Patrick Mercer (Shadow Minister (Homeland Security), (Assisted By Shadow Law Officers); Newark, Conservative)

I beg to move amendment No. 99, in clause 29, page 25, line 34, after first ‘he’, insert ‘knowingly or recklessly’.

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss amendment No. 100, in clause 29, page 25, line 36, after ‘he’, insert ‘knowingly or recklessly’.

Patrick Mercer (Shadow Minister (Homeland Security), (Assisted By Shadow Law Officers); Newark, Conservative)

This clause is important. It deals with unauthorised disclosure of information, and I for one am happy to see such a clause in the Bill, because I have no doubt that it will provide some reassurance to the agencies that will have to deal with confidential information. However, the conundrum in the clause is whether we are talking only about someone who is guilty of giving information unlawfully or whether there is a place for someone who believes that he is working for an organisation that has become corrupt or has individuals within it who are corrupt and needs to blow the whistle. To that end, we have tabled a number of similar amendments in respect of the clause.

Subsection (1) states:

“A person is guilty of an offence if, without lawful authority—

(a)he provides any person with information that he is required to keep confidential; or

(b)he otherwise makes a disclosure of any such information.”

The amendments would simply insert in paragraph (a) the phrase “knowingly or recklessly” in respect of providing any person with information and in paragraph (b) the same phrase in respect of the person’s otherwise making a disclosure of any such information.

The amendments would move the burden to defend the person who acts in such a way without being in full possession of the facts. We all talk regularly to journalists and we all know how easy it is to give information that we do not necessarily mean to give away and might subsequently be damaging. Are we saying that, in such circumstances, an individual working on the register or the card will be guilty if he   gives away information without lawful authority? We want to introduce a defence in the proviso “knowingly or recklessly” in both cases. If we do that, the amendments, along with the defence in subsection (4), which I suspect we will discuss later, would make it quite clear that only persons who act “knowingly or recklessly” would be liable to be prosecuted under the provision. I hope that the Under-Secretary will see the common sense behind that proposal.

Tim Farron (Westmorland & Lonsdale, Liberal Democrat)

I am grateful to the hon. Member for Newark for presenting the amendments as he has. They highlight the possibilities for accidental or deliberate leaking of information from the register. I can see where he is coming from in terms of the amendments. Why should an act of innocent incompetence on the part of a lowly paid official land them in a position of having committed an offence? Subsection (4) provides mitigation on the basis that a person

“believed, on reasonable grounds, that he had lawful authority to provide the information”.

It does not provide mitigation for someone who has made an innocent error.

Dare I say that the blame lies with the Government in the first place for having created the unnecessary bank of information from which a leak could occur? This situation leads me to reaffirm my view that the best way of dealing with the potential for unauthorised disclosure is to ensure that the source of information is not created in the first place.

Roberta Blackman-Woods (Durham, City of, Labour)

My constituents will be really concerned about this issue and will want to know that we are doing everything possible to prevent leaks of information. The provisions must be drawn as tightly as possible.

Tim Farron (Westmorland & Lonsdale, Liberal Democrat)

I take the hon. Lady’s point. Some of her constituents are perhaps lowly paid civil servants who could end up coming a cropper over this matter.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I do not want to say more than is strictly necessary, because my hon. Friend the Member for Newark has said most of what needs to be said. I just wanted to be sure about something. While we are discussing a criminal offence of unlawful disclosure—we would like it to apply only if the discloser is reckless or deliberate—what the system is concerned about is the disclosure. Confidential information might be true, but its disclosure can have terrible consequences for the individual concerned. I am thinking about health records, matters that are private to the bedroom and all sorts of confidential information that we give to our priest, doctor or teachers at school. Such information may well be true, but it is not the sort of information that we would want broadcast.

