HL Deb 13 April 1976 vol 369 cc2096-139

5.46 p.m.


My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, that the House do now again resolve itself into Committee.—(Lord Lovell-Davis.)

House in Committee accordingly.

[The Lord DOUGLAS of BARLOCH in the Chair.]

Clause 16 [Administration, enforcement and offences]:

Lord STRATHCONA and MOUNT ROYAL moved Amendment No. 32B: Page 14, line 9, after ("Act") insert ("save that in the event of any conflict between such Community obligation and any order or direction made or given under the remaining provisions of this Act no offence shall be deemed to have been committed by any person acting in compliance with any such order or direction").

The noble Lord said: This is a technical and legal Amendment, and essentially one to find out the Government's reaction. The purpose of the Amendment is to remove the possibility of anyone directed or ordered by the Secretary of State to do certain things being then prosecuted by the Secretary of State for a breach of a Community obligation. Schedule 3 to the Bill sets out certain EEC regulations on energy which are directly applicable in the United Kingdom, and the Bill makes breaches of these regulations punishable as an offence under the Bill; that is to say, it makes it an offence in respect of which proceedings can be taken by the Secretary of State. However, the regulations I have referred to all relate to information which must be given to the Commission, and the Secretary of State has power to add new ones.

I am advised that it is a matter of Community law that no particular act of United Kingdom legislation is required to make future regulations automatically form part of the United Kingdom law, and a breach of these new regulations would almost certainly be made an offence under the present Act. Therefore, there seems to be a need for some provision which would eliminate the possibility of contradictory obligations. In other words, what we are saying is that a company, or person, must not be put in the rather absurd and anomalous position whereby if they obey the Secretary of State they must be prosecuted by that same Secretary of State for disobedience to the Community regulations. That would be a manifestly absurd situation. I beg to move.


My task in dealing with the Amendment is not so much to argue against it or to say why it is not acceptable as to demonstrate that it is misconceived and that, in any case, the concern which the noble Lord has expressed is unfounded. It seems to be assumed that there could be conflict between the obligations a person may need to fulfil under the EEC Council Regulations in Schedule 3 and those under orders or directions made under other parts of the Bill. I must make the legal position clear. If there were such a conflict, Community law would prevail, and any order or direction in question would be of doubtful validity to the extent that conflict existed. The Amendment is therefore based on a misunderstanding and would be contrary to our obligation to implement Community law.

However, I might add that we do not see such conflict happening in practice. In particular, those EEC Regulations specified in Schedule 3, which for the foreseeable future will be the only relevant ones, relate simply to the provision of information, largely statistical, required for Community purposes in the energy field. It is difficult to imagine any orders or directions given under the Bill to any person which could contradict or conflict with the requirements of these EEC Regulations. The noble Lord seemed to suggest that Schedule 3 was open-ended and that other EEC Regulations could be added in the future which might conceivably conflict with the use of other powers in the Bill. I can assure your Lordships that the Government will keep a very careful watch on possible difficulties of this sort. Directly applicable legislation of this kind proposed by the Commission is always considered particularly fully by EEC Member States, and all its implications weighed very carefully indeed before being accepted. In the light of my explanation, I hope that the noble Lord will feel able to withdraw the Amendment.


I am perfectly disposed to withdraw the Amendment, especially as the Minister has given all kinds of assurances. I must, however, ask him a question which he may not be able to answer now. The advice I have is that the Secretary of State has power to add to these regulations. The danger to which we are addressing ourselves is if the Secretary of State inadvertently got himself into the position where his regulations could be at variance with EEC regulations and some other individual could be the sufferer. It may be that the best thing we could do is to leave this matter until later if the noble Lord is now unable to answer that question.


I said in my earlier remarks that in any position the Government can foresee at this stage, Community law must prevail, and Community law is paramount.


I am not a lawyer and I do not think the noble Lord is, either, so we are obviously wasting the Committee's time if we pursue the matter now. Let us have a look at it, and, in the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.54 p.m.

Lord STRATHCONA and MOUNT ROYAL moved Amendment No. 32C: Page 14, line 33, after ("committed") insert ("when an Order in Council under section 3(1) is in force").

The noble Lord said: Here again we are probing into legalities and I hope that we will not get into difficulties. The purpose of the Amendment is to avoid the possibility of individuals being prosecuted for offences under the Bill or, rather, to narrow the circumstances under which that could happen. This is based on the proposition that the whole Bill is directed to a comparatively narrow sector of industry which appears to have been singled out for rather special treatment. Most of the companies concerned are, by their very nature, rather large and corporately run organisations. It is reasonable to suppose, therefore, that most of the decisions will be taken in a corporate fashion; that is, they will be cabinet-type decisions. It seems a little hard that it would be possible to pursue individuals for taking decisions which may have been taken as a result of a corporate decision by their company, and the Amendment seeks to limit the circumstances under which this situation could arise.


There might be a slight divergence between our positions as to how we see the effect of the Amendment as it pertains to the Bill. I am advised that the common form provisions of Clause 16 (4) are intended to apply across the whole range of offences under the Bill. Similar references to a body corporate and its officers may be found in numerous Statutes (for example in the Petroleum and Submarine Pipe-lines Act 1975, Section 38(3)). Offences both during an emergency—that is, when an Order in Council is in force under Clause 3(1)—as well as in normal times would be included. Without proper sanctions, the Bill would be unenforceable. An example of the application of the Clause 16(4) provision in both crisis and non- crisis situations would be, for example, offences against the stocking provisions in Clauses 6 and 7, which are permanent powers, taken with Clause 2(2)(a) on the disposal of stocks (which effectively controls also the holding of stocks) which is triggered by a Clause 3 Order in Council in an emergency. As I have said, there is nothing novel about this provision. It appears, I am advised, in numerous other pieces of legislation. We need it in this Bill both for offences committed during emergencies and for those committed in normal times, and I have attempted to give an example of the latter.


I accept what the noble Lord says. I am never impressed with the precedent argument, which I always think is a rather dangerous one. May I, in a spirit of genuine inquiry, ask the noble Lord whether he thinks the same sort of regulations should apply to a Government Department? If it is right to pursue an individual for the actions performed by his company, why is it not right to pursue an individual within a Department or indeed—dare I say it—a Minister for acts undertaken by his Department? The logic escapes me, but I will not press the point.


I thought that we were about to touch on that point on the noble Lord's next Amendment.


I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.59 p.m.

Lord STRATHCONA and MOUNT ROYAL moved Amendment No. 32D: Page 14, line 40, leave out subsection (5).

The noble Lord said: I do not think that this Amendment is addressing the same point as the last; at least, that is not what we had in mind. We are here dealing with a simple and brief point. Is it not rather unusual to find the word "member" in a Bill? Can the noble Lord confirm that the use of the word "member" refers to a statutory corporation because the word is usually used, in common parlance, to refer to shareholders?


To respond first to the last question of the noble Lord, Lord Campbell, this applies in particular to the members of boards of State bodies—for example the nationalised industries. As your Lordships will recognise, this is a common form provision used in many Acts of Parliament to cover in particular members of the boards of nationalised industries. In my view, nothing novel is proposed.


I have listened with interest. I shall not keep the Committee long, but I should like to ask a question. Suppose that I am employed by a board and know nothing of litigation. I do a humble, honest job for the board in a far away place storing coal in a remote part of Wales or Scotland. If I commit an offence under this provision, although I may know nothing about legalities, I am an employee of a nationalised industry and would I not be liable under this clause?


I hate to remind my noble friend that ignorance is no excuse under the law.


That is very sad.


I welcome the support from the other side which is wholly in sympathy with what I am trying to prove. One always has the feeling on these occasions that one cannot win against the power of the advice to the Government Front Bench. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Clauses 17 and 18 agreed to.

Clause 19 [Interpretation]:

6.4 p.m.

Lord CAMPBELL of CROY moved Amendment No. 32E:

Page 15, line 38, at end insert— (""industrial purposes" means all purposes except gas in the gaseous state supplied in pipes to premises in Great Britain used only as a dwelling;").

The noble Lord said: On behalf of my noble friends Lord Strathcona and Lord Long I should like to suggest, in moving the Amendment, that the phrase "industrial purposes" needs to be defined in the Bill, particularly in the context of Clauses 8 to 10. There, its meaning will be important both as regards the two words "industrial purposes" themselves and also as regards the expression "non-industrial fuel purposes". When we were going through the clauses in question yesterday, those terms kept cropping up. The word "industrial" is not defined in the Bill and it is by no means clear how wide its meaning is to be. I would ask, for example, whether it is to extend to commercial use or is it to be limited literally to manufacturing industry as defined by the standard industrial classification? In the Industry Act, it is defined as, any description of commercial activity, and any section of an industry", so in that Act "industry" is defined fairly widely. All this brings me back to the point that there should be a definition in the Bill which makes clear what the phrase "industrial purposes" means for this Bill. I beg to move.


