Borders, Citizenship and Immigration Act 2009

Borders, Citizenship and Immigration Act 2009

2009 CHAPTER 11

Commentary

Part 1: Border Functions

Use and disclosure of information

Section 15: Prohibition on disclosure of personal customs information

65. Section 15 imposes a statutory duty of confidentiality on the Secretary of State by whom general customs functions are exercisable, a Minister of the Crown, and officials, in that Secretary of State’s department, immigration officers, the Director and any person acting on behalf of any of those persons. A similar obligation is imposed in section 17 on any person to whom personal customs information has been disclosed under either section 16 or section 17.

66. Subsection (1) lays down the principle that “personal customs information” may not be disclosed by a relevant official, the Secretary of State by whom general customs functions are exercisable, or by another Minister of the Crown in that Secretary of State’s department, to anyone who is not a relevant official or a Minister of the Crown. “Relevant official” is defined in subsection (3) to mean a designated customs official, an immigration officer, the Director and any other person acting on behalf of the Secretary of State by whom general customs functions are exercisable or the Director, a designated customs official or an immigration officer.

67. Subsection (2) preserves the general principle that Ministers should remain at arm’s length from taxpayer information. It creates a further statutory duty of confidentiality to protect personal customs revenue information from being disclosed to a Minister of the Crown by a person who is or was a relevant official.

68. Subsection (4) defines what is meant in this Part of the Act by “personal customs information” and “personal customs revenue information”. These terms include information relating to persons who are deceased, as well as those who are living, and to corporate bodies which no longer exist, as well as those which are still active.

69. Subsection (5) provides that a person does not breach the subsection (1) duty of confidentiality by disclosing information which that person knows to have been acquired otherwise than as the result of the exercise of a customs function. It also provides that a person does not breach the subsection (2) duty of confidentiality by disclosing information which that person knows to have been acquired otherwise than as the result of the exercise of a customs revenue function. These provisions ensure that the duties of confidentiality created by the Act only restrict the disclosure of that information which the Act is intended to regulate (namely information which it is known was acquired, or might have been so acquired, as the result of the exercise of a customs function, or customs revenue functions, as appropriate).

70. Subsection (6) provides that the statutory duty of confidentiality contained in subsections (1) and (2) is subject to the section 16 exceptions and to any other enactment (other than an enactment in this Part of the Act) permitting disclosure where such a disclosure does not contravene any restriction imposed by the Commissioners. An example of another enactment permitting disclosure of information that would otherwise be regarded as confidential under this provision would be the Criminal Procedure and Investigations Act 1996. That Act governs disclosure of information in the context of criminal proceedings.

71. Subsection (7) provides that this section does not apply to information supplied by or on behalf of HMRC or the Revenue and Customs Prosecutions Office (“RCPO”). This is without prejudice to any other restriction on the disclosure of such information. The confidentiality of information disclosed to a relevant official by HMRC and RCPO will continue to be governed by section 41 (as well as the new sections 41A and 41B inserted by section 20 of the Act) of the UKBA 2007. The reference to any other restrictions on the disclosure of such information is in reference to the restrictions in section 41B in particular.