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Column 1070
New Clause 3
International relations
(1) A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he discloses any information, document or article relating to the personal affairs of an identifiable individual which has been supplied in accordance with any requirement to do so imposed by or by virtue of any statutory provision or so supplied in connection with an application under a statutory provision for the grant of any benefit, approval or other permission, or which is held by any police authority, and which is held on terms requiring, or in circumstances in which it would be reasonable to expect, it to be held in confidence.
(2) It is a defence for a person charged with an offence under this section to prove that the disclosure was required in order to prevent serious injury to the health, safety or welfare of any person or a serious risk to public health.
(3) It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question was such as is mentioned in subsection (1) above.'.-- [Mr. Richard Shepherd.]
Brought up, and read the First time.
Mr. Richard Shepherd : I beg to move, That the clause be read a Second time.
Again, I shall go as quickly as I can through new clause 3. The clause proposes to add a new category of information--personal information about individuals--to those protected under the Bill. At present, the one area in which section 2 of the 1911 Act is still being used, and where its use is least controversial, is to deal with improper disclosures of personal information.
Earlier this month, two police officers and five private investigators were convicted under section 2 for conspiring to obtain information from the police national computer about criminal convictions and car owners. In 1986, a clerk at the DHSS was convicted under section 2 for revealing to a rival councillor details of social security claims made by the husband of a local councillor. Such information would no longer be covered by the new Official Secrets Act. The only police information that would be covered would be information whose disclosure would impede law enforcement. Disclosures may still be offences under other statutes. If the information is held on computer, unauthorised disclosure by an individual may be an offence under section 5(3) of the Data Protection Act 1984. If the information is held on paper files, however, it is not covered by that Act. There are other prohibitions in individual statutes on the disclosure of certain types of personal information, but it is not clear how comprehensive they are. I recall that my right hon. Friend the Secretary of State actually said that one of the things that the Department would be doing would be to review the existing legislation to ascertain whether there are omissions. We have not had the Minister's view on that yet. It may, of course, turn out to be the case that some types of information covered by the amendment are already adequately protected by other statutory provisions and that the amendment is therefore not required, but I have some doubt about that in respect of the national police computer.
The new clause recognises that the protection of personal privacy is an extremely high priority for the public and should be recognised by legislation. The amendment would cover the following types of personal
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information held in confidence about an identifiable individual. First, it would cover information that an individual is required to supply by statute. That would, for example, include income declared to the Inland Revenue--I should like to hear my hon. Friend the Minister's view on whether that is protected by existing legislation--census information or car ownership details. Secondly, it would cover information supplied in connection with an application for a statutory benefit or permit, such as social security or legal aid. Thirdly, it would cover information held by the police. The new clause refers to information held by a "police authority", but perhaps it should have referred to a "police force".Subsection (2) of the new clause provides a defence for an unauthorised disclosure if
"the disclosure was required in order to prevent serious injury to the health, safety or welfare of any person or a serious risk to public health."
That principle is incorporated in the Prevention of Pollution Act 1974. Such disclosure might arise in an emergency when, for example, someone was carrying a highly dangerous infectious disease such as smallpox. A need for an exception of this nature is also recognised in the Data Protection Act 1984. Section 34(8) of that Act allows disclosure which otherwise would be an offence where it is "urgently required for preventing injury or other damage to the health of any person or persons".
8.30 pm
Mr. Corbett : I shall make a brief contribution to the debate because the conviction of a clerk at the DSS, which was mentioned by the hon. Member for Aldridge-Brownhills (Mr. Shepherd), happened in my constituency. I do not want to cause any trouble by saying that the councillor involved was a Liberal, but whatever else he did, he should not have asked for that information.
Mr. Corbett : He is no longer a councillor, so it does not matter. When the Minister replies, he may well assure the House that the restrictions on the passing of information that citizens have to provide on a statutory basis, such as information to the taxman, the DSS, or whatever, are protected by other legislation. If that is so, we shall be able to dispose of this debate fairly rapidly.
Mr. John Patten : During the course of my speech I hope that I will be able to bring a smile to the face of my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd).
