HL Deb 01 February 2001 vol 621 cc883-928

8.31 p.m.

House again in Committee on Clause 1.

Lord Grabiner moved Amendment No. 20: Page 2, line 24, leave out ("subsection") and insert ("subsections (2C) and").

The noble Lord said: In moving Amendment No. 20 I shall speak also to Amendments Nos. 22 and 38. I shall speak in support of Amendment No. 32 and say something about Amendment No. 29. For the purpose of Amendments Nos. 20, 22 and 38, it would be helpful for Members of the Committee to have handy a copy of the Bill, otherwise what I say will be essentially gibberish. Amendments Nos. 20 and 38 are consequential to Amendment No. 22.

The amendments fall into two categories: technical and substantive. Perhaps I may speak first to the technical element. The amendments seek to clarify or simplify the drafting which currently incorporates the expression in subsection (2B), for obtaining any information except in so far as— (a) the information is information relating to a particular person".

The short point I wish to make is that there is some unnecessary repetition in those words.

We are then introduced to the concept of when it is legitimate to make someone the subject of an inquiry by subsection (2B)(b), where it states: it appears to the authorised officer that it is legitimate to make that person the subject of an inquiry".

The structure of the present drafting is that subsection (2C) goes on to define legitimacy by reference to the existence of reasonable grounds for believing one or other of the matters listed in paragraphs (a), (b), (c) or (d). I believe—again this is a technical point—that the concept of legitimacy here is otiose.

We can and should dispense with the repetition of the word "information"; and we can also abandon the concept of legitimacy because it is fully covered by the pre-condition that there must be reasonable grounds for believing that the identified person is or may be doing any of the things listed in paragraphs (a), (b), (c) and (d). Those are the technical matters. They are essentially designed to shorten and clarify the existing drafting.

Leaving aside the technicalities, the more important substantive point is that the effect of these amendments will be to emphasise the importance of the need to identify a particular person by name or description. That expression does not appear in the current drafting. But it does appear in the suggested amendment and, therefore, if accepted, the particular person would have to be identified by name or description.

I hope that such an amendment will make it clear beyond doubt that these provisions are not designed to be generally intrusive. On the contrary, they are intended to be highly specific and precise. That is all I wish to say by way of introduction in respect of those amendments.

Perhaps I may now turn to the related amendment, Amendment No. 32, which stands in the names of the noble Lords, Lord Higgins and Lord Astor of Hever. The thrust of the amendment is to the effect that subsection (2C)(c) should be deleted. I should say, with some regret, that I was too late to add my name in support of the amendment.

At Second Reading, the noble Earl, Lord Russell, my noble friend Lord Desai and the noble Lord, Lord Astor of Hever, expressed reservations about subsection (2C)(c). In summary, two concerns were put forward. First, that when deciding on the relevant class or description of persons, the authorised officer might, consciously or otherwise, take into account considerations which are impermissible, in particular in relation to one or other of the matters listed in Article 14 of the convention, such as sex, race, colour and so on.

The second concern was not expressed at Second Reading in quite this way, but I think what it came to was that the concept behind paragraph (c) was vague and imprecise. I believe that the conceptual justification for the retention of paragraph (c) can he supported. An obvious example of something falling within that paragraph is the class consisting of previous offenders. It may well be reasonable to conclude that persons previously convicted of benefit fraud are statistically more likely to re-offend and that investigators should therefore have this proposed power. It would enable them to conduct investigations and to detect wrongdoing at an early stage without being hamstrung by the current powers, 'which, I suggest, are inadequate. No doubt it is possible to think of other examples.

I acknowledge the real concerns which were expressed by noble Lords on all sides at Second Reading about the possibility that people may end up being categorised on a capricious or unlawful basis. Any categorisation which involves or takes into account an inadmissible factor would be offensive as being incompatible with Article 14 of the convention, and it would certainly, in my view, be judicially reviewable. Furthermore, any doubts there may be about this point could, of course, be clarified by the code of practice and by the proper training of authorised officers.

Having said that, I have a nagging reservation about paragraph (c). The structure of paragraphs (a), (b) and (c) of subsection (2C) leads me to the view that you get to paragraph (c) in a case where neither paragraphs (a) nor (b) applies. It follows that, for the purposes of paragraph (c), the person in question, ex hypothesi, has not contravened, is not contravening and is not likely in the future to contravene the social security legislation. That is the starting-point for the analysis of paragraph (c). If those were the circumstances—and I certainly think that such circumstances could arise under the provision in subsection (2C)(c)—there must be some real doubt as to whether paragraph (c) is strictly necessary in order to deal with the problem.

"Necessity" is the test under the Human Rights Act. The argument is nicely balanced. The exercise of the power would lead only to the ability to obtain information; it would not lead automatically to a prosecution. Still less would it lead inevitably to a conviction. On the whole, I believe that the Bill would be improved if this provision were deleted. Certainly, for what it is worth, my nagging concern would disappear. Therefore, I hope that my noble friend the Minister will give careful consideration to the suggested amendment, which has my support.

I turn finally to Amendment No. 29 standing in the names of the noble Earl, Lord Russell, and the noble Lord, Lord Goodhart. Some criticism has been directed at the formula, to be found in paragraphs (a), (b) and (c), that a person, is likely to contravene … the relevant social security legislation", or, as the case may be, "commit a benefit offence".

Looked at from the point of view of the person concerned, it seems to me that the language of the Bill provides strong protection. First, there must be "reasonable grounds for believing", which are the words that lead into the relevant provisions. Secondly, the words "likely to" mean "more likely than not"—that is, more than 50 per cent; or, as a lawyer would put it, and I suppose I am in that sense qualified to put it this way, "on the balance of probabilities".

The answer to the question of whether that provision can be satisfied is essentially fact-driven. It depends entirely on the information that is available to the person making the judgment. The language is abstract, but the answer to the question, "Was there a sufficient basis for making the request for the information?" depends entirely on the information which was then available to the investigating officer.

It may be possible to find a different formula, and it is not beyond the wit of man to do so. However, I should be surprised if it turned out to be a better one from the point of view of the person who is the subject of the inquiry. I also emphasise the importance in this context of Section 29 of the Data Protection Act. In judging the reasonableness of this proposed legislation and whether or not it is human rights compatible, legislators are entitled—indeed, I would say, bound—to have regard to the fact that anticipating, preventing and detecting fraud is important and necessary, and we should not shrink from this point. Subject to the possibility that the language may be improved, the current drafting of these provisions produces a fair and balanced result. I beg to move.

8.45 p.m.

Lord Higgins

Once again, the Committee will be grateful to the noble Lord for his assistance in relation to the Bill. I suppose that in a real sense he should be regarded as its "father" whereas we are in the role of "midwife" rather than anything else. Obviously, we must put considerable weight on the noble Lord's remarks.

I was under the impression that Amendment No. 32, standing in my name and that of my noble friend, was to be grouped with this set of amendments. The groupings list that I have in front of me seems to have it separated. But I entirely agree—

Baroness Hollis of Heigham

It is grouped on the list that I have.

Lord Higgins

The noble Baroness has a more updated list. I am entirely happy that it should be grouped; that is appropriate. As the noble Lord pointed out, he has tabled a series of amendments on specific points which are designed to improve the drafting—although, I think I am right in saying that to some extent, in improving the drafting, the amendments narrow the provisions of the clause to individuals rather than to any wider group. So this is not purely a drafting matter. It may well be that this is helpful in the context of whether the provision contravenes the Human Rights Act and so on. As I said at the beginning, there is bound to be a thread running through all our debates—either human rights or data protection.

We have no wish to prolong proceedings or to have tedious repetition. Therefore, it will probably be helpful to the Committee if we deal with the broad issue of human rights when we come to debate whether the clause shall stand part. We have heard some powerful representations on that point. But it is clearly relevant in relation to this set of clauses, and particularly in relation to Amendment No. 32.

