HC Deb 04 April 2000 vol 347 cc890-909 8.45 pm
Mr. Hawkins

I beg to move amendment No. 102, in page 5, line 23, after 'subsection', insert `(1A) or'.

Mr. Deputy Speaker (Mr. Michael J. Martin)

With this it will be convenient to discuss the following: Amendment No. 103, in page 5, line 25, at end insert— '(1A) Where the authority has notified a third party in accordance with section (Notification of third parties) that it has received a request for information which relates to the third party's commercial interests, the third party shall have a period of 10 working days to make representations in accordance with section (Notification of third parties) (1)(a), and that period of 10 days shall he disregarded in calculating for the purposes of subsection (1) the twentieth working day following the date of receipt.'.

Government amendment No. 101.

Amendment No. 99, in clause 41, page 22, line 36, at end insert— '(1A) Information is exempt information if it was supplied to a public authority by a company or other commercial organisation before the coming into force of this Act'.

Amendment No. 37, in page 22, line 37, leave out subsection (2) and insert— `(2) Information is exempt information if it was supplied to the authority in confidence by any person and its disclosure under this Act would unreasonably prejudice the commercial interests of that person. (2A) Information is exempt information if it has been consistently treated as confidential by the authority and its disclosure under this Act would unreasonably prejudice the commercial interests of the authority.'.

Amendment No. 31, in page 22, line 38, after "to", insert "substantially".

Amendment No. 38, in page 22, line 39, at end insert— '(2A) Information is not exempt by virtue of subsection (2) if or to the extent that—

  1. (a) it relates to the quality or safety of the goods or services produced or supplied by the person referred to in that subsection or the conditions under which those goods or services are produced or supplied; and
  2. (b) the prejudice to that person's commercial interests would result from the exercise of more informed choice by persons seeking to acquire those goods or services,
unless the information is inaccurate.'. Amendment No. 32, in page 22, line 41, after "to", insert "substantially".

Amendment No. 104, in clause 50, page 26, line 41, at end insert— ', or whether representations made by the complainant in accordance with section (Notification of third parties) have been dealt with in accordance with the requirements of that section.'.

Amendment No. 98, in clause 62, page 31, line 19, leave out ",40 or 41" and insert "or 40".

New clause 8—Extension of meaning of "data subject"— '.—(1) Section 1 of the Data Protection Act 1998 (basic interpretative provisions) is amended in accordance with subsections (2) and (3). (2) In the definition of "data subject", after the word "individual" there is inserted "or company". (3) The definition of "personal data" is omitted and the following words are inserted— "personal data" means data which relate to—

  1. (a) a living individual, or
  2. (b) a company (but only where those data are held by a public authority),
where the individual or the company can be identified from those data, or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual or company and any indication of the intentions of the data controller or any other person in respect of the individual.".' New clause 9—Notification of third parties— '.—(1) Where a request for information is received by a public authority and that information relates to a third party's commercial interests the public authority shall—
  1. (a) without delay notify the third party of the request for information and the extent and nature of the information relating to the request and give the third party a reasonable opportunity to make representations regarding whether the information requested falls under an exemption as listed in Part II; and
  2. (b) have due regard to any such representations before discharging the duty to confirm or deny and before communicating the information or giving a notice under section 15.
(2) For the purposes of subsection (1)—
  1. (a) "third party" means anyone other than the person making the request of any public authority; and
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  3. (b) information shall be taken as relating to a third party's interests if that person provided the information to the public authority, is identified in the information and is reasonably likely to be affected (at any time) by disclosure of the information or of its existence.
(3) Where, after due regard has been given to any representation made in accordance with subsection (I), a public authority is to any extent not relying on a claim that information is exempt information in reaching its decision, the public authority must, without delay, give the third party a notice which—
  1. (a) states that fact;
  2. (b) specifies the exemption in question; and
  3. (c) states why the exemption does not apply.'.

Mr. Hawkins

The Opposition consider this group of amendments and new clauses to have special importance. When the Under-Secretary dealt with this matter in Committee, he cited the interests of business—including small business—in his answer to my hon. Friend the Member for Ryedale (Mr. Greenway). It seems that the Under-Secretary may not respond to the debate, although he is in the Chamber. However, I wonder whether the Government may be embarrassed by the fact that they are flying in the face of the interests of business, both small and large.

When the hon. Member for Somerton and Frome (Mr. Heath) was winding up the debate on the previous group of amendments, he had an exchange with the hon. Member for Hemel Hempstead (Mr. McWalter) about the question of self-destruct mechanisms. It struck me that the idea of mechanisms self-destructing came from a television programme entitled "Mission Impossible". Given the lack of support enjoyed by Ministers this evening, it is clear that the Government are embarked on just such a mission with this Bill, so it is not surprising that they reject the idea of self-destruct clauses.

However, I shall begin with the matters covered by new clause 8, which is linked with amendments Nos. 102, 103, 99, 98 and 104. The Data Protection Act 1998 gives companies—small or large—no rights to ensure that information held on them by any public authority is correct.

The Bill would give the public wide powers of access to information on any company that works with any public authority. The amendments in this group would broaden the scope of the Data Protection Act 1998 to ensure that companies have the same rights as individuals to ensure that information held on them is correct.

That is simple justice. For example, information held on people by credit reference agencies causes great unease, but individuals have the right to ask the agency what information it holds about them. They can correct what they can prove to be wrong.

We believe that freedom of information demands a degree of reciprocity in this regard. Companies need to be able to ensure that the information held on them is correct. When he responds, I hope that the Parliamentary Secretary will say whether he can think of any good reason why companies should not have the right to check.

Mr. White

Is the hon. Gentleman aware that the original US freedom of information legislation contained no provision such as he proposes? After several court cases, that element became a key part of the US legislation.

