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'.—(1) If an offence under section 3 committed by a body corporate is shown—
the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
- (a) to have been committed with the consent or connivance of an officer, or
- (b) to be attributable to any neglect on his part,
With this it will be convenient to discuss the following amendments: No. 14, in clause 3, page 2, line 5, leave out subsection (3).
No. 15, in page 2, line 29, leave out paragraph (a).
I am pleased that we have finally reached consideration of this Bill. There was a lengthy debate on the guillotine motion, but I hope that, in the short time available to us, we shall be able to cover some of the Bill's substance.
The new clause and amendments cover three elements: who can commit an offence under the Bill; the nature of the offence; and the penalty for committing the offence. The Government tabled new clause 2 in response to concerns expressed in Committee by the official Opposition. I hope that the House will accept that as an illustration of the consensual approach that most Members have taken towards he Bill.
Concern was expressed about the current formulation of the offence of unlawful disclosure of personal information supplied to the BBC under clause 3. Some members of the Standing Committee were troubled that, as the offence stands, it would not catch the directors of a company that disclosed such information. Hon. Members—particularly the hon. Member for Ryedale (Mr. Greenway) who raised the subject in Committee—will know that the new clause is similar to a clause in the Royal Parks (Trading) Bill that fulfils the same purpose.
The Committee thought that the deterrent effect would be enhanced if there were a possibility of directors facing personal criminal liability. Therefore, as Conservative Members have acknowledged, I undertook to consider the possibility of extending the offence of unlawful disclosure to cover company directors and to introduce a Government new clause on Report. That is what we have done.
Having considered the matter, the Government concluded that it was right to extend the offence in order to catch directors of companies handling such sensitive information. As I said in Committee, we accept that personal information supplied by the Department of Social Security to the BBC or its contractors under the Bill should be as safe as it is in the hands of the DSS or its contractors. That is one of our main concerns and we are confident that the new clause will achieve our aim. The draft new clause was submitted to the official Opposition before it was tabled, and I understand that the hon. Member for Ryedale agrees with it. Subsection (1) states:
If an offence…by a body corporate is shown…to have been committed with the consent or connivance of an officer, or…to be attributable to any neglect on his part,
that person, as well as the company, is guilty of the offence and liable to be prosecuted. The maximum penalty will be imprisonment for up to two years or a fine, or both. In extreme cases, directors could face a prison sentence for an offence committed by their company. A body corporate will include the BBC and its contractors.
Subsection (2) states:
If the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body.
Subsection (3) defines an officer, for the purposes of this clause, as
a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.
The new clause will bring the treatment of company directors in cases of unlawful disclosure of personal information into line with the provisions of the Social Security Administration Act 1992 in relation to DSS contractors. Company directors receiving personal data provided by the DSS in connection with free television licences will not be able to escape their responsibility for ensuring that proper measures are in place to prevent unlawful disclosure of such data. Company directors could not encourage or collude in such disclosure and hide behind the defence that they did not themselves commit the act.
If company directors negligently failed to provide proper instructions to staff on the need to keep information provided by the DSS secure, or permitted working practices that led to unlawful disclosure of such information, they could find themselves charged with an offence.
Clearly, "neglect" applies to a failure to perform duties. To what extent does the Bill impose a duty on a director to monitor the performance of the officials in the company?
The right hon. and learned Gentleman may be interested to hear that a similar point was made in Committee. I note that several hon. Members have complained about the short time for which the Bill was in Committee; it is a pity that they did not seek to be members of that Committee.
I said in a letter to the hon. Member for Mid-Dorset and North Poole (Mr. Fraser), who is no longer in his place, that to facilitate the provisions the BBC would tighten up its contracts. In response to another point by the hon. Gentleman, I said that we did not
envisage the contractors incurring hefty legal costs as a result.
I assure the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) that the Bill's main priority is to facilitate the issue of free television licences to pensioners over 75 on the due date of 1 November, and to make that process as simple as possible. If he will allow me to continue, I hope that I will be able to reassure him on the point that he has raised.
