Mr.
Foster: Does not the hon. Gentleman believe that the hon.
Member for Rugby and Kenilworth has helped him enormously? To summarise
the point that the hon. Member for Rugby and Kenilworth
made—perhaps the hon. Gentleman can help to ensure that I have
got it right—if the reverse burden of proof is to go ahead, as
the Government appear to wish, it is important that the Committee agree
to the amendment, as it would remove the possibility of people
unknowingly and un-recklessly, by error, handing over information. It
would be unfair if they were caught by the reverse burden of
proof.
Mr.
Vaizey: I could not agree more with the hon. Gentleman.
However, I am now entirely in your hands, Mr. Conway. I want
to reverse the burden of proof, so I wish to address that point and
then to ask leave to withdraw my amendment and hand the Floor to the
hon. Member for Bath, if it is more appropriate to debate his amendment
to discuss the reverse burden of
proof.
The
Chairman: Order. I am now confused about the hon.
Gentleman’s wishes. He cannot withdraw that which has not been
moved. If he does not want to press his amendment to a vote, I will not
put the question. He is entitled to hear the Minister’s reply,
if he wishes. He can withdraw the amendment when the Minister has
finished.
Mr.
Vaizey: Let me continue with my carefully worded remarks
on the reverse burden of proof, because they are enormously important.
I am tempted to yield to the hon. Member for
Tooting. Mr.
Sadiq Khan (Tooting) (Lab) indicated
dissent.
Mr.
Vaizey: In recalling my legal expertise, I remind the
Committee of an almost timeless principle, dating back to 1935, that it
is up to the prosecution to establish guilt. That is known as the
Woolmington principle, from the case of Woolmington v. the
Director of Public Prosecutions. Officials were aware of that when
drafting the Bill, and I see them nodding their heads. The then Lord
Chancellor, Lord Sankey, described the presumption of innocence as the
“golden thread” running through the English legal system.
It is worth quoting his remarks in
full: “while the
prosecution must prove the guilt of the prisoner, there is no such
burden laid on the prisoner to prove his innocence and it is sufficient
for him to raise a doubt as to his guilt; he is not bound to satisfy
the jury of his innocence... Throughout the web of the English
criminal law one golden thread is always to be seen, that is the duty
of the prosecution to prove the prisoner’s guilt... No
matter what the charge or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the common
law of England and no attempt to whittle it down can be
entertained”.
There are a number of exceptions to the
golden rule: the defence of insanity, which is down to the defendant to
prove under the M’Naghten rule, dating back to 1843; statutory
exceptions; and implied statutory exceptions. Any reverse burden of
proof, as appears in clause 3, is open to challenge, as the explanatory
notes make clear, under article 6(2) of the European convention on
human rights. The explanatory notes also make it clear that a reverse
burden provision will not inevitably give rise to a finding of
incompatibility. It is now well settled that, in deciding the issue,
the courts should focus on the circumstances of the case and strike a
reasonable balance between the general interest of the community and
the protection of the fundamental rights of the individual. That is
made clear in a number of cases, culminating in the case of Sheldrake,
decided in 2005. The
official Opposition submit that the reverse burden of proof in clause 3
is disproportionate. It is philosophically wrong for the defendant to
have to prove that he disclosed information without knowing that he was
doing so, or to prove that he was not reckless in doing so. It is also
unfair to the defendant in practical terms. When a defendant is brought
to court, the prosecution always has most of the cards stacked in its
favour, which is why in law the golden thread requires that the
prosecution prove the case. It is also hard to prove a
negative—for the defendant to prove that he is not guilty of the
offence because he did not do it.
There are several other reasons
why the provision is unfair. It is also important to make the point
that, although the explanatory memorandum says that it is proportionate
and right to include the reverse burden of proof in the clause, the
courts must ultimately make the decision.
Mr.
Foster: Is the hon. Gentleman making the point that,
because of all the explanations that he has given about why the reverse
burden of proof is wrong if the Government persist, the
amendment’s inclusion would be so crucial that the matter could
not be discussed?
Mr.
Vaizey: I am making that
point.
Paul
Holmes: I am sure the Committee will be relieved to hear
that I shall avoid the quagmire of amendment No. 6 and address my
comments to amendment No.