Mr. Hawkins

I am grateful to the hon. Gentleman. I was aware of that aspect, and I was going to speak about the history of what has happened in other jurisdictions. However, the hon. Gentleman and I have served on the parliamentary information technology committee, and I know that he shares my interest in matters such as data protection.

As I said earlier, I may be the only hon. Member to have conducted cases under the Data Protection Act 1998 in the courts. However, once again, the Opposition's argument has the support of a Labour Back Bencher, who I hope will join me in pressing Ministers on this matter. We have yet to hear a Back-Bench Labour Member supporting the Ministers on any of these matters. Once again, the Minister is under friendly fire from his own side. The hon. Member for Milton Keynes, North-East (Mr. White) is absolutely right, and I am glad to have his support. I hope that many other Labour Members will also support the idea of simple justice.

If business organisations do not have the right that we propose, incorrect or inaccurate information on companies, be they small or large, could be released into the public domain following a freedom of information request under this measure. We believe that any freedom of information legislation should mean that more information relating to the dealings between public authorities and business is released as long as, and only so long as, that information is accurate. Therefore, our welcome for the Government's proposals is subject to the exemption of information that could harm a commercial interest and to our concern that businesses must have a right to check on the accuracy of the information and correct it if there are mistakes. Because of accident or incompetence—not malice—records may, on many occasions, be incorrect. Things may be mistranslated. In many business fields, the accuracy of record keeping cannot be perfect. If more information is to be released, it must be checked for accuracy.

Under the Bill, a third party that may be affected by the disclosure of information has no right to be notified of any application for disclosure. Once again, we think that that is wrong. We believe that third parties should be given the right to be notified, in advance, of any application for disclosure that may affect them. It is also vital that third parties should then have the opportunity to make representations on whether that information is covered by an exemption. Can the Minister think of any good reason why that should not be the case? In no way would new clause 9 give commercial organisations a veto over whether information should be released. It simply means that no company, small or large, would have to rely on an action for breach or confidence or other legal remedy after the information was disclosed. We think it wrong for any company to seek to shut the stable door after the horse has well and truly bolted.

Mr. Lock

I am trying to follow the hon. Gentleman's argument. Will he let me know two things? First, where does new clause 8 provide that information shall be disclosed only if it is accurate? Secondly, how is a public authority to judge whether information that it holds is or is not accurate in a dispute about its accuracy? [Interruption.]

Mr. Hawkins

As my hon. Friend the Member for Buckingham (Mr. Bercow) said from a sedentary position, this is not a difficult argument to follow. If the Minister will be patient, I will, I hope, address the points that he has raised. However, it is for the hon. Gentleman to respond to our suggestions. If he is prepared to come back, tonight or at a later stage, or even in another place, and deal with our amendments and new clauses in a different way, addressing the issues, we will be very pleased. We are not suggesting that all our proposals are perfect. However, we have done our best, working with business organisations, to address the issues. If the Minister says that he is prepared to address these vital issues—as my hon. Friend the Member for Buckingham helpfully said, they are not difficult—we will consider carefully what the Government propose. So far, however, there has been no attempt by the Government to address our concerns over the Data Protection Act 1998, reciprocity, the notification of third parties and the rights of companies, small or large.

Business organisations are concerned about that matter. For example, the CBI, which the Government are keen to cultivate, said: Individuals are protected by the Data Protection Act. But what protections are there available to business? Under the Bill as it currently stands, business does not even have a statutory right to be notified when sensitive information about that business is to be disclosed. It has no right to object to its disclosure, no right to appeal the decision and no right to apply for compensation. To return to the helpful point made by the hon. Member for Milton Keynes, North-East, all those guarantees are provided by the United States Freedom of Information Act, as they are in Australia.

The Minister must justify the Government's failure to learn from experience in other jurisdictions. The hon. Member for Milton Keynes, North-East said that that the same error was initially made in the United States, and had to be corrected after many battles. Why are the Government repeating such mistakes? The Government claim to be a friend to business, but the CBI certainly does not think so. Unless the Government change their mind and accept our amendments or something akin to them, they will upset business seriously.

Business must be certain that any Freedom of Information Act will contain safeguards to ensure that damaging or commercially sensitive information is not be released.

Mr. Bercow

The potency of my hon. Friend's argument should be clear to all hon. Members, with the possible exception of the Minister. Does my hon. Friend agree that protection is especially important for companies because, unlike individuals, they have no recourse to the ordinary laws of libel?

Mr. Hawkins

I entirely agree with my hon. Friend. Like me, he has worked with many business organisations, particularly the Small Business Bureau and the Federation of Small Businesses. Small businesses with limited financial and legal resources are particularly hard hit by the Bill. I do not doubt that the Minister, who has practised law for many years, will have represented many business organisations, and I wonder whether, if he thinks about it for a moment, he is terribly comfortable with what his ministerial superiors have asked him to put before us tonight. We shall wait to hear from him.

Amendments Nos. 102 and 103 are connected with the proposed new clauses, and insert a period of 10 working days. We are not proposing a massive change, or a lengthy period. The Minister will find it difficult to say that there is anything wrong with that.

Amendment No. 99 deals with a matter vital to any Member of Parliament. I do not exaggerate by saying that one of the first principles learned about Parliament by any schoolboy or schoolgirl is that there should be no retrospective legislation. Hon. Members on both sides—the hon. Member for Thurrock (Mr. Mackinlay) sits on the Labour Benches, for example—have frequently spoken of the serious problems raised by retrospective legislation, yet the Bill applies retrospectively. Information supplied by business to any public authority before the Bill is enacted would be covered.

