Clause 29 - Unauthorised disclosure of information

Identity Cards Bill – in a Public Bill Committee at 3:00 pm on 27 January 2005.

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Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs 3:00, 27 January 2005

I beg to move amendment No. 230, in page 25, line 24, after first 'he', insert 'knowingly or recklessly'.

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Photo of Janet Anderson Janet Anderson Labour, Rossendale and Darwen

With this it will be convenient to discuss the following amendments: No. 231, in page 25, line 26, after 'he', insert 'knowingly or recklessly'.

No. 141, in page 25, line 44, at and 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.'.

No. 229, in page 25, line 38, leave out paragraph (c).

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

We have moved to an important clause, which makes whistleblowing an offence. It will be a criminal offence to disclose confidential information without lawful authority to others, such as journalists or loyal members of Her Majesty's Opposition, and information learnt during the course of employment by individuals who have responsibility for

''the establishment or maintenance of the Register; or . . . the issue, modification, cancellation or surrender of ID cards'', which is deemed to be confidential.

I shall begin by speaking to amendments Nos. 230 and 231, which go together. Under clause 29, a person is guilty of an offence if, without lawful authority,

''he provides any person with information'' that he should not provide. I read the rest of the clause to see whether there were any defences. I was not looking for the whistleblowing provision, but I found the first reference to a defence under subsection (4). Let us assume that I work in such areas and I supply someone with information, because of negligence on my part, utterly accidentally. It cannot be impossible that I supplied information accidentally, not intending to cause any harm nor necessarily aware at the time that I had carried out such action.

I could not avail myself of subsection (4) because that would enable me to have a defence if I could show that, at the time of the alleged offence, I believed on reasonable grounds that I had lawful authority to provide such information. I could not possibly say that, because it would not apply in my circumstances. I put before the Committee the proposition that someone can supply another person with information somewhere between accidentally and negligently, but without what might be described as a level of criminal intent.  

Such a person would not have a defence under the clause, which is why I want ''knowingly or recklessly'' inserted into the clause. There might be a better phrase than that. ''Reckless'' is not a word that actually commands great respect in criminal law at present, and has not done since the case of Caldwell. I am trying to cover the morally innocent person who supplies information to another accidentally or carelessly, but without the intent to cause a problem. The position of the whistleblower is different, because he or she supplies the information wholly and intentionally with a purpose. I shall deal with that in a moment. However, in amendments Nos. 230 and 231 I am trying to cover an individual who has, at worst, been negligent.

Amendment No. 229 would omit paragraph (c). Subsection (3)(c) states:

''information is provided or otherwise disclosed with lawful authority if . . . it is made in pursuance of a Community obligation''.

I have no idea what community obligations are. By seeking to omit paragraph (c), I can at least draw from the Minister some explanation as to what is meant by ''a Community obligation''.

Amendment No. 141 would widen subsection (4) to say that it shall be a defence if

''the provision of information or the making of the . . . disclosure was in the public interest.''

That is a public interest, or whistleblower, defence. Because such worlds are too complicated for me, I cannot envisage circumstances in which a whistleblower may want, or feel it essential, to provide some information to the public via the press or someone else. However, whistleblowers have been badly treated by Governments over the years, and the Government, on this occasion, ought to consider carefully our amendment on whistleblowers and the issue of public interest. Perhaps the whistleblower wishes to make public some dreadful scandal—I cannot say—but at least amendment No. 141 gives the Minister an opportunity to speak to us, hopefully at some length, on whistleblowing and a possible whistleblower's defence.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry) 3:15, 27 January 2005

In respect of the amendment moved by the hon. Member for Woking, which would insert the words ''recklessly and knowingly'', we may differ on that matter. We have been accused of being woolly liberals throughout most of the debate on ID cards, but in respect of measures that are included to protect privacy we will join the hon. Gentlemen opposite in the leather-clad authoritarian camp, which is perhaps the converse of a woolly liberal. We believe that if private data is included, there needs to be some protection for it, and the best way to do so is to ensure that there are clearly specified offences for people who breach those levels of protection.

However, we are in sympathy with the hon. Member for Woking on whistleblowing and joined him in signing amendment No. 141. I can imagine circumstances under which whistleblowing may be appropriate. Someone in the hierarchy may seek to ensure that someone is issued with an ID card who should not have one, or has no entitlement. If that is so   and an operator in the system becomes aware of a card being issued falsely, we want to be clear that they can come forward and declare to the authorities that that has happened without them being at risk of committing an offence.

