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‘(b) in relation to a body corporate established by the Secretary of State under section 7(3), means any person exercising the functions of a director; and
Clause 9 must be read in conjunction with clause 8, to which no amendments were tabled, and which the Committee has decided should stand part of the Bill. It deals with penalties and other provisions in relation to the unauthorised disclosure of information by those who come into possession of that information for the purposes, principally, of administering the scheme. One such group of people is the directors of bodies corporate that may, potentially, administer the scheme.
As the Committee knows from clause 7, however, one mechanism by which the scheme could be administered involves the Secretary of State setting up a body corporate to carry out the administrative functions that need to be carried out under the scheme. The body the Secretary of State sets up—if that is the route the Government choose to go down—might or might not have directors. It may be a classic body corporate in ordinary terms, or it may be a company limited by guarantee—I know not what the Secretary of State may have in mind. However, if the Secretary of State chose to set up a body corporate by some mechanism that did not result in that body corporate having directors, those who administered the scheme might not be caught by the provisions of the clause on the unauthorised disclosure of information. That is obviously not what is intended, because the information is highly personal to applicants, and they will not want it bandied about everywhere. That is why we are creating these criminal offences as part of the Bill in the first place.
Paragraph (b) of amendment 28 would include in the definition of a director for the purposes of clause 9 anybody exercising the functions of a director where the Secretary of State chooses to administer the scheme by setting up his own body corporate. Paragraph (c)—this is possibly an omission, and it should perhaps be obvious—would include not only directors, but shadow directors, so that they are caught by the criminal penalties created in clause 9. Again, that is desirable in case, for whatever reason, someone who is not properly or formerly a director but none the less is in breach of the scheme puts into the public domain information about an applicant that ought not to be there.
The amendments therefore seek to clarify that which ought to be obvious in the Bill and to make consistent the Government’s intention that there ought to be some sanction under criminal law for those who are responsible for the unauthorised disclosure of highly personal information about applicants. For that reason, even if I do not seek to test the will of the Committee on the amendment, I hope that the Minister will consider the matter on Report.
I thank my hon. and learned Friend for bringing the amendments forward. Subsection (6) gives a broad definition of an officer as a
“director, manager, secretary or other similar officer of the body corporate”; the subsection also encompasses a person purporting to act in one of those capacities. A person who gives orders for a company or part of it as a member of its management team cannot escape liability. That broad definition applies to officers of all forms of corporate organisation. I will look into the request made by my hon. and learned Friend and we will also look into whether we need to bolster regulations, but we feel that the definition is broad enough to fit.
If the Minister looks at subsection (6)(a), he will see that the words “or other similar officer” would appear to apply only to the category of secretary; the drafting of the provision does not seem to imply a reference to a manager or other similar officer, or a director or other similar officer. Although I understand that the Minister feels that the definition was intended to be drawn sufficiently broadly to encompass the point that we are currently debating, a respectable argument could be made that a shadow director is not caught by the wording of the provision, as the words “or other similar officer” can be interpreted as applying only to the word “secretary” and not to the words “manager” or “director”.
I will not seek to test the will of the Committee at this stage but the point is one on which the Minister will need to reflect. I would be grateful if he would write to the Committee before Report—or intervene now—to give his thoughts on the matter.
I am more than happy to write to the Committee on the issue. I will make sure that the Department’s legal team addresses the concerns that my hon. and learned Friend has put to the Committee.