§ 4.30 p.m.
§ Baroness Trumpington
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee. (Baroness Trumpington.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The Lord Cullen of Ashbourne in the Chair.]
§ Clause 27 [National security]:
Lord Avebury moved Amendment No. 37:
Page 21. line 4, after ("Crown") insert ("after consultation with the Registrar")
§ The noble Lord said: This clause of the Bill is concerned with national security and, in the absence of an amendment such as we have tabled here, exemption from Part II of the Bill, and thus from registration or any kind of supervision on grounds of national security, would be decided by a Minister of the Crown and no other person, apart from the data user himself, need ever know about what has happened.
§ The Minister said during the last "innings" that data which are exempted from either subject access or non-disclosure under the provisions of this part of the Bill, would not be left without any protection at all, as critics sometimes implied. In general, of course, that is true. Data users who hold data for the prevention or detection of crime, for instance, still have to register and, as the Minister pointed out, the registrar still has the power to ensure that where appropriate the principles which are contained in Schedule 1 are still observed. But in the case of the systems that are covered by Clause 27, the registrar, as I understand it, is completely unaware of their very existence until he receives a certificate signed by the noble Lord, Lord Elton, or one of his colleagues, in the terms set out in Clause 27(2). Incidentally, it is not even clear to me that the certificate mentioned here would have to be lodged with the registrar. As I read the Bill, it is possible that the certificate could simply be filed within the department never to see the light of day until someone like Mr. Duncan Campbell discovers the existence of the system in question and then it will be wheeled out to frustrate any unwanted questions that Mr. Campbell might seek to put to the Press Office of the Home Office.1270
§ Your Lordships will remember that the Lindop Committee suggested that a member of the Committee or, as we now have it, the registrar's staff, should have a high enough security clearance to be able to look at files proposed to be exempted for reasons of national security. If any Government should try in future to use Clause 27 to extend the area of secret computer files under the pretence of national security, but in fact for some more sinister purposes, then at least the registrar would become aware of what was happening. He would, of course, have no power to stop the Minister from signing the certificate, but if that was done against his advice, the Minister would have to run the risk that his conduct would become known to the public. Of course we are not in this amendment getting at the noble Lord, Lord Elton, who is absolutely to be trusted with the enormous powers in this clause. But we do need, I suggest, to take precautions for the future against other Ministers who may occupy his post and who may see information technology as a weapon to be deployed unscrupulously against those who disagree with them, rather than as a resource for the people. I beg to move.
§ Lord Elton
When we considered last Session's Data Protection Bill, considerable attention was paid in Committee to Clause 27. Various comments, criticisms and suggestions were made and on Report I was able to bring forward a revised Clause 27 which, I was glad to discover, met most of the points that had been made in Committee. One of them was the importance of ensuring that an exemption on national security grounds was not available without the authority of a Government Minister at the highest level. We recognised the force in that argument. And we revised the provisions of Clause 27 accordingly. It now provides that any question of whether an exemption is required for the purpose of safeguarding national security must be determined by a Minister of the Crown. And a Minister of the Crown is defined in subsection (6) as a member of the Cabinet, the Attorney-General or the Lord Advocate. The noble Lord, Lord Avebury, does me too much honour in suggesting that I might be included among that number in the foreseeable future. We thus sought to ensure that decisions of this kind—of a sensitivity and seriousness that are perhaps unique—rest where they can only properly be taken—at the highest level of government.
The noble Lord is now suggesting that an extra dimension is given to the decision-taking process; that before a Minister decides whether or not an exemption is required for the purpose of national security, he shall consult the registrar. I have to say to the noble Lord that I am sorry, but it is not practicable, for two reasons: one of principle and one of practice. As I said in responding last Session to an amendment to Clause 27, national security data are in a field all of their own. They are of a particular sensitivity, and the number of people with access to them must be kept to the absolute minimum; that is in the interests of the nation as a whole. I know that in other countries some other intervention is provided, but as the noble Lord has not raised that matter, I will not go into it.
The noble Lord's purpose is that what the registrar shall be consulted about is not the needs implicit in the protection of data subjects, in which he is expert, but 1271 those arising from the protection of security, of which he knows almost nothing. Supposing the registrar were given a role and had to be consulted by the Minister before the requirement for an exemption was decided. How could he properly and constructively express a view?-—because the question he will be asked will be about the needs of national security, not of data protection. The Data Protection Registrar will undoubtedly be a person of eminence and wisdom. He will be a man of integrity, of absolute trustworthiness. But what he will not be is an expert on national security. He will have no qualification or basis or corpus of knowledge on which to express a view as to whether the needs of national security are such as to require action to be taken. Only a Minister can properly do that. It would be wholly wrong—as well as unfair—to give the registrar this really quite inappropriate role. And that is why I cannot advise your Lordships to accept the noble Lord's amendment.
§ Lord Mishcon
The Committee will appreciate the validity of much of what the noble Lord the Minister has said, but at the same time it will share some of the anxieties of the noble Lord, Lord Avebury. There is no doubt that this is a terrible power which quite innocently can be used in order, for example, to list individuals as security risks, and to do so quite mistakenly. It is not so much a question of the abuse of the power—although that was a very real point that was made by the Minister—as the fact that somebody has made a mistake and that it can go on being repeated, or continue to be on the record of some perfectly innocent citizen, and nobody will ever see it except the Minister who has had a report made to him by somebody.
I shall content myself with the following observation: if this amendment does not commend itself to the Minister and to the Committee for reasons that I think will become apparent, I would hope, if I may say so on behalf of my noble friends, that between now and the Report stage the Minister could give consideration to some other "safe" person, be it an ombudsman or someone else, who has the power to see whether or not records are erroneous and the Minister is, in fact, correctly carrying out the power given to him under the Bill. It is a very large power; it is a very dangerous power.
§ Lord Swinfen
If there is some other person who has to look into the question, who is actually going to do it? Is he not also going to have to rely upon the same security forces as produced the first report? If it is a question of national security you cannot get an outside agency to look into it because that would be breaking security. I am wondering who the noble Lord anticipates will do the investigation. Will this other person himself go round and do the investigation?
§ Lord Mishcon
I wanted to make my reply brief and I am going to try to do that in answer to the intervention. The situation is difficult. One does not know whether it will be some person with judicial authority who will have the power to investigate generally and to see, for example, how reliable is the information which is being given in order for certain 1272 classifications to be made. I appreciate that it may have to be a general investigation and not a particular one in all cases, but at least one would know that there was some periodical review of procedure so that the procedure looks as though it is right and safe.
§ Lord Avebury
I was not even going so far as the noble Lord, Lord Mishcon. I was not demanding that some other person should have the right periodically to scrutinise these records; but I was simply asking that when the Minister signed the certificate which is mentioned in Clause 27(2), he should at least notify the registrar that he proposes to do so and that the registrar, who would have a suitably qualified person on his staff, would give any advice within his power. It was part of my submission that, as the Lindop Committee recommended, the registrar must have a person with the highest possible security classification as a member of his staff to perform these duties, as indeed the Minister reminded us is the case in other countries. However I shall not press that.
I merely ask the Minister between now and the Report stage whether he would be good enough to deal with the point that I made, which is that the certificate which the Minister signs may be lodged within the department and not with the registrar, and therefore no other person besides the Minister and presumably those who gave him the advice that this particular data should be dealt with under Clause 27(1) will even be aware that the exemption has taken place. It was that danger with which I sought to deal in my amendment and which, in the absence of an amendment of this kind, could mean that very large blocks of data were excluded from any consideration whatever by the registrar or supervision of other kinds under Part II of this Bill.
As I said, although there is no suspicion in my mind that anything irregular would happen—not just under the noble Lord, Lord Elton, when he is a member of the Cabinet but under any of his colleagues—I thought it was necessary to take precautions against irregularities being committed by some future Government which would be of a less enlightened complexion than the present one.
§ Lord Elton
I am relieved to find that in his secret heart of hearts the noble Lord, Lord Avebury, regards this as an enlightened Government, because much of his correspondence has suggested the contrary. I can answer one specific point and one general point. On the specific point, the noble Lord is right—the certificates would not be lodged with the registrar. Certificates would be held by the Minister and produced where necessary to provide evidence that the exemption is required for the purpose of safeguarding national security. That is the general practice where certificates of this sort are concerned. So the noble Lord is right in that.
I am reluctant to give a very convincing undertaking at this stage because we have gone such a long way since the last time the Bill was before us to meet the anxiety of noble Lords that this power should not be misused. Having said that, of course we always take very careful note of what is said.
The noble Lord has addressed himself to a precise and I think probably marginally new area of 1273 concern—at least, he expressed it differently—and I shall certainly take it away, although I do not wish to hearten him with any indication of what I shall do thereafter. But it will be very carefully considered.
§ Lord Avebury
I certainly do not want to delay your Lordships when there are so many more important amendments to consider later on. Perhaps I may ask the noble Lord, Lord Elton, whether the certificates, which he has explained are maintained within the department, presumably in the Secretary of State's office, will be accessible to any scrutiny whatever, or whether they will only be wheeled out, as I put it, in a case where someone has sought to access the data and it is discovered that it is covered by a certificate under Clause 27(2). Will it only be when somebody asks for forbidden data that the existence of the certificate is discovered, or will there be a list which the registrar or the public may access in the department?
§ Lord Elton
No, they will not be available for display; but they will be produced as individually required.
§ Lord Avebury
I should like to give the matter some further thought and perhaps discuss this again on Report. In the meanwhile. I am grateful to the noble Lord for the information and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 27 agreed to.
§ Clause 28 [Crime, taxation and immigration control]:
§ 4.45 p.m.
Lord Elwyn-Jones moved Amendment No. 38:
Page 21, line 24, at end insert ("or").
The noble and learned Lord said: We now come to the most criticised, universally condemned provision in the Bill, namely, Clause 28. On this occasion and in Amendments Nos. 38 and 39 we seek to delete the part of the clause, and indeed of the Bill, which has come under most attack. As noble Lords will see, the clause provides that:
Personal data held for any of the following purposes.…
(d) the control of immigration"—
a very wide concept indeed, greatly lacking in particularity—
are exempt from the subject access provisions in any case in which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection".
They are listed:
§ Under the umbrella of these provisions highly confidential and sensitive information could be secretly disclosed to the police, the immigration authorities and others without any indication on the data protection register that anything of the kind was even possible, and of course with no knowledge of what was taking place communicated to the person affected.1274
§ We have many objections of substance to this proposal. I can put the matter briefly because we have, to some extent, traversed this ground before. My first objection and that of noble Lords in many parts of the Committee will be that the provision runs contrary to the European convention. That convention simply does not permit derogation from its terms for the benefit of immigration control. There is no reference whatever to immigration control in the convention, and in my submission to endeavour to justify it under Article 9 has no foundation whatever.
Article 9 provides that:
No exception to the provisions of Articles 5, 6 and 8"—
which provide the safeguards for the data subject—
of this Convention shall be allowed except within the limits defined in this article. Derogation from the provisions of those articles shall be allowed when such derogation is provided for by the law of the party and constitutes a necessary' measure in a democratic society in the interests of:
§ The whole purpose of this convention and this machinery, as its terms show, was to extend the safeguards for everyone's rights and fundamental freedoms, and in particular the right to respect for privacy taking account of the increasing flow across frontiers of personal data undergoing automatic processing. Therefore, it is not surprising that the provisions for exceptions should be so carefully restricted.
§ In our submission, it is an abuse of language to suggest that this reservation of the control of immigration is for the saving of the rights and freedoms of others. On the contrary, it would, or could, impinge upon, and we submit infringe, the rights and freedoms of individuals and in particular the rights and freedoms of those who have come to live among us, who will be the particular objects and subjects of this provision regarding immigration.
It is, we submit, quite grotesque to suggest that restricting subject access to information held by immigration control outside the area of crime is justifiable. When matters of a criminal quality arise we already have included in Clause 28(1)(a):
the prevention or detection of crime
Therefore, it cannot fairly and honestly be said that this has to do with matters of prevention or detection of crime. One is forced to ask: what is the purpose of this provision of control of immigration being made the subject of exemption from the protective provisions of this Bill?
