Joint Committee On Human Rights Appendices to the Minutes of Evidence

9. Memorandum from JUSTICE on the Enterprise Bill

1.  JUSTICE is an all-party law reform and human rights organisation. It seeks greater fairness, effectiveness and the advancement of human rights within the legal system. JUSTICE works through policy-oriented research; interventions in court proceedings; education and training; briefings, lobbying and policy advice. It is the British section of the International Commission of Jurists.

2.  In this note, JUSTICE's comments on the Enterprise Bill are confined to the provisions of Part 9, which allow for extensive powers of disclosure of information relating to competition matters. We would welcome the Committee's views in relation to these provisions. Our concerns relate to clause 232 of the Bill, which confers powers of exchange of information between UK public authorities (defined widely on the basis of the Human Rights Act definition of public authority) and to clause 233, which allows for disclosure of information to state authorities overseas.

3.  JUSTICE also expressed concern in relation to similar powers in the Anti-Terrorism Crime and Security Act 2001 (section 17) during the passage of the Bill through Parliament. However, the powers in the Enterprise Bill go further than those in the Anti-Terrorism Act, and are subject to lesser safeguards. Furthermore, the powers in the Enterprise Bill cannot be sought to be justified by the pressing public interest considerations cited in relation to the Anti-Terrorism Act.

4.  In JUSTICE's view, the current provisions for disclosure of information under Part 9 are not a sufficiently targeted response to a pressing social need under Article 8.2, and risk disproportionate interference with Article 8 rights.

Clause 232: Disclosure between UK public authorities

5.  Under clause 232, a public authority may disclose information to another public authority for the purposes of criminal proceedings or investigations, or, most significantly, deciding whether or not to begin an investigation or criminal proceedings. This latter power would appear to allow for extensive trawls for information, in circumstances where there were no existing grounds to begin a criminal investigation. In JUSTICE's view, the power to exchange information for the purpose of deciding whether to begin an investigation is not justified by any pressing social need and is so wide as to risk disproportionate interference with Article 8 rights to respect for private life.

Clause 233: Disclosure Overseas

Overseas disclosure for criminal and civil proceedings

6.  Of particular concern is clause 233, which allows for the disclosure of information obtained under the Bill to overseas authorities. Information may be disclosed, as under clause 232, not only for the purpose of pending criminal proceedings or existing criminal investigations, but more problematically, for the purpose of "deciding whether to start or bring to an end such investigations or proceedings" (clause 233(2)(e)). This provision would allow for information to be disclosed to authorities in another State as part of a fishing expedition to determine whether an investigation should be initiated in that State. It would thus enable extensive disclosure of information to authorities abroad, to jurisdictions where the use of the disclosed information may not be subject to the constraints and safeguards that apply under UK law.

7.  Clause 233 also takes a step beyond the powers in the Anti-Terrorism Act, in that it allows exchange of information abroad not only for use in criminal prosecutions and investigations, but also in relation to civil proceedings enforcing the relevant legislation (clause 233(2)(a) and (b)).

Clause 233 and privacy rights

8.  There is no limitation in clause 233 on the range of states to whose authorities information may be disclosed; it is clear that disclosure is envisaged beyond the states in the Schengen information system. In addition, there is no express constraint in the Bill on public authorities on exchanging information where it may be further disclosed in breach of privacy and data protection standards once it is transferred abroad. This raises questions as to the extra-territorial effect of the Human Rights Act, and the extent to which UK public authorities may be held to account where information disclosed abroad is subsequently used in breach of privacy rights. In order to clarify the position of UK public authorities, it would be helpful to include in the Bill an express requirement that information should not be disclosed abroad unless the disclosing public authority is satisfied that it will not be further disclosed in breach of privacy rights.

9.  Clause 233 (7) instead permits public authorities to impose restrictions on the continued use of information disclosed to overseas authorities. It states that information "may be disclosed subject to the condition that it must not be further disclosed without the agreement of the discloser" and that it "must not otherwise be used by the overseas public authority to which it is disclosed for any purpose other than that for which it is first disclosed." Such restrictions are, on the government's own admission, unenforceable,[5] in that they attempt to restrict the activities of foreign law enforcement authorities. Any remedy for the victim of a breach of privacy rights under the current provisions would certainly not be straightforward.

10.  There is no requirement in the Bill that these restrictions be imposed in any particular circumstances; they are at the discretion of the disclosing public authority, although that public authority will need to act within its obligations under the Human Rights Act, and under the guidelines issued by the OFT under clause 234.

11.  A similar provision to clause 233, contained in section 17 (2) (d) of the Anti-Terrorism Act, was particularly controversial in its passage through Parliament, because of the potentially disproportionate interference with privacy rights it allowed. Those provisions were justified by the government on the basis of the "compelling reasons" for disclosure in combating a terrorist threat.[6] In relation to the current Bill, there can be no such compelling justification.

12.  In JUSTICE's view, the potential of clause 233 to allow for uncontrolled dissemination of confidential information cannot be mitigated by aspirational legislative restrictions with no real prospect of enforcement. JUSTICE would favour the deletion of clause 233 from the Bill. However, if the provisions are retained, the Bill should make clear on its face that information should not be disclosed to authorities abroad where there are not clear rules and standards in place in the receiving jurisdiction ensuring protection of privacy and data protection to a standard equivalent to that in UK law.

May 2002

5   The explanatory notes to the Bill admit that: "it is accepted that subsection (7)(b) is essentially unenforceable as there are no sanctions that could be taken against an overseas authority that contravenes these conditions." (Explanatory Notes, Para.587) Back

6   Lord Rooker, Hansard, House of Lords Second Reading debate on the Anti-Terrorism Crime and Security Bill, 27 November 2001, col.144; Lord Rooker, Committee stage, House of Lords, Anti-Terrorism Crime and Security Bill, 6 December 2001, col 959-960 Back

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