I agree with the noble Lord and his noble friends that there could possibly be some doubt about whether certain uses—for example, gas for agricultural purposes—would be classed as "industrial", and that it may be necessary to include a definition clarifying this. I think, however, that noble Lords will, on reflection, agree that the definition proposed is rather too sweeping. The use of the expression, "used only as a dwelling" could, for example, if carried to absurdity, mean that gas supplied to, say, a doctor's surgery for a gas fire to heat the waiting room would be classed as gas used for industrial purposes. Clearly, that cannot be right. I hope, therefore, that noble Lords will agree to reject this Amendment, and leave me to consider how best to clarify what is meant by "industrial purposes".


I had been going to suggest that the Amendment needed some revision and that what the noble Lord, Lord Campbell, might care to think about is whether the definition should encompass all gas used otherwise than as a fuel which is burnt. The "industrial purposes" are purposes of manufacture, particularly as a chemical feedstock, but the supply of gas to premises for use in heating installations, whether they be central heating or individual appliances, should not be included in the definition, regardless of whether the premises are of a domestic or a commercial nature. If the definition were modified on those lines, I feel that it would be helpful to have something in the Bill, but the definition is not grammatical as the noble Lord has framed it, because "gas" is not a "purpose". The wording needs careful consideration. I am grateful to the noble Lord, Lord Lovell-Davis, for saying that he will have a look at it.


I, too, am grateful that the noble Lord, Lord Lovell-Davis, has seen the point of my remarks. I agree that the Amendment may well not be perfect in its drafting. However, it has drawn attention to the need for a definition here and, on the understanding that the Government will look at this and will probably bring forward a definition of the kind that they think necessary, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.8 p.m.

Lord CAMPBELL of CROY moved Amendment No. 32F: Page 16, line 7, after ("wax") insert ("and").

The noble Lord said: I believe that it would be convenient if the following Amendment, Amendment No. 32G, were discussed together with the present Amendment. Here, I must be somewhat technical, because the definition adopted in the Bill does not, we believe, explain what is supposed to be covered. Amendment No. 32G would leave out the following lines: …and any wide-range substance (meaning a substance whose final boiling point at normal atmospheric pressure is more than 50°C higher than its initial boiling point)". I am advised that those words could cover certain chemical feedstocks which industry does not sell as products. It sells them as raw materials for use in a subsequent manufacturing process.

My purpose in moving the Amendment is to find out what the Government mean by the definition. If it is their aim to extend by the words which I have read out the definition to cover feedstocks, this would, I understand, be a major innovation. So I hope the Government can tell us whether that is their aim. I readily accept that, if the noble Lord has not realised what my point is and is not able to reply immediately, because the point is very technical, he may need to convey a message to me later on. However, we should like to know, first, whether it is intended to cover feedstocks, and, if so, we feel that the Government should recognise that this is an innovation and that they should not be doing it unintentionally. I beg to move.


May I point out that these three lines cover all crudes?


Your Lordships may find it rather surprising that, in this Bill, which, despite the impression which our debate may have given, is largely free of technical references, the Government have had to include this phrase defining petroleum products by the rather clumsy-looking references to different boiling points. This was done intentionally so as to exclude from the Bill a number of substances which, while they are currently covered by the Fuel and Electricity (Control) Act 1973, we have decided we do not need to control. These substances include a number of key petrochemicals, such as ethylene, styrene and cyclohexane. Therefore the one important substance which would be omitted from the Bill if this Amendment were passed would be naphtha.

As is well known, naphtha is used both to produce motor spirit and as the principal petrochemical feedstock. As regards the former use, the Government need to be able to control naphtha like any other petroleum product, particularly in emergency conditions. It would be a vital gap in the implementation of IEA and EEC obligations and measures to meet a "domestic" emergency if this Amendment were passed. As I have said, the simple fact is that the Amendment excludes these key petrochemical "building blocks". I hope that what I have said satisfies the noble Lord, Lord Campbell of Croy, and I recommend that the Amendment be rejected.


The reference in the Bill to this particular cut, as it is called, of the petroleum distillation is the only way to cover a certain important range made in the distillation process. The range, which is of considerable importance, is—as the noble Lord, Lord Lovell-Davis, just said—the naphtha range, which is just this kind of cut. I made inquiries to find what a typical cut of this kind amounts to. If one takes the Kuwait export crude, one finds that the naptha cut amounts to 13.4 per cent. by volume of the crude. This particular cut is more or less the middle cut. One has taken off the volatile and the easily distillable material, and one has the naphtha cut.

It is true that his naphtha cut includes material used for petro-chemical purposes, but it also includes many other things, because it is a broad cut. For instance, the naphtha is used for the production of gasolene petrol. It is used for kerosene, the lighter grades; for varnish and paint manufacture; and for lubricant. It is also used as a dry cleaning solvent and as petrochemical feedstock; in other words, there is a very considerable range here. If the Bill did not cover this material, there would be an enormous and serious gap in the whole control which is the purpose of the Bill. It would, largely, make nonsense of the Bill if the naphtha cut was excluded, because that cut is basically the important one for so many different purposes.

One hopes—and I am sure that the Government would give an assurance on this—that under all normal conditions it would not be the intention to deprive the petrochemical industry of essential feedstock. It has been made clear already several times during the Committee Stage that the Government are very much concerned with the feedstock position. But it is important to realise that where there is a broad cut one cannot possibly start differentiating within that cut, because the essence of the distillation process is that it comes out as naphtha. Therefore there must be control over the whole of the cut.


I gladly give my noble friend Lord Wynne-Jones the assurance that under normal circumstances it would not be our intention at all to deprive the petrochemical industry of such an important feedstock. I am very grateful to my noble friend once more for helping me to clarify this rather technical matter, and I am sure that he has explained more clearly than I why there is nothing sinister here. I have already stated that this is not an innovation. The noble Lord, Lord Avebury, made a point about crude oil being included in Clause 19(1). I understand that the definition of petroleum products makes it clear that they are products derived from crude. Thus these products do not include crude, despite lines 8 to 11 of Clause 19(1). I hope that the explanation of my noble friend Lord Wynne-Jones, for which I am grateful, has clarified why we are asking your Lordships to reject this Amendment.


We are again very grateful to the noble Lord, Lord Wynne-Jones, for his expert explanation. From what the noble Lord, Lord Lovell-Davis, said on behalf of the Government, it is clear that the Government wish to define this cut in the distillation process. The noble Lord, Lord Lovell-Davis, made clear what the Government were intending to cover in this definition. But the question I was putting is whether, in covering those substances they might not also be covering some others for which the use would be as a raw material rather than as a product? From what the noble Lord said I will not pursue this Amendment, but I ask him whether some qualification might be needed to lines 8 to 11 to cover the use of the feedstock when it is to be a raw material rather than a product? What the noble Lord is aiming to do is understandable, but I am drawing attention to the fact that some of these substances could be used as feedstock rather than as a product. Perhaps the noble Lord would think about that point before the next stage, but now I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 19 shall stand part of the Bill?


I wish to point out, as I did not have a chance to do so on the previous Amendment (the noble Lord, Lord Campbell of Croy, having withdrawn it so rapidly), that the noble Lord, Lord Lovell-Davis, confirmed my statement that, in the absence of a qualifying provision at the beginning of the definition, the last four lines would apply to crude, but he says that they do not, in fact, do so because of the reference to products directly or indirectly produced from crude at the beginning of the definition. If one reads this carefully it could mean that the list of products specifically mentioned there—fuels, lubricants, bitumen and so on—are those produced directly or indirectly from crude. Part of Clause 19(1) goes on to say …and any wide-ranging substance (meaning a substance whose final boiling point… et cetera. As I read this I thought that that phrase was to distinguish this final provision from the rest of the list, which consists of the products directly or indirectly derived from crude.

While on my feet I should like to ask the noble Lord, Lord Lovell-Davis, an additional question arising from yesterday's proceedings, when I suggested that the confusion which had arisen in the mind of the noble Lord, Lord Campbell of Croy, concerning the inclusion of liquefied petroleum gases in the definition of natural gas could quite easily be cleared up by inserting the words "normal temperature and pressure" after the word "gas" in the definition of "natural gas". It is perhaps a little unfair of me to ask the noble Lord, Lord Lovell-Davis, whether he has had an opportunity to consider this in the intervening 24 hours, but it would be helpful if we could know whether that piont might be cleared up by the Government at Report stage.


