Health Protection Agency Bill [Lords]

Public Bill Committee, 1 July 2004.

Standing Committee F

Clause 4 - Functions: supplementary

Irene Adams (Labour, Paisley North)

I call Mr. Burstow to move amendment No. 24.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I intend to speak about the subject of the amendment on clause stand part, so I shall not move it.

Andrew Murrison (Conservative, Westbury)

I beg to move amendment No. 11, in

clause 4, page 4, line 23, leave out subsection (7).

Irene Adams (Labour, Paisley North)

With this it will be convenient to discuss amendment No. 23, in

clause 4, page 4, line 26, leave out subsection (8).

Andrew Murrison (Conservative, Westbury)

I commend the brevity of the hon. Member for Sutton and Cheam (Mr. Burstow), who speaks for the Liberal Democrats. I, too, will attempt to be brief.

This matter was chewed over in Grand Committee, and the form of words that we now have is the result of their Lordships' deliberations. However, there is still a little bit of confusion about what is meant by subsections (7) and (8). I hope that as a result of my probing amendments, the Minister will be able to expand on their provisions.

I understand that the agency will be a non-departmental public body, clearly distinct from a special health authority. It will therefore have a great deal more independence than the special health authority has now. That being so, powers of direction come into play. Subsections (7) and (8) seem to make it possible for the agency to be directed by the authority in a way that is not particularly well defined. The Grand Committee made play of the provision that the agency should ''have regard'' to the authority's policy when exercising its functions. That concerns me.

Amendment No. 11 teases the Minister by suggesting that that somewhat meaningless provision should be removed. We need to decide what is meant. Will the authority be able to tell the agency to do such and such, or to read its policy on this, that and the other? If so, we need to know who is to decide whether the agency has not had regard to a particular policy, what veto the authority might have, and under what circumstances it might be used. I am a little unhappy about that, and further work might be needed to clarify the relationship between the agency and the authority.

Amendment No. 23 is of a similar genre, so I shall not expand on it. I hope that I have made my purpose clear. I should be grateful to the Minister if she clarified the relationship between the agency and the authority.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I, too, shall speak briefly. Over and above the question of precisely what is intended by the phrase ''have regard . . . to'' in subsection (7), I ask the Minister to share with the Committee parliamentary counsel's thinking when advising that form of words rather than the phrase used in respect of the Food Standards Agency. I understand that Lord Clement-Jones raised the issue in another place, when he said that the present formulation had been used in respect of other bodies such as the Commission for Healthcare Audit and Inspection, but that it does not seem to apply in quite the same way to the workings of the FSA. My noble Friend rightly said that the role of the Health Protection Agency seems closer to that of the FSA than to that of the Healthcare Commission; it seems strange not to use the same formulation in the Bill. It would be useful if the Minister said something about that.

I have a further question about the effect of subsections (7) and (8), in respect of earlier discussions about finance and devolution. If it is a power of direction with which the agency must comply, as suggested in subsection (8), that surely could result in the agency incurring expenditure that it feels it should not have to pay. I am not clear what mechanism will be used in such circumstances. Will the agency be able to cut its cloth to fit the resources provided by the relevant devolved authority, or does the power supersede that? Will the power allow those devolved bodies to require something of the agency over and above that for which they are paying? It would be useful to have that clarified.

Melanie Johnson (Labour, Welwyn Hatfield)

Perhaps it would be helpful if I explained the purpose of the subsections to which the amendments moved by the hon. Member for Westbury (Dr. Murrison) relate. The amendments are not necessary. Subsection (7) gives the appropriate authority—the Secretary of State or the devolved administration as defined in clause 6—the power to direct the agency to have regard to aspects of the policy of the authority. The phrase ''have regard . . . to'', which has been subject to questioning by the hon. Gentleman, means to take account of. We cannot give a full set of meanings, but the matter of whether an authority has had regard to an aspect of policy will ultimately be for the courts to decide. It is not for us, as legislators, to interpret that.

Subsection (8) requires the agency to comply with any direction under subsection (7) and subsection (9) gives the appropriate authority the power, if it

''thinks that the agency is to a significant extent—failing to discharge any of its functions,''

or to discharge any of them properly, to

''give the agency such a direction as it thinks appropriate for remedying that failure.''

