§ 3.57 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Elton)
My Lords, I beg to move that the Bill be now further considered on Report.
§ Moved, That the Bill be further considered on Report.—(Lord Elton.)
§ Lord Mishcon
My Lords, before we commence our deliberations, may I ask whether we can be protected against our own data? If your Lordships will look at the second Marshalled List, you will see that it is headed "Second Marshalled List of Amendments to be moved in Committee". They are, of course, to be moved at Report stage.
§ Lord Elton
My Lords, the noble Lord, Lord Mishcon, is quite right when he refers to the first page of the Marshalled List. However, if he will look at the back page, he will see that it refers to Report stage quite properly.
§ Lord Mishcon
My Lords, that only means that this Bill is back to front, and I have always said so.
§ On Question, Motion agreed to.
§ Clause 22 [Compensation for inaccuracy]:
Lord Mottistone moved Amendment No. 62:
Page 19, line 11, leave out ("indicating") and insert ("used or disclosed only with an indication").
§ The noble Lord said: My Lords, Amendment No. 62 is an improved version of my Amendment No. 126 which I moved at Committee stage, and to which my noble and learned friend pointed out some objections. I hope that the change in this amendment is acceptable to him as meeting the point that he made.
§ Clause 22(3) provides a defence for the data user who has used inaccurate data if the data used were an accurate reflection of the data supplied to him by the data subject or by a third party. This defence seems only to be available if the data carries with it an indication of its source. The intention in providing such a defence is presumably to encourage data users to qualify the data they hold by indicating its source and hence its implied validity.
§ This is a matter of interest to the data subject. As currently drafted, the subsection requires that the data themselves should indicate their source before the data user can claim the defence provided. But it is not common practice to include the source of data on a computer file, and the cost of rearranging existing files and rewriting the existing software to qualify for this defence could be very high.
§ It is very unlikely that many data users would be prepared to incur such costs. I believe it would be in the interests of both the data user and the data subject if the qualification for the defence were just slightly less stringent, that instead of having to reorganise his files the data user should be required only to ensure that the source of the data was clear whenever the data were used or issued to a third party. In many cases this could be achieved by the use of preprinted forms or headings on computer lists, at minimal cost.618
§ If this amendment were adopted more data users would ensure that the source of the data was evident whenever they were used, and this would give better protection to the data subject. I hope that with that rather full explanation, and the fact that we have endeavoured to take advantage of the comments by my noble and learned friend at Committee stage, the new amendment will be acceptable to the Government. I beg to move.
§ Lord Avebury
My Lords, I do not think the noble Lord's amendment touches the point I raised the other day, on which the Minister has been good enough to write to me in the interval between Committee and Report. The question is: what is the rule applying to data which are transferred between a subsidiary and a parent company? This is a matter which has obvious practical implications for data users who are part of large groups of companies. I hope that the noble Lord the Minister may think it desirable at this stage to give a slightly fuller explanation along the lines of the one he has already given to me in correspondence.
To summarise that, the noble Lord has said to me that the question of whether or not a subsidiary company would be a third party for the purpose of Clause 22(3), which defines the term "inaccuracy", is a difficult matter to define; it is impossible to generalise, the noble Lord said. He said that where a parent company controlled the activities of the subsidiary company to the point where the subsidiary was acting on behalf of the parent company, it would seem that information passing from the subsidiary to the parent company would not be regarded as receipt from a third party; but where the subsidiary company operated independently of the parent company, then it would seem that the courts would regard the subsidiary as a third party.
I hope the Minister will offer some further clarification, or will think that this is a matter which should be dealt with more conclusively before the Bill leaves another place. What worries me is the use of the words "it would seem". The noble Lord is not really certain what the status of information passing between a subsidiary and a parent company would be. He is telling me, and your Lordships through me, that this depends on all the circumstances and the extent to which the parent company exercises day-to-day control over the activites of the subsidiary. Therefore, whenever anybody is thinking about whether this subsection provides him with a defence, he always has to ask himself the question: does the parent company control the activities of this particular subsidiary to the extent that would satisfy a court of law, or might the inaccuracy be a material one for this purpose? I think that businesses should not be left in the uncertainty that this clause as presently drafted may lead to. Between now and the stage when the Bill gets to another place perhaps the noble Lord will think of some way of setting this out more clearly for the benefit of those in industry who have to operate this provision.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, I think it probable that the noble Lord, Lord Avebury, did not realise that in the division of labour which exists between my noble 619 friend and myself I was saddled with this responsibility. But I can see my noble friend on the Front Bench, and I think probably the best way of handling the noble Lord's point would be for my noble friend to be in touch with him directly. In actual fact I do not think—although on this I may be wrong; I have just briefly glanced at the correspondence between them—it is particularly relevant to my noble friend Lord Mottistone's amendment. I am grateful to my noble friend for returning to this point because it is a real point. I am grateful to him for trying to improve upon the amendment which I ventured to criticise at Committee stage. I shall still ask him to withdraw this amendment. I realise that the point is one which I ought to try to deal with, but I am not happy with the improvement which he has made to his original amendment.
If I may explain both the point and the reason why I am not happy with the proposal of my noble friend as it stands, perhaps the House will bear with me. The point is this. As my noble friend explains, it is not always, and perhaps not usually, for some reason, the case that the data user will be recording his data in a form carrying the indication that it is received information. I will refer to that by a jargon phrase, received status. It is not always the case that it is recorded in such a way that the data will have or does have the indication required to give the defence its validity in the Bill as drafted. My noble friend seeks—and I think with some justification—to say that it is good enough, in order to attract the defence, that the indication that it is received information and not originating information should travel with it wherever it goes. In other words, it would be enough if the printout contains the indication rather than that the original data do.
I myself think that if a way can be found in which that object is achieved I would like to find that way. If my noble friend will withdraw his amendment in its present form, I will undertake to ask the draftsman if such a way can be found. I cannot undertake today that it will be found because I am not sure whether it is possible. But I hope the indication I have given is at least sympathetic to my noble friend.
With regard to the point raised by the noble Lord, Lord Avebury, I think I can say to him that so far as regards this amendment we take on board the point that if the information travels it has got to travel with the indication, so far as regards the subject matter with which this amendment is concerned. I hope with that explanation my noble friend Lord Mottistone will find it possible to withdraw his amendment in due course.
§ Lord Mishcon
My Lords, we on these Benches definitely support the principle behind this amendment and have listened with rapt attention and expectation to the remarks of the noble and learned Lord.
§ Lord Mottistone
My Lords, I am indeed grateful to my noble and learned friend for his very careful explanation, and indeed for his understanding of the point that I am seeking to make. I agree with him that it is extremely difficult to find the right wording. I hope very much that he will be able to do so at some stage 620 before the Bill becomes an Act and leaves parliamentary hands altogether.
I think that it is sufficiently important to justify some way of meeting the peculiarities of data handling, which are different from the peculiarities—if one can call them that—of ordinary paper handling. Things that often appear to be very simple when we write documents and cross-reference them are for very good reasons dealt with in a totally different way by data processing machines. Therefore, I think that it is important and I am sure that my noble and learned friend appreciates that. I understand why my noble and learned friend cannot give me any sort of firm undertaking, but I hope that this point will be made.
I should like to say before I sit down that I understand and take well the point made by the noble Lord, Lord Avebury. I do not think is strictly relevant to my point, but it is important and I hope that the Government will take that on board as something which needs solving as well. With that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 4.10 p.m.
Lord Wigoder moved Amendment No 63:
Page 19, line 11, leave out ("indicating that it consists") and insert ("specifying precisely the source").
§ The noble Lord said: My Lords, under Clause 22(1), as your Lordships know, a data subject may be entitled to compensation where the personal data held by a data user are inaccurate, but subsection (3) provides that even if those data are inaccurate it is of no consequence provided that they are data which accurately record information, inter alia, received from a third party and provided that the data indicate that they do in fact consist of such data; namely, from a third party.
§ It would appear that the wording as it stands is, I suggest, inadequate to give proper protection to the data subject. If all that the data user needs to say in order to claim the protection of subsection (3) is. "These data come from a third party", the data subject, first, will not be able to check whether or not that is an honest claim and, secondly, assuming that it is an honest claim, it will frequently happen that the data come from another data user and the data subject will not be able to claim, as against the other data user, that there is inaccurate information being held about him or to seek its rectification.
§ Thirdly, unless the data subject can discover the precise source of the inaccurate information he may be deprived of certain other obvious legal remedies. Therefore, all this little amendment seeks to do is to strengthen the protection for the data subject by requiring the data user in these circumstances not to be able to rely on a vague expression—obtained from a third party—but to indicate precisely what the source of the apparently inaccurate information is. I beg to move.
§ The Lord Chancellor
My Lords, the noble Lord, Lord Wigoder, described this as a little amendment. I hope to persuade your Lordships that this is not quite to give it its full importance. It is rather a big one. If I may come back, for a purpose which will shortly 621 become apparent, to the rather facetious quip that the noble Lord, Lord Mishcon, made on the Motion, That the Bill be now further considered on Report, he has always taken the view—which those who listened to my speech on Second Reading will realise I do not share—that the Bill is defective because it does not deal with manual data and that manual data are equally as important as computer-contained data. I have never agreed with that because, as I said on Second Reading, the problem of policing manual data would be totally different. The scale of the danger and the nature of the danger arising from manual data are quite different and it would require not merely that manual data be included in the Bill, but that a Bill of quite a different shape be introduced for the purpose of dealing with it.
Let me put this to the noble Lord, Lord Wigoder. We have sought, of course, to draw a balance between the interest of the data subject, whose interest we are here to protect by the Bill, and the burden which we are placing on the data user, whose interest has been very ably proclaimed and supported by my noble friend Lord Mottistone. We have sought to protect the data subject without inflicting on the data user a burden greater than was reasonable.
May I suppose for just an instant that one day, and it may be already the case for aught I know, the so-called "morgue" in an ordinary newspaper office—which, looking round me in the House, probably contains files on each one of us present in the Chamber at the moment—were fed into a computer. One of the most sacred objects of the journalists' profession is that they do not reveal their sources. This is precisely what the noble Lord, Lord Wigoder, is asking us to do by his allegedly little amendment. This would be not only to impose on the data user a burden by way of expense and methodology which might prove much more burdensome and expensive than one would suppose, but also to compel him to reveal his source in, I think, every case.
The newspaper is not the only type of person who wishes to keep information to some extent confidential. Almost every law-enforcement agency requires to keep its information confidential in certain cases. We know, of course, about professional legal privilege, which we have sought to retain, but every kind of file which contains information about individuals very often contains a great deal of confidential information. The police, not least, rely very heavily upon informants and both for the security of the informant and for other reasons they do not usually desire to reveal their sources. For this reason—because I want to protect the data subject but also because I feel bound to protect the data user-I have to say that we do not find this amendment acceptable and we do not regard it as a particularly little amendment.
§ Lord Swinfen
My Lords, I think that this particular amendment is impractical because if the computer is going to be used efficiently it must contain the information required for the business of the computer. If the sources of all those pieces of information are to be on the computer as well it would obviate the use of the computer and might lead to the data user needing a much larger and more expensive computer—and possibly two or even three computers—or an 622 extremely comprehensive manual backup system which would not, in fact, be covered by this Bill.
§ Lord Perry of Walton
My Lords, while appreciating what the noble and learned Lord said, may I ask whether the Government would be prepared to differentiate between the third parties to whom he has referred and third parties where there is a transfer of information from one computer file to another? That is the danger that I see in the absence of an amendment of this sort. It does not seem very difficult to flag a computer with an indication that there is a particular part of the file which has been obtained from the computer file of another data user.
§ Lord Wigoder
My Lords, I have listened to the noble and learned Lord's argument with the greatest of interest and to the contributions made also from other parts of your Lordship's House. The difficulty that I see as to what the noble and learned Lord suggests is simply this: ought there to be protection for, let us say, newspapers who have totally inaccurate information on their computer? I can quite understand that, where there is information which is accurate, it may be undesirable in the interests of protecting sources that it should be revealed, but where the information is wildly inaccurate it seems to me on first reading at least that Clause 22 as it now stands will deprive the data subject of any remedy whatsoever. Indeed, taking the matter a stage further, again as I read the clause, any data user can avoid any liability under Clause 22 of any kind simply by saying, "Obtained from third party". The data subject will be powerless and the registrar will be powerless; a great big coach and horses will have been driven right through this clause.
I accept of course from what the noble and learned Lord said that this amendment may well be defective in its drafting in the sense that it may have resulted in some consequences that I certainly did not intend. I hope that the noble and learned Lord might agree that there is nevertheless the possibility of a widespread abuse of Clause 22 here and that it might be desirable that it should be looked at again before another stage. With those observations, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 25 [Jurisdiction]:
§ 4.22 p.m.
§ The Lord Chancellor moved Amendment No. 64:
Page 20, line 7, at end insert—
("( ) For the purpose of determining any question whether an applicant under subsection (8) of section 21 above is entitled to the information which he seeks (including any question whether any relevant data are exempt from that section by virtue of Part IV of this Act) a court may require the information constituting any data held by the data user to be made available for its own inspection but shall not, pending the determination of that question in the applicant's favour, require the information sought by the applicant to be disclosed to him or his representatives whether by discovery (or, in Scotland, recovery) or otherwise.").
§ The noble and learned Lord said: My Lords, Amendment No. 64 is a Government amendment and it has fallen to me to move it. If I may also speak on Amendments Nos. 76 and 78, which are bound up with Amendment No. 64 and consequential, I can 623 explain them all rather simply. It is obvious that if we are to give access under Clause 21 to the data subject and there is a dispute as to whether all or any of the information is held or comes within the right, somebody has to decide that dispute. That somebody has to be, on the general principles of the Bill, the court. The question then arises: Is the court to have access to the information, and, if it has access to the information, has it got to give it to the other side to the dispute? The answer to that in the amendment which I propose is, yes, the court must have access to the information for the purpose of deciding whether the data subject's rights have been infringed or whether his claim is justified. It would defeat the object of the whole process if at the same time the court had to disclose to the data subject what he was asking to be disclosed if he won the case.
§ I am bound to say that I had thought when the Bill was originally under discussion that the inherent jurisdiction of the court, applying the ordinary rules relating to discovery, privilege and so on, which have been much under discussion in recent years, would enable the court to do exactly what this amendment proposes should be done; since when I have consulted the judiciary, who do not think so—or at any rate do not all think so. So in order to achieve an object which I believe to be from the start desirable, and even common sense, this amendment has been devised, and I beg to move.
§ On Question, amendment agreed to.
§ 4.26 p.m.
Lord Mishcon moved Amendment No. 65:
After Clause 25, insert the following new clause:
§ ("Findings of Registrar as evidence.
§ In any proceedings brought under sections 22, 23 or 24 above any findings by the Registrar shall be admissible in evidence.").
The noble Lord said: My Lords, your Lordships may have remembered that there was an amendment, No. 139, at the Committee stage which was not moved and which dealt with the question of the findings of the registrar, saying that those findings should be admissible in evidence, and so the amendment read at the Committee stage:
should also be deemed to be true unless the contrary was proved".
We who were responsible for the amendment reflected upon that and felt that there were disavantages possibly about trying to make the certificate of the registrar in regard to his findings a matter which would come before the courts. There were disadvantages in making those findings binding, as it were, unless the contrary were proved by one party or the other. So the amendment comes before your Lordships' House on this occasion merely making it as a matter of sensible convenience, and in order to abridge proceedings, that in the proceedings under Clauses 22, 23 or 24 the findings of the registrar should be admissible in evidence. It struck us as being a sensible amendment and I hope that your Lordships will so think. I beg to move.
