Utilities Bill

HL Deb 13 June 2000 vol 613 cc1609-30

8.38 p.m.

House again in Committee.

Clause 11 [Health and safety in relation to gas]:

Baroness Buscombe moved Amendment No. 64: Page 8, line 33. at end insert— ("(4) It shall also he the duty of the Authority—

1. (a) in conjunction with the Health and Safety Executive, to prepare, and from time to time revise, a document setting out such means as may, with the approval of the Health and Safety Commission, be agreed between the Authority and that Executive for securing co-operation and the exchange of information between them: and
2. (b) without prejudice to the effect or operation of any relevant statutory provisions (within the meaning of Part I of the Health and Safety at Work etc. Act 1974) to exercise the functions assigned to him by or under this Part in accordance with any agreement contained in that document.

(5) As soon as practicable after agreement is reached for the purposes of—

1. (a) the preparation of a document in accordance with subsection (4) above, or
2. (b) any revision of a document prepared in accordance with that subsection,

the Director shall send a copy of the document or, as the case may be, of the revised version of it to the Secretary of State, and the Secretary of State shall lay the copy before each House of Parliament.").

The noble Baroness said: We believe that to some extent the Bill creates confusion in respect of gas safety and quality. Therefore, we have brought forward a probing amendment to consider that point.

As we read it, the Health and Safety Executive retains regulatory authority in respect of the operational safety aspects of gas transportation. Therefore, we believe that, in addition, adequate mechanisms should be in place between the Health and Safety Executive and the gas and electricity markets authority where issues of gas safety are concerned.

At present, the Health and Safety Executive and the authority are required to have a memorandum of understanding. However, under Clause 11 that would be removed and replaced by a duty on the authority to consult the Health and Safety Commission rather than the Health and Safety Executive. The effect will be to weaken the link between the authority and the Health and Safety Executive. No explanation appears to have been given for this change.

We believe that we need adequate mechanisms in place to ensure clarity as to which organisation is responsible for an issue involving both safety and non-safety issues. Gas quality is a good example. At the moment, the gas safety management regulations enforced by the Health and Safety Executive already contain gas purity requirements for the delivery of gas into the Transco system. They also refer to gas pressure. Clause 100 proposes that GEMA should have responsibility for gas quality where safety is not an issue.

We believe that we must avoid a situation in which one regulator approves an arrangement which another would not. For example, on the emergency cooperation procedures between gas transporters, Ofgem is proposing in the gas transporters' licence that it should approve the emergency co-operation procedures between gas transporters. This is in addition to the role of the Health and Safety Executive in accepting the safety cases of gas transporters and the network emergency co-ordinator, Transco, without which gas transporters cannot operate.

During the Bill's passage through the Commons, in Standing Committee the Minister at the Department of Trade and Industry, Dr Kim Howells, suggested that, various provisions—existing and future—", would deal with, co-ordination and consistency between GEMA and the Health and Safety Commission over the regulation of, respectively, the non-safety and safety aspects of gas quality". For safety and operational reasons, the section from the Gas Act 1995 requiring the regulator to have a memorandum of understanding with the Health and Safety Executive should, we believe, be retained. This is preferable to simply requiring consultation with GEMA, and requiring GEMA to consult the Health and Safety Commission. I beg to move.

Lord Ezra

I support the amendment proposed by the noble Baroness, Lady Buscombe. On an earlier amendment I referred to my concern that safety had been relegated to an inferior position in the Bill. I believe that at least we should clarify the relations between the Health and Safety Executive and the authority. The amendment would bring that about. I am also concerned that such an obligation existed under previous gas legislation, but has been removed. I should have thought that it ought to be included in the Bill. I agree with the other proposals made by the noble Baroness.

Lord McIntosh of Haringey

I thought that I understood the amendment, but I am now slightly puzzled. I do not understand the thrust of the noble Baroness's point about the Health and Safety Commission and the Health and Safety Executive. The Health and Safety Commission is a separate body from the executive, but it can issue directions to the executive. Therefore, an agreement between the authority, GEMA, and the Health and Safety Commission has to all intents and purposes the same effect as an agreement between GEMA and the Health and Safety Executive.

Our objective in the Bill has been to align and update the often differing provisions of the Gas and Electricity Acts. That is why I am slightly puzzled by an amendment which refers only to gas. We are trying to ensure that the provisions are the same for gas and electricity. I appreciate that health and safety issues are different as regards gas. I realise that gas mains can blow up and that gas can be wrongly connected. Personally, as the most incompetent DIY-er in the business, I have more frequently been almost electrocuted by my own incompetence than I have been close to being blown up by gas.

Clauses 11 and 15 are supposed to bring the regime on safety into line as regards electricity and gas. The existing duties of the gas and electricity regulators in respect of safety are different and in many ways cumbersome. In the case of electricity, it has been said that the existing duty is very hard to interpret. In the case of gas, the duty imposes some bureaucratic procedures which are hard to justify. Yet the amendment reimposes those duties for gas but not for electricity.

We decided that the best way to tackle the issue is to impose a simple duty on the authority to consult the Health and Safety Commission, which is the policy-making body on health and safety, whenever a health and safety issue arises—and not only to consult, but to take proper notice of what the commission says. That reflects the reality of the position. The authority is an economic regulator without any direct responsibility for health and safety issues. However, the decisions it makes can have consequences for health and safety, and it is only right that in those circumstances it should take the advice of those who are expert in that field and who are charged with giving advice to all of government on those issues; that is, the Health and Safety Commission.

The amendment would reinstate in the Bill subsections (3) and (4) of Section 4A of the Gas Act which lay down a particular mechanism for ensuring that the authority and the executive should draw up a document setting out how they would exercise their separate functions. As it happens, there is no corresponding provision in the Electricity Act and the amendment would not introduce one. Therefore, if the amendment were accepted, there would once again be a difference which would be hard to justify between gas and electricity regulation.

