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Lord Bassam of Brighton: It is important to understand that negligence is an act or omission in itself, so that there will be an element of deliberate activity by the person involved. That is why there is the separate offence.
Baroness Miller of Hendon: I must still say to the Minister that I do not understand that. These clauses are dealing with fraud, and I thought fraud was when you had the mens rea to know that you were doing something absolutely wrong. In negligence, it may be that you did not know, but I am not sure that it is right that the High Court can then impose a fine. I would like the Minister to look at that again and I will certainly speak to my own legal advisers on that because I do not feel that this is the correct approach.
I am concerned about the matter. Somebody accused by the board of fraud may go through a whole High Court trial and be found not to have committed fraud, but be found to have been negligent. The Minister did not elaborate on what kind of negligence was involved. Was it related to the way he presented his case, or what he did or did not do? It may very well be that there will be facts that will prove that what the Minister is saying is the correct approach but, from where I stand, without a very deep knowledge of the law, I find it confusing. I would like some more information.
I am sorry that I interrupted the Minister.
Lord Bassam of Brighton: I seek only to be helpful and perhaps to put into the record something on the issue of negligence itself. Negligence is different. It covers the situation where perhaps an incorrect document or incorrect information has been supplied by someone who has failed to take reasonable care to ensure its accuracy. It is that duty of reasonable care which is important, and I would direct the noble Baroness to focus on that issue. Reasonable care must be exercised in providing information and providing documentation. That the core of the issue.
Baroness Miller of Hendon: I beg leave to withdraw Amendment No. 48.
Amendment, by leave, withdrawn.
[Amendments Nos. 49 and 50 not moved.]
Clause 13 [Supply of information held by the Board]:
Baroness Miller of Hendon moved Amendment No. 51:
- Page 26, line 10, leave out "or the Department"
The noble Baroness said: I would like to speak to Amendments Nos. 51 and 52 together. These are very simple identical amendments and I believe they need only a simple explanation. I become nervous when I say that because when I said previously that it is a simple amendment which needs a simple explanation it became extraordinarily complicated. This is a simple matter.
Clause 13 enables the board to supply information it or its agents hold to a third party described in subsection (2) as being,
- "for use for the purposes of functions relating to social security, child support or pensions".
On the basis that proceedings before the tribunals should be as much a matter of public record as proceedings before an ordinary civil court, this does seem reasonable. On the basis that it would assist the departments receiving the information to carry out their duties of assessing an individual's rights and obligations more accurately than the system of guesswork, which is quite often indulged in when detailed information is not available, it also seems to be a very useful tool.
It is, however, the question of who should receive the information which is of some concern. In Clause 13(2), at the top of the list of recipients is,
- "the Secretary of State or the department",
The Secretary of State must take full responsibility for what happens within his department. We cannot have a situation where a Secretary of State can disclaim any personal responsibility for what happens in his department by saying that it is all the fault of the officials, or that he does not personally involve himself in such matters. Exercising your Lordships' great restraint, which I often do not do, I am not going to draw any analogies with some recent events.
Of course, we all know perfectly well that the data will not be personally handed to the Secretary of State in his Red Box. Everywhere in legislation, in the Bill, we see that "the Secretary of State shall" do this or "the Secretary of State shall" do that, and in at least one case "the Secretary of State may". We do not see "the Secretary of State or the Department shall" do this or that. I cannot see any valid reason why in these two clauses there should be a departure from the time-hallowed phraseology.
Your Lordships will notice that I do not propose to remove the words "or the department" from subsections (b) in the two clauses because there it is quite clear that the information is to be passed to a person, not to a department, and that such a person is the responsibility of the Secretary of State.
The object of the amendment is to make the Secretary of State take full and total responsibility for the actions carried out in his name by his department. I beg to move.
Lord Bassam of Brighton: In drafting the Bill the words "Secretary of State" mean the Secretary of State for the relevant department, and through the Secretary of State, his department itself; the DTI or DWP as the case may be. The word "department", however, means something different. It is defined in Clause 16 of the Bill and is defined to mean the department in Northern
Ireland which has responsibility for the relevant issues. It is, I believe, the convention in legislation to cover Northern Ireland's interest in this way; for example, in the Social Security Administration Act 1992. So against this background I am afraid that the amendments of the noble Baroness, Lady Miller of Hendon, in deleting references to "the Department" would remove that possibility. They would mean that people in Northern Ireland would not get what one might describe as a connected-up, or joined-up service from the government departments handling their statutory paternity and adoption pay matters.I am sure the noble Baroness, Lady Miller of Hendon, does not intend such a disparity to exist, and following this debate she will happily withdraw, or perhaps less happily, withdraw her amendments.
I turn to the Government's amendment, drawing together the data-sharing provisions of the Bill. We did not include the equivalent of the Department of Trade and Industry in Northern Ireland, the Department for Employment and Learning. This I willingly concede is an oversight on our part. In the same way as the Department of Trade and Industry as well as the DWP will have an interest in the schemes in Great Britain, so too will their Northern Ireland equivalents. As I said, the term "department" is defined in Clause 16, and our amendment to this clause simply includes the Department for Employment and Learning, as well as the Department for Social Development within the data-sharing provisions.
With an apology, I would like to invite noble Lords to accept the amendment to Clause 16, which will ensure that departments in Northern Ireland are able to take a joined-up approach to statutory paternity and adoption pay just as departments in Great Britain can. I beg to move.
Lord McCarthy: May I return to the amendment of noble Baroness, Lady Miller of Hendon, because that is where I believe we are. I cannot understand why, if she does not like "or the Department" in Clause 13(2)(a), she leaves it in in Clause 13 (2)(b). Again, she does not like it in Clause 14(1)(a) where she takes it out, but she leaves it in in Clause 14 (1)(b). It is there twice and it disappears twice. Why is this?
Baroness Miller of Hendon: I thought I made that clear, though perhaps I will come back to that bit again. The point I was making was that I was not proposing to remove the words "or the Department" from subsection (b) because it is quite clear in subsection (b) that the information is to be passed to a person, not to the department. It makes that quite clear. Such a person would obviously then be the responsibility of the Secretary of State. That was the difference that I saw and I hope the noble Lord, Lord McCarthy, can see the difference that I thought I was making, and was making perfectly clearly.
I have listened carefully to what the Minister said in response to my amendments, and indeed what he said to the Government's own amendment, Amendment No. 53. At one stage he said, "I hope the noble Baroness, with apology". I am not sure whether he was
apologising for his amendment, or telling me that I should be apologising for having put my amendments down. Without any apology whatever, I beg leave to withdraw my amendment.Amendment, by leave, withdrawn.
Clause 14 [Supply of information held by Secretary of State]:
Lord Bassam of Brighton moved Amendment No. 53:
- Page 27, line 7, after "Development" insert "or the Department for Employment and Learning".
On Question, amendment agreed to.
Clause 16, as amended, agreed to.
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