§ As I have said, we think that we shall be in grave danger, putting it moderately, of our being found to be in breach of the convention, thereby undermining the whole purpose of this exercise, which is to ensure that the terms of the convention are adequately and honestly provided for in our legislation. If we fail in that, the benefits we hope to derive from it for our own subjects and, above all, for those involved in the international, commercial, banking, insurance and other fields will be denied. We therefore, putting it briefly, submit that this provision is in danger of being oppressive, deeply worrying to the immigrant 1275 community living among us, and one which is in grave danger of infringing the provisions of the convention, therefore making our adhesion to it unacceptable.
§ 4.52 p.m.
§ Lord Donaldson of Kingsbridge
Unlike most other noble Lords in the Committee I do not think that I have spoken on this clause before. I think everybody else has. However, the noble and learned Lord has said enough for me to be brief. From these Benches, and I think from all parts of the Committee, we are ashamed of the fact that this will almost certainly fail to satisfy the convention. We have had too many cases in the past where this has happened. We feel that it is important not to expose ourselves again, particularly in such a disagreeable way.
When the noble Lord, Lord Hatch, was discussing this. I think at Second Reading, he said that this was an insult to the black and immigrant population in this country. The noble Lord, Lord Elton, seized on the only possible excuse he could make, which was that the other day there was a Bulgarian who appeared in the newspapers in the same way. I shall not stretch this. The fact that one man is a dark but not coloured immigrant is nothing whatever to do with the argument.
The argument is absolutely clear. Of course this applies to all immigrants of whatever nationality, colour, or anything else, but the fact remains that of those immigrants I cannot give a figure but over 90 per cent, must be from the Caribbean, Africa, India, or South-East Asia and not from Europe. The noble Lord knows this perfectly well. I rub it in because I thought his was a rather feeble reply, and I do not think that he has a better one.
There is not any doubt that this is not—at least in my opinion—a Government intention secretly to annoy the immigrants. It is a purely bureaucratic attempt to avoid possible trouble in one or two rare instances. The instances that the Home Office have given of what possible use you could make of this exemption in relation to immigration to an action which was not criminal are too feeble to go into. They are unusual, unlikely to happen, and extremely unimportant if they do.
I do not think we want to go over the arguments again and again. They are simple. We believe this to be an unnecessary and, in its results, more or less disastrous contribution to the social life of this country, which is now a mixed community, and proud to be so. We have to be careful how we treat people who have not been here and were not bred here all their lives, and who are beginning in different parts of England to settle down extremely well, and in one or two parts are not settling down so well. This is extremely dangerous and entirely unnecessary. I am happy to support the noble and learned Lord.
§ Lord Hatch of Lusby
There are three points I should like to make to the noble Lord the Minister. He will remember that on Second Reading he made a statement contradicting an instance which I had given earlier. In that statement—and I do not think I am doing him an injustice in telescoping it—the burden of 1276 the statement was contained in these words:it does not abolish or diminish any shred of existing civil rights available to our citizens".—[Official Report. 5/7/1983: col. 543.]I had already pointed out that in the present circumstances an immigrant who is asked for medical data for the purpose of immigration control is given a form which he signs so that the DHSS can obtain the information and pass it on to the Home Office. The question that I want to put to the noble Lord—he did not allow me to intervene in his speech, you will recall—is this. Is it not the case that this clause takes away from an immigrant the right to know that data concerning him, or her, is being obtained by the Home Office?
Is it not the case, as I pointed out in my Second Reading speech, that under this clause it is perfectly possible, and will happen, that medical data passed on by the the doctor in perfectly good faith to the computer, which the doctor does not control and does not own, can then be obtained by the Home Office without the knowledge of either the doctor or the patient? It is for this reason that the British Medical Association itself has expressed its concern. That is the second point I want to make, which naturally leads on from the first.
The BMA has informed me that according to its handbook of medical ethics it is stated:In all medical records information should be regarded as held for the specific purpose of the continuing care of the patient, and should not be used without appropriate authorisation by the responsible clinician, or the consent of the patient, for any other purpose".Naturally the BMA and its members are deeply concerned that this clause can breach this first principle of medical ethics of the relationship between the doctor and the patient, and in many cases without the knowledge of either doctor or patient. Is this not, to return to my first point, a diminution of the existing rights of the immigrant population?
Thirdly, my noble and learned friend Lord Elwyn-Jones has stressed the importance of what we consider to be, and what many lawyers consider to be, a breach in the European Data Protection Convention, and he has quoted it. I would add to that that, to the best of my knowledge, no other European country has legislation which, for the purpose of immigration control, exempts the protection of individual privacy so far as computer data are concerned. Why is it necessary in this country? I would suggest that if it is not necessary in the rest of Europe, it would be wise for the Government to consider whether they should continue to thrust forward what, as my noble and learned friend Lord Elwyn-Jones has already pointed out, has been seen as a highly objectionable clause on all sides by those who have considered this issue since we started debating it early this year.
Lastly. I make an urgent and desperate plea to the Minister that as the issue of immigration control is not in any way connected with crime, with breach of the law or with fraud, he could tell the Committee this afternoon that he will reconsider this question between now and Report stage, and particularly consider whether he cannot remove this objectionable, insulting linking of the purposes of immigration control with criminal and fraudulent activities. If he thinks it is essential still to have some form of immigration control within the Bill then he should separate if from 1277 these, have a clearer definition of it and remove the objectionable aspect. Not only Members of your Lordships' House but members of many other organisations—who frequently support his own party—have found it just as objectionable as we have.
Otherwise it would seem as though the Government consider that there is a special kind of morality which is peculiar to immigrants. They do not have to break the law or be guilty of fraud, but they may do things that the Government do not like or which the Government do not think are right, but which the Government have covered here in a dangerously wide and loose phrase which can only bring pain and insecurity and, from these Benches, anger if they are persisted with.
§ Lord Swinfen
I do not think the noble Lord, Lord Hatch of Lusby, was in the Chamber when this Bill was before your Lordships previously when I asked the Minister whether each Ministry would have to register separately. I was told that they would and that computers were not all registered as one under one system by the Government.
On Tuesday of this week we were told, in answer to a question of mine, that if computers were interlinked in any way, that linkage would also have to be registered. I think, therefore, that the noble Lord will find that the Home Office is unable to ask its computers about details of medical records of immigrants or anyone else because it would have to have permission to ask the Department of Health and Social Security. If the two computers were connected that would be public knowledge because they would have to be registered.
§ Lord Avebury
To make one remark on the words of the noble Lord, Lord Swinfen, it is not necessary for computers to be linked for information to be transferred from one to another. It can be done by other means, as the noble Lord, Lord Swinfen, will be aware. We are talking here about the subject access provisions. We shall come on to the subject of transfer of data from one system to another when we discuss Clause 28(2). The noble and learned Lord, Lord Elwyn-Jones, has already said most eloquently everything that needs to be said about subject access. I need add very little to the remarks that he made because I am sure the Committee would like to reach a decision. It is about the fourth time that we have discussed the matter and it is unlikely that at this late stage I could produce any new points that the Minister has not yet considered.
I rose to my feet to give the noble and learned Lord my support and to say that when on the last amendment I was talking about the possibility that a less enlightened regime might at some future date take office, I can hardly imagine that, whatever its nature would be, it could pass a measure that was more horrific in its possible consequences than Clause 28. Therefore, I entirely support what the noble and learned Lord has said. I hope that your Lordships will take action to see that this provision is struck out of the Bill.
§ 5.6 p.m.
§ Lord Elton
Although as the noble Lord, Lord Avebury, has made abundantly clear this is a very 1278 familiar issue, I have listened with the greatest of interest to the arguments put forward by noble Lords on matters that are both very complex and, I readily concede, highly sensitive.
Your Lordships will be aware from lengthy exchanges on this subject when we dealt with it under the earlier Bill of why computer records are a necessary part of immigration control. The immigration officials handle a very large flow of individuals through our entry ports. They also deal with a considerable number of applications from foreign nationals for an extension of stay and other matters. Ready access to records is clearly essential for this purpose and the need to call them up swiftly, efficiently and economically makes a computer a necessary instrument.
Most of this information is purely factual and routine. It will be of little but administrative interest, and it will be freely accessible to the data subject in the normal way. But some of it will be very different in character. It may relate, for instance, to smuggling or other criminal activities. Nobody in this House would want those activities to go unhindered. That is why the Bill carries exemptions for the apprehension and prosecution of offenders from both the subject access and the non-disclosure provisions. Their Lordships' amendment is not concerned with those. A very few computer entries include Revenue matters; a history, perhaps, of tax evasion. Those are similarly and properly exempted and, similarly, the amendment leaves the exemptions intact.
Between the very large number of entries that are perfectly uninteresting and routine and the much smaller number of which the criminal or fiscal content carries exemption, lies a third category, also a small one, upon which the present amendment bears. That category is made up of entries which contain information about the data subject which does not relate to the prevention or detection of crime, to the apprehension and prosecution of offenders or to the assessment or collection of any tax or duty, but which reveals that the person in question is not, or may not be, qualified to enter or remain here under the immigration rules. That category also carries exemption under the Bill and it is that exemption which the amendment seeks to remove.
No one looking at the size of these islands, and at the number of people who at present live somewhere else but who would like to live here, can doubt that control of immigration is not only desirable but essential. Our discussion is not about that. It is about how it should be done. At this stage I must ask your Lordships to consider immigration officials not only as keepers of the gates of this country, admitting those with a right to come here and remain, and turning others away; we have to see them also as the guardians of the principles of nationality and right to reside. Their duty is to discover those who have entered this country and settled here without the right to do so—stowaways in the ship of state. It is the success of both sorts of official activity together that serves not only to detect those who breach the regulations but also to deter attempts to do so by large numbers of others.
That deterrence is an essential part of the means by which the state protects its individual citizens from the encroachment upon their rights and freedoms that an 1279 ineffectively controlled flow of immigrants would undoubtedly produce. It is for this purpose that the Bill makes exemptions. The first is exemption from subject access by people concerned with illegal entry or residence in this country to personal data held by the authorities which would reveal to them the extent to which the authorities were aware of them and of the means of identifying them. The second is exemption from the non-disclosure provisions, so that people holding data necessary either for the officials I have called "the gate-keepers" or for those I called "the guardians" are free to pass it to them if they so wish.
At that point, may I remind the noble Lord, Lord Hatch, that there are no rights at present about the use of information; there are only certain voluntarily observed administrative arrangements by the Department of Health and Social Security, doctors, or whoever holds the information. The exemption in the Bill allows those arrangements to continue just as they do now, and I can assure the noble Lord that the Home Office will certainly continue to obtain the written consent of the person concerned before medical information is sought from his doctor.
The number of individual cases altogether will not be large but the public interest at stake is very large indeed. When I last addressed your Lordships on an amendment to the same effect, your Lordships made it clear that they well understood the reasons of Her Majesty's Government for making these exemptions. They did so on the basis of the arguments I put before your Lordships today, supported by others in more detail that I have not advanced. I hope that your Lordships will not forget that this issue was decided once before.
I have outlined the central arguments against the amendment and I have explained the case for the exemptions and why we believe they contribute to the protection of the rights and freedoms of our individual citizens. Without elaborating further on that side of the equation, let us look at the other. As I have said, I have listened to it with care. Many individual points have been made, some perhaps with a good deal of hidden complexity; but the overall impression I have got is of a deep anxiety that powers are being taken in the Bill which, though they may be little used, give a great many of our own citizens a feeling that records about them are being secretly kept, perhaps to their detriment, and that information about them is being secretly sought, perhaps to their very great harm. Noble Lords have been at pains to suggest that the whole weight of this anxiety and this part of the Bill is directed against black and coloured people. They have said that they would thus feel themselves to be discriminated against by the very state which, in another statute, declares such discrimination to be totally unacceptable.
I believe those fears to be entirely misplaced. The regulations, and therefore the exemptions, bear equally upon those who come to us from every corner of the globe and they bear also, incidentally, upon whites as well as blacks who may be involved in immigration rackets. But be that as it may, we recognise the anxiety expressed by noble Lords and we recognise that, ill-founded though it is, it may be reflected and shared (as the noble and learned Lord. 1280 Lord Elwyn-Jones, has suggested) in important parts of our own community outside this Chamber. That, as the noble Lord, Lord Donaldson, has said, is a matter of the gravest importance. I do not wish, therefore, to sweep aside everything that has been said in favour of this amendment, even though some of it has been very wide of the mark. We would rather take time to reflect further on everything that has been said on this issue by your Lordships and to consider, as we have been asked to do, whether this anxiety can be in some way allayed. I very much hope therefore that noble Lords opposite will forbear to press their amendment to a Division this afternoon.
