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Lord Archer of Sandwell: I am grateful to all Members of the Committee who have participated in this short debate and to my noble friend for outlining the Government's thinking. One matter that clearly emerges is that there is no substitute for good faith on the one hand and common sense on the other. If someone visits the town hall to inquire the time because he has lost his watch we do not expect him to be referred to the machinery of the Bill. However, all that we now seek to do will collapse if public authorities do not have good intentions in this respect. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

9.15 p.m.

Lord Cope of Berkeley moved Amendment No. 70:


(" .--(1) When a request for information is received by a public authority and that information relates to a third party's commercial interests the public authority shall--
(a) without delay notify the third party of the request for information and the extent and nature of the information relating to the request and give the third party a reasonable opportunity to make representations regarding whether the information requested falls under an exemption as listed in Part II; and
(b) have due regard to any such representations before discharging the duty to confirm or deny and before communicating the information or giving a notice under section 15.
(2) For the purposes of subsection (1)--
(a) "third party" means anyone other than the person making the request of any public authority; and
(b) information shall be taken as relating to a third party's commercial interests if that person provided the information to the public authority, is identified in the information and is reasonably likely to be affected (at any time) by disclosure of the information or its existence.
(3) Where, after due regard has been given to any representation made in accordance with subsection (1), a public authority is to any extent not relying on a claim that information is exempt information in reaching its decision, the public authority must, without delay, give the third party a notice which--
(a) states that fact;
(b) specifies the exemption in question; and,
(c) states why the exemption does not apply.").

The noble Lord said: This amendment raises another point of considerable importance; namely, third party commercial interests. Under the Bill as it

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stands a third party, for example a company which contracts with the public authority concerned, may be affected by the disclosure of information concerning that business. The company has no right even to be notified of any application for disclosure. The intention of the new clause is to provide such a right and to give the company an opportunity to say to the public authority that it believes that the request falls under one of the exemptions provided in the legislation. The amendment does not give the commercial organisation concerned any veto over the matter; all it does is allow the company to make representations within the general terms of the Bill. I believe that that is the least such an organisation can expect.

At the moment there is great concern about the onerous regulation of business. The Institute of Chartered Accountants in England and Wales, to which I belong, has just reported the results of its latest survey into the regulation of business. They reveal that the burden of new regulation on business has doubled in the past 12 months since the previous survey. Without going into the details, that is some of the background. That burden potentially places more difficulties on those who do business with the Government, and it is important that organisations have this safeguard within the Bill.

The other amendments in the group are of the same character. Amendment No. 78 ensures that the relevant third party commercial interest cannot delay unduly in deciding what to do about it. It is given 10 days within which it must respond, should it wish to do so. That is not a long period, but it provides the organisation with an opportunity to make its point. It is important to ensure that the Bill does not make it more difficult for third parties to contract with the Government and add to their costs and problems one way or another. The amendment also ensures that they are protected from incorrect or damaging information, although not entirely since the responsibility remains that of the public authority. However, we all know that public authorities do not always understand the concerns of business or the delicate nature of its operations. This amendment provides a small tripwire to try to protect those who do business with government. I beg to move.

Lord Goodhart: It is obviously correct that third parties whose rights and interests are likely to be affected if information is disclosed should have the right to be heard before any order is made for disclosure. The question is whether this particular amendment is the right way to do it. I understand that the Government intend to do this in the code of conduct by means of the provisions of Clause 44. I have had an opportunity to look at the code of conduct. At a rapid glance--I have not been able to consider it in detail--it appears fairly satisfactory.

There are also cases where it may not be necessary to consult the third party, in particular where the public authority in question is clearly of the opinion that the information should not be disclosed and, therefore, the third party will not be affected by it anyway. If a

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more tightly defined amendment could be produced which said, for example, that the rights of a third party should not be affected by disclosure of commercial information without that party having been informed of the proposal, I think our reaction might be somewhat different. As the amendment stands, we do not feel we can support it, although we respect the principle behind it.