The power is subject to relevant consultation, described at subsection (13), which is intended to ensure that directions under subsection (9) do not place a disproportionate burden on the agency.

The approach taken in subsections (7) to (9) is close to that which Parliament approved last year for the Commission for Social Care Inspection and CHAI, which the hon. Member for Chutton and—it is too early in the morning—Sutton and Cheam (Mr. Burstow) mentioned. They provide much more limited powers of direction as to the exercise of functions than the Secretary of State and devolved Administrations currently have in relation to the agency's predecessor bodies. That reflects our determination that the agency should be independent, and that the Government should not micro-manage it. The issues were well aired in another place, and changes were made in response to matters that were raised by noble Lords.

We do not envisage that the appropriate authorities will need to make much, if any, use of the power in clause 4(7). The Department of Health has no intention of issuing weekly directions to the agency to take account of this or that aspect of policy. On the contrary, we are acting to reduce the burden of bureaucracy that we place on the NHS and other bodies by issuing a lot of communications.

Nevertheless there could, as I have said, be circumstances in which the provision was useful. It is difficult to give examples of how we might use a power that we do not expect to have to use. However, it is possible that the power in subsection (7) might be used by an authority that is beginning to consider whether the use of the power in subsection (9) is justified. I have some examples here, if hon. Members would like to hear them.

I have addressed many of the questions that have been raised. We do not expect to have to make much use of subsections (7) and (8), but they are not meaningless provisions.

Andrew Murrison (Conservative, Westbury)

Some examples would be helpful.

Melanie Johnson (Labour, Welwyn Hatfield)

Yes. One aspect of policy might be the aim of tackling health inequalities. The power in subsection (7) would not enable the appropriate authority to prescribe the action that the agency should take in the light of that aim. However, under subsection (8), the agency would have to take account of such a direction. The direction could not be ignored. The fact that subsection (7) enables an appropriate authority to identify aspects of the policy of the Secretary of State or of the devolved Administration that the agency must take into account could be relevant to judgments as to whether the agency is failing to a significant extent to discharge a function properly and therefore as to whether a direction should be included under subsection (9).

As I said, subsection (7) is, in a sense, a preamble to subsection (9), under which the appropriate authority considers possible action.

The Department, or the Government generally, might use the power under subsection (7) when it wants the arm's length bodies that are accountable to it to adopt a particular policy on their use of public funds. The Late Payment of Commercial Debts (Interest) Act 1998, for example, now provides the statutory right to claim interest on late payments of commercial debts. Before that Act was introduced, I recall that the Government made it clear that they expected the public sector to meet certain deadlines in settling bills, so subsection (7) would enable us to direct the agency to take account of such a policy in the future.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Will the Minister confirm that the power to direct would also be useful for giving effect to some of the outcomes from the ALB review, which might require the reconfiguration of some of those organisations and co-operation between different organisations to manage their back-office costs more effectively?

Melanie Johnson (Labour, Welwyn Hatfield)

We have no intention of using the power to direct unless it is necessary. We will usually expect the agency, as with all other Government bodies, to enact the policies that are relevant to them and that we should not need to resort to such powers. As I said, subsection (7) is more a staging post to subsection (9) than something that we expect to use routinely. We would probably use it only in the event of something not being picked up in the usual course of events—a situation that might cause us all mild concern. We do not expect that it will be used for anything specific. It is more a question of a body's taking due account of a certain area of policy.

Andrew Murrison (Conservative, Westbury)

Subsection (3) contains a range of broad powers to set up companies and all manner of other things. I would be very concerned if only a significant degree of direction were given in the mechanistic way that the Minister described, for example, in the collecting of debts. There is also a clear distinction between that sort of mechanistic direction, which relates to back-room functions such as the management of accounts, and the agency's functions, or what the agency is meant to be doing, which we discussed in some detail in our debate on clause 2. The two are quite distinct. Whether we use the terms ''directing'', ''having regard to'' or any other form of words, I hope that the Minister will accept that there is a clear difference between the functions of the agency, which we have discussed at length, and the back-room functions relating to such things as finance and debt collection.

