Clause 30 Head of Assessment

128.     This clause requires the Board to employ a Head of Assessment as its principal adviser in relation to assessments and re-assessments of National Statistics and their compliance with the Code. The Board must have regard to the advice of the Head of Assessment on those matters.

Clause 31 Separation of functions

129.     This clause provides for the separation of the statistical production and assessment functions of the Board.

130.     Subsection (1) prohibits the National Statistician from taking part in deliberations or decisions about the assessment of statistics that the Board itself has produced. That does not prevent the National Statistician from making representations to the Board about those statistics but, as with other statistical producers, he may not take part in decisions by the Board, or their representatives, on the assessment of those statistics.

131.     Subsection (2) prohibits executive members of the Board who are neither the National Statistician nor the Head of Assessment, from taking part in any deliberations or decisions in relation to assessment or re-assessment of any National Statistics, and their compliance with the Code. This applies whether the statistics in question are produced by the Board itself, or produced in other departments.

132.     Under subsection (3) the Board must establish processes to ensure that employees of the Board involved in statistical production should not be engaged in advising the Board on the assessment or reassessment of those statistics (under clause 12(1) and 13(1)).

Clause 32 Committees

133.     Subsection (1) gives the Board powers to establish committees to exercise its functions and to give it advice. The Board may establish committees, for example, to direct certain corporate policies and practice, such as on human resources, security or information systems.

134.     Under subsection (2), advisory committees (but not executive ones) may consist of individuals who are neither members of the Board nor employed by it. The Board might, for example, establish an advisory committee to help it address user needs, and include on it some key user representatives from academia, business, and the research community. It may also establish committees to advise it on the exercise of its functions relating to official statistics, which might include staff from other government departments.

Clause 33 Delegation

135.     This clause sets out that the Board may delegate certain of its functions and describes the conditions under which it may delegate. The Board may delegate to a member or employee of the Board, or to a committee of the Board who may, under subsection (3) further delegate down to sub-committees.

136.     Under subsection (2) the Board may not delegate its duty of adopting or revising the Code, nor decisions on whether statistics have complied with the Code and can therefore be designated as National Statistics.

137.     Subsection (4) provides for the fact that the delegation of a function under subsections (1) and (3) does not preclude the Board or a committee from exercising that function itself.

Clause 34 Proceedings: supplementary

138.     This clause provides that the Board may regulate its own proceedings and those of any other committee of the Board.

139.     Subsection (3) establishes that the validity of the proceedings of the Board, or any of its committees or sub-committees is not affected by a vacancy or a defective appointment.

Clause 35 Use of information by the Board

140.     This clause allows the Board to use any information it holds, including census information previously held by the Registrar General, to carry out any of its functions. This clause will permit the Board to produce statistics for one purpose using information collected for another purpose, for example allowing an analysis of deprivation to be carried out using data collected as part of the census. This may also reduce the burden on data providers, for example individuals or businesses filling in surveys, by removing the need to collect duplicate information.

141.     Subsection (1) states that any information obtained by the Board in connection with any function exercised by the Board may be used by it in connection with any other of its functions.

142.     Subsection (2) restricts the Board's use of information in that, while the Board will have access to information about National Statistics for assessment purposes, they will not be able to use this information for other functions, such as the production of statistics. In the case of information received by the Board in connection with its functions, clause 20(3) limits the Board's use of information in the way permitted by subsection (1), unless the Board seeks the consent of the person who provided the information to the Board.

143.     Subsection (4) states that the Board may not use information where other legislation places limits on how that data can be used or disclosed. For example, section 58 (2) of the Finance Act 1969, restricts the Board's use of 'pay as you earn' (PAYE) information for the purposes of statistical survey; this clause would not override that restriction on use.

Clause 36 Confidentiality of personal information

144.     This clause specifies that personal information (as described in subsections (2) and (3)), whether held by the Board or disclosed by the Board to others, is confidential.

