This is another probing amendment. I hope that the Minister can quickly clear this matter up and provide reassurance on the wording. We are concerned that, as it stands, there could be a scenario in which the Competition Commission could, in theory, argue that it would be right to publish commercial information that could harm legitimate business interests, as set out in clause 29(5)(a). We cannot envisage any scenario in which that would be acceptable, so why is the legislation so drafted? Why not make things clearer by ruling the possibility out by using the phrase “must not publish”?
The intention of the drafting is to enable the Competition Commission to balance the public interest in disclosure against the potential damage to the private interest if disclosure is made. It is the sort of dilemma with which many bodies across the public sector and Government deal with regularly. There may be cases where there is an overwhelming public interest in disclosing information and where relatively minor damage would be done to a private party, or where the damage done to a private party is secondary. By way of reassurance, I should say that the same provision can be found in the regime for regulating electricity and gas, and it does not appear to have caused problems.
We believe that it is appropriate that the Competition Commission should be left with the discretion outlined in the clause. I have no reason to believe that the commission would act irresponsibly or unreasonably in exercising that discretion, whereas the inflexibility introduced by amendment 41 could prevent the disclosure of information of significant public interest.
I accept what the Minister has said so far, but can she give any reassurance on what redress mechanisms would exist if the Competition Commission were to act irresponsibly and publish when there was not an overwhelming public interest? We can assume that it would be a difficult and contested matter if such an occasion were to arise.
Ordinary judicial review would certainly be available. If the Competition Commission were proposing to publish information that the parties involved considered sensitive and confidential, so that the commission should not use its discretion under the clause to publish, they could seek judicial review of that decision. If necessary, they could presumably seek injunctive relief to prevent publication and use the court system in that way, so they would not be entirely without redress.
I am slightly surprised; Oppositions generally press for more transparency, and there is a case for leaving the discretion up to the Competition Commission. That occurs in other regulatory sectors and has not caused problems. We can be confident that the Competition Commission will exercise the discretion in a responsible way and with proper regard to the legitimate interests of third parties. With those comments, I hope that the hon. Gentleman will withdraw the amendment.