4. Amendment No. 4 was
tabled to seek clarification from the Secretary of State about an issue
that I first raised on Second Reading. The contractors who deliver the
scheme will be provided with sensitive information about vulnerable
people with disabilities, such as partial sight, and about elderly
people. Those people could be exploited if the information were widely
available. It is important to restrict, limit and carefully guard
access to that information.
Clause 3 implies that, although
it is an offence for the contractor to make available the information
for incorrect purposes, it would not be an offence if a relevant
person, such as a civil servant, a member of the BBC, or even a
Minister from the relevant Department, made the information available
to a contractor and misled them into believing that they
could pass it to other people, who might then misuse it. The clause
implies that it would be legal to disclose it in that way. My point is simple: would the
contractor be innocent if a relevant person in the BBC or in the
Department had passed information to them and misled them into
believing that they could legitimately spread the information further
afield, where it could be misused? That is it—short and to the
point. Will the Secretary of State clarify whether it is an offence?
The clause seems to read that it is not.
The
Chairman: I call Mr. Justice
Woodward.
Mr.
Woodward: I have been the subject of many elevations this
morning: “Secretary of State” was incredibly generous of
the hon. Member for Chesterfield, and now “Justice”. It
is difficult to recover one’s lowly position as a junior
Minister with true equilibrium, but I shall do my best.
The hon. Member for Wantage
took us on an interesting journey through his legal and philosophical
background. At the end of his exegesis, it was hard to understand why
he stopped practising as a lawyer, or indeed why he did not turn to a
career in philosophical reasoning, as he endeavoured to deal with the
question of negatives. Even if the way in which the points were raised
left a little to be desired, they are none the less important. The
Government should answer appropriately what the hon. Gentleman and the
hon. Member for Chesterfield have rightly opened up, and we shall take
the opportunity to do so now.
It is essential that the
security of personal information is safeguarded. On that, I am sure
that all hon. Members agree. The clause is about detailing offences
committed if social security information is unlawfully disclosed, and
the amendments attempt to improve the position by providing those
protections and by ensuring that information is carefully handled. The
question is whether they do that. I shall argue that they do not. We
believe that the Bill strikes the right balance. That relates also to
precedent, which I shall come on
to. Amendment No. 6
raises the question of whether we were right to make the offence in
clause 3 one of strict liability—in other words, an offence
requiring the prosecution, in order to gain a conviction, to prove that
the defendant made the alleged disclosure without any particular state
of mind. Under the amendment, a person would be not guilty of
disclosing information without lawful authority unless he or she made
the disclosure “knowingly or recklessly”. I think that
that is what the hon. Member for Wantage was
saying. If the hon.
Gentleman’s amendment were agreed to, no offence would be
committed unless it could be proved that the offender either knew they
were disclosing information supplied under clause 1 without lawful
authority or was reckless in doing so—in other words, they took
an unjustified risk. The purpose of the clause is to protect citizens
and prevent abuse, but we believe that the amendment would make it more
difficult to obtain justice if there was abuse. It would lessen the
deterrent effect of the offence.
I remind hon. Members that the
objective of the offence is to help to ensure the security and
confidentiality of the information made available under the Bill and
the scheme. In that sense, I have every sympathy with the hon.
Gentleman. I just do not think, for reasons that I shall explain, that
the amendment would achieve those
ends.
Mr.
Khan: May I just clarify that I was chair, not director of
Liberty? Is not article 8 of the convention on respect for privacy
another problem here? If we were to pass the amendment, we might breach
that right of individuals not to have information disclosed
willy-nilly.
Mr.
Woodward: I agree with my hon. Friend, but I shall add
other reasons. I do
not think that the people who handle the information should take risks
with it. Let us imagine that an employee uses a laptop in a public
place and does not realise that personal information can be seen over
their shoulder or carelessly sends information to the wrong email
address, or puts the hard copy of information in an ordinary dustbin
without considering that an unauthorised person might retrieve it. It
would be up to the courts to decide, but it seems to me that none of
those people would necessarily have acted “knowingly or
recklessly” and so would not necessarily be convicted. In my
judgment, they would have been careless, which the Bill should deter.