§ Lord Donaldson of Kingsbridge
Before the noble Lord sits down, may I ask him to clarify one point? He said that, although there were a number of aspects which did not involve breaking the law, it was important for the immigration authorities to know them. I do not know what they would be. But if they do not break the law why should they not say so? Why must they conceal from the data subject that they want to know whether he had an aunt in Timbuktu or somewhere? To me, the noble Lord has made no case at all and I think that before we finally vote, whether now or on Report, we must have an explanation. It really has no meaning whatever. If the immigration authorities think that somebody may be trying to get here, or approach his cousin, or something of that sort, surely if it is not illegal they can say, "We are trying to find out because we thought you wanted to approach your cousin". I cannot understand it at all.
§ 5.16 p.m.
§ Lord Hatch of Lusby
Can I perhaps save the noble Lord from getting up twice by adding to this before he sits down? Can he clarify absolutely crystal clearly whether I heard him aright when he said that the Home Office, before asking for medical information for the purpose of immigration control, would ask the permission of the doctor? Secondly, would he address himself for a moment to the question I asked him as to why it is necessary for the United Kingdom to include this exemption under the term of immigration control, when no other European country does so?
§ Lord Elton
I think the issue to which the noble Lord, Lord Donaldson, directed your Lordships' attention was the issue that criminal information was already covered by exemptions and that non-criminal information must be so innocuous that there is no harm in revealing to the person to whom it related that it was being sought. In fact, as I understand it, the regulations applying to those who are and who are not entitled to live in this country are complex and are not entirely a part of the criminal law. There are occasions when people in this country seek to foster the introduction or the concealment in this country of people not entitled to be here. It is not in the interests of controlling such activities to reveal at the outset of an inquiry that this information is being sought.
If the requirements were a part of the criminal law, the noble Lord would have no difficulty in following the argument, if he will forgive me. The fact that they are not does not make them any less important for the regulation of the people who come to live in this 1281 country and who are not entitled so to do. I suppose it would be possible to make them criminally enforceable. I do not put that forward as Government policy because it would be a draconian measure; all I am saying is that where immigration officials need to seek out operations—where there are spurious language schools, for instance—it does not make a lot of sense to announce the beginning of the inquiry by a loud knock on the door and to say, "We are asking questions about you".
As to the noble Lord, Lord Hatch, I can indeed repeat what I said: the Home Office will certainly continue to obtain the written consent of the person concerned before medical information is sought from his doctor. As to why other countries do not have exactly similar legislation, I can only say that they do not have exactly similar circumstances to cope with.
Having said all that, may I remind your Lordships that we are aware of the general anxiety which lies behind this amendment. We have taken serious note of it, afresh, as a result of your Lordships' concern. Your Lordships' earlier concern may have done something to heighten that anxiety; I know not. But we see this as a real issue. It would be quite wrong—and I hope that your Lordships will not put me in the position of having to do this—to try to slam the door on consideration of this by marching firmly into the Lobbies against it. But if that is what noble Lords opposite want us to do, then I shall have to advise my noble friends so to do. I think it would be wise that I should take this to my right honourable friend; that we should consider developments in this now familiar but no less sensitive and important field in the spirit we have been asked to do; and that is what I hope noble Lords opposite will decide.
§ Lord Mishcon
I am perfectly sure that the Committee will have heard with a great degree of pleasure and, if I may say so, with quite a degree of admiration what the noble Lord the Minister has said. I know he will have in mind that not only is this introduction of immigration control causing a great deal of concern, but it is a new measure in this Bill in the sense that when the Government's White Paper came out and the question of exemptions was thought of in regard to subject access and non-disclosure, immigration control was not mentioned at all. It is significant that that should be so, and that the White Paper went on to say, so far as I remember, that the exceptions to the rule must be made as small and as few as possible.
I wonder whether the noble Lord the Minister will bear with me for a moment, if I take the liberty on behalf of my noble friends of saying that we welcome what he has said. We are not anxious to have a Division for the sake of a Division. What we are most anxious about, bearing in mind especially that your Lordships will not further consider this Bill until next October at Report stage, is to know where we have got to.
In these circumstances, could the Minister help us by saying whether the further consideration which he will be giving with his right honourable friend will include the possibility of taking this immigration control out of the exemptions that we have been discussing? Obviously, I do not ask him for an undertaking in advance that that will be the result, but 1282 is he prepared to say that the matter that is being reconsidered will be the total exclusion from this clause, or indeed from any other similar clause, of immigration control records? I repeat that I am not asking him to say what will be the result of that reconsideration, but he would help us tremendously in coming to a decision if he could say that that will be the item that he will be reconsidering with his right honourable friend the Secretary of State.
§ Lord Elton
I shall be very careful in my reply to that quite understandable intervention, because I do not want in any way to inhibit what now takes place. I have said that we are aware of the anxiety to which the amendment is addressed and that we will seek to alleviate that anxiety, if that appears to us both proper and feasible. By what means that might be, I really could not say; and if I were to answer the noble Lord's question in terms I am afraid it could only be read outside this Chamber as making one solution or another more or less likely.
What I will try to do—and I am sufficiently green in matters of administration not even to be able to undertake it—is to see that our amendment, if there is an amendment, when formulated, goes down sufficiently early for the noble Lord to get together with his friends, because I think we shall be dealing with this very soon after we return. I would hope to give him enough time to consider with his friends before we return whether what we are offering is, in fact, what he is looking for. I have gone on for rather a long time. I hope that I have not been too precise.
§ Lord Elwyn-Jones
In view of the indication of the noble Lord on behalf of the Government that, at any rate, a fresh look is being given to this most difficult and very serious problem, we shall await impatiently the arrival of the Fall, and we hope it will include the fall of this proposal in the Bill. In the circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 39 not moved.]
Lord Avebury moved Amendment No. 40:
Page 21. line 31. leave out subsection (2).
§ The noble Lord said: I listened with great pleasure to what the noble Lord the Minister just said, and I certainly hope that when we come on to the next amendments on Clause 28 he will be able to confirm that what he has said applies equally to the nondisclosure provisions as to the subject access provisions of Clause 28. The amendment that I now move deals with the non-disclosure provisions in general, and not with the immigration aspects in particular; but we come on to the immigration aspects in a later amendment, and, of course, the remarks that I am about to make apply to them as they do to the other parts of Clause 28(2).
It seems to me that there is no point in going to the length of a Bill in establishing the machinery of the registrar for the protection of the data subject, and in particular for the enforcement of Principle No. 3 of Schedule 1, which states that,
Personal data held for any purpose or purposes shall not be used or disclosed in any manner incompatible with that purpose or those purposes",
and then, in this subsection, encouraging data users to violate that principle by telling them that, otherwise, certain completely different purposes are going to be prejudiced.
§ The Minister made it clear on Tuesday that, in the Government's opinion, the data user ought to have an unfettered discretion in this matter. He is not to be required to consider whether any of the matters mentioned in subsection (1) will actually be prejudiced. He is to give no thought whatsoever to the principles that he will apply until, for example, a police officer appears on his doorstep and asks for the data. The Minister said that the only sensible answer to the question of whether or not the user might wish to disclose under Clause 28(2) is, "I really have no way of knowing until the police, or whoever, come along and ask me." So the data user, having played his cards very close to his chest, in accordance with the Minister's advice, is then faced with the need to make an ad hoc decision on the spot.
I shall take the Minister's example, so that we have no unfair advantage in the argument, by constructing another argument which suits our case better. The Minister's example was of the data user who has a burglary at his premises, and the police come along and say to him that if they had a particular employee's address and they knew whether or not he was off work on a particular day, it might be helpful in pinpointing the identity of the burglar. In the case which the noble Lord was citing, failure to disclose was not likely to prejudice the apprehension of offenders. According to the Minister, the police say only that the information might be helpful, although subsection (2) does not read,
Personal data are exempt from the non-disclosure provisions in any case in which …(b) the disclosure might be helpful for any purpose mentioned in that subsection.
The words used are "likely to prejudice", and they will not be easy for the employer to construe unless, as I said earlier, he takes the word of the officer for it.
§ Here I think that an interesting question arises, and the noble Lord might help me on this when he comes to reply. What remedy would the data subject have if the employer gave the information to the police officer in that manner, simply on the police officer's unsupported assertion that prejudice was likely to occur in relation to apprehension of offenders? Would he have reasonable grounds for believing that failure to make the disclosure in question would be likely to prejudice any of those matters simply because that was what the officer told him, or should he have taken further steps to satisfy himself that that was so? If he does not have the faintest idea whether or not his failure to disclose would prejudice the apprehension of offenders, is there anybody to whom he can go for advice? Would he be able to ask the registrar? Remember that, if he gets this wrong, he renders himself liable to proceedings for contravening a provision mentioned in Clause 28(3)(a). He will have no defence if the court finds that he did not have reasonable grounds for believing that failure to disclose would prejudice any of those matters. This is a complicated legal question which I should not like to be faced with as an employer, or as any other data user.1284
§ There is another question which a data user has to approach. It was the Minister who pointed it out. Does the public interest override the obligation of confidence? How on earth is the data user to make up his mind on that? If his policy is to disclose whenever he is requested to do so by a police officer, or an inspector of taxes, or an immigration officer, relying on their assertion that failure to do so would prejudice any of those matters, he runs the risk, I suggest to your Lordships, that the whole edifice of the Bill may be fatally undermined, because there would then be large-scale disclosure for all of the purposes mentioned in Clause 28. That would result, I suggest, in an evaporation of public confidence in the security of data throughout the whole of commerce and industry, and indeed in the public sector as well.
§ If, on the other hand, he decides that he is never going to disclose under Clause 28(2), would equally serious consequences follow? I understand that the Citizens' Advice Bureaux, for instance, have declared that they would not seek to rely on the protection of Clause 28(2). No doubt they will make this clear when they give particulars to the registrar. Although the Government were not enthusiastic about my earlier amendment, which would have required data users to say whether and, if so, in what circumstances they would disclose for each of the purposes mentioned in Clause 28(1), there is nothing, as I understand it—perhaps the Minister will correct me if I am wrong—to prevent a data user from voluntarily making such a declaration to the registrar.
§ I think that many, such as the National Association of Citizens' Advice Bureaux, would like to take advantage of that in order to reassure their clients. Inspectors of taxes may want to reassert the absolute confidentiality of taxpayers' affairs, except as already provided by statute, and to assist the police in the rare cases of murder and treason. For the rest, the Government are imposing on data users under this section the duty of making judgments which they cannot reasonably be expected to make and which they are ill-equipped to carry out.
§ So far as Government departments, which are data users also, are concerned, this subsection is inevitably going to deal a very heavy blow to public confidence. In spite of the noble Lord's undertaking that in the case of medical records the permission of the patient would always be sought before the records are accessed, that is only one small part of the anxiety which may be caused to the public if this subsection is not substantially altered. I beg to move.
§ 5.34 p.m.
§ Lord Elystan-Morgan
I wonder whether the Committee would be so kind as to allow me to speak not only to this amendment but also to Amendment No. 41. The view that we take is that Amendment No. 41 seeks to bring about exactly the same result as that which is enshrined in the purpose of Amendment No. 40. The effect of Amendment No. 40, if carried, would be to delete completely the provisions of subsection (2) of Clause 28. It would still mean of course that although no reference was made in that part of the Bill to those conditions, disclosure would still be possible under compulsion of law. That is the very wording of Amendment No. 41.
1285 In the submission of those of us who sit on these Benches, the provisions of subsection (2) are quite as objectionable as the provisions of subsection (1). Subsection (1) deals with the right of a data subject. Subsection (2) deals with the authority of a data user to communicate some very volatile information to a third party who may be very hostile to the interests of the data subject—as, indeed, the noble Lord, Lord Avebury, has so clearly pointed out.
