DISCLOSURE OF INFORMATION (Hansard, 27 June 1995)

HC Deb 27 June 1995 vol 262 cc711-8 711

'.—(1) Notwithstanding any prohibition or restriction imposed by or under any enactment or rule of law, information of any description may be disclosed—

(a) by a new Agency to a Minister of the Crown, the other new Agency or a local enforcing authority,
(b) by a Minister of the Crown to a new Agency, another Minister of the Crown or a local enforcing authority, or
(c) by a local enforcing authority to a Minister of the Crown, a new Agency or another local enforcing authority,

for the purpose of facilitating the carrying out by either of the new Agencies of any of its functions, by any such Minister of any of his environmental functions or by any local enforcing authority of any of its relevant functions; and no person shall be subject to any civil or criminal liability in consequence of any disclosure made by virtue of this subsection.
(2) Nothing in this section shall authorise the disclosure to a local enforcing authority by a new Agency or another local enforcing authority of information—

(a) disclosure of which would, in the opinion of a Minister of the Crown, be contrary to the interests of national security; or
(b) which was obtained under or by virtue of the Statistics of Trade Act 1947 and which was disclosed to a new Agency or any of its officers by the Secretary of State.

(3) No information disclosed to any person under or by virtue of this section shall be disclosed by that person to any other person otherwise than in accordance with the provisions of this section, or any provision of any other enactment which authorises or requires the disclosure, if that information is information—

(a) which relates to a trade secret of any person or which otherwise is or might be commercially confidential in relation to any person; or
(b) whose disclosure otherwise than under or by virtue of this section would, in the opinion of a Minister of the Crown, be contrary to the interests of national security.

(4) Any authorisation by or under this section of the disclosure of information by or to any person shall also be taken to authorise the disclosure of that information by or, as the case may be, to any officer of his who is authorised by him to make the disclosure or, as the case may be, to receive the information.
(5) In this section—

new Agency" means the Agency or SEPA; the environment" has the same meaning as in Part I of the Environmental Protection Act 1990; environmental functions", in relation to a Minister of the Crown, means any function of that Minister, whether conferred or imposed under or by virtue of any enactment or otherwise, relating to the environment; and local enforcing authority" means—

(a) any local authority within the meaning of Part IIA of the Environmental Protection Act 1990, and the "relevant functions" of such an authority are its functions under or by virtue of that Part;
(b) any local authority within the meaning of Part IV of this Act, and the "relevant functions" of such an authority are its functions under or by virtue of that Part;
(c) in relation to England, any county council for an area for which there are district councils, and the "relevant functions" of such a county council are its functions under or by virtue of Part IV of this Act; or
(d) in relation to England and Wales, any local enforcing authority within the meaning of section 1(7) of the Environmental Protection Act 1990, and the "relevant functions" of such an authority are its functions under or by virtue of Part I of that Act.'—[Mr. Atkins.]

§ Brought up, and read the First time.

4.45 pm

§ The Minister for the Environment and Countryside (Mr. Robert Atkins)
I beg to move, That the clause be read a Second time.

§ Mr. Deputy Speaker (Sir Geoffrey Lofthouse)
With this, it will be convenient to discuss also the following: Amendment (a) to the proposed clause, in subsection (3), after second 'section', insert `or for the purpose of any pollution control functions as defined in section 5'. Amendment (b) to the proposed clause, in subsection (3), leave out 'authorises or'.
Government amendment No. 176.
Amendment No. 20, in clause 107, page 133, line 35, at end add '(12A) Subject to the following provisions of this section, no information relating to any individual or business which has been obtained by virtue of this section or any pollution control functions, shall during the lifetime of that individual or so long as that business continues to be carried on, be disclosed without the consent of that individual or the person for the time being carrying on that business. (12B) Subsection (12A) does not apply to any disclosure of information which is made

(a) for the purpose of fulfilling any statutory duty falling on the person disclosing it other than under the Environmental Information Regulations 1992; or
713
(b) between enforcing authorities for the purpose of their pollution control functions.'.

