how the rigorous safeguards are satisfied, including necessary protection, rights and freedoms, fair balance and proportionality; whether any savings or increases in cost are estimated to result from the proposals, why and how much; and what benefits (other than savings in cost) are expected to flow from the proposal.
In the Bill we seek to spell out those matters that would be in a regulatory impact assessment. It is worth pointing out that the Government expect all legislative or regulatory proposals to be accompanied by a regulatory impact assessment. The Cabinet Office has issued detailed guidance on this issue which goes to the heart of good policy making and such an RIA would be included in a consultation document that would be published at the time that the regulations are first published in draft.
While I understand and share the motives of the noble Baroness, I do not consider that her proposals bring any additional benefits in this respect. Perhaps I can deal with what I consider to be the problem with her proposals. She wants to have on the face of the Bill the words "regulatory impact assessment", as Amendment No. 59 suggests. Government thinking develops all the time and "regulatory impact assessment" is the form of words currently in use. A few years ago it was "compliance cost assessment". Putting the current state of affairs on the face of the Bill would freeze policy at current thinking.
Surely, it would be better to allow the policy to develop and not to impose an unnecessary straitjacket on the Bill. The list of matters in Clause 6 deals with the impact that any order would have and it sets out those points that the noble Baroness indicated in her speech that the public at large would be entitled to know. While I support the motives behind the amendment, I believe that we have already covered the point in the Bill and there would be problems in the proposals that she suggests. I urge the noble Baroness not to move her amendment.
Lord Goodhart: Before the noble and learned Lord sits down, perhaps I can ask him one question. The Government rely a good deal on Clause 6(2)(h) to indicate that the amendment of the noble Baroness is unnecessary. Clause 6(2)(h) states:
Lord Falconer of Thoroton: Whether savings or increases in costs are estimated to result from the proposals is an interesting question which I shall need to consider. I need to write to the noble Lord about that.
The Minister told us that the information which we are asking to be provided through a regulatory impact assessment will be available to members of the general public and to all those whom the Government will be seeking to consult. Will that information be available at the beginning of the consultation process; that is, before the order is laid before Parliament?
Lord Falconer of Thoroton: I said that when a draft order is published and consultation begins, as a matter of practice and in accordance with Cabinet Office practice, it would normally contain a regulatory impact assessment. When one reaches the Clause 6 position, pursuant to the terms of the Act one must publish the results of the consultation, which include the items I have listed in relation to that clause.
The noble Lord said: In moving Amendment No. 60, I shall speak also to Amendments Nos. 62 and 63. If Clause 7(2) applies, the Minister must not disclose any representations made where a person, in making such representations, requests the Minister not to disclose them--unless one of two exceptions applies. The first is where the Minister obtains the consent of the representor and, if the information contained in the representations relates to any other person or business, also obtains the consent of the person to whom the information relates or of the person, for the time being, carrying on the business. The second exception is that, nevertheless, the Minister may
The gateway into subsection (2) is a request by the person making the representations. Only then will the Minister need to obtain the consent of the person to whom the information relates, or the person carrying on the business to which the information relates. If no request is made by the person making the representations, the Minister does not need to obtain the consent of the others.
I understand that the only protection which such persons have is contained in the weak provision in subsection (3), which applies if it appears to the Minister that disclosure of the information could adversely affect the interests of a third person and the Minister has been unable to verify the information and obtain the consent of that person.
We believe it appropriate to impose a restriction on disclosure if the Minister has been requested not to disclose the representations by the person to whom the information relates, or the person carrying on the business to which the information relates. Such information is, in a sense, his information and may be confidential. Those persons should have the right to request the Minister not to disclose that information. I beg to move.
Lord McIntosh of Haringey: These amendments address the important issue of disclosure of information about third parties. They seek to address the cases in which representations have been made in response to a consultation exercise which contained information about a third party. That would enable those third parties to request that the Minister should not disclose those representations. It would have the result that the Minister could then disclose the representation only in anonymised form or if both the respondent and the third party agreed.
Perhaps I may reassure the noble Lord, Lord Kingsland, about the protections for third parties under the provisions in the Bill dealing with disclosure of representations to the committees. First, if the respondent has requested non-disclosure, information on a third party can be used only in anonymised form or with the consent of both the respondent and the third party, or if the committee specifically requests it.
Secondly, in those cases where the respondent has not requested non-disclosure, the Minister is not obliged to disclose information on the third party where he thinks the disclose of that information could adversely affect the interests of the third party, and he has been unable either to verify the information or to obtain the consent of the third party to the disclosure.
The Minister must apply his mind as to whether to disclose damaging information. But a balance must be struck. If the information is sufficiently important, the Minister will have to disclose it even in those
However, let us consider the alternatives. Let us suppose that there was some proposal to deregulate financial services law and someone wrote in saying that the kind of thing proposed was exactly what Peter Clowes got up to. That is clearly highly material and might well not be easily verifiable. But Peter Clowes would be unlikely to consent.
Similarly, if facing legal action, the accountants or other professionals involved might refuse if the representation was, for example, that an audit did not offer adequate protection as shown by the events in that case. But, again, it would be highly material and almost impossible to anomymise. That is why the previous government--those now putting forward the amendment--used the Parliamentary Papers Act 1840 to publish the Barlow Clowes report and did the same in other exceptional cases. Of course, the person aggrieved would have a remedy if the disclosure to the Minister were malicious as it would then not attract qualified privilege from defamation.
It seems to me perfectly reasonable that the Minister should disclose those types of information to the committee and I ask the noble Lord, Lord Kingsland, not to press his amendment.
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