Let me be clear about the position. I have no difficulty with the proposition that the authority and the commission should draw up a document of the kind that is envisaged in the amendment and I expect that as responsible public bodies they will do so; nor do I expect it to be a private document. I would expect, for example, copies to be placed in the Libraries of both Houses. But given an explicit duty in the Bill to consult the commission wherever a safety issue arises, it seems to us that the detailed procedure set out in the amendment is unnecessary and over-bureaucratic. I am sure that the Opposition would not want to be tarred with the brush of being over-bureaucratic.

Perhaps I may respond to the detailed points that the noble Baroness made. The gas transporter licence condition, which we shall discuss next week, will ensure a smooth transition, moving from the geographic exclusivity of licensed areas to competitive overlapping areas. At present, each area has only one transporter. Clause 75 changes that, and we shall deal with it when we reach those amendments.

8.45 p.m.

Baroness Buscombe

I thank the Minister for that explanation. As I said at the outset, there is confusion, or lack of clarity, on the part of those in the gas industries. They were looking for support as regards the meaning of Clause 11 in practice. We shall read with interest what the Minister said and I hope that those in the gas industries who have been concerned about the provision feel that the point has been clarified. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clause 15 agreed to.

Clause 12 agreed to.

Clause 16 agreed to.

Clause 17[Preliminary]:

Lord Ezra

moved Amendment No. 65: Page 12, line 36, after ("systems") insert ("including the efficient use of gas and electricity by consumers"). The noble Lord said: This amendment is a simple one. It is intended to demonstrate that the interest of consumers, as referred to in Clause 17, includes the efficient use of gas and electricity by consumers, not only in relation to the gas conveyed through pipes or electricity conveyed by distribution systems, but in the actual use made of those two fuels. It is important in that, once again, it underlines the need to achieve the greatest efficiency in use. I hope that this simple amendment will be accepted by the Government. I beg to move.

Baroness Buscombe

We have considerable sympathy with this amendment. However, the view on these Benches is that should the amendment be introduced, it should be introduced as a new substantive part of the Bill as, including the efficient use of gas and electricity by consumers", in a sense, is a new concept. We feel that it does not make sense to tack it onto the Bill as drafted. Therefore, if at all, it should be brought forward as a substantive amendment.

Lord McIntosh of Haringey

The noble Lord, Lord Ezra, has moved this amendment in straightforward terms for which I thank him. He has pointed out that our definition of the interests of consumers is broad, as it is. Will he be satisfied if I give him the assurance that it is broad enough to allow the consumer council to take an interest in energy efficiency issues?

Lord Ezra

That would satisfy me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

Clause 18 [Acquisition and review of information]:

Baroness Gardner of Parkes

moved Amendment No. 66: Page 13, line 15, leave out ("may") and insert ("shall"). The noble Baroness said: I am sure that Members of the Committee on seeing the words "may" and "shall" will think, "Not again". In the years that I have been here we have argued about those words so many times. The discussion can be quite irritating, so I do not intend to go into the detail of those two words. The important matter is the principle.

In 1986 I took an active part in what became the Gas Act. We sat all night during proceedings on the Bill and my noble friend Lord Belstead was very understanding and listened to everything that was said. As a result, he included in Schedule 3, the words, For the purpose of ensuring that there are persons available in particular localities to assist the Council in the performance in those localities of its functions under this Act". And so it goes on. Before the noble Lord looks it up, I admit that the word "may" is used there. At least the importance of local people to deal with local problems is quite clearly set out in the schedule. I consider that to be the real essential in this issue.

Many years ago, as a young councillor, I was on the local gas consumer council. People brought to us problems only after they had tried to deal with them in every other way. It was essential for them to know that there was someone nearby to consult. The suggestion of amalgamating gas and electricity is logical and shows how far our utilities have come—it is marvellous—and whatever I say about electricity consumer councils the same applies to the gas consumer councils. Nevertheless, it is important that people should have a place within reach to which they can turn. For there to be an obligation for such a facility in Scotland and Wales but for the provision of a similar facility in England to be only permissive is not good enough.

It is important for customers to have immediate personal contact and immediate response to local problems, whether it is storm damage or a dishonest salesman. People should be able to obtain answers to such problems quickly, although I appreciate that at the moment there are 24 such offices and there is room for some rationalisation. Why should Scotland and Wales enjoy the advantages of more regional committees and yet the English regions are not assured of the equivalent?

I notice that in correspondence with the Minister there has been a bit of conflict. He apparently said that those appointed were all just good boys and in his letter to the Electricity Consumers' Committee he has gone on to say that he, did not intend to denigrate in any way the most valuable efforts of volunteers up and down the country". I notice that at the bottom he gives his constituency address, which is in Wales. I believe Mid Glamorgan is in Wales. Therefore, his own area will certainly have a more local service. I speak for English people who would like an equally local service. It does not seem fair that Cardiff should be the place for consumers in Devon and Cornwall. I do not believe that people will be happy with that, and I believe that the Government, if they stop to think carefully, will also realise that there is a need for a more local solution.

A simple council, for example based in London, cannot reasonably be expected to be aware of the sensitive needs of the regions of England. Many people say that no one in London appreciates anything north of—

Noble Lords

Watford!

Baroness Gardner of Parkes

Watford, yes. How can anyone north of Watford he happy to be represented by someone in London? This is an important matter. To do justice to the English dimension there should definitely be a commitment on the part of the Government, not just to make it possible for the English authority to do this, but to ensure that, there is local and regional representation. I beg to move.

