Clause 7 - Representations made in confidence or containing damaging information

Regulatory Reform Bill – in a Public Bill Committee at 10:30 am on 29 March 2001.

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Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal 10:30, 29 March 2001

I beg to move amendment No. 27, in page 6, line 13, leave out

```shall disclose the fact that the respondent has made representations, but'.''

Amendment No. 27 sets out to relate a respondent's representations to the subsequent disclosure of that information. Ministers can withhold the detailed content of a representation, but the purpose of the amendment is to remove the requirement of Ministers to disclose the fact that a respondent has made representations at all. It may help to reflect on the debate in the other House, which is set out in paragraphs 93 and 94 of the explanatory notes.

It is clear that Ministers recognise that a balance should be struck between a requirement for openness and a requirement to achieve the maximum benefit from the consultation, which might be hindered if those who responded to consultation felt that they were placing themselves at risk. They could be unwilling to disclose confidential or other interests because other persons would become aware of them through their representations.

I note that Lord McIntosh of Haringey appeared not to trust the Government in the way that one might expect. He said that the main reason for requiring the disclosure of information was that, if it did not happen,

``a weak or corrupt Minister might want to keep secret representations that were to the financial or political advantage of the Government and might influence his judgement.''—[Official Report, House of Lords, 13 February 2001; Vol. 622, c. 200.]

It is an astonishing thought for Opposition Members that a weak or corrupt Minister might wish to act in such a way. During our happy and constructive debates, we cannot imagine that such a situation might arise. However, perhaps such a situation is conceivable.

The requirements for a successful consultation could be hindered by the number of instances where the disclosure of representations—detailed or not—led to persons feeling that taking part would reveal confidential information. That is a greater risk than any other. It is a matter of balance and I shall not dwell on it. We have taken a view. I hope that Ministers will reflect upon it and incline towards it, but it is more important to achieve a balance.

Weakness or corruption by Ministers, which could lead them not to disclose representations, would be countered by two facts. First, Ministers can act only on the advice of civil servants, who, in my experience, are not prone to the same pressures. Secondly, the Deregulation Committees may require disclosure of representations, and later in the debate we shall discuss what they would do next.

Therefore, even if Ministers were not required to disclose respondents' names, there would be a check upon them because the Deregulation Committee could require disclosure and examine what had occurred. When people are presented with a preliminary consultation, it is important they can specify that the content of their representations should be kept confidential. Indeed, they should be able to keep the fact that they have made representations confidential from everyone except the Deregulation Committee. On that basis, I hope that the Minister will reconsider and incline towards amendment No. 27.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office) 10:45, 29 March 2001

I thank the hon. Gentleman for the amendment, which he has introduced in a fair and balanced manner.

It is a matter of judgment whether it is better to know that influential and powerful figures have been part of the re-regulation of industries such as arms, chemicals or retail. The history of the past 10 or 11 years indicates that on balance we should be open on such matters.

My noble Friends in the other place gave the example of an old lady concerned about her neighbourhood declining because of a change to regulations. Although her written representation had been anonymised throughout the process, she could still be identified. In my view, there are pathways for that old lady through residents and tenants groups. However, the question of whether one is open about consultees remains. On balance, it is better to be open, although there may be rare occasions when it is possible to identify consultees.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

I did not raise the particular instance of the old lady because it did not strike me as the best example. The most likely circumstances in which there would be a risk of impeding the consultation would involve a narrow business sector, such as gaming machines. If someone who had a prospective commercial interest that was not apparent from his holdings—for example, he may have been contemplating a merger proposal—were to make representations relating to the deregulation of a narrow business sector, the disclosure of his representations relating to that sector could indicate that he had previously undisclosed commercial interests at stake.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

I referred to the old lady because it is the most difficult case. Everyone sympathises with someone in that situation. If people with commercial interests know that their interest will be shown, it will form part of their judgment on whether to try to influence the regulatory reform order. If, as the hon. Gentleman indicated, they have a vested interest, it is sensible and appropriate that that be known. However, a balanced judgment must be made and I ask the hon. Gentleman to withdraw his amendment.

Photo of Andrew Lansley Andrew Lansley Shadow Minister for the Cabinet Office and Policy Renewal

