Paul
Holmes: Will the Minister give
way?
Mr.
Woodward: In a moment.
Secondly, a
new offence is unnecessary, because we can and must rely on the BBC and
the scheme administrators to draw up carefully legal documentation that
makes the contractors’ position clear to them. We must also rely
on the scheme administrators to reach an agreement with the DWP about
the security arrangements for safeguarding information. As I have said,
it is essential that the security of personal information is
safeguarded. However, that depends on effective data management
practices by everyone involved, backed up by a proportionate but
enforceable criminal offence to deter unlawful disclosure.
I should also mention the
offences in section 55 of the Data Protection Act 1998 that relate to
unlawfully obtaining, disclosing and selling or offering personal
data.
Paul
Holmes: I apologise for being cruel to the Minister
earlier—I was a little premature, but I was thinking of the
reshuffles. The
Minister’s argument seems to be that, if in two aspects of
Government’s activity, such as TV licensing, the same loophole
exists in the legislation but he is not aware of its having been
abused, it is acceptable to leave that loophole open in a third piece
of legislation. That seems a strange
argument.
Mr.
Woodward: It would be a strange argument if we felt that a
loophole had been opened. We do not believe that one has been opened,
because we have covered the very issues that the hon. Gentleman has
probed in his amendment. Therefore, before we put any new offences on
to the statute book, we need to examine how far existing criminal law
goes. In consultation
with Government lawyers, I am assured that, in many instances, the new
offence that appears in the Member for Chesterfield’s amendment
is unnecessary. If one person gives another misleading information with
the intention of making that other person disclose information without
lawful authority, it is quite possible that the first person might
already be vulnerable to prosecution. Depending on the exact
circumstances, he might be liable to be charged with being an accessory
or with inciting another person to commit the offence. These two important amendments
have been taken together. If we were not able to satisfy the underlying
concerns of the amendments put forward by hon. Members, we would want
to bring forward amendments ourselves. However, on the basis of the
advice that I have been given in my discussions with Government
officials and lawyers, we can reassure hon. Members that their concerns
have been met.
Mr.
Vaizey: I return to my original arguments, and perhaps I
will have a chance to put them more articulately now that the Minister
has replied. The purpose of inserting the words “knowingly or
recklessly” would be to make it clear that the prosecution
should prove the elements of the offence carried out by a person
involved in disclosing information illegally. I have heard the
Minister’s arguments and understand that he will resist
amendment No. 4, so I will not press it to a vote.
I wonder whether the Minister
can confirm that it is open to the courts to override a reverse burden
of proof. The case of Sheldrake v. the DPP makes it clear that
the courts will look at the circumstances to consider whether such a
burden is inappropriate. I am interested to learn that the Minister has
taken a great deal of legal advice. Would he waive principle and allow
the Opposition to see the legal advice that tells him that it is
appropriate to include a reverse burden of proof in such a
Bill?
Mr.
Woodward: If it is helpful to the Committee, I am happy to
write to the hon. Gentleman setting out the arguments that we believe
underpin our considered view that we should resist these amendments. I
hope that that will satisfy him. In so far as I can, I will give him as
much detail as
possible.
Mr.
Vaizey: I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mr.
Foster: I beg to move amendment No. 2, in
clause 3, page 3, line 6, leave
out from ‘section’ to ‘he’ in line 11 and
insert ‘if at the time
of the alleged offence he
believed— ‘(a) that he was
making the disclosure in question with lawful authority, or (b) that
the information in question had previously been disclosed to the public
with lawful
authority, and’. I
think that we have now come—for the first time—correctly
to the issue of the reverse burden of proof. However, we have had an
interesting debate about it already, so I do not intend to detain the
Committee for
long. Reference has
already been made to article 6(2) of the European convention on human
rights. It is worth reminding ourselves that it states:
“Everyone charged with a
criminal offence shall be presumed innocent until proved guilty
according to the
law”— everyone.
