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Lord Lucas: Perhaps the noble Lord would like to specify exactly which sections of European law will provide that function, and exactly how that function will be exercised. What action would an aggrieved party be able to take were information that he had given to the director disclosed by the Commission? I am sure that the noble Lord will be able to write a letter to me on that subject.

Lord Haskel: I am not sure that I need to write a letter. The European law under which this is done will surely be Articles 85 and 86 which are the items we are debating.

Lord Kingsland: In considering the various answers given by the noble Lord to my amendments on Clause 53, I must confess to being extremely unhappy about them. Despite the firmness of his response to me, I hope that the noble Lord will reflect nevertheless on what he and I have said. Bearing in mind the context of European Community law, and the European Convention on Human Rights which is about to be incorporated in our law by this Government, on sober reflection on the clauses, does he really believe that they conform with those international obligations? I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 248 not moved.]

9 p.m.

Baroness Nicol moved Amendment No. 249:


Page 27, line 8, at end insert--
("( ) Subsection (3) shall not apply to disclosure of information by a person other than a person who is party to an agreement which offends against the Chapter I prohibition or Chapter II prohibition.").

The noble Baroness said: I must remind the Committee that I have declared an interest as chairman of the All-Party Retail Group.

The purpose of my amendment is to safeguard commercially sensitive information which is provided by innocent third parties. None of the very interesting debates so far has covered particularly the interests of innocent third parties which may emerge during an investigation. The amendment reflects a concern that the British Retail Consortium has in relation to the Bill and the sweeping powers that it gives to the director general to order the production of documents considered relevant to the investigation. As the Committee knows, the director general can require persons to give an explanation of the documents. By virtue of those provisions, a director could obtain a considerable amount of commercially sensitive information provided by third parties who are not party to the agreement or course of conduct which infringes either of the prohibitions.

Although Clause 53(1) provides for such information to remain confidential, as we heard several times from my noble friend, Clause 53(3) permits disclosure in a wide range of circumstances. The amendment would require

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the exception in Clause 53(3) not to apply to commercially sensitive information provided by innocent third parties. Those arguments also apply to Clause 63, which we shall debate later and to which I have not tabled an amendment. I hope that the Minister will take these arguments on board in relation to Clause 63 as well, so that we need not return to the matter on Report. I beg to move.

Lord Graham of Edmonton: I hope that the Minister will listen sympathetically to the points made. I, too, declare an interest as an officer of the All-Party Retail Group; I also declare my Co-operative interests, which are registered. I do not speak directly on behalf of any of those interests.

It is undesirable that information given in the strictest confidence in order to assist the director to reach a view should then appear, be referred to and be publicised by the director in his findings. I can well imagine people considering exactly to what extent they are prepared to disclose information to the director. They may well think twice. Not being party to the action and acting as good citizens they are in the position of knowing that anything they say--not at their own discretion but at the discretion of the director--could find itself in the public domain.

The Committee is well aware of the extreme sensitivity of commercially sensitive information. It is right and proper that the director should have power to seek it. But in exercising his discretion, the director ought also to recognise that the free flow of information given by good citizens may well dry up unless an undertaking is given. Information given by people innocent of any charge (that does not mean to say that others are guilty) who are trying to do what is best may find that the information that they have given, which is not only helpful to the director but might be helpful to a great many of their competitors, appears publicly in print. Perhaps the Minister will recognise the point that we are making.

The amendments may not be well enough drafted to take care of the precise point. However, if the Minister will indicate that he has sympathy with the point made, I am sure that my noble friend will be very happy to be collaborative.

Lord Haskel: I assure my noble friends that I have sympathy with the point that they are making. The issue of innocent third parties is a very difficult one. I fully appreciate the concerns that businesses have over the confidentiality of commercially sensitive information. However, at the same time it is important that the operation of the new legislation is transparent. We have tried to take great care in balancing those two imperatives.

The Bill contains two clauses to protect information obtained under the new regime. Under Clause 53 it prohibits the disclosure of any information obtained under the Bill except to specified persons for specified purposes or with consent. Criminal sanctions attach to unlawful disclosure.

Clause 54 imposes duties on the Secretary of State and the Director General of Fair Trading in relation to that information where disclosure could damage the

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legitimate interests of businesses or individuals. The clause requires the director general to have regard to the need to protect such confidential information and the extent to which disclosure of such information is necessary to achieve the purpose for which disclosure is proposed.

Therefore, before disclosing information obtained under the Bill, the director general will have to give careful consideration to the factors set out in Clause 54. He will have to balance the need for disclosure against the public interest and the significant harm which innocent third parties might suffer. He will need to take a long, hard look at how necessary it is to do so.

Schedule 8 provides that the tribunal rules may provide for a tribunal to sit in private when information of the kind to which Clause 54 applies is being considered. The provisions in relation to appeals also provide for a tribunal to apply Section 54 in respect of its written decisions if they are to be published. So there are clear safeguards to protect innocent third parties and to protect confidential and commercially sensitive information.

At the same time, however, it would be wrong absolutely to forbid the disclosure of confidential information even where it was provided by firms which had not infringed the prohibitions. It may, for example, be necessary to disclose information so that an undertaking which is accused of having infringed the prohibitions is aware of the case against it. Further, it may be needed to make reasoned decisions understandable. Reasoned decisions will be a key part of the transparency of the new regime and will be an important indicator for business as to the application of the prohibitions.

Disclosure of information may also be important to facilitate civil actions by third parties to obtain redress under the prohibitions. Firms and individuals who have been harmed by infringements of the prohibitions ought to be able to obtain redress. We believe that, where the director has information which would help them to do so, he should be able to release it to them. That would again be subject to the test in Clause 54.

I sympathise with my noble friends for raising this important issue but I assure them that there are protections within the Bill. I hope that my explanation will satisfy their concerns and that they will be able to withdraw the amendment.

Lord Graham of Edmonton: I am grateful to the Minister for the care he has taken in giving an explanation. However, I have been told that it has come as a shock to third parties to find information which they gave in confidence appearing in public print. In other words, they assumed, wrongly, that the information that they gave in confidence would remain confidential.

The Minister tells us that there are careful checks and balances and that it is a matter of judgment as to how much is disclosed. Is there within the mechanism a procedure whereby the director who intends to disclose confidential information would advise a third party of his intention before the information was published? To that extent, the person would be forewarned and might be able to take some measures to militate against it.

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I am sure that some individuals would think twice about willingly responding, or responding 100 per cent., to an invitation to disclose frankly all that they know. We do not want to get into a situation where people are hedged in with potential actions, inquiries, tribunals and appeals. I hope the Minister wants something which is seen to be fair.

I do not think that the general public--whom, after all, we represent--and business would think it fair that something given in all innocence and in confidence should be revealed without their having the opportunity to reflect or to withdraw the information. Many people will say things in confidence that they would not be prepared to see in public print. That may well condition the veracity and integrity of the information. I hope that when my noble friend responds she may say that the matter ought to be revisited.


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