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Lord Goldsmith: I understand the question raised, which is effectively about the length of the list of gateways. We have to recognise that we are operating at a complex intersection between company law, financial services regulation and other areas of activity. That makes it difficult to avoid having a detailed list of other regulators with whom the Takeover Panel may wish to share information, and with whom it may be right that it should do so. When one adds to that the fact that we are concerned not simply with the domestic but also with an international dimension, the matter becomes more complex.
The way in which the noble Lord proposes dealing with thisI suspect this is something of a probing amendmentis to require that it would not be enough for a disclosure to be made to a person identified in part 1 of the schedule, nor for the purpose in part 2. It would have to be both. Rather selfishly, I see immediately the result: there is a specific gateway for disclosure to me in connection with my public interest functions which I exercise in relation to charities, but I am not listed in part 1 of Schedule 2 and because I am not, the gateway would not be able to operate at all. I picked that example because it relates to me but I have no doubt that when one goes through the schedule there will be other examples of the amendment preventing some of the gateways operating at all because the relevant person is not listed in the first part of the schedule. Notwithstanding that, the list to identify the appropriate gateways is carefully drawn. I invite the noble Lord to consider that the amendment does not do the business.
Lord Goldsmith: I cannot, unless I am handed a note from behind. The noble Baroness is mouthing, "None". If the panel is not at the moment subject to an overriding obligation of confidentiality subject to exceptions, that would be the explanation. The takeovers directive will impose an obligation of confidentiality, save to the extent provided by law. It is essential that, given that overriding obligation, gateways are provided. I will be corrected if I am wrong in explaining why the present position differs from that proposed.
Baroness Noakes: My point is that at the moment the Takeover Panel will be subject to the normal laws regarding confidentiality, but it has no specific authorisation to disclose that information. There are no gateways at the moment. The noble and learned Lord says that when we have the Takeover Panel, we have to provide gateways. I am not sure that that case has been argued. Perhaps he might like to make the
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case for establishing gateways for confidential information from the Takeover Panel to a number of other bodies.
Lord Goldsmith: I am surprised by that. Is the noble Baroness proposing that the Takeover Panel, which has an essential position in our overall regulation of financial services, should not be permitted in any case to disclose information? She indicates that she is not saying that. She recognises that there are obviously cases where it is right that the Takeover Panel should be able to disclose information. What would happen if the Takeover Panel, in the course of dealing with a bid, sees information which appears, on the face of it, to disclose the commission of a serious criminal offence? Is it not right that it should be permitted to pass that information across to an investigatorthe police or a prosecuting authority? Once one recognises that, and given that there will be an overriding obligation on the panel not to disclose information unless it is permitted by gatewaysas we would all preferthen it is right to identify the gateways. If I have misunderstood the noble Baroness's point, I am happy to give way to her again.
Baroness Noakes: My point is that at the moment, the Takeover Panel will be subject to the general law, and that it does not disclose information unless it is in the public interest, which would arise in relation to criminal activity and other relatively narrowly defined cases. If the Government wish to provide for confidential information to be capable of being passed outside the Takeover Panel, they need to make the case. I do not believe it is a self-evident truth that whenever dealing with any kind of confidential information, the Government may legislate for as many gateways for that information to have run around as possible.
The whole purpose of information held confidentially is that we should be very clear about the restricted circumstances in which information is passed through gateways. They are not the natural state of affairs but are specifically justified. My point was that I had not heard one word of justification for specific gateways being created for the Takeover Panel.
Lord Goldsmith: I am sorry; I simply do not understand that. I have just given an example of where the panel needs to be able to disclose information. I understood the noble Baroness to agree, for example, that the panel needs the ability to disclose information that it has obtained about the commission of a serious criminal offence. If the noble Baroness wants me to go through each of the gateways and demonstrate why it is appropriateor if the Opposition wish to table an amendment to each and every one of these gateways pointing out why it is unnecessarythen I will deal with the matter.
Let me make one other general point. The noble Baroness keeps coming back to what she describes as the general law on confidentiality. The common law on confidentiality is a very weak tool indeed. It
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provides that where information has been obtained in confidence, the court may restrain the further dissemination of such information. It is recognised that the court will not grant an injunction to do so in certain circumstances, including where the public interest may override the interest in non-disclosure. That is quite different from having an overriding obligation such as that which will be in place.
"Member States shall ensure that all persons employed or formerly employed by their supervisory authorities are bound by professional secrecy. No information covered by professional secrecy may be divulged to any person or authority except under provisions laid down by law".
There has been a great deal of consultation on this issue and a number of experienced people have considered it, but if there is a problem with a particular gateway which is thought to be inappropriate, I am very happy to respond and explain why we think it is appropriateand, indeed, to look at it again if there is a good case madeeither inside or outside the Committee. I think it is quite clear that the case has been made for gateways, and we have produced a list of gateways. If there is a problem with one of them, let us look at itbut I do not think it would be a good use of the Committee's time for me now to attempt to go through each and every one of the gateways set out in the schedule and to make the case as to why it is appropriate. It is absolutely plain and obvious why it is important that many of them should be there but, if the noble Baroness agrees, we can deal with the issue in the way I have proposed.
Lord Hodgson of Astley Abbotts: I am grateful to my noble friend for her intervention on this matter. I think the noble and learned Lord was a little less than generous. As I said when speaking to the amendment, the Bill contains an exceptionally wide set of parameters in parts 1, 2 and 3 of Schedule 2. We all agree that the Takeover Panel's independence has been an important part of our success. If it becomes felt that the panel is an arm of government because it has so many gateways attached to it, that will undermine some of its effectiveness. If the Attorney-General agreesand I think he doesthat it has been successful, we need to be very careful that we do not add bells and whistles to the Takeover Panel which will make it less effective in the future.
With the greatest respect, it is not good enough to say, "Tell us the gateways that do not work". There are a great many gateways in the Billwitness the length of Schedule 2and, of course, we will have another look at them and take further external advice on the matter. We share the wish of the noble and learned Lord and the Chancellor of the Exchequer to ensure that the City is successfulthe Bill will be a very important part of thatso the Attorney-General really should not get cross and irritated with us when
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we start talking about gateways and say, "Bring me John the Baptist's head on a charger and I will respond to you".
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