Melanie Johnson (Labour, Welwyn Hatfield)

The Government do not intend to use the power to direct the agency to take account of aspects of policy that could be used to micro-manage the agency or to dictate its detailed operational arrangements. Indeed, the premise of the Bill and the basis on which the arrangements are set out is that the agency is a grown-up body and should be left to make grown-up arrangements on its own behalf. We do not need to be the hand in the glove all the time.

I shall give another example of a situation in which the power could be relevant. The Department has a policy that research should generally be published. If the agency did not publish its research, which is very unlikely, it could be directed to take account of the policy. Again, however, the Department would not necessarily dictate what it did in any specific instance. Again, it has a general, across-the-board policy.

On the issue of the arm's length body review, which the hon. Member for Sutton and Cheam mentioned, we could not use subsection (7) to give the agency new functions or detailed operational instructions. There may be no requirements in legislation as regards research or the payment of bills—to take two good examples—but normal, accepted practices may already be in place. Clause 4 is simply a rainy-day clause: in the unlikely event that things go badly wrong, it will help us to do what is necessary.

Andrew Murrison (Conservative, Westbury)

I am content with the Minister's explanation. She gave some helpful examples, which have clarified her intentions. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I wish to raise two issues, the first of which arises out of the exchanges that we have just had. I want to repeat my question about the Government's thinking on subsections (7) and (8). As the Minister said, the formulation is similar to that used for the Healthcare Commission and the Commission for Social Care Inspection rather than that used for the Food Standards Agency. It would be helpful if she could tell us what the thinking was that led the Government to base the formulation on the commission model rather than the Food Standards Agency model?

Secondly, I want briefly to probe the Government on the issue of surveillance, which is dealt with elsewhere in the clause and which I would have raised in my amendment, had I moved it. What timetable will the HPA work to in moving from the mandatory monitoring of methicillin-resistant Staphylococcus aureus to the mandatory monitoring of several other bacteria? It is some time since the Government said that the intention was to move to mandatory monitoring. In many people's minds, health care-acquired infections are synonymous with MRSA, but the category is far broader. It would be helpful to know when the data will start being collected on a mandatory basis so that we have a clearer picture of the scale of hospital-acquired infection.

Melanie Johnson (Labour, Welwyn Hatfield)

May I reassure the hon. Gentleman on his general anxieties about surveillance, which he also raised on Second Reading? At this point, it would probably be useful to discuss his amendment, which would have put a duty on the agency to prepare plans for expanding its surveillance activities and to publish its findings, together with an assessment of the costs. The agency already has a power to prepare and publish

plans for surveillance activities if it so chooses, so the amendment is undesirable for two reasons. First, as I said, we want the agency to be independent and grown up. Secondly, the amendment would have raised questions about why surveillance, among all the agency's other activities, had been singled out for attention, and why proposals had been made for expansion.

Surveillance is an essential activity, and the agency will be just as dependent as the special health authority on improving surveillance if it is to discharge the functions that we envisage under clauses 2 and 3. We do not use the term ''surveillance'' in the Bill, however, because we are aware of only one other instance in which it has been used. That was in the Regulation of Investigatory Powers Act 2000, which applies to covert activities, so it is perhaps a little different from what we are dealing with here.

We want uniformly high standards of clinical microbiology throughout the NHS. To take up one of the hon. Gentleman's concerns, it is important that the high standards in the labs run by the Public Health Laboratory Service are retained and, if anything, enhanced. We have taken steps to ensure that that is the case with the new post of inspector of microbiology.

The HPA currently undertakes a substantial amount of surveillance—if I can use that word—and it has inherited a number of systems from every part of the country. It is now working on a strategy, which will be put out to consultation in October 2004. That is essential, because the agency obviously relies on joint working with the NHS, local authorities and the other bodies that we have discussed.

The agency is working well, although there are gaps that the strategy will address. I am sure that the hon. Member for Sutton and Cheam will be interested to see that and will no doubt participate in the consultation in whichever way he sees fit, when the time comes.

Andrew Murrison (Conservative, Westbury)

This is a busy clause and there is a great deal in it. We have one or two concerns. There is a lot in subsection (3) and, my word, the agency will be jolly busy discharging it. On Tuesday we clarified what the agency's important work would be. I am concerned that in setting up companies, for example, the agency will run the risk of taking its eye off the ball. I am not necessarily against public bodies' diversifying into the commercial sector. However, I know from personal experience that there is sometimes a tendency for a body's functions to become diluted in the pursuit of commercial spin-offs and so on. I seek the Minister's assurance that that will not happen to the agency, particularly as it will by all accounts be so important in discharging the various functions that we discussed in relation to clauses 2 and 3.

