Secretary of State’s power to require reports

I beg to move amendment No. 16, in clause 18, page 11, line 5, leave out ‘may’ and insert ‘shall’.

With this it will be convenient to discuss amendment

No. 17, in clause 18, page 11, line 5, at end add—

‘(3) In exercising the powers under this section the Secretary of State shall respect the independence of the Council.’.

These two probing amendments seek to establish just how open the Government will be in requiring reports. We believe that maximum transparency is vital. It is vital for the council if it is to have authority and it is also important for the consumer as a whole. The Secretary of State should not therefore be in a position to cherry pick which reports get published or, for that matter, to be seen to cherry pick. The way in which a Secretary of State might reasonably make a decision is important.

We have just discussed the obvious controversy of the post offices, but there are other areas where there will be tension and there is an understandable problem. Take the question of food safety and consumer information. Quite understandably a Government may say that there are serious and complex issues about food safety. I recognise, as most hon. Members probably do, that there is no such thing as no risk. But in the area of food safety there will always be a problem because it can often get misreported. It is often overblown in the media and can frighten people. There will be a natural tension there and Ministers may wish to think carefully about how information on food safety issues is released. Obviously the NCC will have a narrower remit. Its purpose will be to ensure that it can produce consumer information, of whatever character.

The purpose of amendment No. 17 is to establish the NCC’s independence. As I say, these are probing amendments. I want to explore with the Minister how the Government would approach the issue, because it is an important area on which we need some clarity. When the Bill is passed and becomes law, there is a clear understanding about how the Government would approach that kind of more awkward situation in which Ministers will be acting, quite reasonably, on scientific advice, but where there will be a potential—this is what we are concerned about—that the ability to have flexibility may not be in the interests of the Government of the day.

The amendments concern a discretion of the Secretary of State not to publish a report prepared for him by the new council under clause 18. That issue has already been extensively debated in the other place, and I am sure that the hon. Gentleman has looked at that. It was clear from that debate that the concern here is essentially about the need for transparency in the Government’s dealings with the new council, and the need for public accountability, because of the tensions that have been correctly described by the hon. Gentleman. I would like to reiterate that the Government are in total agreement with those intentions, and we have  made the case that the discretion afforded to the Secretary of State not to publish a report prepared for him by the council impacts in no way on either of those principles. The point to note here is that the discretion under clause 18 for the Secretary of State in relation to the publication of a report is necessary to deal with particular circumstances, such as instances where the report contained sensitive information that was commercially confidential or price-sensitive. That is not a new concept, and would apply in circumstances in which, for example, disclosure of information provided by a company would weaken its position in a competitive environment by revealing market-sensitive information or information of potential usefulness to its competitors.

Under clause 29, the council will have to consult a business or individual if a report that it makes contains business or personal information before that is disclosed in the report. The value of the report to the Secretary of State might be significantly diminished if the information were not contained in the report. However, in those circumstances the Secretary of State would have to consider whether it was right to publish the report.

Section 244 in part 9 of the Enterprises Act 2002 sets out considerations that apply where a public authority is considering disclosing certain specified information, including commercial information whose disclosure the public authority thinks might significantly harm the legitimate business of the undertaking to which it relates, or information relating to the private affairs of an individual whose disclosure might significantly harm the individual’s interests. That provision applies generally to the disclosure of information obtained by the council under the Bill, but not to reports of the council, where the different provisions that I have mentioned in clause 29(5) apply.

Information of a confidential nature might be necessary to support the recommendations in a report. A requirement on the Secretary of State to publish every report submitted by him might create a deterrent effect on external experts or stakeholders, who might be reluctant to provide particular information because it might be published. It is not inconceivable that a report prepared by the new council for the Secretary of State could contain such information that was given on condition that it would not be published.

A key consideration here is that there may be good reasons why the content of reports prepared and submitted to the Secretary of State to aid the decision-making process should not be published. The decision not to publish a report in those circumstances would be to protect the confidences of individuals and businesses, not for the purpose of protecting Government.

Clause 18 must be viewed in the wider context of the other clauses that give the new council the statutory basis to carry out its duties. The need for the new council to be able to act without being constrained is fundamental to what we are trying to achieve with the introduction of these measures, and is in no way compromised by the powers given to the Secretary of State by the clause. It is not about taking away from the new council; it is about allowing the council to give relevant information to Government.

If the council determines that the issue of the report that it has prepared for Government under clause 18 is one of interest to consumers more generally, and the Secretary of State has decided not to publish that  report, the council can choose to exercise its powers elsewhere within the Bill, such as under clause 17 or clause 19.

Clause 17 enables the council to prepare and publish a report on any matter falling within the scope of its functions. Clause 19 enables the council to publish advice or information about consumer matters for the purpose of bringing issues of importance to the attention of the consumer.

A report prepared under the powers in clause 17, for example, which covered the same issue as a report prepared under clause 18, could be published without information that was considered to be sensitive and in a format that may be more in line with the needs of consumers. That matter would be one for the discretion of the council, but with those reassurances. The council, therefore, has the ability to determine what it publishes, but the Secretary of State has some discretion in being able to withhold information that may be price-sensitive. I hope that reassures the hon. Gentleman.

Is he saying that it would normally be the intention of the Secretary of State to publish, except in those circumstances just outlined?

I think we can generally expect that the intention will be more to publish than not to. The qualifications I gave are examples that may not be entirely exclusive, but are sensible ones, which are pretty de rigueur for Government reports. I think that the reassurances in clauses 17 and 19 give the hon. Gentleman the safeguards that he is seeking. If the council thinks that it would help and be appropriate for consumer protection and interests to publish, it can do so regardless of what the Government say.

I thank the Minister. The Liberal Democrats have fully supported the two amendments. In those circumstances, if the Minister’s only intent is to provide protection for necessary commercial information, which should not be shared because of detriment to the provider or to an organisation, would he consider introducing such language into clause 18(2), to make that clearer? We live in a cynical world, and when a clause allows so much scope not to publish, no matter what the intent, if the intent is so narrow, why not include it in the language? Indeed, why not incorporate the language from the Enterprise Act?

The only thing that I would say to the hon. Lady is that clauses 17 and 19 provide strong protection for the council to publish regardless of what the Government suggest.

This has been a useful if short debate. I think that in another place a different argument was cited—costs. I am glad that the Minister has not chosen to use that one, because it was frankly unbelievable at the time and gets no better when read a second time. The Minister went for argument no. 2—commercial confidentiality—which the Department wheeled out and dusted off. That is a more credible and reasonable argument, because it is perfectly sensible to suggest that there will be circumstances—whether of confidentiality  or sensitivity—when there needs to be an element of discretion. I was particularly grateful to the Minister, in response to my intervention, for making it quite clear—future Secretaries of State will be grateful that he did not make it absolutely clear—that the intention would normally be to publish rather than not. With that on the record, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 ordered to stand part of the Bill.