Clause
2“Social
security information” and “war pensions
information” Question
proposed, That the clause stand part of the
Bill.
Mr.
Vaizey: The previous debate was very enjoyable. I am
intrigued by the hon. Member for Bath’s apparent obsession with
the erection of inanimate objects, but no doubt it took the debate
further.
I have very
little to say on clause 2, but it would be useful if the Minister used
the opportunity during our debate on the clause to address a matter
that was raised on Second Reading. As far as I am aware—I stand
to be corrected by the Minister—in bringing war pensions
information into play the Bill differs from the Television License
(Disclosure of Information) Act 2000. As the Minister is aware, one or
two hon. Members made the point on Second Reading that war pension
information is more sensitive than social security information in the
context of disclosure. In Northern Ireland, for example, those in
receipt of a pension via the Ministry of Defence may not want their
neighbours or contractors to know about it. Will the Minister let the
Committee know whether any additional security measures are being put
in place to ensure that such information is well protected? I gather
that the Secretary of State for Defence has input into the Bill as a
consultee. I also understand that the Bill is permissive and that the
BBC and related organisations will not have the right to see such
information, so in that sense strong protection is already in place,
but I wonder whether the Minister could
elaborate.
12
noon
Mr.
Foster: I will make two very quick points. First,
clause 2 states that the description of the information will be
prescribed by the Secretary of State and that that prescription will be
the subject of an order made by the Secretary of State. In other words,
the House will have the opportunity to debate the details of that
prescription and therefore the information that will
come from the data and to whom those data refer. I wonder whether the
Minister can explain to the Committee something that has been puzzling
me for a very long time. Why is the prescription—a relatively
small issue—to be the subject of an order when the description
and the detail surrounding the whole scheme and its delivery are not to
be the subject of such an
order? My second
question, which I mentioned earlier, is simple. Will the Minister
update the Committee on the number of people who will be covered by the
data? He will recall his predecessor, the hon. Member for Stalybridge
and Hyde (James Purnell), telling the Department Culture, Media and
Sport Committee on 10 January
that “what we are doing
is providing help to up to five million vulnerable
households.” I note that
the 7 June report of the DCMS Committee
states: “We
recognise some people will face practical issues in coping with
switchover. This is why we are setting up with the BBC a very
comprehensive programme of assistance to which 6.5million households
where one person is aged 75 or over, or where one person is severely
disabled, will be eligible.”
On 22 November, in a parliamentary answer
to me, the Minister himself
said: “We
estimate that around 7 million UK households will qualify for
assistance”.—[Official Report, 22 November 2006;
Vol. 453, c. 113W.] That is
slightly bizarre given the number of households in which there may be
more than one eligible person. In another parliamentary answer from the
Minister on 19 December—only a month later—the
number of households that qualified for assistance had risen
to 7.1 million. Given that the number is going up by about
200,000 a month, can the Minister give us his latest estimate of the
number of people who will have to be helped by a scheme that will be
fully funded by the BBC—totally unfairly—out of the
licence fee payers’
pockets?
Mr.
Woodward: The hon. Gentleman deserves a medal for
temptation. He puts before me numerous opportunities to go far and wide
and journey through many areas. However, I am sure, Mr.
Conway, that you quite rightly will want to remind us that clause 2 is
actually very clear. It defines the key expressions used in clause 1.
The temptation is great to discuss at this stage how many people will
be covered and what parts of the UK it will refer to, but I think that
you would swiftly rule me out of order were I to respond, so I shall
resist. Clause 2
defines the key expressions used in clause 1, and provides a power that
we envisage will be exercised by the Secretary of State for Culture,
Media and Sport to define precisely the types of social security and
war pensions information that can be supplied. As such, clause 2 plays
the important role of allowing for the scope of information to be
defined in detail, rather than leaving it to the discretion of the
Department for Work and Pensions and scheme operators.
The hon. Member for Wantage
raised an important issue that, as a former Under-Secretary of State
for Northern Ireland with responsibility for security, I am
particularly concerned about: whether a risk might be caused,
inadvertently or otherwise, to individuals in
Northern Ireland as a consequence of being identified by the scheme.