When carelessness occurs, punishment should be
sought. Amendment No.
4 applies only to the first offence in clause 3, not to the second:
that in subsection (2), which applies to employees, contractors and
subcontractors. It would be odd—to say the least—to have
different standards of proof for the release of information on the
basis of the organisation that a person works for. Clearly, that is not
what the hon. Member for Wantage
intended.
Mr.
Vaizey: To clarify, that is not what I intended. If it
were possible, I would move that amendment, but it is
not. The point that I
was trying to make was that it should be down to the prosecution to
prove the elements of the offence—that the defendant knew that
they were disclosing sensitive information, or did so recklessly. The
Minister is saying that any carelessness will make a defendant guilty.
That is the point that I so inarticulately put when I moved the
amendment. Someone could come up with numerous examples of
carelessness, such as leaving a laptop in a car while popping in to a
shop and having it stolen. It strikes me that the provision places an
enormous burden on employees and others dealing with such sensitive
information. It is wholly disproportionate to the information that
could emerge. Again, the simple point is that it should be up to the
prosecution to prove that an offence has been committed, and not up to
the defendant to try to find a way
out. 12.30
pm
Mr.
Woodward: I am sorry to disappoint the hon. Gentleman, but
it is incumbent on those involved to take a great deal of care in the
handling of that information.
Mr.
Khan: Will the Minister give
way?
Mr.
Woodward: I shall in a moment.
The following point refers in
part to a discussion on an earlier amendment about the information held
on a laptop. If someone has sensitive and comprehensive information on
their laptop, the Bill is right to put a
duty—
Mr.
Woodward: I shall give way to my hon. Friend first, if the
hon. Gentleman can contain himself.
Mr.
Vaizey: I have a lot of ground to make
up.
Mr.
Woodward: “Recover” is the word that the
hon. Gentleman is searching for.
It is important to place the
duty of care on that individual.
Mr.
Khan: I draw my hon. Friend’s attention to the
parallels between the Bill and Parliament’s view on health and
safety issues over the past few decades. The legislation includes
strict liability offences because Parliament has deemed it important
for employers to provide a safe place to work for their employees. I am
sure that the party to which the hon. Member for Wantage belongs raised
the same issues back then.
Mr.
Woodward: I am grateful to my hon.
Friend.
Mr.
Vaizey: I am sure that, if a Conservative Government
introduced that legislation, those issues were raised by the party of
which the former chair of Liberty is a member. Will the Minister
confirm that there is no reverse burden of proof under the official
secrets Acts? It is up to the prosecution to prove the elements of the
offence. It is extremely odd that, if a Royal Navy commander were to
leave the details of the Trident nuclear deterrent on the back seat of
his car and they were stolen, the prosecution would have to prove that
he was reckless; whereas if an employee of an aerial erection company
left two addresses on the back seat of his car and they were stolen, he
would be guilty of an offence.
Mr.
Woodward: Instead of risking delaying the Committee with a
discussion about the official secrets Acts, I shall write to the hon.
Gentleman.
Mr.
Foster: Will the Minister give
way?
Mr.
Woodward: In a moment.
We believe that we are striking
the right balance. A person who is clearly responsible for personal
information being disclosed without authority could be found guilty of
an offence, unless they can prove that the circumstances set out in
subsection (5) apply—in short, that they made an honest but
reasonable mistake. That is fair to the people whose daily job involves
the handling of such information; but equally and crucially, it
safeguards the personal information
that they handle and is therefore fair to the person to whom the
information relates. I do not know whether that answers or anticipates
the question from the hon. Member for Bath, but I suspect that it might
do both. Amendment
No. 4 also raises a number of key issues, but we are not persuaded that
another criminal offence is needed to deal with them. First, and
importantly for the hon. Members for Chesterfield and for Bath, the
provisions before us are similar to those in the Television Licences
(Disclosure of Information) Act 2000. No offence, such as that which
the hon. Gentlemen would like included in the Bill, exists in that
legislation. In so far as we are aware, the problems about which they
are concerned have not arisen. The same is true about the social
security legislation, which is the basis of clause 3. I am therefore
somewhat sceptical about the need for such an
offence.
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