Section 32 Executive office

135.     Section 32 requires the National Statistician to establish an executive office of the Board.

136.     Subsection (1) sets out that the executive office is to assist the National Statistician in the discharge of certain functions including the production of statistics including the retail prices index (under sections 20 and 21) and statistical services (under section 22).

137.     Subsection (2) requires the executive office to be headed by the National Statistician and to include the other executive members of the Board, subject to the conditions in section 33(3), that the Head of Assessment may not be part of the executive office. The National Statistician may appoint to the office any other employees of the Board as required.

138.     Subsection (3) permits the National Statistician to delegate any of the functions of the Board set out in subsection (1) to another member of the executive office. In effect, this will be much of the day-to-day work of the office, including the range of activities related to statistical production. However, subsection (4) makes clear that the delegation of any function under subsection (3) does not preclude the National Statistician from himself exercising that function.

Section 33 Head of Assessment

139.     This section requires the Board to employ a Head of Assessment as its principal adviser in relation to assessments and re-assessments of National Statistics and their compliance with the Code. The Board must have regard to the advice of the Head of Assessment on those matters.

140.     Subsection (3) establishes that, if the Head of Assessment is one of the executive members of the Board, he may not exercise the executive functions of the National Statistician under section 31. In particular, in the event of a vacancy in the post of National Statistician (section 31(5)), the Head of Assessment cannot be appointed to carry out that role. In addition, he may not be a member of the National Statistician's executive office (responsible for statistical production), and may not in any other way take part in the production of statistics by the Board.

Section 34 Separation of functions

141.     This section provides for the separation of the statistical production and assessment functions of the Board.

142.     Subsection (1) prohibits the National Statistician from taking part in deliberations or decisions about the assessment or reassessment of statistics that the Board itself has produced. That does not prevent the National Statistician from making representations to the Board about those statistics but, as with other statistical producers, he may not take part in decisions by the Board, or their representatives, on the assessment or reassessment of those statistics.

143.     Subsection (2) prohibits executive members of the Board who are neither the National Statistician nor the Head of Assessment, or any other staff assigned to the executive office from taking part in any deliberations or decisions in relation to assessment or re-assessment of any National Statistics, and their compliance with the Code. This applies whether the statistics in question are produced by the Board itself, or produced in other departments.

144.     Under subsection (3) the Board must establish processes to ensure that employees of the Board involved in statistical production should not be engaged in advising the Board on the assessment or reassessment of those statistics (under section 12(1) and 14(1))).

Section 35 Committees

145.     Subsection (1) gives the Board powers to establish committees to exercise its functions and to give it advice. The Board may establish committees, for example, to direct certain corporate policies and practice, such as on human resources, security or information systems.

146.     Under subsection (2), advisory committees (but not executive ones) may consist of individuals who are neither members of the Board nor employed by it. The Board might, for example, establish an advisory committee to help it address user needs, and include on it some key user representatives from academia, business, and the research community. It may also establish committees to advise it on the exercise of its functions relating to official statistics, which might include staff from other government departments.

Section 36 Delegation

147.     This section sets out that the Board may delegate certain of its functions and describes the conditions under which it may delegate. The Board may delegate to a member or employee of the Board, or to a committee of the Board who may, under subsection (3) further delegate down to sub-committees.

148.     Under subsection (2) the Board may not delegate its duty of adopting or revising the Code, nor decisions on whether statistics have complied with the Code and can therefore be designated as National Statistics.

149.     Subsection (4) provides for the fact that the delegation of a function under subsections (1) and (3) does not preclude the Board or a committee from exercising that function itself.

Section 37 Proceedings: supplementary

150.     This section provides that the Board may regulate its own proceedings and those of any other committee of the Board.

151.     Subsection (3) establishes that the validity of the proceedings of the Board, or any of its committees or sub-committees is not affected by a vacancy or a defective appointment.

Section 38 Use of information by the Board

152.     This section allows the Board to use any information it holds, including census information previously held by the Registrar General, to carry out any of its functions. This section will permit the Board to produce statistics for one purpose using information collected for another purpose, for example allowing an analysis of deprivation to be carried out using information collected as part of the census. This may also reduce the burden on information providers, for example individuals or businesses filling in surveys, by removing the need to collect duplicate information.

153.     Subsection (1) states that any information obtained by the Board in connection with any function exercised by the Board may be used by it in connection with any of its other functions.

154.     Subsection (2) restricts the Board's use of information in that, while the Board will have access to information about National Statistics for assessment purposes, it will not be able to use this information for other functions, such as the production of statistics.

155.     Subsection (3) specifies that information received by the Board as a part of its function of providing statistical services (under section 22) may only be used for the purpose of providing those services, unless the Board has the consent of the person who provided the information to the Board to use it in another way.

