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Mr. John Greenway (Ryedale): 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.
Mr. John Hayes (South Holland and The Deepings): 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.
Mr. Greenway: 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.
Janet Anderson: 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.
1.30 am
Mr. Greenway: I am greatly reassured by the intention, but I am 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.
Mr. Hogg: 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.
Mr. Hayes: 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.
Mr. Hogg: 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.
Janet Anderson: 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.
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