Indeed, concerns about war veterans other than those from Northern
Ireland were raised by staff in my Department as well as by hon.
Members on Second Reading. As a result, officials in my Department and
others investigated to ensure that there is no possibility that
sensitive data will be released to a switchover provider. The Veterans
Agency of the Ministry of Defence was particularly conscious of the
risks to people in Northern Ireland, but it is satisfied that a
switchover provider should not receive any information that would place
a Northern Ireland security veteran at risk by identifying individuals
as ex-service personnel. Another
point raised by the hon. Member for Bath relates to the nature of the
legislation. The details of the secondary legislation mean that the
type of information that can be supplied can be widened or narrowed
depending on operational requirements, without the need for further
primary legislation. However, the type of information cannot be changed
at will—it must be the subject of an order, which will be
subject to the negative resolution form of parliamentary scrutiny and
control. There is no intention to include sensitive personal
information in such orders. I hope that that has answered the hon.
Gentleman’s questions.
Mr.
Foster: The Minister rightly says that the advantage of an
order is that the details of the data that are needed can be changed
from time to time, as circumstances change, without the need for
primary legislation. I understand that. However, he has not answered my
question. Why is it so important to have an order and to have the House
make a decision on any changes that may take place when the Government
do not think it necessary to have an order giving the House the
opportunity to have a say on the details of the scheme to which the
data relate? I do not understand why one matter should be subject to
the House’s approval, and the other
not.
Mr.
Woodward: What I have set out relates specifically to the
Bill, which is not about the whole scheme, but about the disclosure of
information. In so far as I can do so and remain in order,
Mr. Conway, I believe that I have answered the question
raised by the hon. Gentleman about why the capacity to disclose
information is dealt with in the Bill.
Question put and agreed
to. Clause 2
ordered to stand part of the
Bill.
Clause
3Offences
Mr.
Vaizey: I beg to move amendment No. 6, in
clause 3, page 2, line 26, after
‘disclose’, insert ‘, knowingly or
recklessly,’.
The
Chairman: With this it will be convenient to discuss
amendment No. 4, in clause 3, page 2, line 41, at end
insert— ‘(3A) It is an
offence under this section for a relevant person to cause a person as
defined under subsection (2) of this section to disclose without lawful
authority information supplied to a relevant person under section
1.’.
Mr.
Vaizey: I know that you are a highly cultured individual
and film buff, Mr. Conway, so you may have come across the
film, “Being John Malkovich”. As the Committee
progresses, I am given to wonder whether the Minister has in his back
pocket a script for “Being Derek Conway”, as he seems so
able to anticipate your rulings before they are made. I hope that the
Minister does not anticipate a ruling that anything I say in debating
amendment No. 6 is somehow out of order.
Although the amendment is
probing, it incredibly important and I intend to return to it on Report
if I am not satisfied with the Minister’s
response.
Mr.
Woodward: I simply want to put on record that my
anticipation of what you might say about being in order, Mr.
Conway, comes merely—I say this with great humility—from
a position of deference and respect to the office you hold as Chairman
of the Committee. I have sought to anticipate you because I do not wish
to preoccupy you or allow you to tell us
off.
The
Chairman: I am very grateful for the hon.
Gentleman’s concern. Let us try to
proceed.
Mr.
Vaizey: I was about to debate levels of humility. I yield
to no one in my humility before you, Mr. Conway.