I can also imagine circumstances, following those that we discussed earlier, where there is an abuse of the system. We have set out a series of safeguards governing how law enforcement agencies and others, including public authorities, can use the data in the national identity register. An operator of the register may become aware of wholesale trawling and searches that appear to be outside the scope of the law, and an agency might, for whatever reason, have taken it upon itself to use the data in a way that was not intended to be unlawful. If the operator came forward again and reported that appropriately, are we clear that they could do so without falling foul of the legal provisions in clause 29? The original drafting of the clause does not make it explicit that they could come forward and do that.

Amendment No. 141 has been tabled in order to get those assurances, and that is why we have associated ourselves with it. The Minister should be able to put on the record that an individual who became aware of some form of abuse of the system would not be liable to prosecution if they came forward and reported that.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Conservative, Cotswold

I rise briefly to make a point that is slightly wider than the amendments, but I hope that you will consider that to be in order, Ms Anderson, as we seem to be adopting that as our process, and then not having a clause stand part debate.

I am concerned about clause 29. Its first lines state:

''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''.

This is another clause that has much wider ramifications than merely identity cards. This is labelled as an identity card Bill, but as we scrutinise it in depth we find that a number of its provisions go far wider than that. The Minister shakes his head, so I might have got the wrong end of the stick on the measure I have just quoted, but it does not say that it is related to identity card offences. It is a completely bland and general statement.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

The hon. Gentleman should read further. Subsection (2) greatly narrows the circumstances in which a person can commit that offence, and brings it within the four corners of the Bill.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Conservative, Cotswold

I accept the Minister's point; he is right.

Therefore, I move on to amendment No. 141, which I call the whistleblowing amendment. We need some positive assurances on that. The recent history of whistleblowers shows that they tend to get punished for disclosing facts that turn out to be in the wider public interest. The Bill is pretty draconian in terms of what the state can and cannot do. Let us suppose that there was a level of collusion at the top of some of our organisations and that, because of the secrecy   provisions imposed by the Bill, that would never come out into the public domain if it were not for the activities of a whistleblower. We want to encourage whistleblowing. I think that that has been Government policy in the past, although they seem to have forked tongues on this issue; sometimes they seem to encourage the activities and aspirations of whistleblowers, and yet they also appear to punish them. Therefore, it is difficult to know where the Government stand.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

I have two brief points. First, juries have historically always been very sympathetic to whistleblowers—not unnaturally, because of public interest. Secondly, my hon. Friend may recall that a diplomat in one of our east European embassies blew the whistle on what was thought to be dishonourable conduct by certain people seeking to enter this country, and on the fact that it was thought that the Home Office was rubber-stamping applications improperly. He felt that that should be drawn to the attention of the wider public, and it could be argued that he performed a good service.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Conservative, Cotswold

My hon. Friend must have clairvoyant powers, because I was about to go on to give the Committee precisely that example. I will not repeat it, but there are other examples. There have been two serious examples of whistleblowers in the European Community, both of whom have lost their jobs; one of them subsequently brought down the entire Commission by blowing the whistle on corruption with regard to the European Union budget.

Therefore, the activities of whistleblowers sometimes do the public a great service. I hope the Minister will make some fairly positive comments, and speak at length about why he will—or will not—accept amendment No. 141. We want to encourage whistleblowers, because things can otherwise be covered up and might not come into the public domain.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

I will deal with amendments Nos. 230 and 231 first. They seek to provide that a person would be found guilty of an offence of ''unauthorised disclosure'' of information only if they ''knowingly or recklessly'' disclose to another person information that they are required to keep confidential. That information is defined more precisely later in the clause.

The hon. Member for Woking is consistent. He has consistently attempted to make liability dependent on intention throughout the Bill and he seeks again to do so. I give him the same response as I always do in that regard: the amendment is unnecessary.

On a fair and proper reading of it, subsection (4) provides a defence for someone who believes on reasonable grounds that they had authority to provide the information at the time they provided it. Therefore, it covers anybody who is acting in good faith. It will cover a person who acts accidentally. Such a person has a mens rea that they believed that they   were acting properly at the time. That is the very essence of accident.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

It is quite the opposite.

