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The amendment would retain confidence breach as a potential consequence of passing information on to the intelligence services.
Clauses 19 to 21 allow for any person to speak to the security services in connection with any of their functions, without breach of a contractual duty or breach of common law duties of confidence. We imagine that those provisions have arisen in response to concerns in specific cases about the willingness of individuals to pass on information. We do not have any comment to make about the provisions with regard to, for example, breach of contractual obligations. We agree that the passing on of potentially valuable intelligence should not be jeopardised as a consequence of concern over potential civil action.
We are more concerned about breaches of obligations of confidence. The special nature of the relationship is, for example, recognised in Section 19 of the Terrorism Act 2000, which created an offence of failing to disclose a suspicion about terrorism arising from a person's employment. Section 19(5) has a specific exemption; it does not apply to information received from a professional legal adviser. There are other relationships of confidence that we believe warrant special consideration, including medical professionals and religious advisers. Rather than creating a blanket exemption from the possibility of a civil action for breach of any duty of confidence, we believe that Section 19 should recognise the importance of some such relationships of confidence.
It is important to appreciate that these amendments do not mean that any disclosure to the security services will result in a breach of confidence. It simply removes the absolute nature of the provision that there can be no breach of confidence when information is passed to the security services. There is already a defence of acting in the public interest to actions of breach of confidence. In deciding whether the defence applies to a particular claim, a court must balance on the facts the need to enforce obligations of confidence against the public interest in disclosure of the information of the type at issue. Any disclosure in the public interest must have been proportionate for the defence to succeed. I beg to move.