COMMONS AMENDMENT (Hansard, 10 July 1998)

§ Lord Falconer of Thoroton
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 49. I shall also speak to the other amendments in the group which all deal with changes to the subject information exemptions in Part IV and Schedule 7.
The House will recall that at Third Reading it decided to remove from the Bill, against the Government's advice, what was Clause 28(4). That provision would have allowed the Secretary of State by order to specify exemptions from the subject information and non-disclosure provisions. It was included to meet the particular needs of the Inland Revenue. However, the House felt that this provision was insufficiently precise, and lacking in transparency.
The noble Lord will be glad to hear that Amendment No. 49 introduces a narrower exemption, specifically to protect the public purse and hence taxpayers, in place of the former Clause 28(4). I believe that it takes full account of the concerns which were expressed about the previous version.
Since that earlier debate, the Government have done what we said we would do. First, we have carefully reviewed the particular needs of the Inland Revenue and how they might best be met. Secondly, we have reviewed what similar needs exist elsewhere in the public sector—so that we could give a clearer explanation to Parliament of the practical need for the class exemption, and so that we could consider whether the exemption could be set out wholly on the face of the Bill.
As a result, we have decided not to pursue further in this Bill the non-disclosure exemption. On reflection, we accept that, where systematic disclosure of information to government departments is appropriate, we should seek specific statutory powers within the relevant departmental legislation.
On risk assessment, we have concluded that we can deal with this on the face of the Bill in a way that should reassure the House about our intentions. Amendment No. 49 introduces a new, narrowly focused, exemption applying solely to subject access. It applies only to government departments, local authorities and other authorities administering particular benefits and payments. It applies only when they are using risk assessment systems to help collect or protect public funds. Its aim is solely to protect honest taxpayers from fraud and tax evasion.
This exemption is necessary solely to avoid a serious and adverse impact on government departments' work to prevent and detect fraudulent claims for money and to collect sums owed to the Exchequer. We must protect honest taxpayers against the depredations of the dishonest. Moreover, we propose to do so through an amendment which is narrow and clearly targeted: it exempts only risk assessment material not information on the data subject generally. Subject access to other material will continue.
I hope that the House will agree that, in bringing forward this amendment, the Government have had proper regard to the concerns of this House which led it to delete the earlier provision.
1495 I turn to Amendments Nos. 52 to 56. This group of amendments clarifies the subject information exemption which Clause 30 provides for certain regulatory activity in respect of the relevant functions of statutory public sector ombudsmen.
The clause as it stood when it left this House already applied in general terms to the functions of the ombudsmen. But there is a measure of doubt about whether it covered all of their functions which need to be covered. In particular, it is uncertain whether it covered the ombudsmen's functions in relation to deficiencies in the provision of services by public bodies. The purpose of the amendments is to put the matter beyond doubt.
A reference to the new Welsh administration ombudsman has also been introduced in line with developments in the Government of Wales Bill.

Baroness Nicholas of Winterbourne
My Lords, I welcome the amendment and thank the noble and learned Lord the Minister for his clear exposition of how the Government have reached this satisfactory conclusion. It is good to know that the noble and learned Lord has accepted the intellectual reasoning that was put forward from all sides of the House in the earlier debate. I feel confident that it was only pressure of time which held back the Government from putting forward at that time what I and others consider to be this exceptionally appropriate amendment.

Lord Renton
My Lords, I do not wish to be churlish and, like the noble Baroness, I broadly congratulate the Government on their changes of mind in the re-drafting of Clause 28. However, Clause 28 seems to go much further than the concern of taxpayers.
Subsection (1) states: Personal data processed for … the prevention or detection of crime"— that is crime at large, not merely confined to taxpaying— the apprehension or prosecution of offenders"— that also is very wide; and the subsection goes wider still— the assessment or collection of any tax or duty or of any imposition of a similar nature". It is an important clause. The amendment that has been made, acceptable though it is, may give rise in years to come to problems of application rather than interpretation. Although I believe that it is wise of the Government to make this and other consequential amendments in relation to Clause 28, the way in which in future it affects the liberty of the subject should be borne in mind.

Viscount Astor
My Lords, the noble and learned Lord suffered what I might call a pincer movement at Third Reading in your Lordships' House. The noble 1496 Baroness, Lady Nicholson, and I, persuaded the Government to remove the clause so that we could ensure—although the Government had agreed to consider it—that the measure would come back to your Lordships' House and we would have another chance to debate it.
We welcome the changes. They are exactly what is needed. My noble friend, Lord Renton, is right: the provision is wider than just tax collection. It is about the enforcement of the law, and investigation of crime. It is limited in its purposes to the prevention and detection of crime. There is always concern that the powers will be used too widely. That was our concern when we debated the clause originally. The Government have taken that on and narrowed it. It is an issue that will always have to be considered in the future.
We welcome the clarification about the role of the ombudsmen. It is an important clarification because it provides a degree of protection for the public.

§ Lord Falconer of Thoroton
My Lords, perhaps I may deal with the point raised by the noble Lord, Lord Renton. The concerns expressed by the noble Viscount, Lord Astor, and the noble Baroness Lady Nicholson of Winterbottom, related to what was then Clause 28(4). Clause 28(4) gave a wide order-making power which permitted the orders to be made to exempt various aspects of the Bill. They went wider than the targeted exemption which is now set out on the face of what is now Clause 29(4). I believe that that was the concern, and not Clause 29(1).
The noble Lord is absolutely right to say that Clause 29(1) includes and refers to the prevention and detection of crime. But that was not something about which concern was expressed. That was acceptable to this House. It was the wide order-making power in what was then Clause 28(4) to which the House objected and it removed that clause altogether.
The noble Lord is right in what he says about what is now Clause 29(1) but that was not the problem. Therefore the noble Lord is right to say that it applies to crime but that was not the problem at the time. The problem was the order-making power in what was Clause 28(4). Therefore, what I said in my opening remarks was entirely accurate. It is limited to what it says in Clause 29(4).
Finally, in relation to what the noble Viscount, Lord Astor, said, I should not take credit for any of this. He will remember that we were not persuaded; we were out-voted.