I am grateful to the noble Lord, Lord Avebury, for raising this point. I have to confess that I have not had the opportunity to consider the recommendation he made, although I can assure him that it will certainly be taken into account within the Department. Without giving any positive undertaking, since it is a fairly technical point, I can assure the noble Lord that I shall certainly look at it.

Clause 19 agreed to.

Remaining clauses agreed to.

Schedule 1 [Relaxations of road traffic and transport law permissible raider Section 4 (2)]:

6.21 p.m.

Lord KIRKHILL moved Amendment No. 34D: Page 18, line 8, leave out ("public service vehicle") and insert ("stage carriage, an express carriage or a contract carriage").

The noble Lord said: This is purely a drafting Amendment, designed to make clear that the power given to the Secretary of State by paragraph 1(1)(a) of Schedule 1, to grant an authority relaxing certain provisions relating to public service vehicles, is restricted to the requirements for: (a) a public service vehicle licence under Section 127 of the Road Traffic Act 1960; (b) a road service licence under Sections 134 and 135 of the Road Traffic Act 1960; (c) a permit under Section 30 of the Transport Act 1968; and (d) an agreement or consent of the London Transport Executive for "London Bus Service" required under Section 23 of the Transport (London) Act 1969, since it echoes the terms used in those provisions.

The Amendment is in response to suggestions made on Second Reading by, as I recall, my noble friend Lord Davies of Leek—and the Government are obliged to my noble friend for drawing this fact to our attention—that the sub-paragraph as then worded would remove all restrictions on the type of vehicle used as a public service vehicle in time of emergency. However, the regulations referred to in paragraph 1(1)(b) and described in paragraph 1(2) are those regulations which relate only to public service vehicles. The paragraph would not, therefore, enable any of the construction and use regulations relating to vehicles generally to be relaxed. I beg to move.


If it is in order, I wanted to get a sentence or two in there.

The DEPUTY CHAIRMAN of COMMITTEES (Lord Douglas of Barloch)


On Question, Whether Schedule 1, as amended, shall be the first Schedule to the Bill?


I wonder whether I may interrupt the proceedings a little—and I am grateful for the concession. There is a point which has always worried me concerning emergencies. Suppose I am knocked down by one of these vehicles which any Tom, Dick or Harry can put on the road in an emergency. How do I stand for my insurance, and ray poor widow should I pass on, if I am knocked down by one of these vehicles? Do the Government take responsibility?


That is a most penetrating and pertinent question to which I shall give serious consideration.


I meant to say this on the Amendment, but may I make just two comments? First, is it not strange that this very well-known wording was not adequate for this Bill? We get it in all sorts of other Bills. Secondly, I am bound to say that when I read this Amendment I began to wonder what century we were in. This looks rather like 1876, not 1976. I suppose we should not complain. We have done nothing but complain about the drafting, and I suppose that anything is an improvement, even if it is 100 years out of date.

Schedule 1, as amended, agreed to.

Schedule 2 [Administration and other matters]:

Lord STRATHCONA and MOUNT ROYAL moved Amendment No. 34A: Page 18 line 37 leave out head (a).

The noble Lord said: In speaking to this Amendment, may I also, with the leave of the Committee, speak to Amendment No. 34B, which is more or less on the same point? Sadly, the sting of this Bill is to some extent in the tail, in this perfectly revolting Schedule 2. In saying that, I think we can be forgiven for being unhappy about this Schedule or any Schedule which, as I said on Second Reading, has as its opening sentence: The powers of this paragraph are exercisable whenever the Secretary of State thinks it expedient". I find that very alarming as a sort of introductory gambit; and a number of the Amendments which we shall be moving are aimed at modifying these rather frightening and wide-ranging powers. Of these two Amendments, the second one is to some extent a drafting Amendment in that it eliminates a few words in this verbose and badly-drafted piece of legislation, and I hope the Government will appreciate it. But it also has a genuine purpose, as well as making this sub-paragraph, we think, a little tidier. The object of these two Amendments is to ensure that the Secretary of State uses his power to obtain information only in order to implement his international treaty obligations. Furthermore, not only do we try to define the type of information; we also try to define the purpose for which the Secretary of State is asking for it, and what he is going to do with it afterwards.

Some of the information for which the Secretary of State will be asking is of great commercial importance and value, and if head (a) remains in the Bill as it is then the Secretary of State will be able to exercise his powers at his own discretion, since in practice it will be almost impossible to argue against a vague assertion such as "the effective performance of his functions". Then, if we look forward to later paragraphs we find that there is a new imposition, a new demand, placed on companies: to provide forecasts under paragraph 1(2)(b).

The whole of paragraph 1(2)(c), I think, is a new concept. This has been put in, I think the noble Lord will be telling us, because of our IEP agreement obligations; but I think it indicates the way in which, apparently, the honouring of our international obligations can be, has been and is being used by the Government as a device to extract more information and to extend their powers. Not once, but many times, the late Minister who sat on those Benches said that what the Government sought in a great deal of the legislation which was coming was information. He wanted to get right inside the workings of the companies operating in this field.

Of course, we appreciate that the collection of information by the State cannot help but be a very sensitive area. We seek merely to try to delimit, so far as possible, the area in which the Secretary of State can indulge in information gathering and it is our belief that his powers should not be so widely drawn as they are under parts of this Schedule. What these two Amendments seek to do is to limit the exercise by the Secretary of State of his powers simply to those powers that he requires to implement the country's international obligations. I beg to move.


I have to recommend the Committee to reject both of these Amendments. To take the first Amendment, it would deprive the Government of the power to obtain information in several situations where, without information it would be impossible to make any soundly based decision on when and how to exercise substantive powers in the Bill which noble Lords have already approved.

First, I must mention the permanent power in Clause 4(3) to modify by Order in Council enactments affecting the use of energy. Noble Lords have approved this power, and I am sure they would not wish now to accept an Amendment which would put the Government in the position of being unable to obtain adequate information on the results of the exercise of this power. Secondly, I would point out that if it were ever necessary to exercise the stockholding powers of the Bill, in Clauses 6 and 7, for reasons of domestic policy, then again the Government would only be able to make the best use of their powers in the national interest if they had access to the necessary information.

Finally, I must stress the most remarkable feature of this Amendment. It deprives the Government of any power to obtain information during a domestic energy emergency. I consider that bizarre to say the least. Noble Lords will be aware that many of the measures a Government would need to take during a domestic energy emergency would be the same as those necessary during an emergency arising within the terms of our EEC or IEA obligations. Therefore, as the noble Lords opposite appear to accept the need for information-gathering powers in the latter case, they must logically accept it also in the former.

It is interesting to note that when the last Conservative Administration was faced with a domestic energy emergency, they took information powers as in Section 3 of the Fuel and Electricity (Control) Act 1973. If noble Lords opposite are now able to face with equanimity the prospect of a Government having to deal with a national emergency without any information powers, I can only assume that this is because they have given up all hope of ever forming another Government themselves. I urge the Committee to reject this Amendment, which I consider to be irresponsible.

On the second Amendment which the noble Lord, Lord Strathcona and Mount Royal, took with the first one, I am not entirely sure whether he is simply disagreeing with it on a point of style or whether there is some deeper significance; but no doubt in his reply he will enlighten me as to that. If it is simply a stylistic matter, I think that as it stands it is perfectly adequate. I would ask the Committee to reject that Amendment also; but the noble Lord may have further comments to add on this aspect.


It is rather disappointing to hear the noble Lord, Lord Lovell-Davis, behaving exactly like a Minister of my Party standing exactly where he stood rejecting an Amendment to the Bill to adhere to the European Community when we were trying to make things read properly. It was a question of putting in the word, "that" and a comma; they would not accept it because they were terrified that it would go back to the Commons. The noble Lord is now behaving as badly because he is terrified of sonic changing of words of which he does not know the meaning. The words in the Amendment are a great deal better than: "with a view to the implementation of". It is purely a matter of English.

More important is the substance of the first of these two Amendments. The noble Lord has suggested that in an emergency the Government, are in effect, entitled to whatever information they can get—and that is really his point. Irrespective of international obligations, if you need the information for State security, then go ahead and get it. That is what he is saying. It is an argument which is used by other régimes, by totalitarian régimes, by those who have an itching inclination that way; and it raises a very serious issue of principle.