While providing for limited personal information to be given to the BBC and its contractors to facilitate the administration of free or reduced-fee television licences, the Bill preserves the crucial principle that personal information should be protected from disclosure, including negligent or reckless disclosure. The new clause will strengthen the protection afforded to such information.
I ask the House to resist amendments Nos. 14 and 15, and I shall explain why.
Amendment No. 14 would mean that it was an offence to publish material in the form of a summary or information that had already been lawfully disclosed to the public. The effect of amendment No. 15 would be that the offence of unlawful disclosure could not be tried in a magistrates court.
Amendment No. 14 is illogical. If information has been made public with lawful authority—for instance, if it has been read out in open court or has been made public with the consent of the person who is the subject of the information—why should a BBC employee, for example, be guilty of an offence if he or she simply repeats information received under clause l that is already in the public domain? Similarly, why should it be an offence to disclose information in the form of a summary for, say, statistical purposes, provided that, as is the case with clause 3(3)(a), individuals cannot be identified?
Several hon. Members have tabled questions in recent months about the number of people in their constituencies who will benefit from free television licences for the over-75s. I recall one Opposition Member referring to a specific number in his constituency. I do not know where he got the number from. It is difficult for us to calculate the figures. In many cases, we have not been able to answer those questions as openly as we would like because the information requested is not available.
I understand that the figures may have been based on a census that took place some years ago. We want to be as accurate as possible. The amendments would make that difficult.
I can assure the right hon. Gentleman that that is indeed the case. Once the concession is up and running and key statistics can readily be extracted, I am sure that hon. Members would find it unsatisfactory if such information could not be provided because the legislation prevented its disclosure, even in summary form. I am sure that Opposition Members would appreciate the ability to tell how many of their constituents were benefiting from the concession. I hope that they will remind them that it was introduced by a Labour Government.
Of course, we must ensure that personal information is protected. The Bill aims to preserve that important principle. It protects personal information in the same way as it would be protected under section 123 of the Social Security Administration Act 1992. That section makes it an offence for an employee or former employee of the Department of Social Security to release personal information obtained in the course of his or her employment.
The Government believe that clause 3 strikes the right balance. It provides a firm sanction against thoughtless disclosure, but provides a defence in cases where the disclosure follows a rational process of consideration of the lawfulness of that disclosure. That was raised in Committee, and I hope that Opposition Members—of those who are present, only the hon. Member for Ryedale, I believe, served on the Committee—will be reassured. We believe that the clause balances individuals' right to have their personal information protected and their right not to be treated as criminals without proper cause.
On amendment No. 15, clause 3(6) specifies the penalties available in the event of unlawful disclosure of information supplied to the BBC by the DSS. If a person is tried and convicted in a magistrates court, he or she is liable to be imprisoned for up to six months, or to pay a fine of up to £5,000, or both. If convicted in the Crown court, he or she may be imprisoned for up to two years or be liable to an unlimited fine, or both.
Opposition Members said on Second Reading that some of the penalties were too draconian. However, the official Opposition in Committee said that they had been persuaded that the penalties were necessary and were not draconian, as there was a need to protect the information as much as possible.
The seriousness of offences under the Bill will vary from malicious to accidental disclosure. The amount of information disclosed may also be relevant. It is therefore appropriate to provide for proceedings in a magistrates court and in the Crown court, depending on the seriousness of the case. Hon. Members will appreciate that not all offences will be sufficiently serious to merit prosecution. However, we must make both modes of trial available, and leave it to the courts to determine the cases that can be tried in the magistrates court, if the defendant agrees, and those that are so serious that they must go to the Crown court. I therefore commend new clause 2 to the House and ask the right hon. Member for Penrith and The Border (Mr. Maclean) not to press amendments Nos. 14 and 15.
I thank the Minister for laying a draft statutory instrument before the House on the social security information that would be released to the BBC and its contractors if the Bill was enacted. It makes clear the exact information that must be provided: the name, date of birth, address and national insurance number of everyone over the age of 74. In one sense, that is a narrow definition, but, in another, it highlights the fact that the disclosure of such information would not be countenanced outside Government in any other circumstances.
