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(1) Subject to subsections (2) and (3) below, the Commission may disclose to any relevant public authority any information received by the Commission in connection with any of the Commission’s functions—
(a) if the disclosure is made for the purpose of enabling or assisting the relevant public authority to discharge any of its functions, or
(b) if the information so disclosed is otherwise relevant to the discharge of any of the functions of the relevant public authority.
(2) In the case of information disclosed to the Commission under section 10(1) above, the Commission’s power to disclose the information under subsection (1) above is exercisable subject to any express restriction subject to which the information was disclosed to the Commission.
(3) Subsection (2) above does not apply in relation to Revenue and Customs information disclosed to the Commission under section 10(1) above; but any such information may not be further disclosed (whether under subsection (1) above or otherwise) except with the consent of the Commissioners for Her Majesty’s Revenue and Customs.
(4) Any responsible person who discloses information in contravention of subsection (3) above is guilty of an offence and liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both.
(5) It is a defence for a responsible person charged with an offence under subsection (4) above of disclosing information to prove that he reasonably believed—
(a) that the disclosure was lawful, or
(b) that the information had already and lawfully been made available to the public.
(6) In the application of this section to Scotland or Northern Ireland, the reference to 12 months in subsection (4) is to be read as a reference to 6 months.
(7) In this section “responsible person” means a person who is or was—
(a) a member of the Commission,
(b) a member of the staff of the Commission,
(c) a person acting on behalf of the Commission or a member of the staff of the Commission, or
(d) a member of a committee established by the Commission.
10B Disclosure to and by principal regulators of exempt charities
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(1) Sections 10 and 10A above apply with the modifications in subsections (2) to (4) below in relation to the disclosure of information to or by the principal regulator of an exempt charity.
(2) References in those sections to the Commission or to any of its functions are to be read as references to the principal regulator of an exempt charity or to any of the functions of that body or person as principal regulator in relation to the charity.
(3) Section 10 above has effect as if for subsections (2) and (3) there were substituted—
“(2) But Revenue and Customs information may be disclosed under subsection (1) only if it relates to-
(a) the exempt charity in relation to which the principal regulator has functions as such, or
(b) a subsidiary undertaking of the exempt charity.
(3) In subsection (2)(b) above “subsidiary undertaking of the exempt charity” means an undertaking (as defined by section 259(1) of the Companies Act 1985) in relation to which-
(a) the exempt charity is (or is to be treated as) a parent undertaking in accordance with the provisions of section 258 of, and Schedule 10A to, the Companies Act 1985, or
(b) the exempt charity and one or more other charities would, if they were a single charity, be (or be treated as) a parent undertaking in accordance with those provisions.”
(4) Section 10A above has effect as if for the definition of “responsible person” in subsection (7) there were substituted a definition specified by regulations under section 13(4)(b) of the Charities Act 2006 (regulations prescribing principal regulators).
(5) Regulations under section 13(4)(b) of that Act may also make such amendments or other modifications of any enactment as the Secretary of State considers appropriate for securing that any disclosure provisions that would otherwise apply in relation to the principal regulator of an exempt charity do not apply in relation to that body or person in its or his capacity as principal regulator.
(6) In subsection (5) above “disclosure provisions” means provisions having effect for authorising, or otherwise in connection with, the disclosure of information by or to the principal regulator concerned.
10C Disclosure of information: supplementary
(1) In sections 10 and 10A above “relevant public authority” means—
(a) any government department (including a Northern Ireland department),
(d) any other body or person discharging functions of a public nature (including a body or person discharging regulatory functions in relation to any description of activities).
(2) In section 10A above “relevant public authority” also includes any body or person within subsection (1)(d) above in a country or territory outside the United Kingdom.
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(3) In sections 10 to 10B above and this section—
“enactment” has the same meaning as in the Charities Act 2006;
“Revenue and Customs information” means information held as mentioned in section 18(1) of the Commissioners for Revenue and Customs Act 2005.
(4) Nothing in sections 10 and 10A above (or in those sections as applied by section 10B(1) to (4) above) authorises the making of a disclosure which—
(a) contravenes the Data Protection Act 1998, or
(b) is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000.””
Lord Bassam of Brighton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 130.
