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Lord Renton: My Lords, I wish to refer to Amendment No. 175 on pages 45 to 47 in the list of Commons Amendments. I have tabled two amendments to the new clause which look rather technical, but they attempt to cure a defect in the Bill.
I hope that your Lordships will bear with me if I try to explain it. Subsection (3) of the new clause provides for the exclusion of confidential information from the public registers in relation to contaminated land. The subsection is designed to ensure that the enforcing authorities respect the confidentiality of information which they obtain in the course of carrying out their pollution control functions.
I have tabled Amendment No. 175A and with it, as a subsidiary amendment, Amendment No. 175B. Without my amendments, there would be a serious imbalance in the Bill. On the one hand, the authorities would be forbidden to place confidential information on the registers and, on the other hand, they would be at liberty to release that same information to anyone who requested it under entirely separate statutory provision; namely, the environmental information regulations. We are up against a conflict in the law.
If confidential information could be revealed in that way, industry and owners of property would inevitably be much less willing to share their information voluntarily with the regulatory authorities. If that were so, it would result in a much less healthy relationship between regulators and regulated. It would inhibit the Government's wise policy of encouraging voluntary reductions in pollution and a voluntary regeneration of contaminated or derelict land.
The amendment plugs the loophole. I am advised by a Queen's Counsel who is in practiceit is not an opinion which I first formed as a rusty old lawyerthat we must be careful. Disclosure of information may assist in the discharging authorities' environmental functions and therefore be expressly permitted by Section 111 of the Local Government Act 1972.
There is a further conflict between what will become an Act of Parliament when we pass the Bill and what is an Act of Parliament, the Local Government Act 1972. So we must be careful. From various points of view it seems to be in the public interest, first, to ensure the voluntary disclosure of as much information as is relevant; and, secondly, to ensure that we get our duty as legislators right.
Your Lordships may think it strange that I have to discuss the amendments which arise late on the Marshalled List of Commons Amendments, but I do so because of the groupings. If my noble friends on the Front Bench would prefer not to give an answer now because my amendments are starred, then I am quite willing to raise them later today when we reach Amendment No. 175. I do not believe it is appropriate for me to move my amendments now; I shall do so in due course. Meanwhile, I hope that your Lordships will forgive me for necessarily anticipating the situation.
Baroness Hamwee: My Lords, I had thought that it might be for the convenience of the House if the noble Earl responded first. However, since I am on my feet, I wish to make a short point on Commons Amendment
The Earl of Lindsay: My Lords, as to my noble friend's Amendments Nos. 175A and 175B to which we shall come formally later on, I shall answer now. The issue of commercial confidentiality has been discussed on a number of occasions during the consideration of this Bill. I recognise that this is an important concern both to businesses which do not wish their commercial interest to be put at risk and to those seeking environmental information who wish to ensure maximum freedom of access.
As I understand it, my noble friend is concerned that, while the Government have made provision for commercially confidential information to be excluded from registers, there appears to be no general restriction in the Bill on release of information obtained by an enforcing authority in the carrying out of its functions. Under the access to environmental information regulations of 1992, whereas information affecting matters to which any commercial or industrial confidentiality attaches must not be released if it is the subject of statutory restrictions on disclosure, where there are no such statutory restrictions there is discretion as to whether it should be withheld. My noble friend therefore appears to be concerned that information which is acknowledged by the authorities to be commercially confidential, and to be withheld from the registers, could nevertheless be released in response to an inquiry under the environmental information regulations.
This matter has been considered carefully in the light of representations made to the department, including legal opinion. I cannot accept the proposed amendments which the Government continue to believe are unnecessary. Confidential information obtained in exercise of statutory powers for a particular purpose may only be used by them for that purpose. This general principle explains the need for, and is reinforced in the context of this Bill by, the terms of the Government's new clause making explicit provision for the disclosure of such information between enforcing authorities and Ministers. The environmental information regulations of 1992 require environmental information to be disclosed on request in certain circumstances. There is no obligation under those regulations to disclose environmental information which is commercially confidential. It follows that any regulatory authority would be most unwise to release environmental
I finish by saying that safeguards are built into the Bill on the disclosure of information. Nothing in the provisions will authorise the agencies to disclose to local enforcing authorities any information, the disclosure of which would be contrary to the interests of national security or employment census information obtained under the Statistics of Trade Act 1947. Nor is a local enforcing authority which is in possession of any such information authorised to pass it to any other local enforcing authority.
Moreover, no information disclosed by virtue of this provision which is commercially confidential or which relates to issues of national security may be disclosed to anyone else. A general legal presumption to the effect that information may be used only for the statutory purpose for which it is collected, or in this case disclosed, will also apply. I hope that I have laid to rest the anxieties of my noble friend and the noble Baroness.
Lord Renton: My Lords, perhaps I may have the leave of the House to reply briefly, instead of raising the matter later. I feel bound to point out that, according to advice that I have received from an experienced practising Queen's Counsel, there is no authority for the proposition that my noble friend has put forward. Statutory powers may generally be exercised for more than one statutory purpose. Disclosure of information may assist in the main statutory purpose, and therefore be in accordance with it.
Disclosure of information may also assist in the discharge of the authorities' environmental functions and therefore be permitted expressly by the Local Government Act, as I said. It is very regrettable that the department is not prepared to accept this offer of help to remove what is a defect in the Bill. I do not suppose in view of what I believe is the wrong advice that my noble friend received, that much can be done about it now. I merely express my regret.
10Clause 33, page 29, line 10, at end insert 'and'.
11Page 29, line 13, leave out from 'mentioned' to end of line 15.
12Clause 38, page 33, line 47, after 'given' insert 'under this section or any other enactment'.
13Page 34, line 6, at end insert:
'( ) It is the duty of a new Agency to comply with any direction which is given to that new Agency by a Minister of the Crown under this section or any other enactment.'.
14Clause 39, page 34, line 40, leave out from 'whole' to end of line 41 and insert 'of any relevant licensed period;'.
15Page 34, line 42, leave out 'that' and insert 'any such'.
16Page 34, line 43, at end insert:
'and in this subsection "relevant licensed period" means the period during which an environmental licence is in force or such part of that period as may be prescribed.'.
17Clause 40, page 36, line 50, at end insert:
'(4A) If and to the extent that a charging scheme relates to any licence under Chapter II of Part II of the 1991 Act (abstraction and impounding), the Secretary of State may consider it appropriate to attribute to the carrying out of the Agency's functions in relation to activities to which such a licence relates any costs and expenses incurred by the Agency in carrying out any of its functions under Part II of that Act or under section 6(2) above.
(4B) Subsection (4A) above is without prejudice to what costs and expenses the Secretary of State may consider it appropriate to attribute to the carrying out of any functions of a new Agency, the Minister or the Secretary of State in relation to activities to which environmental licences of any particular description relate.'.