HL Deb 25 June 1985 vol 465 cc715-20

Report received.

Clause 1 [Access to meetings and documents of certain authorities, committees and sub-committees]:

Baroness Carnegy of Lour moved the first amendment: Page 2, line 14, leave out ("other than the Data Protection Act 1984").

The noble Baroness said: My Lords, in moving my amendment to page 2, line 14, I will for the convenience of the House speak also to the next three amendments on the Marshalled List. Second amendment: Page 10, leave out lines 13 to 26. Third amendment: Page 14, line 19, leave out ("other than the Data Protection Act 1984"). Fourth amendment: Page 22, leave out lines 7 to 20.

These four amendments, of which I gave forewarning at Committee stage, in effect alter the relationship of this Bill as it now stands to the Data Protection Act 1984 which is likely to come into force later this year, probably in the autumn. The Data Protection Act is about the protection of information; this Bill is about the disclosure of information. It is important that the provisions of both should operate alongside one another in a way that is as easy as possible for all concerned to understand and operate.

The main relevant effect of the Data Protection Act is to prevent unauthorised disclosure of personal information relating to an identifiable individual and which is either held on computer or is derived from data held on computer. The person or body possessing such information, the data user, is forbidden to disclose it except to a person or persons, the data recipient, whom they have registered with the Registrar of Data Protection. It is an offence to disclose personal information to anybody other than a registered data recipient except in limited exceptional cases which include where the disclosure is required by statute.

At present the Bill forbids local authorities to release information the disclosure of which is prohibited under any other statute. There is, however, one explicit exception to this rule, the Data Protection Act 1984. The purpose of this exception was not to compel local authorities to release personal information held on computer; it was rather to place a decision whether or not to disclose such information in the hands of the local authorities themselves. The schedules to the Bill include among the matters which local authorities may refuse to make public information relating to a particular individual with whom they have dealings whether in their capacity as employer or landlord or in discharging any of their functions. The schedules therefore aim to cover all sensitive information about individuals.

The chief reason for proceeding in this way was that it seemed anomalous to have two classes of personal information in the hands of the local authority; that which is held on computer arising from computer data, which would mandatorily be confidential unless the general public were registered as a data recipient, and that held by more traditional methods on file, where the authority would have discretion of disclosure.

It seemed on balance preferable instead to make the decision to release all personal information, however held, a matter for local authority discretion, as indeed had been the case prior to the Data Protection Act coming into force. On reflection, however, and in the light of discussions with local authority associations, the balance of advantage appears to lie in removing this exception.

This is for three main reasons. First, the Data Protection Act responds to public concern in that it seeks to protect as an intentional act of public policy personal information held on computer or derived from computer data. It quite deliberately stops short of attempting to extend protection to personal information held in other, more traditional forms. It would therefore be difficult to defend mandatory privacy for all personal information held on computer or derived from computer data, excepting information in the hands of local authorities, who would have discretion over disclosure.

Secondly, the law would be clearer and more readily comprehensible to the general public and to local authorities alike if the requirements of the Data Protection Act operated in local government as elsewhere.

Thirdly, in practice a local authority which wishes to exercise discretion over the disclosure of certain personal information on computer or derived from data would still be able to do so. It could register for specified information a data recipient. The recipient could be defined in as narrow or as wide a way as the local authority wished, extending even to registering the general public as data recipient.

These reasons appear to outweigh the case for the exception currently included in the Bill. The local authority associations for their part have made it clear that they, too, would prefer to see the exception removed.

The effect of these four amendments is that Section 100A and Section 50A to be inserted into the Local Government Act 1972 for England and Wales and the Local Government (Scotland) Act 1973 respectively, will now provide in their definition of confidential information, information whose disclosure is prohibited by or under any enactment, no longer specifically excluding the Data Protection Act. They will also have the effect that in supplemental provisions under Section 100H and Section 50H, paragraphs overriding the Data Protection Act are removed. I beg to move.