§ The Lord Chancellor
My Lords, I hope to persuade the noble Lord that this amendment is not as desirable 624 as he thinks it or tends to think it at the moment. I hope to explain quite shortly why, although I am grateful to him for bringing the point to our attention.
The first observation that I would make is that the only formal findings of a registrar under the Bill are the reasons required to be given by him on refusing an application for registration under Clause 7 or in serving a notice—an endorsement notice or a de-registration notice—under Clauses 10 and 11 or a transfer prohibition notice under Clause 12. The new clause proposed in the amendment offers no other definition of "findings". It may for aught I know be extended beyond such reasons to something else but, if so, it does not say so and I think therefore that I am entitled to go on the basis that it must refer—at least at any rate as at present drafted—to the findings which I have sought to define in my first sentences.
If the registrar makes such findings, they are in themselves without validity until some sanction is taken under them. If the data user who is served with a refusal or with an enforcement or deregistration notice takes not notice of it and defies it without taking advantage of his right to appeal to the tribunal, he will of course be prosecuted to conviction and that conviction can already be cited under Section 11 of the Civil Evidence Act 1968, which was designed to reverse a case known to lawyers as Hollington v.Hewthorn, which decided that previous convictions were not evidence of guilt; but since 1968 previous convictions have been evidence of guilt. If therefore the notice were defied and the data user was prosecuted to conviction, the Civil Evidence Act 1968 could be invoked and the amendment would be unnecessary. But if, on the other hand, the data user is not served with any notice under the Act or if he ignores the notice and is not prosecuted by the registrar or, if prosecuted, is acquitted, there is nothing which could properly be used against him in subsequent proceedings. If that were the case the amendment is objectionable.
So although I fully appreciate that the object of this amendment is a laudable one, which would be to save the data subject in proceedings which he may take under this part of the Act trouble in adducing evidence in support of his claim, this is not, in my respectful submission, the way in which to do it. If the findings are such that he ought to be able to use them he can, and the amendment is unnecessary. If, on the other hand, the findings are such that he ought not to be able to use them, he ought not to be allowed to do so and the amendment would be objectionable. I hope that I have made my point plain and I hope that the noble Lord will take it into account in his reply.
§ Lord Mishcon
My Lords, reckless is the Member of your Lordships' House who did not take into account anything that fell from those learned lips! It may very well be that I am on a wrong tack but I should like merely to amplify what I said before. However, I shall do so very briefly in order that the noble and learned Lord may be quite sure that he has covered in his very explicit reply the point that I was really trying to make, however inadequately.
May I remind your Lordships that under Clause 22 the data user is entitled to go where appropriate for compensation for inaccuracy. Under Clause 23 he is 625 entitled to claim compensation for loss where there is an unauthorised disclosure. Under Clause 24 he is entitled to go for rectification and erasure in certain cirumstances. What I was trying to do was to save the data user, as the noble and learned Lord most correctly and courteously pointed out—
§ Lord Mottistone
My Lords, I hope that the noble Lord will forgive me for interrupting, but does he mean the data user or the data subject?
§ Lord Mishcon
My Lords, in common with all of your Lordships, I am getting mixed up with data user and data subject. I am most grateful to the noble Lord, Lord Mottistone, for his correction. I of course mean the data subject, and I am most grateful to the noble Lord. What I was trying to do was to ensure that where—as in most cases—the registrar would have investigated a complaint in regard to inaccuracy, in regard to wrongful disclosure, then instead of having to go through all of the motions again when going to the court for compensation, I should have hoped that at least there was prima facie evidence before the court. I have in mind the findings of the registrar: that he had looked into the matter—as we know in practice that will be the first stage—and found the necessity for erasure or rectification, or that there was an unauthorised disclosure, or had found that there was, indeed, an inaccuracy. That was what I was trying to achieve.
If the noble and learned Lord tells the House that he is very well seized of that being the reasoning behind it, but still feels that the amendment is unnecessary or inadvisable for the same reasons that he gave just now, then quite obviously I shall be moved by those remarks. Indeed, I imagine that the noble and learned Lord would be kind enough, with the leave of the House (if that is necessary) so to indicate.
§ The Lord Chancellor
My Lords, I hope that I was not being disingenuous. I rather suspected that what the noble Lord might actually have had in mind was some kind of informal finding by the registrar. That certainly would not be covered by his existing amendment because the only meaning that I can attach to the word "finding" is the kind of finding which would be definitive under the Act. But I am seized of the point that there might be a short cut. My own feeling is that if the registrar were to give the data subject material which he could use as evidence in court proceedings, it might very well be that, with the assistance of the other provisions of the Civil Evidence Act, he might find his way much smoother than he would have done before the passing of the Civil Evidence Act.
But I should like to write to the noble Lord and obtain advice about this matter. I do not think that it is absolutely obvious that the data user himself ought to be at a disadvantage in court proceedings as a result of a finding which is of a purely informal character. This is after the registrar has found—or has thought he has found—some degree of inaccuracy in the data on the record or if he finds that there has been a loss within the meaning of the succeeding section giving rise to a right of compensation or an infringement of the rights under the following section—the third 626 section—of rectification or erasure. I should like to consider the problem further without commitment. If the noble Lord will find it possible to withdraw the amendment, I shall communicate with him further on the matter.
§ Lord Mishcon
My Lords, I have not the slightest hesitation, in view of the courteous and helpful remarks of the noble and learned Lord, in begging leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 27 [National security]:
§ 4.37 p.m.
§ Lord Elton moved Amendment No. 66:
Page 20, line 32, leave out from beginning to end of line 9 on page 21 and insert—
("27.—(1) Personal data are exempt from the provisions of Part II of this Act and of sections 21 to 24 above if the exemption is required for the purpose of safeguarding national security.
(2) Any question whether the exemption mentioned in subsection (1) above is or at any time was required for the purpose there mentioned in respect of any personal data shall be determined by a Minister of the Crown; and a certificate signed by a Minister of the Crown certifying that the exemption is or at any time was so required shall be conclusive evidence of that fact.
(3) Personal data which are not exempt under subsection (1) above are exempt from the non-disclosure provisions in any case in which the disclosure of the data is for the purpose of safeguarding national security.
(4) For the purposes of subsection (3) above a certificate signed by a Minister of the Crown certifying that personal data are or have been disclosed for the purpose mentioned in that subsection shall be conclusive evidence of that fact.").
§ The noble Lord said: My Lords, we had a full debate on Clause 27 of the Bill in Committee when the noble and learned Lord, Lord Elwyn-Jones, spoke to a number of different amendments, and I replied in like vein—I fear at some length. Although it led to some confusion in Committee, I have no choice but to repeat that approach now for our Amendments Nos. 66 and 67 go together; and they consist of what I might call a re-presentation of the totality of Clause 27. In moving Amendment No. 66, therefore, I should also like, with permission, to speak to Amendment No. 67.
§ In Committee, it became clear that there was broad agreement on certain key points on both sides of the House. First, that the safeguarding of national security is of prime importance and that the Bill should not jeopardise that. Secondly, as a consequence, that special provisions were required in the Bill to exempt national security data. Thirdly, that some system of ministerial certificates was required to confirm that a claim to exemption was justified in the event of that claim being challenged. Fourthly, that any such certificates should be issued only at the highest level. Fifthly, that it was particularly important in an area such as this for the purport of the statutory provisions to be clear, as I hope they will be to the noble and learned Lord opposite.
§ In the light of the views expressed in Committee, we have looked again at Clause 27. I have to say that I think that we have found room for improvement—both in terms of clarification and in terms of the way in which ministerial certification will work. Let me first draw the attention of the noble and learned Lord 627 opposite to a provision that has not changed (apart from drafting changes consequential on other amendments to the clause to which I shall refer in a moment). That provision is the one conferring an exemption from the non-disclosure provisions on users who are willing to disclose data for the purpose of safeguarding national security. The guardians of national security must not be prevented from being given information to assist them in their work. As is recognised in the European Convention and elsewhere in Europe, the general needs of national security must override the particular demands of data protection here.
§ But now let me explain what is changed by our two amendments. First, we acknowledge that the distinction between data held by a Government department and data held by other users may have been an aid to confusion rather than precision. I accept what the noble and learned Lord said—that the purpose of subsection (2) of the Bill as originally drafted was not immediately obvious. So we have done away with that distinction. Now, we propose that all data, whether held by a Government department or by, for example, a defence contractor (or the police), should be treated in the same way and should be exempt where the exemption is required to safeguard national security.
§ We have also considered carefully what was said about the need to avoid exemptions being claimed regardless of whether Ministers charged with determining when national security needed to be safeguarded approved the exemption. Under the clause, as amended, the test for exemption of all data is the same: they will be exempt only if a Minister determines the exemption to be required to safeguard national security. Thus, there will be no opportunity for a user to make a personal decision that data are exempt under the Bill without reference to a Minister. Unless a Minister determines that the data require exemption, no exemption can be claimed. A user claiming exemption where a Minister does not so determine will be operating unregistered and liable to the sanctions provided for by the Bill. In this way we hope to have reassured the House that exemptions under Clause 27 will be under strict ministerial control.
§ We have now also amended the procedure for issuing certificates in the light of our Committee debates. We were impressed by the concern expressed on both sides of the House that officials or others not specified would be able to sign "on behalf of" a Minister. I indicated in Committee that there may be some practical difficulties on occasions in getting a personal ministerial signature. But we accept that we must not allow confidence in the system to be lost because of fears of delegation of the certificating process. The difficulties will have to be overcome. Therefore, under the clause, as amended, a personal signature of a Minister is required. No delegation is possible. That is our next concession.
§ And finally, we have thought further about making it explicit on the face of the Bill that the ministerial functions under this clause will be performed only at the highest level. I explained in Committee why we objected to the proposal of the noble Lords opposite 628 that only a Secretary of State should be involved. Our objections remain. I also have to say that we are not overly attracted by the laborious task of specifying each Minister, as the noble Lords now propose in their new amendment. However, I think that we can meet the point by the approach that we have taken in our own Amendment No. 67. This ensures that the Ministers involved must be of Cabinet rank—or else the Attorney-General or Lord Advocate (for whom I am glad to hear cheers opposite) whose special responsibilities may give them cause to hold data requiring exemption, and yet they may not be in the Cabinet.
§ My Lords, I fear I have again spoken at length. But I think it is important to make clear what our aims are in amending Clause 27. I say frankly that we were impressed by the debate in Committee. I said then that we would consider what we had heard. And that consideration has led us to a revision of the approach to national security data: all data are to be treated in the same way, regardless of whether the data are held by a Government department or not; no data are exempt unless a Minister determines that that exemption is necessary; certificates can only be issued personally by a Minister; and the Minister involved must be of the highest rank only. I believe that we have returned to the House with proposals that meet the concerns in Committee. I beg to move.
§ 4.45 p.m.
§ Lord Mishcon
My Lords, the noble Lord the Minister need not apologise in the slightest for the length of his address to your Lordships upon these two amendments now brought forward by the Government. Indeed, they deal with important points for which we on this side have the support of certain Members of your Lordships' House who do not have the privilege of sitting on our Benches. This was something for which we fought hard. It is a measure of the Minister's breadth of mind, if I may say so, that after the consideration which he promised he has taken these points on board and has brought forward these amendments.
The first one that we fought for was to see to it that a Minister himself took responsibility and that it was not somebody signing on his behalf. That has been dealt with. The second point we fought for was the place in the hierachy of the Minister who takes that responsibility. That has been dealt with too in this amendment, and we are grateful for both. I have only two queries. One is a real query and the other one, I hope, a query which contains within it a constructive suggestion.
The first query may arise as a result of my ignorance, for which, if that be so, I apologise to your Lordships in advance. I myself was not aware of any statutory definition of "Cabinet". It may well be that there is such a statutory definition, and therefore if you put the word "Cabinet" into an Act of Parliament you are doing something which can easily be defined in accordance with our constitutional law as laid down in statute and not certain traditional names which have been given to very select people, be they in fact real or be they shadow. In those circumstances, my first question really is one for clarification and in order to 629 make sure that the Government have not gone wrong in this amendment.
The second one is a question which I hope will prove to be constructive and not pedantic. Throughout Amendment No. 66 the Government have used in their amendment the word "required". If your Lordships will look at the third line, for example, of newly suggested Clause 27(1) it says,if the exemption is required for the purpose of safeguarding national security".That follows right the way through the amendment. One poses the question to oneself, "required by whom?" Should not the word in fact be "necessary"?
To try to illustrate the fact that this is not a bit of pedantry but has some meaning to it, it may be that an official comes before the Minister and says, "Minister, this is required for the purpose of national security". One wants to be sure that the Minister does not say, on looking at this subsection, "Oh, I see it is required for national security. In those circumstances, here is my signature". What he has to be satisfied about when that question is put to him is that indeed it is necessary for the purpose of national security. I think that in this context the word "necessary" is a far better one than the word "required".
The last point I make upon that is that if your Lordships would be good enough to look at subsection(3) of the suggested new Clause 27, the third line reads:any case in which the disclosure of the data is"—and even the word "required" is left out—for the purpose of safeguarding national security.Again the word "necessary", I would have suggested, ought rightly to go into that line.
This is something that I have no doubt the noble Lord the Minister would want to look at in regard to my second point, and it is purely a question of brushing the amendment up and making it what I believe the Government would want to make it. My first question is a very real one only in the sense that I think your Lordships too would be interested to know whether there is a statutory definition of "Cabinet" and in what statute it appears.
§ Lord Mottistone
My Lords, I should like briefly to thank my noble friend for incorporating the point which I raised in my Amendment No. 144A on leaving out the alternative of an official signing certificates. On a point of detail, I was impressed by the argument of the noble Lord, Lord Mishcon, about the need, in appropriate places, for "necessary" rather than "required". It would seem to me at first sight that that is a good argument, and I would support it in principle.
§ Lord Elton
My Lords, I am glad to embark on this stage with so much approval. Long may it last. I am not so confident about my ability to answer the questions noble Lords have asked. While there may not be a statutory definition of "Cabinet", there is a precedent for the use of the term in statute and therefore I think we shall find we are on good ground; but I will test the ground in the light of the noble Lord's query. Similarly with the word "requirement". It may 630 be a matter of semantics. I suspect that to require something in the sense in which the noble Lord, Lord Mishcon, suggested it might be used, there would need to be in the Bill a power to require it, and, as that power is not there, I suspect that the word "required" would be used in the sense in which he intends using the word "necessary". But, again, I shall take care between now and the next stage to see that we have not inadvertently said something we did not mean to say. I am grateful to the noble Lord and my noble friend for their remarks.
§ Lord Diamond
Before the matter is disposed of, my Lords, I wish to refer once more to the question of a Member of the Cabinet, because the Minister said he would look into it. I think I am right in saying that when moving the amendment he used the term "Minister of Cabinet rank", and I think he will find that it is possible to be a Minister of that rank without being a Member of the Cabinet, which is the term used in the amendment. In looking into the matter in order to get it completely clear, the Minister will no doubt look into the wording of the amendment and not the wording of his speech in which he introduced it, which, if I am right, he quite understandably used that term.
§ Lord Elton
My Lords, my inquiries will be both more careful and more precise in view of the noble Lord's intervention.
