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Mr. Heald: I am grateful for that. This is the point that my hon. Friend the Member for Stone was particularly keen to get at; what does the Minister's state of mind have to be to trigger the performance of the functions referred to? The point that my hon. Friend was making about Liversidge v. Anderson was that, even in Lord Atkin's judgment—the Minister accepts that that is the correct way of looking at the matter—the Minister has to have reasonable cause for his thinking; he does not have to genuinely believe on reasonable grounds. That is the essence of my hon. Friend's point. I would be grateful for a bit more detail on what, in the Minister's view, is the reasonable state of belief required from a Minister in carrying out the functions. He has talked about the concept of reasonableness, but we should tie that down in a bit
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more detail. I ask the Minister to say a bit more about whether the belief has to be a genuine belief on reasonable grounds in order to enable the Minister, or Her Majesty, to carry out the functions referred to in line 3.
As regards the national interest, the Minister and his colleague will know that I have been teasing out the following point in recent discussions: under the 1920 Act, there was the idea of the essentials of life; the Act was about providing to the community the essentials of life in circumstances in which they had been deprived of them. In the Bill, the definitions are much broader and the powers much wider. We are told about the trigger mechanisms and the ways in which the Bill provides protection but, overall, is the purpose of the Bill still the same as that of the 1920 Act—that is, to ensure that an emergency can be dealt with by ensuring that the essentials of life are made available to those deprived of them? If not, and the purpose is now wider, will the Minister explain why? I am sure that that was what my hon. Friend was getting at in using the expression
''that the exercise of those functions are essential in the national interest''
in his new clause.
We want the Bill to be used only in circumstances that are grave and affect the national interest, and in which the community has been deprived of the essentials of life. In other words, we want to know whether the essential aims of the Bill are no different from those of the 1920 Act, and whether the Bill is a modernisation, or an updating; we want to know whether it is looking at the same issues, but in a modern context.
Mr. Alexander: Let me endeavour to answer both those points. Last night, while checking that the reply to a query put to me by the shadow Attorney-General was accurate, I found myself a reading public law case book. One of that book's comments was that we should no longer be haunted by the decision made in Liversidge v. Anderson, although I fear that it continues to haunt some of our deliberations and discussions. On the point about reasonableness, I repeat what I said earlier: we have considered the implications of Liversidge v. Anderson and of subsequent case law. We are satisfied that it is now accepted that the dissenting judgment of Lord Atkin is good law, and that the courts will inquire about the reasonableness of the Minister's belief.
In relation to the specifics of this Bill, there was a question about what reasonableness of belief would mean in the context of particular ministerial deliberations. Clearly, there would be a genuine, objectively reasonable belief; that would be a matter for the deliberation of the courts in circumstances following the judgment exercised by the Minister.
I am not convinced that the hon. Gentleman's case for the need for an element of national interest adds much to the definition of emergency that we have set out, which clearly modernises the essentials of life and the terms on which the whole Bill is founded. The commodities of life were described in the 1920 Act in terms of issues such as locomotion. It is appropriate to
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modernise the framework of civil protection, but also to ensure that there is a rigorous and clear definition of emergency. Much of the Committee's recent discussions has covered exactly that point.
Mr. Heald: I have no doubt that we will wish to return to this subject on Report. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New clause 2
Confidentiality
'Regulations under section 2(5)(iii), section 4(4)(b) (to the extent that they make provisions of a kind permitted under section 2(5)(i)) and section 6(1) or (2) shall make suitable provision to protect the confidentiality of information provided or disclosed under those regulations, including an appropriate enforcement mechanism.'.—[Patrick Mercer.]
Brought up, and read the First time.
Patrick Mercer: I beg to move, That the clause be read a Second time.
New clause 2 is essentially a confidentiality clause. It is based not on the idea of a reasonable and rational Government enforcing such powers, but a Government who are malevolent, misguided, or, more predictably, thoroughly shocked by the events that surround them, in a way comparable to the effects of the strictures and difficulties under which Mr. Bush's Government operated after 11 September. In those circumstances, I think that that Government reacted extremely rationally, but it is possible that a Government might not react so rationally.