The common law of confidence, which is growing and has been doing so since the Prince Albert pictures case in the mid-19th century, is concerned to allow a claimant to seek an injunction to prevent a disclosure if he gets wind of it. First, I need to be assured not only that we will deal with the position after the event, as we do under clause 29, but that, if the disclosure is   unintentional but has exactly the same devastating consequences for the subject of the breach, he or she will have some remedy under civil law against the discloser. Secondly, I need an assurance that the Department would be susceptible to an application for an injunction if I, as the citizen whose confidential information was about to be disclosed, got to hear of it. That is a failsafe, but it is necessary to have such a discussion in the context of the amendment.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

Committee members have properly outlined their concerns during debates on previous clauses. I refer particularly to concerns that were raised in our morning sitting today by the hon. Member for Lancaster and Wyre about information being misused and swirling round. If the system is to have people’s full confidence—if they are to be confident that their details will not be misused—the clause and the offences in it are important.

We would all want people working in any of the fields itemised in subsection (2)—

“the establishment or maintenance of the Register ... the issue, modification, cancellation or surrender of ID cards; or ... the carrying out of the Commissioner’s functions”—

to be sure that they were working in an environment where they had access to privileged information. They should know that that information is to be treated with care and sensitivity and should not be disclosed casually to another person. When they are involved in making a disclosure, they should have this clause in mind. That would be a helpful pressure to ensure that information was not casually or accidentally disclosed to places where it should not go.

Ben Wallace (Lancaster & Wyre, Conservative)

Will the Under-Secretary clarify why he settled on the term of two years, bearing in mind the different scenarios on which information could have an impact?

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

Again, that is consistent with the 1981 Act. I will deal with that matter in detail, but first I shall explain a bit more about the structure of the clause. Then I shall deal with the amendments.

The clause creates a criminal offence of unauthorised provision, or disclosure of confidential information that a person has available to him by reason of his employment. However, Committee members will see that subsection (4), to which the hon. Member for Newark referred, provides a defence

“to show that ... he believed, on reasonable grounds, that he had lawful authority to provide the information or to make the ... disclosure”.

The amendments would place an obligation on the prosecution to prove that the person made the disclosure knowingly or recklessly. I guess that in tabling the amendment the hon. Gentleman was seeking to protect employees who accidentally made a disclosure or provided information. That is a fair concern. However, as long as the individual concerned could show that he was acting responsibly and professionally—accepting that mistakes are made—   and was generally acting in good faith in the course of his job, he could avail himself of the defence outlined in subsection (4).

We would not want casualness or lax treatment to arise in the treatment of the information. It is important to ensure that people understand the seriousness and importance of the information that they are dealing with, and the clause is important in that respect.

I shall say something about the way in which the clause is structured, which relates to a previous discussion about the burden of proof. It would be for the prosecution to prove a lack of lawful authority for the disclosure, but the question of a reasonable subjective belief that there was lawful authority for disclosure will be in the defendant’s knowledge and difficult for the prosecution to disprove. With regard to those factors, and the serious problems that could arise if people were effectively able to determine for themselves whether a disclosure were lawful, our view is that the imposition of a reverse burden in this case is fair and reasonable. It would be for the individual to show that they had, on the balance of probabilities, acted reasonably in the course of their job. In that context, the use of such a reverse burden would be fair and reasonable.

I shall pick up on some of the concerns raised by Opposition Members. The hon. Member for Westmorland and Lonsdale talked of an unnecessary bank of information. However, as we have said before, the information that would be held under the Bill is held on other Government databases. It is not as if the register would be a new creation. The linkage between the data and the biometric is different, but that is why caution is being taken in the clause, as my hon. Friend the Member for City of Durham (Dr. Blackman-Woods) pointed out, to make sure that it is used appropriately.