145.     Subsection (1) states that personal information held by the Board should not be disclosed by anyone, whether a member of the Board (or one of its committees), an employee of the Board or anyone who has received it from the Board (directly or indirectly). Subsection (9) makes such disclosure a criminal offence, punishable by a fine or imprisonment. This is a similar penalty to that provided for unlawful disclosure of HM Revenue and Customs (HMRC) data in the Commissioners for Revenue and Customs Act 2005.

146.     Subsection (2) explains that "personal information" is information that relates to and identifies a particular person. This would include information that could identify a business, even where that business had since changed form due to a merger. The meaning of personal information does not include administrative information held by the Board, such as records relating to the Board's employees (which may, however, be protected under the Data Protection Act 1998).

147.     Subsection (3) provides that information falls within the definition of 'personal information' at subsection (2) if the information in question either specifies the identity of the person, or could allow it to be deduced. As set out in Subsection (10), the criminal offence does not apply where the individual making the disclosure reasonably believes that the identity of the person to whom the data relates could not be deduced from the information released.

148.     Subsection (4) lists the circumstances where the restriction on disclosure in subsection (1) do not apply:

• paragraph (a), where other legislation explicitly requires or permits disclosure of personal information. For example section 58(4) of the Finance Act 1969 permits the ONS to disclose certain information it has received from HMRC to another department for the purpose of a statistical survey;

• paragraph (b), where a European Community obligation requires disclosure, for example Council Regulation EC 184/2005 concerning balance of payments, international trade in services and foreign direct investment, requires submission and transmission of data, including confidential data to the Community authority (Eurostat);

• paragraph (c), where it is necessary for the purpose of enabling or assisting the Board to exercise any of its functions, for example the Boards' function in section 5 of the Census Act 1920 of preparing statistics in respect of periods between one census and another;

• paragraph (d), where data has already been lawfully made public;

• paragraph (e), where data is disclosed following a court order;

• paragraph (f), where data is disclosed as part of a criminal investigation or proceedings; and

• paragraph (g), where the person to whom the personal information relates has consented to disclosure. For example, the ONS conducts voluntary surveys, which contain a confidentiality pledge that makes clear to the respondent how the information they provide will be used, and setting out any onward disclosures that might be made, for example to other government departments for statistical purposes. In such cases, by returning the survey,the respondent consents to the terms of the confidentiality pledge and to the disclosure of information for statistical purposes in the way described.

149.     Subsection (4)(h) states that the confidentiality obligation does not apply where the Board discloses information to an "approved researcher", and subsection (5) sets out what the term "approved researcher" means. Subsection (6) states that the Board must publish the criteria by which it will decide whether to grant such access. As set out in subsection (7), these criteria must require the Board to consider whether the researcher is a fit and proper person and the purpose of the research. Any researcher must also sign a declaration that they understand the confidentiality obligation placed on them (subsection 8).

150.     The combination of this clause and clause 21 (on statistical research) is intended to replicate the access ONS currently provides to researchers and academics (seconded into ONS), usually through a secure environment physically located in ONS. At present, researchers are generally not allowed to take data away from ONS and must sign strict confidentiality agreements.

Clause 37 Freedom of Information

151.     Section 44(1)(a) of the Freedom of Information Act 2000 ("the 2000 Act") provides that information is "exempt information" for the purposes of that Act if its disclosure by a public authority is prohibited by or under any enactment. If information is "exempt information" it need not be disclosed under that Act. By virtue of clause 36 (the offence relating to disclosure of information) section 44(1)(a) applies in relation to information held by the Board. So information held by the Board is "exempt information" for the purposes of the 2000 Act.

152.     The same applies to information which is disclosed to a public authority by the Board (since the offence in clause 36 applies to anyone receiving information directly or indirectly from the Board).