On reflection, I think that the Bill would be greatly enhanced by including a reference to education in subsection (1)(e). We have talked about training, but on Tuesday we decided between us that education would be a major part of the agency's functions. We talked about ''Protect and Survive'' and we have rehearsed the arguments today, but that probably falls in the category of education, rather than training. I

hope that the Minister will agree on reflection that giving more prominence to the word ''education'' in the Bill would be helpful.

I am a little concerned by the list in subsection (1). The ALB review is due to start shortly. By the time that the Bill returns to the House on Report, I suspect that the review will have been finished—at least I hope so. The Minister may wish to amend the list in subsection (1), in the light of the abolition of various bodies as a result of the review. Perhaps she would like to comment on that in broad terms.

Subsection (3)(b) is quite tricky. It concerns the setting up of companies, but we have not discussed that at great length. To be fair, I think that the issue is beyond the ken of many members of the Committee, because it is complicated and legally fraught. However, I should like to register my slight concern. The provisions give a general power, and that is fine—I assume that we might see more in regulations. From my limited understanding, I know that the issue is a minefield. The HPA might encounter difficulties in setting up companies and drawing up contracts. I suppose that I am thinking of my constituency interests at Porton Down, where I understand that a similar process is going ahead. I hope very much that the powers have been designed with Porton Down in mind.

Melanie Johnson (Labour, Welwyn Hatfield)

Some of the functions in clause 4 are bread-and-butter activities for a number of bodies. The functions described may relate to everyday matters, as well as the setting up of companies, which the hon. Gentleman assumed was all that the provisions referred to.

The Centre for Applied Microbiology and Research has huge commercial experience and Porton Down is involved with a wide range of other commercial activities, so there is a lot of experience in the organisation. Any organisation may need to use a number of powers to provide for its everyday functions, to make sure that its staff are accommodated and that it is supplied in a variety of ways, as well as to deal with its commercial interests.

I am sure that the hon. Gentleman, knowing the success of the arrangements at Porton Down, will agree that such provisions have so far proved to be not a distraction but an enhancement. We should be confident that the HPA will not go in a direction that is intended to distract from its role, but where useful it will enhance its role and help others to enhance theirs. That will work towards the general effectiveness of the agency. I am sure that the agency has its eye on the ball in its current performance, and will not be distracted in any way. The question is which of the functions may be necessary on occasion in order to take forward the HPA's business in the most appropriate way possible and to support appropriately the functions that it needs to support.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister is about to sit down, but I want to make sure that the opportunity is not missed to answer the question that I asked about the FSA versus the CHAI formulation. Could she address that point?

Melanie Johnson (Labour, Welwyn Hatfield)

There are a number of differences. For example, some of the powers are paralleled in recent legislation, such as the Health and Social Care (Community Health and Standards) Act 2003 provisions for CHAI and the CSCI. Subsection (2), for example, on which I believe the hon. Gentleman commented on Second Reading, certainly would not enable the agency to detain anyone or to enter specific premises. It would need specific powers to do that.

I have also looked at the arrangements for the FSA model. That is old legislation—perhaps that is a little unfair, but it is certainly more than five years old—and it created a non-ministerial department, not a non-departmental public body. There are a number of differences. The Food Standards Agency—which I assume is what the hon. Gentleman means by the FSA—has a fairly unusual set of arrangements across Government, which were made partly in response to the great concerns about the independence of food advice following the BSE scandal. That body has a different set of needs to the body that we are considering.

Question put and agreed to.

Clause 4 ordered to stand part of the Bill.

Clause 7 - Publication of information

Andrew Murrison (Conservative, Westbury)

I beg to move amendment No. 14, in

clause 7, page 5, line 34, at end insert—

'(d) in contravention of the express wishes of the source of the information.'.

Irene Adams (Labour, Paisley North)

With this it will be convenient to discuss the following:

Amendment No. 13, in

clause 7, page 5, line 38, at end add—

'(4) Subject to subsection (2), the Agency must permit medical research to be submitted for peer-review publication.'.

