Joint Committee On Human Rights Appendices to the Minutes of Evidence


DRAFT

OVERSEAS DISCLOSURES: CRITERIA

(to be applied by a public authority in deciding whether to disclose information in pursuance of clause [233] of the Enterprise Bill)

Introduction

5. This document relates to disclosure under clause [233] of the Enterprise Act 2002 ("the Act") to an overseas public authority of information, disclosure of which is restricted by clause [227] of the Act. It sets out the criteria which must be applied in deciding whether to disclose such information to an overseas public authority.

6. Part [9] of the Act contains provisions regulating the disclosure of information by a public authority. Clause [227] of the Act restricts disclosure of "consumer information" and "competition information" (defined in clause [228]) which relates to the affairs of an individual or any business of an undertaking. Part [9] also provides "gateways" permitting the disclosure of such information in certain circumstances. These include the gateway in clause[233] relating to disclosure to an overseas public authority.

7. Certain disclosures can be made without relaying on the gateways in Part [9]. These include

—  disclosure of information legitimately in the public domain,

—  disclosure under powers which exist apart from part [9]

—  disclosure required for the purpose of Community obligation, and

—  disclosure made with the consents specified in clause [229].

In some instances, also, disclosure to an overseas authority will be justifiable under the gateways in clauses [231] and [232]. (For example, an overseas public authority may be a Community enforcer to which disclosure may be made to enable it to exercise power under Part [8] of the Act.) In all these cases, it will not be necessary to consider the gateway in clause [233].

8. Information cannot be disclosed under Part [6] if its disclosure would contravene the Data Protection Act 1998, and cannot be disclosed under clause [233] if it falls in any of the categories set out in clause [233(3)] or its disclosure is prohibited by directions of the Secretary of State under clause [233(4)].

9. Before deciding whether to disclose information using the gateway provided by clause [233], a UK public authority must consider whether the person or overseas body to which disclosure may be made appears to it to exercise functions of a public nature in relation to any of the matters set out at [(a) to (e)] in clause [233(2)] and in paragraph [8(2)] below.

10. "Relevant legislation" is—

    (a)  the Act and any enactment specified in Schedule [14] to the Act;

    (b)  legislation in any country or territory outside the United Kingdom which appears to the discloser to make provision corresponding to the Act or to any enactment specified in Schedule [14].

11. A public authority has always the absolute discretion in any case to refuse disclosure to an overseas public authority, [to take further concerns into account, or to impose additional criteria before disclosing information,] notwithstanding that the overseas public authority meets all the criteria in paragraph 8 below.

Criteria

12. In deciding whether to disclose information to an overseas public authority, a UK public authority must apply the following criteria, all of which must be satisfied before disclosure is made—

(1)  The oversea public authority has disclosed the purpose for which the information is to be used.

(2)  This purpose is one of those set out in [paragraphs (a) to (e) of subclause (2) of clause 233], that is, facilitating—

(a)  carrying out investigations in connection with the enforcement of any relevant legislation by means of civil proceedings;

(b)  bringing civil proceedings for the enforcement of such legislation or the conduct of such proceedings;

(c)  the investigation of crime;

(d)  bringing criminal proceedings or the conduct of such proceedings;

(e)  deciding whether to start or bring to an end such investigations or proceedings.

(3)  Having made public appropriate enquiries and taken into account all relevant information available to it (including the matters referred to in paragraph 9 below), the discloser is satisfied that the overseas public authority—

(a)  (i)  will observe any conditions that the information must not be further disclosed without the agreement of the discloser, except that:

(ii)  where a court or tribunal has the power to order the overseas public authority to disclose the information, it will seek to oppose such disclosure without the agreement of the discloser, and

(b)  will observe the requirement that the information will be used only for the purpose for which it is disclosed; and

(c)  will observe a condition that information obtained using a criminal investigation under clauses [184] and [185] of the Act shall not be used as evidence against that person in a criminal prosecution;

(4)  Data Protection legislation must apply in the home country or territory.

Matters relevant to criteria 8(3) and 8(4)

13. In considering whether the criteria in paragraph 8(3) above are met: the discloser must take into account:

(a)  the terms of any relevant agreement for mutual enforcement assistance between the governments or authorities of the country or territory concerned and the United Kingdom;

(b)  whether the overseas public authority has, in connection with any previous disclosure by a UK public authority under clause [233] complied with the requirements mentioned in that paragraph and the applicable criteria;

(c)  whether the overseas public authority has, in connection with any previous disclosure by a UK public authority not under clause [233] complied with any relevant conditions or requirements;

(d)  the nature and extent of any restriction under the law of the country or territory concerned on the use and disclosure of the information by the overseas public authority;

(e)  the extent to which protection exists in the country or territory concerned against compulsory self-incrimination in criminal matters (for example that afforded in the European Convention on Human Rights);

(f)  whether the overseas body is in a state which has implemented the EU Data Protection Directive or equivalent legislation.


 
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