156.     Subsection (4) states that the Board may not use information where other legislation places limits on how that information can be used or disclosed. For example, section 58 (2) of the Finance Act 1969, restricts the Board's use of 'pay as you earn' (PAYE) information for the purposes of statistical survey; this section would not override that restriction on use.

Section 39 Confidentiality of personal information

157.     This section specifies that personal information (as described in subsections (2) and (3)), whether held by the Board or disclosed by the Board to others, is confidential.

158.     Subsection (1) states that personal information held by the Board should not be disclosed by anyone, whether a member of the Board (or one of its committees), an employee of the Board or anyone who has received it from the Board (directly or indirectly). Subsection (9) makes such disclosure a criminal offence, punishable by a fine or imprisonment. This is a similar penalty to that provided for unlawful disclosure of HM Revenue and Customs (HMRC) information in the Commissioners for Revenue and Customs Act 2005.

159.     Subsection (2) explains that 'personal information' is information that relates to and identifies a particular person. This would include information that could identify a business, even where that business had since changed form due to a merger. The meaning of personal information does not include administrative information held by the Board, such as records relating to the Board's employees (which may, however, be protected under the Data Protection Act 1998).

160.     Subsection (3) provides that information falls within the definition of 'personal information' at subsection (2) if the information in question either specifies the identity of the person, or could allow it to be deduced.

161.     Subsection (4) lists the categories of disclosure that are not restricted by the confidentiality obligation in subsection (1):

• paragraph (a), where other legislation explicitly requires or permits disclosure of personal information. For example section 58(4) of the Finance Act 1969 permits the Board to disclose certain information it has received from HMRC to another department for the purpose of a statistical survey;

• paragraph (b), where a European Community obligation requires disclosure, for example Council Regulation EC 184/2005 concerning balance of payments, international trade in services and foreign direct investment, requires submission and transmission of information, including confidential information, to the Community authority (Eurostat);

• paragraph (c), where it is necessary for the purpose of enabling or assisting the Board to exercise any of its functions, for example the Board's function in section 5 of the Census Act 1920 of preparing statistics in respect of periods between one census and another;

• paragraph (d), where information has already been lawfully made public;

• paragraph (e), where information is disclosed following a court order;

• paragraph (f), where information is disclosed as part of a criminal investigation or proceedings;

• paragraph (g), where information is disclosed to the Intelligence Services - as defined in section 67 - in the interests of national security; and

• paragraph (h), where the person to whom the personal information relates has consented to disclosure. For example, where the Board conducts a voluntary survey, which contains a confidentiality pledge that makes clear to the respondent how the information they provide will be used, and setting out any onward disclosures that might be made, for example to other government departments for statistical purposes. In such cases, by returning the survey, the respondent consents to the terms of the confidentiality pledge and to the disclosure of information for statistical purposes in the way described.

162.     Subsection (4)(i) states that the confidentiality obligation does not apply where the Board discloses information to an 'approved researcher'. Subsection (5) sets out that the term 'approved researcher' means an individual to whom the Board has granted access - for the purposes of statistical research - to personal information it holds. The Board may extend access to researchers from various organisations, including academic institutions, public bodies (including both local and regional bodies) and non-governmental organisations.

163.     Subsection (6) states that the Board must publish the criteria by which it will decide whether to grant access to approved researchers. As set out in subsection (7), these criteria must require the Board to consider whether the researcher is a fit and proper person and the purpose of the research. Any researcher must also sign a declaration that they understand the confidentiality obligation placed on them (subsection (8)).

164.     The combination of this section and section 23 (on statistical research) is intended to replicate the access ONS provided to researchers and academics (seconded into ONS), usually through a secure environment physically located in ONS. Researchers were not generally allowed to take information away from ONS and were required to sign strict confidentiality agreements.

165.     Subsection (9) provides that anyone who contravenes subsection (1) shall be guilty of a criminal offence. Subsection (10) sets out that the offence in subsection (9) does not apply where the individual making the disclosure reasonably believes that the identity of the person to whom the information relates is not specified in the information, could not be deduced from it (taken on its own or with any other published information (subsection (10)).

Section 40 Freedom of Information

166.     Section 44(1)(a) of the Freedom of Information Act 2000 provides that information is 'exempt information' for the purposes of that Act if its disclosure by a public authority is prohibited by or under any enactment. If information is 'exempt information' it need not be disclosed under that Act. By virtue of section 39 (the offence relating to disclosure of information), section 44(1)(a) applies in relation to information held by the Board. So information held by the Board is 'exempt information' for the purposes of the 2000 Act.