Ms. Diane Abbott (Hackney, North and Stoke Newington) : I doubt it.
We explained in the White Paper--a document long since forgotten in our debates--why we did not consider it right to give blanket protection to information provided by individuals. I am sure that my hon. Friend is aware of the arguments that were adduced in the White Paper. I am sure that it is better for Parliament to look at particular kinds of such information individually and decide whether it is right to give it the protection of the criminal law. I shall develop that argument and then make some announcements to the House.
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The elements of the offence, and of any relevant defences, need to be considered in the context of the purposes for which the information is supplied in the first place and the circumstances in which it, quite properly, might be disclosed. The new clause tabled by my hon. Friend also outlines the circumstances under which information should be properly disclosed.As my hon. Friend the Member for Aldridge-Brownhills suspected--it was also implicit in the contribution by the hon. Member for Birmingham, Erdington (Mr. Corbett)--there are already a number of individual offences that protect information provided to Government under statutory requirement or for some other purpose. My hon. Friend the Member for Aldridge-Brownhills mentioned census information, which is already protected by the Census Act 1920. There are other examples that might interest my hon. Friend. Section 74 of the Airports Act 1986 makes it an offence, subject to certain exceptions, to disclose information obtained from airport operators by, amongst others, the Civil Aviation Authority. We have had a brief discussion of value added tax during the previous debate and section 44 of the Value Added Tax Act 1983 makes it an offence to disclose information obtained by the business statistics office of the Department of Trade and Industry for the business register or any other statistical survey other than to a Government official who needs it for that purpose. In practice, where prosecutions are brought for the disclosure of the categories of personal information referred to by my hon. Friend, they are normally brought under those specific offences. It is extremely rare that such offences are brought under section 2 of the Official Secrets Act 1911.
My hon. Friend's new clause would bring back the blanket protection in a manner that would not be consistent with our proposals. As we said in the White Paper, in general the civil remedies available to those who provide the information and the disciplinary procedures that penalise disclosure by a Crown servant provide sufficient protection for private information.
Mr. Richard Shepherd rose --
Mr. Patten : I shall develop this argument before I give way to my hon. Friend.
In the White Paper we acknowledged that there are circumstances where, as the Franks committee argued, it is in the public interest that private information should be given the protection of the criminal law. I do not believe that anyone would dissent from the view that in certain circumstances such information should be given the protection of the criminal law.
Mr. Bermingham indicated assent.
Mr. Patten : I am glad that I have the assent of the hon. Gentleman. We see no reason why all such information should automatically be given that protection. Generally we believe that Parliament should have a selective attitude when considering the nature of the information that may be provided and the harm likely to arise from its disclosure.
The new clause contains no test of harm. It protects every piece of information that is provided in the broad circumstances covered by the clause. I am sure that right hon. and hon. Members on both sides of the House would agree that a person who provides information about himself or herself to a public official has the right to expect
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that that information should be kept in confidence. In the White Paper we undertook that we would consider whether the repeal of section 2 left without the protection of the criminal law any information provided to the Government in confidence which needs such protection. Tonight I can tell the House that my right hon. Friend the Chancellor of the Exchequer proposes to continue to provide such protection for those who give private information about themselves and their businesses in confidence to the Inland Revenue and to Customs and Excise.Mr. Richard Shepherd : Does that mean that my right hon. Friend the Chancellor of the Exchequer will propose new legislation to the House? What legislation protects the national police computer?
Mr. Patten : The protection given to those who provide information to the Inland Revenue and to Customs and Excise will be a continuation of previous practice, but it must be hallowed in legislation in this place--
Mr. Shepherd : Will it be a criminal offence?
Mr. Patten : It will be a criminal offence.
Mr. Shepherd : So it is new legislation?
Mr. Patten : It will mean the continuation of previous practice. The offence will apply to personal information only about taxpayers, including companies. It will not protect information about tax policy or about prospective tax changes.
