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Energy Bill

I am grateful to the noble Lord for moving his amendment and speaking to the others. In keeping with the principle of public access to information on environmental matters, Clause 29 requires the Secretary of State to maintain a public register of specified information related to carbon dioxide storage licences. It replicates existing arrangements under Part 2 of the Food and Environment Protection Act 1985. Access to environmental information is required by international, EU and national legislation. Moreover, and importantly, the public's right to be informed about certain environmental matters has long been seen by the Government as essential for achieving sustainable development because an informed public can play a more active role in effective decision-making. The information to be included in a public register will be set out in regulations, but is likely to be very similar to the types of information already made available under Part 2 of FEPA. As is the case with that Act, suitable protections will be put in place to exclude from the register commercially sensitive information and information that prejudices national security interests. I shall take Amendments Nos. 11 and 12 together. They would change the test for establishing the grounds of commercial interest on the basis of which information may be excluded from the register of CO2 storage licences. This exclusion would be at the discretion of the Secretary of State. The proposed amendments replace the current test that the disclosure of the relevant information would have to prejudice a person's commercial interests ““to an unreasonable degree”” with a new, and possibly less onerous, test that disclosure of information would have to prejudice a person's commercial interests unduly. At first sight, and maybe even at second sight, this looks like a lawyer's distinction, but we think that it is worth standing out on this. As I have already mentioned, the provisions of this clause largely replicate those contained in Part 2 of the FEPA, where the unreasonable degree test is used. I remind the Committee that the FEPA governs temporary depositions of materials on or under the sea bed and, while not suitable for regulating the permanent storage of carbon dioxide, it sets a valuable regulatory precedent for the test establishing commercial sensitivity. The test has been applied in the context of FEPA for a number of years and has worked effectively. Moreover, by lowering the threshold for the commercial sensitivity test, if that is what we would be doing, the proposed amendments may have negative public rights implications. As I said, international, European and national legislation gives the public certain rights of access to information on environmental matters. Lowering the threshold for the test of commercial sensitivity, on the basis of which information may be excluded from the public register, would unjustifiably undermine those rights to some extent. Our view is that in relation to the register of carbon dioxide storage licences, only information that would prejudice the operator's commercial interests to an unreasonable degree can be afforded protection. We do not agree, on this occasion, with the noble Lord. Amendment No. 13 relates to the length of time during which information ought to remain excluded. The suggestion is that where information is excluded on the grounds of commercial sensitivity, it ought to remain excluded for 10 years rather than four years. It will be for the Secretary of State to decide what information ought to be excluded on the grounds of commercial sensitivity. The Secretary of State will also have the power to exclude information on the grounds of national security, and there is no time limit after which that exclusion is deemed unnecessary. In the case of commercial sensitivity, there is a presumption that information that is excluded will remain excluded for four years only, but that period can be extended at the discretion of the Secretary of State on application by the person whose commercial interests are affected. I refer noble Lords to Clause 29(4) on that. We do not think that the noble Lord's amendment, which goes from four years to 10 years, is appropriate. First, 10 years seems too long. The four-year period provided for in the Bill strikes the right balance between, on the one hand, ensuring that companies' commercial interests are not unreasonably prejudiced while, on the other, protecting the right of the public to access this information. I stress again that the provision replicates the equivalent provision of the FEPA, where, again, we argue that it has worked pretty successfully over the years. Secondly, if in the future it transpired that information was still sensitive after four years, the Bill has adequate safeguards. Subsection (4), as I have said, gives the Secretary of State power to decide, upon application from the operator, whether the information ought to continue to be excluded. This is an important provision that will enable periodic reassessment of the excluded information and will help to ensure that where there are sound reasons for excluding information, that information will continue to be protected. Our response, which is to be found in the Bill, is a flexible one—even a reasonable one. I hope that provides sufficient reassurance that the Bill contains a number of safeguards that will ensure that commercially sensitive information is appropriately protected, including the ability to extend the period for which it remains off the register. Regarding companies' attitudes and responses to any consultation, we have not had any opposition from companies to the four-year provision. Is the FEPA a reasonable or good precedent? The noble Lord pressed me on the length of information exclusion because, he pointed out, there are differences between the licences. My response is that both short-term and permanent disposal under the sea are environmentally sensitive in their own way, so this is not a bad precedent; in fact, it is quite a good one. Not only has it worked well in the past but the Bill allows for the flexibility that I think the noble Lord wants to see. To whom can someone appeal if they disagree about extending protection? We have had a lot of discussions with industry about this whole matter, and as it happens that has not been raised as a concern, although that is not to say that he is wrong to raise it as a concern. Should this prove to be a problem, companies will be able to seek judicial review of the relevant decisions concerning information exclusion. However, we are pretty confident that that will not be necessary. The same arrangements, I repeat, have worked pretty well under the Food and Environment Protection Act 1985, so I hope the noble Lord will, at least to some extent, be reassured by what I have had to say.