HL Deb 03 November 1983 vol 444 cc634-42

3.30 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Elton)

My Lords, I beg to move that the Bill be read a third time. As no noble Lord has tabled an amendment to it, it looks as though our work on this complicated measure, now making no less than its eighth appearance before us for consideration, is beginning to draw to a not unwelcome close. We have spent so much time on it already that I do not intend to detain your Lordships long with it now. I shall not rehearse either the debates we have held or the decisions we have come to. I wish merely to say "Thank you" to the House as a whole and to individual noble Lords in all parts of the House, not only for the many hours we have spent on this measure in the Chamber but for the immense care taken with the details of the work.

That extends far beyond the time actually spent in the Chamber. It has involved acquiring a great deal of knowledge from a wide variety of sources. It has involved much correspondence, much consultation, endless essays in drafting and re-drafting and the careful distillation of all this effort into explanatory speeches. To these the Government have listened with care. From them they have learned much, and by them, in many instances, this Bill has been improved even beyond the condition to which we had brought it while it was passing through all its stages in this House during the last Parliament. That is a measure of the effectiveness of your Lordships' House.

Ministers are served by their departments and are supplied with cogent arguments in the course of duty. I readily record my grateful acknowledgement of all the midnight work done on my behalf and on behalf of your Lordships as a whole by my own very expert team. But the rest of your Lordships toil, often far into the night, bringing a huge volume of non-governmental experience and wisdom to bear upon the legislative anvil. If the process generates some heat, that is to be expected. Your Lordships have worked very hard on this instrument. I believe it is now a great deal better as a result, and I ask your Lordships to give it its third and final reading. I beg to move.

Moved, That the Bill be now read a third time.—(Lord Elton.)

Lord Elwyn-Jones

My Lords, I should like to thank the noble Lord, Lord Elton, for his own patience, courtesy and, if I may say so, immense conscientiousness in leading this Bill and steering it through the House. Also, if I may, I thank my noble friends and noble Lords in all parts of the House who have made their contributions to it. I am afraid that my temptation to do a little rehearsing is (the noble Lord will not be surprised to hear) irresistible, at any rate to me, if to no one else.

On Third Reading of the Bill way back in March, 1983, when this highly unlovable Bill first came before us, I ventured to say that, while on the Government's part there was an intention to comply with the convention on data protection, there was also a determination that the compliance would he minimal rather than generous. Since then, as the noble Lord has said, there have been many important changes made to the Bill. I agree with him that the value of this House as a revising Chamber has been very significantly proved. Several improvements to the Bill have been achieved by amendments put down not only by the Opposition but also from different parts of the Chamber. Nevertheless, it is sadly the case that there are still serious deficiencies in the Bill as it goes on its way to another place, despite the efforts of the Opposition and other Members to put the matter right.

As to improvements, I think it would be less than generous if I were not to note some of those which have been effected and accepted by the Government. There is an inclusion in Clause 3 of persons to represent data subjects on the data protection tribunal. There is the amendment to Clause 17 to ensure that the Official Secrets Act shall not preclude the registrar from disclosing information if disclosure is necessary for the fulfilment of the registrar's duties under the Bill. There is the amendment to Clause 22 extending the right of compensation to those who dispute the accuracy of data. Then, the amendment to Clause 24 modifying the clause in such a way that the court can now order data to be rectified and erased without the data subject having to prove that he has suffered any damage.

But more significant was the amendment to Clause 27, which the Opposition achieved, in the national security exemption provisions of the Bill. A certificate of exemption on the grounds of national security now has to be signed by a Minister of the Crown. As the Bill was introduced by the Government originally, it would have sufficed if it were signed by or on behalf of a Minister of the Crown, with no definition as to the status of such a Minister.

But perhaps the most important concession made by the Government after prolonged pressure—for which concession we are grateful—was their decision before we resumed after the Recess to omit control of immigration from Clause 28 and from the list of purposes in respect of which data could be withheld. That provision had caused intense suspicion and apprehension among members of the ethnic communities.

On Clause 28 as it now stands, it may well be that in another place the exemption of data held for the somewhat wide and ill-defined category of prevention of crime will be the subject of further consideration. Having expressed gratification at the removal of the paragraph from Clause 28(1), nevertheless the retention of Clause 28(2) has still left what we deem to be a serious flaw in the Bill. The result of its inclusion, if it becomes law, is that it could well mean that highly confidential and sensitive information could be secretly disclosed to the police, the Inland Revenue or the Customs and Excise without any indication at all on the data protection register that anything of this kind was even possible. That is perhaps why its provsions have been called by the Lindop Committee "a palpable fraud on the public"—severe words indeed.