§ On Question, amendment agreed to.
§ Lord Elton moved Amendment No. 67:
Page 21, line 12, at end insert—
("( ) For the purposes of this section "Minister of the Crown" means a Minister who is a member of the Cabinet, the Attorney General or the Lord Advocate.").
§ The noble Lord said: This amendment is consequential, my Lords. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 68 not moved.]
§ 4.53 p.m.
Lord Mottistone moved Amendment No. 69:
After Clause 27, insert the following new clause:
§ ("Special investigation of exemptions
§ .—(1) If a person has reason to suspect that his name is recorded as a data subject contrary to one or more of the data principles (except the seventh principle) listed in Part I of Schedule 1 to this Act under the exempted circumstances described in section 27 above, he may apply to the Registrar for a special investigation.
§ (2) When a special investigation is requested, the Registrar must satisfy himself that the application is made for reasons which meet the requirements of Part III of this Act and that one or more of the data principles (except the seventh principle) have possibly been contravened.
§ (3) Subject to subsection (2) above, the Registrar is empowered to obtain such information as is necessary to satisfy himself either—
- (a) that there is no relevant data held, or
- (b) that the personal data held under the terms of section 27 of this Act conforms to the data principles (except the seventh principle).
§ (4) In the event that the Registrar is not satisfied that the terms of subsections (3)(a) or (3)(b) above are met, he may make representations to the Secretary of State.
§ (5) When the Registrar has completed the special investigation he shall inform the applicant for the special investigation that it has been completed.").631
The noble Lord said: My Lords, this is a substantial recasting of an amendment I moved in Committee, and is designed to take note of the points which my noble friend made at that stage. I agree with him that the question of safeguarding national security is of the highest importance, and I have endeavoured to cast the amendment in such a way as not to infringe that. However, it seems that certain of the principles will potentially be broken within the security network. For instance, principle No. 3 is:
Personal data held for any purpose … shall not be used or disclosed in any manner incompatible with that purpose".
One might find that happening in the dim world of national security. Principle No. 4 is:
Personal data held for any purpose … shall be adequate, relevant and not excessive".
One can imagine that with the passage of time it might become both irrelevant and excessive, and therefore that one would be broken. Under No. 5,
Personal data shall be accurate and … kept up to date".
That is always a worry when keeping any data, and it would not be peculiar if personal data held for national security purposes suffered from a fault in that area. Principle No. 6 is:
Personal data … shall not be kept for longer than is necessary".
What I have described might occur—in a sense, it might be more likely to occur, or to occur more often—in the area of national security, which is totally exempt because, I am afraid, officials (whoever they are and however important and reliable they may be), if they do not have a curb on their behaviour, can perhaps be thought to keep more information than they should and perhaps to keep information which has become out of date with the passage of time.
§ The important point about the rest of the Bill is that whoever they are—and this applies to other people within this general exemption framework—there is the possibility that the registrar can question whether they are following the principles properly. But, as I see it, he cannot ask questions in respect of certain areas of national security, and it is that power which my amendment seeks to give him. It is limited to accepting that, under certain conditions, a special investigation may be necessary. It sets out what he should seek in subsection (3), and subsection (4) gives him power to make representations if he is not satisfied that the points made in the earlier part of the clause have been met. In subsection (5) he makes a totally bland comment to the inquirer which, I hope, gives nothing away; he just says the investigation has been completed.
§ The inquirer will have to rely on the fact that the registrar has taken the trouble to look into the matter and has come to some sort of conclusion. It might be the conclusion in subsection (3)(a) or (b). Either way, he must accept that. It might be that he is satisfied that the information is held for a perfectly good reason. If the registrar is not satisfied, he has power to make representations about the matter. I suggest there is not much danger of, if you like, people who do not deserve to do so (I shall not go further than that to describe them) making inquiries. If one does not have one's name in some computer for national security reasons and one makes an inquiry of the registrar in the terms 632 of my amendment, that will at once bring one's name to the notice of the national security people, who will look at one with a very careful eye, and one would have to be careful not to do that if one was in any way concerned about not getting on to lists of that sort.
§ It is a reasonable amendment, it will not break or give cause for breaking any essential security purposes, but it will give that extra safeguard and, above all, will mean that even the officials within this cloaked world will be subject to some sort of inquiry and will not get slack and inefficient. I beg to move.
§ Lord Mishcon
I support this constructive and useful amendment, my Lords. It follows in many ways a recommendation considered carefully and made in the Lindop Report. Mothers have often learned from their children as well as children learning from their mothers. I think that the mother country could possibly learn from the child dominion of New Zealand in this connection. From an informant much more learned than I in these matters I learnt today that New Zealand has a privacy commissioner. The post was set up under an Act in New Zealand. If a person finds that every application that he makes for a job is failing, and he has an idea that some inaccurate information about him is being disseminated from a computer, or in some other way, he can go to the privacy commissioner. The commissioner will note the complaint, make his own inquiries, and then do exactly what the noble Lord, Lord Mottistone, said. He will come back to the person, and tell him, "I am not going to tell you what I have found, but in my view you have nothing to worry about". That is the end of the matter. I should have thought that that would be a very valuable piece of assistance that could be given in the context of the Bill before us. Therefore, we on these Benches support the amendment.
§ Lord Swinfen
My Lords, I, too, support the amendment. The only point that needs to be carefully watched is that the registrar, or his staff who have to make the relevant inquiries, have the necessary security clearance to look at the rather secret computer data that they will need to look at.
§ Lord Elton
My Lords, in Committee my noble friend Lord Mottistone indicated that he would seek to refine the amendment that he then moved and bring it back to your Lordships. That he has done, and the amendment now focuses solely on national security data, rather than on all data exempted in any way under Part IV, as it did previously. Under the amendment the registrar is empowered—no, he is obliged; and that is important—to conduct a special investigation whenever anybody complains that data are being held about them in breach of any of the seven principles. The registrar cannot go back to the data subject with his findings, but he can go to the Secretary of State.
I appreciate the motives for the amendment. In Committee my noble friend described it, I think, as his "most important personal amendment". But I cannot avoid pointing out the many difficulties that it raises. First, I have to ask whether we really want to place the registrar under a statutory duty to investigate every application that he receives, since that is the effect—the inescapable effect—of the amendment. 633 With every one he must at the very least satisfy himself as to whether it meets the requirements of Part III, and whether one of the principles (other than that concerning subject access) has been breached. Clearly that cannot be done without going to the data user, if of course he can identify the data user. The subject may not have done this. His suspicions may rest simply on the belief that he is being followed everywhere, or that there is a funny noise on his telephone when he uses it, or that he has twice failed to get tickets for the Royal Tournament. It is surprising what circumstances will make some people believe that the security service has got something on them, and it is also surprising the number of abstruse reasons that are advanced in appeals to me as a Minister from people who have been refused jobs such as that of prison officer.
If however the registrar can identify the user, he must then investigate the data. Incidentally, it is difficult to see how the registrar can consider whether an application is made for reasons that meet the requirements of Part III. So far as I can discover, Part III contains no requirements that can be regarded as capable of being met in those terms. It deals purely with rights to subject access—surely inapplicable here; and to compensation in certain circumstances—again inapplicable, because the registrar cannot report back to the data subject.
§ So the new—
§ Lord Mishcon
My Lords, I wonder whether, with his usual courtesy, the noble Lord the Minister will allow me to intervene, since we are on a very important matter and I am unable to speak again, other than by jumping up in this way. As I see it, in the subsection of the amendment to which the noble Lord the Minister was referring there are two points which seem immediately to upset his arguments. Since I must be wrong in thinking that his arguments are upset, I should be delighted if he would deal with the matter. First, all that is stated in subsection (2) is that the registrar must be satisfied that there is a prima facie case. That will mean that the man who thinks that he has heard mumblings on his telephone or who believes that someone living opposite is persecuting him is immediately ruled out. The amendment refers to possible contravention, not actual contravention. Secondly, the contravention relates to the principles set out in one of the schedules. The contravention is deemed to relate to something in one of the schedules, not in Part III.
§ Lord Elton
My Lords, I must not be drawn too closely into the Committee format which, in his opening remarks this afternoon, the noble Lord drew to our attention is not the format for today. However, if I may respond to what the noble Lord has said, I would say that, as I read subsection (2) of the amendment, it states that,the Registrar must satisfy himself that the application is made for reasons which meet the requirements of part III of this Act"—
§ Lord Elton
And,that one or more of the data principles (except the seventh principle) have possibly been contravened".634 There are two requirements, one of which, without which the other is invalid, is that the application shall meet the requirements of Part III of the Bill. Let us not fence too long on subsidiary arguments.
If I can now recollect what I was saying earlier, I have dealt with two defects which I think are serious defects, though evidently I have failed to convince the noble Lord of their seriousness. Now I should like to address the purpose, rather than the effect, of the amendment. First, should the registrar be given a role in investigating national security data? I know that in certain countries there operates a not dissimilar system. I was going to quote Sweden as an example; the noble Lord has quoted New Zealand. But in rather more countries the data are wholly exempt, as they are in the Bill, and we are convinced that that is the only approach to suit this country.
The information used by those responsible for safeguarding national security is of the highest possible sensitivity, and the proper way to handle it is to keep it contained within the smallest possible circle. Nobody who does not absolutely need to know should know, and my noble friend Lord Swinfen gave eloquent testimony to the importance of the category of the people who know. It is very easy to sound melodramatic about it all, but it is a very serious business, played for high stakes. We do not think that the registrar should be brought into this circle; nor, frankly, do we believe that it is fair or sensible to ask him to be the judge of these matters. In all seriousness I have to ask my noble friend whether in an area where the registrar will have no experience—an area, which of necessity operates covertly—and on which he can obviously seek no outside advice, he could decide if data were relevant, or adequate, or kept longer than necessary, as certain of the principles require.
That brings me to my final point. Even if we could entertain the proposed arrangement, would it provide any real assurance to data subjects? All that the registrar would be able to do would be to make representations to the Secretary of State. But the subject of the representations would know nothing of this. He would not know even whether it had been confirmed that data about him were held or not held. He would get only the assurance that the noble Lord, Lord Mishcon, said was so valuable to people living in New Zealand: that the registrar had looked into it and he need not worry. Since the registrar can do no more than pass his views on to the Secretary of State, the subject would not even have the satisfaction of knowing that, if something was wrong, it had been put right.
I am sorry to say that I consider that national security data must be wholly exempt from the Bill. There can be no halfway house. My noble friend has sought one, but it would be of little help or reassurance to subjects, it would be counter to the interests of national security, and it would impose on the registrar a heavy burden which would serve little useful purpose. I am sorry to come down so heavily on something to which clearly my noble friend attaches great importance. I would meet him if I could, but I believe that the security of the nation is too weighty a matter for us to compromise, and I must ask him not to press the amendment.
§ Lord Mottistone
My Lords, first, I must thank the noble Lord, Lord Mishcon, for his support. I find the answer given by my noble friend the Minister most uncharacteristic and singularly unhelpful. I was not without personal experience of this whole area at one time in my life, and I know very well what he is talking about. It was disappointing to find that the majority of what he had to say to me was a detailed criticism of the detail of my amendment—which, when one produces it single-handedly, is almost bound to be open to criticism. I challenge any one of your Lordships by himself to produce an amendment of any complexity which does not in the end have to be corrected by the Government. If one thinks about my noble friend's speech, at least three-quarters of it was a sort of nit-picking criticism which is not really appropriate to an amendment of this sort.
However, to come to the main point of his argument, he did not answer my point, which is a matter that I find of great concern—and I repeat that I have had association with these matters personally in the past—that people who can do things in secret without proper discipline upon them can do things wrong. I think that what the New Zealanders have done, and, obviously, the Swedes, has got in it the germ of an excellent idea which I would hope that my noble friend could take very carefully to heart. Forget my amendment and its details! That is not the point. It is only an example of how something might be done. It may have been all right in the days of hand-written records because those sorts of records require quite a lot of hard manual labour to produce and to retain; and they are not as likely as is computer-held information to be in risk of breaching the very principles in Schedule 1 which I believe could be breached in this particular secret area where there are no critics.
I think that the principle of what I am seeking to have put in the Bill is a very important one which ought to be taken seriously by the Government. It is very disappointing that they concentrated on criticising the detail (which is quite irrelevant at this point) of my amendment. I hope that my noble friend will think again, will take the matter back and think in detail about what I said when I introduced my amendment. I appreciate that this text could be unsuitable for this Bill and, therefore, only for that reason I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 28 [Crime, taxation and immigration control]:
§ 5.17 p.m.
§ Lord Elwyn-Jones moved Amendment No. 70:
§ Page 21, line 16, at end insert ("or").
§ The noble and learned Lord said: Amendments Nos. 70 and 71 go together. Together, they constitute what I venture to say is perhaps the most criticised part of the Bill. Your Lordships will see that Clause 28 includes in the wide concept of the words "control of immigration" the categories of personal data which are made exempt from the subject-access provisions in this Bill. It is this exemption which has caused considerable public concern and has been condemned by organisations concerned particularly with the 636 immigrant population—the Joint Council for the Welfare of Immigrants and other bodies concerned with civil liberties.
§ The publication of the clause has caused much anxiety not only for those lawful immigrants who are already in this country but even for those who were born here and who have been settled here for years. It is creating uncertainty, a sense of unease, a sense of discrimination, which is most undesirable (putting it at its lowest) to promote at this time. The effect of the provision will be most hardly felt by the ethnic minority communities. Indeed, it clearly is principally directed against them.
§ An immigration officer, for instance, is very unlikely to have any reason to try to obtain information from doctors, employers, social workers and others about a white person, born or settled in this country. That would be a rare minority event. But a black person may well be singled out for suspicion as an over-stayer or illegal entrant, and inquiries may be made, even though he or she (as I have suggested) may have been settled in this country since childhood. It is a cause for anxiety for the reasons I have already indicated. In so far as the object is to prevent or detect crime, that is already provided for in Clause 28(1)(a) of the Bill. That remains. The amendment has no effect upon that. That covers adequately the people who have broken the law in the field of immigration. That is already covered. In our submission, this is a quite gratuitous extension of what is necessary in the field of the greatest possible sensitivity in our country at this time, that of race relations. We seriously implore the Minister and the Government to withdraw this highly disturbing provision of the Bill.
§ Lord Mishcon
In supporting the amendment which was so eloquently moved by my noble and learned friend, may I refer to something that the noble Lord the Minister said at Committee stage when this very matter was discussed? I am referring to column 702 of the Official Report of Tuesday, 22nd February.Article 9. 2. b."—He was referring to the article of the convention—specifically provides for derogation from the convention's provisions where necessary in the interests of protecting the rights and freedoms of others. I submit to your Lordships that that applies to the right and freedoms of those of every colour, in every community in this country, who are already settled here, and it is in their interests that we should control immigration. An ineffective control arouses fears which can be played on by unscrupulous people".I say this! The Minister may tell me I am wrong to say it; but I am going to say it just the same. For a Minister representing, with such distinction, the Home Office, it was a remarkable argument to say that immigration control exemption from subject access is within the meaning of a convention because it is "in the interests of protecting the rights and freedoms of others". If ever words were torn out of their context and turned upside down those are the words that were spoken by the noble Lord the Minister on that occasion.
