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Lord Borrie: I am grateful to the noble Lord, Lord Ezra, for mentioning me in his speech supporting this series of amendments. I have a great deal of sympathy with him and feel that his amendments should be supported. It is appropriate--for conflict of interest reasons--that someone other than the proposed authority should determine these issues.
I have two brief questions for the noble Lord. First, Amendment No. 151, the substantive amendment proposing the appointment of an "information publication arbiter", that entity is described as a body, yet the noble Lord seemed to be referring to it in his speech as a person, an individual. Has he any further thoughts on that?
Secondly, I have a niggling feeling about the amendment, as an English lawyer used to the word "arbitrator" and to the fact that the person performing the same function across the Border in Scotland is the "arbiter". I am curious as to why the noble Lord chose the word "arbiter", the Scottish term, rather than the
Lord Kingsland: The Opposition support the approach taken by the noble Lord, Lord Ezra. There will clearly be circumstances in which conflicts over the disclosure of information emerge between the authority and the consumer council. Some of that information might be confidential yet also relate to matters under investigation by the authority. In all those circumstances, we think it appropriate that a third party should be available to arbitrate on any dispute that could not be resolved between the two by consensus or compromise.
Baroness Sharp of Guildford: I do not think that I need add very much to what my noble friend Lord Ezra said on this subject. He clearly explained why we have put forward the amendment. It links up with the Freedom of Information Bill and the notion of the information arbiter. I do not know the derivation of the term. It is one which I, so to speak, took over from my noble friend Lord Ezra. I reiterate the points made by the noble Lord, Lord Kingsland. There is implicitly a conflict of interest between the role of the consumer council and the authority. It is important to try to make that differentiation.
I take these amendments very seriously. In doing so, I distinguish three themes within them. I should like to consider each of them in turn. The first theme is the concept of an information publication arbiter. The amendments propose that the Secretary of State may appoint this person to consider whether any disclosures the council has in mind will have serious and prejudicial effects; in other words, whether they are outwith the council's powers, if I may use another Scottish word. The other amendments in this group oblige the council, in exercising its publication functions, to have regard to any opinion expressed by the arbiter.
The Bill already places the council under a duty to have regard to any opinions expressed by the authority. The authority, unlike the proposed arbiter, operates within a carefully constructed and balanced framework of duties. It is possessed of the relevant expertise; it is experienced in taking similar decisions itself, under its own publication powers; and it is in a continuing relationship with the council under the umbrella of the memorandum of understanding, which will enable them to work together to develop a common understanding of, among other things, "the seriously and prejudicially effect" test which both must consider in taking publication decisions.
We think it is a bad idea to have a new body, an arbiter, instead of this rather well-placed relationship between the authority and the council. What would happen if the authority expressed a view, even if the council was not required to have regard to that--the
The second theme in the amendments concerns giving the council a general duty to publish information in the consumer interest, subject to deciding whether the consumer interest in publication is outweighed by any consideration of confidentiality attached to it. I acknowledge that this is a well-drafted amendment and that thought has been given to some of the issues. We do not believe that a general duty, as opposed to specific duties or general powers, to publish would be appropriate. The council's role is to advance the interest of consumers. Its publication powers are an essential tool of which it will no doubt wish to make extensive use. There need be no doubt that the council will be energetic in publishing information and advice.
What, then, would a general duty to publish add? Its principal effect, we believe, would be to create a risk that the council's priorities could be distorted. The volume of material which it could publish in the consumer interest is huge. It must be free to take decisions on priorities. It has other important functions besides publication--investigating complaints and other matters, researching issues and practice in other fields and countries, and so on. So we do not think that turning it from a power to a duty would be a good idea.
The amendments alter the disclosure test so that, like the Food Standards Agency, if the consumer interest in publication is stronger than confidentiality considerations, the council could publish. The council would have to decide where the balance of advantage lay, rather than determine whether or not the threshold would be breached. On the one hand, confidentiality is a lower threshold than serious and prejudicial effects; on the other, there would be no serious and prejudicial effects ceiling on what the council could disclose.
Later we shall consider amendments which seek to restrict what the council can disclose. I know it is a debating point, but if I find myself being too bold for the Conservatives and too cautious for the Liberal Democrats, perhaps we may be doing something right.
We recognise that the council may on occasion wish to publish information, even though this could possibly cause serious and prejudicial effects, because the consumer interest in publication is so powerful. In these cases it will be open to the council to ask the authority--at the head of a government department and able to publish such information if the case for doing so is strong enough--to publish it.
Lastly, I shall speak about Amendment No. 77 which would remove subsection (3) from Clause 20. In other words, it would remove the condition that information provided to consumers under this subsection must be in
It would be inconsistent and indefensible to give the council a broad power to publish without a disclosure test, or a condition limiting the power to what is in the public domain. For these reasons I think that this will be a distinctive and valuable part of the council's work. Therefore, we cannot support the amendment. I hope that, despite my jesting at the beginning, it will be thought that I have treated these amendments with the serious attention they deserve, but I am afraid we cannot support them.
Lord Ezra: I am much obliged to the noble Lord for that detailed response, but I must say that I am extremely disappointed. What the Minister has missed is the concern of the consumer council that it could remain, as it was previously, in the thrall of the authority. Under the previous regime the consumers' councils were, in all cases but gas, very much dominated by the views and the control of the regulators. Therefore, the feeling is that this important matter of the publication of information and deciding whether information could justifiably be published in the interests of consumers even if it might have an adverse impact on third parties should be determined by a body other than the authority which is so much involved in the regulatory process. It may be that some of our amendments require adjustment, but it is on the principle that I feel that the Government's response has been disappointing.
("and paragraph (b) applies whether the opinion is given in relation to the information itself or to information of a description which applies to that information.").
Page 113, line 25, leave out ("who shall lay a copy of the statement") and insert ("and to the Comptroller and Auditor General within such period after the end of the financial year to which it relates as the Secretary of State may specify by notice given to the Council.