When we last debated this matter I quoted a letter from Sir Douglas Black, as chairman of the inter-professional working group on access to personal health information, supporting the amendment to Clause 28(2) which my noble friends and I proposed. I have little doubt that this issue will be raised again vigorously in another place. We regret also the refusal of the Government to give way, among other matters (although there is no time to cover the whole ground), on our proposals for a data advisory committee and for advisory codes of practice to be made by the registrar—proposals which were supported in many parts of the House.

I do not propose to detain the House at any length on this matter, which we have traversed hard and long, but I repeat my gratitude to the noble Lord the Minister for his own courtesy and to my noble friend Lord Mishcon and others in various parts of the House. Although heat was raised occasionally, also a great light was cast upon the subject of the debate.

3.40 p.m.

Lord Avebury

My Lords, on behalf of my noble friends and myself, I also would like to say a warm "thank you" to the noble Lord the Minister for the care he has always given to the points we have raised during the long proceedings on this Bill both during its previous incarnation and on its latest appearance in this House. We thank him for the immense care that he gave during the Summer Recess to some very important questions of principle which had divided us during the proceedings in Committee before we dispersed.

We were aiming in this legislation to protect the data subject whose private affairs are recorded in an increasing number of computer files—files held by the Inland Revenue, the banks, local authorities, hospitals and many other financial institutions—and whose privacy may be affected by the increasing flow of data between those computers if we do not get this legislation right in the first place. The legislation also was designed to enable us to sign the Council of Europe Convention, which the noble Lord mentioned, without which there could have been very serious inhibitions on the flow of data across frontiers and also on the ability of businesses to conduct their affairs where they have computer files in more than one country.

There were several things which worried us when we first saw this Bill. The main one, as the Minister knows, and one which the noble and learned Lord has also discussed, concerned the way in which the Government attempted, so it seemed, through this Bill to open the way for increased flows of personal data from all those other computers that I have mentioned into the ones under the ownership of the Home Office and used for the purposes of immigration control. Also important, though not quite so important, was the way in which subject access was to be denied in the case of personal data held for any of those purposes.

It was, and still is, our view that what was sought to be done in the original Clause 28 was in contravention of the convention, and we were not convinced by the arguments put forward by the Minister that Article 9 covered what was being attempted. At any rate, I think that the noble Lord the Minister will concede, while he may remain of the same opinion, that there was very good legal advice in favour of the proposition that what was being done in this Bill would have been a serious contravention of the convention, and it was not simply—though this is important—as the noble Lord, Lord Elwyn-Jones, has mentioned, the intense apprehension and suspicion which have been aroused in the minds of ethnic minorities which led to the removal of those offending clauses.

I agreed with what the noble and learned Lord also has said, that we need to give further thought to the question of disclosures of other kinds under Clause 28(2). I think that in the end we ought to arrive at a state of affairs where the data users are forced to consider at the outset what kinds of disclosures they would make, instead of always making the decision on an ad hoc basis, when they are confronted by the police, of one or other of the examples given by the Minister during the course of our proceedings.

On Clause 29(2) we believe there is need for additional work to be done in another place so that right of access to medical and social records is not left entirely to the discretion of the Minister and to orders which, while they would be considered by both Houses of Parliament, as the Minister has explained, would be unamendable and might be unsatisfactory in some respects, without giving your Lordships the chance to do anything about it. At the same time, we recognise that immense improvements have been made to the Bill and I shall not recapitulate those which have been mentioned by the noble and learned Lord. We are immensely grateful to the Government for listening to all the points that have been made by Members of the Opposition and also by noble Lords on the other side of the House, and not least by the noble Lord, Lord Digby. We regret that some of his further advice, particularly regarding a data protection advisory committee and the institution of a code of conduct, has not been observed but we hope that perhaps another place will follow up those points.

Lord Donaldson of Kingsbridge

My Lords, I think the Bill is better than when it first appeared but it could be a great deal better than it is, and I hope that it will be by the time it leaves the other place. Meanwhile, I am grateful to the noble Lord the Minister for his courtesy during our discussions.

3.45 p.m.

Lord Mottistone

My Lords, I should also like to add my thanks to my noble friend the Minister and indeed to my noble and learned friend the Lord Chancellor, who, particularly the first time the Bill came before us, had a great deal to do with it, rather more than he did latterly. I think that the Government have been quite remarkable in regard to the degree to which they have listened to arguments for the amendments which have been put forward not only from this side but also from the opposite side. It has been very heartening that they should have done that. It has also impressed me greatly that some of the points on which my noble friend appeared obdurate were at a later stage the subject of amendments that he himself provided to meet the arguments which had been raised. This shows a breadth of thought on the part of the Government and of the noble Lord, and I like to think that perhaps it is also due to the good advice received from his advisers.

There is not very much more to be done to this Bill from the point of view of industry. Several noble Lords have said that there is more to be done in another place. On the whole, I think that the points which I have put forward—all the ones that reasonably could be—have been accepted, or well argued. I again thank my noble friend for his understanding and for the great care that he has given to this Bill.

