I beg to move amendment 25, in clause 7, page 5, line 8, leave out

“, or is about to make”.

This amendment, together with Amendments 26, 27, 28 and 29, would remove the ability of information notices and compliance notices to be given to public bodies prior to an actual contravention of the ban.

With this it will be convenient to discuss the following:

Amendment 26, in clause 7, page 5, line 12, leave out

“, or is likely to contravene”.

See explanatory statement to Amendment 25.

Amendment 27, in clause 7, page 5, line 15, leave out

“, or is about to publish,”.

See explanatory statement to Amendment 25.

Amendment 28, in clause 7, page 5, line 18, leave out

“, or is likely to contravene,”.

See explanatory statement to Amendment 25.

Amendment 29, in clause 8, page 6, line 6, leave out

“, or is likely to contravene”.

See explanatory statement to Amendment 25.

It is a pleasure to see you in the Chair, Dame Caroline.

In considering this clause, we will continue some of the debates we had on clause 4 on Tuesday. We have heard many similar views from a range of parties that the Bill is an unethical attempt to stifle freedom of expression and legitimate concerns of councils and other publicly funded bodies. They will face significant fines for being about to, or likely to, associate with international norms of behaviour. And who will be empowered to conduct investigations into those suspected breaches? Why, it will be UK Government Ministers themselves who are granted that authority! There go freedom of expression and the rule of law. I ask Members to support the SNP amendments.

Amendments 25 to 29 would remove enforcement authorities’ power to give information notices and compliance notices in anticipation of a contravention of the ban.

First and foremost, the powers given to enforcement authorities to be used before such a breach will prevent the sort of deeply divisive activity that we have heard about from representatives of the Board of Deputies of British Jews and the Jewish Leadership Council in oral evidence. It is obviously much better to prevent a breach of the ban in the first place than to wait for a divisive boycott or divestment policy to be put in place before taking action.

I reassure hon. Members that that does not mean that there will be active monitoring of public authorities. Potential breaches will be investigated as and when they are brought to the attention of enforcement authorities by third parties. When flagged to enforcement authorities, it is only where relevant to a potential breach of clause 1 or 4 that an information notice may be issued to require information from a relevant public body.

Finally, the enforcement regime does not provide unprecedented powers for enforcement authorities. It is based on existing regimes. The powers are based on those that the Office for Students already has for regulating universities, and the powers to enforce the ban for local government pension schemes are similar to those that the Pensions Regulator already has. I therefore ask that the amendments be withdrawn.

We wish to test the will of the Committee on the matter. I ask Members to support our amendments.

Question put, That the amendment be made.

The Committee divided: Ayes 2, Noes 9.

Question accordingly negatived.

Amendment proposed: 26, in clause 7, page 5, line 12, leave out

“, or is likely to contravene”.—(Chris Stephens.)

Question put, That the amendment be made.

The Committee divided: Ayes 2, Noes 9.

Question accordingly negatived.

Amendment proposed: 27, in clause 7, page 5, line 15, leave out

“, or is about to publish,”.—(Chris Stephens.)

Question put, That the amendment be made.

The Committee divided: Ayes 2, Noes 9.

Question accordingly negatived.

Amendment proposed: 28, in clause 7, page 5, line 18, leave out

“, or is likely to contravene,”.—(Chris Stephens.)

Question put, That the amendment be made.

The Committee divided: Ayes 2, Noes 9.

Question accordingly negatived.

I beg to move amendment 10, in clause 7, page 5, line 32, leave out subsection (8).

This amendment removes provisions stipulating that providing information in compliance with an information notice does not breach obligations of confidence or other restrictions on disclosure.

It is a pleasure to see you in the Chair, Dame Caroline.

Clause 7 sets out the significant powers to compel information that will be made available to the enforcement authorities detailed in clause 6. As we have heard, the enforcement authority will most often be the Secretary of State. The provisions in clause 7 provide enforcement authorities with the power to prepare and issue an information notice to request from a relevant public body information relating to a decision in respect of the Bill. The enforcement authority—usually the Secretary of State, as I say—can request any information likely to be useful for it to assess whether the provisions of the Bill have been contravened or are likely to be contravened.

