§
Amendment made: No. 49, in page 22, line 12, at end insert—
'1A. Information relating to a particular employee, former employee or applicant to become an employee of, or a particular officer, former officer or applicant to become an officer appointed by—
§ Mr. SquireI beg to move amendment No. 50, in page 22, line 24, at end insert '(other than the authority)'.
§ Mr. Deputy SpeakerWith this it will be convenient to take the following amendments: No. 60, in page 23, line 8, leave out from 'paragraph' to end of line 9 and insert
'if it is required to be registered under—
- (a) the Companies Act 1985;
- (b) the Friendly Societies Act 1974;
- (c) the Industrial and Provident Societies Acts 1965 to 1978;
- (d) the Building Societies Act 1962; or
- (e) the Charities Act 1960.'
§ No. 67, in page 23, line 33, at end insert
' "financial or business affairs" includes contemplated, as well as past or current, activities'.
§ No. 73, in page 24, line 36, at end insert '(other than the authority)'.
646
§
No. 80, in page 25, line 21, leave out from 'paragraph' to end of line 22 and insert
'if it is required to be registered under—
§
No. 87, in page 25, line 43, at end insert—
'"financial or business affairs" includes contemplated, as well as past or current activities.'.
§ Mr. SquireThis is an important area. It concerns the information that may or may not be released by a local authority in respect of business and financial matters or other information coming into the authority's possession.
Amendment No. 50 makes it clear that the words "any particular person" in paragraph 6 of part I of the schedule, which term includes the body corporate, do not include the local authority in question. The financial or business affairs of the local authority will thus not be exempt information.
Amendment 60 is most important. It amends paragraph 2 of part II of the schedule, and qualifies paragraph 6 of part I, which makes
Information relating to the financial or business affairs of any particular person—including a company—exempt information. Paragraph 2 of part II as it stands provides that such informationis not exempt information unless it was obtained by the authority in the course of negotiations for a contract.I have had a number of discussions on this area. I am satisfied that the wording needs clarification for the benefit of local authorities as well as for those who deal with them. The amendment removes the reference to "negotiations for a contract" and provides instead that information is not exempt under paragraph 6 of part I if it is required to be registered under the Companies Act 1985 or other specified enactments. The intention is that information about the financial or business affairs of a person or company shall be exempt unless it is already required to be publicly available by virtue of the specified enactments. The amendment thus widens considerably the category of exempt information under paragraph 6 of part 1 of the schedule.Hon. Members of a more radical nature may be disappointed, but I hope not. It seems to me to be a fair compromise to require that information that is already required to be made public, under, for instance, the Companies Act 1985, should fairly and properly still be regarded as public information even though it may have come into the hands of the local authority by another route.
We would be treading in very difficult territory if we suggested that information not otherwise required to be made public by a company under any existing legislation should none the less be subject to deliberate or accidental release by a local authority—so far as one can legislate for the accidental. That would bring in a number of other questions that I cannot cover in this measure.
I hope that hon. Members will realise that, although it is a compromise, the route suggested in amendment No. 60 has the advantage of clarity, which must be very important, especially to local government officers dealing with requests.
Amendment No. 67 inserts a definition of "financial or business affairs", which term is used in paragraph 6 of part 1 of the schedule. It defines the term to include
contemplated, as well as past or current, activities".647 It would thus include the forward planning of a person or company with regard to financial or business matters, details of which had been disclosed to the local authority. The amendment is designed to avoid doubt on that point.
§ Mrs. RumboldThis is a very important group of amendments. I admit that I am marginally disappointed by my hon. Friend's compromise, although I accept that information that can now be disclosed under the Companies Act 1985 is—if there must be a compromise —the right information to be subject to disclosure.
Local authorities face certain difficulties in their negotiations with companies, especially in relation to development. Many local authorities today are in the business of development, especially urban authorities that are anxious to redevelop and improve their towns because of the age of the buildings and the new requirements of the community. Today, nearly all those negotiations are carried on not only with private sector companies, some of them major ones, but also with financial institutions in order to secure funding for the project.