The hon. and learned Member for Harborough asked about whether an individual who had suffered materially because of the effect of a disclosure would have a remedy against the discloser, whether it was intentional or not. I understand his point, but it undermines the purpose of the amendments, which seek to protect people who in the course of their jobs might disclose accidentally, although not knowingly or recklessly. His concern is slightly at odds with the amendments.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

My concern may be outside the amendment, but it is not at odds with it. Although an official might not be guilty of a criminal offence and therefore should not be made liable to the criminal penalty, he might none the less do something that had consequences for the subject of the confidential information. I simply wanted to be sure that a citizen’s right to civil action—either for the remedy of an injunction or, post-publication, for the remedy of damages—should not be shut out and that there was no Crown immunity, so to speak, available to the discloser by virtue of the fact that the criminal penalty was the only remedy available to the state to prevent unlawful disclosure. The Under-Secretary can write to me on that; I do not intend to examine him about the   law of confidence. I am seeking to find out whether there are sufficient protections available to the citizen against the consequences of disclosure.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

I do not think that I need to write to the hon. and learned Gentleman. The Bill in no way curtails an individual’s avenues for legal action if they think that they have suffered material loss or harm. The rights to civil action are not excluded by the Bill. As I explained to the hon. Member for Westmorland and Lonsdale, people could pursue an action against those in charge of the national identity register, as they could against an existing public body. If a person decided that they wished to do that, the normal injunctive remedies would apply.

Earlier, the hon. and learned Gentleman mentioned secrets of the bedroom and medical secrets, but those will not be on the register. It is hard to imagine the News of the World buying registrable facts, which would not make a fantastic story.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I do not want to distract the Under-Secretary from his arguments, but I was seeking to describe the sort of information that is impressed with confidence. Clearly, I do not think that there will be News of the World-type exclusives on the data register. I was not attempting to say that there would be, and I do not think that the Under-Secretary thinks that I was.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

For the avoidance of doubt, I was making absolutely clear that there would be no salacious information on the register.

In explaining our reasoning behind the clause, we can give Opposition Members the assurances that they need. People will not be punished for carrying out their work and for acting reasonably to carry out their functions in relation to their employment. Equally, we cannot have situations where there is casual management or stewardship of the register, or where it is handed around without proper process or treated casually in any way.

The clause is intended to find a way through that and to strike the right balance. People would always have recourse to the defence that we have outlined. We think that that captures what the hon. Member for Newark is after. I hope that he will see fit to withdraw his amendment. If necessary, I will come back to the hon. and learned Member for Harborough with any further clarification.

Patrick Mercer (Shadow Minister (Homeland Security), (Assisted By Shadow Law Officers); Newark, Conservative)

I am grateful to the Under-Secretary for outlining his points. I have no doubt that we will touch again on these arguments in relation to amendment No. 103, but, in the meantime, his arguments have been sufficient for me to delay pushing the amendment to the vote. I beg to ask leave to withdraw the amendment.

Patrick Mercer (Shadow Minister (Homeland Security), (Assisted By Shadow Law Officers); Newark, Conservative)

I beg to move amendment No. 101, in clause 29, page 25, line 42, after ‘issue’, insert ‘manufacture’.

This is a simple amendment, which I hope that the Under-Secretary can quickly satisfy me about. It is intended to amend subsection (2), which states:

“For the purposes of this section a person is required to keep information confidential if it is information that is or has become available to him by reason of his holding an office or employment the duties of which relate, in whole or in part, to—

(a)the establishment or maintenance of the Register;

(b)the issue, modification, cancellation or surrender of ID cards”

and so on.

Looking at identity cards—clearly, not from this country, but from countries that have an identity card scheme—we can see that many are manufactured outside the country in which they are intended to be used. At the point of manufacture, some of the cards have information included on them. I suspect that the Under-Secretary will say that the biometrics—the important part of the material—will be inserted on to the card only at a later stage in the manufacturing process. However, by using the word “manufacture”, I seek to cover not just the creation of the plastic card, but the manufacturing stages involving the further details, as they go on to the card and as it becomes more and more complex. I trust that this is a simple amendment. I think that it would help.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

Now that my boss has left the Room, I may be about to get myself in trouble. I am aware of the previous debate on this point and I think that the hon. Member for Newark has a point. Amendment No. 101 would add to the circumstances in which someone could be guilty of an offence under the clause. As he said, it would include, as a person who is required to keep information confidential, someone who has access to that information because of his employment in the manufacture of ID cards.

There was a discussion last time round. I think that the then Minister, my right hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne), said that the manufacture would not include the loading of any personal information on to the chip or the card. That is obviously the crucial point. The issue is not the manufacturing of a blank card to be filled with information. The point at which information is loaded on to the card is the point at which greater caution needs to be exercised.