Concern was expressed at Second Reading about the provision in the clause stating: it is legitimate to make a person the subject of an inquiry if there are reasonable grounds for believing that he is or may be … (c) a person belonging to any description of persons who are more likely than others to fall within paragraph (a) or (b) above". The concern was that the provision might be open to problems—for example, on grounds of race and so on—and would then fall contrary to Article 14 of the Human Rights Act. So there obviously is a problem in relation to discrimination on grounds of race or any other basis.

There is also a more general concern. At Second Reading the noble Baroness cited the example of window cleaners. She seemed rather preoccupied with window cleaners in relation to an earlier amendment. Why all window cleaners should be stigmatised in this way, I do not understand. No doubt the Minister will produce other examples, but at present it seems that she is endeavouring to enter a rather specialist field! It seems to me that the subsection is objectionable. That is also the widespread view outside this Chamber.

The noble Lord raised the question of whether the paragraph is likely to contravene the provisions. He rightly pointed out that this may reasonably be interpreted to mean a more than 50 per cent chance. I have the gravest doubts as to whether there is a more than 50 per chance of window cleaners engaging in social security fraud; however, it is a serious point. The question of the words "or is likely to" give legitimate cause for concern.

The noble Lord raised other important aspects. We have received representations from a number of outside groups that the subsection could be used routinely and arbitrarily in circumstances where there is no reasonable suspicion of fraudulent activity or criminal conduct, and that such powers should be restricted to cases where there are reasonable grounds for believing that an offence has been committed. For all these reasons, there is a strong case for arguing that paragraph (c) should he deleted from subsection (2C).

A further point raised by the noble Lord related to previous convictions. This brings us to the question of whether it is a person who has contravened—as against "is likely to contravene"—the social security regulations. The preoccupation there is that we must consider whether past offences should be taken into account when deciding whether or not a further offence is likely to" be perpetrated. Indeed, we come to this point later with the, "two strikes and you are out" argument. None the less, it is a point that we need to consider carefully.

Overall, I believe this to be an important amendment. It would not be appropriate to vote on it tonight, but my feeling is that the noble Baroness would be wise to accept that new subsection (2C)(c) is objectionable on a number of counts. It is not really necessary for the correct functioning of the Bill. Indeed, that was borne out by the noble Lord's remarks on proposing the amendments and supporting, as I understand it, Amendment No. 32. On that basis, I very much hope that the noble Baroness will be able to accept the amendment. That would save us a good deal of time on Report.

Earl Russell

We are dealing with a new subsection (2C) to the administration Act, which, I believe I am right in saying, attracted as much unfavourable comment on Second Reading as the whole of the rest of the Bill put together. I support Amendments Nos. 20 and 22, tabled in the name of the noble Lord. Lord Grabiner. I am most grateful to him for his support for Amendment No. 32 to which my noble friend Lord Goodhart and I, as well as the two noble Lords on the Opposition Front Bench, have attached our names. I can only apologise to the noble Lord for depriving him of the opportunity of adding his name, which I should have been very happy to see there.

The noble Lord explained the case against paragraph (c) with such wonderful lucidity that I can only wish that I shall be able to express it as clearly when we reach Third Reading. However, my misgivings extend a little wider than that. Essentially, they come under two headings. I do not believe that I have any objection to the Minister's policy intention, as we discovered that in the briefing meeting and on Second Reading. The Government are attempting to do something that I do not wish to stop them from doing. My concern is with the words with which it is expressed.

In general terms, my concern falls under two headings. The first is that defining people as members of a class—that is, any class, even window cleaners—is not a prima face ground for suspicion, at least not a judicial prima face ground for suspicion. As soon as you identify people by a class, you are judging them on something other than their own nature, their own character and their own record of what they have done. For that reason, among many others, I was delighted by what the noble Lord, Lord Grabiner, said about Amendment No. 32.

My other concern is that I feel a profound misgiving about any legislative drafting that defines what it is looking for by reference to the future rather than to the past. I believe that the Minister will understand why the section of my notes bearing on the whole of new subsection (2C) is headed, "The man most likely to". The concept recurs over and over again. As soon as you start talking about people who are "likely to" do certain things, you are into the area of prophecy. As every gambler and every weather-forecaster knows, prophecy is an extremely risky activity. But the point that emerges through listening carefully to the noble Lord, Lord Grabiner, and to the Minister, is that these projections that people are "likely to" do something normally rest on something solid that those people have done.

Therefore, rather than using the prophecy as the defining feature of the Bill, it seems to me that it might be wiser to move away from the prophecy and return to the solid thing that the person has done that gave rise to the prophecy in the first place. The effect would be the same, but, conceptually, I would find it a great deal more acceptable. I hope that the Minister will understand why. Legislation, investigation and detection—which is what this is essentially—must rest on some genuine ground of suspicion, which focuses on the actual behaviour of that individual. As the words, "likely to" are being invoked because of something that the person has done, if we return to that activity we shall do rather better.

I had a first stab at making a draft to deal with the issue by way of Amendment No. 29, which is tabled in my name and that of my noble friend Lord Goodhart. It proposes to strike out all of these "likelies" and to authorise an investigation if there is reasonable ground for suspicion that the person has committed, or intends to commit, a benefit offence. I hope that the notion of intention covers the same ground that is invoked by the words "likely to". I believe that it does so in a slightly more concrete and, therefore, slightly better justiciable way. It is an amateur piece of drafting, to which I am not wedded. I shall listen carefully to any suggestions that the Minister makes for its improvement. However, it must be fastened on what the person has done. To me, that is the one essential element.

If we had that ground and included the concept of intention, it seems to me that the subordinate paragraphs (a), (b) and (c) would no longer be necessary. We could then have the advantage that would please the noble and learned Lord, Lord Simon of Glaisdale, of keeping down the growing prolixity of the statute book. Other things being equal, that is a good objective. There is, perhaps, some policy intention behind paragraphs (a), (b) and (c) that I have missed and for which we still need words to express. If the Minister says so, I shall listen most carefully to what she has to say. I would be interested in trying to make a further draft to try to meet the Minister on that point.

However, as far as I can see, Amendment No. 29 authorises investigation into all those whom the department wants to investigate. If that is not good enough, I shall be very interested to hear why not. With an open mind, I am ready to play it from there.

Lord Goodhart

Perhaps I may briefly follow my noble friend Lord Russell. I believe that there is another problem with the use of the word, "likely" in that there is an ambiguity about it. Does it mean that you are prophesying something about the future, which I believe is the way that both the noble Lord, Lord Grabiner, and my noble friend have interpreted the word? It could also mean that you are looking not at someone who is likely at some future time to commit and offence, but at someone who is likely to be committing an offence now; and, indeed, if you investigate that fact, you will find that he is committing an offence. It seems to me that the Bill is perhaps directed at the second of those meanings. If you are simply looking at someone who has a propensity to commit an offence and may commit it in the future, you are unlikely to find any useful information now because, by definition, he is not committing an offence.

Alternatively, if you are looking at someone who is the sort of person "likely to" commit that offence and if, by looking through the facts, you may find that he is committing it now, there would be some logic behind the provision. However, at the same time, that particular logic seems to me to lead to exactly the same problem that arises with new subsection (2C)(c); in other words, you are investigating someone not because you have actual reason to believe that he is committing an offence, but simply because he is the sort of person who might be committing an offence. Indeed, if you look into the matter, you may find that he is committing an offence—

Lord Higgins

I am experiencing some difficulty in following what the noble Lord is saying. I believe that we agreed earlier that the word "likely" might well mean more than 50 per cent. However, the noble Lord is suggesting that it is likely that someone is contravening the rules, which is surely the same thing. To say that someone is likely to be doing it now is surely the same as doing it now. I am having difficulty understanding the distinction that the noble Lord is seeking to make by way of an alternative interpretation of the word "likely".