Our debate on clause 3 is about
the burden of proof. The Committee contains an extremely distinguished
criminal lawyer, my hon. Friend the Member for Rugby and Kenilworth,
and with the greatest respect to him, somebody of perhaps even more
distinction, the hon. Member for Tooting, who is a former director of
Liberty. The Committee will be astonished if he does not have something
to say about the clause, which contains a reversal of the traditional
burden of proof. We are considering a butterfly broken on a wheel. The
clause uses a sledgehammer to crack a nut. This innocuous Bill of six
clauses contains an affront to years of traditional English, or
British,
liberties. Let me set
the scene. Paragraph 28 of the explanatory notes makes it explicit that
the burden of proof is reversed in the Bill. It
states: “the person
charged has a defence if he can prove that, even though in fact
the disclosure was made without lawful authority or was a disclosure of
information that had not previously been made public with such
authority, he believed that one or other of those conditions was
met, and had no reason to believe that they were not met ... In
principle, this reverses the burden of proof in this respect. In
criminal matters it is usually up to the prosecution to prove the case
beyond all reasonable doubt, but here the defendant must prove the
matters that go to make up the defence. The standard of proof is the
balance of probabilities. Such ‘reverse burden’
provisions raise issues under article 6 of the European Convention on
Human Rights that are discussed
below.” “Below”
means in paragraphs 38 and 39 of the explanatory notes. Paragraph 39
states: “It is
considered that clause 3(5) complies with article
6(2)” of the European
convention on human rights. It
continues: “The
European Court of Human Rights has held that article 6(2) does not
place an absolute prohibition on such ‘reverse burden’
provisions, but they must be ‘reasonable’. Clause 3(5) is
considered to be reasonable: the offence is an important one
because it is one of the mechanisms that safeguards personal information
disclosed for the purposes of giving help with
switchover”. The
Chairman: Order. I am sorry to interrupt the hon.
Gentleman when he is in full flow, but he is straying into the terms of
amendment No. 2, to which he has added his name and to which I am
almost certain we will come. He might find himself slightly ahead of
the game at the moment.
Mr.
Vaizey: Your ruling could bring me to a crashing or
grinding halt, but, as I said in my opening remarks, I am to be guided
by you, Mr. Conway. I am a naive adolescent as far as my
experience on the Front Bench goes. If you tell me that I am out of
order in debating what I think my amendment does, which is reverse the
burden of proof, I shall happily be corrected by you and I shall
withdraw the amendment and debate the matter when the hon. Member for
Bath moves amendment No. 2. I seek your guidance, Mr.
Conway.
The
Chairman: The hon. Gentleman’s amendment No. 6 has
been selected, therefore it is perfectly in order to discuss it. All he
has to do is to keep his remarks on his in-order amendment to the
“knowingly or recklessly” bit. If he were to move on to
the bit that refers to amendment No. 2, he would not be in order. So,
knowingly and recklessly, Mr. Vaizey will continue.
Mr.
Vaizey: Knowingly and recklessly, like my amendment says,
I shall. This is a good example of the fact that one should never
venture into a Committee unless the Clerk has drafted one’s
amendment.
Jeremy
Wright (Rugby and Kenilworth) (Con): At the risk of giving
my hon. Friend legal advice, which I should not do because he is also a
lawyer, although he was too modest to tell the Committee
that—
Mr.
Vaizey: You can see why I gave it
up.
Jeremy
Wright: Unfortunately for my hon. Friend, so did I, but I
shall try to help him and to assist in keeping the debate in order. His
amendment attempts to avoid the potential problem of the reversal of
the burden of proof, which is raised later, and it does so effectively.
Given what the Minister has already said in this debate, I suspect that
he wants to ensure that help is offered to those in a vulnerable
position and that everything possible is done to ensure that
information is transferred to those individuals to assist them with the
switchover. I am sure he would agree that it would be regrettable if
anything fixed in the minds of those participating in that process were
to deter them from offering the maximum
assistance.
12.15
pm My concern
about the burden of proof issue is simply that we would not wish to be
in a position where those who are helping vulnerable people with the
switchover process felt constrained in what they did by fear that they
may be prosecuted and subject to a criminal offence. That is not what
the Minister intends—
Mr.
Foster: Will the hon. Gentleman give
way?
The
Chairman: Order. The hon. Member for Rugby and Kenilworth
is coming to the end of his intervention on to the hon. Member for
Wantage.
Mr.
Vaizey: I am grateful for my hon. Friend’s
intervention. I echo his
remarks.
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