The new clause is designed to act as a whistleblower's comfort blanket. As things stand, the Government will be able, on Royal Assent, to demand information for any purpose they desire and pass it on or force it to be passed on to whatever level of responder they desire. That information could be dangerous; it might lead to conflicts of interest and to difficult circumstances where the passage of intelligence is concerned. It is important that the new clause should be viewed as intending to alter the behaviour of a malevolent Government, or a Government in deep shock. Although the new clause does not guarantee personal anonymity for the source of the information, at least the information will have to be kept secret. That might allow whistleblowers, for want of a better phrase—those who have difficulties with the way the Government are conducting themselves in these circumstances—physically to come forward with that information. I would be grateful if the Minister would illuminate me on that point.
Mr. Allan: The new clause picks up on some issues that we raised at the start of this Committee—it feels like many weeks ago, but it was not that long—concerning part 1 powers. The hon. Member for Newark is right about the ability for responders to demand information from people and then pass it around between themselves. What might happen with that data remains a matter of concern. We are probably primarily concerned with problems arising with commercially sensitive data, rather than intelligence-sensitive data. The point where there is
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greatest danger of leakage, and of upset on the part of a company because its commercial information is in the public domain, is probably when the information about the telephone networks and other utility networks has been demanded and is in circulation. However, personal data about individuals could also be included. If we think about the public health issues that might arise here, such as those raised by communicable diseases, we could be dealing with personal data, and a category 1 responder requesting personal data from another category 1 responder. If they are both health bodies, that data will be incredibly sensitive.
My guess is that the ministerial response will say that this is covered by the Data Protection Act 1998—that tends to be the response to any question concerning the leakage of data—but that is large and all-encompassing and is rarely used. The notion of there being straightforward legal redress—the penalties imposed for the leaking of certain kinds of information—is perhaps not as current as it should be, or as Parliament intended. It remains quite a weak instrument, and the idea that there should be specific reference to sanctions, as proposed in the new clause, in the context of a Bill that gives category 1 responders a power to demand this kind of information is quite healthy. Where, for the public good we are stating that data must be handed over, it is appropriate to say that those people who demand the data have, in Government jargon, responsibilities as well as rights, and their responsibility is a responsibility of confidentiality, backed by sanctions if they step from the path set out for them.
Patrick Mercer: The path of righteousness.
Mr. Allan: Indeed. It is entirely appropriate that if we have the ability to demand information, there should be an explicit corresponding responsibility to protect it. I did not feel that that was explicit enough when we discussed the matter in part 1. The Data Protection Act powers are there—speaking of long Committees, the Committee on that Bill was 10 times as long as this one, mentally, if not in actual time taken—but they are not in the common usage required for there to be immediate recourse for people if their data have been leaked.
Mr. Alexander: I feel that I will disappoint the hon. Member for Newark once again by resisting the new clause. Throughout the Committee stage he has consistently implored us to take a practical approach. Indeed, it may be a matter of some quiet pride to him that one morning I was doing something as innocuous as shaving when he appeared on the ''Today'' programme making exactly these points and causing the Minister to have a rather more troubled breakfast than he had anticipated.
I will try to answer specific points about information sharing, which is important with regard to the Bill's intentions and the safeguards that form the substance of what the hon. Member for Sheffield, Hallam said. Information sharing is fundamental to the development of sound risk assessments and well founded planning and response arrangements. How could a fire authority assess risk and make response plans without a thorough knowledge of how a local
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electricity generator works? That is a very straightforward example. We recognise, however, that while information sharing is vital, it is highly sensitive. The hon. Gentleman was right, therefore, to emphasise that the confidentiality of information disclosed as part of the civil protection arrangements should be protected. He is also right to seek assurances that where confidentiality is breached, enforcement action will be available.
While I am unable to accept the amendment, I hope that my explanation will at least throw light on the points he has raised. Information sharing, whether under clause 2(5) or clause (6), will not materially affect the law of confidence. If one responder passes confidential material to another, pursuant to the regulations, he will be able to rely on common law remedies to enforce that confidentiality. In addition, the draft regulations contain provisions that preserve the confidentiality of sensitive information shared between responders. Furthermore, a responder—or a Minister of the Crown—may bring action in the High Court in respect of a failure by a responder to comply with the regulations. As draft regulation 29 makes clear, provisions concerning the protection of sensitive information not only cover commercially sensitive information but information the disclosure of which would be contrary to the interests of national security or would endanger public safety, and personal data the disclosure of which would breach the Data Protection Act 1998. That was raised by the hon. Member for Sheffield, Hallam.
5 pm
In addition to the remedies offered by the Data Protection Act, the enforcement mechanism under clauses 10 and 11 would also apply. On that basis, I hope that I have offered the assurance that the hon. Gentleman seeks and I urge him to withdraw the amendment.
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