Trade (Disclosure of Information) Bill

Christine Jardine Excerpts

Committee stage & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage & Report stage: House of Commons
Wednesday 16th December 2020 Commons Chamber

[Stewart Hosie (Dundee East) (SNP)]

I wish to speak to amendment 1,

tabled in my name, and to some of the other clauses.

During the passage of the incomplete Trade Bill there were, as the Minister will have seared into his soul, a number of debates and amendments—I think amendments 33 and 34—relating to the requirement to collect data by Her Majesty’s Revenue and Customs, specifically with regard to the exclusion of protection of legal professional privilege, which in many other circumstances would have applied. The same issue to some extent arises, in terms of the disclosure of information, in clause 2(7) of the Bill. It states:

“A disclosure under this section does not breach— (a) any obligation of confidence owed by the person disclosing the information, or (b) any other restriction on the disclosure of information (however imposed).”

The explanatory notes make it very clear that

“Certain information held by specific public authorities are subject to constraints on disclosure. To enable sharing of this information, clause 2(7) provides a general disapplication of these restrictions.”

If I may, I will just remind the Minister what was said in previous debates on this matter. Legal professional privilege and confidentiality are essential to safeguard the rule of law and the administration of justice. They permit information to be communicated between a lawyer and client without the fear of it going to a third party without the clear permission of the client. In normal circumstances, that includes HMRC. Many UK statutes already give express protection of legal privilege and it is vigorously protected by the courts.

We are in a rather odd position where data can be collected and is required to be collected, and where legal professional privilege has been disregarded entirely. We are now in a position where clause 2(7) disregards legal privilege in terms of the disclosing or sharing of that information. The Minister may well pray in aid some of the limited protections that are offered in clause 2, but if I run through them I suspect we might conclude they are not quite as strong as the Minister might like to think they are. The explanatory notes state:

“Clause 2(8) confirms that nothing in this section authorises the disclosure of information which would contravene data protection legislation or which is prohibited under the Investigatory Powers Act 2016.”

So far, so good—that is helpful, but very, very narrow. Others may say that it is only specified public authorities who can disclose or share information. They are specified in clause 2(3) as: the Secretary of State, the Minister for the Cabinet Office, a strategic highways company, or a port health authority constituted in a particular way. However, clause 2(9) states:

“A Minister of the Crown may by regulations made by statutory instrument amend this section for the purpose of specifying a public authority in, or removing a public authority from, subsection (3).”

Therefore, any number of other bodies could be added to that list. The other protection one could point to would be to say, “Ah, but they can be added if they are dealing with functions relating to trade.” They include:

“the analysis of the flow of traffic, goods and services...the analysis of the impact, or likely impact, of measures or practices…the design, implementation and operation of such measures”,

and so on. Those three specifics, however, are prefaced by:

“Those functions include, among other things, functions relating to”.

That allows it to be completely open-ended. It is not a comprehensive or complete list. As anyone watching will know, trade is no longer simply about traffic flows, the number of containers, quota and tariffs. It is about a whole range of things: all sorts of regulations, security, immigration and goodness knows what.

The provision is vague and ill-defined. It strikes me as being subject to scope creep by regulation. Fundamentally, it includes clause 2(7)(a) and (b), which is a get out of jail free card insofar as it disapplies the normal protections of information being disclosed, which would be subject in many other circumstances, including in statute, to legal professional privilege. That is actually a problem in the long run, but not necessarily in the short run as it allows us to get over an immediate hurdle where data must be shared. I appreciate that but, in the long run, how on earth can we say that we are a law-abiding country and that we want to adhere to the international legal system—the rule of law internationally—when we have here the disapplication of fundamental rights and protections for people not to have their information, normally subject to legal protection, shared, collected, distributed and disseminated. When the hon. Member for North East Bedfordshire (Richard Fuller) asked whether a private body could act as a public authority, the answer seemed to be that, yes, it could. That means that we could have a private body—a private company of indeterminate origin and a very small book value—doing something on behalf of the public, acting as a public authority, where the normal protection of data, which it may be provided with to fulfil its role, has the normal protections of legal privilege disapplied in statute.