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All hon. Members will understand from their dealings with any business, small or large, that businesses require stability, and an important part of that is ensuring that the laws that apply to a business's actions will be the same as those that applied when the business originally took those actions.

All the advocacy that my right hon. and hon. Friends and I can command leads us to say firmly that the Bill should not apply retrospectively to commercial information previously provided to the Government, voluntarily or as required by statute, on the basis of assurances of confidentiality, because that information was, by definition, provided under a different regulatory environment. It is wrong in principle for the Government to say that information provided 10 or 20 years before the Bill is introduced will be covered.

Mr. Bercow

I am sorry to trouble my hon. Friend further, but does he agree that there is an analogy between the argument that he is advancing and the position on the disclosure of information provided to journalists in confidence? Earlier, it suited Ministers to say that it would be wrong to put journalists in a position of having to divulge information with which they were provided on a confidential basis. If that is so, surely the same principle applies, as my hon. Friend has eloquently argued, for businesses, which have divulged information on the basis of assurances of confidentiality.

Mr. Hawkins

Once again, I entirely agree with my hon. Friend. He is certainly not troubling me at all; I greatly welcome his intervention because he, like me, was carefully listening to an earlier debate. He is absolutely right to draw that parallel and point out that Ministers cannot put forward, on these amendments, an argument that is inconsistent with their earlier arguments. I hope that the Minister will comment on that.

It is important to say that, even if the Government were to accept our amendments and new clauses or something akin to them—now, at a later stage, or in another place—that would not totally veto any such information from the past being released because there would still be a provision or exception allowing the Information Commissioner to recommend that information given in the past should be released in the public interest. Our amendments would not mean that such information could never be released, so we are being moderate and reasonable in proposing this control and preventing retrospection.

It is important for the Bill to set a precedent so that businesses can carry on giving information to public authorities in the knowledge that the rules will not change again in the future. I recognise that the Government cannot bind their successors, but the point of the Bill is that the Government are encouraging the greater provision of information. If they make it more difficult for businesses to trust them, they will find that businesses are far more reluctant to provide information to public authorities or to the Government themselves. We strongly argue that the amendment is in everybody's interests.

The Campaign for Freedom of Information may not often share objectives with organisations such as the CBI, but it is unlikely that those who are arguing, as many hon. Members on both sides of the House have done for many years, for the provision of more information would want business, as a result of the Bill, to be much more reluctant to provide information to the Government or a public authority.

Amendment No. 98 deals with the availability of historical records, and is connected to the argument for the previous amendment. As I have said, the Opposition believe that more information should be released, but it is also important to recognise that business must be protected from provisions that could result in commercially sensitive information being placed in the public domain. That information could affect the very existence of small or even medium-sized businesses.

The Bill contains an exemption for information that would prejudice the commercial interests of a commercial organisation. We accept that. However, under part VI, any information covered by the exemption would be released after 30 years as an historical record. Amendment No. 98 would ensure that sensitive commercial information would not be released automatically after 30 years. It is a little like the rules in relation to Cabinet discussions and such matters.

We believe that the contents exemption to ensure that damaging information is not released is sufficient. If information is not damaging to a commercial organisation, it should be released. However, if it is judged that the information covered by the exemption and release is not in the public interest, it should not automatically be released after 30 years.

It is perhaps a double safeguard: a double negative. There is a danger that, if companies knew that, whatever information they supplied to public authorities would be released to the public, even after 30 years, it might yet again affect the frank and open relationships that the present, or any future, Government would wish to have with business.

I deal briefly with some of the amendments from what has been referred to as the cross-Bench group of hon. Members: Nos. 37, 31, 38 and 32. We want the Government to explain their amendment No. 101 in dealing with the cross-Bench group's amendments, which raise important issues. I do not want to deal with them in detail because others from the group will do so adequately, but the points are extremely serious.

I return to the point that the Minister made earlier. We do not claim that everything in our amendments or new clauses is perfect. There may be ways in which the Government, parliamentary draftsmen and Government advisers can improve them. We want the principles underlying these four matters to be dealt with: the protection of companies under the Data Protection Act; what has been sometimes called reverse freedom of information, although I prefer to call it reciprocal freedom of information: notification of third parties; avoiding retrospective legislation; and historical records, where a public interest test should be added.

Mr. Allan Rogers (Rhondda)

I have listened closely to what the hon. Gentleman has said about principles and about the information that is to be held, or not held, disclosed or not disclosed. Can he help me by giving an example of what information should be held for a longer period?

Mr. Hawkins

It is difficult to give specific examples, but I hope that the hon. Gentleman will understand. Under the Government proposals, something would normally be released after 30 years. I put the question back to him. Is it not sensible to have a public interest test, so that, if a company says, even after 30 years, that there is still a public interest in not disclosing that, it will not happen? It might severely embarrass someone's personal life.

As the hon. Gentleman and most hon. Members will be aware, family matters can be connected with the operation of family companies. Personalities are involved in such companies. Disclosure could be deeply embarrassing for that family, even after 35 or 40 years. A public interest test could be built in as an additional safeguard. We are talking about all companies, not just multinationals; that may be where the media focus, but it applies to all companies. I hope that I have given close enough to an example to satisfy the hon. Gentleman.

Mr. Rogers

It is not close enough. I cannot think of any information that needs to be withheld, for example, with regard to a private family company and that might be subject to a public interest test. I would be grateful if the hon. Gentleman could give a more substantial example of the information that could not be disclosed.

Mr. Hawkins

I am not sure that I can help the hon. Gentleman any further. I was trying to deal with something that could arise, but it is not just the Opposition Front-Bench team that thinks that it is important. Those matters have been raised with us by the CBI on behalf of its members. I hope that he will realise that it is not doing that for the fun of it. It thinks that there is a serious purpose here.