The area which this particular subsection covers is about as sensitive an area as one could ever have in our society. It is impossible, of course, to list the number of people or, indeed, the types of groups that would be prejudicially affected by this provision if it were allowed to go through unamended. Nevertheless, one can say that it is likely that the doctor-patient relationship will be more affected by this provision than possibly any provision that has ever been passed in any other Act of Parliament. It does not of course legislate to the effect that a doctor must disclose. What it says is that he can disclose. In our submission, it means in many cases that there will be active encouragement to disclose: that a climate will have been created in which it is more likely that disclosure will take place rather than less likely. Nevertheless, what is important is that whereas now millions of confidences are passed to doctors, in the confident knowledge and belief that they will never on any account be passed to anybody else, that confidence can no longer subsist once this provision becomes law.
It is therefore not unnatural that there has been very heavy objection to this provision. My noble and learned friend Lord Elwyn-Jones referred to it on a previous occasion. He spoke of the memorandum which was sent by Sir Norman Lindop's Committee to the Home Office on this matter. The phrase used was this—and this is not the phrase of people who are involved with this legislation in any political partisan way: it is the phrase of people who were involved with the Second Royal Commission Report on this particular matter:that it would be a palpable fraud upon the public if this subsection were allowed to become law".Even stronger were the representations of Sir Douglas Black, the President of the Royal College of Physicians, in a letter which was sent to the Home Secretary in or about March of this year. He was speaking on behalf of a group of associations which included the British Medical Association, the British Association of Social Workers, the British Dental Association, the British Psychological Society, the Council for Professions Supplementary to Medicine, the Health Visitors' Association, the Royal College of Midwives and the Royal College of Nursing. These are the measured terms of Sir Douglas Black's letter:The group has asked me to express to you as a matter of urgency their grave concern about the effect of Clause 28(2) of the Bill on the confidentiality of health information and on public confidence in that confidentiality".I do not think there is anything which anybody in this Committee, with great respect, could say which could possibly add to that very sincere expression of fear on the part of those most distinguished bodies associated with medicine.
As I say, the wording of Amendment No. 41 does not add anything, in effect, to the amendment which 1286 the Committee is now considering. Amendment No. 40. But it does perhaps spell out what the situation would be if subsection (2) were to be deleted completely. The compulsions of law would still remain. It would still be possible for this information to be ordered to be disclosed—for example, by a court making an order under the Bankers' Books Evidence Act or, indeed, by an order made by a court in respect of powers that are enshrined in very many of our fiscal Acts: in Acts relating to import duties and control. All those powers would still remain, as would the general power to issue a subpoena.
The compulsions of law in this realm are very considerable. It is our argument that they are sufficient. By the deletion of this subsection, one avoids driving what would otherwise be a massive salient into the whole structure of this legislation.
§ Lord Elton:
I must begin with an apology because I am going to repeat myself. I explained the need for the exemption in Clause 28(2), and sought to dispel some of the misapprehensions about it, at some length in our Committee consideration of last Session's Bill. I did so again on Report, and I did so once more at Second Reading of the present Bill. I now find myself required to do so yet again. I do not believe that arguments gain strength from constant repetition. At least, that certainly goes for other people's arguments and therefore I accept that it must go for mine as well. But I have no choice, because noble Lords opposite have trod the same measure again and I must join in.
We have before us not one amendment but two. As the noble Lord, Lord Elystan-Morgan, has said, their effects are identical even if they differ in tone, and I must refer to both. Both discard from the Bill the general exemption of personal data from the nondisclosure rules for particular purposes. The amendment in the name of the noble Lord, Lord Avebury, and his ally does so with no gesture of apology for all the difficulties which would then arise, or for all the purposes which would no longer be served. The amendment in the names of the noble and learned Lord, Lord Elwyn-Jones, and his friends makes such a gesture. But as the noble Lord, Lord Elystan-Morgan, has pointed out, because of the operation of Clause 33(4) it is not so much an apology as a tautology.
The exemptions with which both amendments concern themselves are all those relating to the purposes of Clause 28(1). We are not now considering the particular merits of law enforcement, taxation or immigration control; we are discussing the general principle that there are certain ways in which the state protects the public interest which ought not to be obstructed by introducing a brand new prohibition against citizens willing to assist its agents in their duty. The movers of these amendments want to introduce what is in effect a brand new prohibition. Those who at present innocently hold information which, in the hands of Customs and Excise, could lead to the smashing of an infamous gang of heroin importers are at present at perfect liberty to give that information to the authorities. They can do so without let or hindrance; and they can do so without informing those to whom the information relates either that they are doing so or that they may do so in the future.
1287 To my mind, that is as it should be. If a wholesaler of goods innocently holds information which could lead to the exposure of evasion of duty by the importers of those goods, he is at liberty, as the law now stands, to pass on that information. The same goes for us all. If a crime has been committed or a law evaded we are perfectly free to help put the matter right; whether we are giving the police information to test an alibi, or giving the Inland Revenue, Customs and Excise or immigration officials the jigsaw pieces they need to help them enforce the laws which we in Parliament have enacted for the greater good of the people. We are free to do so without preliminary notice and without advertisement. We are free also not to do so. That applies to all the information we have—whether it is in our heads, in our diaries, or in our filing cabinets—except in those cases where already the law tells us we must give the information.
The only difference now is that such information may not be in our heads, our diaries or our filing cabinets but may be on our computers. Once there, noble Lords who have spoken say it should be sacrosanct; that the computer should be to the user as the confessional is to the sinner—a safe repository of the most damning as well as the most trivial confidence. They say that only if such people are publicly warned that their fellow citizens may help to apprehend them with a vital clue to the identity of the fraudster who has cheated the Inland Revenue of millions or even hundreds of pounds, of the rapist who has ruined a dozen fives, or of the drug smuggler who has brought thousands in misery to their deaths, will they be at risk of justice and detection.
The same applies to the routine as it does to the exceptional. Information of assistance in investigating a burglary, a road traffic accident or a mugging consisting of no more perhaps than an address, a work record or physical description is equally important to the law enforcement agencies—yet would be equally impeded under the amendments.
Let me say again—as I hope I have made clear before—that there is no question of Clause 28(2) empowering the police or anyone else to require information. I am grateful to noble Lords who now accept this, but there is still such a belief in some quarters—encouraged perhaps by some of the more extravagant claims made at an earlier stage (and not only in your Lordships' House) that, under Clause 28(2), data users are compelled to disclose data.
§ Lord Elton
I always find it charming when the noble Lord, Lord Avebury, makes himself heard above my voice when he is seated. He will forgive me if I do not respond.
§ Lord Avebury
I wonder whether the noble Lord can tell us who said it, because nobody in this Committee has ever made such a claim.
§ Lord Elton
The reactions of people and comments which the noble Lord himself has made suggested that this must be the case, because otherwise there is no explanation of them. But it is a belief that has been 1288 more generally current among many people outside this Committee.
§ Lord Elton
I shall be obliged if the noble Lord will let me get on, or else stop me.
Nothing of the sort is the case. Clause 28(2) is 100 per cent, neutral. There is neither encouragement nor legitimisation of such disclosures. Some professional bodies with ethical codes of confidentiality do now recognise, as they have always recognised, that in certain circumstances the public interest will outweigh the obligation of confidence and that information can be given. It is so with Clause 28(2). In the same way, it acknowledges that holders of information can, if they themselves judge it right and proper so to do (and it is a decision entirely for them), disclose data where the interests of crime prevention, and so on, outweigh those of confidentiality. And they can refuse to do so when they do not.
To enable that to happen, the prohibitions on unregistered disclosures which the Bill erects elsewhere will not apply here, as the Bill is now drafted. That leaves the balance of consideration by the burgled data user, or the data user in any other way involved, exactly where it stands at present. It may be difficult for him to decide what to do, but it will be no more difficult than at present. I am really puzzled by the assertion made by the noble Lord, Lord Elystan-Morgan, that this will undermine confidence in the medical profession. They are free under the law to reveal all now; they are free under the law to reveal nothing now. Exactly the same will be the case if this Bill is passed in its present form.
My sorrow is that we have failed to get that across to all the bodies which noble Lords have mentioned and to which the noble Lord, Lord Elystan-Morgan, referred a moment ago. That is the central issue to which this amendment is addressed, and I believe that it is mistaken.
Before I sit down, may I say two things to the noble Lord, Lord Avebury? First, I gave an undertaking to the noble Lord, Lord Hatch of Lusby, about inquiries by the Home Office. Inadvertently or otherwise, the noble Lord imputed to me an undertaking that all inquiries about health records will be notified to the data subject. I would not at this notice be able to endorse so wide a policy statement; I have merely told the noble Lord what I am in a position to say.
Secondly, I have a note on the position of the data user in deciding whether or not to disclose information. At the end of the day. the user will be able to use as his defence against a prosecution for unauthorised disclosure the fact that he had reasonable grounds for believing that the disclosure would have been likely to cause prejudice: that is spelt out in Clause 28(2). But the key point is that the user is free to make his own decision, as he does now—but he will of course know that if he decides wrongly he may be open to prosecution. That is surely the kind of disincentive to disclosure which the noble Lord, Lord Avebury, himself would want.
§ 5.50 p.m.
§ Lord Avebury
If that is all the noble Lord the Minister has to say then I am extremely disappointed. 1289 He has not answered my direct question at the beginning of my remarks as to whether or not the undertakings he had given the noble and learned Lord, Lord Elwyn-Jones, about subject access provisions also extended to the non-disclosure provisions, because in my opinion they are far more important.
§ Lord Elton
If the noble Lord will be kind enough to give way, I regret that I mislaid my note on that point. The answer is that indeed they do; the consideration extends to the whole of Clause 28 and therefore to both the subsections the noble Lord is interested in.
§ Lord Avebury
That is certainly a relief, because it will shorten the discussion on the next amendment when we come to consider the question of nondisclosure as it affects immigration records in particular. But, even so, the noble Lord has really not given any guidance to the data user, he has simply repeated the phraseology we find in the Bill, that the data user must have reasonable grounds for believing that any of the purposes mentioned in subsection (1) are prejudiced if he is to hand over the information.
The noble Lord did not answer the question I put, which is really of great importance for the mass of data users who will have to try to interpret this Bill: that is, whether when an individual police officer, customs officer, tax inspector or immigration officer comes to him and he makes the unsupported assertion that the purposes in question are going to be prejudiced, that will be a sufficient defence when the data user finds himself in court for a breach of confidentiality. If this is the way "reasonable grounds" are to be interpreted it makes the Bill quite simple from the point of view of the data user, but it could encourage such a mass of disclosures as to undermine public confidence in the Bill. That is why I asked the question and it is a very important one.
The second reason for my disappointment with the Minister's answer is that the examples he gave were all drawn from the private sector, whereas the anxiety felt in the minds of the public about the exemptions from non-disclosure provisions relate almost entirely to what may happen in the public sector, to the exchanges the noble Lord, Lord Swinfen, was talking about earlier between one Government Department and another, and whether or not, because of the permissive character of Clause 28(2), these are going to be widened beyond what is the practice at present. I have already mentioned what the Inland Revenue do, but there is a general principle operating here, which was outlined in the report of the Royal Commission on Standards of Conduct in Public Life, paragraph 94:A substantial conflict of public policy is involved in any proposal that information collected under compulsion by an official agency for a specific purpose should be released to any other agency for a different purpose. Although there are some exceptions, the philosophy behind most legislation for at least 50 years has been that when the State takes power to require an individual or firm to surrender a degree of personal or business privacy it gives in return an assurance that the information thus coming into the hands of an official agency will be safeguarded and used for no extraneous purpose. We are aware that there is public anxiety about the transfer of personal information between official agencies and modern methods of data storage have sharpened this anxiety".That is the crux of the matter: whether or not the information contained in one department is going to be transferred to another under Clause 28(2) without 1290 the knowledge of the data subject and without any remedy being available to him.
Equally, there is the lesser case, which the noble Lord concentrated on, where the private sector data user is asked for information, generally not in the dramatic circumstances the noble Lord outlined where there is some mass conspiracy to smuggle heroin, but when some far lesser problem has arisen in connection with the apprehension of offenders, detection of crime and so on. It is in these smaller cases of a day-to-day nature, thefts and burglaries and so on, which are infinitely more common than the sort of serious crimes the noble Lord mentioned, that the data user will have an impossible task. This is why I believe subsection (2) of Clause 28 as it stands is unworkable and will bring the Bill into disrepute. If the noble Lord is not prepared to accept this amendment, or even to contemplate any amendment which gives the data user proper guidance, we shall have no alternative but to test the feeling of the Committee.