167.     Subsections (1) and (2) of section 40 provide a limited qualification to section 44 of the Freedom of Information Act 2000 in the case of personal information which is passed by the Board to other public authorities. The effect is that the confidentiality obligation in section 39 will not trigger section 44 in such cases and the information will not automatically be exempt information for the purposes of the 2000 Act. That means that in respect of personal information received from the Board, a public authority, in response to a request for information made under the Freedom of Information Act 2000, may not refuse to disclose information by citing the absolute exemption in section 44 of the Freedom of Information Act 2000. However, the public authority may still cite other available absolute or qualified exemptions insofar as they are considered to apply to the information requested.

168.     Section 26 of the Freedom of Information (Scotland) Act 2002 - like section 44 of the Freedom of Information Act 2000 - exempts information from release if its disclosure by a Scottish public authority would be prohibited by or under an enactment. Subsections (3) and (4) therefore provide that section 26 would not apply to personal information which is passed by the Board to a Scottish public authority. Consequently, information passed to Scottish public authorities by the Board will also not automatically be exempt information for the purposes of the Freedom of Information (Scotland) Act 2002.

169.     This section will ensure, for example, that census records can continue to be disclosed by the National Archive in accordance with government policy, the Public Records Act 1958 and the Freedom of Information Act 2000.

Section 41 Disclosure of information to service providers

170.     This section will allow the Board to pass any information to third parties who are operating under the control of the Board, so that they may provide services to them. For example, it would allow the Board to pass information to an external IT provider who had been contracted to undertake data processing on behalf of the Board, as ONS did during the 2001 census. It is intended that those receiving the information under this section would not be able to use it for any purpose other than the provision of the service they would be providing to the Board.

Section 42 Information relating to births and deaths etc

171.     Prior to this Act, the National Statistician was also the Registrar General, and the GRO was part of the ONS. This section therefore ensures that pre-existing arrangements for sharing of data between the Registrar General and ONS will continue between the Registrar General and the Board.

172.     This section ensures that information collected at the registration of key life events, such as births and deaths, used to produce statistical outputs (including estimates of populations), can be disclosed to the Board.

173.     Subsection (2)(b) includes both information collected at the time of the registration of a birth or death for statistical purposes, and information such as post mortem information that does not become available from a coroner until after the registration of a death.

174.     Subsection (4) permits the Board to disclose to the Secretary of State or the Welsh Ministers the information received under this provision from the Registrar General for the purpose of assisting them in the performance of their functions in relation to the health service.

175.     The intention is that the sharing of data under this section will be subject to a Memorandum of Understanding or Service Level Agreement between the Registrar General and the Board, which will cover issues such as the means and frequency of data sharing, and the onward transmission of the data.

Section 43 Information relating to NHS registration

176.     Prior to this Act, the ONS produced population statistics; these included small area population estimates, migration estimates, statistics on birth and mortality rates in the population, and national and sub-national population estimates and projections. In the production of such statistics, the ONS used data held in the National Health Service Central Register (NHSCR). ONS was responsible for the operation of the NHSCR, whose main function is the compilation and maintenance of a record of all persons who are resident in England and registered with an NHS General Practitioner. This work was carried out on behalf of 'NHS Connecting for Health', which is an Agency of the Department of Health.

177.     This section creates an information gateway to ensure that the Board may still receive patient registration information as the ONS did previously.

178.     Subsections (3)(a) to (d) stipulate the categories of patient registration information that may be shared with the Statistics Board, including their address, their date of birth, their gender, their patient identification number, and their history of registration. However, this list is not exhaustive and while the list of examples of 'patient registration information' provided in the subsection is sufficient for present purposes, it may not be sufficient in the future. This flexibility to share other patient registration information is expressly limited by subsection (4), in that the Secretary of State (or other public authority) may not provide information about an individual's health or condition or about the care or treatment provided to any person.

Section 44 Information relating to NHS registration: Wales

179.     This provision replicates the effect of section 43 in respect of the information relating to those resident in Wales and registered with an NHS General Practitioner. ONS maintained the NHSCR for Wales (on behalf of the NHS in Wales). As for the NHSCR in England, the NHSCR in Wales will not be the responsibility of the new Board, so it is necessary to create an information gateway to ensure that the Board may still receive this information and use it in connection with the production of population statistics.

Section 45 Information held by HMRC

180.     Section 18 of the Commissioners for Revenue and Customs Act 2005 controls HMRC's ability to share information. It does this by laying down the general rule that HMRC may not disclose any information held by it or received by it in the course of its functions, although HMRC is permitted to disclose information in certain specified circumstances, one of which is where another provision authorises disclosure.

181.     This section permits the Commissioners for Revenue and Customs, or an officer of Revenue and Customs, to disclose to the Board any information held by the Revenue and Customs, for use by the Board in connection with one of more of the Board's statistical functions (with the exception of its function under section 22 of this Act of providing statistical services to any other person). This section does not permit the disclosure of personal information (as defined in section 39), with the exception of information relating to the import or export of goods to or from the UK.

