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Lord Avebury: I am extremely grateful to the Minister. I gladly take up his offer and I look forward to discussing these points over the summer. In the meantime, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendment No. 218 not moved.]

Clause 97 agreed to.

Clause 98 [Regulations, &c.]:

[Amendment No. 219 not moved.]

Clause 98 agreed to.

Clause 99 [Interpretation]:

Lord Filkin moved Amendment No. 219A:


    Page 52, line 8, at end insert "and "Convention rights" shall be construed in accordance with section 1 of that Act,"

On Question, amendment agreed to.

Clause 99, as amended, agreed to.

Clause 100 agreed to.

Schedule 6 agreed to.

Schedule 7 [Immigration and Asylum Appeals: Consequential Amendments]:

Lord Filkin moved Amendment No. 219B:


    Page 95, line 2, leave out from "only" to end of line 5 and insert "the circumstances appertaining at the time of the decision to refuse.""

On Question, amendment agreed to.

Schedule 7, as amended, agreed to.

Clause 101 agreed to.

Lord Filkin moved Amendment No. 220:


    After Clause 101, insert the following new clause—


"SPECIAL IMMIGRATION APPEALS COMMISSION: COMMUNITY LEGAL SERVICE
In paragraph 2(1) of Schedule 2 to the Access to Justice Act 1999 (c. 22) (Community Legal Service: courts and tribunals in which advocacy may be funded) the following shall be inserted after paragraph (h) (and before the word "or" which appears immediately after that paragraph)—
"(ha) the Special Immigration Appeals Commission,"."

On Question, amendment agreed to.

Remaining clauses and schedules agreed to.

Lord Filkin: I apologise for interrupting the proceedings, but before we conclude the Committee stage of the Bill, I should like to thank all noble Lords who have taken part in our seven days of deliberations. I thank in particular the Opposition Front Benches for their strong challenges. We look forward to considering those over the summer.

I should also like to thank the Bill manager who, unusually, is moving on to take up a new role. I shall not have an opportunity to thank him at the end of Third Reading.

House resumed: Bill reported with amendments.

Enterprise Bill

7.6 p.m.

Lord Sainsbury of Turville: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

29 Jul 2002 : Column 739

Moved, That the House do now again resolve itself into Committee.—(Lord Sainsbury of Turville.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE DEPUTY CHAIRMAN OF COMMITTEES (Baroness Fookes) in the Chair.]

Clause 233 [Information]:

Lord Sainsbury of Turville moved Amendment No. 254:


    Page 166, line 15, leave out "subsection (4)" and insert "this section"

The noble Lord said: This amendment makes a technical change to Clause 233 to ensure that both the order-making powers in the clause are subject to the negative resolution procedure. The clause contains two order-making powers for the Secretary of State. However, subsection (4), which determines the procedure under which the orders must be made, refers to only one power. The amendment ensures that both orders are subject to annulment in pursuance of a resolution of either House of Parliament. I beg to move.

On Question, amendment agreed to.

Clause 233, as amended, agreed to.

Schedule 14 agreed to.

Clauses 234 and 235 agreed to.

Clause 236 [Statutory functions]:

Lord Kingsland moved Amendment No. 255:


    Page 167, line 16, at end insert—


"save that where the information has been obtained by the OFT or the SFO using the powers contained in Part 6 of this Act, and no action is taken in relation to section 183, the information cannot be used for the purpose of any proceedings under the Competition Act 1998, unless that information could have been obtained by the OFT in any event using its existing powers."

The noble Lord said: I rise to move Amendment No. 255 and speak to a number of other amendments grouped with it. I apologise to noble Lords if I take a little time over this series of amendments.

So far as Amendment No. 255 is concerned, we are worried that the provisions in Clause 236 go wider than the disclosure provisions in Part 3 of the Anti-terrorism, Crime and Security Act 2001 in that they also allow information to be disclosed in relation to civil proceedings in connection with relevant measures set out in Schedule 15.

This would mean that information obtained by the OFT— by using the more extensive powers available to it under Part 6 in the investigation of a purported cartel offence which is not pursued to prosecution, or where there was no realistic expectation that a prosecution would ensue—could be used for civil proceedings if the information indicates some other breach of the Competition Act 1998. This information may not otherwise have been available had the OFT used its existing powers in relation to civil proceedings. There should be a provision preventing the misuse of information in this way.

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The purpose of the amendment to Clause 237 is to ensure that there are adequate safeguards and, in particular, that disclosure is a proportionate response to the request for information. Clause 237 provides that a very wide range of public authorities would be entitled to disclose information obtained by them for the purposes of a criminal investigation into, or criminal proceedings for, any offence in the United Kingdom or elsewhere; or for the purpose of facilitating a determination of whether any such investigation or proceedings should be initiated or brought to an end.

The Joint Committee on Human Rights has considered the provisions of the current Bill in its 18th report, published on 21st June 2000. The Joint Committee referred to the submissions from Justice and considered that the disclosure provisions engaged the right to respect for private life under Article 8 of the European Convention on Human Rights—and that the safeguards in the Bill were unsatisfactory. We agree with this. The safeguards should be in primary legislation and go beyond those set out in Clause 240.

