Examination of witnesses (Questions 392-399)|
TUESDAY 13 FEBRUARY 2001
392. Good morning. Would you like to start by
making a brief comment?
(Mr Scorer) We would like to take a minute
just to outline where Consumers' Association is coming from and
why. We always start from the position that water is a unique
resource; essential for life and public health; it is an essential
consumer service; it has no substitute and we know that consumers
have a particular regard for it.
393. It also whets the whistle so if you would
speak a little louder, it would help!
(Mr Scorer) The other issue, in particular with regard
to the Bill, is that we are aware that competition and restructure
present a fundamental challenge to the industry, and the pace
of that change is as fundamental as the nature of the change.
We think the Bill, as it stands, is inadequate to that challenge
and we would particularly like to see the government convene a
water summit as soon after it publishes its paper on competition
as possible to establish the parameters for competition and restructure
and to set out, in particular, the social safeguards that will
be required for groups who may be vulnerable from the introduction
of competition to water supply.
394. That is all very worthy but what sort of
information, for example, do you think the Bill as it is currently
drafted would prevent the Consumer Council from disclosing?
(Mr Scorer) We have two sets of concerns about the
powers of the Consumer Council to publish; one is general and
one is specific. The general one is that we feel the restrictions
on the Consumer Council's ability to publish are far too tightly
drawn. The balance between the rights of companies and Consumer
Council is unbalanced. In particular the idea that there is this
test on substantial and prejudicial effect that the Consumer Council
would have to decide upon will inhibit the Council from publishing
anything. The idea that we have a Consumer Council that feels
constrained from having a substantial effect on the actions of
customers where it sees those actions as being detrimental is
not one that sits very happily. We do have a list of 27 areas
where we feel the Consumer Council may find it difficult to publish
and we are happy to submit that, but I will mention two particular
areas in general. One concerns the consequences of competitive
markets: will the Consumer Council be able to publish information
about the transfer of consumers, switching data of the policy
issues on marketing, of doorstep selling
395. Because you think those would be regarded
as commercially sensitive, is that what you are saying?
(Mr Scorer) If the Consumer Council has to start from
the position of either needing the consent of the company or seeing
whether the information will do substantial harm in a competitive
market place or whether the information is available elsewhere,
I would have to think as a body that that is a significant constraint
on your ability to put it out. As a general result, therefore,
what we would like to see the Bill have on the face is a general
duty on the Consumer Council to publish information it believes
to be in the consumer interest and that should be the starting
point. Any issue of dispute could probably be appealed to the
Information Commissioner or a similar body, but we think that
is where the Bill should start from as its premise.
396. That would require a little delicate dancing
over the line of what was commercially sensitive, would it not?
(Mr Scorer) It is a fraught area.
397. Whereas you and I might agree what is useful
information to protect the consumer, a company that is in competition
with a similar sized company might regard that as damaging to
its general interest?
(Ms Darcy) We are concerned that the Bill as currently
drafted would give companies who wish to seek it a blanket excuse
not to publish information. What we are hoping for in the Bill
is more of a situation such as you have in the United States,
which I know for some people may seem as if it is leading to over-disclosure
but where the burden of proof is reversed so the company, rather
than individual consumers and consumer organisations, has to prove
that publication would lead to problems and where the company
has had to provide specific examples of competitive harm. If they
are under that duty, they will find it far more difficult to block
398. And you will let us have the 27 points?
(Mr Scorer) Yes.
399. Exploring this a little bit more, as I
understand it, Clause 31 of the Bill says that it is for the Council
itself to determine whether release would seriously or prejudicially
affect the individuals or the body. In other words, it is not
an external decision imposed on the Councilthe Council
can take its own decision, so why do you think it is going to
feel so constrained when it has the power to make its own decision?
Presumably, if it says, "We do not think this is going to
prejudice substantially", therefore we will not release it.
(Mr Scorer) The first issue is should the Council
feel constrained from publishing information just because it has
a serious impact on the interests of other companies. If it has
information that the consumer should have access to, maybe that
is information that should have an effect on the standing of the
company. More generally, we think the Bill would be better framed
if you start from this general presumption that the duty of the
Council is there to provide information which will assist the
consumer, in particular in a competitive environment but in the
present environment as well. We think, therefore, that it is wrongly
framed from the start but also that the test is far too stringent
for substantial and serious projects.