§ Lord Elton
I quite understand, but I think when the Committee comes to decide it should do so on the right facts. I must return to the first part of the remarks the noble Lord made, rueing the terrible dilemma which will face a data user when the bobby knocks on the door and wants to know whether Fred was at work last Tuesday. This is no more and no less than the terrible dilemma which now faces him if the records are manual; he still has to decide whether the bobby is legitimately after facts or whether he is being misled. He has to rely on his own judgment now and he will have to rely on his own judgment in the future.
It is fair enough to say that this Bill does nothing to resolve that time-honoured dilemma, which has faced people asked to assist the authorities in their inquiries since the authorities started asking them to do so. It may be that legislation for that is overdue; I rather doubt it, but it might be. But that is not what the noble Lord is suggesting; he is suggesting that because of this Bill there is a new difficulty. The only difference is that the information, as I said earlier in my perhaps over-lengthy speech, is not on paper or in a head or in a filing cabinet but on a floppy disc, and it will say whether Fred was there or not. If the noble Lord really thinks that a reason for not assisting the authorities in pursuit of even minor crimes, let alone rape, murder, drug smuggling and so on—I am prepared to leave those on one side because the argument so obviously does not need to be stated—is that people ought not to help the authorities without first telling Fred that they are going to help the authorities, and giving Fred a chance to do a flit, then I think the noble Lord is just wrong-headed and I hope we do divide and we defeat the amendment.
§ Lord Avebury
If the noble Lord will allow me, the difference is that when the data is on a floppy disc instead of in manual records a wrong decision by a data user renders him liable to proceedings for contravening the provision in Clause 26(3)(a). If it was in a manual form he would not be liable to proceedings. That is the difference which the noble Lord has ignored between the manual and the computer records. But in his second speech he has again ignored the major question of the public sector 1291 user, which is the question uppermost in my mind. The noble Lord has said nothing to make me change my view of these provisions.
§ Lord Donaldson of Kingsbridge
As a co-signatory to the amendment, I would prefer not to divide the Committee on this but to consider what the noble Lord has said, because it seems to me that the fact that the liability is exactly the same now as it was before the Bill is a relevant argument. I am not entirely happy. I hope my noble friend will withdraw the amendment and look at it again for Report, because it has been a long and difficult argument and it is rather a complicated situation.
§ Lord Avebury
Of course, I am perfectly happy to defer to the advice given by my noble friend, so particularly since I do not feel we have reached a satisfactory conclusion on this.
§ Lord Elton
May I just repeat, because the noble Lord invited me to repeat, the fact that the liabilities are exactly the same now; the informant is already under such a threat as there is in the Bill. That is the point the noble Lord, Lord Donaldson, has latched on to, and I would like to say that that is valid. I will not go into the other matters the noble Lord raised.
§ Lord Avebury
The noble Lord the Minister could have saved himself the trouble, because I was about to say to my noble friend Lord Donaldson that I felt there was weight in his advice; and particularly because I felt that we had not reached a conclusion on this argument, and it would be desirable to return to it on Report, I was going to ask your Lordships' permission to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Elystan-Morgan moved Amendment No. 41:
Page 21. leave out lines 33 to 42. and insert ("the disclosure is made under compulsion of law.")
§ The noble Lord said: I have already spoken to the amendment. There is nothing that I wish to add. The arguments are strong but would not be added to by repetition. Therefore. I beg to move.
§ Lord Elton
I understand that the noble Lord is seeking to divide the Committee and I merely say that I stand by everything that I said.
§ 6 p.m.
§ On Question, Whether the said amendment (No. 41) shall be agreed to?
§ Their Lordships divided: Contents, 78; Not-Contents, 92.1292
|DIVISION NO. 1|
|Amulree. L.||Boston of Faversham, L.|
|Ardwick. L.||Briginshaw, L.|
|Avebury. L.||Brockway, L.|
|Aylestone. L.||Bruce of Donington. L.|
|Balogh, L.||Byers, L.|
|Banks. L.||Cledwyn of Penrhos, L.|
|Barrington, V.||Collison, L.|
|Bernstein, L.||David, B. [Teller.]|
|Beswick. L.||Denington, B.|
|Birk. B.||Diamond. L.|
|Bishopston, L.||Donaldson of KJngsbridge. L|
|Elwyn-Jones, L.||Mishcon, L.|
|Elystan-Morgan, L.||Nicol, B.|
|Ewart-Biggs, B.||Ogmore, L.|
|Fisher of Rednal, B.||Oran, L.|
|Gaitskell. B.||Peart, L.|
|Gallacher, L.||Pitt of Hampstead, L.|
|Galpern, L.||Ponsonbv of Shulbrede, L.|
|Harris of Greenwich, L.||Prys-Davies, L.|
|Hatch of Lusby, L.||Rochester, L.|
|Hirshfield, L.||Ross of Marnock, L.|
|Houghton of Sowerby, L.||Scanlon, L.|
|Hughes, L.||Seear, B.|
|Jacques, L.||Sefton of Garston, L.|
|Jeger, B.||Serota, B.|
|Jenkins of Putney, L.||Shackleton, L.|
|John-Mackie, L.||Shinwell, L.|
|Kagan, L.||Stewart of Alvechurch, B.|
|Kaldor, L.||Stewart of Fulham, L.|
|Kennett, L.||Stone, L.|
|Kilmarnock. L.||Strabolgi, L.|
|Kirkhill, L.||Underhill. L.|
|Leatherland, L.||Wallace of Coslany, L.|
|Listowel, E.||Walston, L.|
|Llewelyn-Davies of Hastoe, B.||White, B.|
|Lovell-Davis, L.||Wigoder. L.|
|Mackie of Benshie, L.||Winstanley, L.|
|Mais, L.||Wootton of Abinger, B.|
|Milner of Leeds, L.|
|Abinger, L.||Kinnaird, L.|
|Airey of Abingdon, B.||Kitchener, E.|
|Alexander of Tunis, E.||Lauderdale, E.|
|Ampthill, L.||Lawrence, L.|
|Auckland, L.||Long, V.|
|Avon, E.||Lucas of Chilworth, L.|
|Bauer, L.||Lyell, L.|
|Belhaven and Stenton, L.||McFadzean, L.|
|Bellwin, L.||Mackay of Clashfern, L.|
|Beloff, L.||Macleod of Borve, B.|
|Belstead, L.||Mancroft, L.|
|Brabazon of Tara, L.||Margadale, L.|
|Caccia, L.||Marley, L.|
|Campbell of Alloway, L.||Massereene and Ferrard, V.|
|Campbell of Croy, L.||Merrivale, L.|
|Cathcart, E.||Molson, L.|
|Chelwood, L.||Morris, L.|
|Cockfield, L.||Mottistone, L.|
|Coleraine, L.||Mowbray and Stourton, L.|
|Cork and Orrery, E.||Murton of Lindisfame. L.|
|Craigavon. V.||Newall, L.|
|Craigmyle, L.||Norfolk, D.|
|Cromartie, E.||Orkney, E.|
|Dacre of Glanton. L.||Rankeillour, L.|
|Daventry. V.||Rawlinson of Ewell, L.|
|Denham, L. [Teller]||Reay, L.|
|Drumalbvn, L.||Renton, L.|
|Eccles, v||Richardson, L.|
|Elliot of Harwood, B.||Rochdale, V.|
|Elton, L.||St. Aldwyn, E.|
|Enniskillen, E.||St. Davids, V.|
|Erroll, E.||Sandford, L.|
|Fortescue, E.||Shannon, E.|
|Fraser of Kilmorack, L.||Skelmersdale. L.|
|Gainford, L.||Somers, L.|
|Gardner of Parkes, B.||Stamp, L.|
|Glanusk, L.||Strathcarron, L.|
|Glenarthur, L.||Swinfen, L.|
|Gray of Contin, L.||Swinton, E. [Teller.]|
|Hailsham of Saint||Taylor, L.|
|Marylebone, L.||Trenchard, V.|
|Henlev. L.||Trumpington, B.|
|Hives, L.||Tryon, L.|
|Holderness, L.||Vaux of Harrowden, L.|
|Hornsby-Smith, B.||Whitelaw, V.|
|Hunt of Fawlev, L.||Windlesham, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.1293
§ 6.8 p.m.
Lord Avebury moved Amendment No. 42:
Page 21, line 34, after ("(1)") insert ("(a), (b) or (c)").
§ The noble Lord said: I can be brief because of the encouraging remarks that the noble Lord, Lord Elton, made in dealing with the subject access provisions in Clause 28 and his assurance at the end of the last discussion that what the Government intend to do on this clause would extend to subsection (1) and to subsection (2); that the aspects of this clause which deal with the control of immigration are to be dealt with as a whole and that the proposals which the Government will come up with before we resume in the autumn will cover both aspects of the clause. Therefore, I do not propose to rehearse again what has been said regarding the convention and its non-applicability to immigration control.
§ The only point I add to what was said earlier on this matter by the noble and learned Lord is that if the Minister looks at German legislation he will find that it is similar to our own. In Germany they have a system of immigration control which depends upon parallel systems of criminal and administrative procedures. The Germans did not find that it was necessary to incorporate immigration control in their data protection Bill. After some little time of operation, they do not consider that a mistake was made and that it ought to have been introduced.
§ I think the Minister will agree that the Germans have quite an immigration problem. They have to deal with similar questions of a non-criminal nature. They have one problem in particular that does not affect us. Because there is unrestricted entry to West Berlin from the East, it is possible for immigrants to come to Berlin Schonefeld, the airport in East Berlin, to cross from the East to the West, and then to move from West Berlin to the Federal Republic. They may then for several years work in the Federal Republic before the authorities catch up with them and declare that they are not entitled to be there or, at any rate, to take employment. There are large numbers of persons whose presence in the Federal Republic is not entirely lawful but who, as I understand it, may not be subject to criminal proceedings. These would be the equivalent of the Borg-type cases that the Minister will remember we talked about on an earlier occasion.
§ During the Summer Recess I hope it will be possible for the noble Lord to take some advice from the Germans. When he does so, I think he will discover that data protection experts in that country are simply horrified by what is proposed in this Bill and will strongly encourage him to take the steps which have been recommended from this side of the Committee to delete immigration control altogether from the Bill.
§ Perhaps I might also say just a few words in response to what the Minister said a few minutes ago about the fears that people entertain, as he says unreasonably, that information is being sought, and records kept, secretly, and that regulations bear disproportionately on people belonging to ethnic minorities, when in fact, as he says, in immigration control we are dealing with people who come from all quarters of the globe. Anybody who has had the slightest experience of 1294 dealing with immigration control knows that the whole effort of the immigration and entry certificate officers is concentrated on people who belong to the ethnic minorities. The amount of work which is done on people who come from, say, the United States or Australia is absolutely minimal. If the noble Lord has any doubt about that, I shall send him a print-out from my computer which contains 850-odd cases which I have dealt with. As he knows, when his colleagues in the Home Office are absent he sometimes replies to my letters. The overwhelming majority of those cases concern people from the Indian sub-continent, the Caribbean and Africa—black people and people of ethnic minorities. People of European extraction attract very little attention.
§ The fear is that the transfers of information into computers concerned with immigration control will overwhelmingly refer to people belonging to the ethnic minorities; but, further than that, that they will not be confined simply to people who are in any way connected with breaches of the law. We know that, because otherwise they would be dealt with under sub-paragraph (a). A great many people on the fringes, as it were, of immigration control will be swept up into the net and will find themselves on the Home Office computers, with consequent harmful effects to themselves which we can only dimly perceive.
§ One example, which I gave on an earlier occasion, could be that the person concerned applies to become a British citizen and he is refused by the Secretary of State. No reason has to be given to him. Your Lordships will remember the argument that we had on this point on the British Nationality Bill, when on this side of the House we sought to introduce a right of appeal and objective tests for the determination of an application for nationality. But the Government insisted on retaining the complete ministerial discretion. When this ministerial discretion is exercised, one of the facts that may be taken into consideration is the presence or absence of the applicant on the immigration control computer system in Harmondsworth. A person who may be on that system quite innocently, because he is suspected of having been involved in some breach of the immigration law, although no evidence sufficient to take him to a court of law has been found, may be excluded from British citizenship simply by reason of his presence on the computer. He will never even know that this is the reason why he has been refused citizenship.
