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Baroness O'Cathain: Will the Minister put himself in the mind of a company that would be prepared to bid for a contract for the NDA work? There are such things as intellectual property rights. If that organisation were to read the Minister's speech and be told that, if it did not like what was happening, it could go to the Information Commissioner and that, if it did not like what happened then, it could go to the courts, would it be bothered even to tender for the contract?
Lord Davies of Oldham: As I said, first of all, the NDA would be concerned to encourage as many participants in the bidding process as possible and to create fairness between them. That means that it would have due regard to commercially sensitive information. However, in order properly to inform Parliament and the wider public about how it carries out its duties, the authority's first recourse would be to ensure that it consulted the organisations that had submitted such information before using it in the reporting process. So, there would be consultation at that stage.
Secondly, as I said, under the Freedom of Information Act 2000, aggrieved parties have other means of redress against the NDA, if the consultation
has broken down and they feel that the process is operating unfairly in respect of one organisation or bidder. That would, in any case, be contrary to the effective operation of the NDA, and we would expect it to carry out its functions and guard against such an eventuality.6.15 p.m.
Baroness Carnegy of Lour: I am a little confused. The Minister started by saying that what was contained in the clause would be laid before Parliament and the Scots Parliament and that it would not contain confidential information. He then went on to give a long argument, which was not particularly well informed, about the confidentiality of sensitive matters from the company's point of view. Either we do or do not consider that the amendment applies to the clause. Can the Minister inform the Committee whether or not sensitive and confidential matters will be laid under the clause?
Lord Davies of Oldham: I was seeking to illustrate that in the annual report which the NDA will make to Parliament—and given the necessity of making its processes as open as possible—it will seek to provide the requisite information which, as I have indicated, will not substantially involve information of commercial confidentiality. It will describe the functions it has carried out and its responsibility for carrying them out. Within that framework a very limited amount of information would relate to the competitive bidding of organisations seeking to obtain contracts.
We recognise that the NDA will be in possession of confidential information—it cannot fail to be, on the basis of such bids—but if the NDA feels that any aspects of the situation require it to produce such information in its report, its first duty would be to consult the organisations concerned to establish which parts of that information they were prepared to see made public. If the consultation is successful in those terms, the NDA will reach a position where anxieties are allayed. If not, and the NDA has to proceed further, I have indicated the ways in which, under our freedom of information legislation, organisations have recourse to law if they believe the NDA has acted unfairly.
Baroness Byford: Before my noble friend replies, as an amateur among professionals I must say that I am appalled by the Minister's ability to accept the thrust of the argument made by other noble Lords and then to suggest that perhaps the NDA would not use such information, but perhaps it would. He then said that if the companies agree the information can be printed quite happily. But if they do not agree, it would not be a question of keeping out the information; it would be put in and the companies would have to seek recourse in another way. But, by then, all the information will be out in the public domain.
I apologise for being such an amateur but I find it an extraordinary situation. The horse will have bolted; the problem will have occurred. The Government do
not seem to be willing to address the issue. I can see that one or two of the people sitting behind the Minister are busily writing. This is a matter to which he should give urgent and greater thought. I hope that he will do so.
Lord Jenkin of Roding: I am most grateful to those of my noble friends who have joined in this important argument. As I listened to the Minister's reply, I was reminded of the architectural feature outside ancient Roman houses called a Janus figure, which looks both ways. The first part of the Minister's response was a perfectly reasonable plea. He said that we are all arguing for transparency, disclosure of information and so on, and therefore this is a part of that. If that meant that secrets had to be disclosed, so be it.
The second part of the Minister's reply was, "Mind you, by the time that the Freedom of Information Act is enforced all kinds of remedies will be available to contractors to keep information out of the public domain". My noble friend Lady Byford has just raised the important point of whether the information has to be published before they can go to the commissioner and the courts under that Act. If so, the whole thing is pointless. If the FIA procedures are open to contractors who are in a position where commercial information is threatened to be disclosed, in either a designation or an annual report, and if the contractors can then get a decision on that before any disclosure happens, why can that not be put into the Bill? Why do we have to have two separate pieces of legislation that say different things?
If the noble Lord is right that there will be a remedy under the Freedom of Information Act, for goodness' sake, let us have the same remedy here. I cannot for the life of me understand why the Government are resisting this. If it will be there as soon as the FIA comes into force—and I am told that it will be in force by the time the whole process starts—let us have it in the Bill. Why not?
Lord Davies of Oldham: I hear what the noble Lord says. The whole point of the Committee stage is for us to think seriously about such representations. However, I emphasise to him and to everyone who has articulated the argument that we are seeking to extend the openness of the NDA's activities in order to build up public confidence with regard to that aspect of its operations. That will develop public confidence in its judgments and policies.
I thought that I had identified that the areas where commercially sensitive information was involved would be very limited indeed in respect of the NDA's accountability to Parliament and the way in which it must describe how it has fulfilled its functions. Where there is the possibility of information that is commercially sensitive being disclosed, the NDA would need to consult the companies and organisations so affected.
The NDA has to protect its process. It will want the strongest competitive position possible, of course. Anything that frightened off commercial organisations from applying because they believed that, by doing
so, they would automatically give an advantage to competitors through such information, would be totally against the NDA's interests. It would seek to reach agreement on how it would use commercially sensitive information. The consultation process is there to safeguard the interests of those who submit themselves to the competitive process.
Baroness Byford: I hear what the Minister says. He refers to very limited use but, ultimately, someone—presumably the NDA—decides. Let us imagine that my noble friend's company objects to confidential information being published. Once the NDA had made the decision she would be in no position to appeal or to go anywhere else before the information was put into the public domain. I do not think the Minister has addressed that aspect of the matter we are trying to put forward very clearly.
Earl Attlee: The Minister has nearly got the point. Surely the risk is that a commercial concern will not take any risk; that it will not get involved for fear of losing its intellectual property rights.
Lord Davies of Oldham: If such a risk were manifest the NDA would be vitiating its capacity to fulfil its functions in terms of ensuring that bids were successful for the work that it needed to carry out. Of course the NDA has to act with very considerable sensitivity. I merely seek to emphasise that we do not think that the annual report—the necessary reporting of the NDA to Parliament—and the aspects that naturally go into the public domain with regard to designation will involve commercially sensitive information. But if it were thought that there was a danger, the NDA's obligation would be to talk to the companies or organisations concerned with the information to reach an agreement with them. If it failed to do that, it would risk real alienation of bidders in terms of property rights and of intellectual property rights. Loss of confidence in those terms would mean that the NDA could not discharge its functions to the nation.
Baroness Miller of Hendon: I apologise to the Minister for stopping him in full flow. When he started to answer on the amendment, the Minister said that it would not be "substantially included in". I am not asking how much "substantially" is, but once he says that it will not be "substantially included in", it means that part of the confidential matter will be in the public arena. No member of the Committee can understand how the Minister thinks that that is appropriate, when even the Freedom of Information Act 2000 would not allow that. So what is the difficulty? He is quite right: we will return to the amendment, but we should not need to; it should be accepted now.
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