Clause 18
Consumers, Estate Agents and Redress Bill
9:30 am
Jim Fitzpatrick (Parliamentary Under-Secretary, Department of Trade and Industry; Poplar and Canning Town, Labour)
The amendments concern a discretion of the Secretary of State not to publish a report prepared for him by the new council under clause 18. That issue has already been extensively debated in the other place, and I am sure that the hon. Gentleman has looked at that. It was clear from that debate that the concern here is essentially about the need for transparency in the Government’s dealings with the new council, and the need for public accountability, because of the tensions that have been correctly described by the hon. Gentleman. I would like to reiterate that the Government are in total agreement with those intentions, and we have made the case that the discretion afforded to the Secretary of State not to publish a report prepared for him by the council impacts in no way on either of those principles. The point to note here is that the discretion under clause 18 for the Secretary of State in relation to the publication of a report is necessary to deal with particular circumstances, such as instances where the report contained sensitive information that was commercially confidential or price-sensitive. That is not a new concept, and would apply in circumstances in which, for example, disclosure of information provided by a company would weaken its position in a competitive environment by revealing market-sensitive information or information of potential usefulness to its competitors.
Under clause 29, the council will have to consult a business or individual if a report that it makes contains business or personal information before that is disclosed in the report. The value of the report to the Secretary of State might be significantly diminished if the information were not contained in the report. However, in those circumstances the Secretary of State would have to consider whether it was right to publish the report.
Section 244 in part 9 of the Enterprises Act 2002 sets out considerations that apply where a public authority is considering disclosing certain specified information, including commercial information whose disclosure the public authority thinks might significantly harm the legitimate business of the undertaking to which it relates, or information relating to the private affairs of an individual whose disclosure might significantly harm the individual’s interests. That provision applies generally to the disclosure of information obtained by the council under the Bill, but not to reports of the council, where the different provisions that I have mentioned in clause 29(5) apply.
Information of a confidential nature might be necessary to support the recommendations in a report. A requirement on the Secretary of State to publish every report submitted by him might create a deterrent effect on external experts or stakeholders, who might be reluctant to provide particular information because it might be published. It is not inconceivable that a report prepared by the new council for the Secretary of State could contain such information that was given on condition that it would not be published.
A key consideration here is that there may be good reasons why the content of reports prepared and submitted to the Secretary of State to aid the decision-making process should not be published. The decision not to publish a report in those circumstances would be to protect the confidences of individuals and businesses, not for the purpose of protecting Government.
Clause 18 must be viewed in the wider context of the other clauses that give the new council the statutory basis to carry out its duties. The need for the new council to be able to act without being constrained is fundamental to what we are trying to achieve with the introduction of these measures, and is in no way compromised by the powers given to the Secretary of State by the clause. It is not about taking away from the new council; it is about allowing the council to give relevant information to Government.
If the council determines that the issue of the report that it has prepared for Government under clause 18 is one of interest to consumers more generally, and the Secretary of State has decided not to publish that report, the council can choose to exercise its powers elsewhere within the Bill, such as under clause 17 or clause 19.
Clause 17 enables the council to prepare and publish a report on any matter falling within the scope of its functions. Clause 19 enables the council to publish advice or information about consumer matters for the purpose of bringing issues of importance to the attention of the consumer.
A report prepared under the powers in clause 17, for example, which covered the same issue as a report prepared under clause 18, could be published without information that was considered to be sensitive and in a format that may be more in line with the needs of consumers. That matter would be one for the discretion of the council, but with those reassurances. The council, therefore, has the ability to determine what it publishes, but the Secretary of State has some discretion in being able to withhold information that may be price-sensitive. I hope that reassures the hon. Gentleman.