The noble Earl, Lord Russell, made a similar point about the problem with forecasting such matters. It seems to me that to say that someone intends to do something also poses a problem with regard to forecasting.

9 p.m.

Lord Grabiner

I respectfully agree with everything that the noble Lord, Lord Higgins, has just said. Apparently my noble friend Lady Hollis does not. We shall see how matters turn out. If the noble Lord, Lord Goodhart, is right, the words "or is likely to" add nothing to the words "is contravening". "Contravened" is the past tense; "is contravening" is the current tense; "is likely to contravene" is surely a futuristic prediction. Certainly that is how I read it. I believe that that is certainly the way that the noble Lord, Lord Higgins, reads it. That was what I tried to say when I spoke earlier.

I believe that "is likely to" contains the element of prophesying which is the point that the noble Earl made. However, I am not sure that the words "intends to" or "is intending to", or whatever the language is, are anything more than an exercise in prophesying for the future. However, as I say, at the end of the day it is a question of language that everyone is comfortable with.

Lord Goodhart

I hope that I may finish what I was in the middle of saying. The point is that if one uses "likely" in the sense of prophesying, then, more or less by definition, one will not be able to get any useful information because if the person is not doing it now but is likely to do it in the future, none of the information one can get from the various bodies will be of any use as they will not prove that he is committing any offence. The only point of getting information from those bodies is to give one evidence to support one's belief that the person is contravening a measure now.

Baroness Hollis of Heigham

There may be some inconsistency; for example, the two NI numbers that were mentioned at Second Reading which require an explanation. If the explanation is satisfactory, clearly the person is not likely to be committing an offence. But prima facie holding down two NI numbers suggests that there are reasonable grounds for believing that a person may be using those two numbers to commit an offence. We seek prevention rather than an after the event cure.

Lord Goodhart

In that case, rather than using the word "likely", is it not better to say that he "is intending to commit"? It may be a matter of better drafting. If a person has a present intention, that is a different matter. There may be evidence that a person is now doing something which is preparatory to the commission of an offence. But, if one is simply talking in terms of someone who is likely to commit an offence, then it seems to me one returns to the problem of looking at someone and saying, "He is likely to commit an offence in the future because he has committed an offence or several offences in the past". I could accept the word "intending", but it seems to me that as present drafted the reference to someone who "is likely to commit" an offence is deeply unsatisfactory.

Earl Russell

I hope that I may return to the points made by the noble Lord, Lord Higgins, and the noble Lord. Lord Grabiner. Both of them suggested that the intention is as much in relation to the future as the words "likely to". I recall an article by the late F W Maitland with the delightful title of The Early History of Malice Aforethought. Malice aforethought, mens rea, is a well recognised concept in the criminal law. The guilty intention is, if proved, a present fact. Here I think is the crucial distinction. If we can prove that there is a serious possibility that a person has an actual intention of committing a crime, we are proving that there is something in his behaviour—as my noble friend Lord Goodhart suggested, in his preparations or in his state of mind—which is evidence of an actual settled intention to commit a crime. That is something which the law is well used to investigating in court. Because it is, it has worked out a series of practical tests for doing that and it knows how to set about it. I am not aware that the law has any similar machinery for working out who is likely to do this, that and the other. When I think of the disagreement between my noble friend Lord Goodhart and the noble Lord, Lord Grabiner, both, I should have thought, people of great expertise in the construing of parliamentary statute, thinking of the case of Pepper v Hart, I wonder whether anyone reading our debates would be any the wiser about how to construe the words "likely to" and whether that is perhaps another reason for taking them out.

Baroness Hollis of Heigham

We have been having a lovely time. I hope that I shall not be seen as spoiling that. We are dealing with Amendments Nos. 20, 22, 29, 32 and 38. I shall start with Amendment No. 22 and then speak to the consequential amendments. The key change in the amendment is to expand on the term "particular person" by providing that that person must be identified by name or description. Behind that lies a concern expressed on Amendment No. 32 which is the link with the question of fishing and the need to identify more narrowly.

Where we know the real name of a suspect—that occurs in the majority of cases—we would identify them by name. However, there are also instances where a person lies about who he or she is. For example, organised gangs manufacture many different identities in order to claim as much benefit as possible in false names. In those cases we may need to identify suspects about whom we are inquiring by using other information. Generally, this would be the address where the person was living. I think that the use of the term "by name or description" which my noble friend has suggested admirably sets out our needs and I am therefore content to accept his amendment. I also hope that the Committee will bear that in mind when we discuss later the suggestion of the noble Lord, Lord Higgins, that we amend the term "particular" to "specified". The other changes the amendment makes seem to express the provisions differently but do not alter them in any substantive way. Amendments Nos. 20 and 38 are, of course, consequential to Amendment No. 22 and of course I am happy to accept those.

I now come to Amendment No. 32. There is clearly concern about the inclusion of the power to obtain information on people who are in groups which are more likely than others to commit fraud. I begin by explaining our thinking behind the provision. As the Committee knows, social security fraud is costing us over £2 billion a year, which is more than it costs to run the entire department. We have done a lot. We are measuring fraud in a systematic way. We have set targets. We have new checks. We have data matching. As a result, fraud is coming down. The latest figures show that fraud in income support and JSA has reduced from 9 per cent to 8.4 per cent. That is a tiny percentage but encompasses large numbers. Those figures were published in November of last year. The measurement exercises that we referred to at Second Reading—almost like a risk analysis—tell us a great deal about the type of person who commits fraud against the social security system. We know that fraud by people working and making claims costs over £300 million a year. We know that people lying about their family circumstances, usually because they are cohabiting but say that they are not, costs over £200 million a year. We know that income support claimants who have committed fraud previously are 70 per cent more likely—a statistic given by my noble friend—than others again to commit fraudulent income support claims. We know that claimants of income-related JSA are more likely than claimants of any other benefit to commit fraud. We know that lone parents who have recently separated from their partners are at greater risk than other lone parents of committing fraud.

Lord Higgins

Do we have any corresponding figures on working families' tax credit?

Baroness Hollis of Heigham

That is not a benefit; it is a tax credit. At present I have no evidence either way on fraudulent claims. What evidence I have seen suggests that there have been some concerns about childcare arrangements. It is in part based on the information sent by the employer back to the Inland Revenue. However, if the noble Lord wishes me to pursue the point on another occasion I am happy to do so. I return to the substantive point. I appreciate that the noble Lord cannot resist attempting to turn the WFTC into a benefit rather than a credit!

We need to make this information work for us. We want to use it to target our inquiries on those who are most likely to commit fraud—essentially, an analysis of risk. That is what lies behind the conclusion of the provision at new subsection (2C)(c)—the power to obtain information on a person who is in a group more likely than others to commit fraud.

The debate today has raised significant concerns, highlighted originally by my noble friend Lord Grabiner, about how this power could be used. There is significant concern that this power could be used to target people on criteria such as race, sex, disability, sexual orientation and so on—concerns which were raised by the noble Earl, Lord Russell, at Second Reading. I assured him then, as I do today, that that is not our intention; nor would it be possible under these powers because race, sex or sexual orientation, or the fact that an individual has red hair, wears glasses, or anything else, does not increase the propensity to commit fraud.

However, having said that, I do not make light of the Committee's concerns. It is true that the vast majority of lone parents are women. Although we would not select lone parenthood alone as a criterion for using these powers, I can see that the fact that most lone parents are women might cause concern. Listening to today's debate, I have wondered whether there is a different way which would allow us to make use of the information about the risk of fraud but which does not generate the kind of concerns raised. To that end I found the points raised by my noble friend Lord Grabiner and others extremely helpful. My noble friend knows a great deal about the problems we are facing and the need to have research information as the basis for targeting fraudulent activity.

