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Lord McIntosh: I have not made the argument for one side or the other but said that aspect is better left to the council. Of course I will look again at every issue raised in Committee.

Baroness Gardner of Parkes: I thank the noble Lord and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 67 not moved.]

Clause 18 agreed to.

Clause 19 [Provision of advice and information to public authorities and other persons]:

9.15 p.m.

Lord Kingsland moved Amendment No. 68:


The noble Lord said: I shall speak also to Amendments Nos. 69-71, 73, 75, 85-89, 91, 93, 105, 107, 109, 111, 113, 117, 119, 121, 124, 125, 127, 130, 133, 138, 140-142, 144, 146, 152 and 287.

These amendments deal with inconsistencies in substance and procedure between this Bill and the Freedom of Information Bill. As to substance, commercially sensitive information held by the consumer councils may be at greater risk of disclosure under the Utilities Bill than under the Freedom of Information Bill. The tests to be applied when deciding whether information is commercially sensitive and therefore non-disclosable are inconsistent.

Clause 41 of the Freedom of Information Bill exempts from disclosure information that is a trade secret or that would, or would be likely to, cause prejudice to commercial interests. By contrast, the Utilities Bill allows information to be disclosed unless that


    "would, or might, in the opinion of the Council, seriously and prejudicially affect the interests of the individual or body".

The inclusion of the word "seriously" adds a further condition to be met alongside "prejudice" and it is up to the council to decide what constitutes "serious and prejudicial". Once that decision has been made, there is no evaluation of the potential for significant harm, so publication can occur even if that is the likely outcome. Therefore, the council's exercise of its discretion is a subjective test. Even if it is not allowed to act "unreasonably" under the Wednesbury principles, a more objective test based on harm is, in our view, infinitely preferable.

Safeguards should be in place to prevent people seeking information and placing it in the public domain to undermine competitors. This is of particular concern where consumers may also be competitors in the context of a consumer council with wide powers of publication. The Utilities Bill does not specifically mentioned commercial interests, only interests of the individual or body. In our view, clear guidance should be given on how commercially

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sensitive information is identified and handled which is consistent with the guidance given under the Freedom of Information Bill. Business must feel confident that sensitive commercial information will not be publicly disclosed.

As far as concerns the procedural inconsistencies, there is an appeal mechanism under the Freedom of Information Bill which can be invoked if it is felt that disclosure has not been handled satisfactorily. The Utilities Bill has no such provision. We feel that this is unsatisfactory in the situation where the council has considerable discretion over the ultimate decision to publish.

Although the council is required to consult individuals or bodies before releasing information, there is no duty upon it to take account of the views of the consultee and there are no means whereby a company can appeal against a decision and prevent publication. There is also only a limited appeal concerning the type of information that the council can request. Therefore, there should be a right of appeal against a decision of the consumer council to disclose information. The council should not be the sole judge of whether disclosure would seriously and prejudicially affect a body.

At Second Reading, we observed that the authority appears to be adjudicator in the event of disputes between the council and the authority on information questions. However, the consumer council also has the role of examining the regulator and that could lead to a potential conflict of interest. Moreover, there could be circumstances where the regulator might have sight of information of relevance to regulatory issues that might be confidential. In determining its confidentiality, the regulator would be placed in a compromising position if the information turned out to be relevant in any regulatory dispute.

We should like to see the appointment of an adjudicator by regulation and propose that that role should be carried out by an independent arbitrator. We should also like to see the role of information adjudicator carried out by the information commissioner, established under the Freedom of Information Bill, to ensure transparent and independent procedure. I beg to move.

Lord Ezra: The latter part of the proposition just proposed by the noble Lord is very much in line with the earlier proposition that I made and to which the Minister gave a lengthy but, unfortunately, negative answer. I hope that he will seize this opportunity to think again on the subject.

Lord McIntosh of Haringey : First, I shall discuss the series of amendments which add an additional limb to the disclosure test applicable to the council's disclosures and publications. The amendments would have the effect that the consumer council could be barred altogether from disclosing information falling within the categories in the new clause in Amendment No. 152. I am very surprised that the noble Lord, Lord

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Ezra, who, generally speaking, is in favour of greater publication and disclosure rights should appear--I hope I am wrong--to be supporting it.

Lord Ezra: I was supporting the reference to the independent arbitrator or arbiter.

Lord McIntosh of Haringey: Those are the amendments which refer to the information commissioner. I shall come to that point.