Lord Hatch of Lusby

My Lords, it would be ungracious of me, having taken part in all the seven previous sessions of debate, not to pay my tribute to the noble Lord the Minister for having accomplished what I, in particular, have been most anxious should be done right from the Second Reading the first time round.

May I just say to him that perhaps it is not he who should be asked to listen in future to the pleas of communities like the ethnic minorities, because I believe he has been doing so all the time. But I would ask him to use his influence, and if possible to strengthen his influence, in the Home Office to get other Ministers to listen to him, because I am assuming—I trust rightly—that he has been putting the case that has been so well argued here by my noble and learned friend from the Front Bench and, I would add, also from the noble Lord, Lord Avebury.

I was a little concerned when he gave as the reason for changing his mind, after the seventh session on Clause 28, that he still did not consider that the inclusion of the phrase "control of immigration" was one which should lead to any unease among the ethnic minorities. He seemed to suggest at one time that it was the debates in this House which were raising these fears among the members of those communities. That has never been the case, and I hope that he and his fellow Ministers will recognise that it has never been the case. We have been putting those fears as they were expressed to us. We have not been at any time raising those fears. The fact that we agreed there was a reason for fear certainly did not provoke the fears in the first place: we were the channel through which these fears were expressed. I hope that in any future legislation this lesson will be learned by the Home Office and that it will not require the accident of a general election to start the Bill again before it is possible to remove such offensive references.

If anything has been learned by the Home Office through the debates in the House on this Bill on the very delicate subject of the sensitivity of the ethnic minorities. then it has been worthwhile. Like my noble and learned friend on the Front Bench. I am still concerned about Clause 28. I am still worried that the phrase "the prevention or detection of crime" is a very loose one that can he interpreted in so many different ways that it is dangerous in law; but that will have now to be left to the other place.

All I would say to the noble Lord is that I certainly have appreciated his continuous courtesy in argument. even if not the logic of his argument. I trust that the experience that he has had during this long period of going through the Bill twice will have reinforced him, in his role within the Home Office, in convincing his colleagues that race relations can be very seriously damaged unless the sensitivity of the ethnic minorities in this country is recognised when legislation is first drafted.

3.52 p.m.

Lord Mishcon

My Lords, the atmosphere of a Third Reading in your Lordships' House is so pleasant, and I cannot resist the temptation to indulge in some of this pleasant atmosphere by expressing my own thanks to the noble Lord the Minister for his continuous courtesy and help. On these occasions one remembers those worthy organisations which, even though they may not have the adeptness of the Civil Service which serves the Minister, help to give those in Opposition the chance of an authoritative brief when they speak. I am thinking in this connection, as indeed does my noble and learned friend Lord Elwyn-Jones, of organisations like Justice, the National Council of Civil Liberties and several others which, with great sincerity, put forward reasoned argument which your Lordships heard in this House as a result of their efforts.

I promise to be brief in order not to ruin the atmosphere of a Third Reading, and I merely want to add one general observation of deep regret that this Bill will leave the House for another place with such a wide duty of registration cast upon people who were never meant to come within the formalities of this Bill. I remember that on a previous occasion I threw most gently at the noble Lord the Minister, almost as though we were playing in the nets and not on the cricket field itself, an example which was given to me by the Law Society, to which I also owe a debt of gratitude, and not only for what they have done for me on this occasion. That example was of a schoolboy who was not a member of a society or of a cricket team but who, being most interested in that game, put through the school computer the names of the first eleven and the second eleven, and the runs that they had respectively scored or the wickets that they had managed to take during the season. As I read the Bill, and as those who are much more learned in the law than I shall ever be read the Bill, it seemed that that innocent insertion into the school computer would make it necessary for the school to register the computer. This could never have been intended.

But this is not the time for argument. This is a time, I suppose, for a plea to another place to do something which this House was unable to do. If I may repeat what my noble and learned friend, the Minister and others have said, much has been done in this House to improve the Bill, which has largely been the result of the Minister's receptive mind, and for that we are grateful.

Lord McIntosh of Haringey

My Lords, noble Lords have shown great restraint in not going over the arguments that have taken place previously, and I shall certainly not break that restraint except parenthetically to regret that my noble and learned friend did not close with a little more about the considerable achievement of himself and others in encouraging the Government to remove the immigration exclusion clause. But at this stage of the Bill, as it goes to another place, it is not inappropriate to reflect about the position which it will have, together with other legislation which is about to go before the other place and come before us in due course.