On Second Reading, when my hon. Friends last had the opportunity to discuss the matter, we made it clear that we regard such information as sensitive. The legal structure, which the Bill outlines, needs to provide a realistic prospect of the required information remaining confidential. To achieve that, we need a framework of criminal law, for which the Bill tries to provide.
As the Minister made clear, there was a gap in the Government's original proposal, because it did not appear that the company directors who would be responsible for processing the information to provide free television licences could be caught by the offences under the Bill. I am therefore grateful to the Minister for acknowledging the strength of our argument and giving me the opportunity to consider the wording of new clause 2. It fulfils the requirement that we had in mind.
If any company wrongfully made use of sensitive information, it would not be right for junior members of staff or for the body corporate to be on the receiving end of any prosecutions. The directors should be responsible. It is crucial for the people at the top of the BBC and the contractors—currently TV Licensing—who will be responsible for implementing the free scheme and for supervising the proper use of information to understand the need to pay the highest regard to confidentiality. They must recognise that any breach of confidentiality will be extremely serious. We can achieve that only by making the directors personally liable for any wrongful use of the information.
I hope that it is clear from my remarks that we support the new clause—it is what we asked for. It will not only improve the Bill; it will strengthen it in the key respect of responsibility at the very top of the BBC and the contractors for their supervision of the arrangements to enable free licences to be provided. That leads me to the standard of proof or the absolute nature of the offence of wrongful disclosure, which we discussed in Committee, but which, for want of a better expression, still lies on the table, although my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) touched on it in his intervention on the Minister.
We debated whether a word should be added to clause 3 to make the disclosure wilful, negligent or reckless. The current drafting makes it absolute, which prompts me to ask what would happen if disclosure were accidental because an electronic transfer had reached the wrong destination. The Minister agreed to my suggestion that her officials speak with the Data Protection Commissioner. Those matters were discussed in Committee during consideration of the Data Protection Act 1998. The commissioner was concerned that members of her staff should not find themselves on the receiving end of a criminal charge because an accidental transmission had occurred. I hope that that issue is still under consideration and that it might be addressed in the other place.
My hon. Friend's point requires amplification. Close scrutiny and tight wording are required as the accidental or negligent loss or transmission of data are hard to define. Having been in the information technology industry for a considerable part of my professional life, I am aware of that difficulty. We must be very careful indeed.
I am grateful for my hon. Friend's support and I acknowledge his expertise in this area. I suspect that my reading of the Bill—clause 3 creates an absolute offence—may be confirmed by my right hon. and learned Friend the Member for Sleaford and North Hykeham should he catch your eye, Mr. Deputy Speaker. I am not a lawyer, but I cannot come to the view that there is any requirement on negligence or recklessness or for the disclosure to be wilful, although it is clear from our discussion in Committee that that is what the Government intend. I hope that they will consider the matter of accidental disclosure.
That issue was raised in Committee and we undertook to discuss it with the Data Protection Commissioner's office. I am sorry that we may not be able to debate it in detail, but I assure the hon. Gentleman that it has been discussed. The Data Protection Commissioner is clearly not in a position to determine whether a particular formulation of an offence is appropriate in the context of another piece of legislation—the 1998 Act, which created a general offence to cover all aspects of data protection, has been referred to. As the hon. Gentleman knows, however, the difference is that this Bill deals with a very narrow range of activity.
The Data Protection Commissioner assured my officials that she supported the inclusion of an appropriate offence aimed at restricting the subsequent use or disclosure of DSS information by BBC staff, if there were also an effective defence on which an innocent individual who made a genuine and isolated mistake could rely. I hope that that will reassure the hon. Gentleman.
I am greatly reassured by the intention, but Lam afraid that I shall have to rely on some of the legal brains in the other place to tease the issue out once more. I do not mean to disparage the Minister in any way; I think that, in respect of the offence that we are discussing, she and I are in a pretty similar position.