If I were to go through a red traffic light accidentally, I, potentially, would have no knowledge that I had done so. I have no idea how I am expected under the clause to supply the information. If I were accidentally but negligently to press wrong buttons, put something into the wrong envelope, or get through to the wrong telephone number and start spilling the beans before I knew who I was talking to, that would involve accident. However, I could not then stand up and say, ''My defence is that I believed on reasonable grounds that I had lawful authority to do what I did.'' I would have had no such belief, because I was being negligent. I would have had no belief either way. Does the Minister not understand the subtle difference that is involved?

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

With respect to the hon. Gentleman, he is being too subtle with his difference. I might have to defend someone who went through a red traffic light accidentally. Even if they were required to do so, they would be convicted because going through a red traffic light is an absolute offence. It does not matter what the person's state of mind was.

Someone cannot commit the offence that we are discussing in the circumstances in which the hon. Gentleman figures that people would be acting; the proper interpretation of subsection (4) allows for the defence I mentioned.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

There are circumstances in which going through a red traffic light involves an exact parallel. I could go through knowingly, in a hurry, and I would be guilty of an offence. I could go through utterly accidentally, not seeing the red light, and I would be guilty of an offence. Another circumstance would be when I go through it because the alternative of putting my brakes on would result in a major crash involving vehicles behind me. That is more on a par with reasonable excuse. That is subtly different in its context from the accidental provision to which I am referring, which could be opposed to my justifying my conduct.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

I have the utmost respect for the hon. Gentleman, as he knows, but I think he stretches his analogy far too far. The circumstances that he figures are in my view, and in that of the Government, covered by subsection (4). I ask him to accept that assurance from me. He asked me why and I say that they are covered because a person who acts in the way that he described believes that they are doing their job, albeit they might be mistaken. They have reasonable grounds for acting in the way that they did, albeit they were mistaken. They could not be convicted of the offence.

I will now discuss the defence of public interest. I listened carefully to what hon. Members have said in relation to whistleblowers—

Sitting suspended for a Division in the House.  

On resuming—

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality) 3:45, 27 January 2005

I was about to come on to whistleblowing. To contextualise my remarks, I should say to the Committee that the principal purpose of the clause is to prevent unauthorised disclosure of personal information. That is the objective. Such disclosure is a menace that I am sure the Committee thinks it appropriate to interdict in this way.

Hon. Members are of course right to say that the provision will also criminalise the unauthorised disclosure of other information, such as the audit trail information in paragraph 9 of schedule 1, or any information related to the functioning of the scheme that comes into the possession of an individual in the context of clause 29(2).

The point that I was about to make before we left to vote was that Labour Members share the interest of Opposition Members in allowing public interest disclosure when it is appropriate. I remind Opposition Members that the Public Interest Disclosure Act was not passed until 1998. That, of course, was the year after a Labour Government came to power following 18 years of Conservative government. During those 18 years I do not think that an attempt was made at making equivalent legislation. I cannot for the life of me remember how Opposition Members voted on the 1998 Act and whether they supported it, but I am sure that they remember. If they are late converts to public interest disclosure, they are all the more welcome.

It is entirely appropriate that, in the circumstances that hon. Members figure, people to whom the clause will apply should have an opportunity to bring their concerns to an appropriate authority. I accept that there may be cases in which they feel that bringing those concerns before their management is not appropriate. Under the scheme and the Bill, those people will have access to a number of commissioners who are entirely independent of the Home Secretary—the Secretary of State—and the Government, and they can make their complaints to them. An appropriate procedure is laid out in the Bill for the investigation of some complaints. In my view, there is a comprehensive set of circumstances for investigation in the Bill, should people wish to make such complaints to the commissioner. [Interruption.] The hon. Member for Woking asks what clause that provision is in. It is the clause that we debated this morning—

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

Sorry, the clause that we agreed would stand part of the Bill this morning, which set up the commissioner for this scheme and the intelligence services commissioner for those circumstances relating to security matters. In my submission, that construct provides a more than adequate opportunity for anybody with concerns that could normally be described as those that lead to whistleblowing. There is no need for an additional provision in those circumstances.  

Amendment No. 229 would exclude from the definition of ''lawful authority'' disclosures made

''in pursuance of a Community obligation''.

It is interesting how often, Pavlov-style, the Opposition react to any reference to the European Community. The provision is intended to cover any EC regulations that have direct effect, rather than requiring implementation in UK law. Without reference to regulations that may have direct effect, there will not be the necessary coverage to allow a person to say that they had lawful authority by the state of the whole law that applied to the United Kingdom when they made the disclosure.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

I am very unclear on this matter, which is entirely my fault. Are there Community laws that override our laws on whistleblowers and the clause?