This is a reactive Bill and not (in the horrible modern phrase) a proactive Bill. It is reacting in the most narrow sense to the necessity for us to comply with the European Convention. But in the wider sense it is reacting to something which has been taking place over a very considerable time, without necessarily having any reflection in legislation; that is, the increasing power of data processing machines (if that is still the correct description) not only to assemble and analyse data but also to transmit them, and the ability of those machines to do this for data which affect all of us as individuals—the "data subjects", as the Bill puts it.

I happen to believe that the concessions which were made on Clause 28 of the Bill, removing the immigration exclusion, were quite inadequate, because I believe that the exemptions which still exist for, in particular, the prevention of crime, which can mean very much more than the detection and apprehension of offenders, which is already in the clause, still permit far too great a power for, in particular, police computers, and also for many other Government computers and Government data banks with information about individuals.

The only reason why I am saying this now—because I can see that I could be accused of repeating arguments, which I do not want to do—is that this Bill will be going through concurrently with the Police and Criminal Evidence Bill. It is not the role of this Bill to curb the power of the state; that is not its primary intention. But it is the purpose of this Bill to see to it that that part of the power of the state which is increasingly infringing the rights of individuals, that part which is due to the increased power of data processing machines, is brought into the sphere of general control.

One of the purposes of the Police and Criminal Evidence Bill ought to be not just to define more clearly the conditions under which the police operate in their relationships with the general public, but also to see to it that the internal operations of the police are consistent with the ideals of personal liberty which are expressed in the European Convention and in the data protection principles set out in this legislation. I hope that, as the other House considers both Bills and as this House considers the Police and Criminal Evidence Bill in due course, the wider interest reflected in both pieces of legislation, which is not fully reflected in the wording of either—that wider interest being the interest of the individual in relation to the state—will never be far from our minds. With that, I, too, should like to express my appreciation for the courtesy and consideration with which the noble Lord, Lord Elton, has dealt with all the matters which have been before him.

Lord Swinfen

My Lords, may I very briefly and very quickly congratulate my noble friend on the skill with which he has taken this rather complicated legislation through this House, and on the considerable courtesy with which he has dealt with all the arguments. However, may I ask the noble Lord to ensure that his department keeps an eye on the computer, which is a very new tool and is developing the whole time, in order to make certain that once this Bill becomes law any amendment to the law in the future, because of the development of computers, is brought in as and when necessary.

Lord Elton

My Lords, I am most grateful for the way your Lordships have responded to my Motion. Every single one of your Lordships has been kind enough to thank me, as I have thanked your Lordships. I am grateful to all noble Lords. I am particularly grateful to my noble friend Lord Mottistone and the noble Lord. Lord Donaldson of Kingsbridge, who were the only two who did not say "but" after they had said "thank you". I shall not reply to the series of "buts" in detail because I take it that they are addressed to another place and that they will be read there with the appropriate interest. However, it is fair to say in answer to the noble Lord, Lord McIntosh of Haringey, that certainly this is a reactive Bill in some respects because it reacts to a present situation. But it is—I hesitate to use the word, his dislike of which I share—proactive in another sense, in that throughout we have had to bear in mind the very rapid and quite unforeseeable developments which may take place in the technological field in which we are acting. I take on board the point of my noble friend Lord Swinfen as to that.

As to the amendments which have been made, they have been copious. There has been a remarkable balance, although it has not perhaps always seemed that way to noble Lords opposite, between the points we have taken from different parts of the House. In doing the sums we must also remember the very large number of amendments which were taken on board between the Parliaments. So we have achieved quite a lot.

Our aims throughout have been threefold in principle: the protection of the individual, the protection of the community, and the furtherance of commerce and trade. It is clear that the whole Bill is intended for the protection of the individual, right from the point of registration, subject access and correction, notably helped by the amendments moved by the noble Lord, Lord Mishcon. As to the protection of the community, I cannot, I think, pass by the further repetition by the noble and learned Lord, Lord Elwyn-Jones, of the quotation from the Lindop Committee's report which refers to Clause 28 as "a palpable fraud on the subject". We want more light than heat now. If we had put through this Parliament a Bill which was supposed to protect the individual and which did so at the expense of the community by shackling the powers of enforcement, particularly of the police, that would have been a fraud. I feel that a just balance has been struck here, so I make no apology. But I take note of the point of view expressed by the noble and learned Lord, as I take note of the point of view expressed by those who sit on the Liberal Benches, concerning the individual. The furtherance of commerce and trade will now be taken in hand, when we have finally enacted this Bill, by signature of the convention.

In conclusion, I can only say to the noble Lord, Lord Hatch of Lusby, first that the last general election was no more an accident than the next one will be and, secondly, that there is complete and mutual confidence between all Ministers at the Home Office. Therefore, it is not necessary for me to exert myself in any way to see that right prevails therein. I am deeply grateful to your Lordships for your patience which has extended over very many months.

Bill read a third time; an amendment (privilege) made; Bill passed, and sent to the Commons.