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("(12) Neither the Authority nor any licence holder shall be required by virtue of this section or any regulations made under it to supply any information which the Authority or that licence holder could not be compelled to give in evidence in civil proceedings in the High Court or, in Scotland, the Court of Session.").

The noble Lord said: In moving Amendment No. 135, I shall speak also to Amendment Nos. 202, 203, 261 and 262. These amendments concern information which is legally privileged. I think I am

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right in saying that legal privilege protection appears in only two clauses of the Bill--Clauses 69(9) and 98(9). I also believe that I am right--although I am not absolutely sure about this--that these provisions were added to the Bill during the course of the Committee stage in another place. At any rate, it is the view of the Opposition that legal privilege protection should be given in those other parts of the Bill to which Amendment No. 135 and the other amendments to which I have spoken relate. I beg to move.

Lord McIntosh of Haringey: These amendments are designed to exclude legally privileged information from that which the authority or the Secretary of State may require to be disclosed under Clauses 92, 93 and 97, and from that which the council may require under Clause 24.

In relation to Amendment No. 135, the amendment which relates to Clause 24, there is a slight chance--I stress that it is very slight--that the council might seek information to which legal privilege attaches under Clause 24. But our consultation document on which information licensees and the authority should be entitled to withhold from the council included legally privileged information. For that reason, this amendment is unnecessary.

The noble Lord, Lord Kingsland, referred to the even slighter possibility of a dispute about information which is legally privileged in relation to a court case to which the authority is a party. On the face of it, that could give rise to a concern that the authority will see information it could not see in court when it determines whether the licensee may withhold the information from the council. However, the situation will not be fundamentally different from that which now exists under the licences. Condition 16(3) of the Standard Conditions of Public Gas Transporters' Licences excludes legally privileged information from the director-general's right to information under condition 16(1).

In both cases the issue would proceed by a submission of arguments, but not the allegedly privileged documents, by the licensee to the regulator. If the regulator rejected the licensee's arguments and ordered him to produce the documents, the licensee could still secure that the compellability of the documents is decided by a judge in court, by contesting the regulator's enforcement order.

As regards the other amendments in the group--those relating to Clauses 92, 93 and 97--it is inconceivable that the information provisions in the case of these clauses could require companies to disclose information of a legally privileged kind. Examples of the sorts of disclosure required would be the number of cases when companies failed to meet individual standards of performance and the amount of compensation they therefore paid to customers under Clause 92; statistics on standards of performance and levels achieved under Clause 93; and information relating to types of customers to enable the effective functioning of a scheme on fuel poverty

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under Clause 97. There is no prospect of requiring companies to disclose information such as legal advice, which is subject to legal privilege.

I have to say that I have dealt as fairly as I can with Amendment No. 135 which would have some point if the Government had not already dealt with it in the consultation document. The other amendments simply would not contribute anything to the Bill.

Lord Kingsland: I understand the Minister to be saying that he agrees with my amendments but that he does not accept them.

Lord McIntosh of Haringey: On the contrary, I am saying that none of these amendments is necessary. There are no circumstances in which any of these requirements could involve legal privilege.

Lord Kingsland: Can the Minister tell me why it would subtract from the Bill if these amendments were included? Clearly, the Minister agrees with the policy that lies behind the amendments.

Lord McIntosh of Haringey: The Bill already provides the protection which the noble Lord seeks. It would therefore be quite inappropriate to include his amendments.

Lord Kingsland: In light of the Minister's last remarks, I shall again look closely at the Bill and consider whether it will be necessary to pursue this matter at Report stage. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24, as amended, agreed to.

Clause 25 [Publication of notice of reasons]:

Lord McIntosh of Haringey moved Amendments Nos. 136 and 137:


    Page 22, line 21, leave out ("24(7) or (10)") and insert ("24(4)").


    Page 22, line 23, leave out ("not be") and insert ("be excluded from any notice").

On Question, amendments agreed to.

[Amendment No. 138 not moved.]

Lord McIntosh of Haringey moved Amendment No. 139:


    Page 22, line 28, leave out ("disclosure") and insert ("publication").

On Question, amendment agreed to.

[Amendments Nos. 140 to 146 not moved.]

Lord McIntosh of Haringey moved Amendment No. 147:


    Page 22, line 44, leave out from first ("section") to end of line and insert ("(General restrictions on disclosure of information)").

On Question, amendment agreed to.

Clause 25, as amended, agreed to.