Lord Ezra

I support Amendment No. 66 in the name of the noble Baroness, Lady Gardner or Parkes and my own amendment, Amendment No. 67, complements it. The noble Baroness makes a valid point that over the years the consumer councils have drawn on local representation so that local issues can be dealt with by people who are familiar with the locality. While the large number of local councils, both in gas and electricity, should properly be rationalised and brought together, none the less there is a need for a continued local representation and for lay members, quite apart from the officials on such local bodies.

I have discussed this matter with those involved in setting up the new consumer councils and they accept the principle that it is desirable that they should have local representation. Such representation must not be overdone, but in the interests of getting a proper consumer service going they would support this principle, as I hope the Government will.

Lord Elton

When I became drawn into the discussions on the way in which consumers should be represented in the new arrangements, I was surprised by the temperature at which they were conducted. I believe that my noble friend quoted Dr Howells, saying that he intended no aspersions. Can the Minister confirm that in the Standing Committee in another place, the Minister referred to the members of these consumer councils as failed Conservatives, failed Liberals or retired people? That is not the way in which to set out on a consultation exercise.

I wonder whether Mrs Ann Robinson has managed to reduce the temperature and whether she has handled this in such a way as to restore the confidence of the chairmen of the consumer councils, who have said in a letter that they oppose this megalithic arrangement covering the whole of the United Kingdom for an industry which, in spite of takeovers and mergers, remains, unlike the gas industry, broken up and local.

On the record of the consumer councils, I commend to the noble Lord a breakdown of the backgrounds of the members of the consumer councils who are not failed anything. Rarely are they political in their outlook and if they are retired, a House of our generation should not look on that as a disqualification of any sort.

I hope that the noble Lord will come forward with some emollient words and restore the idea of the importance of local concerns in national industries. Otherwise, we draw one step nearer to the corporate state, which we all dread.

9 p.m.

Baroness Sharp of Guildford

I rise to support Amendment No. 66, moved by the noble Baroness, Lady Gardner of Parkes, supported by my noble friend Lord Ezra, together with Amendment No. 67.

The noble Lord, Lord Elton, is absolutely correct. Gas and electricity are national industries, both being delivered to our doors through wires or pipes. But they are fragmented at the local level. Therefore, we need a body that we can approach feeling that it has some understanding of the issues at the local level. I support very much what the noble Baroness said about needing some form of local body and local representation.

The noble Baroness asked "Why Wales and Scotland, and not England?" The answer is that unless the Government are sensitive to the need for local representation and a local voice on quite a number of these issues, we shall see further devolution.

Baroness Buscombe

As we heard from my noble friend Lady Gardner of Parkes, the amendments would require a regional committee or committees of the council to be established in England and would oblige the council to take account of local diversity in setting up committees. It is a very positive approach. However, I fear that the first part in relation to regions reflects a response to a disquieting drive for regionalism, a move that the Opposition do not support.

We have considerable sympathy with the call of my noble friend and the noble Lord, Lord Ezra, for accountability at the local level, for a local service. We need a central service to manage the process. However, local representation, responding to local issues, would be a welcome addition.

Lord Hardy of Wath

I cannot refrain from speaking, extremely briefly, since the noble Baroness, Lady Gardner of Parkes, referred to the position today, which was certainly not adopted in the 1980s. I recall taking a very active part in the gas privatisation deliberations. On this issue I referred to the experience of my wife, as a member of the East Midlands Gas Consumers' Council, which did some very good work at very little cost. It certainly did not embarrass British Gas, which was storming ahead as a most successful enterprise at that time.

The then government decided to have no truck with the idea that the noble Baroness has suggested. They wanted a national organisation. Indeed, without very much thought they proposed that it should be called the "gas users' council". I recall pointing out in Standing Committee that that would lead to its being known as "GUC", which did not sound terribly nice. I proposed that instead it should be called the "gas users national organisation". The Minister seemed about to accept that suggestion—the only suggestion that the government were prepared to accept—until I prematurely pointed out that it would become known as "guano".

However, I share the view that the noble Baroness puts forward now. I wish that the party opposite had taken the same approach a decade or more ago.

Lord McIntosh of Haringey

I suppose that in the light of these avowals I had better declare a past interest as well, indirectly, in that my wife was chairman of the National Gas Consumers' Council for a number of years from 1977 onwards. At that time, as my noble friend Lord Hardy rightly says, that council had regional gas consumers' councils, consisting of lay members as well as officials.

It is certainly true that, as a number of noble Lords have said, there is what my brief describes as "a lively argument" going on in the field—I think that the truth of the matter is that a hell of a row is going on—between those who believe that the interests of consumers are best championed by a council made up primarily of full-time professional staff and those who see a valuable role for committees of lay members.

Let me set out the general approach that we have taken to the organisational and regional issues concerning the council. Our approach has been to give the council a clear set of statutory functions but then to ensure that it has the flexibility and powers to organise itself in a way suited to delivering those outputs, outputs for which it will, after all, be accountable. It is more important for the Bill to get the council's functions right than to prescribe in detail how they are to be delivered. Organisational structures may well need to change over time, and the Bill must be capable of coping with change. We have pared down the statutory organisational requirements to the minimum.

I recognise that the treatment of England as regards regional committees is different from that of Scotland and Wales. The difference reflects the fact of devolution and reflects representations from Scottish and Welsh interests. That is the explanation for subsection (2)(a). However, the difference is more apparent than real. Although the council is required to establish at least one committee in respect of Scotland and Wales, it is not obliged to establish committees in respect of areas within those countries, although it may do so. In the same way, the council may establish committees in respect of areas within England, although it is not obliged to do so.

It would be misleading to argue that the Bill ignores the English or any other regional dimension. The clause gives the council an explicit regional function. The council must serve consumers in the "different areas of Great Britain". As I have mentioned, it has powers to set up committees for England to assist it in this task. The clause also requires the council to maintain at least one office in England.