I know that the Minister is trying to be constructive and that the Government will continue to reflect on the matter while the Bill is being considered. We shall give them the opportunity to do so. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mr Richard Page Mr Richard Page Conservative, South West Hertfordshire

I beg to move, amendment No. 28, in page 6, line 35, at end add


(c) is agreed by that committee to remain confidential and not be further disclosed.'.

The Committee will see that my name has been added to the amendment, which moves it up the Richter scale of importance. This is a golden opportunity for the Minister to justify the faith of the hon. Member for Peterborough (Mrs. Brinton). She has left the Room for a moment, but would be delighted to hear that the Minister will accept the amendment when the arguments have been made. The amendment follows logically from amendment No. 27. I am sorry that the Minister did not accept it and I have a sense of foreboding about his response to my comments.

I shall briefly set the scene. The clause makes sensible provision for the action to be taken when someone responds to the preliminary consultation exercise set out in clause 5 and asks that the response is not made public. It will allow Ministers to receive representations on a range of issues of public importance, including crime, civil wrongs and potentially adverse effects of a proposed order. Subsection (2) will ensure that the fact that someone has commented on a proposed order will be disclosed, but the contents will be made public only if that person agrees and if a third person is affected, with that person's consent also. Ministers will have the option of revealing representations without identifying the person making them or the third party involved.

Subsection (3) deals with circumstances in which a person has made representations about a third party which may, in the Minister's view, be damaging to that person's interest or may prove unverifiable. If the Minister believes that such information is untrue or is unable to obtain the consent of the third party, the Minister is not obliged to pass the information to Parliament.

Subsection (4) allows for a Committee of either House to have access to representations made to Ministers in response to the preliminary consultation procedure set out in clause 5. The consultation document accompanying any proposed order will make the potential release of information to a Committee of either House apparent to prospective respondents. The intention is obviously to provide a safeguard against undue or improper influence being exerted on Ministers when preparing regulatory reform orders.

I make no apology for setting the scene, but the Committee can now see exactly how our amendment sits within it. It offers further protection to those who make representations to a Minister on a proposed regulatory reform order and whose comments have been passed to the appropriate Committees of the two Houses. It will ensure that democracy is at work and that the relevant Committees can, if they so choose, see the representations made to Ministers. That will reinforce the safeguards against improper influence--my hon. Friend the Member for South Cambridgeshire referred to some of them--being brought to bear during the consultation period or thereafter, and protect those who made their comments to the Minister in confidence. Members of the House place their trust in Ministers to perform their duties in accordance with the Bill's provisions, although Opposition Members have expressed concern about ministerial power that will be granted under the Bill. In turn, Ministers should be able to place their trust in the Committees of the two Houses to exercise their judgment in respecting the confidences of those who respond to Ministers during the consultation period. Moreover, the Committees of the two Houses will have the power to determine that some representations remain confidential.

We are trying to give the two Committees yet greater influence and power to help them carry out their work. We believe that the amendment is sensible. It is limited in scope and protects the interests of Ministers and Parliament, and, during the consultation exercise, of respondents and the third parties on whom they comment. I look forward to the Minister's response.

Photo of Graham Stringer Graham Stringer Parliamentary Secretary (Cabinet Office)

We have reached a part of our discussion that concerns judgment. The purpose of the amendment is to regulate the relationship between the Minister and the Committee, and to ensure that, where matters have previously been confidential, they remain so. However, the Government think it better to leave such matters to the Minister and the Committee.

Subsection (4) would empower the Minister to disclose matters that he or she cannot disclose under the preceding subsections. During such disclosure, the judgment of the Minister and the chairman of the Committee are important. The Minister might be up to no good, and in such circumstances one would not want to tie the Committee's hands. There should be co-regulation by the Minister and the Committee, rather than rigid rules that might occasionally prove inappropriate.

Ministerial relationships with the Committees of both Houses have been based on understanding and openness. The amendment would prove unduly restrictive and I ask the hon. Member for South-West Hertfordshire (Mr. Page) to withdraw it.

Photo of Mr Richard Page Mr Richard Page Conservative, South West Hertfordshire

As you can gather, Mr. Cook, I am very disappointed that, despite the fact that I moved the amendment, the Minister has not accepted it. I hear his arguments, and yet again there is a tendency not to let the Committees do their job fully, taking the view instead that ``nurse knows best''. However, in view of his explanation, and because one of the most important factors is the working practices that will be established as the process gets under way, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.