Explanatory Notes

Digital Switchover (Disclosure of Information) Act 2007

2007 CHAPTER 8

18th June 2007

Commentary

Section 1: Disclosure of information

10.Subsection (1) provides legal authority for the Secretary of State and DSDNI to supply social security information to relevant persons for use in connection with switchover help functions. It gives a power to supply such information on request, but not a duty to do so: in other words, the final decision on whether information is supplied in a particular instance will lie with the Secretary of State (or DSDNI, as the case may be). Subsection (2) makes similar provision to allow the Secretary of State to supply war pensions information.

11.In practice, the Secretary of State concerned in subsection (1) is the Secretary of State for Work and Pensions, and in subsection (2) it is the Secretary of State for Defence. All war pensions are administered by the Service Personnel and Veterans Agency (which is part of the Ministry of Defence) for the whole of the UK. “Social security information” and “war pensions information” are defined in section 2.

12.Subsection (3) makes comparable provision in relation to information (“visual impairment information”) held on registers of people who are blind or partially sighted. Such registers are maintained by local authorities with social services functions in England, Wales and Scotland (see section 5(1) for a definition of “local authority”) and by Health and Social Services Boards in Northern Ireland. “Visual impairment information” is defined in section 2.

13.The information may be supplied to “relevant persons” as defined in subsection (4). Any “switchover help scheme” (as defined in section 5) will be under the overall management of the BBC or a company controlled by the BBC or the Crown (or the BBC and the Crown together): the final structure has not yet been determined but the BBC has indicated that it will operate the scheme through a wholly-owned subsidiary company established for the purpose. In practice, much of the administration of the Scheme (e.g. contacting potential applicants, determining entitlements, and delivering equipment and help with installations) will be contracted out to private sector organisations.

14.In principle, “relevant persons” can exchange information between themselves: this is envisaged by subsections (1), (2) and (3) (as indicated by the phrase “for use (by the person to whom it is supplied or by another relevant person)”). For example, a contractor might be made responsible for mailing information to potential applicants. They will need social security, war pensions and visual impairment information in order to identify and contact the people concerned. The Act permits information to be supplied directly to the contractor, or indirectly, via a company that is also a “relevant person”, such as a subsidiary of the BBC or a company owned by the Crown and the BBC.

15.All exchanges of information permitted by the Act are, however, controlled by—

16.“Switchover help functions” are defined in subsection (5) as follows—

Section 2: Kinds of information referred to in section 1

17.This section defines key expressions used in section 1: “social security information” “war pensions information” and “visual impairment information”. It provides power for the Secretary of State to specify, by order, the precise kinds of social security, war pensions and visual impairment information that can be supplied under section 1. Such orders will be made by the Secretary of State for Culture, Media and Sport.

18.Those expressions are defined as follows—

19.Social security” would, as in other statutes, encompass a range of benefits including state retirement pensions, income support, pension credit, income-based jobseeker’s allowance, disability living allowance and attendance allowance. Child support is not included.

20.War pension” refers to a pension or other benefit for or in respect of a person who has died or been disabled in consequence of service as a member of the armed forces, and certain other pensions and benefits. See the definition given in section 25 of the Social Security Act 1989, which applies in the Act by virtue of section 2(3).

21.Thus, this Act does not permit the supply of all social security, war pensions or visual impairment information, but only of those descriptions of such information as have been prescribed by order under subsection (2), (3) or (4).It is envisaged that this may include—

22.Orders are to be made by statutory instrument and will be subject to the negative resolution procedure, that is to say, they can be annulled by a resolution passed in either House of Parliament: see subsections (5) and (6).

Section 3: Offences

23.In order to protect information supplied under the Act against further disclosure, section 3 makes it an offence for certain persons to disclose such information without “lawful authority” as defined in subsection (6). The penalties available on conviction (see subsection (7)) are the same as those for comparable offences under section 123 of the Social Security Administration Act 1992. The offence may be committed either−

24.It is not an offence to disclose information in summary form, such as a statistical analysis, such that no information relating to a particular person can be ascertained from it (subsection (4)(a)), or to disclose it (subsection (4)(b)) in circumstances where the information in question has already been made public with lawful authority.

25.Also, 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: subsection (5). 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.

26.The meaning of “lawful authority” is given in subsection (6). A disclosure is made “with lawful authority” if (but only if) it is made—

27.Subsection (7) provides that any person found guilty of an offence under this provision is liable−

a)

on conviction in the Crown Court, to imprisonment for a term not exceeding two years or an unlimited fine or both;

b)

on conviction in a magistrates’ court, to imprisonment for a term not exceeding twelve months or a fine not exceeding the “statutory maximum” (currently £5000) or both.

28.Subsection (8) is a transitional provision in England and Wales and Scotland, but has indefinite effect in Northern Ireland. Where an offence is committed before the coming into force (in England and Wales) of section 154 of the Criminal Justice Act 2003 or is committed in Northern Ireland, or a prosecution takes place (in Scotland) before the commencement of section 35(1) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007, subsection (7)(b) has effect as if it provided for a maximum term of imprisonment not exceeding six months.

Section 4

29.The offences of unlawful disclosure created by section 3 can in principle be committed by a “body corporate” (e.g. a company, or the BBC, which is a corporation by virtue of its Royal Charter). For example, company literature might reveal such information. By virtue of section 4(1), where such a body commits an offence under section 3, an officer of that body can personally be convicted of a criminal offence alongside the company, if it is shown that the body committed the offence with the consent or connivance of the officer, or that the commission of the offence was attributable to any neglect on his part. Thus, if an officer, for example, neglects to make sure that staff are aware of the need to maintain the confidentiality of social security information, or neglects to take steps to control movements of information, with the result that there is a release of such information, he may face prosecution. An individual convicted under this provision is liable to the same punishments as are set out in section 3(7).

30.The aim of subsections (2) and (3) is to ensure that this provision is apt to apply to many forms of corporate organisation. In particular, subsection (3) gives a broad definition of an “officer”, which means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body. It also encompasses a person purporting to act in any such capacity, so a person who (for example) in fact gives orders in a company and is part of its management team might not escape liability by simply saying that technically (e.g. because of the terms of his job description) he does not fall into one of the categories of person mentioned.