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Clause 26 [Provision of information by the Council to the Authority]:

Lord McIntosh of Haringey moved Amendments Nos. 148 and 149:


    Page 23, line 1, leave out subsections (1) and (2) and insert--


("(1) The Authority may direct the Council to supply to it, in such form as it may reasonably specify, such information specified or described in the direction as it may require for the purpose of exercising its functions.
(2) The Council shall comply with a direction under this section as soon as is reasonably practicable.").


    Page 23, line 18, leave out subsection (5).

On Question, amendments agreed to.

Clause 26, as amended, agreed to.

Lord McIntosh of Haringey moved Amendment No. 150:


    After Clause 26, insert the following new clause--

SECTIONS 24 TO 26: SUPPLEMENTARY

(".--(1) The Secretary of State may make regulations prescribing--
(a) descriptions of information which the Authority, a licence holder or the Council may refuse to supply under section 24 or 26; or
(b) circumstances in which the Authority, a licence holder or the Council may refuse to comply with a direction under section 24 or 26.
(2) The Council may, if no person is prescribed for the purpose under subsection (3), refer a failure by a licence holder to comply with a direction under section 24 to the Authority.
(3) The Secretary of State may make regulations for the purpose of enabling a failure to comply with a direction under section 24 or 26 to be referred by the person who gave the direction to such person (other than the Authority) as may be prescribed by the regulations.
(4) A person to whom such a failure is referred (whether under subsection (2) or regulations under subsection (3)) shall--
(a) consider any representations made by either party;
(b) determine whether the person failing to comply with the direction is entitled to refuse to do so and, if not, order him to comply with the direction; and
(c) give notice of his determination and any order under subsection (4)(b), with reasons, to both parties.
(5) A notice under subsection (4) may be published by either party to the reference; and subsections (2) to (5) of section 25 apply to the publication of such a notice as they apply to the publication of a notice under section 24(4).
(6) Section 60 of the 1989 Act (powers to make regulations) applies to regulations under this section as if they were made under Part I of that Act.
(7) The power of the Secretary of State to make regulations under this section is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.").

On Question, amendment agreed to.

[Amendments Nos. 151 and 152 not moved.]

Clause 27 agreed to.

Clause 28 [Exemptions from electricity licensing]:

Lord McIntosh of Haringey moved Amendment No. 153:


    Page 24, line 3, leave out (", after consultation with the Authority,").

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The noble Lord said: In moving Amendment No. 153, I should like to speak also to Amendments Nos. 154, 155, 181, 182, 185, 187 and 323.

Clause 28 of the Bill provides for exemptions from the requirement to hold a licence to carry out the activities otherwise prohibited by Section 4 of the Electricity Act; that is, the generation, supply, transmission and, for the future, distribution of electricity. Clause 85 is similarly concerned with exemptions from the requirement to hold a licence to carry out the activities otherwise prohibited by Section 5 of the Gas Act.

Why do we have exemptions? Smaller generators, suppliers and the like are granted exemptions because, as they operate on a limited scale or for a particular purpose, it would be unduly onerous to subject them to the full regulatory burden associated with holding a licence. For example, owners of caravan sites who take a supply of electricity or gas from the system and redistribute it to the caravans would qualify for an exemption.

Amendments Nos. 153, 154, 155 and 323 introduce a requirement for the Secretary of State to go out to consultation before granting an exemption under Clauses 28 or 85. They require him to produce a notice that sets out the exemption he proposes to make, together with the reasons why he proposes to do so.

A copy of the notice should be served on the authority and the consumer council, and it should be published so as to bring it to the attention of those likely to be affected by the exemption. Those wishing to make representations are given a minimum of 28 days in which to do so.

In the context of this new obligation to consult, Amendments Nos. 181, 182, 185 and 187 remove the granting of exemptions from the list of decisions that triggers the duty to give reasons under Clause 41 and 86. This change helps to avoid setting an unfortunate precedent, since exemptions are granted by statutory instrument and it is not usual practice to require the giving of reasons for the making of legislation. This can be distinguished, however, from the giving of reasons for a proposal to grant exemptions, as required by the new consultation procedure.

Amendments Nos. 182 and 187 have two further effects. First, in the context of the general requirement introduced for the first time by Clauses 41 and 86 to publish reasons for key decisions, they clarify the matters which the authority or the Secretary of State should consider excluding when publishing those reasons. The amendments require that matters should relate,


    "to the affairs of a particular individual or body of persons",

before the requirement to consider exclusion is triggered.

Secondly, they ensure that the subsection (5) exception to the duty to give reasons--a decision subject to a disapplication direction by the Secretary of State--applies whether the decision itself was taken by the authority or the Secretary of State.

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I hope that the Committee can agree with me that, taken together, this package of amendments represents a strengthening of the provisions of the Bill. I beg to move.

On Question, amendment agreed to.


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