I shall set out what the Government are trying to do and try to make the matter clearer. Our approach builds on that in the Gas and Electricity Acts. Essentially, disclosure of information obtained under the legislation without consent is prohibited, unless the disclosure is for a purpose specified as an exception. There are various exceptions in the Bill for disclosures by the consumer council in order to promote the interests of consumers, generally subject to a condition that only disclosures which are not likely to cause serious and prejudicial effects are permitted.

The underlying proposition is that, in the circumstances of the gas and electricity sectors, adverse effects which fall short of the serious and prejudicial are justifiable in order to secure promotion of the interests of consumers. The Government's view is that the "serious and prejudicial effects" test is sufficient. Once the likely degree of harm is established then there is no need to distinguish an adverse effect in one category from an adverse effect in other categories if they are all of similar degree.

Of course, we recognise also that some of the categories in the amendment are not intended to protect specific kinds of information so much as effectively to sterilise the "serious and prejudicial effects" test by placing great swathes of information whose disclosure might have adverse effects short of the serious and prejudicial inside exempt categories.

Nobody will be surprised that we cannot agree to that. The Government want to protect the interests of consumers-- that is the primary responsibility of the authority--not the interests of utilities.

I shall not go into the detail of the categories set out in Clause 152 because the noble Lord, Lord Kingsland, also spared us that detail. But if we are talking about information filed with the court or information which may endanger health or which is actionable for breach of confidence, I can certainly argue--but I shall not, for the sake of your Lordships' health this evening--that all of those have perfectly rational legal constraints upon them.

I turn to the issue of the Freedom of Information Bill. The noble Lord, Lord Kingsland, has said on more than one occasion now that there are conflicts between this Bill and the Freedom of Information Bill.

The purpose of the Freedom of Information Bill, which is still before your Lordships' House--and it is still possible that it may be amended--is to set a minimum standard for the right of access to information across the public sector, including from the authority and the council. But nothing in the Freedom of Information Bill precludes a bespoke

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sectoral regime in gas and electricity for the proactive disclosure of information against a higher harm threshold than that under the Freedom of Information Bill.

The Utilities Bill is concerned with a particular sector where, in addition to the general reasons for transparency which inform the freedom of information regime, there are additional specific reasons which increase the need for openness in that field.

Those reasons centre on the weakness of the consumer. Empowering consumers means not only establishing the consumer council to champion their concerns but also enabling it and the regulator to publish information which will promote their interests.

It is in that regard that I should hope to have the support of the noble Lord, Lord Ezra, and the noble Baroness, Lady Sharp, because I really believe that we are the ones in this argument who are in favour of greater information. I believe, from what the Liberal Democrats have said, that that is their view, too. Those amendments would be highly restrictive.

I turn to the issue of who becomes the adjudicator. The amendments in this regard start with Amendment No. 146, although there may be earlier ones. They propose that before publishing any information, if there is a dispute the council should refer the dispute to the information commissioner for determination. That is true of Amendments Nos. 75, 93, 117, 130, 146 and 287. The proposal has a serious practical weakness, which is that the information commissioner does not yet exist and may well become operative some time after this Bill comes into force.

However, the most important issue on which the Government disagree with the amendments is one of principle. We do not accept that a special appeal or adjudication mechanism is required to determine what the council may publish. Like the authority, the council will be a public body making disclosure decisions within a statutory framework. But we intend to ensure that those who may be affected have the opportunity to put all the relevant facts to the council before it takes a publication decision. That is why the Bill includes the consultation requirement I mentioned.

I explained earlier the Government's difficulties with the proposal of the noble Lord, Lord Ezra; that is, that there should be an information arbiter. Some of those difficulties arise here too. In particular, we would incur delay and expense as the information commissioner, once appointed, familiarises himself or herself with the specific issue.

For those reasons, and for the reasons generally of greater transparency and greater powers of publication for the consumer council, we cannot accept the amendments.

9.30 p.m.

Lord Kingsland: The Minister will not be surprised to hear that I regard his reply as wholly unsatisfactory. I recall him saying that the object of the measures

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contained in the current draft of the Bill was to protect the interests of the consumers, not the interests of the utilities. But, as I understand it from earlier exchanges in the course of the day, the way in which the interests of the consumers are to be promoted in the Bill is through the process of competition. That, I understand from what the Minister said, is the only way in which the interests of consumers are to be promoted.


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