Provision is also made in respect of clause 4, the gagging clause. Clause 7 means that the enforcement authority can request information if it is satisfied that a public body subject to the Bill is about to publish, may publish or has already published a statement prohibited by the Bill. The most egregious provision is subsection (8), which provides:

“A person providing information in compliance with an information notice does not breach—

(a) any obligation of confidence owed by the person in respect of the information, or

(b) any other restriction on the disclosure of information (however imposed).”

“However imposed” is a challenging phrase. It seems to grant the Secretary of State or other relevant bodies the power to issue notices that would not only require all information to be handed over, but override normally protected duties of confidentiality, safeguarding or legal privilege. That is very significant. We would argue that those powers of investigation go beyond the powers of the security services to compel information. There is no clarity or sense of what checks and balances there are. Even the security services, which do not have that degree of power, have oversight mechanisms such as the Intelligence and Security Committee of Parliament. Frankly, this seems to be a very strong power to reserve to the Security of State or, indeed, the Office for Students.

We have heard evidence from multiple witnesses who are concerned about these provisions. We did hear from others who are less concerned, but even if colleagues consider the case I have set out to be wrong or overstated, the ambiguity is obvious. At the very least, the Bill is not clear enough. It is important to say that the Government do not—if I have understood properly what the Minister told the Committee last week—want the provisions to supersede legal privilege. That is welcome, and I am keen to have similar commitments regarding safeguarding duties. If that is the case, amendment 10 promotes that.

I believe that the Government ought to accept our amendment, or at least propose an alternative in lieu. What is in the Bill seems overbearing; if not overbearing, it is definitely unclear. That, at least, must be resolved.

Amendment 10 would remove clause 7(8), which stipulates that providing information in compliance with an information notice does not breach obligations of confidence or other restrictions on disclosure.

The intention behind clause 7 is to provide a power for enforcement authorities to issue information notices to require information from a relevant public body relating to a decision in respect of the Bill. As drafted, the clause sets out a necessary and proportionate power for enforcement authorities properly to investigate potential breaches of the ban.

I must be clear that the clause does not place an undue burden on public bodies in scope of the ban. Information may be requested only if the enforcement authority is satisfied that a person has made or will make a decision or statement in breach of the Bill and that the information is likely to be useful for the enforcement authority’s investigation. Subsection (8) provides standard wording in order to give assurance to the person complying with the information notice that they will not be breaching an obligation of confidence or any other restriction on disclosure. The Bill is by no means unique in including such drafting; the same caveat is provided for in the Agriculture Act 2020, the Building Safety Act 2022 and the Health and Care Act 2022, for example.

The hon. Member for Nottingham North has said that he is concerned that the subsection would override the privilege between lawyer and client. I can reassure him that it does not. Legal professional privilege is a fundamental common-law right, including for those public bodies captured by the Bill, and specific words would not be needed to override it. The information power therefore does not extend to legally privileged material; I can confirm that I will clarify that point explicitly in the Bill’s explanatory notes. I would also add that Richard Hermer KC has subsequently clarified, in written evidence to the Committee on this point, his view that it is likely that a court would not deem legal professional privilege to be overridden by the clause.

Subsection (8) does not provide a right to extract the information, nor does it give a power to the Government; it simply provides the person who is disclosing information necessary to investigate a potential breach with protection against a claim for breach of confidence or any other restriction. I therefore ask the hon. Member to withdraw his amendment.

It is really important that legislation passed by the House be clear and unambiguous. As we have heard repeatedly in this Committee from a wide variety of sources, including witnesses who gave oral evidence and those who submitted written evidence, the Bill fails that test.

This subsection is another example of that. The open-ended reference to

“any other restriction on the disclosure of information” makes no distinction, for example, between somebody expressing a view in a private and in a professional capacity. That cannot be right. Subsection (8) should be deleted.

I am grateful to my hon. Friend the Member for Batley and Spen for her very effective contribution, with which I agree.

I hear what the Minister says about the intention behind the clause and about whether it is necessary and proportionate. I can probably agree with “necessary”, but there is still a divergence of views between us on “proportionate”. I also hear what the Minister says about commonality with other pieces of legislation. I am willing to accept that clause 7(8) is not a unique provision, but I do not think that that means that it is therefore the right provision. It could be badly drafted here and elsewhere too; that would not be without precedent.

I still have a problem. What the Minister says is welcome, and I have no reason not to take it at face value, but I am struggling to square paragraph (a), particularly the phrase “any obligation”, with what she said, because those are obligations, and they are now clearly not considered under “any”. It is already tricky that the “any” has caveats, but I also struggle to square the “any obligation” provision with subsection (9), which seems to set out other obligations, such as on data protection. I thought that the Minister might have relied on those, but she did not.

