James Brokenshire (Hornchurch, Conservative)

I seek clarification from the Minister of subsection (3), which authorises disclosure in certain circumstances. My question relates to whistle-blowing and whether any illegal or inappropriate actions would be taken by the commission. Do protections exist to permit individual commissioners to blow the whistle in such circumstances? Although we would not anticipate any illegal or inappropriate action being taken, I want it to be made clear both that protection exists in the Bill or in wider law to allow a commissioner to make a disclosure and that the let-outs provided in subsection (3) are sufficiently wide and drafted in such a manner to permit whistle-blowing.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

The clause makes it an offence for active or former commissioners, employees or committee members of the commission to disclose to third parties information that was acquired during an investigation, inquiry, assessment, agreement or compliance notice process. That replicates—with one important difference that I shall come to in a moment—the limits on disclosure of information for the three existing commissions. The fine for a breach of up to £5,000 will remain at the same level as in the existing legislation.

There are many issues that we are taking forward in relation to the position of the existing commissions. We wish to have no regression in the powers or general position. Disclosure will be limited in this way to protect individuals and organisations from potential harm caused by the release of information that may be confidential or sensitive and to provide assurances to potential witnesses that they will have the necessary protection when providing information in confidence.

As with the current legislation, various exceptions are provided whereby the commission is allowed to disclose the information concerned, which are set out in subsection (3). Most of those exceptions are designed to ensure that the commissioners and the commission’s staff or agents are able to execute inquiry and enforcement functions, such as carrying out inquiries, reporting on investigations, serving an unlawful act notice or applying to court for an order or injunction, without placing themselves at risk of committing the offence of unauthorised disclosure.

The commission will also be able to disclose information with the consent of the person to whom the information relates, as is the case with the existing commissions. In order to ensure that information is not disclosed that could be prejudicial to national security, the commission will be prohibited from disclosing information provided by or relating to an intelligence service, unless that service has authorised disclosure. By intelligence services, I mean the Security Service, Secret Intelligence Service and the Government Communications Headquarters. Those arrangements are not currently in place for the existing commissions, but it is fundamentally right that,   although the Bill takes the opportunity to modernise and refine enforcement functions, it should not lead to a situation where the commission would disclose sensitive information relating to matters of national security.

As I indicated earlier, there is one important difference between the clause and the models found in the earlier legislation, which is that the bar on disclosure falls away 70 years after the information was supplied by a third party to the commission, except in respect of information provided by or relating to an intelligence service. That should not be confused with a sunset clause, where the clause itself falls away after a fixed period. That provision would not automatically lead to the disclosure of the information in question, as it would then come within the ambit of the Freedom of Information Act 2000. Under that Act, the information may remain partially or wholly exempt from the general right of access to information held by public authorities, through the application of another of the exemptions.

Committee members will appreciate that the Government wish to strike a balance between the need to protect confidential information about individuals and the need to ensure access to information, which is in the public interest as promoted by the 2000 Act. It is the Government’s view, as reflected in the clause, that individuals and organisations must be protected from the release of information that could inadvertently or unjustifiably harm them. We also want to ensure that   we do not discourage potential witnesses from coming forward because they are worried about being identified, particularly when the information in question relates to the highly sensitive matter of discrimination.

It is also reasonable to assume that the risk of such damage is likely to reduce with the passage of time, so the clause allows such information to be disclosed after 70 years. That appears to be an eminently sensible and reasonable compromise between the protection of individuals and the public’s right to know. An application for disclosure can always be made under the Freedom of Information Act to the provider of the information as opposed to the commission, which would be required to disclose it if it were subject to the freedom of information requirements.

I am grateful to the hon. Member for Hornchurch for raising the important issue of whistle-blowing. I want to go away and consider further how the clause relates to the issue and to check, as the protections have been in place for the current commissions, whether they have had any experience that could inform my response. With that caveat, the clause is necessary and important. The Government have carefully thought it through.