My hon. Friend the Member for Aldridge-Brownhills asked whether the repeal of section 2 of the Official Secrets Act 1911 would leave personal information on the police national computer without the protection of the criminal law. I can give my hon. Friend some reassurance as personal information held on that computer is covered by the Data Protection Act 1984. It would be an offence for those responsible for the operation of the police national computer wrongly to disclose such personal information. Equally, I can tell the House that my right hon. Friend the Secretary of State for Social Security proposes to make provisions in relation to private information provided to his Department, similar to those to be made by my right hon. Friend the Chancellor of the Exchequer, in the Social Security Bill which is currently before the House. I hope that the House will welcome those proposals by my right hon. Friends the Chancellor of the Exchequer and the Secretary of State for Social Security. However, I must not pre-empt those debates as the House will have the opportunity to discuss those matters.
Mr. Corbett : What about the guillotine?
Mr. Patten : That is not a matter for me--that is a traditional answer to the traditional question, although it was asked from a sedentary position. The House will have the opportunity to consider those details in Committee, when they are published in relevant Bills.
At present, we have not yet identified other categories of personal information which would not be protected other than by official secrets legislation, and which merits the protection of the criminal law. That can be considered in the context of any relevant legislation which is brought before the House.
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The new clause goes wider than we believe is needed at present to ensure the protection of personal information. We agree that such information should be protected, but, if my hon. Friend presses his new clause, we do not agree that all such information needs to be protected by the criminal law under all circumstances all the time, nor that such protection should be given by official secrets legislation. That is probably the wrong route and I hope that my hon. Friend the Member for Aldridge-Brownhills will consider withdrawing his new clause.Mr. Bermingham : It is interesting to hear the Minister announce new legislation. However, like the money changer, he comes with almost empty hands and high interest rates.
The Minister has really missed the point. Of course some categories of information need to be protected, and once again the hon. Member for Aldridge-Brownhills (Mr. Shepherd) has highlighted them. He mentioned the police national computer and the problems that can arise when that information is made available to other people, for legal or illegal purposes. We know from experience that information in the possession of the Inland Revenue is not always safe, and that information passed to the Department of Social Security about legal aid applications and other matters has leaked into the hands of third parties. Computers are not free from hackers and that information has a curious way of leaking out, often to the detriment of ordinary men and women.
We seek to ensure that such information is protected. If our society is worth having, if people want to go to the Inland Revenue and feel that it is their duty to disclose matters which involve companies and interlinking between companies, they need to know that the information that they provide will be safe. That occurred some years ago in the lump scandal in the building trade when an enormous amount of tax was defrauded. There are people within Government Departments involved in tax, social security and so on who for a quick £1 or £2 will disclose information. We need to know that those people can be prosecuted.
I become concerned when I hear the Minister say that the Government will cover any particular information in another Bill, such as the Social Security Bill. I heard my hon. Friend the Member for Birmingham, Erdington (Mr. Corbett) ask about a guillotine, but I shall leave aside that argument. We need the legislation to be in a composite form. If it is not, there is no guarantee that the legislation on each category of information will take the same form and that there will be the same certainty about that legislation. That is why I still have very grave reservations about the Bill as it stands.
Once again I am grateful to the hon. Member for Aldridge-Brownhills for moving new clause 3. It is not word perfect, but its spirit is right. I hope that if the hon. Gentleman does not push the new clause to a vote, the Government will take it away and examine it with care, and perhaps consideration will be given to statutory protection when the Bill passes to another place.
8.45 pm
Mr. John Patten : Does the hon. Gentleman agree that the Government have demonstrated their good intentions through the two announcements I have made this evening about future legislation from the Treasury and from the
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Department of Social Security, particularly dealing with the income tax matters to which the hon. Gentleman referred?Mr. Bermingham : I hear the Minister and I hope that the actions which will follow are as pure as his words. The Government are prepared to listen, and I am prepared to give them one more chance. However, the Government's track record on the Bill to date has been pretty awful and therefore I have little faith in the dulcet tones of the Minister. Let us hope that he proves me wrong for a change.
Mr. Richard Shepherd : I accept what my hon. Friend the Minister has said, and I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
Clause 8
Safeguarding of information
Mr. Corbett : I beg to move amendment No. 11, in page 8, line 24, after such', insert
and has disclosed without official authorisation'.