Further, in relation to disclosure overseas, safeguards should not be left to criteria published separately under Clause 239 by the Government in a form that is not open to parliamentary scrutiny. In particular, the Joint Committee stated in its report:


    "we consider that the criteria for making disclosures are important elements in the safeguards for Article 8 rights which ensure that any interference with the rights will be in accordance with the law and proportionate to a pressing social need, as required if it is to be justifiable under ECHR Article 8(2). They should be accessible and should have full legal force. As such, they should be contained in the primary legislation which confers the disclosure powers, not left to be promulgated later in a relatively informal form".

The report continued:


    "We consider that, to comply with the requirements of ECHR Article 8, the draft criteria should place a good deal more emphasis on the need to assess whether, in each case, the disclosure being contemplated would be proportionate to a pressing social need which the disclosure is intended to address. Decision-makers need to be made aware that this assessment is central to the legality of their disclosure decisions, and will be open to challenge in litigation in the United Kingdom under section 6 of the Human Rights Act 1998. The guidance on making the assessment should be informative and, as far as possible, unambiguous".

The report further continued:


    "we wish to see the criteria for making disclosures, and particularly the treatment of proportionality issues under the criteria, emphasise the distinction between making disclosures for the purpose of an ongoing investigation where there is already evidence that an offence has been committed, and disclosures for the purpose of deciding whether to initiate an investigation. When a disclosure is sought for the latter purpose, the person deciding whether to make the disclosure will need to be satisfied that there are particularly strong grounds for conducting a speculative inquiry, which might sometimes be little more than a 'fishing expedition', if he or she is to avoid making a disclosure which is not proportionate to any demonstrated pressing social need, and thus unlawful by virtue of Section 6 of, and Article 8 of Schedule 1 to, the Human Rights Act 1998".

We would respectfully endorse the views of the Joint Committee in pressing for the need for appropriate safeguards to be included in these provisions.

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This clause is less satisfactory than a similar disclosure provision in Section 17 of the Anti-terrorism, Crime and Security Act 2001 in that it does not even have the proportionality test that was inserted into Section 17 during the passage of the ACS Act through Parliament. This is the very minimum safeguard that should be included in the provisions.

Although it is useful to use Section 17 of the ACS Act as a guide to what minimum safeguards are required, it should not be regarded as the definitive model on which these provisions should be based, particularly as the Joint Committee similarly criticised the disclosure provisions in the anti-terrorism legislation. Its views were not heeded by the Government.

Our view of those provisions is that they are much wider than necessary and will lead to a severe invasion of privacy. We agree with the view expressed by Justice that the disclosure powers in the Enterprise Bill cannot be justified by the pressing public interest considerations cited in relation to the ACS Act.

The definition of "public authority" in Clause 233(3) is by reference to Section 6 of the Human Rights Act 1998, which is in very wide terms. It includes courts, tribunals and,


    "any person certain of whose functions are of a public nature".

When the Joint Committee was considering the provisions in the Criminal Justice and Police Bill, the Joint Committee heard evidence from Mr Hartnett, who said, inter alia,


    "we have described a 'public authority' as that which has the same meaning . . . as in section 6 of the Human Rights Act. So we feel that that not only deals with the specific point about disclosure, but the fact that we have anchored this . . . to Section 6 of the Human Rights Act means that any disclosure that a public authority makes must be compatible with Article 8 of the Convention . . . and thereby it has to meet the tests of reasonableness and proportionality which we understand the Committee was concerned about in January".

However, it cannot be assumed that the Enterprise Bill will be interpreted in such a way that disclosure will be compatible with Article 8 of the convention. By including a clause which makes express provision for the tests of reasonableness and proportionality, there can be no doubt that Article 8 should be complied with.

As to Amendment No. 258, Clause 240 sets out the considerations that a public authority must take into account before making a disclosure of information. While we are pleased to note that Clause 240 recognises that business undertakings have a legitimate interest in the safeguarding of commercial secrets from leakage into the public domain, this should also be reflected in Clause 238. The Secretary of State should take into account similar considerations when deciding whether to prohibit disclosure to an overseas authority. The suggested amendment will ensure that there are further safeguards against abuse in relation to the transfer of information to law enforcement authorities outside the UK.

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The amendment replicates the considerations found in Clause 240, as well as providing that the Secretary of State should take into account whether the countries to which disclosure is made will have rules of confidentiality no less strict than those of the UK. This is particularly important given that the provisions in subsection (7) have no realistic means of enforcement.

The provisions as drafted could be open to abuse, particularly abroad where there can be no control over the use of the information provided, notwithstanding any agreement envisaged by subsection (7). If information were to be provided and neither criminal proceedings taken nor even an investigation commenced, what is to stop information being used to gain an unlawful economic or commercial advantage?

I apologise for taking so long to speak to the amendments but, as the Minister is aware, we take these points on disclosure extremely seriously. I beg to move.


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