The amendment provides for an updated information-sharing regime between public authorities and the Charity Commission, building on that already contained in Section 10 of the Charities Act 1993. It includes specific provisions relating to the exchange of Commissioners for Revenue and Customs information, tightening up that particular regime.
Under the current arrangements in Section 10 of the Charities Act 1993, certain Revenue and Customs information may be disclosed to the Charity Commission. The commission may onwardly disclose that information unless the Commissioners for Revenue and Customs have expressly restricted it.
The Commissioners for Revenue and Customs have a modernised information-sharing provision in Section 18 of the Commissioners for Revenue and Customs Act 2005 and are now seeking to modernise their information gateways with other bodies. For example, they have recently established a new information gateway similar to that set out in this amendment with the Office of the Scottish Charity Regulator. Their premise now is that information gateways relating to the exchange of Revenue and Customs information should contain an automatic restriction against onward disclosure of Revenue and Customs information. HMRC must consent to any onward disclosure of that information. That is one of the changes that this amendment will make to the gateway for Revenue and Customs information with the Charity Commission.
The Commissioners for Revenue and Customs Act 2005 also provides for a criminal offence if Revenue and Customs information is unlawfully disclosed by Revenue and Customs personnel. This amendment would extend that offence to unlawful disclosure by Charity Commission personnel.
New Section 10B inserted into the 1993 Act by this amendment extends the Charity Commission’s information-sharing capacity, including that for sharing Revenue and Customs information, to principal regulators of exempt charities in carrying out the role of principal regulator. The provisions in relation to Revenue and Customs information apply in the same way as they do with the Charity Commission; namely, that there would be an automatic restriction against onward disclosure of Revenue and Customs information disclosed
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I should emphasise that the commission, as a government department, will continue to be subject to the provisions of the Data Protection Act 1998, which offers important protections to the public about the handling of personal information.
Moved, That the House do agree with the Commons in their Amendment No. 130.—(Lord Bassam of Brighton.)
Lord Hodgson of Astley Abbotts: My Lords, I know that this is the last amendment for our consideration, but I would like to take the opportunity to raise concerns about the growing number of information gateways between various organisations and public authorities. Amendment No. 130 takes this a stage further. Most of what the Minister said referred to HMRC, but of course it has much wider applications than that.
As I read Amendment No. 130, new Section 10A(1)(a) permits the disclosure of information,
- “if the disclosure is made for the purpose of enabling or assisting the relevant public authority to discharge any of its functions”.
So far maybe so good, but new Section 10A(1)(b) states that,
- “if the information so disclosed is otherwise relevant to the discharge of any of the functions of the relevant public authority”.
The words “otherwise relevant” could cover almost anything. The Government have a great fondness for proposals that could lead to what they describe as “joined-up government”. It is always sensible to encourage the right hand to know what the left hand is doing and I am sure that nobody would support the unwarranted withholding of information from relevant bodies. Indeed, the past situation, where concerns about confidentiality meant that no information was permitted to be divulged, even to the police, obviously needs amending. But people now argue that the pendulum has swung or is swinging too far in the other direction.
These concerns are not unfounded. Many of these new gateways deal with highly confidential or sensitive information. Safeguards must be included to ensure that this information is not misused or treated with less care and attention than it should. Too often disclosure of information is made at a low level by junior staff who have no idea of the importance of the data they are handling and handing over. And, of course, once disclosed, the information cannot be recaptured. Moreover, for the organisation which has been affected by this disclosure, to prove that the disclosure was improper can be very difficult. However useful gateways may be when everyone behaves as they should, we must still guard against the certainty that people will make mistakes, albeit inadvertent mistakes.
To many that may seem like narrow, or even irrelevant, quibbling; it is perhaps hard to imagine this amendment leading to disclosures of sensitive or confidential information. But these questions about gateways need to be raised every time a new gateway is developed or proposed.
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We read every day that people are increasingly concerned about the hidden intrusion of closed circuit television on their lives and the threat this may present to our individual freedom. Information gateways can be just as dangerous, with detailed information about people or organisations being passed over without their knowing anything about it, and always with the danger that the recipient may not be as careful with the information as he should be.
I understand that it will be possible in this case for the organisation sharing its information to classify sensitive data as such and to request that it is used only for certain purposes. This seems entirely sensible and probably should apply across the board to all other gateways. Perhaps the Minister could reassure me that I have assessed that correctly and that there will be some way to check that the recipient organisation is following these instructions.