This has nothing to do with the question of whether a gas is a liquid or whether it is inside oil or what its freezing point is; this is a very serious political issue and one which, I submit, is of interest to all quarters of the Committee and one, I should have thought, of great interest to the democratic Party of noble Lords opposite. The State collection of information has always been a very sensitive matter. When, a few weeks ago, I was "booked" for speeding, the policeman said, "You do not have to say anything." They are required by law to make it clear that one need not make a statement. When, a fortnight later, a policeman turned up at my front door and rang the doorbell with such vigour that I thought he must be the milkman wanting to be paid, I went down and he said, "I have come to find out your age." I replied, "I will tell you." He said: "No; the Strathclyde police want me to see your birth certificate, but you do not have to show it to me." I said, "I should be happy to show it to you; and my marriage certificate, and my children's birth certificates. Give me time to dig them out." He said, "You do not have to show them."

I only mention that to illustrate that the business of the State exacting information from individuals is a very sensitive area and it is one that we should all unite in watching. I am sure that in talking to this Committee and in addressing myself to noble Lords opposite I am talking to those who do not need to be converted. We accept the integrity of their intentions and do not doubt their democratic purposes. So we believe that this is a matter which they will be willing to look at seriously. What is said of individuals must relate also to legal persons and therefore to companies. Even the Inland Revenue has strictly limited powers to examine the books of companies. I do not think that they are sufficiently limited: but be that as it may. The Customs and Excise have wider powers, but still defined.

In this Schedule we have an extraordinary suggestion. It is that the Secretary of State "at his discretion"—which can mean anything. You may talk about how long is a piece of string. "At his discretion" can mean absolutely anything; and in the hands of a bad Government—and I would not suggest that the present one is bad; that would not enter my thoughts for a moment—in the hands of a dishonourable Government, this could be a very dangerous power.


I know that the noble Earl loves the beauty of language. It does not say: "at his discretion"; it says "if he thinks it is expedient". The etymology of "expedient" is completely different from that of "discretion".


I am much obliged. I think it is an even worse piece of language. It still means that he decides. If the Secretary of State thinks it expedient, for what purpose? "…for a purpose connected with…". It does not say, "not essential to". It does not even say "relevant to", which would be different It does not say, "not necessary to" but, "connected with". The string is getting longer and longer with each passage of bad drafting that we come to in this Bill. I am not trying to make fun of noble Lords opposite. They know I would never wish to do that—at any rate for very long. Surely noble Lords could agree to look at this to see whether it cannot be drafted in such a way as to require the information at least to be necessary and that its necessity should not be a matter simply of the Secretary of State's expediency.

Has such a range of information been required in our legislation before? No doubt—and it was implicit in what the noble Lord, Lord Lovell-Davis, said in reply to the Amendment as moved—it will be said that on a previous occasion the Tory Government sought information. I can only say that if they did I did not support them in it. Persons I have met at times—and our faith in the honour of noble Lords opposite is absolute, of course—perhaps evid-minded people, have suggested in the Press and elsewhere that these powers could even be used in some way to extract information which a Government might even find handy in negotiating planning agreements. I am not suggesting that, but it is the kind of suggestion that one has read. These words are surely capable of infinite extension. We are coming near, in these words, to the principle of 1984: All that is not compulsory is forbidden, or, may I put it differently: You clearly have no notion how convenient and what fun, To exercise the powers given in Schedule 2, clause 1, But some reply, 'too far, too fast' and gave a look askance, Said, intending no unkindness, they would not take the chance". I appeal to the Government not to brush this off as something silly. A serious issue is involved here. If the Government say they cannot look at it, then it will make a poor impression outside the House; it will make an appalling impression here; it will not accord at all with their repeated assurances that the Government's purposes are pure and above dispute.


I was delighted to hear the noble Earl, Lord Lauderdale, come to the rescue of those of us who wanted to use the full forces of democracy, especially when he once again recalled the famous occasion on which the Bill to make us a member of the Common Market rolled through this House without even crossing a "t", putting in a comma, a colon, a hyphen or a paraph—not a paragraph: a paraph is a flourish under a signature. I thought the noble Earl was wonderful. He made me shiver with the possibilities of the destruction of democracy. All that is wrong with this is a little tautology; it is tautological. We could not have a more kindly Minister than the noble Lord, Lord Lovell-Davis. He said, "Well, of course, if I think there is no ulterior motive on the part of noble Lords who have been moving this Amendment…" And look who we have: the noble Lord, Lord Strathcona and Mount Royal, the noble Viscount, Lord Long, and the noble Lord, Lord Campbell of Croy. Who could believe that there were ulterior motives with those three? None at all. Having been satisfied that there are no ulterior motives and agreed about the tautology of the three paragraphs, I think my noble friend and the noble Earl ought to accept the beautiful little phrase "in order to implement" instead of the one that we have: "with a view to the implementation of…". You want to look at that through a telescope. I think my noble friend ought to accept that and that would demonstrate to the noble Earl, Lord Lauderdale, and to my noble friend, that we, too, are on the side of the democrats.

6.45 p.m.


It would not demonstrate that the Government side are on the side of the democrats because, as I understood that particular Amendment, it was purely drafting. I think that, subject to anything that may be said by the Government, the words suggested by the Opposition are preferable. It is always better to use fewer words when you can. As I read them, the words "in order to implement" mean precisely the same as 'with a view to the implementa- tion of". If the noble Lord, Lord Lovell-Davis, is suggesting there was nothing more to it than drafting, it might be gracious if he were to say he would accept that Amendment. Regarding the discussion which has taken place on the introductory preamble, the question of the Secretary of State exercising these powers whenever he thinks it expedient, that also is redundant. If the Secretary of State is going to exercise the powers, obviously he must consider it expedient to do so. Although these words occur in many other Statutes, I suggest a simplification would be to start the paragraph by saying: The Secretary of State may exercise the powers of this paragraph… and then continue: for a purpose connected with the operation of this Act… That makes it plain that the Secretary of State has an absolute right to exercise the powers in this paragraph and he does not have to consider it expedient or use discretion, although obviously he would say when exercising the powers that he did so for the kind of reasons outlined by the noble Lord, Lord Lovell-Davis.

That brings me on to a point of substance that I wanted to make. No one is going to argue that the circumstances we listened to from the noble Lord, Lord Lovell-Davis, would justify the provision of the information under this paragraph. For example, regarding the petroleum stocks, one could not possibly implement the provisions of the Bill unless there were the power to collect the information. What I think the Opposition ought to be objecting to is the open-endedness of the provision. If one could in some way restrict it so that the information was only requested where necessary for the purposes of the Bill, then noble Lords who had not voted against any of the clauses would be supporting the noble Lord, Lord Lovell-Davis.

I am not in a position to suggest any Amendment which the Government might be disposed to accept, but if the noble Lord the Minister would consent to take this matter away and think about it before the Report stage, and see whether there was any restriction which could be placed on these powers, while leaving the Secretary of State completely free to exercise them whenever it was necessary for the provisions of the Act to which we have already agreed, that would satisfy some people who fear what could happen if these matters were in the hands of an irresponsible Minister or a Minister motivated simply by the desire to impose further burdens on industry by the collection of unnecessary information. If he could feel able to deal with that fear, noble Lords, who have no suspicion of the present Minister or any of his colleagues, might feel some relief.


I think I should point out to the noble Earl, Lord Lauderdale, that the Amendment we are discussing is not to delete "expedient" but to take out head (a). I must reject the noble Earl's view of our taking these totalitarian powers. We are not talking about totalitarian régimes; we are talking about an energy emergency and the proper use of our energy resources. The noble Earl's words may be all right for a ding-dong political battle, but they are a bit extreme in this context.


Would the noble Lord allow me to interrupt for one moment? What we are trying to get at is that the exercise of these powers should be clearly linked to, and limited by, the obligations arising from the international obligations on us all. I do not want to interrupt the noble Lord again; he has been very courteous and I thank him for giving way to me.


I appreciate that. The fact is that the powers at the discretion of the Secretary of State are limited by the context of the Bill. We are not seeking limitless powers but only those related to the functions of the Secretary of State under the Bill—as the noble Lord, Lord Avebury, emphasised—in the case of "domestic emergency and under our IEA and EEC obligations. Referring to the point raised by my noble friend Lord Davies of Leek, the Bill which seems to have been steam-rollered through here, leading us into the EEC, has led to the need to bring in many of the powers set out in this Bill before us.

The Bill is necessary and is necessarily seeking wide powers. It is intended to deal with emergencies, and one accepts that. However, while I would strongly argue the general principle that the Government must have available adequate information if they are to be able to use their powers wisely, I share the concern which has been expressed, particularly in respect of sub-paragraph (2)(c). I should like to seek to reassure noble Lords to some extent by undertaking to consider whether the principle of this Amendment could be accepted in relation to certain powers contained in this subsection. I am thinking particularly of paragraph 1(2)(c). That power is sought for the purpose of enabling the Government to fulfil their obligations under the IEA. It may be possible to incorporate in the Bill some appropriate restriction on the exercise of the power.