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

No. I suspect that the hon. Gentleman is being slightly mischievous. As he knows, our domestic law is now made up of, among other things, EC regulations that have direct effect. That has been the situation ever since the Conservative party took us into the European Union, as it now is known. I would have thought that Opposition Members had got used to that by now.

If one is seeking to set out the parameters of ''lawful authority'', one needs reference to the possibility that one may be seeking legislation as a direct effect and that comes from Europe. ''Lawful authority'' is properly defined if it is so defined by reference to such legislation. I have nothing further to add. I hope that the amendments will now be considered unnecessary.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Conservative, Cotswold

I am still concerned about the Minister's explanation of public interest disclosures. What the Secretary of State—or, indeed, the commissioner—considers in the public interest may not be the same as what the general public would consider in the public interest. We saw that in the example given by my hon. Friend the Member for Woking. The instance that he gave was passed to the Government quietly. It was not until it was put into the national press that anybody took any action and, because it was in the national press, the employee concerned lost his job. We need a little more assurance that a whistleblower will not be caught by the provision before I can urge my hon. Friend to withdraw the amendment.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

The hon. Gentleman is entitled to act as he feels he must on this amendment, as is his hon. Friend. The Official Secrets Act, for example, does not have a public interest defence because it provides that if the information has been disclosed the damage is done and it is too late to undo it. The same view applies in this case.

I would not want the Bill to allow a person to put information about another individual in the public domain and defend that through a public interest defence, because the damage would then be done to the individual. Important private information about individuals is to be held in the register. With respect to the hon. Gentleman, I am not going to write into the Bill a carte blanche that allows people to do such damage and subsequently hope that they may able to   persuade some court or other that it was in the public interest—particularly when there is adequate opportunity for them to make complaints of the sort that hon. Members figure may be appropriate for a person to blow the whistle on, to one of a number of commissioners.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Conservative, Cotswold

I said before the Division that I am not worried about a whistleblower who deliberately blows the facts on an individual to get some sensation about them on to the public record. It would be reasonable for a whistleblower to be caught in such a case. I am more interested in when the system—the commission—does things that are not in the public interest. We have heard a lot about things that can be done without an individual's consent. Let us suppose that there was collusion along the line, people's affairs were being investigated unreasonably and the only way that that could be brought to the public's attention was by a whistleblower, and then the whistleblower gets caught by the provisions. Does the Minister agree that that would not be in the public interest?

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

I understand the point that the hon. Gentleman makes, but he is forcing his argument into a corner into which it will not fit. There is already a construct in the Bill that allows supervision to ensure that it does not operate in the way he suggests. The appropriate person with whom to lodge a complaint about such a matter is the appropriate commissioner. I cannot figure circumstances where there will be collusion between the commissioner, the police and those with responsibility for the scheme that will leave a person with no alternative other than to disclose such information. The whole system would have to have chronically broken down. The independence of the commission would be called into question in those circumstances. I cannot believe that the scheme could continue to function at all if those circumstances pertained.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

In so far as whistleblowers are concerned, my hon. Friend the Member for Cotswold has raised some good points.

We are not entirely satisfied with what the Minister has told us this afternoon. He has said that the person who provides this information purely accidentally, although possibly negligently, but with no mens rea to cause an offence, will not be prosecuted. That is helpful to know. These words are in Hansard and we know that such a person, on the Minister's very wording, will not be prosecuted.

The point about the community obligation remains interesting, but not fully explained. Having said that, I acknowledge that the Minister has given me his best explanation and, courteously, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

I beg to move amendment No. 198, in clause 29, page 25, line 32, after 'issue', insert 'manufacture'.  

The amendment—here for the sake of tidiness—is simple stuff. If a person can be involved in all the other processes, should not ''manufacture'' be included to cover all eventualities and to ensure that there is no unnecessary unauthorised disclosure of information?

Photo of David Curry David Curry Conservative, Skipton and Ripon

I wonder what would happen if the cards were being manufactured overseas.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

That is an extraordinarily good point; they are highly likely to be manufactured overseas. Funnily enough, I have examples of cards here—Italian and American. As my right hon. Friend says, neither is manufactured in the country in which it is to be used, so that is an apposite remark.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

The Government believe that the amendment is unnecessary, as those who manufacture cards are not likely to have—indeed, will not have—access to any confidential information on individuals. The issuing of the cards is the relevant point at which the information is put on the card. The manufacturer will produce a blank card—possibly with an empty chip—which will not involve information held on the register.