It is interesting to find out where those words,the rights and freedoms of others".came from. They came from the convention, but their deduction was from the European Convention on Human Rights. The convention on Human Rights, so 637 much respected by this country and to which this country was a signatory, are rights about life, liberty, fair trial, freedom of expression and the rest of it. They were certainly never meant to be twisted—I use the word without any offensive connotation—into job protection in the labour market, which the noble Lord the Minister went on to talk about, against an influx of foreign immigrants or the question of raising fears among certain members of our community because of an influx of immigrants.
I ask this question, I think pertinently, of the noble Lord the Minister: has his department—has anybody to his knowledge—submitted this question of the exemption of immigration particulars of data,if I can put it that way, to the European Assembly in any one of its departments, to the Commission, to the Ministers or to anybody? Has he asked whether that is their interpretation of what is supposed to be a derogation of rights because it is in the interests, as he put it, of protecting the rights and freedom of others? If he has so submitted it, may we know the reply? If he has not so submitted it, is he prepared to do so? Because I think I know the answer. I feel that that is only right in the context of this Bill, dealing with prevention of crime and other allied matters which are well within the purview of proper exemptions, I hope that it will not be left to another place merely to echo its voice on this matter.
I hope that this House, before the Bill reaches another place, will have exercised its usual protection of those who lead it and whose good name is at stake—the whole convention's good name is at stake in this matter—by seeing that the amendment is carried. There is no party matter in regard to this because I believe that this is supported in all parts of your Lordships' House, but I hope that the House will exercise its proper rights and duties to see that this amendment is carried.
§ Lord Donaldson of Kingsbridge
My Lords, the noble and learned Lord moved this amendment with admirable clarity and admirable conciseness and from this Bench we are very happy to support it.
§ 5.25 p.m.
§ Lord Elton
My Lords, I wish I could be as concise as the noble Lord, Lord Donaldson of Kingsbridge, and thus secure even greater support for what I am about to say than I otherwise would, but it is not possible. I should start by giving some background on the nature of our immigration control and the way in which it is operated. I hope that noble Lords will find that useful.
Immigration into the United Kingdom is controlled under the Immigration Act 1971, as amended, and the immigration rules. The primary task of those administering immigration control is to assess whether persons subject to control do or do not qualify for admission or continued stay under the relevant rules and if so on what conditions. Leave will be refused if a person does not qualify. The Act provides rights of appeal against a refusal to the immigration appeals system. In addition Members of either House of Parliament can make representations to the Home Secretary. There is also the possibility of judicial review by the courts.
638 The Act provides for a number of criminal offences covering such matters as illegal entry, overstaying, breach of conditions of stay and assisting or harbouring immigration offenders. These are an essential backup to the control but the main sanction normally is not prosecution. It is refusal of leave to enter or remain and, in the last resort, deportation or removal from the United Kingdom. In administering the Act, the Immigration and Nationality Department naturally holds a great deal of information about individuals subject to control. Some of this is held on computer because it is important that there should be a ready access to this information, both at the headquarters of the department and at the ports; they are parts of the same system.
I must now make two important points at this stage. First, the application of the immigration rules is not a racist exercise as some noble Lords seem to be tempted to suggest, nor are they concerned solely with coloured immigration. The rules apply evenhandedly to all persons who are subject to control, and if there were more white people than other people seeking to come into this country your Lordships would have no more grounds for saying this was racist against white—
§ Lord Avebury
My Lords, how can the Minister make that qualified assertion when he knows perfectly well that cases have been brought against this country in the European Commission of Human Rights and that at least one of them is still under consideration there and has not yet been the subject of a ruling by the European Commission?
§ Lord Elton
My Lords, the noble Lord argues from the particular to the general that the entire system is racist because of a situation in which a person from the ethnic minorities has brought a case in the European courts. I do not think that the individual does support the general. The noble Lord cannot, I regret, argue from a sitting position and I must not constantly give way. He has made his point. I cannot accept it. The noble Lord will be able to speak again later and doubtless with much greater cogency than by this method.
In administering the Act, the Immigration and Nationality Department holds much information available both in London and at the ports of entry and it is necessary to have it available quickly, apart from anything else, for the convenience of travellers arriving at the ports. The rules state in Section 1 of the Immigration Act 1971 that immigration officers will carry out their duties,without regard to the race, colour or religion of people seeking to enter the United Kingdom",and in Section 2 that,the powers conferred by the Act are to be exercised without regard to a person's race, colour or religionSecondly, in passing the Immigration Act and approving the Immigration Rules, Parliament has decided that immigration control should operate and that it should operate effectively. It is in the interests of all people who are lawfully in this country, including our ethnic minority communities, that others should not be able to get away with abusing or evading the controls. I say that without embarrasment. I believe we should be one nation and to suggest that the protection 639 of employment is not a matter of equal concern to somebody who is unemployed from the ethnic minorities as to somebody from the majority communities is as disingenuous as the noble Lord, Lord Mishcon, suggested that I was being.
Information held about individuals is the raw material of the control and speedy access to certain parts of that information with the aid of computers is an important element in the efficiency with which that control is enforced. Many decisions are taken at the ports and they have to be taken speedily, as I said, in order to avoid holding up bona fide travellers unnecessarily. That is why there are indexes which help the immigration officer to identify which passengers should be given special attention for one reason or another. There is also a need to make speedy checks if a person comes to notice inside the United Kingdom who has breached the control and gone to ground.
I turn now to the need for this specific exemption in Clause 28(1)(d) of the Bill for data held for the purpose of immigration control. The paragraph is concerned only with instances where application of the normal provisions of the Bill are actually "likely to prejudice" the control of immigration. Most of the personal data held on computers by the immigration authorities will not be covered by this exception. They are factual and routine and will be accessible to the data subject in the normal way. There is also a limited amount of information on computer about people known or suspected of being involved in criminal offences. We are here not talking only of offences under the Immigration Act—overstaying, illegal entry, et cetera—but other, often serious, possibly related offences, such as drug smuggling.
In so far as the application of the provisions of this Bill may prejudice the prevention or detection of crime or the apprehension or prosecution of offenders, such data will, of course, be exempt under paragraphs (a) and (b) of this subsection. But there is also a limited amount of personal data on computer which would not qualify under the "crime" exemption but which justifies special treatment, and it is that with which this amendment is concerned. Essentially this is information about persons (many of whom are outside the United Kingdom) who do not, or may not, qualify to enter or remain here under the Immigration Rules. Such information is essential if the immigration authorities are to do their job properly. Thus we record, for example, the fact that a person has been refused an entry clearance or leave to remain here, or that a person who has been here before has fallen a charge on public funds. If such a person should present himself at a port of entry, it is right that the previous history should be readily and speedily available to the immigration officer who examines him since it will clearly be of important assistance in deciding what leave, if any, should properly be given to the person.
It is by no means always the case that the individual concerned should be denied access to such information, but on occasion this may be necessary. Some people make continuing, determined attempts to evade the control. I should like to illustrate that, if I might. We have on record, for instance, one Portuguese natioal has been removed nine times as an illegal entrant and has been refused leave to enter six 640 times since 1979. One Mauritian national has been removed five times as an illegal entrant, deported five times and refused leave to enter four times since 1972. The noble Lord, Lord Avebury, probably knows him too, and will no doubt refer to him in the speech he is about to make. These may be untypical examples but there are a number of others which are known to the authorities, who go on and on trying to enter and we cannot tell how many more may seek to evade detection and establish themselves here unlawfully. I do not think it is right to give to them any indication of the "hallmarks" by which they may be recognised which could be on the computer.
During our Committee stage I gave the example of a person who might seek to use an alias in order to evade the controls. It would clearly be of great assistance to him to be able to find out what knowledge we have, if any, of his names and, perhaps more importantly, whether that information is readily available to the immigration officer who will see him.
This exception is also relevant in another area. This is where, for one reason or another, there is reason to suspect that a person is seeking either to abuse immigration control himself or to help others to abuse that control. For example, there may be reason to believe that a man here temporarily has married in order to achieve settlement; or that a student is not pursuing his studies but is taking advantage of his leave to study in order to take incidental employment, and sometimes the claim to be studying is in any case remarkably thin. In such cases the authorities have a duty to investigate the matter to establish the truth and, if appropriate, to refuse further leave to remain. I am not saying that it will always be the case but, as with criminal investigations, to allow subject access to recorded suspicions while the matter is actually being investigated may well prejudice the investigation and therefore the effective enforcement of the control. If there is injustice or if there is thought to be injustice, there are of course the safeguards concerning appeals and representations to the Minister that I have already mentioned.
I have spoken already longer than I would wish, but I hope that this fairly full account explains why we cannot accept this amendment. There is one important misconception which I must dispel before I sit down. It is an idea which, I believe, lurks at the back of the minds of a number of noble Lords and it colours their thinking. This provision does not create some new category of information. This information is already held at present and has been held for many years. It is used quite properly for the effective enforcement of immigration control. There is no right of subject access at present and information is not now disclosed where this would prejudice immigration control.
Far from creating any new secret data bank, this provision simply seeks to continue the status quo, for the reasons I have already given. The "newness" of what the noble Lords opposite propose is that it should be prised open, to the detriment of control. The data user is there to protect all of us from the ills of uncontrolled immigration and should be free to do so. I have already said whom I mean by "all". The subject is not unprotected; there is a right of appeal and there is the right of parliamentary representation which 641 many noble Lords are already familiar with. I hope that your Lordships will resist this amendment, which seems to me to be damaging to the public interest.
§ Lord Pitt of Hampstead
My Lords, the Minister has failed to show in what way it is necessary for the information held by the immigration department to be exempt from this Bill. What we are talking about is allowing unregulated third party access to information collected for one purpose but which is designed for another. This is the serious matter.
The Minister accused the noble Lord, Lord Avebury, of using the particular to explain the general; and then he went on to do the same. He did in fact indicate that there were one or two cases where it would have been not so good if the information had been available to the data subject. As I see it, even if the point he made has substance, the truth is that the greater harm is the fact that there can be on these computers data which are in fact untrue and which the data subject will be unable to discover are untrue because they are not available to him.
It is that which is basic to the whole matter we are discussing. It is that which in fact I thought the whole Bill was about—that in effect data users should not be allowed to have data about people which may be untrue, which can affect them and about which they have no knowledge. What the Minister has just done in his speech is to defend the right of a Government department to do just that; and, as I see it, that is basically wrong. It puts a coach and horses right through the whole concept of this Bill.
Therefore, I hope that your Lordships will accept this amendment and reject the claim made by the Government to the right to keep this sort of information and to keep it without its being able to be challenged by the people who are the subject of it and when it can be used in a manner that may be detrimental to them. I believe it is at that level that we must look at it. If somebody uses an alias, the immigration authorities have ways of discovering what he is like and, therefore, are able to challenge him. It is the same principle.
I do not think we in this country have departed from the principle that it is better that one criminal should escape than that innocent people should be punished. I thought that that was the basic principle of the whole concept of British justice. I do not think we have ever departed from that, but we are departing from it here, because the Minister is telling us that it is possible that, without this provision, the odd person who was subject to immigration control could discover the means by which he was being identified and could use that to escape immigration control. Because that one person may misuse that data, all the other people about whom there are data will be deprived of the right to see them. That is contrary to the basic principle on which this country has existed, and I invite your Lordships to give plenty of thought to what you are being invited to do.
There is no more reason for keeping these data under wraps than there is for keeping under wraps any other data which Government departments may have. Other parts of the Bill state that data subjects should be free to examine the data which other Government 642 departments have about them, and the same principle should hold in this case. I am repeating what I said at the beginning. The Minister has not shown us why this aspect is so exceptional that the basic principles underlying the whole concept of the Bill should be thrown aside.
§ 5.42 p.m.
§ Lord Hatch of Lusby
My Lords, like my noble friend Lord Pitt, I waited to hear the speech of the noble Lord, Lord Elton, before intervening, to see whether he had any answers to the points that we put forward on this clause, both on Second Reading and at the Committee stage. I must say that his arguments were totally unconvincing. I appeal to all sections of the House to remember that we are here in order to uphold the principles of British justice, and certain principles are laid down in this Bill.
My noble friend Lord Pitt has mentioned one, which is completely breached by this clause, that information collected for one purpose should not be used for another purpose. Looking back at both the Lindop Report and the White Paper that preceded this Bill, there was no mention of immigration control. Where has it come from? The Government have never told us why they found it necessary to insert this clause at this stage, after previous thorough examination had not, apparently, made them even contemplate it.
What is more, as my noble friend Lord Mishcon has said, it is very probable that this clause breaches the European Convention on Data Protection. The first clause of Article 9 lists the exceptions as a necessary measure in a democratic society in the interests of protecting state security, public safety, the monetary interests of the state or the suppression of criminal offences. There is no mention of immigration. Why, if the control of immigration is so important in connection with the issue of data—it is not important to just this country—has it been excluded from the European Convention? I suggest very strongly that the inclusion of this clause in this Bill will be outwith the whole spirit and application of the European Convention on Data Protection.
In giving his instances of the use of this Bill in immigration control, the noble Lord was very unconvincing. Let me put a point to him. I mentioned this issue on Second Reading. Are we not, as a House, in danger of being grossly offensive to a considerable section of the British population, when we lump them together in this Bill with, first, criminals and, secondly, those accused of tax fraud? We are putting together in this clause, as exceptions, criminals, those accused of tax fraud and immigrants. However it is covered up, that will do a great deal of damage to the reputation of this House. This is not a party matter and I appeal to the House, as a House, to think about the damage that this could do to the reputation of this House of Parliament.
One of the issues, which is germane to the question of immigration in this country, is creditworthiness, as your Lordships know. Is it not very likely that, at least, a proportion of the data provided by credit companies about immigrants will be inaccurate? That is not unusual. But those data can be protected by the data users from the data subject. There is no way under this 643 clause of checking whether or not the data that have been provided are accurate.
As my noble friend Lord Pitt has pointed out, it is a basic principle of the law and the whole ethos of this country, that the one or two cases that the noble Lord mentioned would be better to slip through the net, than that innocent people should have data provided which could lead to their expulsion from this country, or prevent them from coming into this country. That is the real issue and I should have hoped that, by the time we had reached this Report stage, the Government would have withdrawn this part of Clause 28, and, if they felt that it should be drafted in a different way, would have put it separately. Do not let us lump together the immigrant section of the British people with criminals and tax evaders. Even at this late stage let us strike one blow for the sanctity of the principles which are stated quite clearly in the Bill.
§ Lord Elwyn-Jones
My Lords, I venture to think that the House may well be of the opinion that on a day when the Government have made some sensible concessions to the opinion of this House the reply of the noble Lord the Minister has been totally negative and totally disappointing. He has failed completely to deal with the serious questions raised by my noble friend Lord Mishcon on the effect of the convention. It is our opinion that the proposed words dealing with immigration do not come within the terms of the derogations permitted by the European Convention. I must ask him again, as has my noble friend, whether the authorities concerned with the enforcement of the convention have been consulted about the matter. Has their advice been sought? What has their response been? That is the first important matter with which it is the duty of the Minister to deal.
Secondly, why is it that the provision relating to control of immigration was not mentioned in the White Paper which was prepared by the Home Office last year? On page 5 we read:It is proposed that the legislation should not apply to data that need to be safeguarded for the purposes of national security. The use of certain other data relating to the other matters referred to at (A) above"—that is, protecting state security, public safety, monetary interests or the suppression of criminal offences—will be exempt from legislation. The exemption will include some data needed by the police and other law enforcement agencies for the prevention and detection of crime".Those are still there. Why has immigration now been included? It would not have been regarded as a grave matter by the Home Office a year ago. What has happened since? This is the Government's White Paper. We submit that this is a serious derogation not only of the convention but of human rights and the privacy of the subject. If this goes through, the immigration authorities will have the power and the right to have secret access to all computerised personal information systems in this country. It is a grave encroachment not only on the liberty of the subject but on his privacy as well.