Time is short. I know that this is urgent, I am not stupid, but this is actually serious. We cannot have a Government riding roughshod over legal protection, legal privilege, in this way over such a short period of time just because they have failed to get their ducks in a row and a proper functioning Trade Bill through where everything joins up.

It is not my intention, Dame Rosie, to press amendment 1 to a vote, but I do hope that the Minister takes seriously what I have just said and understands the possible consequences, particularly if it is private bodies acting as public authorities which have disapplied from them everything in terms of protection other than data protection and whether it would breach one other piece of named legislation. That is a serious and bad place to be.

[Christine Jardine (Edinburgh West) (LD)]

I will not take the House’s attention for long. Again, I find myself in agreement. The Liberal Democrats have serious reservations about the original Trade Bill, but we recognise that, through no fault of this House, the Bill has to be expedited. We need some form of data protection and for our authorities be able to use the data effectively, so we are prepared not to go along with this Bill, but to accept that we need it and that we need it by 1 January. We are in this situation simply because the negotiations with the European Union have not gone in the way that the Government had assured us they would and because the situation has not been handled by the UK Government as expertly as we might have hoped.

[Greg Hands]

I will, if I may, respond to those points. I thank Members for making them and for participating in this Committee debate.

Taking the points in turn, the hon. Member for Sheffield Central (Paul Blomfield) asked about instances covered by clause 2(7). As he noted, reference to investigatory powers legislation is absent from the Trade Bill. That is a minor drafting error. I should have made that clear. An equivalent change will be made to the Trade Bill in due course during its passage.

The hon. Gentleman asked a series of more general questions about borders and ports and I will try to answer those as best I can, recognising that almost all of his questions are within the remit of other Departments, rather than the Department for International Trade.

The hon. Gentleman asked how the border operations centre will assist the movement of medicines and vaccines. That will be a key part of the priorities that we have set for the border after 1 January, to ensure that vital goods continue to flow quickly and efficiently. I will give an example of the sort of data that would be within scope for the border operations centre, assuming that the Bill becomes law. The ability to analyse customs declarations, transit declarations, export declarations, safety and security declarations and things such as highways data would, I think, allow medicines and vaccines to be moved more quickly and more efficiently than would otherwise be the case without the data.

--- Later in debate ---

[Stewart Hosie]

I would be delighted to take this opportunity to make the briefest of Third Reading speeches and to return to a theme that has typified this entire debate. Notwithstanding the need to be able to share data or to have the legal basis on which to do so, it is completely wrong to rush this through with potentially hours, or possibly a day or so, before the House rises for recess and barely a fortnight before the full horrors of Brexit come on to the British people and business in this country.

This is a lesson for us all in the future: there must be a better way of dealing with technical matters, even ones that come up urgently, than today’s very short and expedited debate. I hope that, as the Minister said in Committee, the Trade Bill gets its Royal Assent soon enough that the dangers implicit in this—temporary, I hope—legislation with a long sunset clause do not come to fruition.

Question put and agreed to.

Bill accordingly read the Third time and passed.

[Christine Jardine]

On a point of order, Madam Deputy Speaker, I thank you for your indulgence and your patience, and I ask your advice on a matter that has come to my attention today that is of great importance not only to my constituent, Murray Gray, but to a number of constituents, mostly children, who are currently in receipt of private prescriptions for medicinal cannabis. I have had confirmation today that the Department of Health and Social Care says that those prescriptions will not be permissible after 1 January, so a number of patients will find themselves without medication. I wondered whether there is some way that could be raised as an urgent matter to be discussed by the House, and that we could hear from the Department, before the House rises for recess.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I thank the hon. Lady for that point of order. It is not really a matter for the Chair, but she is a very experienced Member of the House and I am sure she will talk to the Table Office about the different ways she might raise this matter, perhaps through written questions or directly with Ministers. Obviously, the Treasury Bench has heard what she has to say, so I trust that she will do that as quickly as she can. It is also business questions tomorrow, and she may wish to raise it there.

I will now suspend the House for three minutes in order to allow the safe entry and exit of right hon. and hon. Members.