153.     Clause 37 provides a limited qualification to section 44 in the case of personal information which is passed by the Board to other public authorities. The effect of the clause is that clause 36 will not operate to trigger section 44 in such cases. So the information will not be exempt information for the purposes of the 2000 Act. That means that in respect of personal information received from the Board, a public authority, in response to a request for information made under the 2000 Act, may not refuse to disclose information by citing the absolute exemption in section 44 of the 2000 Act. The public authority may cite other available absolute or qualified exemptions in so far as they are considered to apply to the information requested.

Clause 38 Disclosure of information to service providers

154.     This clause will allow the Board to pass any information to third parties who are operating under the control of the Board, so that they may provide services to them. For example, it would allow the Board to pass data to an external IT provider who had been contracted to undertake data processing on behalf of the Board, as ONS did during the 2001 Census. It is intended that those receiving the data under this clause would not be able to use it for any purpose other than the provision of the service they would be providing to the Board.

Clause 39 Information relating to births and deaths etc

155.      The present arrangement whereby the National Statistician is also the Registrar General, and the GRO is part of the ONS, will cease when the Board comes into existence. This clause is necessary to ensure that current data-sharing arrangements that exist between the Registrar General and ONS can continue.

156.     The Registrar General currently has both civil registration and statistical functions set out in statute, the latter of which will transfer to the Board. This clause ensures that the Board continues to have the same access to registration data collected by the Registrar General as ONS does currently. It includes provisions for the sharing of information by the Registrar General with the Board. In particular, it enables information collected at the registration of key life events, such as births and deaths, which is currently used by ONS to produce statistical outputs (including estimates of populations), to be disclosed to the Board.

157.     Subsection (2)(b) includes both information collected at the time of a registration of a birth or death for statistical purposes, and information such as post mortem information that does not become available from a coroner until after the registration of a death.

158.     Subsection (5) permits the Board to disclose to the Secretary of State or the Welsh Ministers the information received under this provision from the Registrar General for the purpose of assisting them in the performance of their functions in relation to the health service.

159.     The intention is that the sharing of data under this clause will be subject to a Memorandum of Understanding or Service Level Agreement between the Registrar General and the Board, which will cover issues such as the means and frequency of data sharing, and the onward transmission of the data.

Clause 40 Information relating to NHS registration

160.     The ONS currently produces population statistics, including estimates of movement of people between health authorities. In the production of such statistics, the ONS uses data held in the National Health Service Central Register (NHSCR). ONS is presently responsible for the operation of NHSCR whose main function is the compilation and maintenance of a record of all persons registered with an NHS General Practitioner in England. This work is carried out on behalf of 'NHS Connecting for Health', which is an Agency of the Department of Health. The present arrangement whereby the NHSCR is part of ONS will cease when the Board comes into existence. It is therefore necessary to create an information gateway to ensure that the Board may still receive this information.

161.      Subsection (3)(a) to (d) stipulate the categories of patient registration information that may be shared with the Statistics Board, including their address, their date of birth and sex, their patient identification number, and their history of registration. However, this list is not exhaustive, and other patient registration information may also be shared with the Board, provided it is not information about the health or condition of a patient, or information about the care or treatment of a patient (subsection (4)).

Clause 41 Information relating to NHS registration: Wales

162.     This provision replicates the effect of clause 40 in respect of the information relating to those registered with a NHS General Practitioner in Wales. ONS maintains the NHSCR for Wales (on behalf of the NHS in Wales). As for the NHSCR in England, the intention is that NHSCR in Wales will not be the responsibility of the new Board, it is necessary to create an information gateway to ensure that the Board may still receive this information and use it in connection with the production of population statistics.

Clause 42 Information held by HMRC

163.     Section 18 of the Commissioners for Revenue and Customs Act 2005 controls HMRC's ability to share information. It does this by laying down the general rule that HMRC may not disclose any information held by it or received by it in the course of its functions. Pursuant to section 18, HMRC is permitted to disclose data in certain specified circumstances, one of which is where another provision authorises disclosure.