In summary, the amendments deal with important issues and we hope that the Government will take them on board.

Dr. Tony Wright

I come at the issue from a different angle, although I am trying to follow the arguments being made from across the way. To me, clause 41 looks like an extraordinary blanket exemption and, as a citizen and a consumer, I would like it to be tested more rigorously. Let me give a recent example so we realise that we are not talking about abstracts.

Before Christmas, I asked my right hon. Friend the Secretary of State for the Environment, Transport and the Regions a couple of questions: which MOT testing stations were on a final warning from the vehicle inspectorate and which garages had lost their licence to carry out MOT tests in each of the past five years? I shall compress the answer by reading the essential sentence: To publish the identities of Authorised Examiners withdrawn from the scheme could be prejudicial to any of their other business interests unconnected with the MOT testing scheme and therefore a list of those withdrawn from the scheme is not published.—[Official Report, 21 December 1999; Vol. 341, c. 530W.] That is how commercial prejudice provisions operate in respect of something that might matter to us. Indeed, when I received the figures, I discovered that last year 143 of those establishments had their licence withdrawn and 1,058 were put on a final warning. Over the past five years, 767 had their testing licence withdrawn and some 6,701 had been warned. We are not having some arcane argument. We must consider whether an exemption for commercial interests should be extensive or blanket or whether that exemption should be tested.

The problem is that the exemption is wholly unable to be tested against public interest considerations. Clause 41 applies to any information from any source. There is no sense that what is protected is information that belongs even to a particular company. A public authority could withhold test results obtained from its own laboratories or from independent sources. The information need not even be confidential. Information previously released by the authority or by the company could be withheld. A company might have disclosed information for one purpose and yet want to withhold it under that provision for another. The exemption would permit that, and it puts the avoidance of commercial prejudice above all other considerations. That is the fundamental point.

Companies or authorities that behave badly should be prejudiced, which is the whole point. That is exactly what a public interest consideration is designed to do. The Bill allows information to be withheld to protect companies from facing the consequences of their own malpractice. It is not difficult to find examples of how that might work. The absence of a binding public interest test will deny the public the essential safeguard in that respect. Of course we know that we have to protect proper commercial interests, but that must be balanced against a workable public interest test.

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Of course, an authority could reveal exempt information if it chose to do so, but sometimes authorities fail to recognise that there is any public interest in telling the public what is going on, or they might have a direct incentive not to disclose because they could incur criticism as a result. The discretionary nature of the test opens the door to collaboration and collusion between regulatory authorities and companies.

The exemption is unsustainably broad when compared with similar provisions in other freedom of information legislation. Amendments No. 37 and 38 would simply insert a public interest test. Commercial interests are important and need protection, but they must be weighed against other matters. That is the sensible course to take.

Amendment No. 37 would raise the threshold—it would allow information to be exempted on grounds of commercial prejudice. To become exempt, information would have to be supplied in confidence and would have to prejudice unreasonably the commercial interest of the person who supplied it or of the public authority holding it.

Amendment No. 38—my preference—would ensure that information relating to the safety of goods and services or information that would lead to consumers making a more informed choice could not be exempted on commercial interest grounds. I am not one of those who thinks that commercial interests do not matter, but I do think that commercial interests and their protection need to be balanced against other interests—especially those that protect consumers or allow them to exercise proper choice based on full information. At present, the clause offers blanket exemption, but that needs to be balanced. The amendments offer that balance.

Mr. David Davis

I reiterate the points that I made earlier. Freedom of information is about better-informed debate, a strong democracy and a better-performing Government. The amendments bear an important relationship to that.

I do not want to talk at length about the Conservative amendments, tabled by my hon. Friend the Member for Surrey Heath (Mr. Hawkins). He raised some important issues of principle. I am glad that he told the Minister that he would accept other draftings of the amendments. Although the principles of accuracy and reciprocity in freedom of information are significant, I shall not dwell on them.

Like the hon. Member for Cannock Chase (Dr. Wright), I want to make some observations in support of amendments Nos. 37, 31, 38 and 32. Earlier, I referred to my ministerial experience, but I was in business for twice as long as I was a Minister. If it is true that between two thirds and three quarters of what is claimed as secret really is secret, a large fraction of the remainder—what is described as secret merely to prevent embarrassment—comes under the category covered by these provisions.

When I was a Minister in the Cabinet Office, the use of commercial confidentiality in government prevented me from answering parliamentary questions and debates as I wanted to do. That was because civil servants said, "You can't say that, Minister; it's commercially confidential." I came to the view that, in many cases, it was not so much commercial confidentiality as avoidance of embarrassment.

That view was reinforced rather than weakened by my business experience. The demands made of Government by many businesses were greater than any made of a large private sector customer. I am talking not only about Great Britain, but about north America. In both cases, businesses supplying a major customer under contracts similar in size to those for Governments would fully expect that, for example, pricing information would be in the public domain, because that customer would need to be able to say to a competitor, "You have to beat this price, or this quality or this service level." There has been much disingenuous argument by businesses and it has not served them, the British economy or the British taxpayer well. It has become a serious issue for reasons that I shall come to shortly.

My point about an inappropriate exercise is not undermined by the Minister's comment that 60 per cent. of American inquiries on freedom of information are raised by commercial companies. We should understand that America is a different economy; it is much more vigorous on competitive issues than the British economy. Apart from being highly competitive, the economy has different competition laws in which businesses are forbidden, on pain of prison sentence, to talk to each other. I operated in that environment and, in such an environment, any source of information on a competitor is chased vigorously. Therefore, the comparison does not apply here. It is clear that the freedom of information arrangements in America have not stopped it being the most vigorous economy in the world; the reverse is true. There are many massive contracts between business and government in the United States.