Government amendments Nos. 88 and 98.
Amendment No. 249, in schedule 22, page 321, line 15, at end insert— '(3A) Where the Agency is treated as having determined that information is commercially confidential by virtue of subsection (3) above and it subsequently appears to the Agency that the information is not commercially confidential for the purposes of this section then the Agency shall—

(a) give to the person to whom or whose business it relates notice that that information is required to be included in a register kept or maintained by the Agency under any provisions of this Act, unless excluded under this section; and

(b) give that person reasonable opportunity—

(i) of objecting to the inclusion of the information on the grounds that it is commercially confidential; and

(ii) of making representations to the Agency for the purpose of justifying any such objection:

and the Agency shall, having taken any representations into account, determine whether the information is or is not commercially confidential.'. Amendment No. 248, in page 322, line 27, after `person', insert 'by disclosing information about a trade secret'. Government amendments Nos. 99, 104 and 106.

§ Mr. Atkins
The new clause puts beyond doubt the ability of Ministers, the new agencies and local enforcing authorities to exchange information that will help them in carrying out their environmental functions. They will be able to disclose such information to each other without risk of civil or criminal liability. Amendments Nos. 88, 98, 99, 104 and 106 are consequential to the new clause; they amend the disclosure of information provisions in other environmental legislation to ensure that they are consistent with the new clause.
In Committee, we amended the provisions relating to the remediation registers and the contaminated land regime to exclude commercially confidential information. That brought the provisions into line with other environmental enforcement registers. Amendment No. 176 takes forward an undertaking that I gave at that time to the hon. Member for Lewisham, Deptford (Ms Ruddock). It remedies an omission in the copying of the standard provisions. Wherever information is excluded from the remediation register on the grounds of commercial confidentiality, a statement will be placed on the register recording that this has taken place.
In due course, if the House allows me to do so, I shall respond to hon. Members who speak to other amendments in the group.

§ Ms Joan Ruddock (Lewisham, Deptford)
I express my gratitude to the Minister for correcting the fault to which he alluded concerning the entry in the register. It is extremely important that, where information is kept from the public domain on the grounds of commercial confidentiality, there is a note, so that it is apparent that there is information that is not being disclosed.
We can see the sense in making it absolutely clear, through the new clause, that the new agencies, Government Departments and so on can freely exchange information among themselves. However, I have a question for the Minister. The new clause uses the words "may be disclosed" rather than "shall be disclosed". Clearly, there is an element of discretion here.
714 I foresee the possibility that the new agencies, which will, we hope, betremendously dynamic in their concern for the environment, will seek to gain information from a Government Department, only to find that the Department is not willing to disclose it. I ask the Minister to give some assurance on this point, or to say that the word "may" has been used so that there can be discretion and therefore withholding of information.
I also put on record the fact that, in Committee, the Opposition repeatedly asked the Government to make provision for true public disclosure. The new clause and the associated amendments in no way meet our demands for proper public disclosure and public accountability. They provide simply for exchanges of information between public bodies, which does not necessarily mean that information will be made available to the public.

§ Mr. Paddy Tipping (Sherwood)
This is an important new clause. Can the Minister tell us why it has been tabled at such a late stage? I should like to think that the reason is that the Minister listened to what we said in Committee. The new agencies will be important and powerful. I am extremely keen that the whole area is transparent. I suspect that there are fears among, for example, local authorities, that they will pass information to the agencies and to others, while not being allowed to have access to information themselves.
The importance of the partnership for the way forward must be recognised. Any steps that the Minister can take to ensure that the new agencies, the discussions and the partnerships behind it are transparent, open and reassuring to people will be extremely welcome.