Having listened to my noble friend's remarks, and those of other noble Lords, I am minded to consider removing the power to obtain information on those in groups more likely than others to commit fraud. I refer to new subsection (2C)(c). My noble friend believes that we can address our concerns in other ways. However, I should like to reflect further on the consequences of removing this power before coming back with a final decision because there are "read across" areas in other parts of the Bill. I refer, for example, to the use of reverse searching of telephone directories as a means of fighting fraud. I may need to make other more specific provisions to cover other types of inquiry.

I take on board the Committee's concerns. I shall do my utmost to meet them by a government amendment on Report. Giving that undertaking in good faith, I hope that the noble Lord, Lord Higgins, will be able to withdraw Amendment No. 32.

Amendment No. 29 seeks to address three issues. I shall take each in turn. First, the noble Earl seeks to explore whether we should retain the words "is likely to" in paragraphs (a) and (b) of what will be new subsection (2C). We have had an elegant discussion about the futuristic prophesying nature of the phrase. I shall try to give an example of an instance where we obtain information which leads us to believe that a person is intending to commit fraud—he is about to commit fraud. We want to prevent that. Where we come across such information, we need to be able to act on it. For example, if we found forged identity documents at an address receiving benefit payments, we would need to conduct checks into the forged identities to establish whether any of them were being used to obtain benefit. Another example would be where a person was reported to be about to do something—to start work, or commence education. Clearly we would ask him about it. However, if he denied it and we had reasonable grounds for not believing him, we could check with the prospective employer or UCAS to verify his story. If we found that he was lying, we could stop his benefit from the time the job or course commenced.

The key point is when we come across information which leads us reasonably to believe that the person is more likely than not to commit fraud. That is why we have selected the words "is likely to" in this context. Having said that, I am attracted instead to the concept of injecting intent into the provision, as argued by the noble Earl, Lord Russell, and the noble Lord, Lord Goodhart. All the examples that I have given clearly indicate some idea of intent. However, again I should like to take time to reflect on the best way of capturing that concept in the provision. If the noble Earl will agree not to press his amendment, I shall undertake to return in good faith on Report with a new form of words that I hope will meet his concerns about intent.

The second aspect of the noble Earl's amendment explores the provision relating to groups, which I dealt with on Amendment No. 32. I shall not repeat my comments. I have said that I shall reflect on the issue and see whether I can come back to meet those concerns.

Finally, the amendment raises questions about information on family members. The noble Earl did not speak to that. Given that the issue may more properly be raised in a later group of amendments—his is almost a portfolio amendment—I shall come back to it later.

I have promised to reconsider the wording of the provision to inject the concept of intent rather than likelihood to commit fraud. I shall also consider removing the power to obtain information on people in groups that are more likely than others to commit fraud and I have accepted the drafting changes proposed by my noble friend Lord Grabiner, which would also narrow the provisions. In the light of all that, I hope that your Lordships might feel content.

9.15 p.m.

Earl Russell

I thank the Minister most warmly for everything that she has said. I entirely accept the need to reflect, probably at some leisure, on the drafting. The problems are complicated and with the best will in the world, which the Minister has offered us, they are not easily solved. Of course I accept the delay.

I am delighted by the Minister's comments about Amendment No. 32. I am also very much encouraged on Amendment No. 29. I hope that any draft on which we might hypothetically agree will cover all the examples that the Minister gave. That is not what we have been talking about. It is simply a matter of the wording and the concept. In hope and gratitude, I shall wait for Report.

Lord Higgins

We are certainly making progress. In that context, your Lordships are likely to improve the Bill, particularly given what the Minister has said.

I have some difficulty with the issue of intent. Let us assume that the department has some evidence that a particular individual intends to commit an offence. As a result, it argues that it should get more information. There is then a problem. The department may approach the individual and say, "We think you are going to commit an offence", in which case we hope that the department will prevent him from doing so, but he may be rather surprised. The alternative is that the department does nothing and waits until he does it, in which case the department is probably an accessory. The noble Lord, Lord Grabiner, shakes his head. Whatever the right technical expression is for condoning an offence someone is about to commit, I merely throw that into the general argument for the noble Baroness to consider between now and Report.

I am very pleased with what the Minister said on Amendment No. 32. We look forward to seeing what she can produce between now and Report. In the light of what she has said, I shall not move my amendment when we come to it.

Lord Grabiner

I am grateful to my noble friend the Minister for accepting Amendments Nos. 20, 22 and 38. I am also grateful to other noble Lords who spoke in support of those amendments.

On Question, amendment agreed to.

Lord Higgins moved Amendment No. 21: Page 2, line 25, leave out ("officer") and insert ("inspector duly authorised in accordance with the code of conduct set out by the Secretary of State for the purposes of this Act").

The noble Lord said: I shall speak also to Amendments Nos. 47 and 48. The term "authorised officer" makes no suggestion of any qualification, training or guidance as to conduct. In view of the sensitivity of the issues to be dealt with, anyone conducting an investigation under the Bill ought to be qualified in all those respects. The Government have yet to publish their code of conduct. We shall come to that issue later. We may be able to deal with the problem in that way.

There is also some concern that officers who are put in that position will have no duty to put right any damage caused by the suspicions that they may have created with third parties. We referred to that point earlier with regard to credit agencies.

Concern has also been expressed—we have received representations from outside organisations—about whether any other area exists—for example. under the Financial Services Act—in which people who are as unqualified as that are entitled to act as this legislation would enable them to act.

A further point arises. As I understand it, the authorised persons will either be in the department or in local government. Given the incidence of housing and other benefit fraud and the number of reports of fraudulent operations elsewhere, I believe that we should be clear as to exactly what type of person will be authorised under the legislation. That is particularly the case with regard to some local authorities where recent reports suggest that they are not behaving as we would wish. In essence, we are saying that we should be clear as to what we intend.

Finally, can the Minister tell us at what level, either in local government or in the Civil Service, the group of people who implement the Act will be? One always has difficulty with Civil Service grades. They tend to change and it is not always possible to be certain what the grades mean. If the noble Baroness can give an indication of the levels of qualification and payment, for want of a better way of putting it, which are likely to apply to those people, that would help to reassure us.

Baroness Hollis of Heigham

Before the noble Lord sits down, perhaps I may ask him a question. One of his amendments refers to a code of conduct; the other to a code of practice. Is that simply a drafting slip or are there different intentions behind the two amendments?

Lord Higgins

No; it is a drafting slip.

Baroness Hollis of Heigham

This part of the debate is, in effect, the opening debate on the code of practice. The main import of the amendment is not the reference to the, inspector duly authorised", but to, authorised in accordance with the code of conduct", which we now understand to be the code of practice set out by the Secretary of State for the purposes of the Act. Therefore, I understood the push of the amendment to be the pursuit of our thinking on the code of practice and the implications of that.

With regard to the noble Lord's point about the level of the officials within the DSS, I understand that they would be of at least executive officer grade. However, clearly their managers would be considerably more senior than that and would be experienced officials. I am unable to give the local authority equivalent, but my guess is that the officials would be at either SO2 grade—that is, senior officer 2—or principal officer 1. I would have to seek further advice on the read-across grades but, if my memory of local government is correct, senior officer 2 grade would be approximately the same level. I shall have to write to the noble Lord on that matter.

Again, for the most part, we are talking about people who have already developed skills in fraud investigation in exactly the same way as an experienced police fraud squad might include constables and sergeants as well as detective chief inspectors. Therefore, we are discussing people who are very experienced but who, none the less, would be under careful management by even more senior officials.

