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Clause 50

Banking Bill – in a Public Bill Committee at 5:30 pm on 11th November 2008.

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Independent valuer: supplemental

Question proposed, That the clause stand part of the Bill.

Photo of John Pugh John Pugh Shadow Minister (Treasury) 5:45 pm, 11th November 2008

On the face of it, the clause seems innocuous. It simply says, “supplemental”. However, when I studied it I had some concerns, which I need the Minister to clear up before I can be completely happy with the clause. Although the clause is supplementary, it is wide-ranging. I draw attention to the fact that the independent valuer can publish and disclose information—which we would expect—but can also withhold information. Yet, subsection (8) states:

“Records of an independent valuer are public records for the purpose of the Public Records Act 1958.”

I am not sufficiently learned in the law to know whether that makes an exemption from a freedom of information request. I could imagine that if in certain circumstances a valuer was deemed to withhold crucial and important information, more than one interested party would wish to get hold of that information. They might have a right to do so, particularly if the information concerned the disbursement of an ailing bank and resources being allocated in one direction or another. The clause appears to create that sort of exemption and make it immune from any legal challenge, so that if people want information that an independent valuer has, primary legislation says that he has the right to withhold it. That exemption seems to be created. It may not, as a result of being created, be challengeable in law, but it may not be consistent with the principles of natural justice.

My other concern is more a matter of amplification. Subsection (3) states that jurisdiction may be conferred on a court or tribunal, and subsection (6)(b) states that there can be an appeal to a court. A number of courts are referred to, and I would simply like to know which courts we are thinking of—courts that exist and can be identified, or courts to be created for the specific purpose.

I have a similar question on subsection (3)(d), which states that at some future date a criminal offence might be created by a statutory instrument. That is not a most desirable way to create a criminal offence. I imagine that the offence would be along the lines of withholding information from an independent valuer. I wish that the Minister could give us an inkling as to what types of offences the Treasury has in mind.

Dotted through the clause are areas where clarification is required. Let me rehearse them again. First, will the clause create an exemption to freedom of information requests for information from independent valuers? Secondly, where courts or tribunals are referred to, precisely which are they? Are the appeal court and the court upon which jurisdiction is conferred one and the same? Thirdly, are we creating a new kind of misdemeanour, or the possibility of one, and if so what will it look like?

That is a complex and detailed set of questions. If the Minister wants to reply in writing, that is great by me, but if he can give amplification straight away, that will be equally acceptable.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

Briefly, clause 50(2)(b) will allow the Treasury to instruct an independent valuer to withhold information. The independent valuer is there to arrive at a compensation figure. I cannot imagine any legitimate grounds on which the Treasury should instruct an independent valuer not to publish information used in obtaining compensation levels for a third party. Does the Minister have any examples of where that would apply? If not, I am not sure why it is in the Bill.

Photo of Ian Pearson Ian Pearson Parliamentary Under-Secretary (Economic and Business), Department for Business, Enterprise & Regulatory Reform, Economic Secretary (Economic and Business), HM Treasury

I can respond to some of hon. Members’ points, but I might have to respond in writing to give further detail. The hon. Member for Southport asked why the independent valuer will be able to withhold information. The reason is the normal reason for which an independent valuer might wish to do so: the information is subject to commercial sensitivities. In that respect, article 6 of the European convention on human rights requires only the reasons for a valuation decision to be made public, not every single piece of information.

We certainly recognise that there will be a degree of interest in the independent valuer’s determination, but it is the Government’s assessment that it would be inappropriate to designate the independent valuer a public body for the purposes of the Freedom of Information Act. In particular, the independent valuer does not meet both the conditions for section 4 of that Act to apply, as he or she will be an independent person with the sole function of assessing compensation in accordance with the order and any contractual arrangements and is likely to seek commercial return for the work.

Because of the unique nature of the valuer’s function and status—they will discharge a quasi-judicial function—the Government do not consider it appropriate to designate the valuer a public body. Furthermore, the application of the Freedom of Information Act may inhibit the valuer’s ability to obtain full information from other institutions and individuals on their relations with the failed bank. That is why we do not think it appropriate for the independent valuer to be subject to the Freedom of Information Act.

On criminal offences, I am advised that the issue must relate to the provision made under subsection (2): in other words, it must involve a refusal to disclose information. I hope that is helpful to the hon. Member for Southport.

On the publication of information, the independent valuer will be able to select documents suitable for permanent preservation as a matter of public record. Selection takes place in two stages: when records are passed out of active use and later when they are subject to review. At that later stage, the independent valuer may select records worthy of permanent preservation in the National Archives; it is for the valuer to select which.

The clause provides for the Treasury to make provision in an audit for the remuneration and allowances of independent valuers, the staff of independent valuers and appointing persons. As hon. Members will be aware, there are a number of detailed provisions in the clause. I think that most of them are uncontroversial, although there is naturally Committee interest in the public disclosure matters to which I have referred.

Question put and agreed to.

Clause 50 ordered to stand part of the Bill.