Such negotiations could be completely undermined if they were dragged out into the open long before the concluding negotiations had been undertaken by the local authority, the funding institution and the developer. At such a stage, such negotiations are very delicate. People are often in competition. The local authority is charged with responsibility for getting not only the best development for its town but also the best deal for the people whom it represents. The authority is both seeking finance from financial institutions and making a contribution from public funds, by donation or negotiation of land.
It is therefore important that safeguards should be built in to enable local authority officers, if not local authority members, to participate in the early stages of negotiation and, to some extent, the medium-term stages, in a climate that provides for stability and sensible negotiation. No financial institution, and certainly no private developer, will risk putting plans on the table if those plans could be undermined immediately by competitors because of disclosure at an early stage of the development proposals.
Let us suppose that a local authority wished to build a new public library, block of offices or shopping centre. If design and development were disclosed at an early stage the local authority officers could not make progress, especially as they are charged with looking after the public sector, as well as protecting those who come to them from the private sector in terms of the way in which finance is to be arranged. I make those points clear, because it is important that they should be put on the record and so that the Bill, which I hope will shortly become an Act, will be understood as well as possible.
Having said those few words, I hope that my hon. Friend the Member for Hornchurch (Mr. Squire) will acknowledge that I accept his compromise, but with some reluctance.
§ Amendment agreed to.
§ Mr. SquireI beg to move amendment No. 51, in page 22, line 30, leave out from 'acquisition' to third 'or' in line 31 and insert
'or disposal of property or the supply of goods or services'.
§ Mr. Deputy SpeakerWith this, it will be convenient to take the following amendments: No. 66, in page 23, line 31, at end insert—
' "disposal", in relation to property, includes the granting of an interest in or right over it'.
§ No. 74, in page 25, line 3, leave out from 'acquisition' to the end of line 5 and insert
'or disposal of property or the supply of goods or services'.
§ No. 86, in page 25, line 41, at end insert—
'disposal" in relation to property, includes the granting of an interest in or right over it,'.
§ Mr. SquireThis group of amendments is fairly simple and essentially tidies up the wording, leaving out "acquisition" and inserting
or disposal of property or the supply of goods or services".The effect is to delete the word "development" in paragraph (8) (a). It is unnecessary to refer to "development", since that is encompassed withinthe supply of goods or services".It is also, in a sense, undesirable, because "development" is not referred to in paragraph (7). It is preferable that paragraphs (7) and (8) should refer to the same matters in this respect.
§ Amendment agreed to.
§
Amendments made: No. 52, in page 22, line 31, leave out
'or (b) a collective agreement'.
§
No. 53, in page 22, line 32, at end insert—
'8B. Information relating to any consultations or negotiations, or contemplated consultations or negotiations, in connection with any labour relations matter arising between the authority or a Minister of the Crown and employees of, or office-holders under the authority.'—[Mr. Squirej
§ Mr. SquireI beg to move amendment No. 54, in page 22, line 32, at end insert—
'8A. The identity of the authority (as well as of any other person, by virtue of paragraph 6 above) as the person offeing any particular tender for a contract for the supply of goods or services.'.
§ Mr. Deputy SpeakerWith this, it will be convenient to discuss the following amendments: No. 70, in page 23, line 38, at end insert—
'"tender for a contract" includes a written statement prepared by the authority in pursuance of section 9(2) of the Local Government, Planning and Land Act 1980 (estimated cost of carrying out functional work by direct labour)'.
§ No. 92, in page 25, line 5, at end insert—
'9A. The identity of the authority (as well as of any other person, by virtue of paragraph 6 above) as the person offering any particular tender for a contract for the supply of goods or services.'.
§ No. 94, in page 26, line 6, at end insert—
tender for a contract" includes a written statement prepared by the authority in pursuance of section 9(2) of the Local Government, Planning and Land Act 1980 (estimated cost of carrying out functional work by direct labour)'.
§ Mr. SquireThese amendments cover direct labour organisations. As has been remarked, we are certainly covering a range of areas today. As I believe my hon. Friend the Minister has said, it is quite extraordinary how many other aspects of life have been drawn into a Bill that started with very simple intentions.