§ Lord Wigoder
My Lords, may I ask the noble Lord the Minister to help me about one matter? Immigration law is complicated and plentiful. It 644 contains a wide variety of potential crimes and potential offences. Anybody who may be about to commit a crime, or who may have committed one or be suspected of committing one, or an offence of any sort, is caught quite clearly under Clause 28(1)(a) or (b). No-one in the course of this debate has disputed the value of those provisions. Could the noble Lord the Minister help the House by giving some clear instances of cases in which he says that, as a matter of elementary common sense, the control of immigration provision is such that a subject access provision ought not to apply that would not be equally caught under the first two paragraphs? As I understood his argument on the question of the use of an alias, and so forth, reliance could be placed quite easily on paragraph (a) or paragraph (b). There would be no need at all to incorporate this other provision around which this whole argument now revolves.
§ Lord Elton
My Lords, I was under the impression that the noble Lord, Lord Avebury, was going to contribute to this debate. I shall be unable to rise again. If the noble Lord wishes me to respond—I should be very happy not to respond—I would prefer him to speak now or, if I may say so not discourteously, not to speak at all.
§ Lord Avebury
My Lords, it is very good of the Minister to be so forthcoming and to allow me to speak on the amendment. I thought, however, that I would save my remarks until the next amendment.
§ Lord Elton
My Lords, I look forward to it with mixed feelings. Your Lordships, with leave, will permit me to reply to a number of the shafts which have been directed towards me. They were so numerous that I am not sure I can recall them all. May I start with the matter of the White Paper and the convention to which the noble and learned Lord, Lord Elwyn-Jones, directed me. The noble and learned Lord asked me particularly how the exemption for immigration control can be reconciled with the derogation provisions of the European Convention. I ought to explain that in this context we are relying on the provision in Article 9(2)(b) of the convention which provides for derogation where this is necessary in the interests of protecting the rights and freedoms of others. As I explained earlier, the proper enforcement of immigration control is clearly in the interests of people who are lawfully in this country. Immigration control is concerned not only with numbers, although we must not forget the pressures and strains on our multiracial society which would follow from unbridled immigration. It is also concerned with jobs, houses and the opportunities for our young people.
If we are to meet our responsibilities in protecting the rights and freedoms of those who are here—and noble Lords opposite are diligent enough in telling us that these are not already as much as they should be—we must ensure that immigration is properly enforced. It is clearly unfair on those who came here properly and lawfully that others should be able to circumvent the necessary controls. It is not helpful of noble Lords who have tried to suggest all the time that it is against those very people that these controls are directed. On the contrary, they are of more assistance 645 to them than they are to others. We are not lumping them together with tax evaders and criminals. Your Lordships are lumped together with criminals and lunatics when it comes to voting matters. The juxtaposition in the Bill of people who seek to come here illegally and people who do things otherwise illegally has no racist overtones whatsoever. It is damaging to the reputation of this House, of which the noble Lord, Lord Hatch of Lusby, is rightly jealous, but no more jealous than I, to suggest that this is so. I see that the noble Lord, Lord Mishcon, wishes to intervene.
§ Lord Mishcon
My Lords, I am most grateful to the Minister for allowing me to intervene. He appears to be going on to another subject and leaving that of the European Convention and his interpretation of those words. I did very courteously ask certain questions, which my noble and learned friend repeated. The questions were as follows: has the question of immigration control related to the provisions of data protection been referred to the European Community in any one of its divisions to obtain its opinion? If so, what was that opinion? If not, why not? And is the Minister not prepared to put that question?
§ Lord Elton
My Lords, to answer the noble Lord, Lord Mishcon, no, we have not gone to the Council of Europe, or to the European Parliament, or to any other European institution to get clearance of our domestic legislation. It is not our practice to do so. It is for us to decide what is right. Then it is for us to defend that decision if it is thought to be in breach of the convention. That is the straight answer to the noble Lord's question. I am glad that he brought it before me again. May I remind all noble Lords, in answer specifically to the noble Lord, Lord Pitt of Hampstead, that this exemption does not apply to the whole of immigration information, which is very considerable. It applies only to information, the release of which would be prejudicial to the control of immigration into this country. In other words, it relates to those things which assist the immigration department and immigration officers to determine who ought and who ought not to be considered for lawful admission to this country, and which, if it were revealed, would assist in defeating that purpose. I do not believe that this House thinks that that is such an unimportant purpose that it ought to be set aside for an alleged conjunction with reasons of our relationships between different communities in this country which is entirely fictitious.
§ Lord Elton
My Lords, I think I ought not to give way any more; this is not Committee stage. I have said as much as I have to say. It is quite clear to me that this amendment seeks to take out of the Bill a provision that is not sinister and which relates only to the efficient conduct of a function that is necessary to the well-being of the whole community. It does not extend to other parts of the same mass of information which is not so related. Your Lordships are invited to take away an important provision for insubstantial and emotive reasons, and I hope that my noble friends at least will support me in the Division Lobby against it.
§ Lord Wigoder
Before the noble Lord sits down, my Lords, will he give me a clear instance of a case where he regards the power under (d) to be necessary which would not be equally well covered by (a) or (b)?
§ Lord Elton
My Lords, I have done so on numerous occasions in Committee. On any occasion where that which is under investigation is not a criminal act but involves the intention to enter this country on the part of someone not entitled here, then it is needed. There are many such cases. If the noble Lord wants more precision then I will write to him, but I cannot rise to my feet for a fourth time at Report stage.
§ Lord Elton
It is not, my Lords. It is not a crime under certain circumstances to attempt to enter this country; it is only a crime to be here when one is in the country unlawfully. With the Borg case, that has become another area which is extremely difficult to control because the criminal offence exists only on the first day of overstay, and the noble Lord will know very well the difficulties which result from this and the fact that there is no subsequent criminal offence. I do not want to delay your Lordships with minutiae because I have detained you long enough.
§ Lord Elwyn-Jones
My Lords, can we take this amendment together with Amendment No. 71, which I move:Page 21, line 17, leave out from ("duty") to end of line 18.
§ The Lord Chancellor
My Lords, is it the wish of the House that I should put the Question for the two amendments en bloc? Then the Question is, That Amendments Nos. 70 and 71 be agreed to?
§ 6.3 p.m.
§ On Question, Whether the said amendments (Amendments Nos. 70 and 71) shall be agreed to?
§ Their Lordships divided: Contents, 85; Not-Contents, 114.648
|DIVISION NO. 1|
|Airedale, L.||Cooper of Stockton Heath, L.|
|Amulree, L.||Crook, L.|
|Avebury, L.||David, B.|
|Aylestone, L.||Diamond, L.|
|Bacon, B.||Donaldson of Kingsbridge, L.|
|Beaumont of Whitley, L.||Elwyn-Jones, L.|
|Bernstein, L.||Fisher of Rednal, B.|
|Beswick, L.||Gaitskell, B.|
|Birk, B.||Gardiner, L.|
|Blease, L.||Glenamara, L.|
|Blyton, L.||Gormley, L.|
|Boston of Faversham, L.||Gregson, L.|
|Briginshaw, L.||Hale, L.|
|Brockway, L.||Hampton, L.|
|Brooks of Tremorfa, L.||Hanworth, V.|
|Bruce of Donington, L.||Hatch of Lusby, L.|
|Caradon, L.||Houghton of Sowerby, L.|
|Chitnis, L.||Irving of Dartford, L.|
|Cledwyn of Penrhos, L.||Jacques, L.|
|Jeger, B.||Ponsonby of Shulbrede, L. [Teller.]|
|Jenkins of Putney, L.|
|John-Mackie, L.||Ross of Marnock, L.|
|Kilmarnock, L.||Seear, B.|
|Kirkhill, L.||Serota, B.|
|Leatherland, L.||Shackleton, L.|
|Lee of Newton, L.||Shinwell, L.|
|Listowel, E.||Stedman, B.|
|Llewelyn-Davies of Hastoe, B.||Stewart of Fulham, L.|
|Longford, E.||Stone, L.|
|Lovell-Davis, L.||Strabolgi, L.|
|McIntosh of Haringey, L.||Taylor of Blackburn, L.|
|McNair, L.||Taylor of Gryfe, 1.|
|Mais, L.||Thurso, V.|
|Mar, C.||Underhill, L.|
|Mayhew, L.||Wallace of Coslany, L. [Teller.]|
|Molloy, L.||Walston, L.|
|Nicol, B.||Wedderburn of Charlton, L.|
|Ogmore, L.||Whaddon, L.|
|Oram, L.||White, B.|
|Peart, L.||Wigoder, L.|
|Perry of Walton, L.||Willis, L.|
|Phillips, B.||Wootton of Abinger, B.|
|Pitt of Hampstead, L.|
|Ailsa, M.||Kinloss, Ly.|
|Allerton, L.||Kinnaird, L.|
|Avon, E.||Kintore, E.|
|Baker, L.||Lane-Fox, B.|
|Bellwin, L.||Lauderdale, E.|
|Beloff, L.||Lawrence, L.|
|Belstead, L.||Lindsey and Abingdon, E.|
|Bessborough, E.||Long, V.|
|Bolton, L.||Loudoun, C.|
|Brougham and Vaux, L.||Lucas of Chilworth, L.|
|Caccia, L.||Luke, L.|
|Campbell of Alloway, L.||Lyell, L.|
|Campbell of Croy, L.||Mackay of Clashfern, L.|
|Cathcart, E.||MacLehose of Beoch, L.|
|Charteris of Amisfield, L.||Macleod of Borve, B.|
|Chelwood, L.||Marley, L.|
|Clifford of Chudleigh, L.||Massereene and Ferrard, V.|
|Coleraine, L.||Merrivale, L.|
|Cottesloe, L.||Molson, L.|
|Craigavon, V.||Monk Bretton, L.|
|Dacre of Glanton, L.||Montgomery of Alamein, V.|
|Davidson, V.||Mottistone, L.|
|De La Warr, E.||Mowbray and Stourton, L.|
|Denham, L. [Teller.]||Norfolk, D.|
|Dilhorne, V.||Northchurch, B.|
|Donoughmore, E.||Nugent of Guildford, L.|
|Drumalbyn, L.||Orkney, E.|
|Eccles, V.||Pender, L.|
|Ellenborough, L.||Portland, D.|
|Elton, L.||Quinton, L.|
|Ferrers, E.||Reigate, L.|
|Ferrier, L.||Renton, L.|
|Fortescue, E.||Rochdale, V.|
|Fraser of Kilmorack, L.||Romney, E.|
|Gainford, L.||Sandford, L.|
|Geoffrey-Lloyd, L.||Sandys, L.|
|Gibson-Watt, L.||Seebohm, L.|
|Gisborough, L.||Sempill, Ly.|
|Glanusk, L.||Shannon, E.|
|Glasgow, E.||Skelmersdale, L.|
|Glenarthur, L.||Somers, L.|
|Glenkinglas, L.||Spens, L.|
|Gridley, L.||Stamp, L.|
|Hailsham of Saint Marylebone, L.||Stodart of Leaston, L.|
|Hayter, L.||Strathcarron, L.|
|Henley, L.||Sudeley, L.|
|Hives, L.||Swinton, E. [Teller.]|
|Holderness, L.||Taylor of Hadfield, L.|
|Home of the Hirsel, L.||Terrington, L.|
|Hornsby-Smith, B.||Teynham, L.|
|Hunt of Tanworth, L.||Trefgarne, L.|
|Hylton-Foster, B.||Trumpington, B.|
|Inglewood, L.||Vaux of Harrowden, L.|
|Ingrow, L.||Vickers, B.|
|Vivian, L.||Wynford, L.|
|Windlesham, L.||Young, B.|
§ Resolved in the negative, and amendments disagreed to accordingly.
§ 6.11 p.m.
Lord Mishcon moved Amendment No. 72:
Page 21, line 20, after ("which") insert ("the Registrar is satisfied that").
The noble Lord said: My Lords, this is a short amendment and I promise your Lordships a short speech. The provisions of Clause 28 at page 21 of the Bill, line 20, deal with the exemption of the matters we have just been talking about from the subject access provisions "in any case", says the Bill,
in which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection".
Nobody mentions in the Bill who will decide whether or not they do in fact prejudice any of the matters so mentioned. Therefore, this amendment is inserted in order to see that it is clear that the registrar is the person who has to be satisfied that that prejudice in fact occurs; otherwise, as I said, the Bill is silent. I beg to move.
§ Lord Elton
My Lords, the effect of this apparently modest amendment would be considerable. What it does is to require any data user wishing to avail himself of the exemption from subject access in Clause 28(1) to seek the approval of the registrar first. Only when the user has been able to satisfy the registrar that giving access would be likely to prejudice the prevention of crime or one of the other Clause 28(1) matters could he then avail himself of the exemption. In practice that would mean that on each occasion a representation would have to be prepared for the registrar; and on each occasion the registrar would have to be satisfied that granting access would be likely to prejudice the purpose for which the data were held.
I know that the noble Lords opposite feel that the police and the other bodies concerned should have to go through such an exhaustive procedure before any exemption is claimed. But is that really what we want? Is it really right to place the police under such a heavy burden? The claim on police resources would be very considerable. Also, the claim on the registrar's resources would be, proportionately, even more substantial. There could well be quite a number of applications for exemption from subject access; and he would have to consider every one. For those reasons, we should hesitate at least before erecting a procedure with such significant implications in this area. And I would add that what the noble Lords opposite are suggesting goes considerably further than what, to my knowledge, our European partners have done in legislating in this field.
But now let me turn to an element of the scheme of exemptions in the Bill as drafted that already provides significant safeguards against abuse by users. The noble Lords opposite rather suggest that without their amendment it is entirely up to the user to decide whether or not data should be exempt under Clause 28(1) and that there is no check on that decision. That is not so. To suggest it arises probably from a misunderstanding.
649 The entitlement to subject access is enshrined in the seventh principle as well as in Clause 21; and if that principle is breached, the registrar can act. So if the registrar comes to the view that a user is claiming exemption where the statutory requirements—such as the test of prejudicing the purpose—are not met, then he can conclude that data to which access has been requested are being improperly withheld, and the seventh principle is being contravened. He can thereupon issue a notice on the user, perhaps ordering him to grant access, either just in the case of the data subject concerned or in broader terms, by requiring an amendment to the user's general practice in giving access.
So we have there a mechanism whereby the registrar can involve himself in these matters where appropriate, a mechanism that seems to have escaped the notice of the noble Lord. And there is a further safeguard in the Bill—perhaps the best safeguard of all—the courts. Where a subject wishes to challenge a data user's withholding of data under Clause 28(1), he can avail himself of Clause 21(8) and seek a court order for access. The courts will then determine whether the data concerned are properly exempt or not: and my noble and learned friend the Lord Chancellor not so long ago moved an amendment to Clause 25 designed to clarify the procedure in such cases.