The European Court of Human Rights has held that article 6.2 does not
place an absolute prohibition on such reverse burden provisions, but
that they must be reasonable. I confess that I am bitterly disappointed
that that was the court’s judgment, but we must nonetheless
accept that that was its decision. That decision has sadly enabled the
Government to introduce a number of pieces of legislation that reverse
the burden of proof. Examples of that include the Protection from
Harassment Act 1997, the Anti-social Behaviour Act 2003 and, bizarrely,
the Patents Act 2004. There was an attempt to do the same
through what was then the London Olympics Bill, although we were
fortunately able to persuade the Government, after lengthy debates, to
change their mind, and that did not go ahead.
However, we are being asked to
accept that the offence under clause 3 is a reasonable case for using
the reverse burden of proof. That is the test that would have to be
made to the European Court if there were a challenge. The explanatory
notes say: “It
is considered that clause 3(5) complies with article
6(2).” They
continue: “Clause
3(5) is considered to be
reasonable”, yet the
reason given is bizarre. It is that
“the offence is an important
one”. I should have
thought that the vast majority of offences were important ones. The
hon. Member for Wantage referred earlier in his excellent contribution
to—what was the
legislation?
Mr.
Vaizey: The official secrets
Acts.
Mr.
Foster: I am grateful to the hon. Gentleman. He asked
whether offences in respect of that legislation were serious enough to
carry the reverse burden of proof, but the Minister was unable to
respond. I consider murder to be an important offence, but we do not
use the reverse burden of proof argument for that. Indeed, the
comparison is between murder, where we do not have the reverse burden
of proof, and the offence proposed in the Bill, for which the maximum
penalty is two years. That offence hardly seems to be sufficiently
important to justify the reversal of the burden of proof. If the
amendment were accepted, it would remove the reverse burden of proof
and achieve what the hon. Gentleman wishes to achieve. However, rather
than outline why I think that is so important, I refer the Committee to
the remarks that he made a few moments
ago.
Mr.
Woodward: It is essential that the security of personal
information is safeguarded. I am sure that all hon. Members are agreed
on that. Achieving that depends on good data management practices by
all involved, backed up by a proportionate but enforceable criminal
offence, to deter unlawful disclosure. Again, we believe that we have
struck the right balance in that.
Let us consider the
following examples of unlawful disclosure. An employee discloses the
names and
addresses of people eligible for help, which are then used by a conman
to trick his way into somebody else’s house. Other examples
include, for instance, a corrupt employee selling information that can
be used for marketing to a commercial company, an employee carelessly
discarding hard-copy lists of eligible persons or e-mailing them to the
wrong e-mail address and an employee giving a local newspaper details
of people who have received help under the scheme, so that the
newspaper can write a story about whether the scheme has failed. I hope
that hon. Members would agree that the employee in first two examples
would deserve to face a criminal court. However, there might be room
for more discussion about the second two examples, which would, of
course, depend on the
facts. One
function of a court is to investigate what exactly has happened and
judge whether a person deserves to be punished. We believe that the
Bill allows for the right degree of flexibility on a case-by-case
basis. It might therefore be helpful if I explain, for the benefit of
hon. Members who have tabled amendments in the group, how the clause is
intended to
work. 12.45
pm The prosecution
would have to prove that the defendant had disclosed social security
information supplied under clause 1 and had done so without having
lawful authority, as defined in subsection (6). It is not correct to
say, as some hon. Members have, that the burden of proof has been
reversed. The prosecution must prove beyond all reasonable doubt that
the main elements of the offence have been committed; only then do the
provisions of subsection (5) come into play. Rather than reversing the
burden of proof, subsection (5) extends the defences open to a
defendant by allowing him or her to bring many mitigating circumstances
to the court’s attention: for example, believing that it was
okay as part of his or her job to help the press to report on the
scheme; thinking that it was already public knowledge that specific
people had helped with the scheme or that he or she had permission from
the individuals whose details he or she had released to do so; or being
told by a manager that he or she could release the
information. Of course
we must be careful not to make it too easy for defendants to escape
conviction by being able to give spurious excuses that the prosecution
would find hard to disprove. It could be very difficult for the
prosecution to prove not only that an offence had occurred, but that
the perpetrator had definitely known that his or her actions were
unlawful. If potential wrongdoers realised that, unauthorised
disclosures would become more likely. Equally, it would not be right to
convict somebody who has an honest and reasonable, but mistaken, belief
that the circumstances made their actions legitimate. Therefore, we
believe that it is better, in making sure that the offence is an
effective deterrent and fairer to people whose details have been
disclosed, to put the onus on the defendant to prove that he or she
really did believe that what he or she did was legitimate. The
defendant can explain to the court what they thought, what they knew
and what they had been told by their managers. They need only prove
that what they are saying is true on the balance of
probabilities—that is, that it is more likely than not to be
true—which is a lower hurdle than the prosecution faces in
proving the main elements of the offence. Such a provision is not
uncommon and is consistent with the approach in the Television Licences
(Disclosure of Information) Act 2000 and in legislation that protects
social security information in the hands of the Department for Works
and Pensions, such as section 123 of the Social Security Administration
Act 1992. The hon.