164.     The clause permits the Commissioners for Revenue and Customs, or an officer of Revenue and Customs, to disclose to the Board any information held by the Revenue and Customs, for use by the Board in connection with one of more of the Board's statistical functions (with the exception of its function under clause 18 of this Bill of providing statistical services to any other person). This clause does not permit the disclosure of personal information (as defined in clause 36), with the exception of information relating to the import or export of goods to or from the UK.

165.     It is intended that two categories of data will be disclosed under this provision:

• summary data, including information on income tax and National Insurance contributions, which is currently provided by Revenue and Customs to ONS, to allow ONS to produce statistics, including estimates of the UK national income, as a part of their production of the UK National Accounts; and

• information relating to the import or export of goods to and from the UK, which is currently passed from Revenue and Customs to ONS to allow ONS to produce statistics. ONS use the data to identify businesses to survey about import and export prices, and in the analysis of the results of such surveys. Results from ONS's surveys feed into indices of the prices charged to producers (part of the measurement of the value added by UK manufacturers), and into analyses of the UK balance of payments in the National Accounts.

166.     Subsection (1) allows data held by Revenue and Customs, in connection with any of its functions (such as the collection and management of taxes, duties and National Insurance contributions) to be disclosed to the Board by the Commissioners for Revenue and Customs or an officer of Revenue and Customs. Subsection (5) limits the data disclosed in this way to information that is not personal information, except in relation to the import and export of goods from the UK, which may be disclosed.

167.     Subsection (2) states that, before making a disclosure, the Commissioners for Revenue and Customs must be satisfied that the Board requires the information to enable it to carry out one or more of its functions (excluding its function of providing statistical services).

168.     Subsection (3) limits the Board's use of information. The Board may only use the information provided for any one or more of its functions (excluding its function of providing statistical services).

169.     Subsection (4) sets out that the Board may not disclose information received under this clause without the consent of the Commissioners. Clause 36 will also operate to restrict the Board's disclosure of personal information received under this provision.

Clause 43 Information sharing: supplementary amendments and Schedule 2

170.     Clause 43 makes supplementary amendments to existing legislation to allow information flows to continue to the Board, as the legal successor body to ONS.

171.     Paragraph 1 removes the offence of unlawful disclosure of personal census data in section 8 of the Census Act, for England and Wales. The confidentiality obligation in clause 36 will apply to census information held by the Board.

172.     Paragraph 2 amends the Population (Statistics) Act 1938 (restriction on disclosure) to ensure that it is clear that clause 39 overrides the restrictions on disclosure by the Registrar General of information collected under this legislation.

173.     Paragraph 3 updates section 58 of the Finance Act 1969 c.32 by replacing references to the "ONS" and "Office" in that provision with references to the "Statistics Board" and "Board" where required. This amendment will allow HMRC to continue to disclose to the Board (as it does to ONS at present) PAYE information, specifically business name, address, economic activity code, legal form and size (in terms of numbers of employees). PAYE data are used to update and maintain the ONS's register of businesses - the inter-departmental business register (IDBR). The purpose of this register is to provide government with an adequate sampling frame for surveys, on which almost all of ONS's surveys of economic activity are based.

174.     Paragraph 4 inserts a reference to the Board and an "approved researcher" in section 3 of the Agricultural Statistics Act 1979 c.13. The ONS currently receives information collected by Department for Environment, Food and Rural Affairs (DEFRA) under section 1 of this Act; this amendment is necessary to ensure that DEFRA may continue to disclose information to the Statistics Board. The amendment also permits the Board to disclose the information to an approved researcher (see note to clause 36 above). Data collected under this Act is also used to maintain the IDBR.

175.     Paragraph 5 updates section 122AA of the Social Security Administration Act 1992 by replacing a reference to "ONS" with a reference to the "Statistics Board". Currently HMRC may disclose to the ONS contributions information, which includes statutory sick pay, maternity pay and paternity pay. This paragraph ensures that HMRC may continue to disclose this information to the Board.