I believe that the general point behind the amendment is the importance of the code of practice. We have always intended that the information-gathering provisions in Clauses 1 and 2 would be subject to the code. The code would cover such issues as what would and would not be reasonable under the powers, who would be able to make inquiries, the time allowed for organisations to answer inquiries, what action should be taken if organisations were having difficulty in answering questions, and the types of information that each organisation could provide.

A code of practice would provide a clear guide to authorised officers, setting out the limitations of their powers and the standards of behaviour expected of them when conducting their inquiries. We also believe that the code would be helpful to data providers. In addition, it would help data subjects to understand what would become of their information.

When my right honourable friend in the other place, Mr Rooker, and I briefed Peers on the provisions in the Bill a few days ago, we gave an undertaking that the department would produce a draft code of practice for the consideration of noble Lords before the Bill reaches its Report stage. That code is under discussion with the relevant businesses, and I hope to honour that commitment.

I hope that I have addressed the noble Lord's broad concerns. If I have missed any, I hope that he will pursue them in a later debate.

Lord Higgins

I am grateful to the noble Baroness. She quite rightly said that this matter is one aspect of our debate on the code of practice. If it is the Government's intention to deal with it in the code of practice, we need not discuss it in this debate. I hope that that is the Government's intention.

Baroness Hollis of Heigham

That means that it may be sensible for our debate on the code of practice to wait until the draft code is available to noble Lords. Far be it from me to suggest that the noble Lord might not want to move absolutely every amendment tonight, but the thought might have occurred to him.

Lord Higgins

I am grateful to the noble Baroness for her reply.

Baroness Noakes

Before my noble friend concludes his remarks, I want to ask a question about authorised officers, whom the noble Baroness said would be executive officers. They constitute a large band of people in the Civil Service, and they are accustomed to taking a large number of administrative decisions. I think I also heard her say that they would be subject to supervision. Will that supervision be covered by the code of practice? She talked about standards of behaviour and conduct in the code of practice, but she did not say how those relatively junior people—they are not senior in the general scheme of things—would be supervised before they carried out their responsibilities under the legislation.

Baroness Hollis of Heigham

I am sure the noble Baroness will recall that I said that in the 13 local areas of the Benefits Agency there would be only a limited number of executive officers—I do not want to specify an exact number or to say whether we are concerned with five, 15 or 25—who will be specially trained to do the work. As I said earlier, that is why we have put such emphasis on training. Those officers will be supervised but the way in which an executive officer is supervised is not normally part of a code of practice. The code is a document that is available for those who seek information, those who receive information and those who are the subject of that information. It does not deal with the internal management practices of the DSS.

Baroness Noakes

I accept what the noble Baroness says, but the executive officer level is not very senior and those who are on the receiving end of the requests for information need some assurance that they are getting a considered and mature reflection of the requirements of the DSS in fighting fraud. That is why I seek from her an assurance that those trained executive officers—I am sure that they will be trained—will have some form of more senior supervision before they issue what may be onerous requests under the legislation.

Baroness Hollis of Heigham

The noble Baroness obviously has considerable experience of other public sector organisations. I am sure that she knows that in the Civil Service—certainly in local offices—executive officers are quite senior officials who take responsibility for decision-making. They decide whether a benefit claim is valid and put forward papers for decisions about prosecutions. We ask and expect a lot of our executive officers in terms of the scope of their authority and delegated powers. However, we expect them to be properly trained and we will expect them to be properly supervised.

I earlier gave assurances to the Committee about the way in which the use of passwords to get access to electronic information could be checked by senior officials to ensure that the information obtained is not misused or used in an inappropriate way. That will be part of internal DSS procedure. It is certainly not in the interests of the DSS to allow inappropriate behaviour.

The noble Baroness will also know that the DSS already has very experienced staff in the Benefit Fraud Inspectorate. We shall add to their numbers in local offices and we shall work with local authorities in that regard. The noble Baroness does not need to worry about this. I have seen the work EOs do in other fields and they carry high degrees of responsibility competently and capably exercised.

9.30 p.m.

Baroness Noakes

But in the past EOs would not typically have been given these sorts of powers to impose burdens on business. It is in that context that I have a particular worry. I accept that they are casework officers; that is substantially what they are used for within the Civil Service. But I am particularly concerned that a single decision of a single executive officer, however well trained, could impose significant costs, especially when the Bill has limited proposals for reimbursement of costs to those providing information. There should be some further safeguard. If it is not in the code of practice I am at a loss as to how we can satisfy ourselves that it will exist.

Lord Higgins

I am a little mystified. I understand the points being made by my noble friend and they are important. But the amendment states, inspector duly authorised in accordance with the code of [practice] set out by the Secretary of State for the purposes of this Act". I understood the Minister to say in reply that that was something which would be covered in the code of practice. However, in answer to the intervention of my noble friend, she appears to be saying that it is something which will be done administratively and not in the code of practice. I am confused.

Baroness Hollis of Heigham

We are making an issue out of something which does not exist. EO inspectors already have powers to demand access to employers' records. So the powers that these EOs have under the Bill are analogous to powers they already have in other areas of their work. I am saying that of course they will be monitored and supervised. But one does not put into a code of practice the internal monitoring arrangements of senior staff over junior staff. That is simply not appropriate for a code of practice. What is appropriate is the standard to which the EOs will be expected to work; what stringency will be applied to their examination; what reasonable grounds they will have for pursuing a certain direction; what access they may be expecting and what help and support they will be expecting from the organisation. That is what we are talking about; not internal management of a particular section. I have never seen a code of practice in my life containing that kind of thing. I am puzzled that I should be asked about it.

Lord Higgins

There is still, I fear, a certain amount of confusion. We shall need to consider to what extent it will be appropriate to incorporate something in the code of practice with regard to qualifications and so forth.

Baroness Hollis of Heigham

I am perfectly willing to take away and consider this matter to try to reassure the Committee that if there are complaints or concerns by data-providing bodies there is a more senior official to whom they can go over the head of the EO. If that will address the substance of the noble Baroness's point, I am willing to take it away and think about it. But I do not want to start specifying line management, diagrams, salary rates and so forth; they are not part of the code of practice. If that is helpful, I am perfectly willing to do that.

Baroness Noakes

I thank the Minister for that and look forward to that reassurance.

Lord Higgins

In that case we are all grateful to the noble Baroness. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Grabiner moved Amendment No. 22: Page 2, line 26, leave out from ("shall") to ("is") in line 34 and insert ("be exercisable for the purpose only of obtaining information relating to a particular person identified (by name or description) by the officer. (2C') An authorised officer shall not, in exercise of those powers require any information from any person by virtue of his falling within subsection (2A) above unless it appears to that officer that there are reasonable grounds for believing that the identified person to whom it relates").

On Question, amendment agreed to.

Lord Higgins moved Amendment No. 23: Page 2, line 27, at end insert— ("( ) the information is information that has already been collected and retained in the normal course of business;").

The noble Lord said: Amendment No. 23 stands in my name and that of my noble friend. It is an extremely simple amendment compared with anything else we have been discussing. It merely suggests that the information that can be demanded by the authorised official seeking to obtain information to prevent fraud should be that which is collected in the normal course of a business. I hope that the noble Baroness ca n simply stand up and say, "Yes, we agree to the amendment. There is no question of asking those particular organisations to produce custom-built data", if that is the right expression, "for the purpose of the inquiries". I shall settle for "customised", if the Minister prefers. I beg to move.

Baroness Hollis of Heigham

Yes; we do not expect businesses to go out of their way to get information for us. Where we ask them to perform a unique data-processing function, for example a reverse search of the telephone directory, or to provide data in bulk, we have already said that we shall pay for it. In this case the information is already available and collected as part of a company's normal business.

