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Mr. Browne: The hon. Gentleman raises a number of interesting points that merit answers. I will answer to the extent that I am able to do so.
The hon. Gentleman asks if it is a proper interpretation of this part of the Bill that this offence can be committed only within the UK? The answer to that is yes, to the extent that what is known as the actus reus—the actual action—would need to have taken place in the United Kingdom before the UK criminal courts would have jurisdiction. There are circumstances involving some very serious crimes where the UK courts take jurisdiction for crimes committed anywhere in the world. War crimes is an obvious example. There is a statutory basis for that, and we know why that should be the case. However, for these offences, jurisdiction will be restricted to an actus reus in the UK.
The hon. Gentleman asks where the processing of that information will take place. At present, I cannot give him the certainty he seeks, because the procurement process in relation to certain parts of this scheme are required by EU law to be open. That aspect will be as open as possible so that the Government can be assured that they get best value for money. However, I can say that the agency issuing the ID cards will be UK based, and it is intended that that agency will build on the UK Passport and Records Agency.
I am very mindful of the fact that the law on procurement allows the Government to restrict matters to UK-sourced procurement, if that is necessary on grounds of national security. All those issues will be taken into account. I already see arguments on the points mentioned by the hon. Gentleman, because those points are related to potential national security issues. There will be arguments for ensuring that we can hold jurisdiction on such activities appropriately so that penalties can be brought to bear on the relevant people.
The hon. Gentleman asks about the proportionality of the penalty and for some indication of equivalence in other legislation. Under section 9 of the Rehabilitation of Offenders Act 1974, disclosure of spent convictions attracts a maximum sentence of six months. Offences under section 59 of the Data Protection Act 1998 attract a maximum penalty of a £5,000 fine. The penalties envisaged in clause 29—
''imprisonment for a term not exceeding two years, or . . . a fine, or . . . both''—
are not disproportionate to the equivalent provisions in other statutes.
I understand why the hon. Gentleman says that such actions could be conducted in the context of much more serious behaviour. If there were evidence that a person was party to a conspiracy such as he figures, I suggest that they would be prosecuted for something much more serious than the unauthorised disclosure of information from the identity register. Perhaps there would be an alternative charge as a fallback position, in case the principal behaviour was not properly criminalised. I do not think that I have anything further to say; I have covered the three issues.
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Mr. Allan: The additional point—just to be clear across the Committee—is that there is that breadth of possible disclosure in the context of court orders and tribunals. The public need to be aware that such disclosure is potentially much broader than that in criminal investigations.
Mr. Browne: The simplest answer is that the hon. Gentleman is right. He will accept it from me that it would be entirely inappropriate for Parliament to fetter courts that might properly make such orders in appropriate circumstances, bearing it in mind that such orders will not be made willy-nilly and will be subject to the normal rules on the disclosure of evidence or information.
It would not be appropriate for Parliament—having allowed the courts for many decades, if not centuries, to make such orders—to seek to restrict them. However, the hon. Gentleman is right to bring the issue to the attention of those who may be interested.
Question put and agreed to.
Clause 29 ordered to stand part of the Bill.
Clause 30
Providing false information
Mr. Malins: I beg to move amendment No. 228, in clause 30, page 26, line 15, leave out from 'false' to end of line 16.
I seek nothing more than an undertaking from the Minister that he will reconsider clause 30(2)(b). The amendment would remove the words
''is reckless as to whether or not it is false.''
I shall give the reasons for reconsidering the provision. It deals with someone who provides false information to someone else, perhaps in confirming the contents of an entry in the register. Such a person providing false information would be liable to penalties.
Clearly, the Minister has tried to assist the defendant by saying that the defendant has to know or believe the information to be false. That introduces an element of moral culpability—that is to say, the matter goes beyond the actus reus and involves some form of mens rea.
4.15 pm
My point is that ''reckless'' is a very difficult word. It is increasingly frowned on in criminal law. In road traffic legislation, there used to be a charge of driving furiously. I am not even sure that it does not still exist in some jurisdictions, but I think that it has been taken away from our road traffic Acts. There used to be a charge of reckless driving, which I imagine fell somewhere between driving dangerously and driving without due care and attention. Reckless driving is no longer a charge.
The word ''reckless'' is used with tremendous caution in criminal cases because it is difficult to define. It has been particularly condemned in certain criminal damage cases. For example, what if someone slams down the telephone in a public kiosk when in a temper, and the thing breaks in half? It cannot necessarily be said that that person intended to break it in half. They were terribly angry because they could
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not get through but, on the other hand, there is a certain degree of moral culpability in slamming it down.
Case after case involves talking about recklessness and whether that is an essential element of an offence. All I would say to the Minister is that that is difficult territory. Judges find it extremely difficult to direct a jury on what ''reckless'' actually means. Does it mean negligently or carelessly? To what extent does recklessness involve knowledge? Directions to juries from judges over the years in cases using the word ''reckless'' have been fraught with difficulty.
If the Minister thinks that it is essential to include subsection (2)(b), so be it. However, we are doing our duty in Committee by pointing out the problem with that word, of which he, as a very skilled lawyer, will be well aware. Will he ponder the position between now and Report to see whether any improvement could be made?
Mr. Curry: We have listened to quite a lot of Latin phraseology today, in a little private discourse between the lawyers. Those of us who are not lawyers and are not familiar with that phraseology occasionally come across an Anglo-Saxon word that we think we understand, but then we see it in the context of the Bill and begin to wonder what on earth it can conceivably mean. I speak as a simple hack, not a lawyer, and I know that if I put the word into a piece, my editor would say, ''What do you mean by it?''
I had one rule when I was a Minister: I would never sign a letter that contained the word ''appropriate'', on the grounds that it always stood for something else. It meant ''right'', and ''not appropriate'' meant ''wrong'' or ''silly''. Yet I found that the word is used endlessly in Government to disguise what is actually meant.
I take the point made in the analogy of the telephone. I have to tell my hon. Friend the Member for Woking that I am not well versed in the operations of photocopiers of the sophistication of those in Portcullis House. There are occasions when one seeks to make them do a simple task, and one is overcome by a very powerful urge to express one's disapproval in a physical form. Whether that would be described as a ''reckless'' action I am not quite sure.
Surely, if ''reckless'' stays in the Bill, there has to be some test of what is meant by recklessness. All that the word is doing is standing as code for a much longer explanation of what is ''reasonable'', a word that is constantly used in the Bill. One would have to start by defining what ''reckless'' could conceivably mean before one could discover whether something was reckless or not; that must depend on particular circumstances. I realise that, in legislation, it is necessary at times to use particular words that are difficult to define, but about which one has an instinct as to what it is trying to do. That is why I think that ''not appropriate'' is such an indispensable phrase for Government.
I hope that the Minister will think about the matter again. I looked at the word and thought, ''This is curious; it looks a rather direct word.'' Then I thought, ''What does it mean?'' I could write a significant dissertation on that in Anglo-Saxon and still not get us
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very far. I am sure that the Minister would like to reflect on the matter.
Mr. Browne: I shall attempt to give the right hon. Gentleman and the hon. Member for Woking a relevant if not an appropriate response to their arguments.
The clause seeks to protect the integrity of the information on the register by interdicting—criminalising—behaviour that deliberately seeks to put information that is wrong on to the register or action that is carried out in a frame of mind in which the person could not care less about the consequences of his actions. That is my understanding of what ''recklessness'' means. In my days of practising criminal law it was a phrase that was well known to those of us who practised in the courts. It is not easily defined in the sense that the right hon. Member for Skipton and Ripon suggests.
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