Member for Bath mentioned article 6 of the European convention on human
rights. We are confident that the provision complies with the
convention. Article 6(2) requires that every person charged with a
criminal offence be presumed innocent until proved guilty. However, the
court in Strasbourg and the courts in the UK have ruled that there is
no absolute prohibition on provisions that impose a burden of proof on
defendants. States must confine any legal reverse-burden
provision “within
reasonable limits which take into account the importance of what is at
stake and maintain the rights of the
defence”. Each provision
must be judged on its own merits and we believe that the provision in
the Bill is reasonable. The offence has the important purpose of
deterring the unlawful disclosure of personal information about
individuals. The penalty on conviction is significant, as befits the
need to protect personal information, but is not exceptionally severe.
Acquitting the defendant if there are extenuating circumstances is
right, but placing on him or her the onus of proving what he or she
believed at the time of the disclosure of information is also right,
not least because that defence relates to matters mainly within his or
her own knowledge. The prosecution would be placed at a significant
disadvantage if it was for them to prove that the defendant did not
believe that he was acting with lawful authority. That would weaken the
deterrent effect, which is an important part of the
offence. In the light
of those explanations, we ask for the amendment to be
withdrawn.
Mr.
Foster: The Minister has given us a lot of food for
thought. I am sure that we want to digest the words later. I therefore
beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
3 ordered to stand part of the
Bill. Clause 4
ordered to stand part of the
Bill.
Clause
5Interpretation
Mr.
Vaizey: I beg to move amendment No. 7, in
clause 5, page 4, line 9, after
‘switchover’, insert
‘, which must treat digital retail
television services and digital television broadcasting platforms
equally in respect of all aspects mentioned, including pricing, brand
names, availability and packages
and’. I very
much hope that the amendment is appropriately drafted for the remarks
that I intend to make in the remaining 10 minutes of the sitting. The
amendment is designed to make it absolutely clear
that
the BBC, or the scheme operator involved in targeted help for
switchover, ensures that the advice that it gives to those in receipt
of help is platform neutral, as the jargon of digital television has
it. As hon. Members will know, one is able to access digital television
through a variety of mediums. There is the set-top box, with the brand
name freeview; a satellite receiver, mainly through Sky, which I have
mentioned before, which also operates a subsidised scheme called
freesat; and cable, the dominant operator effectively being
NTL-Telewest. There
are at present a number of difficulties with that wealth of choice
because freeview, which is the scheme that the BBC promotes, is, as one
might expect, the most widely used scheme. It involves no subscription,
merely the purchase of a set-top box. Also, pertinently, it has behind
it the massive marketing power of the BBC which regularly promotes
digital terrestrial television by the brand name freeview, whereas it
obviously does not refer to the opportunities to receive a programme
through Sky or NTL-Telewest. That obviously gives freeview a massive
marketing opportunity.
As the Government have made
clear—from the point of view of the taxpayer, this is a sensible
point—they intend to make available in the targeted switchover
scheme the cheapest possible form of digital television. That will be
through a digital set-top
box.
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