In fact, there will be more than one office for the regions of England. A final announcement about the council's structure is expected shortly. These offices will need to develop an expertise in consumers' issues and concerns in the geographical areas for which they are responsible.

Certainly, the council will want to reassure itself that it is receiving the advice it needs to supplement the work of its full-time staff in its regional offices. There are, of course, different ways of obtaining this advice. Committees are one route, and a potentially very valuable one. The regional offices would be capable of supporting regional committees. Indeed, I understand that Ann Robinson will now be developing proposals for regional committees or panels. But I do not think that the Bill needs to be prescriptive about how it obtains the advice it needs.

Before part-time committees are established, decisions have to be taken about how many there should be and how they can best be deployed in a way which complements rather than overlaps the work of the full-time consumer specialists in the council's regional office. The links between the committees and the work of other organisations, such as the trading standards offices and citizens advice bureaux also needs to be considered.

We believe that these are not matters for legislation. They are managerial decisions for the council. The council will be best placed to decide what arrangements would best serve the consumer and deliver the outputs in the most cost-effective manner. That sort of detail, frankly, does not belong in a Bill. It is enough that the council can do what is necessary.

I assure the Committee that the existing Gas Act, which established the Gas Consumers' Council, does not prescribe a requirement for regional committees. The Gas Consumers' Council itself established regional panels. I do not think we need be afraid that if regional committees will serve a useful purpose in helping the council, the council will not establish them.

The amendment of the noble Lord, Lord Ezra, refers to the issue of local diversity and probes the extent to which regional committees will be deployed. We must recognise the role of the council's regional offices. They are quite distinct from committees. The regional offices will be made up of full-time professional staff. They will always be the main mechanism for delivering the council's services to consumers in the region. They will be charged with developing an expertise and familiarity with the problems and needs of consumers in their areas.

Whether or not there are committees, these people will need to have contact with local communities directly through the local media, face to face at citizen's advice bureaux or through surgeries. They will have to do outreach work in places like shopping centres and they will have to share events with other local bodies. They will develop links and networks with professional bodies working and delivering services at the local level, bodies such as the trading standards offices, trade and commerce organisations, charities and other caring agencies.

This is an innovative and credible programme for the regional offices and it can make a real impact with consumers. Perhaps that is more important than the issue, which has still to be resolved, of whether there should be separate committees of lay people. I am not against committees of lay people. I have made it clear that we have experience of them and other Members of the Committee will have experience of them also. But I urge the Committee not to be too prescriptive as to the way that the consumer council will operate, but to leave it to the council to work out its own destiny.

Lord Ezra

The noble Lord has given us a very reasoned reply. Of course these are matters on which the council must come forward with its proposals. The noble Lord says that these are purely managerial problems, but they have excited a good deal of interest, as the noble Lord, Lord Elton pointed out. Can the noble Lord tell us whether the organisational proposals of the council are likely to be made public before we conclude our consideration of the Bill?

Lord McIntosh of Haringey

I do not know. I know that Ann Robinson is working hard on them at the moment. I shall write to all noble Lords who have taken part in the debate if I have any news to give.

Lord Elton

The noble Lord, Lord Ezra, has asked a material question and one that needs to be answered before Report stage if my noble friend Lady Gardner is to be in a position to decide what to do at later stages of the Bill. It would be helpful to hear that.

I was a little worried by the noble Lord's approach to this problem. He said that it was a managerial question. To my mind, management is on the side of the producer. I think that he was probably thinking of management as being the management of the council, whose members are the appointees of the Secretary of State. But they are still not very close to the consumer. What is being expressed—I noticed startled surprise on the Benches behind the noble Lord—is that someone appointed by the Secretary of State is not as close to the consumer as a person who resides in Mercia, Wessex or Yorkshire is to the residents of Mercia, Wessex or Yorkshire. It seems to me that the only voice that those people are likely to have is through your Lordships expressing opinions they have heard in the field. Therefore, I am not sure whether I regard this as a management question in either sense in which the noble Lord uses those words.

The noble Lord described the furious argument which he said was going as between the voluntary and the professional methods of representation. Of course my noble friend's amendment is addressed purely to scale and to locality. I have not expressed a view on whether professionals or volunteers do the job better, but I think that for the representation of consumers one needs a mixture of both. That is for another debate. I think I have said enough to show where my sympathies lie if my noble friend wishes to return to this matter at a later stage.

Lord McIntosh of Haringey

I hope that I can now be a little more helpful to the Committee. I expect that a conclusion will be reached to the council's deliberations before we reach the second day of Committee. Perhaps I may also say that, if that happens, there will be some noble Lords who agree with the conclusion that is reached and some who do not. My view is that the matter should not be decided by this House; it should be decided by the people who are actually working on the ground. Therefore, I do not think that people should attach too much importance to the way in which the decision comes out.

Baroness Gardner of Parkes

I appreciate the support of the noble Lord, Lord Hardy. He made the point that in the past too much attention has been paid to the industry side. I am certainly not doing that but looking only at the consumer side. If people are asked whether they want a matter dealt with locally or at a great distance—perhaps the bright young ones could use e-mail—they will say the former. Only after lengthy debate on the Gas Act 1986 did the then Minister, Lord Belstead, agree to such a provision: For the purpose of ensuring that there are persons available in particular localities to assist the Council in the performance of those localities of its functions under this Act, the Council may, without any such approval as is required by sub-paragraph (1) above, appoint such persons to be so available as it may determine". The last thing we want is some great bureaucracy, but members of the public have difficulty travelling from one area to another to work or for health treatment. People like facilities to be available within easy reach of their own homes. Distances grow ever greater. We had the same debate about people having difficulty getting to their nearest courts. It is a question of having persons available locally enough so that the public do not have to deal with a remote bureaucracy. No matter how good the big scene and how well it is managed from the centre, nothing is as useful as a local voice. I ask the noble Lord to reconsider before Report the inclusion of a similar provision to that in the Gas Act 1986, to ensure local representation.