Not only have noble Lords opposite overlooked that safeguard, but their amendment cuts directly across it. That may well be unintentional, but the effect is certainly to prevent the courts from reaching an independent determination of whether a claim to exemption from subject access is justified or not. For once the exemption rests on whether or not the registrar is satisfied, the role of the courts is fundamentally diminished. All they can consider is whether or not the registrar was satisfied, rather than the substantive issue of the justification for exemption. In the Bill as drafted, therefore, we have an interlocking mechanism to safeguard subjects. We avoid the need for every single claim to exemption to receive prior approval from the registrar, with all the difficulties that that presents. But we allow dissatisfied subjects to seek the assistance of the registrar to check that an exemption is justified—or indeed the registrar to mount an investigation on his own initiative if his concern is aroused. And we also allow subjects the alternative route via Clause 21(8) to the courts. We believe that this is a sensible, practicable approach which allows the registrar and the courts jointly to look after subjects' interests, without the serious difficulties that arise from the proposals of the noble Lords opposite. I hope they will think better of them.
§ Lord Mishcon
My Lords, the noble Lord the Minister has suggested that certain things have escaped my notice. If they had done, that would not be an exception to a general rule; it would be the general rule, I am sure. But he is not justified in this particular instance. I am not going to press this amendment, but what I am going to do—since this Bill is going to another place, and I suppose there is an opportunity at Third Reading to reconsider—is to look briefly at what the noble Lord the Minister has said where one is trying to interpret rights under Clause 28(1). At 650 present the words are absolutely bald. The words say that personal data are exempt where there is likely to be a prejudice of any of the matters mentioned in this subsection. There is nothing to indicate who is the final arbiter of whether the prejudice takes place.
I suggest that if the learned registrar, when duly appointed, has grounds for suspicion and writes to the Commissioner of Police or the Home Office or whoever it may be, and says: "I have been asked to look into this matter", since the words are so bald, the answer could easily be, "The registrar is courteously referred to Section 28(1). We have taken the view that this is likely to prejudice matters mentioned in that subsection, and therefore, Mr. Registrar, we have no need to justify ourselves before you".
"Ah", says the noble Lord the Minister, telling me that things have escaped my notice, which they very likely could, "Have a look at Section 21(8), because under Section 21(8) the courts could indeed look into the matter". Therefore, if one refers to page 18 one finds that Section 21(8) reads:If a court is satisfied on the application of any person who has made a request under the foregoing provisions … that the data user … has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request".So the court, on looking at its rights in that matter, looks at Clause 21(8) and sees that the data user has decided, in the case of the Ministry, that it is likely to prejudice matters mentioned in the subsection, and it says that in those circumstances presumably there has been no contravention of the provisions and, prima facie, therefore, it cannot look into this matter under Clause 21(8).
I may be absolutely wrong in regard to this submission, but I do not think I am. All I ask at this stage, instead of burdening your Lordships with a long debate and argument between the Minister and myself which will be interesting for us but possibly not to your Lordships, is for the Minister to consider my remarks and if, with his usual courtesy, he can write to me in the meantime and say with good reason that I have not been talking sense, then I shall know that I ought not to raise the matter again. However, if he does find that there is some sense in what I am saying, and it appears to me that there is and that at the present moment the clause leaves the position wide open and is certainly open to doubt, I have no doubt he will take suitable action and that we will see something before Third Reading.
§ Lord Elton
My Lords, with your Lordships' leave, I will merely say that there is, of course, always some sense in what the noble Lord says. I regret rashly assuming that on this rare occasion he had overlooked something in the Bill. I am also grateful to him for being charitable for my much lesser legal experience than his and for giving me time to marshal my arguments, if indeed there are arguments, against what he says.
§ Amendment, by leave, withdrawn.651
§ 6.22 p.m.
Lord Elwyn-Jones moved Amendment No. 73:
Page 21, leave out lines 25 to 34 and insert ("the disclosure is made under compulsion of law")
§ The noble and learned Lord said: My Lords, this amendment arises from the same clause which has given concern to the House, as I think is clear from the last Division. I refer to the provisions of Clause 28. The effect of subsection (2) is to establish a blanket exemption from the non-disclosure provisions for all disclosures of information to third parties relating to all four categories: prevention and detection of crime; apprehension and prosecution of offenders; assessment of tax; and control of immigration. They are all blanket exemptions. There is no provision and no element in this part of the Bill of the judicial control which exists in the proposals of the Home Office relating to the Police and Criminal Evidence Bill which is now going through another place. That Bill adopts a totally different policy for dealing with the same problem.
Under Clause 10 of that Bill the police are also given power to obtain access to confidential records, but only on the order of a circuit judge and to be made only if he is satisfied,
that a serious arrestable offence has been committed;
and that evidence about it cannot be obtained in any other way. There is no such judicial control in this all-embracing blanket provision. In our submission it is essential that such control should exist.
§ The amendment we are discussing provides that the disclosure can be made only under compulsion of law; that is to say, by an order of a court. The question whether it should be on the authority of a circuit judge or some other judicial authority could be made the subject of further consideration.
The seriousness of this matter and the importance of this amendment is reflected in a letter, of which I have received a copy, which was sent to the Home Secretary by Sir Douglas Black, the president of the Royal College of Physicians, and doing so as chairman of an inter-professional working group which was convened to advise the Health Department on access to personal health information under the Bill. The professional bodies represented on the Group, on whose behalf the president of the Royal College was writing, include 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. That is a formidable array of those concerned with health matters and, of course, with the protection of the privacy of patients and, indeed, the duties of the medical profession itself. The letter to the Home Secretary says:
The Group has asked me to express to you, as a matter of urgency, their grave concern about the eflect of Clause 28(2) of the Bill on the confidentiality of health information, and on public confidence in that confidentiality. As drafted, this sub-clause would allow anyone who happens to have custody of health records to disclose them to a wide range of public authorities, without the consent or even the knowledge of the patient or client or of the health professional who has charge of his welfare, without any judicial control, and without any prior or subsequent notice of such disclosure, even in the most general terms, to the Data Protection
Registrar or the public. My Working Group have asked me to tell you that they find this proposal quite unacceptable.
Sir Douglas states:
I understand that amendments have been put down for the Report stage."—
this is the relevant amendment—
and I would urge you either to accept these, or to put forward appropriate Government amendments which will meet our objections.
If I may say so, that is the most formidable and serious support for the amendment, emanating, as I have said, from all the distinguished authorities in the field of health. Accordingly, I trust that on this amendment, at any rate, I shall receive the support of the House. I beg to move.
§ Lord Wigoder
My Lords, I spoke at considerable length on this same amendment in Committee and I know that what I said then is, of course, fresh in all your Lordships' minds. Therefore, it is not necessary for me to repeat the arguments this evening.
In supporting the noble and learned Lord, Lord Elwyn-Jones, I summarise what I said then in only two sentences. First, although under this clause as it stands there is no question of requiring medical men to divulge the confidences entrusted to them by their patients it will, in practice, operate as an encouragement to medical men to do so. Secondly, if that situation develops it will have an alarming effect on the patient-doctor relationship and on the trust which a patient should feel in his doctor and on the complete freedom which the patient should feel he has to disclose whatever he wishes to his doctor in the interests of the efficiency of his own medical treatment.
If the amendment is adopted it would mean that doctors would be able to disclose information only where they have been required to do so judicially. That would bring this Bill completely into line with the Police and Criminal Evidence Bill and, I suggest, would be a very desirable combination.
§ Lord Houghton of Sowerby
My Lords, unfortunately I was prevented from taking part in the debate on this clause during the Committee stage, but on carefully reading the debate that took place then on 22nd February I must say that I was left with a feeling of considerable confusion and unease as to precisely what powers were to be given and to whom under this subsection.
This Bill is a curious one in some ways. Part of it concerns data protection; to protect the citizen from information being accumulated which may damage him and to which he should be given access. Part of this Bill confers on the citizen a right that he does not have already. But the other part is a data disclosure Bill. We are dealing with that in subsection (2). We have finished with the rights of the citizen to access; the data access provisions and the data access exemption provisions. Now we come on to the data disclosure provisions and the exemption from them. Unless we take very great care indeed, we shall be stumbling into changes in existing practice and probably in existing statute law provisions regarding the custody of confidential information.
653 This amendment does not wholly cover what I have in mind in my amendment a little later, Amendment No. 74B, which is quite specific and which deals with the particular type of confidential information—a particular area of it—which is governed at the present time by statute law. It is that that I want to see completely exempt from any disclosure provisions under this Bill.
I think that in some areas of information held by Government departments and agencies it would be far better to have the particular areas of possible disclosure discussed as separate matters rather than have them covered by what my noble and learned friend calls a blanket provision. In principle I take the view that a citizen who is required by law to disclose information about himself, with enforcement provisions supported by penalties, is entitled to be assured that the information that he gives under compulsion shall be used for the purpose for which the statute law says that it is required and under the provisions of which he is required to give it, and that the information should be used only for that purpose and for none other, except as provided by law. That is the principle of the matter and I think that it should be absolutely inviolable.
In particular cases the law does provide, and has been openly debated as providing, for an exchange of information between one agency and another. I give an example. The Inland Revenue and the Customs and Excise have freedom of exchange of information under the statute law for certain purposes which are approved by Parliament. That is all right, because then the citizen knows that, when he is giving the information to that particular agency, it may be used for another specified purpose which is clear under the law also, and he can be guided accordingly in giving his information, knowing what use may be made of it.
However, if that is to be abrogated or altered by this subsection, then I think that we are entering into a very serious quandary indeed, and that is whether we are really safeguarding the interests of the citizen under this Bill or exposing his person and his interests to a fresh risk, not specifically endorsed by law, not known to him in advance and not notified to him when it is being done. These are the dangers I think that lurk in the provisions of this particular clause. I may be confused. I make no apology for it. I was once described as a reasonably intelligent layman, and I apply my mind to these matters as best I can, but it is extremely difficult to know exactly what is afoot in these proposals. The assurances that I think we need need to be very clear and very specific.
I am not at the moment seeking to trespass upon the particular matters that I might have to refer to later; but again as an example I refer to the declaration which is made by members of the Board of Inland Revenue:I … do solemnly declare that I will not disclose any information received by me in the execution of my duties except for the purposes of those duties or for the purposes of any prosecution for an offence relating to inland revenue, or in such other cases as may be required by law".If I do not ask it now I must ask it later on: is that declaration, modified, altered, abrogated, relaxed or mucked about with by this Bill? If it is, the Bill is wrong. I think that we have to take very great care that, 654 if we are going to alter that, it has to be done by a Finance Bill, where previous departures from the strict code of confidentiality that I have already referred to were discussed and ultimately agreed to. But my noble and learned friend is dealing with a compulsion of law where an order of a court is made and that indeed can apply in particular cases also.
I hope that the noble Lord who handled this with great care—I thought with greater clarity towards the end of the proceedings than he began with—will be able to make some things clear. Certainly I think that he has a case to answer here as to whether information, mostly in the hands of official agencies, can be raided by other authorities under the cover of this Bill or whether they have to have something much more specific and with greater authority than appears to be provided by the system of the registrar.
§ 6.37 p.m.
§ Baroness Seear
My Lords, may I follow the very serious letter from the BMA read by the noble and learned Lord, Lord Elwyn-Jones, and ask the Minister whether the implication is, for example, that the records of psychiatrists and psychoanalysts could be laid bare for the benefit of the courts? If so, it seems to me that it undermines the whole prospect of treatment of that kind. Can the Minister reassure us? I am sure that a great many people would be extremely concerned at the possibility. Can we get it on the record one way or the other?
§ Lord Hatch of Lusby
My Lords, I am not completely certain that this is the correct place to raise this point; it is a very short point. I think that at least obliquely it does arise here when we are discussing the collection of data. The noble Lord will recall that at the Committee stage I asked him whether his attention had been drawn to the Khera case, in which the judgment had only recently been given by the Law Lords. This clearly alters both the law relating to the control of immigration, the regulations and the practices. It has now become the law and it has removed what previously had been used within immigration regulations: the duty of candour.
I wonder whether, in replying to the points that have been raised by my noble friend Lord Houghton of Sowerby and from our Front Bench, the noble Lord the Minister would deal with that. He said in Committee that he would write to us about those points that he had not been able to cover. We are now at the Report stage and we need an answer as to whether he sees the relationship of the regulation of immigration to this Data Protection Bill as having been changed by the judgment that was published by the Law Lords.
§ Lord Mishcon
My Lords, very briefly I should like to bring to a head what in my submission is the essential matter before your Lordships. In the main there are two considerations. First, this is a question of voluntary disclosure and all that we have in the clause is that the person who discloses matters which are confidential has a complete defence if he has a reasonable belief in thinking that one of the matters mentioned in the clause would be prejudiced. I am thinking of prosecution, the prevention of crime and so on. The consideration of your Lordships is 655 restricted to this one point. All right, let it be so, but for heaven's sake! let the data subject have notice on the register that such disclosures could be made to various authorities. If that is so, and if that is on the register, then of course a different situation applies. If it is not, it has to be under compulsion of law.
The second and last point is this. Surely it is wrong for this amendment not to be supported by your Lordships if every single one of the responsible health bodies in this country has begged of your Lordships quite openly to vote for an amendment such as this and not allow the existing words to stand.
§ Lord Elton
My Lords, the point from which the noble and learned Lord, Lord Elwyn-Jones, departed on his foray against the Bill on this occasion was its congruence with what we propose to provide in the Police and Criminal Evidence Bill at present in another place. Perhaps I can get that issue out of the way first by reminding your Lordships of what I said in Committee about the relationship between this clause and Clause 10 of that Bill.
The two Bills deal with different issues and it would be wholly unreasonable to apply the same provisions in respect of both sets of issues. Clause 28(2) of the Data Protection Bill applies when a user wishes to disclose information to the police in connection, say, with an investigation into crime. He is not obliged to disclose but if he wishes to then he can do so in circumstances of the kind I have described without fear of contravening the provisions of the Bill. Of course such disclosure may even assist a data subject by enabling the police to eliminate him as a suspect. With the Police and Criminal Evidence Bill we are dealing with very different matters. Clause 10 of that Bill enables the police to obtain evidence relating to the commission of a serious arrestable offence when they suspect that someone has evidence but will not make it available. In these circumstances the police cannot get the evidence without a power to do so, and that is what the Bill gives them. The Bills are therefore quite different in purpose and it is right that they should be different in construction.
Perhaps I may deal, as a preliminary, with the matter also raised by the noble Lord, Lord Houghton of Sowerby. I would just reassure him in the following terms. As I have explained both today and on other occasions, the effect of Clause 28(2) of the Bill is to disapply the non-disclosure provisions of the Bill where this application would be likely to prejudice any of the purposes specified in Clause 21(1). It does not, however, oblige the data user concerned to disclose any information in these circumstances; nor does it even authorise him so to do; nor does it affect in any way any obligation of confidence which may apply to a data user in relation to the information he holds about a data subject. This is something to which the noble Lord, Lord Mishcon, should listen carefully because it is directly relevant to what he was asking me. This clause does not affect in any way any obligation of confidence which may apply to a data user in relation to the information he holds about a data subject.
In particular, as I explained to the House during the Committee stage, Clause 28 does not override the 656 Inland Revenue's strict rules of confidentiality which, with certain very limited exceptions, preclude the disclosure of information about a taxpayer to a third party without the taxpayer's consent. I had intended to say that to the noble Lord, Lord Houghton, at a later stage but from what he has said at this stage it occurred to me that he might not find it necessary to revert to that because I can give him that unqualified assurance.