The Bill refers to the “issue” of ID cards. It is our understanding of the present situation that issuing would include putting the personal information on to the chip. That is the reason why we have used the word “issue”.

Tim Farron (Westmorland & Lonsdale, Liberal Democrat)

Does the Under-Secretary expect that all the duties listed under subsection (2) would be categorised as positions of trust, for which applicants would be subject to security checks before they could commence their work?

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

Is the hon. Gentleman referring to the positions listed in subsection (2)?

Tim Farron (Westmorland & Lonsdale, Liberal Democrat)

Subsections (2)(a) and (b).

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

The hon. Gentleman is diverting us slightly from our current discussion, but clearly they are positions of trust. That is why the penalties are set for failure to reach the requirements on the safeguarding and safe stewardship of the data.

As I have said, the issuing of the card is the point at which personal information is loaded on to it. It is imbued with the individual’s details and presented to them. However—this is where the “however” comes in—since January, officials have been doing more work on the options for delivering the scheme. We believe that it might be possible that some data—probably not relating to a named individual but perhaps involving security codes relating to the operation of a card—would be incorporated into the card as it is manufactured. If that were the case, the hon. Member for Newark might be right in saying that the scope of the offence is not quite wide enough and it would be possible for a manufacturing company engaged in the production of cards to disclose information that we would not want disclosed.

The hon. Gentleman has a point but at this stage, if he does not mind, I will not accept the amendment. We shall take it away and consider how we can best cover the end-to-end process, including the manufacturing of the card should that be necessary. We shall see if we can find an appropriate form of words. It might be that the hon. Gentleman’s form of words is acceptable, and if we can use it we will. If not, we shall present an alternative wording on Report. On that basis, I ask him to withdraw the amendment.

Patrick Mercer (Shadow Minister (Homeland Security), (Assisted By Shadow Law Officers); Newark, Conservative)

I am nonplussed. This is as good as it gets, I suspect. I am grateful to the Under-Secretary—let me state that clearly—for his huge indulgence on this point. Although I thoroughly accept the points that he makes about clause 43, I hope he will give due consideration to the points that I have just made about clause 43(1), which refers to the term “issue”, and clarify how that relates to manufacture. Will he also consider the wording of subsection (5), which states:

“References in this Act to the issue of a document of a card include references to its renewal, replacement or re-issue (with or without modifications).”?

With those codicils in place, I accept everything that the Under-Secretary said. I shall be extremely interested to hear his comeback in due course, and on that basis I beg to ask leave to withdraw the amendment.

Patrick Mercer (Shadow Minister (Homeland Security), (Assisted By Shadow Law Officers); Newark, Conservative)

I beg to move amendment No. 103, in clause 29, page 26, line 10, at end insert—

‘(4A)It is also a defence for a person charged with an offence under this section to show that the provision of information or the making of the other disclosure in question was in the public interest.’.

We have already had some revealing discussions about the way that our earlier amendments might or might not sit upon the guilt of a person. I have mentioned that in subsection (4) there is already one defence:

“a defence for a person charged with an offence under this section to show that”

and so on. We have grounds there not for the tout or the informant, but for the worker who feels that they are part of an organisation that has gone astray to make representations to that effect legitimately and properly. The amendment would introduce a further defence.

I do not want to detain the Committee. There are obviously grounds on which disclosing information could be the right and proper thing to do. We should like to insert the amendment to complement and reinforce the defence in subsection (4), and to ensure that the misdemeanours of organisations working above the individual do not go unchecked.

Kali Mountford (Colne Valley, Labour)

I am concerned about the amendment. I assume that the hon. Gentleman seeks to probe the Minister about what defence he thinks should be available to any civil servant or other person who may wish to disclose information. The amendment seems to be a sort of David Shayler way of dealing with matters. If an individual feels that it is his or her right to give over information, because in their view it is a matter of public interest, it would drive a coach and horses through civil service codes of practice.