Secondly, I do not think I was behaving very badly in taking a stylistic view of the wording of the second Amendment: after all, I studied English at one of our older universities. I also accept the concern expressed by your Lordships that the power may be interpreted here as being wider than our intention. Therefore, I am willing to accept the Amendment in principle and to look again at the wording of the provision to see whether I can meet the point in substance.


The noble Lord is being most helpful to us. I am not wholly clear where we have arrived, but I believe it to be the point that we hoped to get to so far as the first Amendment is concerned. We agree that the Government need powers to obtain information, but we wanted to invite them to do a little more work and to think a little more carefully about exactly why, when and for what they needed these powers. We are hardworking folk, but decline to do that job for them. The noble Lord has now been good enough to say that he will see whether he cannot tackle the task himself before we come back again. Therefore, in a moment I shall seek to withdraw the first Amendment.

Perhaps it would be convenient, while I am on my feet, if I were to deal with the second Amendment. It is essentially an improvement in the drafting, but there is also a very slight tightening of the sense, if one thinks about it. Indeed, it takes us back to a point made by the noble Earl, Lord Lauderdale, when he objected to the word "connected" in paragraph 1(1)(a). "With a view to" is not quite the same thing as, "in order to". Our Amendment would restrict very slightly further and we think it would also improve the English. It would be wrong of me to pretend that it is a purely drafting Amendment, but I am quite sure it is one that will still be acceptable to the Government, after what I have said. Perhaps I have now said enough, and I beg leave to withdraw Amendment No. 34A.

Amendment, by leave, withdrawn.

6.55 p.m.

Viscount LONG moved Amendment No. 34C: Page 19, line 31, leave out ("in the past") and insert ("at any time in the preceding two years").

The noble Viscount said: In reply to the noble Lord, Lord Davies of Leek, here is the third Peer "with devious ideas"—perhaps not devious, but inquiring about what we can get out of the Government. As my noble friend has already stressed, we are extremely nervous about this Schedule and feel that the powers required by the Secretary of State are extremely frightening, to say the least.

In breaking down the beginning, we now come to the more tricky technical points. The object of this Amendment is to place restrictions on the number of people who can be ordered to divulge information to the Secretary of State. The provisions of the Bill enable the Secretary of State to ask for documents from companies and individuals. The information that has to be supplied extends beyond past practice: I do rot think we have experienced powers of this extent before. For example, adding the words "or its operations" after "relating to the undertakings", as in paragraph 2(2)(b), would seem to extend the sorts of documents whose production could be compulsorily demanded even to include supply contracts. Also, paragraph 2(2)(c) refers to information required about the whereabouts of certain documents. An explanation of them may not be needed, according to the Bill.

Equally, I wonder what individuals will be required to give such information. Who are the individuals who will be ordered to do this? Will they be people long ago retired, who would not remember or will they be executives or managers? If so, if they were elderly, they probably would not be able to help the Secretary of State. But by that same paragraph, past executives of companies could be called on to provide particulars of relevant documents. They could; but would the noble Lord agree that they might not want to do it? How will this be enforced? In the past, officers of the company could be called on as well. The Amendment, therefore, seeks to prevent past executives being asked by the Secretary of State to furnish information about an undertaking which they left many years ago. Only if they have exercised such functions within the past two years should they be required or obliged to provide such information.

I believe this Amendment is reasonable and that it is not fair to ask those who are elderly to be brought back into business in an emergency to help the Secretary of State. In these days, with so many young executives and people of that kind, the Secretary of State should have enough people to be able to cope with what is going on. This is a fairly reasonable Amendment, and I hope that the noble Lord will be able to accept it. I beg to move.


Before the noble Lord replies, may I ask him to deal at the same time with a question which has puzzled me. The paragraph states that the Secretary of State, or a person authorised on his behalf, may demand that a person who has in the past exercised the functions of an executive should provide particulars as to the whereabouts, contents or subject matte' of documents. But a person may be physically or mentally incapable of complying with that demand. He may not know where a document is, or may have forgotten its contents, so he will not be able to comply with the directions. But nowhere in the Schedule can I see any provision regarding the penalties. There are provisions in paragraph 6 covering penalties for failing to comply with other parts of the Schedule, but can the Minister tell the Committee what penalties can be invoked against somebody who is incapable of complying with a request for information, because he retired a long time ago and does not know the answers, or who wilfully refuses to do so?


Purely upon the basis that the noble Viscount, Lord Long, rather gratuitously mentioned my noble friend Lord Davies of Leek, may I just make mention of an earlier comment on a previous Amendment and assure my noble friend Lord Davies that the Road Traffic Acts will apply if he is knocked down by an emergency vehicle.

In the Government's view, the limit of two years imposed in the Amendment is a purely arbitrary figure. Furthermore, as a matter of drafting, the Amendment is not at all clear as to the date from which the two-year period would reckon. The extent to which persons acting on behalf of the Secretary of State would consider it worth while making inquiries of past officers of an undertaking would vary according to the nature and seriousness of the matter under investigation, and also to the nature of the document or documents concerned. Although it seems doubtful that there would be many cases where one would need to inquire of officers whose connection with the undertaking had ceased more than two years previously, nevertheless such an occasion might arise and I believe it would be wrong to tie the hands of the investigators in this arbitrary fashion.

Some serious concern has been expressed about the provisions of this paragraph in the Schedule, and, in particular, two questions have been posed to me by the noble Lord, Lord Avebury, to which I cannot at this moment respond with clarity. I am, therefore, prepared at least to reconsider the wording of this provision to see whether I can go some way to meet some of the points which have been raised.


Before we part with this Amendment, and without mentioning any names—and we have examples all over the world of the new trans-continental companies, and there is another example in the papers tonight of oil companies—information sometimes has to be gathered over a number of years and our difficulty is to get a balance without being vindictive. But I think that if anyone was mentally disturbed common sense would prevail, even with a Labour Government, as with a Conservative Government.

Viscount LONG

I am most grateful to the noble Lord, Lord Kirkhill, for agreeing to reconsider this Amendment. I am also grateful to the noble Lords, Lord Avebury and Lord Davies of Leek, because we need to have more information which is not at present available. I noticed that the noble Lord, Lord Kirkhill, did not answer my question about the penalties.


I have to apologise to your Lordships. I have, of course, been engaged for some hours today and I am not thinking with the utmost clarity. But apologise to the noble Lord, because I fully intended to reply and perhaps he will let me do that now. He asked me exactly that question, and I am advised that similar powers to produce documents are contained in the Fuel and Electricity (Control) Act 1973, by reference to Schedule 1 to the Emergency Laws (Re-enactments and Repeals) Act 1964. Perhaps I may also take this opportunity to reply to the second part of the question of the noble Lord, Lord Avebury, because that would not affect any reconsideration which the Government might give to the clause which we discussed. The offence is in Clause 16(2)(a) which states: without reasonable excuse he…fails to comply with any provision made by this Act", and the penalty is in Clause 17(1), which states that the maximum fine on summary conviction is £400. So there are penalties involved.

Viscount LONG

I am most grateful for that reply. I felt that it was an important point. I can only hope that if those elderly people on their pensions cannot obey the Secretary of State, they will be able to pay the £400 fine. However, I am grateful for the fact that the noble Lord will look again at this paragraph. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.7 p.m.

Lord KIRKHILL moved Amendment No. 36: Page 20, line 5, leave out ("References in this Schedule to premises include") and insert ("The reference in this paragraph to premises includes").

The noble Lord said: Paragraph 3(3) of Schedule 3 provides a definition of the word "premises", the purpose of which is to circumscribe the scope of the powers of access contained in paragraphs 3, 4 and 5(3), and gives effect to the Government's intention that powers of access under this Bill should not extend to premises used only as a dwelling. However, this special definition of "premises" is appropriate only to those parts of Schedule 2 which deal with powers of access, and it is in order to ensure that this is clear on the face of the Bill that I commend this Amendment to your Lordships. The Amendment will avoid the possibility of doubt arising as to the meaning of the word "premises", where it is used in Schedule 2 in a context other than powers of access. I hope to move consequential Amendments to paragraphs 4 and 5(3). I beg to move.

Lord KIRKHILL moved Amendment No. 37:

Page 20, line 42, at end insert— ("(7) References in this paragraph to premises include vehicles and vessels, but not any premises used only as a dwelling.").

The noble Lord said: This Amendment is consequential. I beg to move.

Lord KIRKHILL moved Amendment No. 38: Page 21, line 15, leave out ("(5)") and insert ("(7)").

