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Lord Lucas: Perhaps I may take this opportunity to check with the Minister whether my understanding of the flow of information--and, indeed, the flow of money--in this business is correct. The BBC or its contractors receive the database. They receive applications from members of the public which they check against the database. If the person is entitled to a free licence, he or she is given one. The BBC or its contractors notify the Government in some way that the free licence has been given and the Government then give them the money for it. Am I correct in that assumption?

Lord McIntosh of Haringey: Yes, that is right.

Lord Lucas: In that case, two further questions arise. First, if this information did leak out, what use is it? Are we merely talking about a privacy matter here or is there a use that can be made of this information? For example, could the person holding the information use it to extract money in some other way? Alternatively, is it information that is entirely without consequence, except for the knowledge of the addresses of, say, elderly people, which might lead to them being

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mugged, or something? Are we talking about something of real financial consequence or something that is just an issue of privacy?

Secondly, what check can there be to ensure that the BBC and its contractors do not collude vastly to inflate the number of free licences issued, thereby increasing the revenue to the BBC and presumably splitting the amount between them? I presume that the Government will have no right of audit, so who will check the process?

Lord McIntosh of Haringey: The noble Lord's first question was whether there is a real risk. I have a very nasty mind and I can think of all sorts of risks. I can imagine being a burglar and wanting to go round and burgle people aged 75 and over. I can also imagine being an insurance company that, say, wants to sell annuities to people aged 75. So there is a real risk here. It is not just the fact that we must do it because it is the law and because that is what the Data Protection Act says. In any case, a fundamental principle of the way that public service works in this country is that we do not use other people's information for purposes for which it was not intended. I have no problems about what we are doing in that respect.

I am sorry. I was so enthusiastic about the noble Lord's first question that I have forgotten the second one--

Lord Lucas: Thinking the impossible, I had in mind that the BBC and its contractor could start putting in a lot of false claims about the licences issued.

Lord McIntosh of Haringey: Yes, collusion. The noble Lord, Lord Lucas, has a very suspicious mind; and quite rightly so. There is no more reason why the BBC and its contractors should engage in collusion than the DSS and its contractors. The rules are the same; the audit procedures will be comparable; and there will be the same controls as exist in any other case. The BBC is independently audited and the National Audit Office has jurisdiction over licence fee collection. I cannot think of any new opportunity arising here for criminal activity.

Baroness Anelay of St Johns: Again, I am grateful to the Minister for his reply. I was intrigued by the questions asked by my noble friend Lord Lucas with regard to the use of information. Between now and the Report stage, I shall certainly want to follow up some of the implications of how information might be used. Indeed, it might be more wide-ranging that I previously considered.

I was also most intrigued by the way that my noble friend Lord Lucas brought in the issue about potential collusion, or otherwise. I almost thought that he was about to propose that the BBC might not be audited by its own auditors but might perhaps be brought within the Government Accounts and Resources Bill. However, as the Minister has reminded me, we shall consider that Bill tomorrow.

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I am grateful to the noble Lord for saying that he will place a copy of the memorandum of understanding in the Library of the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 [Use to which information may be put]:

On Question, Whether Clause 2 shall stand part of the Bill?

Baroness Anelay of St Johns: I have given notice that I intended to oppose the Question, That Clause 2 stand part of the Bill. However, the grounds on which I did so have now been addressed fully by the Minister in his comments on Amendments Nos. 1 and 2. I therefore have nothing further to say with regard to Clause 2.

Clause 2 agreed to.

Clause 3 [Offences]:

[Amendment No. 6 not moved.]

Baroness Anelay of St Johns moved Amendment No. 7:


    Page 1, line 24, after ("he") insert ("knowingly").

The noble Baroness said: In moving Amendment No. 7, I wish to speak also to Amendments Nos. 10 and 12. These amendments address a problem that arises out of the terms of Clause 3, which makes it an offence for certain persons to disclose the information we are discussing without lawful authority. The noble Lord referred briefly to that matter.

This would on the face of it seem a sensible and straightforward provision. However, I am worried that the special circumstances that can be involved in the electronic communication of information mean that individuals could fall foul of these penalties without intending to breach the terms of the Bill.

Amendment No. 8 refers to "a recipient". Amendment No. 11 seeks to amend Clause 3(2), which states,


    "A person who is or has been employed by a recipient, or engaged in the provision of services to a recipient".

However, the objective of both amendments is the same; namely, that one should be guilty of an offence only if one knowingly discloses that information.

