My Lords, the noble Baroness, Lady Jones, and the noble Lord, Lord Touhig, seek the removal of a power to create criminal offences. The Government’s position on this issue was set out in the policy statement that was made available to all Members of this House last week. We take the security of personal information seriously, which is why Clause 1(5)(k) enables regulations to make provision for any criminal offences in connection with the provision and disclosure of information or documents mentioned in subsection 5(i) and (j). These paragraphs relate to the sharing of information and provision of documents for the purpose of checking eligibility for the free childcare provision.
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Members of this House will understand that the Government’s intent is to ensure that personal information, which will often be sensitive, is not disclosed to those who have no right to see it. Making the unlawful sharing of personal information a criminal offence sends a very clear message about how important it is to keep the information safe and confidential and that
it should be used only for the purpose for which it is collected. As far as we know, no one has been prosecuted under the equivalent provisions in the Childcare Act 2006. That does not mean that the offences are not necessary, rather it demonstrates that the information has been successfully protected. We want to ensure that the same culture of information protection continues in respect of eligibility checking for the additional childcare, which is why we intend to create this offence.
Amendment 22 seeks the removal of Clause 1(7). This provides for a cap on the penalty that may be imposed on indictment for a criminal offence created in connection with the unlawful disclosure of information. That seeks to limit the penalty to a maximum term of imprisonment of two years, with or without a fine. The Government believe that this provides an appropriate safeguard to set a maximum level of penalty, while retaining the option of imposing lesser penalties. Such a power is analogous to the power in Section 13B of the Childcare Act 2006, so there is a precedent in terms of the existing entitlement should it need to be used.
At Second Reading and again today, my noble friend Lord True also cited his concerns. I should like to reassure all noble Lords that the Government intend these provisions to be limited in scope and only for the purpose that I have outlined. They are not intended as a threat, for example, of penalties for staff and providers who fail to disclose confidential details of their businesses to local authorities, which was, as I recall, one of the concerns of my noble friend. Similarly, we have no intention that these provisions would be used as a threat against parents.
I am sure that noble Lords will agree that the protection of personal information is an extremely important matter. Without the power to establish criminal offences, the protection of those data will be significantly undermined. As I have said, we would intend these provisions simply to replicate offences that already exist for the 15 hours of free early education that children already receive. I therefore hope that the noble Baroness will withdraw her amendment.