§ 5 pm

§ Mr. Matthew Taylor (Truro)
The Minister will be aware that I have real concerns about the disclosure of information, which I raised in Committee. Amendments Nos. 247 and 248 relate in large measure to the concerns in my area and to the actions of South West Water.
Water companies at the moment have to provide information to the National Rivers Authority when they apply for a consent to discharge. That information is then available to the public from the NRA, because it is incorporated in the pollution control register under the Water Resources Act 1991. Under that Act, there are very limited exceptions for commercial confidentiality, and a certificate must be obtained from a Minister to prevent such a release of information. The water companies have never sought such a certificate.
As I explained in Committee, the changes made through the Environment Bill mean that the new agency must state within 14 days whether it accepts that the information submitted is commercially confidential.
If there is an appeal, the information stays off the public register until the appeal is determined. That is important, because South West Water—this may occur also in other areas—never submits full environmental statements with its planning applications. Usually, the planning application is submitted at the same time as the application for a discharge consent. People currently have access to full environmental data because the NRA holds them during the period when the planning application is being dealt with. The proposed change would frustrate that.
If the Bill remains as it is, there will be a clear loss in terms of available information on sewage pollution of 715 river estuaries and coastal waters, as much of the information derives from studies required to be carried out under consent to discharge applications.
In Committee, the Minister argued that there was no intention to change the existing law, and added that the Government did not believe that they had made a change. The Minister—having agreed in Committee to consider the matter—has written to me. In his letter, he accepts, contrary to the assurances given in Committee, that there is an intention to make a major change in the law relating to access to information on discharges by sewerage undertakers.
The Minister suggested that existing access to information on discharges to water cannot be justified. Yet Department of the Environment circular 13/85 says that the guiding principle in the legislation is that, subject to specified safeguards, there should be free availability of information except where there is a need to strike a balance between openness and limited but justified measures of confidentiality. That is why, until now, the Secretary of State has been given limited powers to waive the inclusion of information in registers where he is satisfied that the disclosure of information would prejudice to an unreasonable degree a private interest by disclosing information about trade secrets, or would be contrary to the public interest.
A careful balance was struck when the original legislation was passed, but the Government were then satisfied that the balance in relation to information on discharges into water was right. Those discharges affect bathing waters, shellfish waters, wildlife habitats, drinking water and all sorts of uses of water that affect the public. Therefore, it is vital that the public have access to the relevant information when applications for a consent to discharge are being made.
South West Water regularly claims commercial confidentiality without a ministerial certificate, and it has backed down only when it has been forced to do so. It is reasonable to assume that it will continue to make such applications while trying to deny public access to the information. The measure is fundamental to the principle of openness, and to coastal areas which will be heavily affected by such applications. I also believe that public access to information is required under existing EC environmental policy.
In his letter, the Minister suggests that the new wording is needed to create consistency across the regulatory regime. He argues that the waste water industry should be treated in the same way as integrated pollution control, as it affects, for example, companies such as ICI. But the comparison with industrial discharges is not appropriate. Waste water companies are performing a public function of waste disposal as an emanation of the state. The Department of the Environment has accepted that they are the relevant persons for the purposes of the directive on freedom of access to information on the environment and the Environmental Information Regulations 1992.
The waste water companies are discharging waste for which they themselves are the regulators under the Water Industry Act 1991. There will be a problem if they are able to decide on the prevention of the release of information when they are their own policemen.
716 The effluent of the waste water industry is not effluent from the creation of any commercial product, so I cannot see the relevance of commercial confidentiality. There can be no question of any competitor obtaining information about a waste water company's operation from the information lodged in a consent to discharge application. The technology for the processing of waste water is well known.
The companies are also monopolies, as there is no competition in their respective areas. How is it justifiable to withhold information from the public about the effect of discharges from public sewerage works and the effect that those will have on the environment? Such discharges can affect every individual living in an area, and I cannot see the reasoning behind the Minister's explanation in his letter.
Can the Minister explain how the protection of the commercial interests of the relevant bodies requires these provisions, and how the proposed changes can be justified in the context of decreasing public access to environmental information, to which directive 313 applies?
This is a matter on which there is great public concern in my constituency. Only yesterday, South West Water revealed that, for its most recent discharge—in my constituency at St. Agnes—it was now interpreting its duty as meaning that it has to treat sewage only during the summer months when the bathing water directive applies, and not throughout the year. That is an entirely new interpretation, which could affect every coastal discharge, not only in the South West Water area but in the rest of the country.
The NRA is currently uncertain about whether it can tackle South West Water's new interpretation, which, while providing a saving to South West Water, is extraordinarily damaging to the local environment and the community. I hope that the Minister will be able to present a good argument. Otherwise, people will interpret that as an extraordinary change of tack from a Government who say that they are committed both to the environment and to the principle of freedom of information.