The principle behind the amendments is important. I hope that the Minister will respond constructively to the amendments tabled by my hon. Friends, but I do not wish to concentrate on them. I want to focus on the fact that the previous Government and this Government have taken on board the private finance initiative, contractualisation and a whole swathe of measures that put the delivery of public services very much more in the private sector than ever before. One danger of that is that it takes the delivery of public service out of the reach of Parliament and accountability to the House.

Partly because of that, delivery of the service is also taken out of the reach of the individual citizen. The brilliant example of the testing stations given by the hon. Member for Cannock Chase showed perfectly in a single parable how important the issue is. It will get more important over time as the Government bring the private sector into education, into health eventually—I am sure that it will happen—and into all the sectors that matter to both sides of the House. Therefore, it is crucial that the information that relates to the provision of services in those sectors is not hidden behind a commercial confidentiality barrier.

The issue comes up even before the Public Accounts Committee. When members of the Executive give evidence, we often hear them say, "We can't tell you that because it is commercially confidential." In most circumstances, the Committee does not tolerate that response. Of course information is sometimes commercially confidential but, when we press the point, more often than not the argument is used as an avoidance of embarrassment clause. For that reason, I strongly support amendments Nos. 38 and 31.

Mr. Jon Owen Jones

I am delighted to follow the right hon. Member for Haltemprice and Howden (Mr. Davis), who is Chairman of the Public Accounts Committee, and to support his point that commercial confidentiality is often cited as a means of avoiding embarrassment.

I support the amendments tabled by my hon. Friend the Member for Cannock Chase (Dr. Wright). The definitions of commercial confidentiality in the Bill are too widely drawn and do not take into account the wider public interest. It could be argued that the Bill draws the definition more widely than the one that is currently used. However, commercial confidentiality often provides an opportunity not to answer a question, especially if that question has the potential to embarrass.

I shall use an example that I first cited on Second Reading. On 8 November, I put a parliamentary question to the Secretary of State for Culture, Media and Sport seeking information about sales of tickets to the dome—a matter of some contention, especially just before Christmas. The information was not available at that time, and I received a holding answer stating that I would receive a proper answer as soon as possible.

On 21 December, in response to further parliamentary questions asking why it was proving so difficult to say how many tickets had been sold in various places, I received an answer stating that the Department had tried to answer my question in as open a way as possible—[Official Report, 21 December 1999; Vol. 341, c. 562W.] but that my questions could not now be answered because the matter was commercially confidential. It had apparently taken more than six weeks to determine that there was a problem of commercial confidentiality in answering questions about how many tickets to the dome had been sold in various parts of the country.

I received a letter, dated 26 January, that went into more detail about why the matter was commercially confidential. It stated that the New Millennium Experience Company recognises its public remit and responsibility, but it is the professional judgment of its Board that…targets can only be met if the company operates in a commercial manner. NMEC is competing in the crowded and highly commercial market place of visitor attractions and its competitors do not publish detailed statistics of forward sales. Taking that at face value, I wondered why the company later published a sales survey that illustrated where tickets had been sold and where they had not. I could not understand why the real figures were commercially confidential, but a survey illustrating where sales were most likely to be made was not.

Mr. Lock

May I refer my hon. Friend to a couple of provisions in clause 41 that illustrate how the structure works? Information that is commercially confidential under clause 41(2) would fall within the category of exempt information only if prejudice to commercial interests were also likely. Even if that were so, the ability to refuse to disclose would apply only if the company or the public authority overcame the second barrier set out in clause 13, of carrying out the balancing act between the public interest in disclosure and the public interest in confidentiality. The Bill, once enacted, will greatly enhance the chances of confidential information such as my hon. Friend describes—and to which, in my view, he is perfectly entitled—being disclosed.

Mr. Jones

I thank the Minister for that intervention, especially for saying that I am perfectly entitled to the information. I wonder why, in our joined-up Government, I am not getting it from the Department for Culture, Media and Sport.

I asked the Library for its opinion on whether the Bill would make my obtaining the information that I sought any more likely. The answer was that it was at least as unlikely that I would get the information, so long as the Minister concerned chose to agree that the information was commercially confidential. Nevertheless, I am encouraged by the Minister's intervention, which I will quickly quote to the Department for Culture, Media and Sport, in the hope that the answer for which I have been waiting for five months will eventually be delivered. I am glad that the intentions of open government have percolated to the Lord Chancellor's Department, if not to the Department for Culture, Media and Sport.

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Mr. Lock

I should not lead my hon. Friend to premature joy. Unfortunately, until the tests set out by the Bill are incumbent on Ministers, Ministers must operate under the present regime. That is more restrictive than the regime that we propose to introduce under the Bill. It is causing the blockage of which my hon. Friend complains, and I sympathise.

Mr. Jones

That is one interpretation of the difficulty in obtaining the information that I require.

My argument may be regarded as unduly cynical, but if the ticket sales for the millennium dome and the associated public expenditure—almost £1 billion, or possibly even more—[Interruption.] My hon. Friend the Member for Workington (Mr. Campbell-Savours) says from a sedentary position that that was lottery money, meaning that it is not public money. It is the public's money. If that is not a valid question to be raised in Parliament, I do not know what is.

If the figures showed an even distribution of ticket sales across the country, somehow I think that not only would I have got an answer, but it would have been published prominently. The real reason that I have not been supplied with the answer for such a long time is that it is publicly and politically embarrassing. The purpose of the Bill should be to ensure that Ministers cannot hide behind commercial confidentiality to conceal their embarrassment.

Mr. Simon Hughes

I shall be brief. I shall add one point to comments made by the right hon. Member for Haltemprice and Howden (Mr. Davis), and then say a word or two about amendments Nos. 31 and 32.