§ The consequences are not just to persons who have recently arrived in this country and who are suspected of a breach of the immigration law; they may affect those who have been here for a very long time. Because they belong to ethnic minorities, they may be more likely to be prejudiced than white people. This is why we on this side of the Committee believe that the exemptions on non-disclosure are more harmful than the exemptions on subject access.
§ We are grateful to the Minister for the assurances that he has given. We look forward to the results of his deliberations during the course of the Summer Recess. I move this amendment now only in the hope that the noble Lord may say a little more about the nature of the consultations that he intends to undertake. To give 1295 him an opportunity of speaking to the Committe on those, I beg to move.
§ Lord Elton
The noble Lord is right in thinking that the considerations he is concerned with will be swept up in the considerations on the earlier amendment which he and his noble friends were good enough to withdraw. Therefore, I do not think there is much point in my referring at length again to the anxieties to which he has referred. My acknowledgment of them was genuine, as was my undertaking to review. I hope it will stand on the record of our consideration of both provisions that this is so, and I shall not return to it.
As to the way in which our considerations will be conducted, I shall of course consider the advice that the noble Lord has given us about looking at the situation in Germany. The noble Lord revealed in his remarks that he knows not only the ropes but the routes, as I always suspected he did. If there is something useful to be learned therefrom, I do not doubt that we shall be able to glean it.
§ Lord Avebury
I am grateful to the noble Lord the Minister for his further assurance on that point. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.18 p.m.
Lord Avebury had given notice of his intention to move Amendment No. 43:
Page 21. line 37, after ("in") insert ("sub-paragraphs (a), (b) or (c) of)
§ The noble Lord said: This amendment is similar to the one which was moved by my noble friend Lord Wigoder at Report stage in the previous innings. It is in column 683 on 15th March. On that occasion the noble Lord the Minister said that it was the Government's intention further to examine the approach that my noble friend had suggested.
§ Lord Elton
Is the noble Lord by any chance referring to Amendment No. 44? I think that Amendment No. 43 goes with Amendment No. 42.
§ Lord Avebury
I am so sorry. I do apologise. Amendment No. 43 goes with Amendment No. 42, and I withdraw it.
§ The Deputy Chairman of Committees (Lord Renton)
I presume that the noble Lord does not intend to move Amendment No. 43, so Amendment No. 43 is not moved.
§ [Amendment No. 43 not moved.]
§ Lord Avebury moved Amendment No. 44:
Page 21. line 37, at end insert—
(c) the data user notifies the Registrar within twenty-eight days of the date of the disclosure and provides a copy of the data disclosed, specifying to whom it was disclosed and for what purpose;")
§ The noble Lord said: As the noble Lord the Minister guessed, I was speaking a moment ago to Amendment No. 44.1296
§ The arguments were thoroughly rehearsed by my noble friend Lord Wigoder on the previous occasion. I want only to add to what he said then that several of us have received a letter from the National Association of Health Authorities of England and Wales supporting an amendment on these lines. With the powerful addition of that support to what my noble friend said on the last occasion, we very much hope that the Minister will have decided that the advice he then gave was right. I beg to move.
§ Lord Elton
I fear that I cannot match the noble Lord's admirable brevity. I well recall that at various stages on last Session's Bill the noble Lord and his noble friend moved amendments to the effect that disclosures made under Clause 28(2) should be notified to the registrar, who might then be required to take action of one kind or another. The idea is not without attractions, and they have put it forward in various forms. The data user had to publish details of the disclosures and provide data subjects with a copy of the data about the subject that had been disclosed. At Report stage the provision was reduced to a requirement to notify the registrar, but then there was nothing further that anybody had to do, and on Third Reading the noble Lord was suggesting that the registrar should publish the facts and details of disclosures within 10 years.
The proposition now before us is closest to the second of the three earlier ones. It is suggested that it should be a condition of the Clause 28(2) exemption that the fact of any disclosure, a copy of the data disclosed, and details of the recipient and the purpose of the disclosure, should be notified to the registrar. But no duties are placed on the registrar in respect of any action that he should then take.
I did two things in response to the amendments last time. First, I undertook to look carefully at the proposition of notifying what we came to refer to as "exempt disclosures" to the registrar. When first put to us it was a novel idea. We felt that it deserved close attention. But, secondly, I also laid emphasis on the many difficulties that it raised, and I hope that I was careful enough not to give any false indications. I say that because we spent some considerable time examining the possibility of requiring notifications to be made to the registrar, and as a result we feel, rather regretfully, that the advantages are outweighed by the difficulties.
Under the amendment before us the registrar would receive a notification every time a data user made a disclosure to the police or some other body under Clause 28(2). It would consist of the fact that the disclosure had been made, and would presumably include the name and address of the data user and the date as a minimum, together with a copy of all the data disclosed, a note of the person to whom it was disclosed, and a statement showing for which of the Clause 28(1) purposes it was disclosed. What have been brought home to us in our consideration of the proposition are the bureaucratic procedures that would have to be gone through to sustain the notification mechanism. The user would have to make a note of all the necessary details, copying out the precise information that is disclosed. I do not suppose that he would often have thought it worthwhile to 1297 design computer systems to cope with irregular occurrences such as these. He would then have to file it all, since if the procedure is to have a purpose it is to check at some later date on disclosures. If he does not have a precise record, the user making the disclosure will be unable to confirm just what were the circumstances and details.
But of course it is not only the person making the disclosures who is involved. The recipient of the data will have to go through precisely the same procedure, for he, too, will need to be able to check back at some later date on precisely what occurred. The burden will be greater on him because while most of the data users concerned will be concerned only once or twice, or intermittently, it will be the recipients who will be involved regularly.
Finally there is the registrar. He will have to take receipt of the notifications and in some way process them and scrutinise them. The bureaucratic implications of all that are considerable, and of course the principal victims—those required to devote most manpower and time and effort to this new bureaucratic task—will be, first, the registrar and, secondly, the police, who will be the most frequent recipients of exempt disclosures. We had to consider whether this would be a desirable use of their time.
A further effect arising from all this, and an important one, would be this. The necessity for these procedures would place on users an annoying burden which could act as a disincentive to them. At present they can make disclosures as and when they think fit, without trouble, and this proposal would mean some difficulty and could hamper police work by making the acquisition of even routine information such a form-filling exercise that the holders of the information might be reluctant to help.
These are practical, down-to-earth factors, but none the less real for that. As for the advantages of the amendment, I cannot help feeling that they are a little limited, for it is not at all clear what the registrar is to do with these notifications when he has got them. Since no duties to publish them are imposed, they will presumably act as a basis on which he can monitor and check exempt disclosure. But the notifications will give him very limited information to go on. The fact that user X disclosed to the police on such and such a date Mr. Jones's address for the purposes of the detection of crime will not of itself tell the registrar very much; or the fact that user Y disclosed the names of 10,000 customers who had bought rat poison in the past year —and of course there would have to be a list of 10,000 names together with the report—will not tell him much.
So the prospect, I regret, would seem to be that we would put a lot of work on quite a number of people and dissipate some of the resources of the data protection registrar without producing any very tangible benefits to show for it. Therefore, I cannot help feeling that the gains offered by the amendment, attractive as they are at first blush, are outweighed by the losses. I know that the noble Lord has already thought very often about this point, and therefore I much regret having to ask him whether he would be kind enough to think yet again.
§ Lord Donaldson of Kingsbridge
I do not want to say a lot about this matter, but I think that the noble Lord's advice about how difficult this would be to operate in the computer world is absolutely remote from the facts. All of these things, including stamping the envelope, could be done at the beginning of each entry. This is what computers do. There are a series of functions that have to be carried out. They could all be done by way of a single, though rather complex, order to the computer. The idea that it is labour intensive shows no appreciation at all of what we are talking about. However, I do not wish to encourage my noble friend to press the amendment. I just think that the noble Lord's evasion of it was inadequate.
§ Lord Elton
I do not know whether "evasion" is the right word; it was meant to be a response. I may be out of date with my mechanics, but we are still left with the registrar (are we not?) opening this vast pile of envelopes and deciding what they tell him. It is very difficult to know what they will tell him, and it is even more difficult from the amendment to know what he would then do about it.
§ Lord Avebury
The noble Lord the Minister is very skilled at producing far-fetched examples. I think that in referring to 10,000 customers buying rat poison he has excelled himself, since one could hardly imagine that the police would be capable of dealing with such a vast amount of information. But it is a useful illustration from one point of view, in that the data user who had such a large number of customers would presumably print out that information from his computer, or he would transfer to the police a disc or a tape which contained that information. If he did that, it would be very simple for him to provide a copy of it. Just as he had printed out the 10,000 names, he could print out two copies of the 10,000 names. I admit that it would involve him in a minor additional expense, but I do not think that the administrative burdens that it would impose on the data user would be all that great.
The noble Lord also very skilfully twisted around what the amendment says. It would not be the recipient of the data who would have to notify the registrar; it would be the data user who made the disclosure. Therefore although, as the noble Lord says, the police will probably be the largest recipients of data disclosed under Clause 28(2), they will not necessarily be the data user who made the largest number of reports to the registrar under this amendment, if it were passed.
However, I certainly do not want to press the matter here. Since the noble Lord has the whole of the Summer Recess in front of him, and obviously he is going to use this very productively in the way that he has already explained, I should like to make a suggestion to him. As he says, the principal anxiety which people have in this matter is about the number of disclosures and their nature. It would perhaps be possible, without going to the extent of requiring data users to make individual reports of this kind, to enable the registrar somehow to provide a statistical picture of the disclosures under Clause 28(2). That would probably be accomplished by a much simpler form of report than the submission of copies as envisaged here. 1299 I would be grateful if the noble Lord can consider that suggestion and so enable us to discuss it, no doubt, before we return to the matter on Report. I am delighted to see that the noble Lord wants to intervene.
§ Lord Elton
I was about to say that the noble Lord's plans for my summer holiday are beginning to diverge a little from my own. However, I always like to take advice in good heart. I do not want to impose too much work on others. Most of the ground has been gone over previously. If it seems to us that there is ground that has not been gone over and that has been revealed by what the noble Lord suggests and by what the noble Lord. Lord Donaldson, has remarked, we shall certainly look at it. I shall perhaps be writing to the noble Lord if he will give me his holiday address, preferably in the United Kingdom.
§ Lord Avebury
I assure the Minister that I shall be at my desk throughout the whole of this summer. I shall be delighted to hear from him and to enter into discussions about how the principle behind this amendment can most readily be achieved. With that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Elwyn-Jones moved Amendment No. 45:
Page 21, line 42, at end insert (", but this subsection does not apply to persons carrying on computer bureaux who provide services in respect of personal data.").
§ The noble and learned Lord said: I think that this amendment can be taken briefly. It is to avoid the situation where confidential personal data are passed from the data user to computer bureaux and then via the bureaux released to the police and the immigration and tax authorities. As the computer bureaux will have no direct responsibility to the data subject and often will not be aware of the importance of the data that are being handled by them, it seems totally contrary to the data protection principles that they would be able to reveal any information without the knowledge of the data user or of the data subject. It seems to us that it is desirable to avoid the situation which I have indicated could well arise without the amendment. I beg to move.
§ Lord Elton
I hope that what I am about to say will address the noble and learned Lord's concern. If it does not, he will have to put me right and I shall return. As Clause 26(3) indicates, the non-disclosure provisions include Clause 5(2)(d), which prohibits unregistered disclosures of personal data by data users; Clause 15, which prohibits disclosures of personal data by computer bureaux without the authority of the data user who holds the data; and, speaking in general terms, any of the principles inconsistent with a disclosure. Thus, where the Bill exempts personal data from the non-disclosure provisions it allows a data user to make an unregistered disclosure and allows a computer bureau to make a disclosure without the authority of the data user. This amendment seeks to disapply the exemption from the non-disclosure provisions in Clause 28(2) in the case of computer bureaux. The effect would be that where the police or some other law enforcement agency approached a computer bureau seeking information in connection 1300 with, say, the prevention or detection of crime, the bureau would be prohibited by law from giving them information without first having sought the authority of the data user.
The argument that seems to underlie the amendment is that only the data user who holds personal data is in a position to judge whether personal data should be disclosed to the police and so on under Clause 28(2). On this argument, a person carrying on a computer bureau cannot be trusted to make a sensible decision on whether data should be disclosed. I fear that in answering this amendment I shall be returning to familar argument.
