My Lords, if this regime is to work in the way in which all parties in this House intend it to work, suppliers will have to have complete confidence in the confidentiality of their communications with the adjudicator. One can envisage a reluctance from small suppliers, who will see the possibility that they will lose future contracts, from communicating with the adjudicator if they do not think that he and his staff will respect that confidentiality. The purpose of these amendments directed to Clause 17, which deals with the adjudicator’s obligation of confidentiality, is to toughen that obligation up. These five amendments do that in two ways. Two of them extend the obligation of confidentiality beyond the adjudicator to his or her deputy and staff. Two of them remove “may” and make the obligation of confidentiality overtly mandatory and not potentially discretionary by replacing it with “must”, although I am prepared to accept as a matter of law the point that the Minister made when she responded to a similar amendment in Committee. The fifth and last amendment creates a criminal offence for a breach of confidentiality. I will speak to them by reference to the Minister’s responses to similar amendments when we discussed this in Committee.
In relation to extending the obligation beyond the adjudicator to the deputy adjudicator and his or her staff, the Minister’s response was that she was confident that that obligation was already extended beyond the adjudicator. As the Minister and others who were there will remember, we were pressed for time on that day because we had a joint ambition to conclude the Committee stage by a particular time. I am inviting the Minister to go beyond a simple expression of confidence and to explain the mechanism that makes her so confident that the obligation on the adjudicator applies also to the deputy adjudicator and the staff of the adjudicator’s office when it is not spelled out in the Bill.
As far as replacing “may not” with “must not” in terms of respecting confidentiality is concerned, we have already discovered today that in the positive “may” and “must” are not interchangeable. But I am told that “may not” and “must not” have the same force, which I think is right as a matter of law. That is
the expression the Minister used; I do not claim credit for it. It occurs to me that if we are legislating for the public and both words mean the same, if we mean “must not” why do we not say “must not”? If we are endeavouring to encourage a degree of confidence in this role on the part of people who are deeply vulnerable then we should say “must not” if we mean “must not”.
Finally, and this is a much more important point, there is a lacuna in this Bill that the obligation of confidentiality is not backed up by any sanctions for breach. We are all aware of the vulnerability of electronic communication and therefore the probability that almost every public office will leak. Something will get out. There is no sanction for a breach in this Bill because the Minister told me that she is confident that the adjudicator and his staff will respect confidentiality. In my time in Government I worked in five different departments and I had confidence in all of them that they would not leak and that they would respect confidentiality. I might find it difficult retrospectively to find evidence that that confidence was well placed.
The Minister went on to say that if a person suffers damage from a breach, then there is the potential for that person to claim damages from the adjudicator or to seek an injunction to prevent a disclosure. But it will be too late if it is leaked. The injunction will mean nothing. In any event, unless one gets a super-injunction, as we have discovered in this country, the very fact that one is seeking an injunction always reveals or at least points to the information. It is very doubtful that any of the people whom we are seeking to protect by this legislation will be in a position to get a super-injunction, not that we would want them to, so they are left with damages.
I envisage this sort of situation. I am a supplier to one of these great monoliths, one of the 10 supermarket chains that we are seeking to regulate by this. I supply them with whatever—fresh strawberries or something; it does not matter. I have a complaint. I tell the adjudicator. The adjudicator says, “There is something in this complaint. In fact, this reveals a very important issue. I am going to take this all the way”. It leaks to my retailer that I was the cause of this complaint. It has caused them a lot of embarrassment and probably cost them a lot of money. I do not get another contract. I challenge anybody to tell me how I will convince any court against the battery of lawyers I will face if I choose to sue Tesco or Asda or any of the 10 retailers—I should not name them; it does not matter who it is—that the damage that I suffered was a direct result of the fact that I complained to the adjudicator. It will be impossible, so there needs to be a sanction. The Minister in her response to me in an earlier debate implicitly accepted that there needs to be a sanction. There is no sanction. Injunction does not fit the bill and it is fanciful to think that small suppliers—everybody is small compared to these supermarkets—will be able to take on the challenge of proving in an action against the adjudicator that it was the adjudicator’s negligence in allowing the confidentiality to be breached that caused the loss.
The Bill needs to impose a criminal sanction to toughen up the confidentiality obligation to the maximum effect. I am supported in this because there are many
other pieces of legislation in which this device is used. I have uncovered two but I am sure that researchers would uncover many more. I already know the answer to that so the Minister does not need to deploy the answer that she deployed against me earlier. They are different pieces of legislation so these are different sets of circumstances that require different responses. I am a great believer in consistency. If we can impose a criminal offence on, for example, the legal aid authorities if they breach confidentiality then we should impose the potential for criminal offence on the adjudicator and his staff. I beg to move.
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