I refer to the protection that the Bill appears to give to the commercial interests of the private sector and to the public sector. The debate is about amendments to clause 41, which deals with commercial interests. The clause states: Information is exempt information if it constitutes a trade secret or if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person. That is the breadth of it.

Much more of what was the public realm is going out into private hands—for example, parts of the Prison Service are being run as private prisons. It is nonsense for the Government to promote policies such as naming and shaming—by announcing that school X is on special measures, school Y is not performing well enough, or the SATs tables for school Z are this, that or the other—but not to put into the public domain commercial information about a private organisation that may potentially run a school in the future or perform some other function in government.

The legislation is going in contradictory directions. Public policy is moving many more things into the private sector, yet we are giving the private sector greater protection than the public sector. That is fundamentally inconsistent. The examples given by the hon. Member for Cardiff, Central (Mr. Jones) and others are clear about the difficulties and the extremely subjective definition of what is in somebody's commercial interest and what the test is. I hazard a guess that the figures for the number of tickets sold for the Dome in different parts of the country may not have been available when the hon. Gentleman asked for them in a parliamentary question because they had been managed by the promoters and owners of the New Millennium Experience Company on a monthly basis, so that they could package them in other information. To some extent they have revealed the information, but in their own time and on their own terms.

Mr. Jon Owen Jones


Mr. Hughes

The hon. Gentleman says no, but certainly the promoters and owners have tried to manage the information. They did not go as far as he thought, but they have been trying to control the information so as not to allow it to come out when the hon. Gentleman was seeking it. He may wish to correct me.

Mr. Jones

The information that has been released relates to total ticket sales. I was seeking information on regional ticket sales. There may be a good or better story to tell for the one but not the other. That is why we have only one piece of information.

Mr. Hughes

I understand that. There are two sides of a coin. We have information only on total ticket sales, but even that has been managed. Had the hon. Gentleman asked questions about the general and the particular, he might have found that he did not receive information about the general when he wanted it because it was being managed for a time that was convenient to the commercial interests of the company.

Mr. Hawkins

I must apologise to the hon. Member for Cardiff, Central (Mr. Jones) for not hearing what he said. I was briefly absent from the Chamber. However, a fascinating example has been given.

Does the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) agree that another form of packaging in this instance—it is often wise to stick to the same example—may be the difference between ticket sales that were at no cost and ticket sales that raised money? I suspect that, with school trips being brought forward and schools being offered free trips, the Government, in this context of managing information, are treating as ticket sales tickets that were offered free of charge, and that that will emerge later when the Dome accounts come to be examined. I suspect that information has been packaged in a way that is not really proper.

Mr. Hughes

That is certainly a possibility.

Four of the amendments before us are in two groups. Interestingly, they were described by the hon. Member for Surrey Heath (Mr. Hawkins) as cross-Bench amendments. It is an interesting concept that once we have a coalition in this place, we shall become cross-Benchers and depoliticised.

Mr. Hawkins

Cross-party groups.

Mr. Hughes

I accept that the hon. Gentleman meant that.

Mr. Rogers

It is not so difficult for Liberals.

Mr. Hughes

No, it is not so difficult for Liberals.

Amendments Nos. 31 and 32 seek once again to ratchet up the threshold. They are simple because they seek to insert "substantially" as the prejudice test. We shall come later to what the prejudice test should be generally in relation to the public sector. The amendments seek to ensure that we get that test in the private sector. Potentially—I refer to clause 41—there would be prejudice to the commercial interests of any person if almost any information were revealed. So far, both on Second Reading and in Committee, we have heard nothing from the Minister to suggest that the test does not effectively allow the maximum concealment of information and the minimum threshold possibly available for people who have to pass it.

This issue may not be put to the vote tonight, but I urge colleagues to say that, if we are to have the ability to get information about the public sector elsewhere in the Bill, we must ensure that clause 41 has parallel provisions. In the interests of a traditional or old-fashioned view about commercial interest, we should not lack awareness of the modern world in which people regularly seek and obtain information and act accordingly on the basis of other people's commercial practices. We must not give protection to the commercial sector that is not given elsewhere.

Mr. Bercow

I understand the point that the hon. Gentleman is making about the alleged disparity of treatment between the public and private sectors. To approach the issue from a slightly different vantage point, does he agree that commercial organisations should have rights that are equal to those of private individuals to know exactly what information is held about them at a given time by a public authority?

Mr. Hughes

I agree with that proposition. I do not want to get distracted, but there are different tests for individuals' rights to information and protection of privacy, and the rights of corporate organisations. The same harm is not caused to a corporate organisation as can be caused to an individual. However, the hon. Gentleman is right to say that the right to know what information is held should be guaranteed.

We are considering yet another example of the Bill failing to get it right. The Government bizarrely resist change and defend interests that are not theirs, or are not usually those of the state. I hope that they heed the widespread all-party view, which, for the fourth consecutive debate, shows that it is them against the rest. It would be surprising if all the rest were wrong.

Mr. White

I shall not support the amendment that the hon. Member for Surrey Heath (Mr. Hawkins) tabled, no matter how often he prays me in aid, because, in the words of my hon. Friend the Member for Cannock Chase (Dr. Wright), I am a serial loyalist. That is why I am grieved about amendment No. 7 and new clause 6, which we shall consider later.

We have not learned the lessons of what happened in the United States. The points that my hon. Friend the Member for Cannock Chase made about commercial confidentiality are correct; we have not got the balance right. Evidence to the House of Lords said that there would be a code of practice, which would set out a duty to consult with commercial interests.

The Bill will lead to much litigation about breaches of confidence. I suspect that those on the Front Bench are happy about that because they are lawyers. However, that is the wrong way for the Bill to develop. There is a problem in achieving the right balance between commercial confidentiality and the release of commercial information. The Minister should reconsider that balance.

