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Baroness Anelay of St Johns: I was interested to hear that reply. One becomes a victim when one's personal information has been released. Whether that was done accidentally or not does not matter too much to the victim. However, the question of intent goes to the heart of whether one is prosecuted rather than to the heart of the level of penalty that is

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imposed. Between now and Report, I shall want to consider further what the Minister has said about that.

Lord Lucas: Before my noble friend withdraws her amendment, perhaps I may ask the Minister whether there is in English law a concept of "culpability". I have listened to his arguments and clearly the concept of "knowingly" is wrong in this case. But, when a person is dealing with information of this kind, there could be occasions when it is stolen from him in a way that he could not reasonably prevent. As the Bill is drafted at the moment, it seems that he will acquire a criminal record when a court may consider that he should not have one. Is there not a let-out for someone who a court may ultimately consider is in no way to blame for what happened? I presume that, under the Government's new system, he will not have a jury trial--and therefore there will be very little option for a jury to fail to convict because it thinks that the person is blameless. Should there not be at least some let-out to enable a court to say, "No blame attaches to this man; we shall not convict him", rather than for a court to say, "We convict him, but we shall let him walk free"?

Lord McIntosh of Haringey: We have moved away from my level of competence in the law. The only mantra I have on this is that ignorance of the law is no defence. I shall write to the noble Lord, Lord Lucas, after taking legal advice about degrees of culpability, which I accept is the phrase that I used.

Lord Avebury: Does the Minister agree that in the circumstances described by the noble Baroness, Lady Anelay, the Crown Prosecution Service would not bring charges against somebody who is the victim of a virus which caused his or her system to transmit personal information to an unauthorised person without their knowledge? How could anyone be charged with an offence under those circumstances?

Lord McIntosh of Haringey: That sounds reasonable to me; but, not being a lawyer, I shall not comment on it from the Dispatch Box.

Lord Lucas: I am delighted that the Minister is prepared to trust his liberty to the Crown Prosecution Service and the wisdom thereof. I shall bear that in mind on future occasions.

Baroness Anelay of St Johns: This issue certainly bears further examination between now and Report stage. The noble Lord, Lord Avebury, raised a very important question about whether or not one can expect the CPS to take a particular action. The only thing I learnt overall as a magistrate was that one could never anticipate what the CPS might be expected to do; but that is another matter.

Clause 3(1) creates an absolute offence. The CPS might be in some difficulty if it knew that an offence had been committed and decided not to take action; it might be taken to task for that and its decision

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reviewed. Like the Minister, I am not a lawyer; I need to take further advice. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 8 to 12 not moved.]

Clause 3 agreed to.

Clause 4 [Liability of directors etc.]:

The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before calling the next amendment, I should inform the Committee that if Amendment No. 13 is agreed to, I cannot call Amendment No. 14.

Baroness Anelay of St Johns moved Amendment No. 13:


    Page 2, line 38, leave out ("any neglect") and insert ("negligence").

The noble Baroness said: In moving Amendment No. 13, I shall speak also to Amendments Nos. 14 and 15.

As has been made clear by the Deputy Chairman of Committees, these amendments are, to some extent, contradictory. Again I have tried to assist the Committee by bringing forward at this stage all the amendments that might reasonably be considered in order that issues may be disposed of now, and not brought back on Report.

These amendments seek to give the Committee an opportunity to examine the effectiveness of Clause 4, which was inserted into the Bill at a late stage, at Third Reading in another place. It therefore may not have had the full scrutiny there that one might normally expect.

Clause 4 extends the offence of unlawful disclosure to cover company directors. I support the intention behind that. Clause 4(1)(b) states that if an offence committed by a body corporate is attributable to any neglect on the part of an officer, then,


    "the officer as well as the body corporate is guilty of the offence".