I have an inkling that the staff at TV Licensing who might be caught by our creation of an offence that extended more widely than was strictly necessary have not the faintest idea that they are likely to be affected. We have a duty to ensure that those at the top of the organisations that will implement the scheme understand and face their responsibilities, and new clause 2 would assist greatly in that respect. However, we also have a duty to ensure that the interests of the staff—clerical and administrative assistants—who would implement it on a day-to-day basis are not unfairly caught by the creation of an offence that would cover an entirely accidental loss of information and its transmission to the wrong destination.
I hope that what I have said makes it clear that we welcome the new clause. I hope that the House will support it, although I still think that the issue of accidental transmission needs to be addressed.
Let me begin by declaring an interest, although I am not sure that it is strictly necessary: my wife is a governor of the BBC.
I am not as enthusiastic as some about the new clause. I think that subsection (1)(a) is perfectly sensible, and I have no objection to it. I am more concerned about subsection (1)(b), because it uses the words "attributable to any neglect" on the part of a director. It will be necessary to define the director's duties before it is possible to determine what the neglect is. Neglect in this context attracts a substantial period of imprisonment—a period not exceeding two years, if the conviction be on indictment.
I think that we are creating an offence without the directors to whom the penalty attaches being very clear about the nature of their duties. I think it right for a director to be obliged to lay down a system whereby information is safeguarded, but I am not at all clear about the extent to which the Bill requires directors, for example, to monitor the carrying out of the duties, or to perform some overseeing function. We are creating quite a serious penalty without defining what directors must do in the first instance, in respect of which they can be found to have been in neglect. I do not expect the House to resolve the issue sensibly at this hour, but there is a problem that must be addressed in the other place if directors are not to be faced with an unquantifiable liability.
I am reluctant to appear to differ with my right hon. and learned Friend, but is he saying that, notwithstanding the clear duties placed on directors, the Bill should specify the procedures by which they fulfil those duties? If so, that could apply to all legislation on all subjects, and we would be in an impossible mess.
The offence is neglect of duty. We must determine what the duty is before we can determine what the neglect is. If we do not spell out the duties in advance, the directors or any other officer cannot tell in advance what they should or should not do to perform their statutory duties. The extent of the duties must be defined. The Bill does not do that. I am not grumbling, because it is late at night, but this question must be addressed.
I said earlier that it is in the interests of a company director, knowing that he may be liable for such an offence, to take proper steps to ensure that his staff follow proper procedures. If a company director negligently failed to provide proper instructions to staff on the need to keep secure information provided by the Department of Social Security, or permitted working practices that led to unlawful disclosure of such information, he could be charged with an offence. Surely, the knowledge of that would be sufficient for company directors to put proper practices into place.
With respect to the hon. Lady, she is not right about that. She has elided the words "neglect" and "negligently": they are different. Neglect is a failure to do that which someone is required to do, and it does not require negligence. She used the word "negligent". If she is saying that "negligence" and "neglect" are the same, so be it, and let us put it in the Bill. Neglect means omission; it does not mean negligent omission. It just means failure—but failure to do what? She really must address this question. I am not blaming her for not doing so this late at night; no one would expect her to do that.
The problem goes to the nature of directors' responsibilities. I hope that the Minister will reflect on that possible problem, so that her hon. and right hon. Friends can address this matter in the other place.
Is not the difficulty for the directors compounded by the fact that clause 3(3), which I hope to address in my amendments, will permit them to release certain information? It is not quite as the Minister says. There is a straightforward obligation on them to keep all information secret, and they should set up systems to guarantee that. They will have to juggle: they will have to keep some information secret, but will be allowed to publish other information, which will make their difficulties infinitely greater.
My right hon. Friend the Member for Penrith and The Border (Mr. Maclean) makes a sound point. Although I am against codes of practice, because they are non-statutory and owe their existence to the Executive, if we are to take this general approach of creating an offence of neglect without specifying duties, we will have to introduce a range of non-statutory codes of practice. That will raise problems under the European convention on human rights and the statute that we have passed.