Mr. Rogers

I am confused about what is in hon. Members' minds when they present their arguments. The easy method of separating public interest and commercial confidentiality and the interests of private companies has been blurred substantially in recent years. I was a spokesman for defence procurement for a time. Trying to get to the heart of enormous defence contracts and finding out what was happening to billions of pounds of public money was impossible. The right hon. Member for Haltemprice and Howden (Mr. Davis), who is Chairman of the Public Accounts Committee, knows that even members of that Select Committee cannot gain information on specific aspects of public procurement.

Private finance initiatives have been extended. Huge projects are being introduced. The right hon. Gentleman knows about them. Where is public accountability and consideration for the public interest in those matters? The Government have got it almost right. They are trying hard to bring all the secrets and conspiracies out of the closet. They are trying to expose the cosy relationship that existed between the previous Government, of which the right hon. Member for Haltemprice and Howden was a distinguished member, and private industry.

Under the previous Government, we witnessed the revolving door syndrome whereby civil servants and military defence people left government only to appear the following day on the boards of big companies that had just been awarded contracts. I should hate to make even a rough calculation of the number of Conservative Members who shifted out of Government posts and landed on the boards of big companies. There is a lot of hypocrisy—[Interruption.] I am not pointing the finger at anyone. A lot of hypocrisy has been shown in the debate. I have still to hear any concrete reasons for why companies should have a 40-year exemption from having to divulge information when there is a lower limit for highly sensitive aspects of national security.

I do not claim that the Bill is perfect. It may well have to be amended and tested in the courts. However, most legislation evolves in that way, especially on subjects such as that which we are discussing.

I shall support the Government on this issue, and I hope that most of my hon. Friends will do the same. I am not sure what these cross-party alliances are about. We have seen them in action in the Welsh Assembly, so we know what a disaster they are. I can tell my hon. Friends that inclusive politics has run its course. With all due respect to the Liberal Democrats, these days they are merely on the side.

9.45 pm
Mr. Lock

This has been an interesting and good debate. I am grateful to right hon. and hon. Members who have spoken. We are dealing with amendments that confront the complex issue of how to deal with commercially sensitive information and information provided in confidence.

Before I address the amendments in detail, I refer hon. Members to the structure of clauses 39, 40 and 41. Clause 39 deals with information that is exempt if it has been provided under a legal duty of confidence. If at the time that the information was provided—or subsequently, because of the circumstances—there was a legal obligation of confidence, that information is exempt and is excluded from the balancing act under clause 13.

By definition, information under clause 41 is information that has not been provided by the public authority under a legal duty of confidence to respect the confidentiality of that information and not to disclose it to third parties.

Clause 41(1) refers to information that constitutes a trade secret. A trade secret is a well known term of art in-law. Clause 41(2) refers to information being exempt if its disclosure under this Act…would be likely to…prejudice the commercial interests of any person.

I draw hon. Members' attention to the fact that the Bill includes a prejudice test—a harm test. The Confederation of British Industry asked for a harm test, as opposed to a substantial harm test: We believe the test for disclosing information should be one of simple harm and not substantial harm. Any attempt to limit the ability to withhold information to that which may cause substantial harm to a business may prevent the voluntary disclosure of information to Government. Without proper assurances, we do not consider that the Government's approach will achieve the objective of two-way openness and trust. We have listened to the CBI, which is why the harm test in clause 41(2) is not a substantial harm test, as has been suggested.

Even if the information would prejudice a company's commercial interest, clause 41 comes within the balancing public interest test under clause 13, as I mentioned in an intervention on my hon. Friend the Member for Cardiff, Central (Mr. Jones). The relevant provisions are in clause 13(3) and(4), which deal with the balancing act to decide whether the public interest in disclosure is greater than the public interest in confidentiality. That can be judged only according to the circumstances of the individual case.

I shall now deal with amendments Nos. 37, 38, 98 and 99. We are faced with two conflicting sets of amendments. Amendments Nos. 37 and 38 would restrict the amount of information to which clause 41 applies, whereas amendments Nos. 98 and 99 would increase the amount of such information. The Government are in the middle, and all I can say with confidence is that these two sets of amendments cannot both be right.

I shall take the four amendments in turn, and then explain why the Government have taken the middle path between them. I hope that my hon. Friend the Member for Cannock Chase (Dr. Wright) and the right hon. Member for Haltemprice and Howden (Mr. Davis), who made a thoughtful contribution, will accept that we are addressing the problems that they have raised but by a slightly different route.

Amendment No. 37 is a complex amendment which would restrict the exemption either to information that had been supplied in confidence and whose disclosure would unreasonably prejudice the supplier's commercial interests, or to information that had been treated as confidential by the authority and whose disclosure would unreasonably prejudice the authority's commercial interests.

That represents a change from the Bill as drafted, in two respects. First, there is the introduction of the concept of unreasonableness to the prejudice test; secondly, there is the question of the status of the information—whether it has been supplied or held in confidence. The amendment would restrict the commercial interests that could be taken into account to those of the supplier of the information or the authority itself, which is highly limited.

I consider the amendment unnecessary, inappropriate and too restrictive. It is unnecessary because information provided in confidence is already covered by clause 39, and therefore does not need to be covered again by an amendment to clause 41. It is inappropriate because it introduces the concept of unreasonable prejudice. The distinction would be difficult to make in practice. We agree that some such concept is required, and that the mere fact that information might prejudice a commercial interest is not enough to justify the restriction of the information per se. The public interest test arises not in the context of unreasonable prejudice, but through the application of clause 13 and the balancing act required therein.