The noble Lord said: This is the second consequential Amendment. I beg to move.

7.9 p.m.

Lord KIRKHILL moved Amendment No. 38F: Page 21, line 20, leave out ("5 or 6") and insert ("6 or 7").

The noble Lord said: Noble Lords will no doubt have already appreciated that sub-paragraph (1) of paragraph 6 is intended to apply to the stockholding provisions of the Bill—Clauses 6 and 7—and that the reference to "section 5 or 6" is therefore incorrect. This Amendment simply alters that reference so as to give effect to the original intention. I beg to move.

Viscount LONG moved Amendment No. 38A: Page 21, line 21, leave out ("the Secretary of State or").

The noble Viscount said: With the leave of the Committee I will take Amendments Nos. 38A and 38B together. The object of these Amendments is to remove the right of an interested party in a prosecution to institute proceedings or to give his consent to the institution of such proceedings. We have a good argument here. Under the Bill, for example, the Secretary of State gives directions as to the level of stocks to be carried, but he should also be allowed to judge whether such a direction has been complied with and, if he decides otherwise, whether to institute criminal proceedings.

In the heat of the moment it would be possible for any Secretary of State to interpret his powers in a broader fashion than was legally justified. By confining the institution of proceedings to the Director of Public Prosecutions it is intended that the Secretary of State shall be spared the necessity of coming to a legal decision in the circumstances envisaged in this Amendment. Here we are witnessing for the first time the Secretary of State wishing to take over the job of the public prosecutor. It appears to us that this is the way in which it is written into the Bill, and it would not, in our view, be right that the Secretary of State should have the power to demand how he wishes to carry out the emergency laws and how he is going to deal with an order of the public prosecutor. I do not think it would be right for the Secretary of State to go over the head of the public prosecutor, who, after all, knows what he is doing. I shall be very interested to hear the opinion of the noble Lord opposite on this Amendment. I beg to move.


The Committee will appreciate that the stockholding and price control powers in the Bill will be exercised in accordance with the interests of national energy policy. That being so, I hope the Committee will agree that the Secretary of State, as custodian of these interests, must be free to prosecute offences against those provisions whenever he thinks it is necessary to do so. In the case of the stockholding powers, there is also the point that these powers will be exercised so as to fulfil our EEC and IEA obligations. The Government can be certain of their ability to fulfil these obligations only if they are certain of their ability to prosecute any offences against directions given for the purpose of implementing the obligations. Finally, this restriction is quite common. For example, it applies in the case of prosecutions under the Gas Act 1972, which, I need scarcely remind your Lordships, was brought in by the Party opposite. Therefore, I ask the Committee to reject this Amendment.


Although it may be clear from another part of the Schedule, could the noble Lord tell me why this paragraph does not apply to Scotland? I know that the Director of Public Prosecutions does not operate in Scotland. Some people may think that the Scots are much better off for not having a Director of Public Prosecutions, and some may go even further and think that if prosecutions were in the hands of the Secretary of State people might be better off than if they were in the hands of the Director of Public Prosecutions. But if prosecutions in Scotland are to be in the hands of the Procurator Fiscal or the Secretary of State for Scotland, one would expect to see a corresponding provision somewhere in the Schedule. I am sure that it cannot be that the Secretary of State would be the sole authority for sanctioning prosecutions in Scotland, but I should be grateful if the noble Lord could tell me where the corresponding provision is to be found.


As I understand the situation, it is unnecessary to extend the paragraph to Scotland because there is no possibility of private prosecutions under Scots law, all prosecutions being undertaken by the Procurator Fiscal, who is a public official.


I do not want to taunt the noble Lord and he knows that I do not wish to do so, but he has mentioned that this is a question of the Secretary of State exercising his powers in the interests of the State. The reason why we have Parliament is to make sure, if we can, that when they act in the interests of the State, Governments are seen to be doing so and have been exposed to proper Parliamentary scrutiny. That is why we have Parliament. That is why the noble Lord was ennobled and sits in this House, to help to exercise that practice of scrutiny. Whatever may have been done in 1972—and I do not think that there is anything special about 1972—certainly we have every reason now to be more vigilant about freedom in Western Europe than three years ago. Many things have happened in the past three years which are to the detriment of civilisation. There is no need to say that because something was allowed to go through, possibly on the nod, in 1972, therefore we should repeat that in 1976.

The suggestion here is that the Secretary of State may be the judge in his own cause. He is to judge whether a direction has been complied with, but the direction itself will not have been scrutinised by Parliament. So an offence is created, and somebody may be forced to stand trial on something which has never been through the Parliamentary process and is merely the product of the Executive, whose power is always growing and is very rarely diminished, and the offence has simply been created by the Executive without Parliamentary control. The only safeguard—and in view of certain recent events I am by no means sure that it is at all a watertight safeguard—is that the Director of Public Prosecutions should be the judge. One might say that this is a matter of human rights.

I cannot believe that noble Lords, whose hearts are in the right place wherever their heads may be, will not pay serious attention to this point. Whatever was done in 1972 is no justification for what is done in 1976, by whichever Government. One is thinking now of persons being required to stand trial for an offence which has not even been created by Parliament but which has been created by subordinate action of a Secretary of State under the powers given to him by this Bill. Therefore I appeal to the noble Lords opposite. Of course, it is easy for them to answer: What matters is how fast we go, the Minister replied. There is plenty to be said, you know, upon the other side. The fuller powers in England, the less are left to France. Then abate your fears, beloved Peers, and take another chance. I hope we do not take another chance and that noble Lords will respond to a serious appeal.


If I may reply to the Poet Laureate of your Lordships' House, the noble Earl, Lord Lauderdale, first of all I should have thought that giving the Secretary of State these powers increased the power of Parliament, for the Secretary of State is himself answerable to Parliament. The second point I want to make is that the Secretary of State is not judging the case, he is simply bringing the prosecution. Any person who thinks that the Secretary of State is not prosecuting when he should do so can go to the Director of Public Prosecutions who can prosecute himself.

I really cannot accept this Amendment. As I said, it would deprive the Secretary of State of an ability to consent to prosecutions in respect of offences against the stockholding or price control provisions of this Bill. It is important that we should keep those words in the Bill and I hope the noble Viscount will see fit to withdraw his Amendment.

Viscount SIMON

I wonder whether by any chance the noble Lord made a slip: he said that if any private individual thought that the Secretary of State ought to have prosecuted and had not, he could go to the Director of Public Prosecutions and prosecute himself. I thought the object of this clause was to prevent private prosecutions.


I am sorry if I confused the noble Viscount. I did not say it in quite those words. I said that any person who thinks that the Secretary of State is not prosecuting when he should—that private individual can go to the Director of Public Prosecutions, who in turn can prosecute himself, that is, the Director of Public Prosecutions.

Viscount LONG

We do not seem to have got very far on this Amendment. In practice, I think this Amendment would have served as a restraint upon the crusading bureaucrats. I thought we could have got this Amendment agreed to. At least if the Director of Public Prosecutions was solely responsible in such cases, as the Amendment seeks to ensure, one could be certain of an impartial legal examination of the facts of a case before proceedings were instituted. I thought there was a good chance that the Government would agree to this Amendment, but our best situation now would be for me to withdraw the Amendment and look at it before the next stage of the Bill. Therefore, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.23 p.m.

Lord STRATHCONA and MOUNT ROYAL moved Amendment No. 38C: Page 21, line 42, leave out ("or as the case may be") and insert ("and, where applicable").

The noble Lord said: This does not look like a major change and I think it might be useful if I were to read the paragraph as it would be if this Amendment were approved. What we should then have, at the bottom of page 21, paragraph 7, is No information obtained by virtue of this Act shall be disclosed except—

  1. (a) with the consent of the person by whom or on whose behalf the information was given or supplied and, where applicable, the owner of any goods, or the occupier of any premises, to which the information relates".

The object of this Amendment is to ensure that information cannot be disclosed without the knowledge and the consent of the person or persons who supplied it. For example, it would remove the risk of a customer disclosing information without the consent of his supplier. To give a concrete but entirely hypothetical example, supposing that Esso were supplying fuel to BOAC, BOAC might not mind anybody knowing what price had been paid but Esso might mind very much indeed, particularly if they thought that the BNOC was going to get to know as a result of the disclosure of the information. I am not trying to play the game we have been playing so often and criticise BNOC particularly, but I believe it to be a real point and I thought it would be more concrete to give an example of the kind of situation about which we are concerned.

I think it is also worth making the point that disclosure in this context in effect probably means publication, and therefore information could become widely available which one party to a deal would have preferred to keep confidential. Very simply the purpose of this Amendment is to say that it seems right that a person who is asked for information and is responsible for providing it should be entitled to decide, under this clause, whether or not the information should be made public.