§ I can also, as a preliminary—
§ Lord Mishcon
My Lords, will the noble Lord the Minister permit me to interrupt? I dealt with the voluntary nature of the disclosure and asked the noble Lord the Minister how he could possibly justify a voluntary disclosure when the register does not contain—and the data subject has been led into the belief that it is all all right if he gives the information—a warning that disclosure may in certain circumstances be made of that information. As he knows, this was called by the Lindop Committee a palpable fraud on the public. It is a responsible committee. How does the noble Lord answer that charge?
§ Lord Elton
My Lords, perfectly simply: if it is a palpable fraud it has been continued from time immemorial. This Bill gives no authorisation to disclose, no encouragement to disclose; it merely removes the prohibition on disclosure contained in the Bill itself. It is absolutely without effect on anything else. The noble Lord is straining at a non-existent gnat, if I may say so in that context.
I hope that the noble Lord, Lord Hatch, will also permit me to address myself to him as a preliminary—and I am sorry to have so many preliminaries. I can simply reassure him that the case of Khera has been drawn to my attention and I am advised that it does not affect this Bill at any point. I hope that the noble Lord will not ask me to explain why that should be so. I am prepared to do so at length on paper, but not now.
We have talked about balance a great deal in this Bill and we are talking now about a part of the Bill where it is important to get it right. We cannot be responsible for creating a situation in which personal data are protected to such an extent that society as a whole suffers in other respects. I do not need to remind your Lordships that the need to make special provisions in the interests of law enforcement has been recognised by all member states of the Council of Europe. Article 9 of the convention refers specifically to derogation from the convention's provisions where necessary in a democratic society in the interests, among other things, of the monetary interests of the state and the suppression of criminal offences.
I do not think that we have been leaning towards the forces of law enforcement in this respect. Unlike certain other European countries we have not allowed for a general or blanket exemption—as the noble Lord, Lord Mishcon, called it—from the Bill's requirements for what is often loosely referred to as "criminal intelligence" data. We have covered all such data by the Bill; we have required them to be registered; and we have generally made them subject to the registrar's powers.
I ought to revert to what I see as the general issue here, and perhaps I ought to illustrate by an example 657 the situation that could result if this amendment were adopted. The police may often need to approach companies or organisations in the course of their inquiries into crime. For example, to check an alibi and find out whether a particular person was at work in a builder's yard on a particular day; or to find out who has bought a particular item of clothing or hired a particular vehicle in the past month. This is the kind of information that the police must seek in order to build up a picture in their investigation of a crime or a suspect. The papers constantly show how particularly dangerous people have been apprehended as a result of this type of information. But as computers are more widely used, more and more of the information will be held on them. Users will have to register their particulars. But the general run of user is not going to specify the police as a prospective recipient of data as the noble Lord suggests.
It means that all of us who are honest citizens would have to specify the police as possible recipients of data if we were to satisfy the noble Lord's desire to give warning. If the police were after a rapist, or a murderer, or any other sort of criminal, we would then feel that it was our duty as a citizen to inform the police. That is the duty of every citizen. If the police came to a user for information held on a computer, and if the user is ready to disclose the information, the user will be able to disclose it without falling foul of the provisions prohibiting disclosure that would otherwise apply, provided that the prevention or detection of crime, et cetera, would be likely to be prejudiced if such disclosure were not made.
I have written a great deal more, but it seems to me that I have addressed myself to the concern of the noble Lord and the noble and learned Lord, and indeed of Sir Douglas Black and his supporters, who read like a roll of battle honours of the Mental Health Bill, with which I am very familiar, and for which I have a high regard. I think that this must relieve the anxieties of patients, and indeed of the noble Baroness herself, because it does not produce a requirement or even a justification to disclose. It merely prevents the prohibition of disclosure elsewhere in the Bill from affecting the subject areas here described. I do not think I ought to speak longer. I cannot put it more clearly than that. It is at the end of my speech, and that is where the noble Lord, Lord Houghton of Sowerby, says that I am always best at making myself clear.
§ Lord Elwyn-Jones
My Lords, I regret that I do not think that that explanation will satisfy the eminent medical men who have written this letter. What is voluntary and occasional is now being given statutory significance. What is voluntary will quickly become what is obligatory, or what is sought to be obligatory. In my submission, the answer of the noble Lord is quite unsatisfactory, and I invite the views of the House upon this matter.
§ 6.52 p.m.
§ On Question, Whether the said amendment (No. 73) shall be agreed to?
§ Their Lordships divided: Contents, 81; Not-Contents, 91.659
|DIVISION NO. 2|
|Avebury, L.||Listowel, E.|
|Bacon, B.||Llewelyn-Davies of Hastoe, B.|
|Beaumont of Whitley, L.||Lockwood, B.|
|Beswick, L.||Longford, E.|
|Birk, B.||Lovell-Davis, L.|
|Bishopston, L.||McCarthy, L.|
|Blease, L.||McIntosh of Haringey, L.|
|Boston of Faversham, L.||McNair, L.|
|Briginshaw, L.||Mar, C.|
|Brooks of Tremorfa, L.||Mishcon, L.|
|Bruce of Donington, L.||Nicol, B.|
|Byers, L.||Ogmore, L.|
|Chitnis, L.||Oram, L.|
|Cledwyn of Penrhos, L.||Peart, L.|
|David, B.||Perry of Walton, L.|
|Diamond, L.||Phillips, B.|
|Elwyn-Jones, L.||Pitt of Hampstead, L.|
|Evans of Claughton, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Fisher of Rednal, B.||Portsmouth, Bp.|
|Gardiner, L.||Rea, L.|
|Glenamara, L.||Ross of Marnock, L.|
|Gormley, L.||Sear, B.|
|Gregson, L.||Serota, B.|
|Hale, L.||Shackleton, L.|
|Hampton, L.||Stedman, B.|
|Harris of Greenwich, L.||Stewart of Fulham, L.|
|Hatch of Lusby, L.||Stone, L.|
|Hayter, L.||Strabolgi, L.|
|Hooson, L.||Taylor of Blackburn, L.|
|Houghton of Sowerby, L.||Taylor of Gryfe, L.|
|Irving of Dartford, L.||Taylor of Mansfield, L.|
|Jacques, L.||Thurso, V.|
|Jeger, B.||Tordoff, L.|
|Jenkins of Putney, L.||Underhill, L.|
|John-Mackie, L.||Wallace of Coslany, L.|
|Kilmarnock, L.||Walston, L.|
|Kirkhill, L.||Wedderburn of Charlton, L.|
|Lawrence, L.||Whaddon, L.|
|Leatherland, L.||White, B.|
|Lee of Newton, L.||Wigoder, L. [Teller.]|
|Ailsa, M.||Glasgow, E.|
|Allen of Abbeydale, L.||Glenarthur, L.|
|Alerton, L.||Gridley, L.|
|Avon, E.||Hailsham of Saint Marylebone, L.|
|Belstead, L.||Henley, L.|
|Bessborough, E.||Hives, L.|
|Bolton, L.||Holderness, L.|
|Broadbridge, L.||Home of the Hirsel, L.|
|Brougham and Vaux, L.||Hornsby-Smith, B.|
|Caccia, L.||Hylton-Foster, B.|
|Campbell of Alloway, L.||Inglewood, L.|
|Campbell of Croy, L.||Ingrow, L.|
|Cathcart, E.||Kimberley, E.|
|Chelwood, L.||Kintore, E.|
|Clifford of Chudleigh, L.||Lane-Fox, B.|
|Coleraine, L.||Lauderdale, E.|
|Colville of Culross, V.||Lindsey and Abingdon, E.|
|Cottesloe, L.||Long, V.|
|Craigavon, V.||Lucas of Chilworth, L.|
|Dacre of Glanton, L.||Lyell, L.|
|Davidson, V.||Mackay of Clashfern, L.|
|De La Warr, E.||MacLehose of Beoch, L.|
|Denham, L. [Teller.]||Macloed of Borve, B.|
|Drumalbyn, L.||Massereene and Ferrard, V.|
|Elton, L.||Molson, L.|
|Fairfax of Cameron, L.||Monk Bretton, L.|
|Ferrers, E.||Montgomery of Alamein, V.|
|Ferrier, L.||Mottistone, L.|
|Forbes, L.||Mowbray and Stourton, L.|
|Fortescue, E.||Napier and Ettrick, L.|
|Fraser of Kilmorack, L.||Norfolk, D.|
|Gibson-Watt, L.||Nugent of Guildford, D.|
|Gisborough, L.||Orkney, E.|
|Glanusk, L.||Quinton, L.|
|Rochdale, V.||Swinfen, L.|
|Romney, E.||Swinton, E. [Teller.]|
|St. Davids, V.||Thomas of Swynnerton, L.|
|Saint Oswald, L.||Trefgarne, L.|
|Sandys, L.||Vaux of Harrowden, L.|
|Sempill, Ly.||Vickers, B.|
|Skelmersdale, L.||Vivian, L.|
|Spens, L.||Windlesham, L.|
|Stodart of Leaston, L.||Wise, L.|
|Stradbroke, E.||Wynford, L.|
|Sudeley, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 7 p.m.
Lord Avebury moved Amendment No. 74:
Page 21, line 26, after ("(1)") insert ("(a) to (c)").
§ The noble Lord said: The noble and learned Lord, Lord Elwyn-Jones, moved an amendment a short while ago which dealt with the subject access provisions applying to immigration control, and this amendment deals with the non-disclosure provisions. The noble Lord, Lord Houghton, was right when he said that parts of the measure should be called the Data Disclosure Bill, because the effect of the subsection with which we are dealing is that people who have personal data under their control are given authority (that they would not otherwise have had under the Bill) to transfer it to another person if it is required for the purposes of immigration control.
§ The Minister has explained several times—I concede this—that nobody is obliged to give this information under the Bill. However, I believe that the effect of a provision of this kind, appearing on the face of the Bill, is that people will be more inclined to give it than they otherwise would have been, and that confidential information will be transferred from one computer to another where it would not formerly have been transferred when the systems were in manual form.
§ The noble Lord had addressed to him by the noble Lord, Lord Houghton, when we were debating the last amendment, a perfectly fair question, which the Minister did not answer. That was whether there would be any change in the practice of Government departments, other than the Inland Revenue, in the way in which they passed information between themselves, other than was already provided for by statute. Lord Houghton will remember that when we were looking at this matter in the Royal Commission on the Standard of Conduct in Public Life we did an examination of the legislation and found there were seven Acts of Parliament which specifically authorised the transfer of information between one agency of the Government and another and that no information was transferred other than under those statutes. Now, with this provision in the Bill, we want to know—and I hope the Minister will answer the question—whether exactly the same prohibition on transfer will apply in future as was the case in the past. That question has been addressed to the noble Lord several times.
§ Even if the answer is that the Government will not so transfer information, the private data user will be under enormous pressure to do so. The Minister said that this provision did not create a new category of information in the sense that there was no right of subject access at present to information required for 660 the purposes of immigration control. But I suggest that we are creating a new class of information; that is, the class of information held by private data users which will be more liable to disclosure for the purposes of immigration control than it would have been in the absence of a provision of this kind.
§ I wish to raise a few other points which the Minister raised on the previous amendment but to which I did not reply at the time, although I thought they were rather misleading. He mentioned—and it was very amusing—the case of the Portuguese citizen who had been removed nine times from this country but who still kept returning. I think I happen to know the case because it is one that is still under consideration by the Minister's colleague in the department. The person concerned maintained he was a patrial and had been trying to establish his patriality all this time, but because he did not have the date of birth of his grandfather—he had been looking in the wrong place in the records—he was unable to do so. But I understand that he now has his grandfather's birth certificate and is in a position to establish his patriality to the satisfaction of the Minister. Therefore, on the previous nine occasions when he was detected and removed, he ought to have been allowed to remain on the basis that he was entitled to be here under our law.
§ Another point the Minister emphasised in debating the previous amendment was the right of parliamentary representation to a Minister where anything was done which was irregular or improper under Clause 28. But everybody has the right to make representations through their Member of Parliament to any Minister; it is not something specifically given to the potential victims of the immigration control network in case they may be subject to some infringement of their rights.
§ There was considerable discussion, both in Committee and earlier today, of the way in which the immigration control provisions of the Bill could be treated as coming within the exemptions from the general principles laid down in the convention and which the convention, of course, permits. The Minister had said—and he repeated it today—that Article 9.2.b specifically provided for the derogation of the convention's prohibition provisions where necessary, in the interests of protecting the rights and freedoms of others. He said it was in the interests—that was the word he used—of the people settled here that immigration control should be effective.
§ However, I respectfully suggest that it does not mean that anybody's rights or freedoms are violated at present by reason of the fact that immigration officers may not be able to access personal data held by some private user or by another Government department. I do not think any person could bring a case under the European Convention—looking at it the other way round—alleging that there had been some violation of his rights by reason of the fact that the number of illegal entrants was marginally higher than it would otherwise have been because Home Office snoopers were able to pry into bank accounts, employment records, social service reports or medical files, as they might be able to do under Clause 28(2). But the rights and privileges of people who are, as has been said, 661 largely from ethnic minorities are likely to be violated as a result of the clause, as I shall attempt to show.
§ As I said, the Minister pointed out that no data user was obliged to disclose personal data in consequence of Clause 28(2), and that what the provision did, strictly speaking, was only to relieve the data user from an obligation not to disclose which he would otherwise have had under the principles of Schedule 1. If it were never the intention that the data user should disclose—if there would not be cases where he will do so voluntarily as a result of the provisions of the clause—then the Minister would have had no difficulty in agreeing to the amendment. So we must work on the hypothesis that people will disclose data as a result of the provisions of Clause 28(2). The essence of the clause is that otherwise confidential information will be given to immigration officers on demand.
§ We are not talking about people who have committed criminal offences. The Minister kept returning to this subject and he kept talking about people who had come here illegally, being juxtaposed, quite properly, with those dealt with under (a) and (b). But as we have said time and again, for the purposes of the detection and prosecution of offenders, we do not object to those provisions; what we are concerned with is the extension of the exemption provisions to people who have not committed any criminal offence. As the noble Lord told me in reply to a Question for Written Answer, the Home Office's computer, containing 300,000 names of individuals, will cover other categories of people, such as overstayers and people who in the past have been refused leave to enter or to remain. Those were the two classes that the Minister mentioned when we were discussing the subject on 22nd February.
§ If someone tries to enter under another name—which was the example that the Minister gave—he is committing a criminal offence, and he will be covered by subsection (1)(a) and (b). So that leaves only the overstayers as people whom the Minister considers ought not to be entitled to the protection of non-disclosure, even though they are not suspected of having committed any criminal offence. If there are other kinds of data subject whose particulars the Government consider ought to be disclosed in furtherance of immigration control, it would be useful if in the course of the discussion on the amendment the Minister could tell us who they are. Either they can be enumerated, in which case a more limited exemption than is now to be found in the Bill could be drafted, or they cannot be enumerated, which means that virtually anybody could be the subject of a request by an immigration officer for disclosure of his personal data.
§ I should like to give some examples of what may be thought likely to happen. A close relative of someone who is suspected of infringing the law on immigration might be the subject of inquiries, as indeed such a person frequently is, because the Home Office works on the principle of guilt by association in the immigration rules, and it frequently suspects, for instance, the brother or a cousin of someone who has been caught for an infringement of the immigration law of wishing to do the same himself. Alternatively, there might be someone with a name similar to that of an overstayer or a suspected illegal entrant. There 662 might be involved, for instance, all the tenants of a local authority who have the surname of Shah, or all the patients with Asian names who attended an antenatal clinic between certain dates.