§ Mr. Atkins
I should have addressed my congratulations to you, Mr. Deputy Speaker, before speaking to the amendments today. I am tempted to ask you whether I should call you Sir Deputy Speaker, or merely Mr. Deputy Speaker. Whichever it is, it is most appropriate that the congratulations of the whole House be given to you.

§ Mr. Deputy Speaker
The right hon. Gentleman should still call me Mr. Deputy Speaker.

§ Mr. Atkins
I shall accept your advice, Mr. Deputy Speaker.
The hon. Member for Lewisham, Deptford (Ms Ruddock) asked me about the timings, and I was grateful for her earlier words about my fulfilling an obligation which I had agreed to earlier. The hon. Lady posed a question about whether there was somehow a point of difference between "may be" and "shall be" in the wording of the measure. She will understand that there may be occasions—for reasons of national security, for example—when "may be" ought not to be "shall be".
It is not my understanding, nor is it the intention of the Bill, that people should withhold information except for the very best reasons. It will be up to other people to decide what those best reasons are, but it will happen in the minimum of cases.
717 The hon. Member for Truro (Mr. Taylor)—in a wide-ranging intervention on what I thought was a relatively uncontroversial area—raised a number of points relating to commercial confidentiality. It is worth repeating that the new section 191B in the Water Resources Act 1991 has been modelled on section 22 of the Environmental Protection Act 1990. In operating the EPA provisions, and in view of the 14-day time scale for determining whether information should be treated as commercially confidential, every effort should be made to reach a timely decision. These points, incidentally, relate to amendments Nos. 248 and 249.
Consequently, we understand that there have been none of the difficulties that amendment No. 249 envisages. That shows that the 14-day period serves its purpose. I do not see any reason why the same should not be true for the agency, and, frankly, can see no need for further procedures as proposed in the amendment.
Amendment No. 248 would limit the criteria for designating information as commercially confidential. As drafted, the Bill follows the precedent of the Environmental Protection Agency, in allowing any information to be classed as commercially confidential if its disclosure would prejudice to an unreasonable degree a business's commercial interests.
The amendment would limit the criteria to disclosure of information about a trade secret. By inserting a new section 191B in the Water Resources Act 1991, we are bringing the provisions about commercially sensitive information in the context of water into line with those in respect of other mediums under which the agency would be operating.
As the hon. Member for Truro said—indeed, as he knows—his amendment would frustrate that purpose. It is worth emphasising that, in general—a point that I have mentioned on numerous occasions and doubtless will as the agency is set up—there will be no room for unwarranted exclusion of information from the public. Information will be withheld under the provisions only if publication prejudices commercial interests to an unreasonable degree.
We do not envisage any sudden increase in the number of applications for information to be treated as commercially confidential simply because we are moving away from a definition based on trade secrets to one of commercial confidentiality, which already operates in respect of other environmental mediums.

§ Mr. Matthew Taylor
I understand, but I hope that the Minister understands that the water companies are not operating in a normal commercial environment. South West Water has increasingly claimed commercial confidentiality, and, although an appeal is allowed, it cannot be heard in time for the relevant planning processes to be scrutinised.
The Minister is trying to be helpful, and I would ask him to reconsider that matter. I would find it helpful if he agreed to do so, as his colleague's letter misses that fundamental point.

§ Mr. Atkins
In Committee, the hon. Gentleman made it clear that he also was a reasonable man as regards most of his amendments and new clauses, and I am not in the business of making life difficult at this late stage. I will consider the matter. As it is a constituency issue, he need only write to me about it for me to deal with it as a matter 718 of course. In that sense, I am prepared to listen to what he has to say, and if I can explain further I will be happy to do so.
Question put and agreed to.
Clause read a Second time, and added to the Bill.