The paragraph gives considerable automatic disclosure over a considerable area, and paragraph (a) as it stands appears to us to be a crucial one and not entirely satisfactory. Because, for instance, a customer has access to information—one side of a bargain—he does not automatically have the right to pass that information on to an outside party. Both parties are involved in the deal and we believe that both parties ought to have the right of veto before disclosure takes place. It is quite a simple point; I think it is one the Government may be prepared to accept. We believe it is very important. I beg to move.


The noble Lord, Lord Strathcona and Mount Royal, has set out the effect of his Amendment and I am sure he and his noble friends will be glad to know that the Government accept the principle underlying it as being fair and reasonable, and I shall consider how the drafting of the Bill may be amended to incorporate it.

Lord CAMPBELL of CROY moved Amendment No. 38D:

Page 21, line 45, leave out sub-paragraph (b) and insert: ("(b) in accordance with directions given by the Secretary of State in writing and for the purposes of the exercise of their functions to members of the government department which has obtained possession of the information hereunder;").

The noble Lord said: This Amendment seeks to replace the wording in paragraph (b) at the bottom of page 21 with wording which would restrict the disclosure of information further than as proposed by the Government. In the days when I used to be a civil servant in the Foreign Office (as it then was) there was a principle of what was called "need to know". So far as I know, it probably still operates in the Foreign and Commonwealth Office and no doubt also in the Ministry of Defence. That meant that classified information, which if it were disclosed could be against the national interest, was passed only to officials who needed to know about it.

That was a straightforward principle of security. Of course, it had no reflection upon the integrity of any of the other officials who were not being given the information. It was simply that they did not need to know it. They had other clas- sified information which was connected with their work. When we come to commercially sensitive information that is somewhat different in character, but there could be information which, if disclosed, could cause injury to an individual company because competitors would learn their commercial secrets. In this Amendment we are dealing with the circulation of that kind of information within Government Departments, and I would point out that such information, if it is disclosed, can also be against the national interest where the commercial secret is one connected with a project or with exports where the British company is competing with foreign companies.

The wording in the Bill runs as follows: for the purpose of the exercise of any of its functions, to a government department"— and so on. What we want to be sure of is that the interpretation of the words "for the purpose of the exercise of any of its functions" does not mean that information which is sensitive commercially and which has been given to the Government and made available to the Secretary of State under this Bill would simply then be circulated to officials who were vaguely connected through their work with the operations. One wants to be sure that the restriction is to officials who really do need to know. It is difficult for someone who is not near to the action to identify what seems to be an ordinary item of information as being highly confidential. Indeed, the further away that an official is from the action, the less likely he is to know that what looks like an ordinary bit of information which has come his way is in fact highly sensitive, and if spoken about to someone, or mentioned to the Press, could be very damaging to some company.

Therefore, we seek an assurance that information which is disclosed under this Bill by a company, and which is confidential and which the company indicates is confidential, is restricted in its circulation to those officials who need to know about it because of their work. I am not wedded to the wording of this Amendment. I am seeking to point out that the wording of the Bill as the Government have drafted it does not give the kind of assurance I am seeking.


Subparagraph (b) of paragraph 7 of Schedule 2, which this Amendment seeks to strike out, would enable information obtained by virtue of this Bill to be disclosed to other Government Departments for the purpose of the exercise of any of its functions, as I think has already been said by the noble Lord, Lord Campbell of Croy. This Amendment not only prohibits disclosure outside the Department that obtained possession of the information; it also severely restricts the movement of information within the Department.

On the first point, I hardly need emphasise that, with the increasing interplay nowadays between Government Departments, it is vital that information gathered under the powers contained in the Bill should be available to other Departments for the proper exercise of their functions. This is by no means a novel power. Precedents can be found in the Counter-Inflation Act 1973, the Prices Act 1974 and the Industry Act 1975. Collecting information on such a complex subject as oil is a highly specialised process, and it seems to me that one ought to have the power to disclose that information to other Government Departments. The role of Government is indivisible. Issues of general policy often concern several Departments, and it is important that they consider these issues on a basis of agreed fact. This is in the best interests of the oil companies as well as Government, I should have thought. I recognise that the information submitted by the companies has to be interpreted in the light of the context in which it is sought. I can assure the noble Lord, Lord Campbell of Croy, that we recognise also that there must be safeguards (which we have inserted in the Bill) ensuring that the information is passed to them for the exercise of any of their functions.

On the second point, I must point out that it would be quite unprecedented for a Secretary of State to be impeded in the way he runs his Department. This would be the effect of this Amendment. Disclosure of information, as the noble Lord, Lord Campbell of Croy, has pointed out, is treated in any case on a "need to know" basis, and it would not be circulated more widely than was necessary for the proper exercise of the functions of the Department. For the reasons I have explained I am unable to reject the Amendment, and I would ask the noble Lord, therefore, if he would withdraw it.


I think it was a slip of the tongue when the noble Lord, Lord Lovell-Davis, said he was unable to reject the Amendment. For a moment, I thought I was going to have another success today, having been successful in two of the main matters which I raised in the previous Bill which we were discussing before the Energy Bill. But I recognise from what the noble Lord said that the wording of my Amendment is not one which would commend itself to the Government. I made it clear I was making a point rather than pressing the particular wording on the noble Lord.

I was glad the noble Lord acknowledged the "need to know" principle, because that is essential in all this. That is his interpretation of the wording which I read which is already in the Bill, and I can only re-emphasise that if there are commercial secrets of large British companies, it is exceedingly important that they should he protected. There is a very good system—and I paid tribute to this both on the Industry Bill and on the Employment Protection Bill last year—whereby when information is given to the Government in strict confidence, it is kept and not revealed; it is handled carefully. We want to make sure that highly confidential information, or other information which could be damaging if it were disclosed and made public, is protected. Upon what the noble Lord has said, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord STRATHCONA and MOUNT ROYAL moved Amendment No. 38E: Page 22, line 4, at end insert ("Provided that before arranging for the transmission of any such information the Secretary of State shall satisfy himself that the said institution or the said agency has taken all necessary steps to ensure that the said information will be kept confidential by those persons to whom the said information may be made available;").

The noble Lord said: Here again, we are trying to safeguard the provision of information, and in this case I think it might be said that the purpose of this Amendment is to formalise the understanding which most people would consider already existed. The basic object is to make it necessary for the Secretary of State to satisfy himself that any information which he supplied under international treaty will be treated as confidential, as stated by the treaty.

We are here addressing ourselves to the use to which information may be put, and to the extent to which its confidentiality is recognised and respected. Here again, it would be very damaging to commercial organisations if pricing information were disclosed. At the beginning of our discussions on this Bill, I think we generally agreed that there was a difficulty in establishing true costs when you have a complex product like crude oil, which can be broken down into a great many products. The commercial organisations are very unanxious that their competitors should get to know the way in which they allocate the costs. This is one example of the kind of information involved, and when one bears in mind the scale with which we are dealing it is evident that this could be very damaging. I think that has been recognised in the International Energy Agency. The International Energy Agreement, Article 30, has a safeguard written into it which says: The standing group on the oil market shall work out procedures to ensure the confidentiality of the information transmitted to the IEA". Again, under Article 35 there is an identical obligation on the standing group on energy questions.

This Amendment would make the Secretary of State satisfy himself that the standing groups have indeed worked out "satisfactory procedures" to safeguard this confidential information. If the Secretary of State was not satisfied about these procedures, then he would not be justified, if the Amendment were carried, in disclosing the information under paragraph 7(c) of the Schedule.

As we have just been arguing in the last Amendment, in this country there are recognised procedures among civil servants to respect confidentiality. We may regret that perhaps these procedures have been put under unnecessary strain, but this is the old argument we had about the Civil Service directors on the British National Oil Corporation. I think we on this side of the Committee would continue to think that this is a case where we must keep up eternal vigilance. This is what we have been doing this evening, to some extent, and our efforts have been appreciated by the Government, which I may say is appreciated by us on this side of the Committee.

What we are saying here is that the onus is placed upon the Secretary of State to satisfy himself that the person to whom the information is disclosed is a proper person to receive it and that that person will not act irresponsibly or incompetently in disclosing it to anybody else. The Amendment would necessitate the Secretary of State satisfying himself that the International Energy Agreement similarly protected, as indeed it is required to do, the confidentiality of information which was supplied to it. I beg to move our last Amendment, Amendment No. 38E.


