Part 5: Miscellaneous Chapter 3: Miscellaneous Section 326: Disclosing information overseas 243F - Relevant considerations relating to overseas disclosures under sections 243A and 243B
To ensure that information shared via the new gateways in sections 243A and 243B is appropriately protected, section 243F sets out the factors to which a UK public authority must have regard before making a disclosure.
	Under subsection (2), when deciding whether to make a disclosure to an overseas public authority under section 243A for the purpose of facilitating both its functions and the functions of the overseas public authority, a UK public authority must have regard to the existence of appropriate protections against self-incrimination in criminal cases and in relation to the storage and disclosure of confidential information (as defined in new section 246A of the Enterprise Act 2002 inserted by section 326, subsection (5)).
	Under subsection (3), when a UK public authority is deciding whether to make a disclosure to an overseas authority under section 243B for the purpose of facilitating the functions of the overseas authority only, the UK public authority must have regard both to the considerations in subsection (2) and to the following additional considerations:
whether the reason for the request is sufficiently serious to justify disclosure,
whether the disclosure would further the aims or purposes of any convention or treaty between the United Kingdom and the overseas country relating to cooperation in connection with competition (including matters relating to digital markets (Part 1 of this Act)) or consumer protection,
the existence of any mutual assistance arrangements with the requesting country covering the kind of information protected under Part 9, and
whether a body or person in the overseas country would provide corresponding or substantially similar assistance to the UK public authority.
	Subsection (4) states that protection will be appropriate if it corresponds or is substantially similar to that provided in any part of the United Kingdom.
	Subsections (5) and (6) give the Secretary of State a delegated power to alter, add to or remove any of the considerations set out in subsections (2) and (3) by regulations made by statutory instrument. The exercise of this power is subject to the negative resolution procedure which is consistent with the existing arrangements under section 243 of the Enterprise Act 2002. This procedure is appropriate because the power is limited as the Secretary of State would not be able to use it in ways which reduced the protections provided by, for example, the data protection legislation or Article 8 of the European Convention on Human Rights, and the safeguards provided for in section 244 of the Enterprise Act 2002.
	Subsection (3) of section 326 makes consequential amendments to section 244 of the Enterprise Act 2002 to update subsection (2) and (3) in the light of the new definitions of "commercial information", "private information" and "sensitive information" included in new section 246A of the Enterprise Act 2002.
	Subsection (4) of section 326 makes a consequential amendment to section 245 of the Enterprise Act 2002 which deals with offences related to information sharing. The effect of this amendment (which replicates the existing position under section 243) is that a person will have committed an offence if they disclose information in contravention of a direction given by the Secretary of State under section 243E preventing overseas disclosure.
	Subsection (5) of section 326 replaces section 246 of Enterprise Act 2002 with new section 246A (interpretation) which includes a new definition of "overseas public authority" and definitions of "confidential information", "commercial information", "private information" and "sensitive information".
	Subsection (6) of section 326 makes a consequential amendment to section 59, subsection (6) of the Companies (Audit, Investigations and Community Enterprises) Act 2004.