Several problems may flow from this. In another place, my right honourable friend Douglas Hogg pointed out that because the Bill uses the words "attributable to any neglect" on the part of a director, and because the offence is a neglect of duty, it will be necessary, first, to define the director's duties before it is possible to determine what a neglect of them would be. So what is the duty? Can the Minister say to whom the duty is owed? Is it a duty of confidentiality to the BBC, to the Secretary of State, or to the original provider of the information?

Another problem flows from the use of the word "neglect". On its own, "neglect" perhaps has far too wide a meaning. It will penalise officers of a company who, perhaps, because of a dishonest or incompetent employee or processor, fall foul of the Bill. It could be over-burdensome on business.

As currently drafted, the word "neglect" defines a failure to do what? Is it perhaps a failure to supervise other people; or perhaps a failure properly to police internal guidelines on the processing of information? It

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is not clear. The Government should be clear about this before penalising an officer for a failure to do something.

There is a great deal of difference between the meanings of the two words "neglect" and "negligence". "Neglect" implies that one omits to do something that one is required to do; whereas, to me, "negligence" implies that perhaps I do something but I do it only badly or in part. "Neglect" surely means "omission", but not necessarily "negligent omission". In order to judge whether one has done one's duty negligently or in part, one comes back to the original premise: one needs to know what one's duty is. What advice have the Government received on this point from their lawyers and from the Institute of Directors?

Amendment No. 14 refers to the words "wilful or deliberate". The amendment seeks to give some protection to an officer who is acting in good faith. It provides that he will be liable to prosecution only if his neglect or negligence is either wilful or deliberate. It suggests a need for some intent by an officer of the body corporate before he can be guilty of an offence. I return to my original intention in the last group of amendments--that is, to ensure that people who are trying to do their job properly are not prosecuted under the Bill. After all, we are trying to catch the people who are doing wrong, not those who are trying to do their work well.

Amendment No. 15 seeks to obtain from the Government a clear definition of what they consider to be an officer of the company. What do they mean by the definition in Clause 4(3), which refers to,


    "or a person purporting to act in any such capacity"?

Do the Government intend it to cover consultants to a company? What about non-executive directors who, strictly speaking, are not employed by the company? What do the Government say about the position of shadow or alternate directors who may be third parties appointed by a director and not employees of the company? Who is meant to be covered by Clause 4? I beg to move.

Baroness O'Cathain: I rise to support my noble friend in this group of amendments, even though one or two of them contradict each other.

This is a completely new area of responsibility for company directors. They will be handling social security information--or, at least, they will be ultimately responsible for an organisation which handles social security information in a semi-commercial or commercial world. The responsibilities on company directors are getting more onerous by the day. There is no question but that unless people really go into the nuts and bolts of their responsibilities, and unless those responsibilities are clearly defined, fewer people will be willing to accept these onerous jobs. It is important that people should realise the duties of directors, but in this case those duties must be spelt out.

It is nothing like dealing with a normal commercial organisation where one has information. One has responsibilities in terms of one's customers. For

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example, if one is in a grocery distribution business one has to make sure that everything is done to ensure that customers are not poisoned by the groceries that one distributes. If one is in the airline business--both of my examples come from experience on my part--one has to make sure that, as far as is humanly possible, safety comes first. To that end special committees of the board are set up for air safety, ground safety or whatever.

In this area, which is a completely new area, where government information which is solely in the hands of civil servants will now be used by contractors to the BBC, one just needs to know the responsibilities of the directors of those contracting companies; otherwise, there could be a real problem in terms of the liability of the company directors.

8 p.m.

Lord Avebury: The responsibilities of the directors and the contractors are the same in respect of this information as they are regarding the information about their own employees. They are bound by the Data Protection Act. As the Minister has already explained, the principles of the Data Protection Act, particularly Principle 7, govern the behaviour of the contractors and they have to take appropriate measures to see that this information does not get into unauthorised hands, just as any information of a personal nature within their own companies does not get into unauthorised hands. Therefore, I do not see that the responsibilities that are being placed on directors are any more difficult or onerous than those which they already undertake as directors of their own company.


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