Andrew Murrison (Conservative, Westbury)

Amendment No. 14 states that the agency must not publish any matter in contravention of the express wishes of the source of that information. It has been drafted to give assurance to those bodies with which the Health Protection Agency may co-operate in the acquisition of information. We have previously discussed those at some length. It would give them confidence that information would not be divulged. Clearly, there are overriding considerations to do with the Data Protection Act 1998 and the public interest. However, it is very important when information is shared between bodies and individuals that it is done in a spirit of security, particularly in some of the areas that the agency will be dealing with, which are quite sensitive.

Amendment No. 13 deals with ethics. It is now accepted as ethically unacceptable to conduct biomedical research, particularly that involving consent and human subjects, if it is not to be put into the public domain, whether the results are positive or negative. It is important, and certainly in line with the spirit of the age, that that should be reflected in the Bill, especially as the agency will be intimately involved with research on human subjects. I would be grateful if the Minister considered both amendments.

Melanie Johnson (Labour, Welwyn Hatfield)

The clause takes forward a proposal made in the 2002 consultation paper that received wide support. Subsection (2) sets three limitations on the agency's powers. It makes it clear in paragraph (a) that publication is not permitted if it contravenes the Data Protection Act 1998. Paragraph (b) states that the agency must not contravene express restrictions in other Acts, and paragraph (c) states that it must not publish if it is not in the public interest to do so.

Amendment No. 14 proposes an additional limitation: the agency should not have the power to publish if publication were to contravene the express wishes of the source of the information. I appreciate that some people would not be willing to share information with the agency if they believed that there was a risk that it might be published without their consent. I agree that the agency's effective functioning could be damaged if essential information were withheld. However, the amendment is not the right way to deal with those problems.

In effect, the amendment would wreck the provision, because the agency would lose the power to publish if it was the wish—or even the whim or caprice—of the source of the information that publication should not take place. Not many would find that acceptable. I am sure that the hon. Gentleman can think of many circumstances in which the sort of information that we would expect to be published could be prevented from being made available in the public domain.

Andrew Murrison (Conservative, Westbury)

The Minister has satisfied most of my concerns. However, the amendment includes the phrase ''express wishes''. It does not allow the agency to ask a third party, ''Do you mind if we publish?'' It has to have a person's express wishes. When disclosing information to the agency, the body concerned would have to say expressly that the information was for the agency's eyes only.

Melanie Johnson (Labour, Welwyn Hatfield)

I can still envisage such a provision being against the public interest or against the interests that the HPA is designed to protect and enhance—I am sure that the hon. Gentleman can imagine such circumstances—and it could be against the public interest even if it is expressly articulated as the hon. Gentleman suggests. It is for the agency to build confidence among those with whom it has dealings. We should remember that clause 5 provides for a mutual duty of co-operation. Those bodies do not have a choice; they have to co-operate with the agency. After all, the body has the security of knowing that the agency must not publish if publication is not in the public interest.

Amendment No. 13 would make it the duty of the agency to allow medical research—presumably carried out by the agency's employees and/or contractors—to be submitted for peer-review publication. However, publication would not be permitted in contravention of subsection (2). Again, I am sympathetic to the main concern—the view that people engaged in research should be able to make the results of their research available—and I warmly welcome the view that we should encourage peer review before publication, in order to ensure some quality control of what is put in the public domain. However, we have made it clear in other contexts that we are in favour of openness as a general rule. Indeed, I mentioned earlier that we are looking for research findings in general to be published.

The Government fund various ways of making the results of medical research accessible, but I shall not go into detail. The publication of research can sometimes be important to people's careers, but although we are enthusiastic about the value of publishing research, there is no getting away from the fact that the amendment is another attempt to set out in too prescriptive a fashion how the agency should conduct its affairs. I refer to our debate earlier this morning in which hon. Members expressed concern about the degree of micromanagement. I sympathise with the concerns behind the hon. Gentleman's probing amendment, but we do not want to get into micromanaging the agency's affairs in primary legislation. That is why I recommend that hon. Members resist the amendment if the hon. Gentleman presses it to a Division.