The Bill before the Committee includes a number of prohibitions and restrictions on the disclosure of personal data which will, in general, regulate access to personal data by third parties. This is obviously an essential part of any legislation designed to give effect to the principles set out in the Council of Europe Convention. But the convention accepts that some interests must override those enshrined in it and the Government are also determined that the legislation should not prejudice the essential work of the various law enforcement agencies, such as the police.
The police and other similar bodies often have to request information from numerous unexpected sources and, if I can hark back to the last exchanges, other people do. too. If a market is suddenly flooded by suspect tinned salmon, for instance, there are large numbers of inquiries to be made. The Government therefore take the view that it is necessary to make exceptions to the various new prohibitions on disclosure. Thus, Clause 28(2) disapplies these prohibitions in specified circumstances. The effect is not to produce some new threat to confidentiality. It is simply to ensure that the position as it exists now, before enactment of the Bill, remains exactly as it is and has been for many years, without difficulty or complaint. This means that when the police ask for information the person concerned will have to judge in the light of any professional or other constraints whether to disclose the data or not.
I do not see sufficient reason to depart from this argument and the policy already embodied in the Bill in the case of computer bureaux. I should like to ask the noble and learned Lord to consider a number of points. Before doing so, I should perhaps find out whether I have said enough to address his principal concern.
§ Lord Elwyn-Jones
I think that it might be convenient for me to give careful consideration to what the noble Lord has said. If he would care to amplify his remarks with any further material that would be helpful to determine the matter between now and October, I shall be happy to listen, if it does not put too much burden on him.
§ Lord Elton
The burden is nothing to me. I fear that it might be too much for the House. Would the noble and learned Lord prefer me to do this now, or by letter?
§ Lord Elwyn-Jones
In the light of that, and in the expectation that there will be leisure in which to examine a highly technical point within the long period of time when the noble Lord is working every day in the Houses of Parliament, I shall undertake to look at this question again and return to it in due course. In the circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 28 agreed to.
§ Clause 29 [Health and social work:]
§ 6.38 p.m.
Lord Avebury moved Amendment No. 45A:
Leave out Clause 29 and insert the following new clause:
§ ("Health Records.
§ If a court is satisfied on the application of any person who has made a request under section 21 above that:
- (a) the request relates to personal information as to the physical or mental health of the data subject; and
- (b) the supply of the information requested is likely to result in physical or mental harm to the data subject or another individual.
§ The noble Lord said: We come to the important question of medical and social work records. Since we last discussed the matter, a number of important recommendations have been made to your Lordships by the Patients' Association, by the Royal Association for Disability and Rehabilitation and by the Children's Legal Centre. All are very concerned about the width of the exemptions from subject access provisions and the discretion of the Secretary of State provided under Clause 29. This concern relates particularly to medical files under Clause 29(1) and the fact that Clause 29(2) allows Government departments, local authorities, voluntary organisations or "other bodies" to keep automated files of personal information without allowing any access for subjects if the files contain social work information and the Secretary of State makes the appropriate order.
At first sight, that would appear to contradict the European Convention, especially Article 8 which provides that:
Any person shall be enabled: (a) to establish the existence of an automated personal data file, its main purposes … (b)to obtain at reasonable intervals … confirmation of whether personal data relating to him are stored in the automated data file as well as communication of such data in an intelligible form; (c) to obtain … rectification or erasure of such data; (d) to have a remedy if a request for confirmation or … communication, rectification or erasure … is not complied with".
and so on.
§ While there are professional bodies, particularly in the medical field, which argue that patients or clients should not have access to their files, I think that the noble Lord will confirm that consumer bodies argue unanimously for access. They cite not only the human rights argument but also the practical advantages of open files, which are greater accuracy, objectivity, and trust between clients and the professionals.
Also, I think the noble Lord will confirm that there have been substantial shifts in professional opinion on this matter over the last few years. For example, the British Association of Social Workers recently made available a copy of their draft report on the Case
Recording Project Group. In the introduction to Chapter 5, entitled "Access to Case Records", the association writes:
Part of the reason for promoting client access to records is to ensure that clients can check that their privacy is not being invaded by social work records. But that is not the only reason: as a matter of principle, a client who is to be part of social work processes should know what is going on, and involvement in recording is an integral part of that.".
I think the Government themselves have changed their attitude on this matter significantly. The White Paper entitled Special Needs in Education, which preceded the Education Act 1981, said:
The government agreed with the widely-held view that it would be wrong to require full disclosure to parents of the professional reports lying behind the 'record'.
But when the Education (Special Needs) Regulations 1983 came into force in April, they indicated that the Government had changed their attitude: parents of children with "statements of special educational needs" are given access to all the professional reports on the basis of which local education authorities have made their decisions, as these must, according to the regulations, form part of the statement which is sent to parents.
§ The Government have also shown some commitment to freedom of information in education by making HMI reports on schools available to parents. So while the majority of social work and medical records are, at present, not held in automated files but are kept manually, there is a trend towards the use of computers and the Government should take the opportunity which is presented by the Bill to extend subject access as far as possible to automated files.
§ At the time I tabled this amendment I had not seen the discussion documents on client access to social services records which were issued by the Department of Health and Social Security on 14th July. The first major point I should like to put to the Minister is that the timetable set out in these documents is quite impossibly short. I believe that many of your Lordships may not even have been aware of the existence of the documents, let alone have had a chance to read and digest them thoroughly. Moreover, your Lordships could not take proper advice on them at this stage because I understand that the voluntary organisations principally concerned with these records are to meet on Monday week—the end of July—and that leaves only two weeks before the closing date for observations on Paper I, which have to be in by 15th August.
§ For the benefit of your Lordships who may not have seen these papers, Paper I concerns the general principles on which information might be disclosed to clients from their social services records. Paper II (as regards which more time is available, but still not enough) concerns the procedures whereby clients might be granted access to computerised social services records. The observations on that paper have to be in by 30th September.
§ The reason given in the document for the timescale on Paper I is that the Liverpool City Council has decided to adopt a policy of wide disclosure with effect from 1st September. I do not really understand this reasoning, because it seems to me that it could be that the Liverpool City Council would adopt wider disclo- 1303 sure than is ultimately provided for in the order and then, of course, it would have to fall in line with whatever decisions were made. In the meanwhile, no great damage is done if the Liverpool City Council wishes to adopt this policy of very wide disclosure. Indeed, it might be a very useful experiment to see whether any damage is done by it before the Government come to make the orders under this clause.
I am certainly not going to argue that all these records should be divulged to clients. The discussion documents set out some important considerations which must be borne in mind. First, there is the question of the protection of the client. It is pointed out quite properly that:
Some clients would be harmed by reading facts in their case records which may be disturbing to them".
The example is given of elderly persons who may learn that they are not welcome to their own families, or a child who may learn that his parents have a criminal record. There is also the question of the protection of third parties. It points out that a client's case record may include material about third parties, such as members of his immediate family, which would damage reputations or relationships if it became known to the client.
As regards protecting sources of information, the paper points out that social services departments receive information sometimes on the understanding that it will be kept in confidence, or that at least the source will not be revealed to the client. There is also reference to the protection of social workers' confidential judgments. I must admit that I am rather more doubtful about this aspect. However, it is said in the discussion document that:
It has always been regarded as professional good practice to record provisional views that might in time lead to firm judgments—sometimes warranting statutory action".
§ Let me point out as an aside that this seems to follow the discussion we had of opinions and intentions at an earlier stage in your Lordships' proceedings, where it was agreed that, if a managing director expressed the opinion that his sales manager drank too much, then that information was accessible to the sales manager. Your Lordships will remember that the CBI was advising that these opinions of a sensitive nature should be expressed as intentions so that they did not have to be divulged. No one said that an employer should be exempt from non-disclosure because some of the opinions he expressed about members of his staff might cause friction or difficulties if the subject access provisions were complied with. I think that that should also be the case as regards social work records. If social workers want to make confidential judgments about their clients and express them in a computerised form, then, just as an employer would expect that to be known to the member of his staff, so the social worker could perhaps expect that this would become known to his client.
§ Finally, the question of children and parents is dealt with, and it is said that if parents had an absolute right of access to records about their children that would sometimes ignore the fact that the interests of the child and the parents may be separate, and may conflict with one another.1304
§ I agree that all these tremendously important considerations have to be borne in mind in deciding in what manner the Secretary of State will exercise his powers under Clause 29. However, I venture to say that it is rather a pity that we could not have had this discussion as part of the proceedings on the Bill instead of leaving it to the order which is to be made later on. I fully accept what the noble Lord the Minister said at an earlier stage; namely, that such an order will be debatable in both Houses and it can be rejected if your Lordships or another place see fit to do so. However, what we cannot do is to amend the order or vary any of its details; we simply have the alternative of accepting it as it stands or rejecting it in its entirety.
§ Therefore, I take this opportunity to say that I rather wish we had been able to specify more closely how the Secretary of State would exercise his powers under Clause 29; and at the very least we should know, before we reach any finality on this, more about what is in the Minister's mind. That may seem to conflict with what I said about the tightness of the schedule for consultations. I do not expect—and I say this to the Minister now—that we shall reach any conclusions on this matter while the Bill is in your Lordships' House. However, if he would take the opportunity to say a little more about what is in the Government's mind and how they see the restrictions on the use of the powers in Clause 29, it would be very useful in promoting that discussion outside your Lordships' House which is absolutely essential if we are to reach the right decisions on this matter. I beg to move.
§ Lord Donaldson of Kingsbridge
I know that the Committee is very hungry and I shall be brief. I was about to speak on this matter on the Question that the clause stand part of the Bill, but my noble friend has tabled an amendment so I shall say just a few words about the amendment. For a good many years I was chairman of the National Committee of the Family Service Units. They are social work units which take the most difficult families in the area and try to sort out their problems. In the days when I was connected with them—which was 10 years or more ago—the reports used to be extremely frank and very often quite unrepeatable, and with very good reason.
Therefore, I rang up the Director-General of the FSUs today, Tim Cook, who is a very experienced social worker in many ways. He said that there will be difficulties about this matter but that the general feeling in his organisation is that social workers are changing their minds. He said that increasingly they feel that as a general rule they should not write down opinions but should write down facts and let the next social worker who takes over form his own conclusion from the facts. I do not think that you can do that entirely, and I think there will always be cases—as this document to which my noble friend has referred makes perfectly clear. I wish I had had time to read it more thoroughly, for I just glanced at it this afternoon. There will be a number of cases which you cannot allow to be passed on.
What worries me is that both my noble friend's amendment and Clause 29 have a very distant approach to what happens to this information. You cannot ask the Secretary of State each time a social worker wants to say "This will be bad for the child". 1305 Nor will the matter necessarily reach the stage of going to court. Both the Bill on the one hand and the amendment on the other seem to leave the way in which the decision is made far too high up the hierarchy to make sense at all. So I do not think it will do as it is. It being so near dinner time, I shall say no more than that, because it seems to me that, if the noble Lord will agree at all, we shall have time to study this document, and the Government will have received the response to it by the Report stage. I think it is likely that the noble Lord would like to change Clause 29 in a way which would suit my noble friend Lord Avebury, myself, and various other people. So adding to the noble Lord's vocational pleasure, I propose to say no more.
§ 6.53 p.m.
§ Lord Elton
As I explained when we discussed amendments on Clause 29 of last Session's Bill, these order-making powers have been included in order to allow us to undertake full consultations before deciding what, if any, restrictions upon the right of subject access shall be imposed in this area. As your Lordships obviously appreciate, difficult and sensitive issues are involved, issues that were also obvious to the authors of the convention. That is one of the reasons why Article 9(b) permits derogations in the interests of protecting the data subject.
I was to have enlarged on the kind of difficulties that there might be, but that has been done very capably by the noble Lord, Lord Avebury, and with great close knowledge by the noble Lord, Lord Donaldson. So I can say that the Government are convinced that there are difficult issues here that should only be resolved after the fullest consultation. On the health side the Government have had the benefit of advice from an Interprofessional Working Group on Access to Personal Health Information, with membership from the medical, nursing, social work and other health professions. The group has welcomed the general principle that individuals should have access to their health records; but it has suggested that unrestricted access could on occasions be harmful. It has proposed therefore that health professionals should have discretion to prepare subjects to receive the information; and that they may sometimes need to be able to withhold information altogether.