The important issue is the personalisation of the card and/or chip. That is when the information is tied to the card. That is clearly covered by ''issue'' in terms of the activity that gives a person access to information. ''Manufacture'' is unnecessary and I resist the amendment.

In an intervention, the right hon. Member for Skipton and Ripon (Mr. Curry) sought to draw me out as to where the cards will be manufactured. At this stage, I do not know.

Photo of David Curry David Curry Conservative, Skipton and Ripon

It is possible that the cards could be manufactured overseas. If we book a ticket on British Airways at the travel office, that ticket is going to be printed out in India. The offshoring of large—[Interruption.] No, a great deal of computer processing takes place in India. The manufacture of cards taking place overseas is entirely possible and would be economic. The cards could be brought back to the United Kingdom in batches under conditions of high security.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality) 4:00, 27 January 2005

The right hon. Gentleman suggests that such manufacture of cards is a possibility. He may be right. Manufacturing might be carried out somewhere beyond the United Kingdom. I am concerned about the issuing of cards, which is the point at which personalised information is put on to them and when the criminal offence bites. I am satisfied that the clause as drafted will allow us to protect that stage in the process, so I will not accept the amendment.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

All that I can do is to accept the Minister's reassurance that the manufacture of the card is not the crucial part of the process, which is the point at which the information is inscribed, squirted and electronically put on to the card one way or another. I am grateful to him. The matter has clearly been thought about and is covered by the clause. I beg to ask leave to withdraw the amendment.  

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

We still need to deal with other points arising from the clause. The jurisdictional argument of the right hon. Member for Skipton and Ripon is important. The clause aims to ensure that people are deterred from divulging information from the national identity register. This is about not only issuing the card, but keeping secret the information that is held on the register. It seems that, if the data are to be processed outside the jurisdiction of the United Kingdom, serious questions must be asked about the extent to which we can rely on the safeguards under the clause. Safeguards mean something only if we can take action against people who have disclosed data without authorisation.

It would be helpful to receive information from the Minister about the Government's intention. Will the processing of the national identity register take place only in the United Kingdom? If not, we want him to assure us about the likelihood of action being taken against, for example, a data processor in the Philippines or in countries in which such work takes place. If that data processor disclosed data, such matters would relate to whether the offence was extraditable and how enforcement action could take place.

We are looking for an assurance that such matters will be processed within the United Kingdom, as a result of which clause 29 measures may be taken against data processors if they breach confidentiality. If such matters are processed outside the United Kingdom, we must understand how the clause will act as a deterrent in such circumstances.

As for the offences, legal remedies will have to be invoked. Experience of the police national computer, which is an equivalent process, shows that powers have had to be invoked. Processing agents have taken data from the police national computer, often in the context of marital breakdowns and domestic disputes, and released the whereabouts of a person. I recently read of a case in which someone was prosecuted and rightly sentenced for such action. We must recognise that it is likely that clause 29 powers will have to be used and understand the extent to which we can depend on them.

I do not have to hand details of penalties for comparable offences. For example, I would have thought disclosure from the police national computer, the Criminal Records Bureau and national health service records to be comparable areas where we wish to see whether offences under the Bill will bite in a similar way and have a common understanding of how they kick in.

As for understanding the seriousness of disclosure, in another debate we touched on people who take part in witness protection programmes. That remains an issue of concern. We debated the fact that the Secretary of State will deliberately be able to create false entries in the register to protect people under witness protection programmes. We can imagine that such data will be a major target. If the national   identity register were entirely comprehensive, some people who we will be dealing with under the clause will have been induced to disclose data in an unauthorised way to get back at people who had given evidence in multi-million pound cases as well as criminal, terrorist and other serious cases.

The inducements will be serious. We want to know that people will face suitable penalties if they disclose data in cases when the potential outcome is the most serious of all because, when an individual's new identity is exposed, they will often face the threat of death.

The final concern involves subsection (3)(b), which deals with the lawfulness of disclosing information

''in pursuance of an order or direction of a court or of a tribunal established by or under any enactment''.

That opens up the possibility that personal data of the kind that we have talked about—the audit data in paragraph 9 of schedule 1—will be disclosed under court orders in a lawful way. The public need to understand the breadth of this provision.