Andrew Murrison (Conservative, Westbury)

I am grateful to the Minister for setting out her thoughts on these issues. I will deal with amendment No. 13 and the issue of ethics first, as that is the most straightforward. In a sense, the agency will be bound by the normal rules of ethics: its projects will be subject to scrutiny in the same way as any other institution's projects would be. The nature of its work may add a certain flavour to the deliberations, but they are subject to ethical scrutiny, and an ethics committee would require that any research should be published; that is axiomatic. The amendment would, I hope, simply cement what is good practice and ethically defensible.

Perhaps the Minister will give this complicated area further thought before Report, because an agency that deals with biomedical research needs to be directed to comply with what is now accepted practice—not accepted best practice, but obligatory practice—in the publication of results. People working in this area in the public sector often require some assurance that their research will be published in the normal way. A concern of scientists who work in the public sector is that their research may not be dealt with as it would be by a university, for example. Of course, universities are funded by Government, but in an independent way. It would be helpful if some further thought were given to that point.

Melanie Johnson (Labour, Welwyn Hatfield)

This is a matter for all sorts of people. For example, editors of peer-review publications have an important role. When and whether to submit things for publication is a matter for expert judgment. There are a lot of standard issues; we do not want to single out the agency. I want to make it clear that we expect the agency to follow a policy similar to that of the National Radiological Protection Board: the only exception to its policy on publications is the commercial work that is conducted on a confidential basis.

Andrew Murrison (Conservative, Westbury)

It is helpful to have that on the record; I thank the Minister for her helpful intervention.

I will now deal with amendment No. 14. I am mindful of the Minister's cause, and I am beginning to wonder whether my amendment should have been a sort of second-order enjoinder on subsection (2), because, paragraphs (a), (b) and (c) clearly have primacy. On reflection, the insertion proposed in my amendment might have been a second-order insistence that the agency should not publish matters that are clearly subject to the Data Protection Act 1998 and the public interest. In general, we need to give third parties some confidence that information on sensitive issues that is shared with the agency—I hope that such information will be shared—will be dealt with in a privileged way if that third party feels that that is necessary and has expressly said so. Otherwise, there is room for—

Melanie Johnson (Labour, Welwyn Hatfield)

I am sorry; I missed that. Is the hon. Gentleman referring to clause 7(2)(a), because that paragraph states that the agency must not publish any matter

''which contravenes the Data Protection Act 1998''?

I think that that is what he is arguing for, so I am slightly confused.

Andrew Murrison (Conservative, Westbury)

Yes, of course information must not conflict with the Data Protection Act, and must be published in the public interest. For example, if information came into the agency's possession—

Melanie Johnson (Labour, Welwyn Hatfield)

I am sorry; I am not sure that the Bill states that it must be published in the public interest. It states that the agency must not publish if that is not in the public interest. That is not sophistry.

Andrew Murrison (Conservative, Westbury)

I could not possibly accuse the Minister of sophistry. Perhaps I should explain the point of amendment No. 14 in a little more detail. It is intended to put pressure on the agency to take note of the express wish of any third party with which it deals that information that the third party has given to it should not be published. The reason is to ensure that third parties will be forthcoming with the agency, as far as possible.

I absolutely accept the Minister's comments on paragraphs (a), (b) and (c) and the fact that my proposed paragraph (d) would cut across the entire subsection. She is right, and my intention in drafting the amendment was not to do that. However, she may want to consider—and those who draft amendments

on her behalf may want to give some thought to—a way of giving third parties the assurance that information that they may give the agency will be dealt with in a privileged way.

I should like to discuss the public interest in more depth on clause stand part, if I may. At present, however, the point I want to raise is that if it is clearly in the public interest that information given to the agency by a third party should be published, but the third party says that it does not want it published, that is just tough. It is in the public interest and will be published. I fully accept that my amendment might cut across that and I should not want that to happen.

On reflection, following the Minister's assurances, I shall not press amendments Nos. 13 and 14, but it would be reasonable for the Minister to reflect on the ethics of those amendments and find a form of words that would allow third parties to have confidence that the information that they shared with the agency would be dealt with in a privileged way, unless other considerations overrode that. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Andrew Murrison (Conservative, Westbury)

My concern with clause 7 has to do with the phrase ''in the public interest''. I know that Lord Fowler was greatly exercised by that in another place, and railed against it. We are right to be concerned because the phrase can mean all sorts of things. We need to be clear about who decides what is or is not in the public interest, and about the circumstances in which something might be deemed to be in the public interest.