Lord McIntosh

I have not made the argument for one side or the other but said that aspect is better left to the council. Of course I will look again at every issue raised in Committee.

Baroness Gardner of Parkes

I thank the noble Lord and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 67 not moved.]

Clause 18 agreed to.

Clause 19 [Provision of advice and information to public authorities and other persons]:

9.15 p.m.

Lord Kingsland

moved Amendment No. 68: Page 14, line 4, leave out ("(c)") and insert ("(d)"). The noble Lord said: I shall speak also to Amendments Nos. 69–71, 73, 75, 85–89, 91, 93, 105, 107, 109, 111, 113, 117, 119, 121, 124, 125, 127, 130, 133, 138, 140–142, 144, 146, 152 and 287.

These amendments deal with inconsistencies in substance and procedure between this Bill and the Freedom of Information Bill. As to substance, commercially sensitive information held by the consumer councils may be at greater risk of disclosure under the Utilities Bill than under the Freedom of Information Bill. The tests to be applied when deciding whether information is commercially sensitive and therefore non-disclosable are inconsistent.

Clause 41 of the Freedom of Information Bill exempts from disclosure information that is a trade secret or that would, or would be likely to, cause prejudice to commercial interests. By contrast, the Utilities Bill allows information to be disclosed unless that would, or might, in the opinion of the Council, seriously and prejudicially affect the interests of the individual or body". The inclusion of the word "seriously" adds a further condition to be met alongside "prejudice" and it is up to the council to decide what constitutes "serious and prejudicial". Once that decision has been made, there is no evaluation of the potential for significant harm, so publication can occur even if that is the likely outcome. Therefore, the council's exercise of its discretion is a subjective test. Even if it is not allowed to act "unreasonably" under the Wednesbury principles, a more objective test based on harm is, in our view, infinitely preferable.

Safeguards should be in place to prevent people seeking information and placing it in the public domain to undermine competitors. This is of particular concern where consumers may also be competitors in the context of a consumer council with wide powers of publication. The Utilities Bill does not specifically mentioned commercial interests, only interests of the individual or body. In our view, clear guidance should be given on how commercially sensitive information is identified and handled which is consistent with the guidance given under the Freedom of Information Bill. Business must feel confident that sensitive commercial information will not be publicly disclosed.

As far as concerns the procedural inconsistencies, there is an appeal mechanism under the Freedom of Information Bill which can be invoked if it is felt that disclosure has not been handled satisfactorily. The Utilities Bill has no such provision. We feel that this is unsatisfactory in the situation where the council has considerable discretion over the ultimate decision to publish.

Although the council is required to consult individuals or bodies before releasing information, there is no duty upon it to take account of the views of the consultee and there are no means whereby a company can appeal against a decision and prevent publication. There is also only a limited appeal concerning the type of information that the council can request. Therefore, there should be a right of appeal against a decision of the consumer council to disclose information. The council should not be the sole judge of whether disclosure would seriously and prejudicially affect a body.

At Second Reading, we observed that the authority appears to be adjudicator in the event of disputes between the council and the authority on information questions. However, the consumer council also has the role of examining the regulator and that could lead to a potential conflict of interest. Moreover, there could be circumstances where the regulator might have sight of information of relevance to regulatory issues that might be confidential. In determining its confidentiality, the regulator would be placed in a compromising position if the information turned out to be relevant in any regulatory dispute.

We should like to see the appointment of an adjudicator by regulation and propose that that role should be carried out by an independent arbitrator. We should also like to see the role of information adjudicator carried out by the information commissioner, established under the Freedom of Information Bill, to ensure transparent and independent procedure. I beg to move.

Lord Ezra

The latter part of the proposition just proposed by the noble Lord is very much in line with the earlier proposition that I made and to which the Minister gave a lengthy but, unfortunately, negative answer. I hope that he will seize this opportunity to think again on the subject.

Lord McIntosh of Haringey

First, I shall discuss the series of amendments which add an additional limb to the disclosure test applicable to the council's disclosures and publications. The amendments would have the effect that the consumer council could be barred altogether from disclosing information falling within the categories in the new clause in Amendment No. 152.1 am very surprised that the noble Lord, Lord Ezra, who, generally speaking, is in favour of greater publication and disclosure rights should appear—I hope I am wrong—to be supporting it.

Lord Ezra

I was supporting the reference to the independent arbitrator or arbiter.

Lord McIntosh of Haringey

Those are the amendments which refer to the information commissioner. I shall come to that point.

I shall set out what the Government are trying to do and try to make the matter clearer. Our approach builds on that in the Gas and Electricity Acts. Essentially, disclosure of information obtained under the legislation without consent is prohibited, unless the disclosure is for a purpose specified as an exception. There are various exceptions in the Bill for disclosures by the consumer council in order to promote the interests of consumers, generally subject to a condition that only disclosures which are not likely to cause serious and prejudicial effects are permitted.

The underlying proposition is that, in the circumstances of the gas and electricity sectors, adverse effects which fall short of the serious and prejudicial are justifiable in order to secure promotion of the interests of consumers. The Government's view is that the "serious and prejudicial effects" test is sufficient. Once the likely degree of harm is established then there is no need to distinguish an adverse effect in one category from an adverse effect in other categories if they are all of similar degree.

Of course, we recognise also that some of the categories in the amendment are not intended to protect specific kinds of information so much as effectively to sterilise the "serious and prejudicial effects" test by placing great swathes of information whose disclosure might have adverse effects short of the serious and prejudicial inside exempt categories.

