AS AN AMENDMENT TO COMMONS AMENDMENT NO. 102 (Hansard, 24 October 1990)

§ Lord Mishcon
My Lords, as I said, I should like briefly to explain to your Lordships the reason for my Amendment No. 102A. It has been said that we are living in an age of leakages. Whoever be the government of the day, they find it most embarrassing that from all quarters documents are leaked and confidential information leaked. I suppose that it is the experience of most of us in the legal profession that if anybody interesting is charged or arrested, there appears to be a leakage from the relevant police station to Fleet Street within a matter of seconds.
Speaking purely for myself I am glad that the amendment from the other place makes it a criminal offence to impart information about a third party that comes into their possession (a) by the Board or any member of its staff; (b) by any person appointed as an investigator", Paragraph (c) is intended to cover, for example, a journalist who quite wrongly obtains confidential information which was confidential to a third party as a result of the inquiries made by the board or by an investigator. That person is described as: 1421 any person obtaining it directly or indirectly from a person mentioned in paragraph (a) or (b)". I have asked myself how effective that would be in order to stop a third party—not the board, one of its employees or an investigator—who had wrongfully obtained confidential information about the third party. All that the journalist in paragraph (c) would need to do is to say that he had obtained consent, not written consent but ordinary consent. To be practical, in this day and age, one can envisage a telephone call made by a newspaper to the person whose private affairs had got into the hands of the journalist. He might speak to a secretary on the telephone and say, "I assume there is no objection to my newspaper publishing this, that or the other". The reply could be a neutral one such as, "Well, I know of no objection". He might then say, "I have the consent of that party. I am now going to telephone the board and say to one of the board's employees, 'Oh, by the way, I have obtained the consent of Mr. X to my publishing certain facts about him. In those circumstances I assume that there is no objection from your point of view.'" The normal reply he might expect to receive, with the provision as it now stands, is, "Well, if he does not object, we do not object".
What happens if there is to be a prosecution? Is the onus on the prosecution to prove that the man did not have consent? If so, the task faced is almost impossible. If the onus is on the party concerned, he must have guilty knowledge that he did not have consent. He says, "I assumed from the telephone conversation that I had that consent". In those circumstances, what jury will convict?
I wish to be perfectly frank with the House because the noble and learned Lord the Lord Chancellor was good enough to discuss this matter with me and, indeed, to write me a letter. He properly and fairly quoted some Acts where the word "consent" appears without the addition of the word "written". I believe that the most ancient of the Acts to which he referred was a 1986 Act. I ventured to point out to him with great respect that one has hardly had experience of any of the Acts from 1986 onwards, including the Financial Services Act. I believe that this clause will be useless as regards paragraph (c) unless there is the provision that it should be written consent. In those circumstances, I beg to move.
Moved, That Amendment No. 102A, as an amendment to Commons Amendment No. 102, be agreed to—(Lord Mishcon.)

§ The Lord Chancellor
My Lords, the noble Lord very kindly drew my attention to this point some time ago. The purpose of Commons Amendment No. 102 is to prevent the unauthorised disclosure of restricted information by making it a criminal offence, triable either way, for the board, its investigator, or any person obtaining information from them to disclose such information without consent. The amendment now moved to Amendment No. 102 has superficial attractions—and all the more so when presented by the noble Lord—in that it appears at first sight to make it easier for the prosecution to prove the absence 1422 of consent to the satisfaction of magistrates or a jury. On further analysis, however, a requirement that consent be in writing is unnecessary and could have undesirable consequences.
I say it is unnecessary because Commons Amendment No. 102 is a standard provision lifted from other legislation such as the Building Societies Act 1986, the Financial Services Act 1986 and the Banking Act 1987. So far as I am aware, the absence of a requirement for consent to be in writing has caused no problems. I accept that those are fairly recent statutes but I believe it to be quite important to have consistency in this matter. These are similar provisions. The criminal sanction for unauthorised disclosure contained in the clause should therefore have the deterrent effect intended.
It is important that two consents are required in the paragraph (c) case; namely, from the board or its investigator or the person to whom it relates. The noble Lord is saying that having obtained, by means which may not be described as entirely fair, a form of consent from the person to whom the permission relates, the board or the investigator might be persuaded to part with it. I believe that is a matter for the board about which it should have discipline.
The circumstance that the noble Lord envisages could be dealt with in that way. I fully appreciate the importance of the point he raises and I undertake to keep it in review as these provisions come into effect. I am reluctant to accept the amendment in relation to this legislation when there are parallel provisions in other recent legislation which have so far given no difficulty. There is value in retaining consistency.
My noble and learned friend Lord Simon of Glaisdale spoke of complications. It is always possible to complicate the understanding of people if in one area written consent is required and in a closely related area it is not. Accepting that the noble Lord, Lord Mishcon, has a point worthy of consideration, he may feel that in the light of my explanation he can safely leave the matter for the present.

§ Lord Mishcon
My Lords, I immediately bow to the noble and learned Lord, especially in view of his kindness in saying that he was prepared to review the matter in the light of experience. I beg leave to withdraw the amendment.
Amendment No. 102A, as an amendment to Commons Amendment No. 102, by leave, withdrawn.