We shall make use of such information as organisations are able to provide. We shall not make unreasonable demands on retention or that they somehow recreate data that has been erased or destroyed. If the information is not available, we shall look elsewhere or do without. I hope that the noble Lord is pleased with that reply.

Lord Higgins

Perhaps I misheard the noble Baroness. I thought that she accepted the amendment.

Baroness Hollis of Heigham

No, I said that I hoped that the noble Lord was well pleased and that he does not need to move the amendment. I was giving the noble Lord an assurance that the amendment will not be necessary because we shall not be asking businesses for information that they do not hold.

Lord Higgins

I thought that it would be better to put it on the face of the Bill. None the less, given that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Astor of Hever had given notice of his intention to move Amendment No. 24: Page 2, line 28, leave out ("particular").

The noble Lord said: I shall not move Amendments Nos. 24 and 25 but, with the leave of the Committee, I shall speak to Amendments Nos. 41, 50 and 55.

Baroness Hollis of Heigham

I am happy for Amendments Nos. 24 and 25 not to be moved. We have already discussed the matter substantively and I understand what the noble Lord wants to do. Perhaps I may suggest that we postpone the discussion until we reach Amendments No. 41, when he can move and speak to the amendment substantively.

[Amendment No. 24 not moved.]

[Amendments Nos. 25 and 26 not moved.]

Lord Higgins moved Amendment No. 27: Page 2, line 31, at end insert— ("(2BA) Requests for information shall not require the person providing the information to inform an authorised officer of any future change in the information provided.").

The noble Lord said: Amendment No. 27 is straightforward. As with the previous amendment, which the noble Baroness accepted in principle and on which she gave an undertaking, I hope that she can accept it. It seems important to us to minimise the burden on business as far as possible. In our view it would be extremely onerous if, having provided the authorised inspector with a particular set of information, there was any obligation on him to update it from day to day. It would require a considerable operation for that to be done without contravening the Act or failing to provide information for which the department had asked. I hope that the Minister can accept this simple and important amendment. I beg to move.

Lord Desai

I apologise to the Committee. I arrived a little late and I am confused. I thought that we had accepted Amendment No. 22, which removes several lines. If we had, is it still in order to move Amendment No. 27?

The Deputy Chairman of Committees (Lord Ampthill)

The amendment was debated at some length in the noble Lord's absence, but he has no way of knowing that. Does the noble Lord wish to speak to the amendment?

Lord Desai

No, I was just a little puzzled.

Earl Russell

Perhaps I may ask one question about the meaning of the amendment before the Committee. It refers to information in the future. We come back to the question of intention, the future and the present. My example is that of a certain unmarried woman, shall we say a Miss Smith, who has informed the bank that she will, in the next few weeks, become Mrs Snodgrass. That could be material information to someone who wants to investigate a bank account.

Becoming Mrs Snodgrass is in the future but the expression of a clear intention to do so is in the present. Does the noble Lord, Lord Higgins, intend to prohibit the gathering of that information or not?

Lord Higgins

The sad case of Mrs Snodgrass obviously needs careful consideration. Whether she is entitled to various benefits for married women is an even more partisan question. I take the point that the noble Earl made and do not doubt that the Minister has an appropriate answer.

Baroness Hollis of Heigham

Returning to the substantive amendment, I assure noble Lords that we would not ask companies to inform us of future changes in the information that they had given to us. That will be made plain in our code of practice and administrative guidance to staff. It is unnecessary to put it on the face of the Bill and I hope that in the light of that assurance the noble Lord will withdraw the amendment. And I duck Mrs Snodgrass!

Lord Higgins

In the light of that reply, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 28 and 29 not moved.]

Lord Astor of Hever had given notice of his intention to move Amendment No. 30: Page 2, line 35, leave out (", is contravening or is likely to contravene") and insert ("or is contravening").

The noble Lord said: I rise to speak in the briefest possible terms to Amendments Nos. 30 and 31. They are crucial amendments relating to fishing expeditions. However, I accept that the subject has been debated at length tonight. We want to consider carefully the points that have been made as they relate to these amendments. Accordingly, and with the leave of the noble Earl, Lord Russell, and the noble Lord, Lord Goodhart, who have put their names to the amendments, I shall not move them.

[Amendment No. 30 not moved.]

[Amendments Nos. 31 and 32 not moved.]

Lord Higgins moved Amendment No. 33: Page 2, leave out lines 42 to 44.

The noble Lord said: This is an important amendment and relates to the controversial Amendment No. 32, which was not moved in the light of the points made and undertakings given by the Minister. There are four paragraphs in subsection (2C) of the new section which appears in Clause 1 and we have dealt with the first two. Paragraph (d) provides that it is legitimate to make a person the subject of an inquiry if there are reasonable grounds for believing that he is or may be, a person who (within the meaning of Part VII of the Contributions and Benefits Act) is a member of the family of a person falling within paragraph (a), (b) or (c) above".

We have already dealt with the case of someone falling into the category of paragraph (d), who is related to a person in paragraph (c). We hope that category (c) will disappear. Therefore, the question is whether it is appropriate to have paragraph (d) in relation to paragraphs (a) and (b). Paragraph (a) deals with, a person who has contravened, is contravening or is likely to contravene provisions of the … legislation".

We have discussed the wording of that provision and have doubts about it. Paragraph (b) deals with a person who has committed, or is committing or is likely to commit a benefit offence".

The question is whether a member of the family of a person in either of those two categories ought also to be the subject of an inquiry. Unlike those dealt with in paragraphs (a) and (b), these people are not (to use the department's language) customers but simply members of the same family.

We have a number of doubts about this provision, not least the point raised earlier by the noble Lord, Lord Grabiner; namely, that in the context of human rights legislation it is important that the individual should be clearly identified. I do not believe that paragraph (d) clearly defines anyone. We shall come to the question of human rights in the debate on clause stand part. However, it is doubtful whether the particular provision is appropriate, although the extent to which it is objectionable will be ameliorated if we eliminate paragraph (c).

9.45 p.m.

Baroness Hollis of Heigham

I wonder whether the noble Lord has reflected on my earlier remarks about the three main forms of benefit fraud: first, fraud associated with claiming while in work; secondly, fraud related to housing benefit in various forms; and, thirdly, fraud which arises when two people live together but one claims as if she is a single parent. That is one of the most substantial areas of benefit fraud. The amendment seeks to prevent authorised officers from making inquiries about a claimant's family or people who are suspected of living with the person who claims benefit as a single person. We need to obtain information about a claimant's family because that individual's circumstances affect entitlement to benefit which, as the noble Lord is aware, is household-assessed. Therefore, one needs information about members of the household; it cannot be done in any other way.

The whole range of income-related benefits are household-based. Therefore, one needs to know about the component parts of the household and the family; one cannot escape that. For example, last year £18 million of income support and JSA was overpaid because claimants had not declared their partners' earnings. In addition, £216 million of IS and JSA was overpaid last year because people claimed as single people when they were living with someone as husband or wife. We need to be able to obtain information about possible, or suspected, partners in order to prove that they are living with single claimants. For example, if we suspected that a single claimant lived with someone we might check with the claimant's utility providers to see whether the suspected partner paid the utility bills, or check with the bank to see whether or not he or she had a joint account.

I could go on. The definition of "family" is quite tight. However, given that a considerable amount of benefit fraud is based on fraudulent and inaccurate information about household income, relationships and members of that household, we must have these provisions in the Bill. I very much hope that, with that explanation about income-related benefits in particular, the noble Lord will be able to withdraw his amendment.