Nobody will be surprised that we cannot agree to that. The Government want to protect the interests of consumers—that is the primary responsibility of the authority—not the interests of utilities.

I shall not go into the detail of the categories set out in Clause 152 because the noble Lord, Lord Kingsland, also spared us that detail. But if we are talking about information filed with the court or information which may endanger health or which is actionable for breach of confidence, I can certainly argue—but I shall not, for the sake of your Lordships' health this evening—that all of those have perfectly rational legal constraints upon them.

I turn to the issue of the Freedom of Information Bill. The noble Lord, Lord Kingsland, has said on more than one occasion now that there are conflicts between this Bill and the Freedom of Information Bill.

The purpose of the Freedom of Information Bill, which is still before your Lordships' House—and it is still possible that it may be amended—is to set a minimum standard for the right of access to information across the public sector, including from the authority and the council. But nothing in the Freedom of Information Bill precludes a bespoke sectoral regime in gas and electricity for the proactive disclosure of information against a higher harm threshold than that under the Freedom of Information Bill.

The Utilities Bill is concerned with a particular sector where, in addition to the general reasons for transparency which inform the freedom of information regime, there are additional specific reasons which increase the need for openness in that field.

Those reasons centre on the weakness of the consumer. Empowering consumers means not only establishing the consumer council to champion their concerns but also enabling it and the regulator to publish information which will promote their interests.

It is in that regard that I should hope to have the support of the noble Lord, Lord Ezra, and the noble Baroness, Lady Sharp, because I really believe that we are the ones in this argument who are in favour of greater information. I believe, from what the Liberal Democrats have said, that that is their view, too. Those amendments would be highly restrictive.

I turn to the issue of who becomes the adjudicator. The amendments in this regard start with Amendment No. 146, although there may be earlier ones. They propose that before publishing any information, if there is a dispute the council should refer the dispute to the information commissioner for determination. That is true of Amendments Nos. 75, 93, 117, 130, 146 and 287. The proposal has a serious practical weakness, which is that the information commissioner does not yet exist and may well become operative some time after this Bill comes into force.

However, the most important issue on which the Government disagree with the amendments is one of principle. We do not accept that a special appeal or adjudication mechanism is required to determine what the council may publish. Like the authority, the council will be a public body making disclosure decisions within a statutory framework. But we intend to ensure that those who may be affected have the opportunity to put all the relevant facts to the council before it takes a publication decision. That is why the Bill includes the consultation requirement I mentioned.

I explained earlier the Government's difficulties with the proposal of the noble Lord, Lord Ezra; that is, that there should be an information arbiter. Some of those difficulties arise here too. In particular, we would incur delay and expense as the information commissioner, once appointed, familiarises himself or herself with the specific issue.

For those reasons, and for the reasons generally of greater transparency and greater powers of publication for the consumer council, we cannot accept the amendments.

9.30 p.m.

Lord Kingsland

The Minister will not be surprised to hear that I regard his reply as wholly unsatisfactory. I recall him saying that the object of the measures contained in the current draft of the Bill was to protect the interests of the consumers, not the interests of the utilities. But, as I understand it from earlier exchanges in the course of the day, the way in which the interests of the consumers are to be promoted in the Bill is through the process of competition. That, I understand from what the Minister said, is the only way in which the interests of consumers are to be promoted.

Lord McIntosh of Haringey

Where appropriate.

Lord Kingsland

Where appropriate. But we discovered that "where appropriate" is defined in a narrow and specific way.

If it is in the interests of consumers that proper competition be promoted, how can it be in their interests that the standard for disclosure should be such as to, on occasion, seriously undermine the process of competition? If it is to be just the consumer council that determines whether the disclosure of information is serious or prejudicial—in other words, if it is to be a purely subjective judgment—

Lord McIntosh of Haringey

Perhaps the noble Lord will give way. If the council wishes to publish something which has a serious and prejudicial effect on any person or persons, it cannot do so. It can ask the authority to publish it.

Lord Kingsland

I apologise if I did not express myself as clearly as I ought to have done. I am not suggesting that it can do that without going to the authority. But I am suggesting that it is its judgment alone. The publication of confidential information in those circumstances can seriously damage a competitor in the market and, therefore, the process of competition. I put it to the Minister, therefore, that the interests of the consumer are intimately linked with successful competition, and that those can be undermined by the wrongful disclosure of information.

I shall read carefully in Hansard what the Minister said and return to this matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 69 to 75 not moved.]

Lord McIntosh of Haringey

moved Amendment No. 76: Page 14, line 27, leave out from second ("section") to end of line 28 and insert ("(General restrictions on disclosure of information)"). The noble Lord said: This amendment was spoken to with Amendment No. 21. I beg to move.

On Question, amendment agreed to.

Clause 19, as amended, agreed to.

Clause 20 [Provision of information to consumers]:

[Amendment No. 77 not moved.]

Lord McIntosh of Haringey

moved Amendment No. 78: Page 14, line 40, at end insert— ("(3A) The disclosure by the Council of information in the exercise of that function does not contravene section (General restrictions on disclosure of information)."). On Question, amendment agreed to.

Lord McIntosh of Haringey

moved Amendment No. 79: Page 15, line 5, leave out ("targets") and insert ("obligations imposed by order"). The noble Lord said: In moving Amendment No. 79, I wish to speak also to Amendments Nos. 82 and 263 to 266. The amendments to Clause 20—that is, Amendments Nos. 79 and 82—are simply technical. They change the wording of the cross-references to energy efficiency in that clause to reflect amendments made in another place to the energy efficiency clauses themselves.