Baroness Nicol

My Lords, I welcome these amendments and can see the argument for having a consistency of approach as far as the Data Protection Act is concerned. However, I have a slight worry about the application of the amendments, which I should like to put in the form of a question to the noble Baroness, who may be able to answer it.

If an authority, or an official or member of an authority, is in a particular case disinclined to accept the provisions of this Bill, or would find it inconvenient to do so, would not these amendments make it possible for that authority or person to record all documentation on computer and then claim the Data Protection Act in defence? I do not believe that many authorities, or officials or members of authorities, would take such a view, but one can see such a situation arising in the case of, for example, a difficult planning application involving a number of protestors, where the authority might wish to avoid complications and might be tempted to make such a defence. Would it be possible to do that under the provisions of these amendments?

Where a local authority normally, as a matter of course, commits all its information to computer—and this is happening more and more as authorities come up-to-date—it will then be required to take a positive step: that is, to declare either the general public or the people wishing to have the information data recipients, in order to escape the provisions of the Data Protection Act and to supply the information. This seems to me to be placing a barrier in the way of giving information to the general public or to particularly interested members of the general public. With that single reservation, I welcome the amendments and look forward to hearing the comments of the noble Baroness on my remarks, if she has any.

Lord Ardwick

My Lords, my noble friend has raised a difficulty concerning this Bill, but I rise chiefly to give the Bill my full support, which I was prevented from doing earlier. I support this Bill wholeheartedly, not only as a citizen but also as a newspaper man with long and bitter memories of frustrations imposed by local government. In saying this I must declare that I still have a vestigial interest in so doing.

At this time of the year, amendments to a Private Member's Bill are seldom wise for they will have to pass the scrutiny of another place, which is hard-pressed for time. However, I am delighted to learn that the Government will see to it that there is time. Indeed, the newspaper of the Campaign for Freedom of Information (one of the originators of this Bill) which I received today assumes that the Bill has already passed through all its stages in this House and will return to the other place for approval of the final amendments on 5th July. Somebody in high circles has obviously been very free with this information. I trust that he or she is entirely accurate and that very soon this Bill will pass into law.

Baroness Carnegy of Lour

My Lords, I should like to thank the noble Baroness, Lady Nicol, for her continuing encouragement for what I personally regard as a very important Bill. In answer to her question, her main fear that hiding behind the Data Protection Act might preclude the release of information of the kind she mentioned is not justified. The noble Baroness may recall that the Data Protection Act covers only personal information relating to identifiable individuals. A planning application, such as the noble Baroness suggested, would not be affected; nor would computer information about traffic flows or teacher/pupil ratios in schools.

I agree with the noble Baroness that, increasingly, it is likely that local government information will be held on computer and will, if these amendments are passed, be affected by the Data Protection Act. However, one has to ask this question: why should an individual be protected everywhere but not in local government, so far as personal information on a computer is concerned?

I agree that one might be able to think of circumstances in which personal information could be disclosed if it were held on files but could not be disclosed if held on computer. That is true, but there cannot be very much information that local government would wish to disclose which was personal and therefore covered by the Data Protection Act. At the same time, my honourable friend in another place, the Member for Hornchurch, has constantly said that the Bill could be side-stepped by an authority that was determined to do so. A way could be found. The purpose of the Bill is to change the atmosphere in which some councils operate. On balance, I think that this amendment proposes a better way than the existing provision.

On Question, amendment agreed to.

Baroness Carnegy of Lour moved the second amendment:

[Printed earlier: col. 715.]

The noble Baroness said: My Lords, I have already spoken to this amendment. In doing so I omitted to say how much I welcome the encouragement given to the Bill by the noble Lord, Lord Ardwick. I hope that he is right that the Government are going to find time for the Bill to get on to the statute book, and that the assumption of the broadsheet, which he welcomes, comes true. I beg to move.

On Question, amendment agreed to.

Clause 2 [Access to meetings and documents of local authorities and certain committees and subcommittees in Scotland]:

Baroness Carnegy of Lour moved the third amendment:

[Printed earlier: col. 715.]