Amendment No. 54 inserts a new paragraph (8A) into part I of schedule 12A. It provides that the identity of the authority as the person offering any particular tender for a contract for the supply of goods or services shall be exempt information. The intention is to put the authority in the same position as any private contractor in this 649 respect, where the authority's direct labour organisation puts in a bid in an endeavour to secure work which the authority wishes to have carried out.
The words in parentheses—
(as well as of any other person, by virtue of paragraph 6 above)"—make it clear that the identity of a private contractor tendering for a contract is exempt information under paragraph (6) of part I of schedule 12A. Contractors are generally concerned that the amount of their tender, where it is unsuccessful, should not be revealed and it is the practice of many authorities to publish lists of unsuccessful tenders and tenders in a way that prevents the two from being related.The term "tender for a contract" in new paragraph (8A) is defined in part III of the schedule to include a written statement prepared by the authority in pursuance of section 9(2) of the Local Government, Planning and Land Act 1980. That is the section covering the estimated cost of carrying out functional work by direct labour. The reason for this is that the local authority cannot enter into the contract with itself, in the form of its direct labour organisation. The direct labour organisation cannot, therefore, tender for a contract, but under the terms of section 9(2) of the 1980 Act it puts forward a statement of estimated cost.
§ Amendment agreed to.
§ Mr. SquireI beg to move amendment No. 98, in page 22, line 33, leave out paragraph 9 and insert—
'9. Any instructions to counsel and any opinion of counsel (whether or not in connection with any proceedings) and any advice received, information obtained or action to be taken in connection with—
- (a) any legal proceedings by or against the authority, or
- (b) the determination of any matter affecting the authority, (whether, in either case, proceedings have been commenced or are in contemplation).'
§ Mr. Deputy SpeakerWith this, it will be convenient to discuss amendment No. 93, in page 25, line 6, leave out paragraph 10 and insert—
10. Any instructions to counsel and any opinion of counsel (whether or not in connection with any proceedings) and any advice received, information obtained or action to be taken in connection with—
- (a) any legal proceedings by or against the authority, or
- (b) the determination of any matter affecting the authority,
(whether, in either case, proceedings have been commenced or are in contemplation).'
§ Mr. SquireSo far we may have discussed subjects that have led us to enter rather dangerous waters—or perhaps, if I am lucky today, I should say that have led us to walk on rather dangerous waters—but this group of amendments, which seeks to look at the whole question of legal privilege, may well, in the opinion of many non-barristers and lawyers, lead us into the most dangerous waters of all.
In essence, the amendment represents a small extension of legal privilege. It substitutes a new paragraph (9) for the existing one. As one might expect me to say, it follows, again, considerable consultation. I thank my hon. Friend the Minister most warmly for the fulsome co-operation of his staff at the Department of Employment—
§ Mr. WaldegraveThe Department of the Environment.
§ Mr. SquireI apologise for that mistake. I was not suggesting that my hon. Friend had been transferred. His staff have been of outstanding assistance to me in relation to this and many other amendments under discussion.
The addition of the opening words
Any instructions to counsel and any opinion of counsel whether or not in connection with any proceedingsmarginally widens the extent of the legal privilege; while the addition of the words in the added sub-paragraph (b) makes information exempt not only where legal proceedings are in train or contemplated, as in subparagraph (a), but also where a matter affecting the authority is for determination, or a determination is contemplated other than in a court of law. Sub-paragraph (b) applies only where the determination of the matter rests with some person or body other than the authority. It is intended to give the authority privacy in preparing its case for an inquiry, such as a compulsory purchase inquiry, or in making written representations, or representations before somebody appointed by the Secretary of State to hear them.In an area in which many people could dance on the head of the proverbial pin, the amendment nevertheless represents another reasonable compromise which protects the legitimate interests of counsel to be able to lake and discuss possible courses of action without revealing that prematurely, and also grants the public access to information to which they have a right to expect access.
§ Mr. James Wallace (Orkney and Shetland)I hope that I am not dancing too finely on the head of a pin, but perhaps the hon. Member for Hornchurch (Mr. Squire) could clear up one point. It is difficult to interrelate some of the amendments. The House has already agreed to amendment No. 32, and it would appear that members of a council would not necessarily have the right to receive advice on exempt information.