The House should be cautious about creating statutory offences when the obligations have not been spelled out. That is the point I am making.
I want to record my appreciation and that of my right hon. and hon. Friends for the observations of the hon. Member for Ryedale (Mr. Greenway) in Committee, and to commend the Government for this display of cross-party co-operation, which seems entirely appropriate in dealing with a measure that commands the support of both sides of the House. Its examination has proved equally uncontroversial.
I welcome new clause 2. I do not want to cross swords, or indeed to follow very far the arguments of the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), who may have a point that is worthy of consideration in another place, although I am not as troubled by it as he is. Ensuring the liability of the directors for disclosure underlines the importance of the confidentiality of the information that is handled.
On the formulation that the Government have used, as I understand it, the Minister is following very closely the wording of the Social Security Administration Act 1992. I believe that the Government of which the right hon. and learned Member for Sleaford and North Hykeham was a member were responsible for introducing that Act. I am not aware that that formulation has given rise to the concerns that he has expressed. It seems that the neglect is plainly the neglect to take the measures that would have been necessary to prevent disclosure from taking place.
I conclude by saying how grateful we are for the measures that the Government have taken.
Before we commenced on the group of amendments, I had assumed that the only major point of contention that the other place would wish to look at was that highlighted in new clause 1, which we are not debating in the House tonight. I know that the other place will be greatly vexed about that issue and the fact that people who are currently receiving free television licences may not continue to get them.
I thought that that was the only point of contention that the other place would want to major on until I heard my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) make his very telling points from a knowledgeable legal position on the difference between neglect and negligent. Having listened to his wise words and tried to grasp the concept behind them, I think that the Government may have been slightly negligent in the drafting of subsection (1)(b).
If the Government intended that officers who were negligent should be prosecuted and, in fact, have stated that officers who have committed any neglect should be prosecuted—we now know that there is a fundamental legal difference between them—although we have no time tonight to debate the matter because of the ruthless guillotine that the Government have imposed on this little piece of legislation, which we have not had a chance to debate in the Chamber before on Report, the other place will wish to take new clause 2 apart—well, not perhaps take it apart, but slice little bits off it.
Does the right hon. Gentleman not accept that, if he and his colleagues had not spent so much time on the guillotine motion, we would have had more time to debate the substance of the Bill? I am sure that the over-75s in his constituency will take note of that.
I reject that entirely. The Government had a three-hour guillotine motion, which was rightfully debated by hon. Members on both sides of the House. The hon. Lady may recall that, in the earlier guillotine motion debate, Members on both sides of the House participated. The hon. Member for Crewe and Nantwich (Mrs. Dunwoody) condemned her own Government for the ruthlessness of the guillotines that have been imposed today, so if the Minister is suggesting that we should have more time to debate that aspect of the Bill, the Government's guillotine motion should have given us three, four or five hours—in truth, there should have been no guillotine motion at all on the Bill.
I will in a moment, but I am responding to the point that the Minister made.
The Government may have attempted to justify a guillotine motion on the Royal Parks (Trading) Bill, which had been debated, but the Television Licences (Disclosure of Information) Bill has not previously been debated on Report.
I accept your guidance, Mr. Deputy Speaker; that was the rebuttal. Whenever I see a Government Member down, whether she is a lady or not, I want to continue to put the boot in further.
I am glad that I am not being chastised on this occasion, and I am sorry if I inadvertently led the hon. Member for Rotherham (Mr. MacShane) astray, so that he incurred your wrath, Mr. Deputy Speaker. I was merely suggesting, by way of introduction to my remarks and my new clause and amendments in this group, that I thought that new clause 2 was reasonably innocuous—although I did not like the terminology of parts of it, which I thought was not as clear as it could be—and that I was not concerned about subsection (1)(b) until I heard my right hon. and learned Friend the Member for Sleaford and North Hykeham in this debate. I am sure that the Government can expect problems in another place with that provision. I have already heard from many noble Friends in another place that they were looking forward to the Bill, to debate their own amendment—essentially new clause 1, which we are not discussing.