It is easy to put the words almost glibly into the Bill; they appear often in legislation. However, to protect the liberties of individuals we need to be clear about what is in the public interest. The agency will deal with much sensitive information—some of the most sensitive information that it is possible to deal with, in the light of the terrorist threat and others. I suspect that the term ''the public interest'' will send shivers up the spine of many of us. It can be and is misused—not just in this country—to justify certain actions.

Precisely who will deem something to be in the public interest under the Bill, and who will decide that in the final event? Will the Minister define specifically the instances in which she envisages that invocation being used?

Melanie Johnson (Labour, Welwyn Hatfield)

Neither the Bill nor other legislation defines when publication would not be in the public interest. All the circumstances of a case have to be considered, and those are not readily specified in legislation. Ultimately, as I have said, it is for the courts to decide whether publication is not in the public interest. However, as the hon. Gentleman says, we all accept that, given the nature of some of the material that the agency might deal with, there will be times when publication would not be in the public

interest. National security and defence interests might be prejudiced, or information might touch on confidential aspects of an individual's health.

The reference in subsection (2)(c) to the public interest is to balance the references in subsections (2)(a) and (2)(b) to duties in statute. I understand that, without it, the implication might be that common law duties could be ignored. The agency, as a public authority, is obliged by section 6 of the Human Rights Act 1998 to act compatibly with human rights—that includes the right to respect for private and family life in article 8—which are given effect in domestic law by a mixture of statute and common law. Without the reference to a public interest test in subsection (2)(c), the power to publish in subsection (1) could be interpreted as overriding interests such as those protected by the duties of confidentiality.

I reassure the hon. Gentleman that subsection (2) is not code for, ''The agency cannot publish material that Ministers do not want published.'' I think that he was hinting at that in the second part of his remark. The question of whether publication is not in the public interest is to be determined objectively—ultimately, in the event of a challenge, by the courts. In that respect, the limitation in subsection (2)(c) does not differ from those in subsections (2)(a) and (2)(b).

No doubt there will be times when the agency will want to consult Ministers and others before taking a decision to publish. However, the decision rests with it. Subsection (1) identifies the agency as the body that has the power to publish, and as the body in subsection (2) that is subject to the few limitations that are set out in that power. That was discussed at some length in another place and I believe that consensus was achieved as a result of the debates.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.

Question proposed, That the Chairman do report the Bill, as amended, to the House.

Andrew Murrison (Conservative, Westbury)

Before we wrap up, may I say what a pleasure it has been to serve on this Committee. It has been a consensual Committee and a great deal of humour has been expressed all round. I congratulate you, Mrs. Adams, on the way in which you and Mr. Forth have discharged the office of Chairman. I thank the Clerks, also, for the assiduous way in which they have conducted their business, and the messengers who have patiently stood through our deliberations. I also thank the Minister for the helpful way in which she has approached our proceedings.

Melanie Johnson (Labour, Welwyn Hatfield)

I join the hon. Gentleman in thanking you, Mrs. Adams, and Mr. Forth for your chairmanship, and in thanking members of the Committee for their good humour during the useful debate of this short Bill. It is my pleasure to record that this has been the briefest Committee stage of a Bill for which I have been responsible as a Minister. The short time that it has spent in Committee is no doubt partly as a result of the nine and a half hours' consideration that it received in another place, but also because it is well thought through and short. I have been responsible for many of the largest Bills, with the longest-lasting Committee stages, in the history of the House, so I am very happy to have served on one of the shorter ones. I am grateful to hon. Members for their co-operation throughout.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I associate myself with the comments of the hon. Member for Westbury and the Minister. I add my thanks for the work that was done in the other place. I am sure that that helped to facilitate the speedy passage of the Bill through this Standing Committee.

Irene Adams (Labour, Paisley North)

I thank everybody on the Committee, the Minister, the Opposition, the Whips for expediting matters, the doorkeepers for their patience and the Clerk, without whom I could not function. I thank my co-Chairman, Mr. Forth, and my assistant, Mr. Hall, and everyone for their good humour and, most of all, their brevity, which will allow this Chairman to get an earlier flight home.

Question put and agreed to.

Bill, as amended, to be reported.

Committee rose at five minutes to Ten o'clock.