We discussed the hurdles that have to be cleared if law enforcement agencies want to access this data. Court orders may be very broad. There is some evidence of that from the field of internet data; people have used Police and Criminal Evidence Act 1984 powers, and in some civil cases there have been attempts to get data about what people have been doing on the internet. The courts have created an order and those data have had to be disclosed.

With regard to subsection (3)(b), I can envisage a wide range of circumstances in which we would think we had safeguards in place. If the police wanted to launch a prosecution, they would not be able to access the data, because unless they could prove serious criminality they would be told, ''You cannot have all these audit data.'' However, somebody else who is going through a matrimonial case or another case in court and who wants to prove a point may be able to secure a court order that unlocks all those data and may release them from the system. As we create this system, people need to be aware that such circumstances may apply and that some safeguards put in place by clause 29 may be bypassed by many forms of potential authorised disclosure.

The tribunals point is important. I am surprised by the large amount of data that can be disclosed to tribunals, particularly industrial ones. I foresee circumstances in which the audit trail data in particular may be cited in industrial tribunal cases: somebody might want to prove that a person was in a particular location at a particular time and might seek that disclosure through the tribunal. It seems that that is lawful under this provision.

Some important issues are raised by clause 29, and I would appreciate responses to all of them. One of the big questions involves the ability to take effective enforcement action, particularly in the context of not understanding where the data will be processed and not having, as yet, any assurances that that will take place within UK jurisdiction.  

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

The hon. Gentleman raises a number of interesting points that merit answers. I will answer to the extent that I am able to do so.

The hon. Gentleman asks if it is a proper interpretation of this part of the Bill that this offence can be committed only within the UK? The answer to that is yes, to the extent that what is known as the actus reus—the actual action—would need to have taken place in the United Kingdom before the UK criminal courts would have jurisdiction. There are circumstances involving some very serious crimes where the UK courts take jurisdiction for crimes committed anywhere in the world. War crimes is an obvious example. There is a statutory basis for that, and we know why that should be the case. However, for these offences, jurisdiction will be restricted to an actus reus in the UK.

The hon. Gentleman asks where the processing of that information will take place. At present, I cannot give him the certainty he seeks, because the procurement process in relation to certain parts of this scheme are required by EU law to be open. That aspect will be as open as possible so that the Government can be assured that they get best value for money. However, I can say that the agency issuing the ID cards will be UK based, and it is intended that that agency will build on the UK Passport and Records Agency.

I am very mindful of the fact that the law on procurement allows the Government to restrict matters to UK-sourced procurement, if that is necessary on grounds of national security. All those issues will be taken into account. I already see arguments on the points mentioned by the hon. Gentleman, because those points are related to potential national security issues. There will be arguments for ensuring that we can hold jurisdiction on such activities appropriately so that penalties can be brought to bear on the relevant people.

The hon. Gentleman asks about the proportionality of the penalty and for some indication of equivalence in other legislation. Under section 9 of the Rehabilitation of Offenders Act 1974, disclosure of spent convictions attracts a maximum sentence of six months. Offences under section 59 of the Data Protection Act 1998 attract a maximum penalty of a £5,000 fine. The penalties envisaged in clause 29—

''imprisonment for a term not exceeding two years, or . . . a fine, or . . . both''— are not disproportionate to the equivalent provisions in other statutes.

I understand why the hon. Gentleman says that such actions could be conducted in the context of much more serious behaviour. If there were evidence that a person was party to a conspiracy such as he figures, I suggest that they would be prosecuted for something much more serious than the unauthorised disclosure of information from the identity register. Perhaps there would be an alternative charge as a fallback position, in case the principal behaviour was not properly criminalised. I do not think that I have anything further to say; I have covered the three issues.  

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

The additional point—just to be clear across the Committee—is that there is that breadth of possible disclosure in the context of court orders and tribunals. The public need to be aware that such disclosure is potentially much broader than that in criminal investigations.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

The simplest answer is that the hon. Gentleman is right. He will accept it from me that it would be entirely inappropriate for Parliament to fetter courts that might properly make such orders in appropriate circumstances, bearing it in mind that such orders will not be made willy-nilly and will be subject to the normal rules on the disclosure of evidence or information.

It would not be appropriate for Parliament—having allowed the courts for many decades, if not centuries, to make such orders—to seek to restrict them. However, the hon. Gentleman is right to bring the issue to the attention of those who may be interested.

Question put and agreed to.

Clause 29 ordered to stand part of the Bill.