A recent case involving Strathclyde regional council was the subject of some notoriety or prominence in the press. The auditor of the local government accounts advised the leader of the council that certain payments made under social work legislation to miners and their families were illegal. A report was drawn up by the director of social work, and the leader of the council discussed it privately with the leader of the Conservative group, the leader of the alliance and with the Scottish nationalist groups on the council. Apparently, other members of the council were not made aware of the contents of the report.
Would members of the council still not have the right to see such a report? The leader of Strathclyde regional council interpreted the position as meaning that, when the auditor made a report to him, it was to him personally and not to the council. He thought that it was his duty not to divulge it to the council. Under the legislation. would members of the council be able to exercise a right to see the terms of such an auditor's report, as well as the report drafted in response to it from the director of social work?
§ Mr. SquireIn responding to that important point, I should perhaps underline that the protection that the amendment seeks to give arises only where legal action is in train or is contemplated. The hon. Gentleman will be well aware that in such conflicts, legal action will. or will not, be ultimately involved. But the point that he has made 651 is important, and I confirm that the information will be exempt information being in the category that is initially protected from the automatic right of councillor access.
I invite the hon. Gentleman, although I do not think I need to, to glance at authorities other than his own, where I fear that he will readily see that the opposition party— I make no allegations about the nature of that opposition because I am not even sure that it will always be other than my own — could, or just one councillor could, by obtaining the sort of information that we are talking of here, where legal action is contemplated but the matter has not been resolved, prevent the local authority from carrying out a proper and reasonable discussion of its actions on behalf of the community. That would have the net effect of frustrating what, arguably, many would want, because of premature disclosure.
As I have already said, this is an area in which, however many lawyers we have, we shall always have one more judgment. However, I hope that the hon. Gentleman will recognise that timing is important as well as access. In time, if something untoward happens, the fact of that would need to be reported, because where the action is passed it would be a matter of record and would then be published. I regret that I cannot comment in detail on the Strathclyde matter.
§ Amendment agreed to.
§ 11 am
§ Mr. SquireI beg to move amendment No. 55, in page 22, line 35, at end insert—
'9A. Information relating to the proposed service by the authority of a notice under any enactment.'
§ Mr. Deputy SpeakerWith this it will be convenient to take the following amendments: No. 64, in page 23, line 20, at end insert—
'6. Information falling within paragraph 9A of Part I above shall cease to be exempt information by virtue of that paragraph if—
- (a) the notice there referred to is served; or
- (b) the authority finally decides not to serve the notice in question.'
§ No. 76, in page 25, line 9, at end insert—
'10A. Information relating to the proposed service by the authority of a notice under any enactment.
§ No. 84, in page 25, line 33, at end insert—
'6. Information falling within paragraph 10A of Part I above shall cease to be exempt information by virtue of that paragraph if—
§ Mr. SquireThis is another important but small amendment, which covers the serving of notices by a local authority. It inserts a new paragraph 9A in part I of schedule 12A. The effect is to make information relating to the proposed service by the authority of a notice under any enactment exempt information. The intention is to enable the authority to consider the case for such a notice — for example, an enforcement notice under the planning Acts — and reach a decision in the matter without the person on whom it would be served becoming aware of it in advance in circumstances where, perhaps not unnaturally, he or she might take steps to thwart the authority's purpose. The provision is thus designed to protect the authority's action, not the person against whom the action might be taken.
652 The paragraph is qualified by new paragraph 6 of part II of the schedule to ensure that the information is exempt only for as long as the authority's action might be prejudiced as I have described.
§ Amendment agreed to.
§ Mr. SquireI beg to move amendment No. 90, in page 22, line 36, after 'action', insert 'taken or'.
§ Mr. Deputy SpeakerWith this it will be convenient to discuss the following amendments: No. 56, in page 22, line 36, leave out 'by the authority'.
§ No. 57, in page 22, line 38, leave out paragraph 11.
§ No. 77, in page 25, line 10, leave out 'by the authority'.
§ No. 96, in page 25, line 10, after 'action', insert 'taken or'.