The noble Baroness said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Baroness Carnegy of Lour moved the fourth amendment:

[Printed earlier: col. 715.]

The noble Baroness said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Schedule 1 [Exempt information]:

Baroness Carnegy of Lour moved the fifth amendment:

Page 27, line 16, leave out paragraph 13 and insert— ("13. Information which, if disclosed to the public, would reveal that the authority proposes—

  1. (a) to give under any enactment a notice under or by virtue of which requirements are imposed on a person; or
  2. (b) to make an order or direction under any enactment.").

The noble Baroness said: My Lords, in moving the amendment to page 27, line 16, I should like, for the convenience of the House, to speak also to the other amendments to Schedule 1 on the Marshalled List.

Sixth amendment: Page 28, line 10, leave out from ("above") to end of line 14 and insert ("is exempt information if and so long as disclosure to the public might afford an opportunity to a person affected by the notice, order or direction to defeat the purpose or one of the purposes for which the notice, order or direction is to be given or made.").

Seventh amendment: Page 31, line 1, leave out paragraph 13 and insert— ("13. Information which, if disclosed to the public, would reveal that the authority proposes—

  1. (a) to give under any enactment a notice under or by virtue of which requirements are imposed on a person; or
  2. (b) to make an order or direction under any enactment.").

Eighth amendment: Page 31, line 35, leave out from ("above") to end of line 39 and insert ("is exempt information if and so long as disclosure to the public might afford an opportunity to a person affected by the notice, order or direction to defeat the purpose or one of the purposes for which the notice, order or direction is to be given or made.").

May I first point out to the House that there is an error in the last amendment on the Marshalled List. The final lines of the amendment should read: or one of the purposes for which the notice, order or direction is to be given or made".

On 17th May, on Report in another place, my honourable friend the Member for Hornchurch moved amendments to deal with certain planning matters. His explanation is at cols. 653 and 654 of Hansard for that day. As a result, Part I of the new Schedules 12A and 7A to be inserted into the Local Government Act 1972 and the Local Government (Scotland) Act 1973, respectively, now each include provisions set out in paragraph 13 in each case. In both schedules paragraph 13 of Part I is qualified by paragraph 6 in Part II.

As the Bill now stands local authorities have discretion to meet in private and to withhold reports and background documents where the intention is to require an individual to do something or to stop doing something. On such matters it would, in certain circumstances, clearly be a mistake for a council to signal its proposal in advance: for example, when a building preservation notice is to be served to ensure that a building which the council considers worthy of listing is not demolished or is unsympathetically altered while the Secretary of State is deciding whether or not it should be preserved. In such a case advance warning that the council is considering serving such a notice could defeat its purpose because the building could be demolished or damaged before the notice is served.

On examination, while the purpose of the relevant paragraphs is clear, the wording seems defective in two ways. First, it is too wide. It would make possible the consideration in private of all notices, not just those which place a requirement on an individual. Secondly, it is too narrow. It fails to cover orders and directions which ought to be covered, but which do not come within the definition of the word "notice". An example of this might be an authority which wishes to make a direction through a development order under Section 24 of the Town and Country Planning Act 1971 and to ensure that a general planning permission granted under the order should not apply to development in a particular area or development of a particular site. If advance warning is given of the intention to make such a direction that would enable, as with a preservation notice, the person affected to frustrate the council from exercising its power—perhaps to commence the development at once.

The four amendments to Schedule 1 correct these defects while maintaining the overall intention of the existing provisions. They do not grant local authorities any additional powers to impose burdens or restrictions on the citizen. They merely seek to prevent existing powers being rendered ineffective through premature disclosure as a result of the Bill. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker (Lord Cullen of Ashbourne)

My Lords, would the noble Baroness like to move the remaining amendments together?

Baroness Carnegy of Lour moved the sixth, seventh and eighth amendments:

[Printed earlier: col. 719.]

The noble Baroness said: My Lords, I have spoken to the remaining amendments. I beg to move.

On Question, amendments agreed to.