Mr. Deputy Speaker : With this it will be convenient to take amendment No. 12, in page 8, leave out lines 28 to 30 and insert and the person discloses it knowing or having reasonable cause to believe that it is such as is mentioned in paragraph (a) above and is likely to be used without authority for the purpose mentioned in paragraph (b) above.'.
Mr. Corbett : The Minister has fair taken away the breath of the House with those two generous announcements, and I wonder whether I can tempt him to make it a hat trick. I want the Minister to understand that amendments Nos. 11 and 12 are not solely Opposition amendments and stand in the names of hon. Members from both sides of the House.
The clause is about disclosures which helped someone gain access to protected information. There is no harm test ; the offence is disclosure where
"it would be reasonable to expect"
that lawfully held information might somehow be used by a person to whom it is passed to get at protected information.
Clause 8 applies to any information and is not limited to categories of information that are protected under the Bill. The legally held information need not have been leaked. It would apply to information which a civil servant disclosed with proper authorisation, or even to information published in an official report sold by HMSO. That is possible. If it is not possible the Minister will tell me. The Minister may well say that it is very unlikely, but I do not want to know that, as in paragraph 14 of the White Paper the Government's aim is that there should be no uncertainty as to whether people risked prosecution.
The nub of our objection is that the person who passes on the information which he or she legally holds commits an offence even if he or she has no reason to believe that the person receiving the information is likely to use it improperly, so the holder of the information has to guess at the intentions of others. I accept that ultimately that would be a matter for the courts, but none the less the offence is too widely drawn and relies too much on guess-work about the intentions of another person.
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I shall give the Minister and the House a couple of examples. It is not unknown for people to be walking by the side of canals or rivers or around the areas of rubbish dumps--it has been well reported--and to find batches of secret information. The good citizen in those circumstances would look at the documents and say, "What shall I do with these?". He may sweep them up and walk home with them. He is then faced with a range of choices. One option would be to phone the local police station. The citizen may say, "I do not know the value of these papers or who they belong to because there is no clue." Such papers do not often say, "Home Office" or "John Patten's Office". Let us assume that the documents have the word "Secret" stamped all over them. The citizen may think, "I know what, I'll phone ITN." He may not do that for any malevolent reason but simply because he thinks that that organisation would know what to do. He may believe that it would pick up the telephone and speak to the Minister of State's Office and say, "We have some documents. We think that they belong to you so please come and get them." That may not be done for malevolent reasons or for financial gain but purely to return the papers, which, clearly, should not be on the side of a canal, to the person responsible for them. Under the clause as drafted, if a good citizen passed such documents to ITN and ITN let the side down by saying, "Holy smoke, there's a real cracker here and we should do something about it."--let us assume that the D notice committee does not hear about it--the good citizen could be in trouble. He or she may have no idea of the intentions of the person to whom the documents were handed.Somebody travelling on a train from the golden city of Birmingham to Euston may overhear a conversation between two people who seem to be members of the Security Service who are talking more loudly than they should about their work. That person may get bored with the conversation and go to buy a bacon sandwich--I think that British Rail has stopped making bacon sandwiches. He may say to the man in the buffet, "I heard two spooks talking about their work." Under the Bill as drafted, the mere fact that he said that means that he may have committed an offence and risk prosecution. Those are open-ended offences which should not be in the Bill. Our two amendments seek to narrow the offence.
The first amendment seeks to limit the offence to passing on information disclosed without official authority. Passing on information that has been officially published would not be an offence. That should be the Government's intention if they do not want to look even more stupid than they do now. The second amendment means that no offence would be committed unless the holder of the authorised information knows that it was held by a Crown servant, that it was disclosed without authority and that it is likely to be used to obtain access to protected information. The clause as drafted does not lay that test. The clause uses the words :
"it would be reasonable to expect".
It does not say who would make the test of reasonableness or how it would be applied.
Perhaps the Minister would give examples of the specific problems that clause 8(6) is designed to guard against. If he cannot, the amendments should be accepted.