§ No. 78, in page 25, line 12, leave our paragraph 12.
§ Mr. SquireThe amendment deals with crime prevention matters which arise as a consequence of the Bill. The three amendments seek to tidy up and clarify.
Amendment No. 90 inserts the words "taken or" after "action", so that the paragraph will read:
action taken or to be taken in connection with the prevention, investigation or prosecution of crime".The effect of the amendment is that action already taken, as well as that which it is proposed to take for the purposes stated, will be exempt. If that were not so, the purpose of taking such action might be frustrated by the subsequent leaking of specific information.Amendment No. 56 deletes the words "by the authority" in paragraph 10, so that any information that the authority might have about action to be taken, whether by the authority or anyone else—for example, the police—is exempt information. The amendment is designed to provide for sensitive operational information — for instance, intended police action on a series of drug raids —which the chief constable might wish to convey to the local authority but could hardly do so if it were to become public knowledge.
Amendment No. 57 deletes paragraph 11 of part I of schedule 12A which designates as exempt information arrangements for the security of premises or persons. I, and those whom I have consulted, feel that that paragraph is unnecessary in that the matters that it covers fall completely within paragraph 10—action in connection with the prevention, investigation or prosecution of crime.
§ Amendment agreed to.
§ Amendments made: No. 56, in page 22, line 36, leave out 'by the authority'.
§ No. 57, in page 22, line 38, leave out paragraph 11. — [Mr. Squire.]
§ Mr. SquireI beg to move amendment No. 58, in page 22, line 39, at end insert—
'12. The identity of a protected informant'.
§ Mr. Deputy SpeakerWith this it will be convenient to take the following amendments: No. 69, in page 23, line 38, at end insert—
' "protected informant" means a person giving the authority information which tends to show that—
- (a) a criminal offence,
- (b) a breach of statutory duty,
- (c) a breach of planning control, as defined in section 87(3) of the Town and Country Planning Act 1971, or
- (d) a nuisance,
has been, is being or is about to be committed.'
§ No. 79, in page 25, line 13, at end insert—
'13. The identity of a protected informant.'.
§
No. 89, in page 26. line 6, at end insert—
653
protected informant" means a person giving the authority information which tends to show that—
§ Mr. SquireI would be the first to say that I do not find the words "protected informant" the choicest. I have struggled without success to find words that would convey the relevant meaning, but I regret that I have failed to do so. "Protected informant" is the best that I have been able to come up with.
The amendment adds a new paragraph 12 to part I of the schedule. It makes the identity of a protected informant exempt information. The term "protected informant" will be defined in part III, paragraph (2) of the schedule, under amendment No. 69. It means
a person giving the authority information which tends to show that—
- (a) a criminal offence,
- (b) a breach of statutory duty,
- (c) a breach of planning control ․or
- (d) a nuisance, has been, is being or is about to be committed."
§ Mr. Matthew Parris (Derbyshire, West)Will my hon. Friend consider that the words "rat" or "canary" might be more suitable for what he seeks to describe?
§ Mr. SquireI am conscious, as I know that my hon. Friend is, that the animal lobby in the House and outside is strong. Were Ito follow his suggestion, I am sure that I would receive even more letters than I might receive as a result of putting into statute the words "protected informant".
The purpose of the provision is to prevent persons in a position to give the authority information that it requires from being inhibited from doing so by fear that their identity will become known to the person committing the offence.
§ Mrs. RumboldThe only thing that worries me about this is that it could lead to a considerable increase in the number of what I would describe as mischievous informants, who might think that they were raising issues which might fall into the categories that have been listed as a criminal offence or a breach of statutory duty or, more worringly, a breach of planning control or nuisance. In my experience as a member of a local council and a Member of the House, there are a number of such people around who sadly find little else to do but to try, rather mischievously, to stir up trouble. I hope that my hon. Friend will consider that point when he looks at the provision for a protected informant.
