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Lord Whitty: I apologise to the noble Baroness. I have not replied on the Question whether Clauses 32 and 74 shall stand part of the Bill. Perhaps the noble Baroness will wish to return to the issue when we reach those clauses.
Baroness Miller of Chilthorne Domer: That will suit me admirably. I hope that by then my noble friend Lord Ezra will be here to speak to them.
I did not understand what the Minister meant when he said that the segregated fund would not be any good in emergencies. An emergency is a peculiar situation, and legislation could never cover every eventuality. We should aim at least to cover non-emergency situations, for which a segregated fund should be seriously considered.
Given the support that we have received from the other Benches, we shall return to the issue on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Miller of Hendon: I spoke to Amendment No. 8 and would like to comment further. I thought that I had the opportunity to do so. It would seem that I do not. I was told that I could, but never mind. I am afraid that I was misinformed.
The Deputy Chairman of Committees (Baroness Thomas of Walliswood): We were dealing with Amendment No. 8A, which has just been withdrawn.
Baroness Miller of Hendon: That is all right.
Lord Jenkin of Roding moved Amendment No. 9:
- Page 4, line 6, at end insert—
The noble Lord said: As I understand the rules, my noble friend would have to wait until we reached the amendments that she spoke to.
In moving Amendment No. 9, I shall speak also to Amendments Nos. 10, 11, 56, 57 and 58. The amendments address an issue that the industry feels is extremely important and crucial—confidentiality. It refers not only to existing companies—although, naturally, they are primarily concerned—but also to any future potential contractors, some of which are major companies, and perhaps companies from overseas, which may be interested in participating in this market.
The first group of amendments relates to the publication of the directions by the Secretary of State, and the second group relates to the publication of the annual report. They are two separate groups, but it is sensible that we discuss them together.
The point can be stated very shortly. Under the Bill, information provided to the NDA—or, indeed, any material that the NDA may already possess—may be excluded from publication on grounds of national security but not on grounds of commercial confidentiality. That is felt to be a nonsense.
The whole point of creating the NDA is to drive down costs through competition. We have already discussed that, so I do not need to dwell on it, but competition requires competing contractors. Contractors will not come forward if they feel that, by doing so, their commercially sensitive knowledge and information will become unprotected and liable to be put in the public domain. As my brief puts it—it is another rhetorical question—if you were in their shoes, would you?
We are going to try to attract some of the leading companies in the world—many of which may come from the United States, but others have experience of decommissioning—to come forward and play their part in a major UK programme. By the time that the Bill comes into operation, the Freedom of Information Act 2000 will be in force, but the Bill does not recognise the conditions and protections allowed by that Act. The Bill appears to confine itself merely to national security.
I made a considerable point at Second Reading that we all recognise that openness and transparency are key to the success of the NDA, but that must take account of real commercial confidentiality issues, as does the Freedom of Information Act 2000. What is the difference? Why should that Act protect commercial information while the Bill does not? I am advised that our amendments are consistent with the Act and would not fall foul of it.
Existing contractual commitments always include confidentiality obligations. The Bill now requires disclosure of that information and provides no protection for companies—BNFL or UKAEA, for instance—in relation to breach of contract or other legal liability resulting from disclosure of information. In this industry, as in many others, operational information is commercially confidential. It has a commercial value and, in an environment that will be increasingly competitive, that factor must be taken into account. Information disclosed in that way would be of significant value to competitors.
As I said, that applies not only to the existing firms, but to those that may be looking at the opportunity of coming into the industry. In the absence of protection for their commercial information, they will see a considerable no-no. We have an opportunity in the Bill to put that right. The disclosure duties placed on site licensees by the Bill, and the related duties placed on the NDA to publish the material that it receives, could deter prospective contractors from taking up site licences or investing in site licensee companies where that would expose them to excessive obligations and potentially to third-party claims for breach of confidentiality. That point was made to me very forcefully.
The very broad disclosure obligations in the Bill severely restrict the NDA's ability to secure value for money, which Ministers have today reiterated is part of the purpose of the whole exercise. They would also restrict the NDA's ability to act in the manner that it considers most beneficial to the public and to obtain value for taxpayers. I cannot help feeling that that argument must have been raised with Ministers by the industries concerned, and I am rather puzzled about why Ministers have not seen fit to respond to the argument as must be necessary. The whole process will not work unless there is proper protection for commercial information. I beg to move.