There may be grounds for considering those codes, and an entirely separate Bill may need to analyse when a civil servant might want to raise a matter of public interest. However, one person may see in another person’s records something terrible about their past. It may be an offence that they have committed, and the first person may want to disclose to the other person’s parents or to anybody living near the other person that this is someone whom they would not want to have living by them. The first person could then say, “I thought it was a matter of public interest; I felt that the other person was dangerous and should not be living near my little sister.” That would be an improper way of dealing with public interest.

The way the amendment is framed gives me cause for concern about how somebody would decide what was in the public interest, in whose interest it really was, and how we could pursue the defence of something being in the public interest possibly not as I would see it, but as only that person would see it. The amendment has some dangerous flaws, and I hope that the hon. Gentleman will reconsider what he had to say.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

My hon. Friend has raised an important point. The disclosure of information would relate only to registrable facts. It is important to say that it would be hard to envisage how the disclosure of an individual’s registrable facts could raise a broad issue of public interest. In making that comment, I am not seeking to say that there could never be such circumstances; I accept that there could be. My hon. Friend has suggested how those circumstances might arise. However, given that we are dealing with narrow identity data, it is hard to imagine how a broad public interest concern could arise from having an individual’s records on the system. If a discrepancy were to arise and someone knew that someone’s details   were false, there are plenty of avenues to go down to correct that information without going down the route of public disclosure.

Clause 29 creates an offence of unauthorised disclosure or provision of confidential information that is available to the person concerned by reasons of employment or duties relating to the register. As I explained, it is a defence to show that the individual believed on reasonable grounds that he had lawful authority to make the disclosure. The amendment would add another defence in which the provision of information or the making of the disclosure in question was in the public interest.

The hon. Member for Newark can draw some support for the amendment by saying that there are similar defences on the statute book relating to other Acts of Parliament. For example, section 55 of the Data Protection Act 1998 creates an offence of unlawfully obtaining personal data. I do not want the hon. Gentleman to think that he is on a roll, as I would get into further trouble with my boss. I shall therefore set out three reasons why it is inappropriate to make the offence in clause 29 subject to a public interest defence.

First, the offence relates purely to information that is connected with the scheme that the Bill sets up. By the nature of the scheme, that information will tend to relate to narrow personal information about other people. As we discussed, it will not extend to information of a more personal nature that might be held by other agencies. That would be held in an entirely different place. The information is purely identification data. The circumstances in which it will be in the public interest for such information to be released will be limited, if they exist at all. Again, if an employee working in the areas set out in subsection (2) were to feel that there was a discrepancy with an entry in the register, there would be plenty of avenues by which that could be pursued without recourse to disclosure.

Secondly, in so far as an employee feels that a matter needs to be considered, he will be able and, indeed, obliged to approach the national identity commissioner. Thirdly, to provide an alternative channel that, in effect, would permit employees to disclose information and, once it was in the public domain to argue that disclosure was in the public interest, would render the personal data of everyone on the register that bit more vulnerable than perhaps they would have been, for the reasons that I gave in respect of the other amendment. We want to ensure that people know they are working in a secure environment and we want them to take great care. Of course, the effect of this amendment could be that they could put information in the public domain and claim the public interest defence, but the damage would have been done and the individual on the receiving end would have suffered harm and damage as a result of it.

I understand why the hon. Member for Newark tabled the amendment, but, as I said, we do not believe it is necessary. The safeguards are already in place to   ensure that people can invoke a defence should there be a disclosure, accidental or otherwise. For those reasons, I ask him to withdraw the amendment.

Patrick Mercer (Shadow Minister (Homeland Security), (Assisted By Shadow Law Officers); Newark, Conservative)

The hon. Member for Colne Valley (Kali Mountford) made an eloquent point and made it extremely well. I am still rocking from the effects of the Under-Secretary’s comments on amendment No. 101. In the cloud of semi-comprehension that he induced, I believe that our discussions have been useful. I take the point about the defence in subsection (4). Therefore, on the basis of the clear explanation that I have received and in the spirit in which it was offered, I beg to ask leave to withdraw the amendment.