The United Kingdom as a Member of the EEC and as a participant in the IEP Agreement naturally has a voice in how those organisations should be run and—to answer the points brought up first by the noble Lord—we regard it as a duty to draw attention to any point of administration that it considers unsatisfactory. This includes any arrangements affecting the safeguarding of confidential information transmitted to any of these bodies by Member States. Both organisations, the EEC and the IEA, already have security arrangements which we have had the opportunity to comment on. In particular IEA has recently instituted a full examination of all its security procedures, including the handling of sensitive information, as the noble Lord said. We are satisfied in both cases that these organisations are fully capable of maintaining a high standard of control over classified or commercially confidential material. The Department will, of course, continue to ensure that any such information which is commercially confidential or otherwise classified is clearly marked to that effect so that the institution concerned is in no doubt as to the way in which it ought to handle the information. I hope, therefore, that your Lordships will agree that this Amendment is unnecessary.

Perhaps I may add that in practice it would be quite impracticable for the Secretary of State or his officials to satisfy themselves as to the particular arrangements for securing a piece of information before passing on that information. Moreover, it is impossible for any organisation to ensure that the information is kept confidential. All they can do is to take steps to minimise the risk of disclosure. Thus it would not in any circumstances be possible for the Secretary of State or his officials to satisfy themselves completely that the necessary steps to ensure the security of the information had been taken.

Finally, since the noble Lord raised the matter of BNOC, I should like once again to confirm that ample assurances were given by the Government, both in this House and in another place, during the passage of the Petroleum and Submarine Pipe-lines Act. So far as the two civil servant members of BNOC are concerned, they are in any case, as your Lordships know, bound by the Official Secrets Act, and they can be relied upon to act in accordance with the high standards of the public service. Having said that, I think there is little more I can add except that I would ask the noble Lord to withdraw the Amendment.


I am a little disappointed that the noble Lord is not even prepared to admit that there is a case to answer. Indeed to some extent it seemed to me he was conceding what we are saying. He started off by talking about being fully satisfied and then went on to say that it was impracticable to be completely satisfied, which is a rather strange contradictory situation to be in. It seems to me that, if the Secretary of State is fully satisfied, he ought to be prepared to take the responsibility that we are asking him to accept under this Amendment.


I should like to clarify one point. I do not want to give the noble Lord the idea that I made a contradictory case here. It is not so much that the Standing Groups of the IEA should establish proper safeguarding procedures, but for the International Energy Agency secretariat itself. The Standing Group members are all Government representatives, so that one is dealing here with 18 different national authorities. The Secretary of State cannot ever be completely satisfied with arrangements under the control of all these nations, although, as I have said, we have ensured to the extent possible that the IEA adequately safeguards confidential material. What I am saying is that we have done as much as one could possibly do to ensure confidentiality. One can only go that far. One cannot make arrangements which are absolutely foolproof. That is all I was saying. I do not think there is a contradiction in that.


Before the noble Lord, Lord Strathcona, goes on, perhaps I may intervene. This paragraph says: No information obtained by virtue of this Act shall be disclosed except"— and then I go on to sub-paragraph (d) …in the form of statistic or otherwise, so that it cannot readily be recognised as relating to any particular person or undertaking". I wonder whether the noble Lord, Lord Strathcona and Mount Royal, would agree that that is going part of the way towards meeting a very difficult problem. I met this personally when, at the height of the Cold War, we had an organisation in Paris that dealt with East/West trade. British business people were giving highly sensitive commercial and other information to the institution, and it was alleged—I must be careful; I must not name countries—that countries X and Y would see this information and then make contracts to the Eastern world which were below contracts that people in the Western world were making, trying to gain trade with non-strategic material. Sometimes that commercial information can be devastating. I see the point completely, but I do not know how anything more can be done apart from what the noble Lord, Lord Lovell-Davis, has said. He said: …"in the form of statistics or otherwise, so that it cannot readily be recognised as relating to any particular person or undertaking". I am sympathetic, and at least I have stood up to show my sympathy.


I am very grateful to the noble Lord. Of course, paragraphs like that are reassuring. We would be the first to accept that it is a very difficult job to tighten this sufficiently without making it impossible. May I end by saying this: Does not this underline the unease which has run through the whole of our approach to this Schedule? The noble Lord is really saying, "We do our best, but we cannot absolutely guarantee that our procedures are watertight". Does not this underline the whole danger of extracting an iota more of information, and letting it circulate in slightly more dangerous circumstances than is really absolutely necessary? I am, therefore, going back in a general way and justifying the pressure we have been putting on the Government to limit the degree to which they extract information and then put it in this dangerous pool where there is an admitted possibility of a leak. I am grateful to the noble Lord for going along with us as far as he has. We will read carefully what he has said, and we hope it will not be necessary to return to this point. But there might still be some way of tightening up the drafting of the Bill. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Schedule 2, as amended, agreed to.

Schedule 3 [Community obligations of which breach is punishable under this Act]:

7.50 p.m.

Lord LOVELL-DAVIS moved Amendment No. 40: Page 23, line 4, leave out ("order of the Secretary of State") and insert ("Order in Council or regulations").

The noble Lord said: This is a purely drafting Amendment which corrects the reference to Section 2(2) of the European Communities Act 1972. It is proposed that the EEC Council regulations under which directly applicable Community obligations arise listed in Schedule 3 should be added to from time to time by exercise of the powers to legislate conferred by Section 2(2) of the European Communities Act 1972. Section 2(2) of the Act of 1972 provides for legislation by Order in Council or by regulations made by a Minister of the Crown or Government Department designated by Order in Council. The reference to orders of the Secretary of State under Section 2(2) of the Act of 1972 is incorrect and the Amendment merely rectifies this. I beg to move.

Schedule 3, as amended, agreed to.

Schedule 4 [Repeals and Savings]:

Lord LOVELL-DAVIS had given Notice of his intention to move Amendment No. 41: Page 23, line 41, leave out from ("and") to end of line 4 on page 24 and insert ("of those orders—

  1. (a) the ones made under section 2 of that Act are to be treated for the purposes of this Act as if they had been made under section 1(1) or (as the case may be) section 1(2) of this Act, and references in this Act to powers and orders under it, and similar references, are to be construed accordingly where the context permits;
  2. (b) the Order in Council under section 4(3) of that Act is to be treated for those purposes as if it had been made under section 4(3) of this Act; and
  3. (c) without prejudice to the foregoing, the orders made under section 2 of the 1973 Act and the Order in Council under section 4(3) of that Act may be varied or revoked under section 15(2) of this Act.")

The noble Lord said: In view of the Opposition Amendment to Clause 3(2) carried on the first day of the Committee stage I am advised that it is inexpedient to move this Amendment for the time being, but the Government will consider what further Amendments need to be put down.

Schedule 4 agreed to.

7.53 p.m.


May I say that I am grateful to noble Lords whose contributions have made this Committee such an interesting, though perhaps rather exhausting, task for several of us. I am especially grateful for the helpful interventions in the Government's interest from my noble friends Lord Wynne-Jones and Lord Davies of Leek, and also from the noble Lord, Lord Avebury. I should like particularly to express my thanks to my noble friend Lord Kirkhill, who has unavoidably had to leave your Lordships' House. He has taken much of the burden during our sessions.

It is clear that despite some huffings and puffings on the other side this Bill commands major support in the House, I have undertaken to look at the possibility of a few minor improvements in several clauses, and we have lost two Divisions on important parts of the Bill. My right honourable friends in another place and the Government will consider how to react to the situation. We may need to put to noble Lords some new proposals at the Report stage; others may need to be dealt with in another place.

I shall be writing to several noble Lords to add to information given during the Committee stage, and in particular to the noble Lord, Lord Strathcona and Mount Royal, on Amendment No. 20C to Clause 8, and to the noble Lord, Lord Lucas of Chilworth, on electrically propelled vehicles. We have given a number of assurances about the Bill which noble Lords opposite have said they will accept. We have tried so far as possible to be helpful to the Committee. Our aim has been reasonableness, and it will continue to be so. Since we came into Office we have used with discretion the sweeping powers we have had in the Fuel and Electricity (Control) Act 1973. Once again I would wish to thank those noble Lords who have made useful contributions to the Committee stage of the Bill, and we shall return to these matters after the Easter Recess.


I must reciprocate by thanking the noble Lord for that charming little winding-up speech. Indeed, I believe at one point today I forgot to move an Amendment which he was prepared to accept, and we shall see which of us moves it later on. He seems to have found an admirable formula, which we shall hope to pursue a little later, whereby Amendments which we think are of great importance he regards as minor Amendments, and I hope that we can carry on in that happy spirit and achieve a number of other improvements at the Report stage.

House resumed: Bill reported with the Amendments.