Lord Shutt of Greetland: My Lords, the Minister prefaced his remarks by telling us that this provision was about modernisation. That puts one on one’s guard. Of the amendments that we have—certainly in terms of space; three pages and a bit—this is the most substantial.
I have three questions on the amendment. First, in new Section 10 under “Disclosure of information to Commission”, new subsection (2) refers to bodies falling under one or more of the following paragraphs,
- “charity ... an institution which is established for charitable, benevolent or philanthropic purposes ... an institution”—
and a “Scottish Charity Register”.
Why is paragraph (b) there? What does that bring in that is not covered by the word “charity”? Why do we need,
My second question relates to new Section 10A. The noble Lord, Lord Hodgson, referred to paragraphs (a) and (b). Having got paragraph (a), why do we need paragraph (b)?
My third question relates to new Section 10C. “Relevant public authority” is defined as,
- “any government department ... any local authority ... any constable, and ... any other body or person discharging functions of a public nature”.
How far does that spread? For example, does it include a contractor? It would be helpful if we were clear about what some of these things really mean.
Lord Bassam of Brighton: My Lords, I will try to be as helpful as I can on the points raised. Essentially both noble Lords were asking about the distinction between the provisions of new Section 10A(1)(a) and 10A(1)(b). The provisions are considered to have a similar effect to the existing provision in Section 10 of the 1993 Act. That is how we approach this issue. They give the commission the power to disclose information to another relevant body, whether the main purpose in doing so is to assist that body to discharge its functions under new Section 10A(1)(a) or where it is relevant to the other public authority’s function under new Section
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An example might be when the commission passes information to the police about bogus fundraisers: it may be less concerned with the prevention or detection of crime—the function of the police—than with protecting charity property through the hope that a prosecution will put the people concerned out of business. Another example where new Section 10A (1)(b) might apply would be where the commission passes information to HM Revenue and Customs about failings of a charity’s employee tax administration that it had discovered in the course of an investigation. Of course, the commission may be less concerned with the collection of tax than with the hope that the impact of a Revenue and Customs intervention will promote better charity governance in future.
7 pm
Amendment No. 130 does not make a lot of radical changes to the exchange of information provisions that have been in place for many years—in particular, as I said, in Section 10 of the Charities Act 1993. Those provisions emerged in the 1980s following abuses of charity tax reliefs for personal gain which, at that stage, were identified by the Inland Revenue. It found that, where abuses were taking place, the organisations or individuals involved would give different explanations and accounts of their actions to the Revenue than to the Charity Commission. There is no surprise there. The introduction of the information-sharing powers enabled a joined-up response to ensure that any abuses of tax relief for personal gain were effectively addressed.
I entirely understand where the noble Lord, Lord Hodgson, is coming from. I appreciate his point about data creep, because that is what it amounts to. That is a theme that he and other noble Lords have referred to many times. The amendments will strengthen and modernise the information-sharing regime. They will enable it to work better and have a more rigorous framework around it, so that the principal regulators can properly fulfil their duties under the Act. It is common knowledge to us all that the Data Protection Act 1998 protections are there. As I said, they include the Charity Commission and the principal regulators of exempt charities. The safeguards contained in that legislation are there to provide protection to the public relating to the handling, storage and disclosure of personal information.
The noble Lord, Lord Hodgson, was also concerned about how staff might handle the issue internally. I fully recognise that; he made an important point. It will be for us to ensure that Charity Commission staff are well trained, understand the import of Data Protection Act protections and are trained in handling these sensitive data. That will be important. We have underlined the seriousness of offences that can be committed by ensuring that we are very clear about the import of those issues. That is why we have specifically created offences relating to the unlawful onward disclosure of Revenue and Customs information. As I explained
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That is my explanation of what we seek to achieve. I think that I have covered the main points about which noble Lords were concerned. If I have not, I am more than happy to write with further, better particulars—
Lord Hodgson of Astley Abbotts: It is too late.
Lord Bassam of Brighton: My Lords, the noble Lord says that it is too late. I cannot see that he will oppose the amendment, but it is important that people are satisfied and that we put things sufficiently on the record and in the public domain to provide the measure of reassurance that is sought.
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