176.     Paragraph 6 similarly updates section 91 of the Value Added Tax Act 1994 c.23, by replacing references to the "ONS" and "Office" in that provision with references to the "Statistics Board" and "Board" where required. This ensures that HMRC may continue to disclose VAT information to the Board, which is necessary because VAT data are used to update and maintain the IDBR.

177.     Paragraph 7 updates Schedule 7 of the Bank of England Act 1998. The Schedule currently contains a reference to the ONS, which this paragraph replaces with a reference to the Chancellor of the Exchequer (or any person to whom any functions of the Chancellor of the Exchequer under the Statistics of Trade Act 1947 are delegated). This permits the Bank of England to disclose data to the Statistics Board where it exercises the functions of the Chancellor under the Statistics of Trade Act 1947.

Clause 44 Power to authorise disclosure to the Board

178.     This clause sets out a mechanism for providing the Board with wider access to information held by public authorities. The clause creates a power for the Treasury to make regulations authorising the disclosure of information from a public authority to the Board to enable it to carry out its functions (except its function of providing statistical services).

179.     This is a similar provision to clause 48, which provides a similar mechanism for the Board to disclose information to other public authorities. The note to clause 48 gives an example of how this mechanism would work in practice.

180.     The power under clause 44 could be used, for example, to provide the Board with wider access to information, to improve the range or quality of the statistics being produced, potentially improving policy-making or resource allocation. It could also be used to reduce the burden on data providers, for example on individuals or businesses of filling in surveys, by removing the need to collect information already held by Government.

181.     Any gateways created by regulations made under this mechanism would be permissive rather than mandatory; that is, the public authority would be permitted to share the data, but not compelled to do so.

182.     Subsection (1) provides that the Treasury may make regulations permitting a public authority (as defined in clause 64) to share data with the Board, where this would not be lawful prior to the making of the regulations, either because of a legal barrier to data sharing or because the public authority would not otherwise have the power to share data with the Board.

183.     Regulations may only remove a barrier contained in the rule of law or an Act which received Royal Assent before this Bill (although, as set out in clause 51, they may not amend either the Data Protection Act 1998 or the Human Rights Act 1998).

184.     Subsection (2) states that the regulations may only authorise the Board to use the information received in pursuit of its functions, except in connection with its function of providing statistical services, and subsection (3) sets out that the Board may only use the data received for the purpose stated in the regulations. Unlike the similar clause 48, there is no explicit requirement that the information be used only for statistical purposes; this is because all of the Board's functions are statistical.

185.     The Board will not be permitted to disclose information received, other than in the circumstances set out in clause 36(3), with the exception of paragraphs (c) and (h), unless further disclosure is specified for in the regulations. Any unauthorised disclosure of information would breach the confidentiality obligation under clause 36 and incur the criminal penalties provided therein.

186.     Subsection (8) states that the regulations may only be made with the consent of another Minister of the Crown (or the Welsh Ministers where the regulations authorise a disclosure by a Welsh public authority exercising functions mainly in relation to Wales). The Minister consenting will usually be the Minister responsible for the public authority disclosing the information. For example in the case of data produced by DEFRA or the Environment Agency, the Secretary of State for Environment, Food and Rural Affairs would need to consent.

187.     Subsection (9) requires that the Treasury and the other Minister of the Crown consenting to the regulations be content that the data is needed for the purpose stated in the regulation and that the disclosure or use of the data is in the public interest.

188.     Where the data are being disclosed to the Board by a public authority for which the Treasury is the relevant Minister, subsection (10) states that no other minister need give consent to the making of the regulation. Subsection (11) sets out the Treasury family of bodies to which this applies; they include, for example, HMRC, the Bank of England, the Financial Services Authority (FSA) and the Royal Mint. However, under subsection (12), the Treasury must consult with the Commissioners for Revenue and Customs before making regulations involving a disclosure by the Commissioners or an Officer of the Revenue and Customs.