Clause 3

Digital Switchover (Disclosure of Information) Bill – in a Public Bill Committee am 12:00 pm ar 16 Ionawr 2007.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Offences

Photo of Ed Vaizey Ed Vaizey Shadow Minister (Culture, Media and Sport)

I beg to move amendment No. 6, in clause 3, page 2, line 26, after ‘disclose’, insert ‘, knowingly or recklessly,’.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

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.’.

Photo of Ed Vaizey Ed Vaizey Shadow Minister (Culture, Media and Sport)

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.

Photo of Shaun Woodward Shaun Woodward Minister of State (Department for Culture, Media and Sport) (Creative Industries & Tourism)

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.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

I am very grateful for the hon. Gentleman’s concern. Let us try to proceed.

Photo of Ed Vaizey Ed Vaizey Shadow Minister (Culture, Media and Sport)

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”.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

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.

Photo of Ed Vaizey Ed Vaizey Shadow Minister (Culture, Media and Sport)

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.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

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.

Photo of Ed Vaizey Ed Vaizey Shadow Minister (Culture, Media and Sport)

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.

Photo of Jeremy Wright Jeremy Wright Ceidwadwyr, Rugby and Kenilworth

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—

Photo of Jeremy Wright Jeremy Wright Ceidwadwyr, Rugby and Kenilworth

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.

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—

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

Order. The hon. Member for Rugby and Kenilworth is coming to the end of his intervention on to the hon. Member for Wantage.

Photo of Ed Vaizey Ed Vaizey Shadow Minister (Culture, Media and Sport)

I am grateful for my hon. Friend’s intervention. I echo his remarks.

Photo of Don Foster Don Foster Shadow Secretary of State for Culture, Media and Sport

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.

Photo of Ed Vaizey Ed Vaizey Shadow Minister (Culture, Media and Sport)

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.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

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.

Photo of Ed Vaizey Ed Vaizey Shadow Minister (Culture, Media and Sport)

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.

Photo of Ed Vaizey Ed Vaizey Shadow Minister (Culture, Media and Sport)

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.

Photo of Don Foster Don Foster Shadow Secretary of State for Culture, Media and Sport

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?

Photo of Paul Holmes Paul Holmes Chair of the Parliamentary Party, Cross-Portfolio and Non-Portfolio Responsibilities, Shadow Minister (Arts and Culture), Culture, Media & Sport

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.

Photo of Shaun Woodward Shaun Woodward Minister of State (Department for Culture, Media and Sport) (Creative Industries & Tourism)

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.

Photo of Sadiq Khan Sadiq Khan Llafur, Tooting

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.

Photo of Shaun Woodward Shaun Woodward Minister of State (Department for Culture, Media and Sport) (Creative Industries & Tourism)

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.

Photo of Ed Vaizey Ed Vaizey Shadow Minister (Culture, Media and Sport)

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.

Photo of Shaun Woodward Shaun Woodward Minister of State (Department for Culture, Media and Sport) (Creative Industries & Tourism) 12:30, 16 Ionawr 2007

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.

Photo of Shaun Woodward Shaun Woodward Minister of State (Department for Culture, Media and Sport) (Creative Industries & Tourism)

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. Vaizeyrose—

Photo of Shaun Woodward Shaun Woodward Minister of State (Department for Culture, Media and Sport) (Creative Industries & Tourism)

“Recover” is the word that the hon. Gentleman is searching for.

It is important to place the duty of care on that individual.

Photo of Sadiq Khan Sadiq Khan Llafur, Tooting

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.

Photo of Ed Vaizey Ed Vaizey Shadow Minister (Culture, Media and Sport)

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.

Photo of Shaun Woodward Shaun Woodward Minister of State (Department for Culture, Media and Sport) (Creative Industries & Tourism)

Instead of risking delaying the Committee with a discussion about the official secrets Acts, I shall write to the hon. Gentleman.

Photo of Shaun Woodward Shaun Woodward Minister of State (Department for Culture, Media and Sport) (Creative Industries & Tourism)

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.

Photo of Shaun Woodward Shaun Woodward Minister of State (Department for Culture, Media and Sport) (Creative Industries & Tourism)

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.

Photo of Paul Holmes Paul Holmes Chair of the Parliamentary Party, Cross-Portfolio and Non-Portfolio Responsibilities, Shadow Minister (Arts and Culture), Culture, Media & Sport

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.

Photo of Shaun Woodward Shaun Woodward Minister of State (Department for Culture, Media and Sport) (Creative Industries & Tourism)

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.

Photo of Ed Vaizey Ed Vaizey Shadow Minister (Culture, Media and Sport)

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?

Photo of Shaun Woodward Shaun Woodward Minister of State (Department for Culture, Media and Sport) (Creative Industries & Tourism)

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.

Amendment, by leave, withdrawn.

Photo of Don Foster Don Foster Shadow Secretary of State for Culture, Media and Sport

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?

Photo of Don Foster Don Foster Shadow Secretary of State for Culture, Media and Sport

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.

Photo of Shaun Woodward Shaun Woodward Minister of State (Department for Culture, Media and Sport) (Creative Industries & Tourism)

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.

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.

Photo of Don Foster Don Foster Shadow Secretary of State for Culture, Media and Sport 12:45, 16 Ionawr 2007

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.