Mr. John Patten : The hon. Member for Birmingham, Erdington (Mr. Corbett) and his right hon. and hon. Friends who support the amendment are attempting to
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raise the threshold for the offence. He described accurately what he is trying to do and perhaps he will correct me if my understanding is wrong.The two amendments apply the access offence in clause 8(6). Amendment No. 11 is a paving amendment for amendment No. 12 because it introduces a preliminary step in the offence requiring that the Crown servant or the Government contractor in whose possession the information was had disclosed that information without authority. That theme has run throughout all our debates. The intention is clear and I would not argue about the wording.
Amendment No. 12 requires the prosecution to say that the discloser knew or had reasonable cause to believe that the information had been disclosed by a Crown servant or a delinquent Government contractor without authority and that it was likely to be used to obtain unauthorised access to protected information.
The two amendments turn the test of use from one of expectation to one of knowledge. It would not be much use, if the Bill prohibited the disclosure of protected information, if a person could avoid responsibility by telling someone how to obtain information for themselves. That is what would happen. The hon. Gentleman's amendments would ensure that neither the discloser nor the recipient would be liable for any offence. Clause 8(6) closes that loophole and the amendments, to some extent, reopen it. The hon. Gentleman is wrong. The objective of the offence is to prevent people obtaining unauthorised access to protected information.
Mr. Patten : The hon. Gentleman said, "Yes" and he has explained his intentions clearly. However, amendment No. 11 is misconceived. What matters is the misuse of the official information, not whether it was originally disclosed without authority. Surely there are no circumstances in which a Crown servant would be authorised to disclose information that might provide unauthorised access to protected information.
Mr. Corbett : What about the rubbish dump scenario and accidental access?
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Mr. Patten : Accidental access would undoubtedly be protected by the harm test. Accidental access could not be an offence because there would be no way of proving that the person wished to make available to someone else, with the intention of causing damage, information which he or she had stumbled upon on the edge of a rubbish dump. The hon. Gentleman is simply repeating the fruitless search for the honest whistleblower and is now replacing that motif with the honest stumbler over information on the edge of rubbish dumps. That example does not help the proper understanding of clause 8.
It is pretty far-fetched and imaginative in the extreme to suggest that the Government would publish information that would give access to protected material. That was another point that was implicit in what the hon. Member for Erdington said. What is really relevant to the offence is that the individual has reason to know that the information he discloses might be used to gain unauthorised access to protected information. That requirement is already in the Bill and it is reinforced by the need for the prosecution to show that, in the circumstances of the disclosure, it was reasonable to expect that it should have that effect. That seems to reflect more accurately the circumstances in which such offences might be committed.
Questions about official authorisation and whether the person disclosing the information had reason to believe that it had been officially authorised for disclosure only take attention away from the essential element of the offence itself, which is to prevent someone giving someone else the nod and wink about how to gain access to unauthorised information and to escape any penalty for so doing. I do not believe that any hon. Member believes that that would help to protect the official secrets of the realm, where they need protection. What matters is not official authorisation, which might or might not be relevant to the particular disclosure, but whether the person disclosing the information did so in circumstances in which he had reason to expect--which is the critical point --that it might be used to give access to protected information.
It being Nine o'clock, Mr. Speaker-- proceeded, pursuant to the order [13 February] and the Resolutions this day, to put forthwith the Question already proposed from the Chair.
Amendment negatived.
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Order for Third Reading read.9 pm
Mr. Hurd : I beg to move, That the Bill be now read the Third time.
The House has spent six days--all on the Floor of the House--on an important Bill of 16 clauses. I do not think that, in retrospect, that will be found niggardly. The two main issues of contention identified by critics of the Bill were, first, the absolute offence for members and former members of the intelligence and security services and, secondly, the principle of a public interest defence. Both issues were discussed at length and without restriction. We have seen a devoted and articulate band of critics, from all parties, coming together against certain aspects of the Bill. Those critics have not, of course, opposed the proposal to free the great bulk of official information from the criminal law so that the great majority of civil servants will, if the Bill becomes law, hardly ever possess information that will come within its scope. That is a substantial change. The critics have not opposed the proposal that there should be harm tests in, for example, foreign affairs and defence which now, for the first time, will have to be surmounted before prosecution can succeed. They have not opposed the proposal that there should be no ministerial certificates and that the jury should decide.