Baroness Miller of Hendon: As my noble friend pointed out, this is a very serious matter. I regret the time that I spent writing my speech in support of his amendment because he covered every issue that I could possibly think of. There is virtually nothing left for me to say, other than that the issue is so important that I do not understand why it has not been catered for anyway. The problem is that, when one tables an amendment—one can do nothing in Grand Committee other than to raise an amendment—invariably the Government say that it is not necessary or give some such response. This amendment is totally necessary. There is no reason why the protections given by the Freedom of Information Act should not extend to these extraordinarily important matters.
As I discussed in an earlier amendment, and as my noble friend—and indeed the Minister—mentioned, one of the NDA's duties is to ensure that it seeks competitive tenders. But one cannot have competitive tenders if nobody is prepared to put their hat in the
I noticed that the Minister turned around to have a big chat with one of his officials. My noble friend said that he could not believe that other people had not discussed the matter with the DTI. Although we cannot divide in Grand Committee, I hope that we will have the pleasure of not having to bring back the amendment on Report and that it will have been agreed here; otherwise, we will most certainly bring it back.
Lord Davies of Oldham: The noble Lord emphasised the great significance that he attaches to the amendment. He remarked that foreign companies might submit bids and mentioned those from the United States. He will probably recognise that if such companies are used to making submissions in the United States, they will have been subject to American legislation, which is as extensive as any statutes in this country. I am not sure that such companies would necessarily be deterred by the situation here.
Of course the Government understand the concern to protect certain information related to the interests of organisations and individuals, but that must be balanced against the interests of openness and transparency. We should surely think carefully before imposing wide-ranging restrictions on publishing or laying before Parliament information.
It is hard to see who might be affected by the information in directions containing designations. The directions will identify what is to be designated to the NDA. They are therefore likely to include little more than a description of what the NDA is required to clean up. It is in everyone's interests, as a matter of effective parliamentary scrutiny and public confidence in the NDA, that that information be made available.
As the noble Lord said, the Bill contains national security restrictions. I have difficulty in accepting why commercially confidential information should require the same degree of protection. In respect of the NDA's annual report, the Bill provides for a discretionary restriction on matters of national security, but what it will describe in terms of the NDA is surely information that will be necessary for the wider public and Parliament. The NDA will inevitably, and necessarily, hold commercially sensitive information on operators and contractors. The noble Lord and the noble Baroness, Lady Miller, are right to emphasise that fact. Before making any such information publicly available, as a matter of normal practice the NDA will be expected to seek the consent of the organisations affected.
In the event that agreement cannot be reached, the Freedom of Information Act provides for the matter to be referred to the Information Commissioner for a determination on whether the information should be made public. There is also a right of appeal to the courts, should a party feel dissatisfied with a determination. Given our clear commitment to ensure that the NDA becomes a model of openness and transparency, we should not rush to impose additional
The explicit provisions proposed in the amendments would not inspire confidence that the creation of the NDA will make a significant change to the management of nuclear clean-up. I recognise from the strength with which those points were put by the two noble Lords that my reply may not entirely satisfy them at this juncture. Therefore, I would be verging on the excessively optimistic if I thought that this was the last that we would hear of the argument in the context of this Bill. There are other stages at which issues may be more fully pressed.
I emphasise that we must protect national security, but we must also ensure that, when commercially sensitive information is released, efforts are made in consultation to secure the agreement of those who supplied the information. The NDA must be free to use information on commercial activity in pursuit of its functions. It will need to promote competition and will not, therefore, release information that compromises the duty of ensuring that competition is fair. The NDA will not release information that would give unfair advantage to others in the competitive situation that we seek to create, with as secure, sound and level a playing field for competitors as is possible and consistent with the objectives that we discussed earlier. By the same token, we have a clear objective in the Bill: aspects of the operation of the NDA will need to be as open as possible for parliamentary scrutiny and public confidence. We know that problems relating to the industry have sometimes flowed from the excessive withholding of information that ought to have been in the public domain.
"(8A) The Secretary of State shall exclude—
(a) from what he lays before Parliament and publishes under this section, and
(b) from what is to be laid before the Scottish Parliament by the Scottish Ministers,
anything the publication of which (otherwise than under any enactment) would constitute a breach of confidence actionable by any person."
6 p.m.
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