The amendments to Clauses 69 and 98 make clearer on the face of the legislation the Government's intention that the Secretary of State will set the overall target for improved energy efficiency and the authority will determine the energy efficiency targets that individual licensees will be obliged to meet so as to achieve this overall target. I beg to move.

On Question, amendment agreed to.

Baroness Buscombe

moved Amendment No. 80: Page 15, line 7, after ("made") insert ("to the Council or the Authority"). The noble Baroness said: In moving Amendment No. 80 I wish to speak also to Amendments Nos. 81, 83 and 84. I shall be extremely brief. These amendments relate to the publication of statistics on consumer complaints. At present the council must publish statistics on all complaints, including those received directly by companies. We believe that in order to provide a level playing field these amendments are important in that they would limit that obligation to complaints received by the council and the authority. I beg to move.

Lord McIntosh of Haringey

Clause 20 gives the new consumer council the role of providing information that consumers need in order to make informed decisions about their gas and electricity suppliers. Much of the information is also intended to provide a spur to companies—including monopoly gas transporter and electricity distribution companies—to maintain high levels of performance.

In line with these objectives, Clause 20 places the council under a duty to publish statistical information about complaints made by consumers against such companies. Subsection (2) goes on to state that, for the purposes of that duty, "complaints" include complaints made directly to the companies concerned, as well as those made to the authority and the council. As in all consumer legislation, it is expected that complaints will be made first to the company concerned.

Amendments Nos. 80, 81, 83 and 84 seek to restrict the scope of that duty so that it would apply only to complaints made to the authority or the council. It would no longer apply to complaints made to the companies themselves. These amendments would, therefore, seriously reduce the effectiveness of the provisions that Clause 20 puts in place.

Complaints made to the authority or the council alone will not tell the whole story of the day-to-day experience that consumers have of a particular utility company. If a problem arises, most consumers will make a complaint direct to the company concerned—at least, I would. It would be unusual for a consumer to refer to either the authority or the council unless he or she had failed to obtain a satisfactory response from the company against which the complaint had been made.

If we exclude these initial complaints, there is a risk that the pattern of complaints statistics will be distorted, highlighting only those companies foolish enough not to remedy problems when first alerted to them. Companies that receive a high number of consumer complaints but deal with them satisfactorily once the complaints have been made would not figure in these statistics. But surely that would mislead potential customers about the quality of service they offer. It might encourage rogue utility companies to adopt an approach based on a generally low standard of consumer service that improved only when someone complained. Follow-up complaints to the authority or council would be kept to a minimum, while most customers who did not bother to complain would be getting a lower level of service.

I do not think that these amendments will have the effect that the noble Baroness, Lady Buscombe, expects. I hope that she will not press them.

Baroness Buscombe

I thank the Minister for his very full reply to my brief moving of the amendment. We shall read with care what he said in Hansard. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 81 not moved.]

Lord McIntosh of Haringey

moved Amendment No. 82: Page 15, line 24, leave out ("targets") and insert ("obligations imposed by order"). The noble Lord said: I spoke to this amendment with Amendment No. 79. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 83 and 84 not moved.]

Clause 20, as amended, agreed to.

Clause 21 [Power to publish advice and information about consumer matters]:

[Amendments Nos. 85 to 93 not moved.]

Lord McIntosh of Haringey moved Amendment No. 94: Page 16, line 16, leave out from first ("section") to end of line and insert ("(General restrictions on disclosure of information)").

On Question, amendment agreed to.

Clause 21, as amended, agreed to.

Clause 22 [Complaints]:

Lord McIntosh of Haringey moved Amendment No. 95: Page 16, line 17, leave out from ("section") to ("to") and insert ("32 of the 1986 Act (duty of Council").

The noble Lord said: In moving Amendment No. 95, I shall speak also to government Amendments Nos. 96, 98, 100 and 101. Although the noble Lord, Lord Jenkin of Roding, is unable to be here, I shall speak also, as far as appropriate, to his Amendments Nos. 97 and 99.

Amendments Nos. 95, 96 and 101 are minor government amendments which correct inaccurate cross-references to sections in the Gas Act 1986. Under the Bill as drafted, there is a prohibition on the council publishing or disclosing details from which a complainant could be identified without the complainant's consent. Amendments Nos. 98 and 100 extend this prohibition to the authority.

Perhaps I may think again about Amendments Nos. 97 and 99. Is it the intention of other Members of the Committee to speak to the amendments of the noble Lord, Lord Jenkin?

Lord Kingsland

No.

Lord McIntosh of Haringey

In that case, I shall pass over them. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 96: Page 16, line 19, leave out ("31") and insert ("32").

On Question, amendment agreed to.

[Amendment No. 97 not moved.]

Lord McIntosh of Haringey moved Amendment No. 98: Page 17, line 24, leave out from beginning to ("without") in line 27 and insert ("No report under subsection (7) or information about a complaint referred to the Council under this section from which the complainant may be identified, shall be published or disclosed by the Council or the Authority in the exercise of any power under the Utilities Act 2000 or this Act,"). On Question, amendment agreed to.

[Amendment No. 99 not moved.]

Lord McIntosh of Haringey moved Amendments Nos. 100 and 101: Page 19, line 4, leave out from beginning to ("without") in line 7 and insert ("No report under subsection (7), or information about a complaint referred to the Council under this section from which the complainant may be identified, shall be published or disclosed by the Council or the Authority in the exercise of any power under the Utilities Act 2000 or this Act,"). Page 19, line 25, leave out ("32") and insert ("31"). On Question, amendments agreed to.

Clause 22, as amended, agreed to.

Clause 23 [Investigations by the Council]:

Lord McIntosh of Haringey moved Amendments Nos. 102 and 103: Page 19, line 37, leave out second ("gas") and insert ("authorised"). Page 19, line 40, leave out ("gas") and insert ("authorised"). On Question, amendments agreed to.

