My Lords, the adjudicator’s obligation to maintain strict standards of confidentiality is integral to the Bill. I therefore thank the noble Lord, Lord Browne, for his careful consideration of how we can make these standards exacting.
As I said in Committee, the Government are confident that the deputy adjudicator and people acting on behalf of the adjudicator would be bound by the duty of confidentiality as set out in the Bill. The deputy and the individuals acting for the adjudicator have no functions which are independent of the adjudicator and can only carry out the adjudicator’s functions. In doing so, they will be subject to the same restrictions as the adjudicator. If a person acting on behalf of the adjudicator breaches Clause 18, normal agency principles will make that a breach of Clause 18 by the adjudicator. Additionally, we are convinced that the words “may not” and “must not” have the same force and meaning here.
The noble Lord has raised the issue of plain English with regard to the amendments. We are confident that the Bill has the correct legal sense as it stands. Although it would not be wrong to use “must not”, we believe that “may not” is slightly better here. The words “may not” in their context here are clearly intended to be prohibitive. If they were permissive, it would mean that the adjudicator was allowed not to make unauthorised disclosures, which would not make sense. If further clarification were needed, the words “prohibitions contained in this section” are used in Clause 18(5).
The noble Lord has also suggested that the creation of a criminal offence is needed to discourage breaches of confidentiality. This seems unnecessary, as the adjudicator will be a public authority and be expected to take his or her statutory duties very seriously.
Perhaps I might also remind noble Lords that Schedule 1 provides for the Secretary of State to,
“dismiss the person if satisfied that the person is unable, unwilling or unfit to perform his or her functions”.
Serious breaches of confidentiality, either personally or from those working for him, have the potential to satisfy these requirements. We therefore believe that the threat of dismissal will be a sufficient deterrent, if indeed a deterrent is needed.
There are therefore ample reasons for the adjudicator and those working for the adjudicator to take care over confidentiality. I agree that strict confidentiality requirements will be essential if the adjudicator is truly to eradicate the climate of fear that we are aiming to address in the Bill. The Government are
confident that the Bill provides for these requirements as it stands. I therefore ask the noble Lord to withdraw his amendment.