§ Mr. SquireAs I have come to expect from her, my hon. Friend makes a valid point. She will know that laws already exist to which people who persistently or outrageously behave in that way will be subject. Behind the rather jocular way in which I have spoken so far, all hon. Members will recognise that some letters should go to the local authority because they show for the first time that something serious may be taking place. Indeed, we have received a few such letters ourselves. If someone suggested to a local authority that a serious crime had been committed, it would be outrageous if the identity of that 654 person were revealed. Therefore, we need to extend protection in that area to ensure that the source of such information continues.
§ Amendment agreed to.
§ Amendments made: No. 59, in page 23, line 4, after '1', insert '1A'.
§
No. 60, in page 23, line 8, leave out from 'paragraph' to end of line 9 and insert
'if it is required to be registered under—
§ Mr. SquireI beg to move amendment No. 61, in page 23, line 12, after 'would', insert 'be likely to'.
§ Mr. Deputy SpeakerWith this it will be covenient to take amendment No. 82, in page 25, line 25, after 'would', insert 'be likely to'.
§ Mr. SquireThis is a simple amendment which inserts the words "be likely to" after "would", so that information is exempt so long as disclosure would be likely to give advantage to a person entering into a contract with the local authority. The amendment is designed to provide a more easily satisfied test than the absolute certainty that disclosure would confer such an advantage.
§ Amendment agreed to.
§ Amendments made: No. 62, in page 23, line 19, leave out from 'services' to end of line 20.
§
No 63, in page 23, line 20, at end insert—
'5. Information falling within paragraph 8B of Pan I above is exempt information if and so long as disclosure to the public of the information would prejudice the authority in those or any other consultations or negotiations in connection with a labour relations matter arising as mentioned in that paragraph.'
§
No. 64, in page 23, line 20, at end insert—
'6. Information falling within paragraph 9A of Part I above shall cease to be exempt information by virtue of that paragraph if—
§ No. 65, in page 23, line 30, leave out from beginning to end of line 31.
§ No. 66, in page 23, line 31 at end insert—
' "disposal", in relation to property, includes the granting of an interest in or right over it'.
§
No. 67, in page 23, line 33, at end insert
' "financial or business affairs" includes contemplated, as well as past or current, activities'.
§
No. 68, in page 23, line 33 at end insert—
'"labour relations matter" means—
§
No. 69, in page 23, line 38 at end insert —
' "protected informant" means a person giving the authority information which tends to show that—
§
No. 70, in page 23, line 38, at end insert—
'"tender for a contract" includes a written statement prepared by the authority in pursuance of section 9(2) of the Local Government, Planning and Land Act 1980 (estimated cost of carrying out functional work by direct labour)'.
§ No. 71, in page 23, line 45, leave out 'or constituted by'.
§
No. 72, in page 24, line 1, leave out from beginning to end of line 10 and insert—
§ No. 73, in page 24, line 36, at end insert '(other than the authority)'.
§
No. 74, in page 25, line 3, leave out from 'acquisition' to the end of line 5 and insert
'or disposal of property or the supply of goods or services'.
§
No. 75, in page 25, line 5, at end insert—
'9A. Information relating to any consultations or negotia-tions, or contemplated consultations or negotiations, in connection with any labour relations matter arising between the authority or a Minister of the Crown and employees of, or officeholders under, the authority.'
§
No. 92, in page 25, line 5, at end insert—
'9A. The identity of the authority (as well as of any other person, by virtue of paragraph 6 above) as the person offering any particular tender for a contract for the supply of goods or services.'
§
No. 93, in page 25, line 6, leave out paragraph 10 and insert—
'10. Any instructions to counsel and any opinion of counsel (whether or not in connection with any proceedings) and any advice received, information obtained or action to be taken in connection with—
(whether, in either case, proceedings have been commenced or are in contemplation.'
§
No. 76, in page 25, line 9, at end insert—
'10A. Information relating to the proposed service by the authority of a notice under any enactment.'
§ No. 96, in page 25, line 10, after 'action', insert 'taken or'
§ No. 77, in page 25, line 10, leave out 'by the authority'.
§ No. 78, in page 25, line 12, leave out paragraph 12.
§
No. 79, in page 25, line 13, at end insert—
'13. The identity of a protected informant.'.
§
No. 80, in page 25, line 21, leave out from 'paragraph' to end of line 22 and insert
'if it is required to be registered under—