What the critics have been doing is urging us to do more, to go further down the road, to make the hurdles higher and to introduce new forms of defence within the narrow area still to be protected. They have done that overwhelmingly because of the particular person whom they continually conjure up before us--the vision of the whistleblower, the conscientious civil servant who is asked to do something wrong. My hon. Friend the Member for Harrow, East (Mr. Dykes) gave perhaps the most vivid description of that person a few hours ago. Such a person can exist and it is right, wherever possible, that there should be safeguards and remedies open to him. But the House cannot be expected to build the whole structure of the law around that person. He is not the only pebble on the beach. That is why the argument from the critics has been unbalanced. Yet that argument has dominated most of the debate. A balance must be struck because the information that we believe must be protected needs to be protected--not to save Ministers from embarrassment or to safeguard some vague concept of public interest, but to enable certain services of the Crown to protect the citizens of this country against certain specific evils, such as terrorism, crime and espionage. Where that has to be done, it should be done effectively. In the areas defined by the Bill, information disclosed can cause serious damage--I use the word "serious" deliberately.
Mr. Corbett : What about "serious damage"?
Mr. Hurd : I am coming to that--as I have come to it so often. I used the word "serious" deliberately, knowing that the hon. Member for Birmingham, Erdington (Mr. Corbett) would be spry in interjecting, because I believe in the narrowed categories of test as defined in the Bill. I believe that harm could be serious without the further need for qualifying it as such in the various harm tests in the Bill.
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Perhaps because the critics' arguments have tended to be unbalanced, they have not made decisive headway. Nevertheless, they have strong assets. They have their own strong talents and the fact that many of them, as Privy Councillors, have under our rules rightly been prominent in debate. They have also had the support of a powerful section of the press, which has often emitted more smoke than light. Of course, the press has a perfectly legitimate interest in maximum disclosure, so no one should be surprised by that. Despite all those formidable assets, however, the critics have not been able to mobilise more than a certain level of support-- [Interruption.] I hope that no one will try to tell me about the power of the Whips, as my hon. Friend the Member for Hendon, North (Mr. Gorst) did earlier when he referred to the ignorant majority. I know the limits on the power of the Whips, having stood at the Dispatch Box and seen a Government measure come apart in my hands-- [Hon. Members :-- "Yes, this is it."]--despite all the power of the Whips to sustain it on Second Reading.Dame Elaine Kellett-Bowman : The Shops Bill deserved to fall apart.
Mr. Hurd : I believe that my hon. Friend will agree with what I have been saying. If the whole House believes that the Government have got their basic judgments wrong about a measure, it will make that belief felt-- especially when every word in the argument has been spoken on the Floor of the House, as has been the case with this Bill.
Mr. Budgen : Is not the problem that if a Bill is bashed through quickly there is not the opportunity for the House to respond to public opinion? In the case of the devolution measures that went through the House 10 years ago, public opinion in the end changed and, as it changed, it affected opinion in this House. By bashing the Bill through so unnecessarily, my right hon. Friend and the Government do not know what the people of this country believe about it.
Mr. Hurd : I must beg leave to differ with my hon. Friend. The process has seemed almost interminable. We had the White Paper, a debate on the White Paper and then the Bill, with long processes of discussion and debate for many months, so "bashing through" is certainly not what has occurred. Time for the play of public opinion has been substantial. My hon. Friend the Member for
Aldridge-Brownhills began the process with his private Member's Bill. There has been at least a year--indeed, more than a year--for the processes that my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) describes to have their effect.
Mr. Jonathan Sayeed (Bristol, East) rose --
Mr. Rooker rose --
Mr. Hurd : I shall give way to the hon. Member for Birmingham, Perry Barr (Mr. Rooker) because he has been here throughout the debate.
Mr. Rooker : The real test of public opinion--this is where the Home Secretary will come to rue the day that he rushed the Bill through--was not the White Paper or the Bill. It will be the first trial, when the whole damned thing will blow up in his and the Government's face.
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Mr. Hurd : I am content to wait for that day because one of the root elements of the Bill has been to transfer more power to the jury than was the case under previous proposals.
Mr. Hind rose --
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