I do not like having to rise to my feet all the time to keep hon. Members in order. Nevertheless, the hon. Gentleman is quite right. That was the last time that the right hon. Member for Penrith and The Border (Mr. Maclean) will mention new clause 1. It should not take me to remind the House that that new clause has not been selected—we all know that. Perhaps that will satisfy the hon. Gentleman.
Precisely, Mr. Deputy Speaker; I had mentioned it for the last time and then passed on to say—as I think that Hansard will record—that I shall now turn to my amendments Nos. 14 and 15. It was not until the hon. Member for Rotherham made his point of order that you, Mr. Deputy Speaker, were forced to mention those words and that number, which I shall not mention.
Amendment No. 14 suggests leaving out subsection (3). I want to do that specifically because, for the first time, we shall be giving away secret information to a private company. Information that is controlled by the Government and the Department of Social Security will be issued. Each year, thousands of names and related private social security information will be issued to a private company, and potentially to dozens of other private companies that are acting on behalf of the BBC.
If the Government decide to issue information in that way and not as I have suggested in my proposed alternative, I think that it is incumbent on them to say that there are no circumstances in which that organisation will be able to publish any of the information at all. If we are to breach the precedent of not issuing Government information to private companies, and then breach it a bit further by saying, "You can't publish—except summary information", or, "You can disclose information that might already have been disclosed", we shall be creating ever more breaches in the absolute rule of secrecy.
There is no absolute necessity for the BBC or other organisations to publish summary information. If the BBC has information, it can feed it back to the Department of Social Security, which will make the decision on publication. The Department of Social Security should already have the information. It will know how many names it has issued to the BBC, and how many people aged 74 it has told the BBC will be entitled to a licence. The Department will have all that information. If it wanted the information organised on a constituency basis, it might have to establish its own systems.
How would the BBC have that information on a constituency basis? If the Department of Social Security does not know the number of pensioners aged 74 or over in individual constituencies, it will merely pass name, address and national insurance number to the BBC, and apparently the BBC will make that information available in summary form—presumably by using a parliamentary address cross-checker and a parliamentary constituency reference book. That information, which was given to the BBC specifically for the purpose of granting a free television licence, will be turned into a pack of other—no doubt useful and interesting—summary information revealing more general details about our constituents and the breakdown by age in all the constituencies in the United Kingdom.
Could not the problem that my right hon. Friend has described be dealt with by developing the non-statutory codes of conduct that my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) suggested? That would make it possible for the conduct that he describes to be controlled at least in some way, albeit voluntarily.
I am happy for there to be voluntary codes of practice setting out the duty of the directors, the officers and the chief executive. Presumably, some of the terminology in the new clause is designed to catch BBC governors and director-generals. They must be the "other similar officers", just as the wee secretary involved in selling dodgy hamburgers was caught by the previous Bill. However, I do not want voluntary codes of practice to be used to keep secret our information that we have given to the Department of Social Security. Why should my constituents aged 74 and over have to depend on a voluntary code of practice to ensure that summary information about them is not published by BBC companies or the BBC itself?
We know that the summary information will be used to put extra leverage on the Government at a time when they might decide not to increase the licence fee or to restrict the concession or claw it back. If there was a little bit in the press in a couple of years saying that the Government were finding the concession too great, too onerous or too costly, within months, information issued by the BBC under commercial acolytes collecting the fee would point out how many thousand desperate pensioners there were in each constituency. If Parliament wanted to vote for such a measure, we would be blackmailed into not doing so by the weight of the numbers argument. I am not saying that the Government would be blackmailing us—the BBC and others would be blackmailing Parliament and the Government.
There is no need to issue summary information. I appeal to the Minister to keep it all secret and thereby ensure that people have confidence in the system that the Government are trying to set up.
The Government have brought forward the Bill in good faith, because we believe that it is the easiest and simplest way of ensuring that pensioners get the free licences to which they are entitled. Given their antics, we can only assume that the Conservatives are intent on scuppering the scheme.