Lord Brennan: I have a concern about the structure of the Bill in relation to the effect on third parties of applications for information which might involve confidential data. If I understand the Bill correctly, Clause 7 is the trigger for the request for information; and Clause 41 identifies certain commercial information as being "exempt", as it is defined. But on the face of the Bill there is no provision for the third party to take steps to protect his own interests. Could the Bill as it is now drafted be used in a way that a government department or civil servants could rely on Clause 41 by saying, "This is confidential information", without any reference to the party whose interests might be affected?

Perhaps I may give an example which is entirely hypothetical but based on fact. In the Access to Justice Bill last year there was considerable debate as to whether the withdrawal of legal aid for personal injury would be adequately counteracted by the provision of a conditional fee system supported by insurance against the defendant's costs, should the plaintiff lose. On many occasions during the debates that I listened to, when questions were asked about what the insurers were going to provide it was said that it was confidential, commercially sensitive information. That meant that there was no means of determining whether what the insurers were saying provided an adequate balance against the withdrawal of personal injury. Perhaps it did. It does not really matter. I am using the fact as an hypothesis. In that example, a government so inclined, through a department, could say,

    "The commercial interests are being affected. We are not going to give the information",

without any reference to the third party at all.

I have a second concern. What is the position where there is a disagreement between the Government and a third party? It may arise in one of two ways. The Government may wish to reveal but the third party may not and vice-versa. How is the problem then to be resolved? This is an extremely important part of the Bill. Many of the public concerns that may arise will affect things like the provision of health services, the safety of drugs and railway safety systems, all of which involve third party commercial interests. I invite the Government to clarify these matters either now or later.

Lord Lucas: Perhaps I may add a personal anecdote. A government department has refused to provide me with information, on the grounds of confidentiality,

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which it knows the third party would be very happy to have released. But it refuses to ask the third party so that it does not have to provide the information to me.

Lord Lester of Herne Hill: The Government have not done themselves any favours by not making more of the draft code. I did not know that it was in the Library until it was indicated earlier. Like my noble friend Lord Goodhart, I have now had a look at it. I wonder whether it will help if I read in a relevant passage which deals with the problems that the noble Lord, Lord Brennan, particularly raised. It seems to me that the way the code deals with the matter perfectly balances the competing rights and interests. Therefore, it may be for the convenience of the Committee to have it not as a separate document in the Library but actually in the report of the debate. It is not too long. Part IV, Consultation with Third Parties, states:

    "In some cases the disclosure of information pursuant to a request would affect the existing legal rights of a third party such as the right to have certain information treated in confidence or the right to personal privacy. Where the consent of the third party would enable a disclosure to be made an authority should consult that party prior to reaching a decision, unless it is clear to the authority that the consent would not be forthcoming.

    Where the interests of the third party which may be affected by disclosure do not give rise to legal rights, the public authority should consider whether it should consult the third party. Consultation may be unnecessary where: the public authority does not intend to disclose the information relying on some other legitimate ground; the views of the third party can have no effect on the decision of the authority, due to other legislation preventing the disclosure of this information, for instance; or the cost of consulting with third parties would be disproportionate.

    Consultation should take place where: the views of the third party may assist the authority to determine whether information is exempt from disclosure under the Act; or the views of the third party may assist the authority to determine whether to exercise its discretion to disclose information in the public interest under section 13 of the Act.

    Where the interests of many parties may be affected by disclosure (but not their legal rights) and those parties have a representative organisation which can express views on behalf of those parties, the authority may, if it considers consultation appropriate, consider that it would be sufficient to consult a representative organisation or a representative sample of the third parties in question.

    An authority cannot fail to comply with its duty to disclose information under the Act, or its duty to reply within the time specified in the Act, on the grounds that the third party has not responded to consultation".

Finally, there is an important further section which deals with a point to which the noble Lord, Lord Cope, referred. Part V, Freedom of Information and Public Sector Contracts, states that public authorities should not enter into contracts with unnecessary restraints vis-a-vis third parties on the provision of information.

I apologise for quoting at length but it seems to me that it gives flesh to the bare skeleton of the Bill and indicates a proper practical way of dealing with these important issues.

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