The group is of the view however that in those circumstances some avenue of appeal should be available to the individual deprived of his normal entitlement to subject access. The next step will be for the Government to issue a consultative document setting out proposals for the content of an order under Clause 29(1), and work on this is now underway. Obviously these consultations will include representatives of patients as well as those of the health professions. It is also worth noting that the proposals of the interprofessional group are arguably less restrictive than the amendment proposed by the noble Lord. Its approach provides for filtered access in some cases rather than an absolute refusal.
As to social work records, the Department of Health and Social Security has already, as the noble Lord, Lord Avebury, has said, issued a consultative document discussing the content of the order to be made under Clause 29(2). I must say that I listened to 1306 the noble lord's strictures about the shortage of time in which to consider it with a certain amount of wry amusement as we received his amendment only about 55 hours ago, and our consideration of that has been somewhat restricted. The document has been sent to representatives of clients as well as to the relevant professional bodies. I ought to tell the noble Lord that Paper I, to which he referred and about which he said the time was so short, in fact has nothing to do with data protection as such at all. Although the timescale may be of concern to him, it is not of proper concern to the Committee.
Paper II is to do with orders under Clause 29(2) of the Bill and the timescale there is until the end of September. As I said, it has been sent to representatives of clients as well as to the professions. The two options discussed in the document would involve a right to seek the opinion of an independent social worker where access was refused. The second would involve a further right to contest refusal through the registrar or the courts. Comments on the document have been requested by 30th September, and I think it would be proper if I were to bring to the attention of my honourable friends in another department the comments made by the noble Lord. Lord Donaldson, about the changing style of work in the social work services, although I do not doubt that they may well be aware of it already. It is a very necessary consideration.
In conclusion, we are approaching the issue of subject access to health and social work records with very great caution. There are difficult issues here which cannot be swept aside simply by regarding the right of access as sacrosanct. The order-making powers in Clause 29 are subject to full parliamentary control within the limits rightly described by the noble Lord, Lord Avebury. But I hope that the timing of the consultations and the noble Lord's continual presence at his own desk will ensure that he at least is very well armed when we come to discuss this, as I presume we will, at the Report stage.
§ Lord Donaldson of Kingsbridge
I should like to add one point. It is very important to remember that records of this kind will be referred to from years ago, so that there must be a retrospective cut. The Bill must not apply to records made before the Bill becomes law.
§ Lord Elton
I am seized of the point and I am sure that my honourable and right honourable friends will be.
§ Lord Avebury
I am most grateful to the noble Lord for his reply and for mentioning the rights of appeal, which I ought to have dealt with in my opening remarks and which I think are very generally to be welcomed. Where a person is denied access to his medical or social works record obviously there ought to be some procedure for him to go to the registrar or indeed to a court of law. That sounds like a very useful provision.
I am also grateful to the noble Lord for his assurance that there will be full consultation with bodies representing the interests of patients and clients, and that they have received the two discussion documents to which I have referred. The first document is of as much concern to the Committee as is the second—the 1307 one for which the timeseale for reply is so short—because if the noble Lord would care to look at the contra-indications to disclosure in Paper I, he will find that they are almost identical to those which are given in the second paper dealing with the Data Protection Bill.
Therefore, if some firm decisions were taken on non-disclosure under the circumstances outlined in Paper I, they would inevitably have repercussions on the order which the Secretary of State is ultimately to make. Maybe that is a small quibble. I was grateful to the noble Lord for the general information he gave the Committee and for the approach he is adopting to the consultations. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 29 agreed to.
§ Clause 30 [Judicial Appointments and legal professional privilege]:
§ 7 p.m.
§ Lord Winstanley moved Amendment No. 46:
Page 22, line 38, at end insert—
("(3) Personal data are exempt from the subject access provisions if the data consist of information which is confidential to journalists' sources.").
§ The noble Lord said: I beg leave to move Amendment No. 46 which stands in my name and that of my noble friend. We come now to a matter which, so far as this Committee is concerned, we can deal with fairly rapidly, though I have no doubt that the subject of the amendment, the confidentiality of journalists' sources, is one to which not only this Committee but your Lordships' House may return on many occasions. It seems to me at the moment in this particular Bill that there is a potential anomaly in that the Bill now appears to grant exemption for data where legal professional privilege is concerned; but there is as yet no protection for the confidentiality of journalists' sources.
§ This confidentiality of journalists' notes is already recognised by the courts. It may well be that as and when the Police and Criminal Evidence Bill re-emerges that there might be statutory recognition of that. If that be the case then we will have an anomaly in that this Bill will create an artificial distinction between journalists' notes which are manually recorded and notes which are electronically recorded, although neither journalists nor the organisations employing them exchange confidential information with their competitors.
§ I am aware that this whole question of the confidentiality of journalists' sources is a complex one in which neither logic nor perhaps right lie wholly on one side or the other. I am also aware that there is some anxiety among journalists about the whole matter of providing a legal definition of what is, or what is not, a journalist. Therefore, I understand that this is not an easy matter. Nevertheless, it is right to draw the Committee's attention to the fact that there is a potential anomaly here in that manual notes might very well be regarded as, as it were, protected whereas notes electronically recorded, and journalists' sources therefore that are electronically recorded and 1308 potentially could be disclosed electronically, are treated rather differently. I beg to move.
§ Baroness Trumpington
I cannot help thinking that this amendment contains something of a contradiction in terms. It speaks of exempting from subject access data consisting of information which is "confidential to journalists' sources". That of course means that if a journalist's source holds data and attaches a label of confidentiality to the data, he can refuse subject access at will. Now, both I and the noble Lord, Lord Winstanley, qualify as journalists' sources—we have both provided material for stories at one time or another. But surely the noble Lord is not suggesting that for that reason we as data users—and all the thousands of others in the same category—should be able to refuse subject access to data we hold. So we must assume that this is not the purpose of the amendment but merely the product of loose drafting, and that the real purpose is to protect the journalists who may hold data.
Here is the contradiction. If a journalist holds information that is confidential to his source, how has he come by it? It cannot properly be confidential to one person yet given by that person to another. So again we have to translate. Perhaps I might describe briefly what I think the noble Lord is aiming at in this amendment: that is, information that is held by a journalist and was given to him by a source that wishes not to be disclosed.
So let us examine the merits of that amendment. The suggested scenario is that a source goes to a journalist with information about, let us say, one of your Lordships, saying that it must not be revealed who the information comes from. The journalist is a thoroughly modern one who transcribes the information onto a computer and "processes" the resultant data in the terms of Clause 1 of the Bill: that is, builds up a computer file on the noble Lord concerned, using it perhaps to extract information at the press of a button in order to compose a story—saying either what a fine person the noble Lord is or, much less likely, what a villain he is. That is the picture before us. Now. the first thing I have to ask is whether the noble Lord concerned should not have access to the data to check whether the information is accurate, and the rest. I am not aware of the journalistic profession —who are generally in favour of data protection—arguing that they should be excused from one of its principal elements. Indeed, they might fear that they would be accused of double standards if they did. So where is the reason that the subject of journalists' data should have a lesser degree of protection than the subjects of others' data?
It is presumably that the knowledge that subjects will have access will discourage sources from coming forward and giving personal information about people to journalists, because they fear that they will be revealed as the source, and that this will be generally detrimental to the fifth estate. But we have special provision in the Bill to cover that point. In the subject access provisions, Clauses 21(4)(a) and (5) taken together have the effect that users, in giving subject access, do not have to reveal who has given them the information about the subject that they hold. It may be argued that some subjects may be able to deduce 1309 that only so-and-so could have possibly furnished the user with the information he holds. But surely that will apply at the end of the day anyway when the story is published. I do not see how it can be convincingly argued that the fear of a deduction of sources warrants exemption from subject access, when the whole point of the journalist holding the information must be to publish it eventually, when the fear of deduction must be even greater.
A parallel with last Session's Police and Criminal Evidence Bill has been drawn which I must challenge. The Government did amend that Bill to apply a special procedure to material held by journalists when it came to police powers of search and seizure. But this is not a true analogy. The question of the powers of the police to require the production of evidence in the form of material held by journalists is one thing. It is quite another to try to apply the same arguments to whether an individual should be able to have subject access to data about him that a journalist holds on a computer. I applaud the disinterested concern of the noble Lord in seeking to ensure maximum protection for journalists. But I am not sure that they themselves would seek it, particularly since subject access will not oblige them in any case to reveal their sources. I would therefore ask him to think again about this amendment.
§ Viscount Massereene and Ferrard
May I ask the noble Lord, Lord Winstanley, how he would define a journalist for this amendment? Would that include freelance journalists or only salaried journalists —journalists working for a certain paper?
I referred to the difficulty of denning a journalist, and I accepted in my earlier remarks that that was one of the problems. I accepted that there were journalists, or perhaps non-journalists, who are a little uneasy about a statutory definition of what is, or is not, a journalist. I can think of a number of ways of doing it. One could have a member of the National Union of Journalists. One could perhaps have a member of the Institute of Journalists. There are many other ways of doing it. But I doubt whether I am the person qualified to give advice to the Committee on a definition of that kind.
May I return to the words of the noble Baroness. I was grateful for that part of her reply which came later in her speech which appeared to give me some reassurance and suggested that the points about which I was anxious—namely, the confidentiality of journalists' sources—was covered elsewhere in the Bill, and she drew my attention to certain clauses of the Bill which I shall look at closely later. However, in the earlier part of her remarks the noble Baroness gave me a somewhat inadequate reply to a later amendment which I have not yet moved. In other words, about people who are perhaps defamed by things which are published and which have previously been stored electronically. That is a matter for later and I do not want to go into that here and now. The noble Baroness referred to people being defamed. The defamation of course would occur on publication. There would then be a remedy through the courts in the ordinary way. That is an entirely separate matter.
In so far as the noble Baroness has given me some reassurance with regard to the confidentiality of 1310 journalists' sources, I had better look at that carefully and consult with those who advise me. With regard to the fact that the amendment is said to have been drafted defectively, I have to plead that it was drafted by somebody who worked for some years in the Public Bill Office but now is employed otherwise. Perhaps your Lordships may think that is wise! I shall nevertheless go back to my sources and seek further advice and consider further what the noble Baroness has said.
§ Lord Mishcon
Before the noble Lord takes the course that I think he wishes to take, I wonder if one thing could be clarified by the noble Baroness, whose participation in the Committee's proceedings we all very much welcome. I am not clear about whether there is a specific exemption in the Bill which covers the situation where the source clearly appears on the record that has been made and if there is something in the Bill which enables the data user in this case to tell the data subject that the data subject is entitled to a copy of everything, but not the source which is on the computer. I am not clear about that. If it is not in the Bill a different consideration arises.
§ Baroness Trumpington
I thank the noble Lord, Lord Mishcon, for his kind words. Words of kindness in a hungry House are welcome indeed. If he reads what I was saying and considers Clause 21(4)(a) and Clause 21 (5) he will find the exemption for which he is looking.
If the noble Lord, Lord Winstanley, will return to his point on a further amendment, as he has suggested, perhaps we might have what is known as a natural break.
Once again I am deeply grateful to the noble Lord, Lord Mishcon, for his brief intervention making the substance of my point rather clearer than I made it earlier. That was precisely the anxiety that I had in mind when I moved the amendment. I have listened to what the noble Baroness said and, as I have said, I will have further thought about it. In the meantime I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Lyell
I understand that through the usual channels it has been agreed that this might be a convenient moment for the main protagonists in the business of the Committee to break for dinner.
§ I beg to move that the House be now resumed.
§ Moved, accordingly, and, on Question, Motion agreed to.
§ House resumed.
§ Lord Ponsonby of Shulbrede
My Lords, before the next business is taken, I wonder whether the noble Lord will indicate at what time we shall return to the business on the Data Protection Bill?
§ Lord Lyell
My Lords, I must apologise to the noble Lord and indeed to many hungry and vociferous noble Members of your Lordships' House. I understand the usual channels agreed that the period should be three-quarters of an hour, 45 minutes. I believe that your 1311 Lordships would wish that we should give the protagonists an extra minute so perhaps we should re-commence further business on the Bill at eight o'clock.