9.45 p.m.

Lord McIntosh of Haringey moved Amendment No. 104: Page 20, line 9, leave out from ("unincorporate)") to end of line 14 and insert—

1. ("(a) shall not be included in a report which is to be sent to any person under subsection (5)(a), unless one or more of paragraphs (a) to (c) of subsection (7) applies: and
2. (b) shall be excluded from any such report which is to be published under subsection (5)(b), unless one or more of paragraphs (a) to (c) of subsection (7A) applies.

(7) Information relating to a particular individual or body may be included in a report to be sent under subsection (5)(a) if—").

The noble Lord said: In moving Amendment No. 104 I should like to speak also to Amendments Nos. 106, 108, 109, 114, 118, 120, 122, 123, 128, 132, 134, 136, 137, 139, 148 to 150, 293 and 301. Amendments Nos. 104, 106, 108, 109, 114, 118, 120, 122, 123 and 128 deal with the council's power to send a report on one of its investigations to recipients it believes may have an interest in it or to publish it. The amendments make clear that where it is relying on the consent of those to whom information within the report relates to disclose or publish then that consent may be in relation to disclosure to specific recipients or to publication.

The other amendments in this group are principally concerned with the possibility of disputes arising when the consumer council seeks information from licensees. They honour the undertaking I gave towards the end of the debate on Second Reading to allow for the appointment by regulation of an adjudicator to determine such disputes instead of the authority. This is achieved by Amendment No. 150, which inserts the new clause after Clause 26. The adjudicator would also determine any disputes that might arise when the council seeks information from the authority, or vice versa.

These amendments create the possibility of an alternative to resolution of council/licensee disputes by the authority, should we decide to make regulations. We are proposing them because we recognise that there is a case for retaining some flexibility as to who is the best person to adjudicate disputed requests. As I indicated on Second Reading, one possibility that has been mentioned is the information commissioner to be created under the Freedom of Information Bill, who would have relevant expertise.

In addition, Amendment No. 132 amends Clause 24 so as to make as clear as possible the statement of the council's right to information. Similar provision is made in relation to the authority's right to information from the council by Amendment No. 148. As part of the creation of the power to make regulations setting out descriptions of information to which the council will not have an automatic right is transferred from Clause 24 to Clause 26A, which also gives rise to a consequential amendment, Amendment No. 136.

Amendments Nos. 293 and 301 are also consequential, whereby an order from the adjudicator or the authority, as the case may be, to comply with a council request for information is a relevant requirement, enforceable like a licence obligation.

Finally, Amendments Nos. 137 and 139 correct minor anomalies in the drafting of the conditions which apply to publication by the council of a notice from the authority giving reasons for withholding information from the council. I beg to move.

The Deputy Chairman of Committees (The Countess of Mar)

I should inform the Committee that if this amendment is agreed to, I cannot call Amendment No. 105 because of pre-emption.

On Question, amendment agreed to.

[Amendment No. 105 not moved.]

Lord McIntosh of Haringey

moved Amendment No. 106: Page 20, line 19, leave out ("publication") and insert ("disclosure"). On Question, amendment agreed to.

[Amendment No. 107 not moved.]

Lord McIntosh of Haringey

moved Amendments Nos. 108 and 109: Page 20, line 22, at end insert— (7A) Information relating to a particular individual or body may he included in a report to be published under subsection (5)(b) if—

1. (a) that individual or body has consented to the publication;
2. (b) it is information that is available to the public from some other source; or
3. (c) it is not information the publication of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of that individual or body.").

Page 20, line 25, after ("(7)(c)") insert ("or (7A)(c)"). On Question, amendments agreed to.

[Amendments Nos. 110 to 113 not moved.]

Lord McIntosh of Haringey

moved Amendments Nos. 114 and 115: Page 20, line 28, at end insert ("or (7A)(c)"). Page 20. line 33. at end insert— ("( ) In this section "authorised" has the same meaning as in section 31.""). On Question, amendments agreed to.

[Amendments Nos. 116 and 117 not moved.]

Lord McIntosh of Haringey

moved Amendment No. 118: Page 21, line 5, leave out from ("unincorporate)") to end of line 10 and insert—

1. ("(a) shall not be included in a report which is to be sent to any person under subsection (3)(a), unless one or more of paragraphs (a) to (e) of subsection (5) applies; and
2. (b) shall be excluded from any such report which is to be published under subsection (3)(b), unless one or more or paragraphs (a) to (c) of subsection (5A) applies.

(7) Information relating to a particular individual or body may be included in a report to be sent under subsection (3)(a) if—"). On Question, amendment agreed to.

[Amendment No. 119 not moved.]

Lord McIntosh of Haringey

moved Amendment No. 120: Page 21, line 15, leave out ("publication") and insert ("disclosure"). On Question, amendment agreed to.

[Amendment No. 121 not moved.]

Lord McIntosh of Haringey

moved Amendments Nos. 122 and 123: Page 21, line 18, at end insert— (5A) Information relating to a particular individual or body may be included in a report to he published under subsection (3)(b) if—

1. (a) that individual or body has consented to the publication;
2. (b) it is information that is available to the public from some other source; or
3. (c) it is not information the publication of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of I hat individual or body.").

Page 21, line 21, after ("(5)(c)") insert ("or (5A)(c)"). On Question, amendments agreed to.

[Amendments Nos. 124 to 127 not moved.]

Lord McIntosh of Haringey

moved Amendment No. 128: Page 21, line 24, at end insert ("or (5A)(c)"). On Question, amendment agreed to.

[Amendments Nos. 129 and 130 not moved.]

Clause 23, as amended, agreed to.

[Amendment No. 131 not moved.]

Lord McIntosh of Haringey

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at ten minutes before ten o'clock.