In that respect, amendment No. 37 is unnecessary, but it is also too restrictive. It seeks to limit the exemption to information whose disclosure would unreasonably prejudice the commercial interests of the supplier of the information, or the authority itself. That ignores the issue of information that is supplied in confidence by one person, but whose disclosure would prejudice the commercial interests of a third party. For example, a trade association might supply a public authority with commercial information about a firm. The disclosure of that information would have no effect on the trade association, but it could have a devastating prejudicial effect on the commercial interest of the firm. We must recognise the need to protect third parties' commercial interests when it is in the public interest to do so, but not otherwise—hence the requirement for clause 13 to apply.

The amendment is over-restrictive, in that it requires a public authority to have consistently treated the information as confidential before being able to invoke the commercial interest exemption where it would be the authority itself whose commercial interests were prejudiced. That would provide a very narrow exception, and would place an undue burden on public authorities in the managing of dealings with suppliers, private finance initiative contracts and so on. A range of information might in particular circumstances, at a particular time, prejudice an authority's negotiating position or the public interest in regard to value for money; but at other times, when it would not do that, it might be disclosed perfectly properly. Information that authorities have at one time will not necessarily be inappropriate for disclosure at another time. Again, that is a requirement of the balance provided by clause 13.

The amendment also fails to take account of circumstances in which an authority itself has generated information, but its disclosure would prejudice the commercial interests of another party. Such information could include, for example, expert forecasts of whether a business were likely to succeed, or opinions on whether it were properly managed. The amendment would remove protection from such material, which it is necessary from time to time for public authorities to generate, especially when considering whether to enter into a PFI contract.

We must remember that there is no locus—no standing provision—for the seeking of information. We should bear in mind the experience of the United States. I accept what was said by the right hon. Member for Haltemprice and Howden, but I am sure that some commercial entities will seek the information. Not to allow the disclosure of such information when it is prepared with a view to analysing the commercial competence of a company would be prejudicial, and would not constitute the proper exercise of a freedom of information regime.

Amendment No. 38 seeks to limit the exemption further by disapplying it when information relates to the quality or safety of the goods or services produced or supplied by the person who supplied the information in confidence, or the conditions under which those goods or services are produced or supplied; and when the prejudice to that person's commercial interests would result from the exercise of more informed choice by persons seeking to acquire those goods or services.

Information that relates to the quality or safety of goods or services, however, may include, for example, manufacturing processes by which the quality or safety of a particular product is assured or a firm's plans for promoting or marketing a particular product when the quality or safety are to figure in the promotion. Such information would be of interest primarily to a firm's competitors rather than to the general public. The Government's view is that a freedom of information regime should not allow one company to steal a march on its competitors merely because, for one reason or another, information had to be passed over for the operation of a proper regulatory regime.

Amendment No. 38 is unacceptable also because the phrase conditions under which those goods or services are produced or supplied is capable of over-wide interpretation. It could range from manufacturing processes to conditions in supply contracts and marketing plans. Again, it could include information that would be not only of great interest to a firm's competitors, but not in the interest of the general public to know.

The second limb of the amendment seeks to set out the purpose of the disapplication—the exercise of more informed choice. However, that is also capable of very wide interpretation. Factors affecting consumer choice include price, quality, the product's environmental impact, origin, and location at the point of sale, how it is marketed and many other factors. The effect of the second limb would be to remove the protection of exemption from any commercially sensitive information that touched on those or other factors.

We think that that range of information is too wide, and that the better route is through the public interest balancing test, in clause 13—in which those factors can be taken into account, although the existence of any one of those factors does not preclude considering the overall balance in determining whether it is in the public interest to disclose that information.

Amendment No. 38 also requires the public authority to make a judgment on whether the information is accurate. However, the authority may not know whether the information is accurate, and the cost ceiling for charges made under the freedom of information regime is designed only to cover finding and retrieving the information. The public authority should not have to go to further unlimited lengths in verifying the accuracy of information. If information is disclosed by a public authority under the duty and is subsequently found to be inaccurate, the manufacturer could subject the decision to legal proceedings, thereby placing severe burdens on a range of public authorities on whom the duty was placed. I remind hon. Members that the provisions of clause 13 apply, and that those are the better route.

By contrast with those two amendments, the amendments tabled by Conservative Members, amendments Nos. 98 and 99, seek to restrict the scope of the exemption. I shall be able to consider those amendments with greater brevity.

Amendment No. 98 would have the effect of allowing the exemption in clause 41 in relation to commercial interest to apply in perpetuity. That is unnecessary. The circumstances of commercial life change so rapidly that the Government are simply unable to foresee any circumstance in which a company's commercial interests would still require protection after 30 years. I am grateful to my hon. Friend the Member for Rhondda (Mr. Rogers) for raising that issue with the hon. Member for Surrey Heath (Mr. Hawkins), who could not think of a single example to justify the amendment. That fact alone should persuade hon. Members that the amendment should not be supported.

Amendment No. 99 would effectively introduce a new exemption that would apply to information that was supplied to a public authority by a company or other commercial organisation before the Freedom of Information Act came into force. That formula is capable of extremely wide interpretation. The amendment would cut swathes through the Bill and would in part reverse the policy of retrospection in relation to commercial information alone, although of course clause 13 would still apply. That would be nonsensical, as information should already be available under the non-statutory code of practice on access to Government information that was introduced by the previous, Conservative, Government.

The fact that the hon. Member for Surrey Heath is making that proposal demonstrates his own view on the strength of the code that the previous Government introduced. His view seems to be that any obligations to provide information under the code are not to be relied on; that companies that have not sought to rely on those obligations can be ignored; and that we should start at year zero with the Freedom of Information Bill. We do not take that view. It is not a workable system. There will be a reasonable lead time before the legislation takes effect. Companies know what the regime is and should have known since 1994, when the code was introduced.

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