At Second Reading, the Minister tried to reassure me with regard to the dangers of accidental disclosure. Then, as tonight, he was in a literary mood. He said that if one is reckless or just plain stupid one can easily release information by accident. He illustrated the point by quoting from the latest Philip Roth novel--that is rather more up to date than "King Lear"--in which a character sends an e-mail but by mistake clicks on the wrong button and sends it to everyone in her university department with some embarrassing results. I argue that mistakes can happen in electronic communication even where the sender is neither reckless nor plain stupid. The accidental disclosure that I am considering is far more complex and would not be the fault of the sender, nor indeed of the recipient, if it were forwarded unintentionally.

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Someone who is employed by BBC contractors may receive an e-mail but, unknown to that person, his PC is infected with a virus which may be far more complex than the "Love Bug" virus, which attached itself to the address book. The virus attaches itself to their Outlook programme or equivalent and automatically directs the PC to forward all received e-mail to whoever has been in contact with that PC. Should one be guilty in that situation of an offence under this Bill when one has not knowingly transmitted the information?

Amendment No. 13 provides a different solution to the same problem. I have tabled it to enable all the options to be disposed of in one go in Committee. It would extend the definition in Clause 3(4) of what constitutes a defence for a person charged with an offence under this Bill.

7.45 p.m.

Lord McIntosh of Haringey: I believe that the noble Baroness refers to Amendment No. 12, not Amendment No. 13.

Baroness Anelay of St Johns: I beg the pardon of the Committee; I am speaking to Amendment No. 12. Amendment No. 12 provides a different solution to the same problem. It extends the definition of what constitutes a defence. It would mean that if someone disclosed information to someone who had the authority to receive it under the terms of Clause 1 and then the information was transmitted onwards in error--or perhaps because of a failure of the Internet service provider's own systems--he would have a defence to the absolute offence that is created in Clause 3(1).

I have provided two alternative solutions to give the Government the opportunity to say whether they intend that someone who has transmitted information unknowingly should be subject to penalties along with those who knowingly transmit information. I beg to move.

Lord McIntosh of Haringey: I ought to start by referring again to the Data Protection Act and Principle 7, which states:


    "Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data".

Clearly, the implications of the offence in Clause 3 go further than is strictly implied by Principle 7 of the Data Protection Act. However, we must consider this matter from the point of view of the people whose personal data are being used in the circumstances that we are discussing.

The effect of Amendments Nos. 7 and 10--and of Amendment No. 12 through a different route--would be to make it easier for those covered (that is, the BBC, or one of its contractors, or the employees of the BBC or one of its contractors) to get away with disclosing the information supplied by the DSS under Clause 1. This is because an offence under the amendment would be committed only if the action of disclosure was a deliberate act. It would mean that a careless or

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thoughtless person who released information accidentally in any of the ways which the noble Baroness, Lady Anelay, has described, would not commit an offence. It would mean that if the person thought that the information had been obtained in some way other than under Clause 1, he or she would not commit an offence by disclosing it. It would mean that a person who thought, however unreasonably, that he or she had lawful authority to release information, would not commit an offence.

I understand the fear that someone who is not fundamentally a bad person might find himself or herself having committed an offence which could send them to prison, without having had the slightest intention to do so. However, if personal information is disclosed, the person affected (whose personal information it is) may not care very much whether the disclosure was malicious or accidental, careless, negligent or reckless--the damage is done, although the damage is not of the same order as I mentioned when I quoted from a Philip Roth novel. My fundamental point is that degrees of culpability are best left to the courts to consider and to reflect in sentencing. An action that was clearly carried out unknowingly would be unlikely to attract a severe penalty.

The Bill as drafted preserves an important principle; namely, that personal information should be protected. It protects it in the same terms as it would be protected under Section 123 of the Social Security Administration Act 1992, which was passed by the previous government. That section makes it an offence for an employee or former employee of the DSS to release personal information obtained in the course of his or her employment.

The defences in Clause 3 are the same as those in Section 123 of the 1992 Act. It is a defence for a person charged with the offence to prove that the disclosure was made in the reasonable--even if mistaken--belief that he or she was making the disclosure with lawful authority, or that the information was already public. One would be able to use that defence provided one had deliberately considered the question of whether one could disclose the information and had decided on reasonable grounds that one could. The Government believe that the clause as drafted strikes the right balance between the flexibility that the courts need to have and defences which are comparable with those which apply under the Social Security Administration Act 1992. We do not think it desirable to accept the amendments.


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