Lord Higgins

I well understand the extent to which fraud arises in the circumstances outlined by the noble Baroness. None the less, perhaps I may clarify one point. The paragraph reads: a person who (within the meaning of Part VII of the Contributions and Benefits Act) is a member of the family". I regret that I do not have with me Part VII of that Act. As the noble Baroness rightly points out, it is a question of the definition of "household", in which case I am not clear why the paragraph does not read, is a member of the household of a person falling within that Act". There are also other problems. If it is a family it may well have nothing to do with cohabitation; the person may be a cousin, sister and so on. No doubt the noble Baroness will correct me if that is not the case. It may be that in one sense there is a relationship but the second person concerned does not live in the same household. Perhaps the noble Baroness can clarify those particular points. I agree that this is an important issue. My objections to it are much ameliorated by the possibility that paragraph (c) will no longer apply.

Baroness Hollis of Heigham

It was not meant to be—if I can put it this way—a fishing trip way of getting at information. It was actually about where the offence is constituted by relationship of one person with another. That is why one needs that information.

The concept of family is the absolutely bog-standard one in DSS law. It includes married or unmarried couples in the same household and any of their children or dependants living in that household. It also covers a single person—for example, a lone parent—and any of his or her children or dependants living in that household.

The provision would not enable authorised officers to obtain information about a claimant's brother living at the same address as a claimant. Nor would it enable them to obtain information about a claimant's separated partner unless he or she was suspected of living with the claimant as husband and wife. So it is the absolutely standard definition in terms of income support, JSA, and so on, of "couple and dependant children or other dependants".

Lord Higgins

I am grateful for that explanation. Presumably it could still include the teenage daughter of a member—

Baroness Hollis of Heigham

If the teenage daughter or someone below the age of 16, or even possibly below the age of 19, is in full-time education and the claimant was receiving income support or JSA for that child, certainly yes. It might be that that child of 16 or 17 was actually in work but he or she was still claiming benefit for that child.

Earl Russell

The definition of a family is embedded in social security law right back to the National Assistance Act 1948. It is deep in the case law and in the terminology of the subject. It would be extremely difficult to uproot it if we thought it desirable, which, personally, I do not.

Lord Higgins

In the light of all that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Astor of Hever moved Amendment No. 34: Clause 1, page 2, line 44, at end insert— ("( ) It shall not be legitimate to make a person the subject of an inquiry on the basis of a spot check or any automated form of selection.").

The noble Lord said: We wish to ensure that all investigations into individual cases are initiated on appropriate grounds for suspicion and not via any random trawling through innocent persons' information.

The amendment seeks to probe how far the Government are prepared to use the legislation to intrude on innocent activity and individuals. We are concerned that, should individual local authorities or authorised bodies fail to meet those fraud reduction targets set for them, they will find other ways indiscriminately to discover perpetrators of fraud. These may include spot checks of the kind the amendment prevents. While these checks might catch some criminals, it would be at too high a cost to the rights of innocent individuals.

Although we are in favour of setting targets, it is vital for them to be meaningful and not abused. It is important to determine the limit to which officials may exercise their powers and to provide some protection for the rights of individuals. Where there is no suspicion, evidence or history of criminal activity, the Government should not allow for random, unsubstantiated fishing trips to take place. I beg to move.

Earl Russell

I am not capable of forming a final decision on the amendment at the moment because I very much hope that the re-drafting of new subsection (2C) will make perfectly plain that it is unnecessary. But were it proved to be necessary I would then support it with alacrity.

Baroness Hollis of Heigham

This is another amendment that could usefully be grouped back with the other discussion. The amendment would prevent us from making inquiries of people selected on the basis of spot checks or through any automated form of selection. It would prevent us using the powers in two ways. First, it would prevent us making inquiries about people selected on a random basis. There is nothing in the Bill that would allow us to make inquiries about a person selected at random. We need reasonable grounds to believe that he or she has committed fraud either now or in the past, or, following my undertaking, intends to commit fraud.

Secondly, the amendment prevents us from making inquiries of people identified by an automated process. The only instance where we would be able to do so is where we have made inquiries of people under new Section (2C)(c) who were disproportionately likely to commit fraud. Any other suspicions of fraud would be in response to some evidence, such as a tip-off from a former partner, a workmate or a person's behaviour, and this could not be automated. So on those grounds, too, the amendment is unnecessary.

New subsection (2C) states that we need "reasonable grounds" for making such inquiries. "Reasonable grounds" are not covered by random checks, spot checks or anything else. Our decisions have to be based on objective evidence; that is, reasonable grounds for having a well-founded belief. With those assurances, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Astor of Hever

In the light of the firm assurances given by the Minister, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Higgins moved Amendment No. 35: Page 2, line 44, at end insert— ("( ) Nothing in this Act shall authorise an inquiry which contravenes any provision of the Data Protection Act 1998.").

The noble Lord said: It is not my intention to go over the same points I made in moving Amendment No. 1 some considerable time ago. However, it is clear that the representations made by the Data Protection Commissioner were very strong indeed. I have difficulty in recalling representations expressed in such very strong terms from anyone in that kind of position against a proposal from the Government. Clearly, the commissioner is worried about the conflict between the legislation on which her role is based and the proposals in the Bill.

Following the response of the commissioner to the consultation exercise, I presume that discussions have taken place on this set of issues either with officials or, as I would have thought more likely, with Ministers. However, we do not find on the Marshalled List any government amendment to meet the serious concerns expressed by the commissioner. Therefore, it is quite probable—I shall leave on one side whether it is a 50 per cent probability or higher—or quite likely even, that the Act under which the commissioner holds her authority and the Bill now before the Committee are in conflict in various respects. The commissioner has set out the issues very cogently. Therefore, as there are always problems if there is a conflict between one piece of legislation and another, it is important that we should be clear whether, if such a conflict were to arise, does arise, is intended to arise or is likely to arise, the provisions of the Bill or the legislation providing the powers for the Data Protection Commissioner's operations will prevail.

It is a reasonable precaution to ensure that in future we do not find the courts having a real problem in deciding which of two pieces of legislation is the more important. I beg to move.

Earl Russell

I should be grateful for a little advice. At some stage we need to discuss the question of data protection. I had intended to do so during the debate on Clause 1 stand part. Would it be for the greater convenience of the Committee if we were to do so now and get it all over with in one debate?

Baroness Hollis of Heigham

As long as the noble Earl does not repeat his remarks when we reach Clause 1 stand part.

10 p.m.

Earl Russell

That is agreed.

We need to take into account the disincentive effect on people who may be thinking of depositing their data in a place where they may be looked at. We have seen this with the poll tax, the census and the electoral register. The Minister is well aware that the Government are interested in trying to persuade more people in receipt of benefit to make use of bank accounts in one form or another. It could well be that the prospect of having their data, which they have deposited on an understanding of confidence, shared with government in one form or another may have a disincentive effect. That needs to be taken into account in our calculations.

Under the Data Protection Act, we have a series of criteria which should be taken into account, on which I shall touch briefly. There is the question of transparency. When one gives data to a bank or other institution, an undertaking of confidentiality is agreed and one needs some understanding of exactly who will have access to that data. I appreciate that a later Act of Parliament can override an earlier duty of confidentiality. Proverbially, an Act of Parliament may do whatever it likes, but it does not follow that an Act of Parliament should do whatever it likes. If it does have such a deterrent effect, it may be worth considering how far it should go in doing that under the criterion of fairness.

The Minister's comments on subsection (20(c) encourage me to say that there will be no need to spend nearly as long on it as I had first intended. However, we have here no additional penalties for the abuse of information. If we are thinking in terms of safeguards under the European Convention on Human Rights, the question of penalties for abuse of information for a purpose other than that for which it was collected is likely to be quite important. Before we are finished with the Bill, we may need to think of an amendment designed to meet that need. However, such an amendment would not be suited to amateur drafting, which is why I have not, at this stage, made arty attempt to advance one. If such an amendment were to be drafted, I should prefer to see it agreed through informal discussion outside the Chamber before it is brought before the Committee. Negotiations over the wording could become rather lengthy.