§ It is the danger of fishing expeditions of the kind that I am describing that I believe most people find quite frightening when they look at this legislation. We already know that the police and the immigration authorities conduct joint raids on work places from time to time, and that many innocent people, who have settled here, and who may even be citizens of this country, are swept up in the net. Quite apart from the trauma which they must undergo as a result of the experience of being taken into a police station and interrogated, they might also suffer long-term disadvantages in consequence of being recorded, as in this case, on the police national computer.
§ The clause will mean that thousands, if not tens of thousands, will have their particulars entered on the illegal immigration intelligence unit computer, through having some remote connection with immigration control. Let us for a moment think about what would be the consequences for the individual who, quite unknown to himself, is one of the 300,000 persons whose names are on the computer. For instance, his personal data could be disclosed under Clause 27, if he were a civil servant being vetted for promotion, and the fact that his name had appeared on the illegal immigration intelligence unit computer at all might tip the scales against his promotion, even though his character was completely without stain. If he applied for citizenship, then again it could be held that access to the Harmondsworth computer was justified in the interests of national security, and the very fact that his name was on that computer would jeopardise his application. If he invites a relative from his country of origin to stay with him and any doubt arises about the relative's intentions to stay here only for a visit, the immigration officer dealing with the case will do a search on that person as the sponsor. If the result is positive, it might lead to the relative being refused.
§ The police rely heavily on informants, as the noble Lord the Minister stated in the context of a discussion on the defence against a charge of inaccuracy. It was stated that the data came from a third party, and the assumption then was that inaccurate information might frequently get into police records. Equally, I fear, it is possible that inaccurate information will get into immigration records by coming from third parties in the way that I have described.
§ One saw the harmful results of wrong information in their most glaring form in some of the recent police operations that have taken place. For example, the police recently burst into the bedroom of an old-age pensioner couple, as reported in the Guardian on 1st March. They went in at gunpoint, smashed their way into the flat where the old people lived, and terrorised them, when they were perfectly innocent of any offence. The whole thing had been a ghastly mistake. In the case of names held on immigration computers and information coming from other sources which may be inaccurate, the consequences might not be quite so extreme as that, but they have the additional characteristic that the victim will probably never know 663 what information about him has been accessed, or how it has been used.
It is not only the organisations that are specifically concerned with civil liberties and which one would expect to be concerned about this matter—such as the National Council for Civil Liberties, or the Joint Council for the Welfare of Immigrants—that are against the proposals. The British Medical Association has pointed out the objections as it sees them. In a memorandum which it published on the clause the BMA stated:
If, in exceptional cases, a transfer of information is made to a computer system which is classified as exempt, the BMA believes that each transfer of personal medical examination should be recorded, together with a description of the type of information released. Such transfers and descriptions should be published within a specified period of time in order that the decision to disclose may be open to scrutiny and challenge".
So the British Medical Association itself can see the dangers of this type of transfer of information that is dealt with in Clause 28(2).
§ The National Association of Citizens' Advice Bureaux produced what I thought was an extremely effective argument when it pointed out the problem of selectivity in confidentiality. It states that in dealing with the public, as it does, in connection with a broad mass of problems that are brought to it, it cannot say that in exceptional cases the information would be released to another agency, because then it is a question of where one draws the line. So it is either all or nothing, and the National Association of Citizens' Advice Bureaux obviously will have to decline to give information to immigration control agencies when it is asked for it, but it will be under constant pressure to do so as a result of the provisions of the clause.
§ I really hope that, whatever the Government ultimately decide about subject access—and I view that as equally important—they will address their minds very seriously to the transfer of data to the immigration control computers which will occur as a result of the clause, that they will think about the objections that have been raised to it not only by noble Lords in this House but also by very many organisations outside, and that they will take away the clause and remove it entirely from the Bill. I beg to move.
§ Lord Elton
My Lords, on Amendments Nos. 70 and 71 we considered whether immigration control was a matter which should benefit from the exemption contained in Clause 29(1), and your Lordships agreed that it should. On the last amendment, No. 73, we discussed the general question of whether there should be exemptions from the non-disclosure provisions, and again your Lordships gave the view that there should be. Now we are moved from that general area to one that is more particular and are asked to consider whether data used for the purposes of immigration control should benefit from the non-disclosure exemption.
The Government are firmly committed to the enactment of data protection legislation, but we do not believe that that commitment should offer assistance to wrongdoers. For that reason we proposed some limited exemptions which disapply certain of the provisions of the Bill where this is necessary in the 664 interests of effective law enforcement. When the police are investigating crime not only should they be able, as now, to seek information from whoever can give them useful assistance, but those able to help the police should not face the threat of a criminal sanction for disclosure, where to withhold disclosure would prejudice the effective prevention or detection of crime. Similarly, if the immigration authorities need to make inquiries in a particular case involving immigration abuse, the person concerned should not be able to avoid detection just because the holder of the vital information has not registered the disclosure which is sought and, although only too ready to make the disclosure, is therefore precluded from doing so by the non-disclosure provisions.
My Lords, there are many disclosures for the purposes of immigration control that will be fully registered. The provisions of Clause 28(2) will not cast a total veil of secrecy over all such disclosures. The exemption can only apply where necessary to avoid prejudice to immigration control. Let me offer an example where the exemption will be necessary and where the exemptions for purposes such as crime prevention will not apply. A person may be convicted of a criminal offence, not necessarily an immigration offence, and the courts may fine him or give a suspended prison sentence and recommend him for deportation, as they are empowered to do. If a deportation order is made but he then goes to ground, steps have to be taken to find him so that the deportation order can be enforced. The only means of tracing him may be through the computer record of a one-time employer, or an educational establishment where he was a student, who will not have registered any possible disclosures to those responsible for immigration control. Where they do not wish to disclose the information, there will be no way of requiring them to do so. In other words, the Bill alters existing rights as to that by not so much as a hair's breadth. But where they decide that they would wish to do so, the Bill should surely not prevent them.
My Lords, deportation action is entirely administrative and the holders of the records cannot rely on paragraphs (a) and (b) of subsection (1) in order to enable them to divulge the necessary information. Without the immigration exemption in Clause 28(2) they would have no choice but to remain silent. The effect of the noble Lord's amendment might therefore be that we would be unable to give effect to the court's recommendation. The effective enforcement of immigration control does require us to seek exemption from certain of the provisions of this Bill in particular circumstances and the disclosure of information, about which we are here concerned, is an important aspect of the enforcement of immigration control.
Those are the principal considerations that I leave before your Lordships. I would pick up (because the noble Lord would otherwise tax me with not having done so) the question of any change in the Government practice as to the exchange of information between Government computers. May I remind the noble Lord that, by virtue of Clause 35(1), each Government department will be a separate user and, therefore, a transfer from one department's computer to another's will be a disclosure under the Bill and Clause 28(2) will not lead to more such disclosures 665 than there now are. The noble Lord also referred to "fishing raids", as I think he called them, and suggested that exemption from the non-disclosure provisions for the purposes of immigration control could be used as the basis for what he so described.
I have to tell him that this is not the case. In the first place, no one will be under any obligation as a result of this provision to provide any information whatsoever to the immigration authorities. Where they decide to disclose data, they must have reasonable grounds for believing that failure to do so would prejudice immigration control; otherwise they lay themselves open to prosecution. I am unable to imagine circumstances in which the failure to disclose personal data which is sought on a purely speculative basis could reasonably be thought to be prejudicial to immigration control.
Secondly, random fishing operations of this sort do not take place. Any investigations that are made are made only on the basis of firm evidence against particular subjects; although I suppose that mistakes may happen. This Bill imposes constraints which do not exist at the moment and there is no reason, therefore, to suggest that this provision gives any basis for starting any such random inquiry.
The final point which I ought to pick up within the context of what I have already said is the noble Lord's reference to the immigration service intelligence unit computer. There are a large number of names of people on it, as he said. They fall into certain clearly defined categories: for instance, those who have been refused leave to enter or refused entry clearance or who, in certain cases, have been deported from the United Kingdom or who are considered to be involved in abuse or attempted abuse of immigration laws. The only other thing that I would add to that piece of information is that the vast majority of the records relate to people who are outside the United Kingdom but may seek to come here. Only some 10 per cent. of the records relate to persons thought to be in the United Kingdom. I perhaps regret having put that at the end of what I had to say. The principal consideration was that to which I first addressed myself. I hope that the noble Lord will not press his amendment. But, if he does, it is on that basis that I shall ask your Lordships to resist it.
§ 7.25 p.m.
§ Lord Avebury
My Lords, the Minister said nothing to lessen my alarm about the way in which data can be transferred under this provision. For instance, if I start at the end of his remarks, he said that only 10 per cent. of the people on the illegal immigration intelligence unit were actually physically present in this country—which means that, at the moment, you have got 30,000 names there of people who are resident here, most of whom, as the noble Lord has said, are lawfully present.
§ Lord Elton
My Lords, my intention was to say that there were 30,000 not resident here. I am sorry; I have moved the decimal point, my Lords. The approach of 666 dinner has made me over-excited. The noble Lord is quite right.
§ Lord Avebury
My Lords, I thought the noble Lord said that 10 per cent. of the people on the immigration intelligence unit computer were resident in this country, which means 30,000 people.
What we are talking about is not the situation that we find today but what may happen as a result of the Bill and the numbers of persons whose particulars will be transferred from other data users to the intelligence service unit under this provision. The noble Lord said that data users are not going to give information without being satisfied that they are required to do so for the purposes of immigration control. But on an earlier amendment it was said that the word of the immigration officer will be conclusive here.
If an immigration officer comes to an employer or to an educational establishment—to take the other example the Minister gave—and says that he wants all the persons in the establishment with certain names, then, if he says that that is required for the purposes of immigration control, in many cases presumably the education establishment or the employer will give the information and a large number of names will finish up in the immigration intelligence unit computer, being names of people who do not have anything at all to do with the commission of offences.
The Minister may say that there are no raids except on good evidence and it may be a fact that, for example, in the Safeways supermarket raid there were certain people apprehended who were either illegal immigrants or overstayers. What I was saying was that into that net was swept a large number of people who had no connection whatsoever with the infringement of immigration control. If those persons had their names fed into the computer, it could be very disadvantageous for them in the long run.
The Minister gave only one example to show how information of this kind could be of material importance in a case where there was no actual criminal offence being committed. That was of a person who had been given by a court of law a suspended sentence with a recommendation for deportation and who subsequently went to ground. That was a spurious example. As the Minister will find if he makes inquiries, those persons are nearly always detained under Schedule 2 to the Immigration Act 1971 pending their deportation—as are those people who come to the end of their sentence and who have been recommended for deportation by a court of law. If the Minister has not already decided whether to accept the recommendation, they will be detained following the end of their sentence under Schedule 2 to the Immigration Act 1971. Those people are not physically in a position to abscond and would never do so.
If that is the best example that the Minister can produce for the reasons why persons who have not committed a criminal offence ought to be on this computer and inquiries ought to be made about them, for example from employers or educational establishments, I am afraid that I cannot accept his argument and must ask the House to join me in the Lobby and to throw out this proposal.
§ 7.30 p.m.
§ On Question, Whether the said amendment (No. 74) shall be agreed to?
§ Their Lordships divided: Contents, 64; Not-Contents, 78.668
|DIVISION NO. 3|
|Avebury, L.||Lockwood, B.|
|Bacon, B.||Longford, E.|
|Beaumont of Whitley, L.||Lovell-Davis, L.|
|Bernstein, L.||McCarthy, L.|
|Beswick, L.||McIntosh of Haringey, L.|
|Birk, B.||Mackie of Benshie, L.|
|Bishopston, L.||McNair, L.|
|Blease, L.||Milner of Leeds, L.|
|Bringinshaw, L.||Mishcon, L.|
|Bruce of Donington, L.||Nicol, B.|
|Byers, L.||Ogmore, L.|
|Chitnis, L.||Oram, L.|
|Cledwyn of Penrhos, L.||Peart, L.|
|Collison, L.||Perry of Walton, L.|
|David, B.||Pitt of Hampstead, L.|
|Elwyn-Jones, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Evans of Claughton, L.|
|Ewart-Biggs, B.||Rea, L.|
|Foot, L.||Ross of Marnock, L.|
|Gardiner, L.||Seear, B.|
|George-Brown, L.||Serota, B.|
|Hampton, L.||Stewart of Fulham, L.|
|Harris of Greenwich, L.||Stone, L.|
|Hooson, L.||Strabolgi, L.|
|Hylton, L.||Taylor of Blackburn, L.|
|Irving of Dartford, L.||Taylor of Mansfield, L.|
|Jeger, B.||Tordoff, L.|
|Jenkins of Putney, L.||Underhill, L.|
|John-Mackie, L.||Wallace of Coslany, L.|
|Kaldor, L.||Whaddon, L.|
|Kirkhill, L.||White, B.|
|Kissin, L.||Wigoder, L. [Teller.]|
|Llewelyn-Davies of Hastoe, B.|
|Ailsa, M.||Hailsham of Saint Marylebone, L.|
|Avon, E.||Hayter, L.|
|Bellwin, L.||Hives, L.|
|Belstead, L.||Holderness, L.|
|Birdwood, L.||Home of the Hirsel, L.|
|Boyd-Carpenter, L.||Hornsby-Smith, B.|
|Brougham and Vaux, L.||Ingrow, L.|
|Caccia, L.||Kimberley, E.|
|Campbell of Alloway, L.||Kintore, E.|
|Campbell of Croy, L.||Lane-Fox, B.|
|Cathcart, E.||Lauderdale, E.|
|Chelwood, L.||Lawrence, L.|
|Coleraine, L.||Long, V.|
|Colville of Culross, V.||Lyell, L.|
|Cottesloe, L.||Mackay of Clashfern, L.|
|Dacre of Glanton, L.||Macleod of Borve, B.|
|Davidson, V.||Marshall of Leeds, L.|
|Denham, L. [Teller.]||Massereene and Ferrard, V.|
|Drumalbyn, L.||Molson, L.|
|Eccles, V.||Monk Bretton, L.|
|Elton, L.||Montgomery of Alamein, V.|
|Fairfax of Cameron, L.||Mottistone, L.|
|Ferrers, E.||Norfolk, D.|
|Ferrier, L.||Orkney, E.|
|Forbes, L.||Rochdale, V.|
|Fortescue, E.||Romney, E.|
|Fraser of Kilmorack, L.||Saint Oswald, L.|
|Gibson-Watt, L.||Sandys, L.|
|Gisborough, L.||Sempill, Ly.|
|Glanusk, L,||Skelmersdale, L.|
|Glasgow, E.||Spens, L.|
|Glenarthur, L.||Stodart of Leaston, L.|
|Gridley, L.||Stradbroke, E.|
|Sudeley, L.||Vivian, L.|
|Swinfen, L.||Windlesham, L.|
|Swinton, E. [Teller.]||Wise, L.|
|Trefgarne, L.||Wynford, L.|
|Vaux of Harrowden, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 7.37 p.m.
§ Lord Glenarthur
My Lords, this may be a convenient moment to break for dinner, and I beg to move that further consideration on Report be now adjourned until twenty minutes to nine.
§ Lord Ponsonby of Shulbrede
My Lords, did I understand the noble Lord to say that we would not return to the Report stage of the Data Protection Bill before 8.40 p.m.?
§ Moved accordingly, and, on Question, Motion agreed to.