It seems that the Minister’s strong intention is not to override legal privilege—that is welcome news—and she intends to make that clear in the explanatory notes. That is just about enough to see me off today, but I hope that she will reflect on the point. I do not think that what is set out the Bill is quite clear, given what she has said. I also think that there is a clash with subsection (9).

I know that the matter will be considered in the other place, and on that basis I will not press amendment 10, but I do not think that we are finished here. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 33, in clause 7, page 5, line 39, leave out from “legislation” to end of line 41.

This amendment is to probe the way the legislation appears to “qualify” the data protection legislation.

It is a pleasure to serve under your chairmanship, Dame Caroline.

Like previous clauses that we have discussed, clause 7 is poorly drafted. It hands enforcement authorities powers that risk infringing on civil liberties such as the right to a private life. The clause allows an enforcement authority to compel a person suspected of contravening a ban to provide information, including personal information about people involved with a decision. It is clear that the intention is to prevent a public body from contravening clause 4, the so-called gagging clause. However, the broadness of the clause risks casting too wide a net and infringing on personal data. My amendment 33 seeks clarity from the Government as to how the clause will interact with existing data protection legislation.

Data law exists to protect people’s privacy and data, but the Bill is confusingly drafted. In its current form, the clause could be interpreted as implying that existing data protection legislation is to be read in line with the Bill, rather than the other way around. That obviously raises issues about an individual’s right to data privacy. The circularity of the drafting could potentially mean information disclosure obligations superseding data protection legislation. As has been raised numerous times under other clauses, the drafting clearly suggests that little thought has gone into the powers granted to enforcement authorities. It is unclear whether any assessment has taken place of the legal necessity of the powers or of whether they are proportionate under the General Data Protection Regulation and the Data Protection Act 2018.

The drafting of clause 7(8) is particularly concerning. It provides that disclosure of information under the provisions will not breach

“any obligation of confidence owed by the person in respect of the information, or…any other restriction on the disclosure of information (however imposed).”

That is such a broad definition that it potentially includes everything from contractual restrictions and court orders to legal professional privilege and even statutory restrictions on information disclosures.

Many people have raised these concerns, as we know from our evidence sessions last week and from written submissions. I am sure that granting such expansive powers was not the Government’s intention in drafting the clause. I hope that the Minister will provide an explanation of why they have drafted the legislation so confusingly in respect of data protection and why they are granting such expansive powers to enforcement authorities.

The clause has the potential to allow a severe intrusion on an individual’s right to privacy under article 8 of the European convention on human rights, which provides the right to a private life. The grounds on which information can be requested are very wide: someone would need merely to be suspected of being in the process of potentially making a prohibited decision or statement to be required to hand over information. That is compounded by the requirement to provide any information that is

“likely to be useful to the enforcement authority”.

It would be beneficial if the Government explained what kind of information could be requested through an information notice.

Amendment 33 is a probing amendment, so I will not push it to a vote, but I hope that the Government will provide further detail on what evidence individuals will have to provide when issued with an information notice, as well as looking again at the broad powers granted under the clause.

Amendment 33 would remove the part of clause 7 that refers to compliance with data protection legislation, specifically the requirement that the provisions of the clause should be taken into account when determining whether the provision of information would contravene data protection legislation. Importantly, an information notice does not require the provision of information if this would be in contravention of the data protection legislation.

The clause provides a lawful basis for sharing information. This is a standard drafting mechanism that respects the principles of data protection; it does not alter the principles of data protection. As I have already set out, the Bill is by no means unique in including this drafting, which features in various pieces of existing legislation, such as the Building Safety Act 2022 and the Agriculture Act 2020. For those reasons, I ask the hon. Member for Airdrie and Shotts to withdraw the amendment.

I thank the Minister for her response, but I do not think it goes far enough in addressing the concerns that I and other Members have raised. I heard what she said, and I understand from her previous contributions that some additions will be made to the explanatory notes. I am slightly concerned that, when they made concessions on clause 7 and others, the Government said that there will simply be additions to the explanatory notes, rather than anything on the face of the Bill. I hope the Minister will go back and seriously consider how to tighten up the language in the clause. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.

Clause 8 ordered to stand part of the Bill.