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Lord Falconer of Thoroton: My Lords, as the noble Baroness graciously told the House, this matter was first raised by the noble Lord, Lord Goodhart. He pointed out the anomaly that she has repeated in her contribution today. I was lost for words when the noble Lord first raised it and said that I would write on the matter. I was unable to come up with an explanation. My response has been to table Amendment No. 42.

The only difference between the amendment tabled by the noble Baroness and my amendment is that I have put in the words "wherever practicable". That appears to be sensible. Amendment No. 42 recognises that it may not always be possible for a cost estimate to be made with great precision. How does one value, for example, the cost savings gained by making it easier for people to book weddings at registry offices? What savings would arise from making it easier for people to register births in Welsh? These are important matters, but I am sure that we all recognise that they may not be easy to quantify with great precision. That is why it is sensible to include the words "wherever practicable".

As always, it will be for the committee and the House to satisfy themselves as to whether any particular case meets the requirements of the Bill and,

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in particular, the provisions of the amendment. I invite the noble Baroness now to withdraw her amendment, on the basis that I shall then move Amendment No. 42.

Baroness Buscombe: My Lords, I thank the Minister for that response. I shall be pleased to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 42:


    Page 5, line 41, leave out from ("so") to end of line 42 and insert ("--


(i) the reasons why savings or increases in cost should be expected, and
(ii) if it is practicable to make an estimate of the amount, that amount and how it is calculated,").

On Question, amendment agreed to.

[Amendment No. 43 not moved.]

Clause 7 [Representations made in confidence or containing damaging information]:

Lord Kingsland moved Amendment No. 44:


    Page 6, line 9, leave out ("shall") and insert ("may").

The noble Lord said: My Lords, in Committee, we expressed our concern as regards the obligation on the Minister to disclose the fact that a person had made representations, even when such disclosure might result in reprisals. We took from the Explanatory Notes the example of an elderly person living near a public house who had previous complained about the noise made by its clients. It was suggested that such a person might want to give details of further disturbances that might be caused if a proposal to extend the opening hours succeeded. It was pointed out that, if a Minister was obliged to disclose the fact that a particular person had made representations in those circumstances, it would be easy to work out that that particular person had objected. He or she might then risk reprisals.

The noble Lord, Lord McIntosh of Haringey, did not deny that it was conceivable that a regulatory reform order was so precise in its application that disclosure of the identity of a respondent to consultation could damage the respondent. However, he then went on to say that he believed that that would be highly unlikely.

However, if what the noble Lord, Lord McIntosh, said was right--namely, that such a risk is highly unlikely--nevertheless there is still a risk. Moreover, the risk in question is one that the Government themselves identified in their own explanatory statement. In our submission, those who make representations as part of the consultation process must be protected from reprisal, however infrequent that risk of reprisal might be.

The noble Lord, Lord McIntosh of Haringey, continued in his speech to give an example of situations in which it would be right for a Minister to disclose the representations made. He said:

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    "If someone approached a wicked Minister, not of this Government or even the previous one, and asked him not to proceed with a particularly regulatory reform, or, worse, to proceed with it because it would assist his despicable financial interests, should the Minister be able not to disclose those representations? Surely, the case for open government must be that when a consultation process is in place Ministers are not at liberty to pick and choose the representations or the names of respondents to make available to Parliament. That is the case on the other side, which I believe is a stronger one".--[Official Report, 23/1/01; col. 398]

His example supports the proposition that in certain circumstances the Minister should be able to disclose representations. However, in our submission, it does not address the issue as to whether or not a Minister should be obliged to disclose the fact that a particular respondent has made representations. In other words, the noble Lord's example deals with whether or not the substance of a respondent's representations should be disclosed. Clause 7 already prohibits that, if the respondent requests the Minister not to disclose the representations.

This amendment suggests a compromise, which will give the Minister discretion as to whether or not to disclose the identity of the respondent. A good Minister will be concerned about elderly persons who risk reprisals. In that case, he will not disclose the fact that the respondent has made a representation. By contrast, a good Minister will want to expose those who make representations to assist their own financial interests. In those circumstances, the good Minister will be able to disclose the fact that those respondents have made representations. In the spirit of compromise, I beg to move.

Lord McIntosh of Haringey: My Lords, when I have a particularly good argument in Committee, I like to repeat it on Report. When the noble Lord, Lord Kingsland, repeats my arguments for me, I am not sure what to do. In Committee I argued that I recognised the difficulty of the elderly lady. However, the alternative which would result from Amendment No. 61, tabled by the noble Lord, Lord Kingsland, in Committee, and this amendment would be very much worse. That is not dependent on disclosing the substance of the representations made; it could be dependent on disclosing the name of the person making the representation.

Let me outline the situation as it appears in the Bill. In circumstances where a respondent has requested that the Minister should not disclose his representations, the Minister shall disclose the fact that the respondent has made representations but shall not disclose those representations unless, first, he has consent to do so and, secondly, those representations are anonymous or are made sufficiently anonymous as not to identify them with that respondent. So the name is given but the details of the response are not given without consent, unless made anonymous.

The purpose of requiring Ministers to disclose the names of respondents to the committee is to prevent them from being subjected to undue pressure to make particular changes to legislation. I repeat that a weak or corrupt Minister might want to keep secret

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representations that were to the financial or political advantage of the Government and might influence his judgment. We would certainly wish to head off concerns about the possibility of secret representations from those with financial interests. Although it is a matter of protecting Ministers, it is also a matter of protecting the public from Ministers who might misrepresent the consultation process for their own ends.

The effect of the amendment would be to allow the Minister to choose not to disclose the name of a particular respondent who had asked that his representation should not be disclosed. He could be pressurised, intimidated or influenced by the strong representations of someone with a particular financial interest. In the interests of fair and open dealing, the committee should be able to see that such a person had made representations. As I have said, a wicked and corrupt Minister may take advice from unsavoury people with strong interests in a particular proposal. It will be sufficient for the committee to see that such-and-such a person had made representations. It could draw its own conclusions about what representations had been made.

A balance has to be struck--and there is no perfect answer--between openness and protection. I acknowledge the point about the elderly lady. However, I believe that, in 99 cases out of 100, the elderly lady who, to use the noble Lord's example, is upset about changes to the licensing law, will make her appeal to Parliament or to Ministers, not in the context of a regulatory reform order but in the context of a particular application for a licence. That situation is not covered by the amendment. In the balance, the principles of thorough, open consultation and intense scrutiny must surely outweigh the difficulties identified by the noble Lord, Lord Kingsland.

Lord Kingsland: My Lords, I am most grateful to the Minister for his reply. I had hoped that he would with open arms accept my compromise amendment, which seems to meet both his and my concerns. However, that is not so. I prefer the amendment that I tabled in Committee to the amendment that I have now tabled on Report. I therefore intend to return to the former at Third Reading. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Parliamentary consideration of proposals]:

Lord Norton of Louth moved Amendment No. 45:


    Page 6, line 43, at end insert--


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