182.     It is intended that two categories of information will be disclosed under this provision:

• a wide range of summary information - which is not personal information. This includes information on income tax and National Insurance contributions, which was previously provided by Revenue and Customs to ONS and used by the ONS to produce statistics, including estimates of the UK national income, as a part of their production of the UK National Accounts. Other flows of summary information that previously occurred between HMRC and ONS which we might expect to continue between HMRC and the Board under this section include information on self-employment income of sole traders; average total income and average income tax payable by gender; the number of children registered for child benefit in England and Wales; and information relating to tobacco and alcohol products released for home consumption; and

• information relating to the import or export of goods to and from the UK, which has been passed from Revenue and Customs to ONS. This information will be used by the Board to identify businesses to survey about import and export prices, and in the analysis of the results of such surveys. Results from such surveys feed into indices of the prices charged to producers (part of the measurement of the value added by UK manufacturers), and into analyses of the UK balance of payments in the National Accounts.

183.     Subsection (1) allows information held by Revenue and Customs, in connection with any of its functions (such as the collection and management of taxes, duties and National Insurance contributions) to be disclosed to the Board by the Commissioners for Revenue and Customs or an officer of Revenue and Customs. Subsection (5) limits the information disclosed in this way to information that is not personal information, except in relation to the import and export of goods from the UK, which may be disclosed.

184.     Subsection (2) states that, before making a disclosure, the Commissioners for Revenue and Customs must be satisfied that the Board requires the information to enable it to carry out one or more of its functions (excluding its function of providing statistical services).

185.     Subsection (3) limits the Board's use of information. The Board may only use the information provided for any one or more of its functions (excluding its function of providing statistical services).

186.     Subsection (4) sets out that the Board may not disclose information received under this section without the consent of the Commissioners. Section 39 also operates to restrict the Board's disclosure of personal information received under this provision.

Section 46 Information sharing: supplementary amendments and Schedule 2

187.     Section 46 makes supplementary amendments to existing legislation to allow information flows to continue to the Board, as the legal successor body to ONS.

188.     Paragraph 1 of Schedule 2 removes the offence of unlawful disclosure of personal census information in section 8 of the Census Act 1920, for England and Wales. The confidentiality obligation in section 39 of this Act will apply to census information held by the Board.

189.     Paragraph 2 amends the Population (Statistics) Act 1938 (restriction on disclosure) to ensure that it is clear that section 42 overrides the restrictions on disclosure by the Registrar General of information collected under this legislation.

190.     Paragraph 3 updates section 58 of the Finance Act 1969 by replacing references to the 'ONS' and 'Office' in that provision with references to the 'Statistics Board' and 'Board' where required. This amendment will allow HMRC to continue to disclose to the Board (as it did to ONS prior to this Act) PAYE information, specifically business name, address, economic activity code, legal form and size (in terms of numbers of employees). ONS used PAYE information to update and maintain a register of businesses - the inter-departmental business register (IDBR). The purpose of this register is to provide government with an adequate sampling frame for surveys, on which almost all surveys of economic activity are based.

191.     Paragraph 4 inserts a reference to the Board and an 'approved researcher' in section 3 of the Agricultural Statistics Act 1979. The ONS received information collected by Department for Environment, Food and Rural Affairs (DEFRA) under section 1 of this Act; this amendment is necessary to ensure that DEFRA may continue to disclose information to the Statistics Board. The amendment also permits the Board to disclose the information to an approved researcher (see note to section 39 above). Information collected under this Act is also used to maintain the IDBR.

192.     Paragraph 5 updates section 122AA of the Social Security Administration Act 1992 by replacing a reference to 'ONS' with a reference to the 'Statistics Board'. Formerly, HMRC could disclose to the ONS contributions information, which includes statutory sick pay, maternity pay and paternity pay. This paragraph ensures that HMRC can continue to disclose this information to the Board.

193.     Paragraph 6 similarly updates section 91 of the Value Added Tax Act 1994, by replacing references to the 'ONS' and 'Office' in that provision with references to the 'Statistics Board' and 'Board' where required. This ensures that HMRC may continue to disclose VAT information to the Board, which is necessary because VAT information is used to update and maintain the IDBR.

194.     Paragraph 7 updates Schedule 7 of the Bank of England Act 1998. The Schedule previously contained a reference to the ONS, which this paragraph replaces with a reference to the Chancellor of the Exchequer (or any person to whom any functions of the Chancellor of the Exchequer under the Statistics of Trade Act 1947 are delegated). This permits the Bank of England to disclose information to the Statistics Board where it exercises the functions of the Chancellor under the Statistics of Trade Act 1947.