Another general principle arises over the question of security. Abuse always takes place in one way or another. However, I made most of my remarks on that matter in the debate on Amendment No. 1 and I shall not return to it. I shall return to only one point on which I have not yet touched; namely, the danger inherent in collecting data on the wrong person. I understand that a serious piece of academic work argues that "Shakespeare" was not written by Shakespeare, but by someone else of the same name. A great many people share the same name as others. If the data produced refer to the wrong person, a great deal of misapprehension may result.

Until very recently, I was not the only "Lord Russell" in this Chamber. The amount of his post which I received and the amount of my post which he received—in both cases that sometimes still happens—is very large indeed. The danger of a bank revealing that data about one of us in mistake for the other would be real. His grandfather and my father once wrote a joint letter to The Times saying, "Sir, we hereby wish to state that neither of us is the other". If no protection is in place against data being produced about the wrong person, a good many other people may wish to do exactly the same thing before the effect of the Bill is through.

The question of safeguards and the question of whether the action can be proved to be necessary are both subjects that I addressed in my remarks on Amendment No. 1. They need further thought, but for the moment I shall say no more about them.

Lord Grabiner

This amendment gives rise to a classic "chicken-and-egg" debate. One should always be wary of such a debate because there may not be a solution readily to hand. The origin of the debate in this context lies in the second paragraph of Article 8 of the convention. That provides: There shall be no interference by a public authority with the exercise of this right"— that is, the right to respect for a private life and so on, which is contained in the first paragraph— except such as is in accordance with the law". The point about the Bill is that, if it were to become the law, that would be the law which permits the interference contemplated by paragraph 2 of Article 8. So the result will be that you have in place the Data Protection Act—which ultimately has its origins in these provisions in the human rights convention—and you have the Human Rights Act, both being statutes. In addition, you would then have this Act, if passed, which would be, on this hypothesis, the law.

The practical consequence of this is that the powers under this new Act will have to be exercised in accordance with the requirements of the Data Protection Act, the Human Rights Act and this Act, if passed. I would therefore conclude that it is certainly not necessary to have the safeguards suggested by the noble Lord, Lord Higgins. At the end of the day, if the powers granted under this Act are not properly complied with, there will be a breach of the Data Protection Act. We certainly do not need a provision in this Bill—and ultimately in this Act—to confirm the fact that the Data Protection Act is binding and effective in accordance with its terms. That is why I respectfully suggest that the amendment is not necessary.

Lord Higgins

I am sure that the noble Earl, Lord Russell, is right to say that it is sensible to clear up the data protection points at this stage of the proceedings. That is not to say that we will necessarily have dealt with all the human rights points, although the human rights aspect is part of the data protection argument. Some human rights points will arise later which we could more conveniently raise in detail on clause stand part—we have had detailed representations on the issue—but certainly let us get the Data Protection Act out of the way now.

The noble Earl touched a sensitive point when he referred to confusion over names. I have suffered for many years through confusion with the Terrence Higgins Trust—although the Terrence is not spelt the same way. While it does excellent work, I am afraid it has over time caused considerable confusion—although I occasionally get contributions, which I duly pass on. It is a sensitive point. I have had to live with it for a long while. He was, unfortunately, the second person to die of AIDS in this country and the trust was named after him.

The noble Earl has rightly said that an Act of Parliament can, in one way, do whatever it likes. But clearly it would be undesirable to do something in one Act of Parliament which is in conflict or in dispute with another. I bear in mind the point made by the noble Lord, Lord Grabiner.

Perhaps I may pose one question to the Minister, which she may be able to clarify. If I understood him correctly, the noble Lord seemed to be saying that so far as concerns the doubts about the Data Protection Commission and whether something is done in accordance with law—that if you pass this Act then whatever it says is in accordance with law—as I understand it, that is not the position so far as concerns the Human Rights Act. It has to be in accordance with law in a much broader sense. You cannot simply pass a piece of legislation and that makes it in accordance with law.

It is an important point. We need to be clear whether there is any genuine conflict between what is now proposed by the Government and what is in the Data Protection Act. Perhaps the Minister can enlighten us.

Baroness Hollis of Heigham

As to the question of mistaken identity, I was required to be "of Heigham"—which is my former ward in the city of Norwich—otherwise I was assured, very emphatically, by we all know who, that I would be confused with a certain Lord Holles, I think of the late 17th century—I look to the noble Earl, Lord Russell—who was both illegitimate and died of an unmentionable disease with no heirs. I was told that without being "of Heigham" I would certainly, and regularly, be receiving his correspondence.

Earl Russell

If the Minister will forgive my interrupting her, as the other Lord "Holles" spelt his name with an "es", if our spelling had been up to it, the confusion would not have happened.

Baroness Hollis of Heigham

However, if I am correct, he did get a bit of land near Oxford Street named after him. So there is life after death.

The amendment seeks to place on the face of the Bill a requirement that, Nothing in this Act shall authorise an inquiry which contravenes any provision of the Data Protection Act 1998". As my noble friend Lord Grabiner said, we have no intention of circumventing the Data Protection Act, even if we could. Schedule 1 to the Data Protection Act makes it clear that information can be disclosed where the person is authorised by any enactment to supply it. Should the Bill become law, organisations listed in proposed new subsection (2A) of Section 109B would be authorised to provide information to an authorised officer. These provisions would not therefore undermine the Data Protection Act.

The department is under duties by virtue of the Data Protection Act. These either originate from provisions in the Act or from the information commissioner's general duty to enforce good practice. We are under a duty to ensure that the information we obtain is information that we need. The Bill makes it clear that we can obtain information about a person only where it is legitimate to make him the subject of our inquiries, and the existing legislation into which these provisions would be placed makes clear that the information request must be "reasonable" in relation to explicitly set out purposes which relate to whether or not benefit is paid. Hence the noble Lord need have no fears that the Bill would allow us to obtain unnecessary information.

We must also ensure that what can be done with personal information is transparent. To this end, we shall ensure that benefit claim forms inform people that the information they give us may be checked with other organisations.

The DSS is also under a duty to tell a person what information we hold about that person, including what we have obtained from other organisations, if he or she makes a subject access request under the Data Protection Act. The only time we should not provide these details is when to do so would jeopardise an ongoing investigation.

We have agreed to publish a code of practice before implementing these provisions. The code will ensure that people are aware of the detailed operation of the powers.

In addition, information received from organisations included in the Bill can be passed on to third parties only in circumstances allowed for in the Data Protection Act. Unless we have statutory authority to divulge information, we may do so only if it would help prevent or detect crime. The reference, which was made by my noble friend Lord Grabiner, is to Section 29 of the Data Protection Act, which makes clear that that information may be divulged in those circumstances. In the debate on Amendment No. 1, I sought to make clear that benefit fraud is regarded as high-level fraud for these purposes. Any breach of the Data Protection Act's provisions regarding disclosure could leave an individual subject to criminal proceedings.

I should mention also that the Data Protection Commissioner, or information commissioner as she is now known, could serve us with an enforcement notice if she felt that we had breached our duties under the Data Protection Act. The Data Protection Act is not breached by this Bill. It will govern the way in which we operate our powers under the Bill and is enforceable via an enforcement notice. There is a lot of protection in the system.

The noble Earl, Lord Russell, thought that we needed additional penalties for the misuse of information. Existing legislation already provides very heavy penalties—and rightly so. For example, the Data Protection Act makes it an offence knowingly or recklessly to obtain or disclose information. It is subject to an unlimited fine in a Crown Court, so up to £5,00() in a magistrates' court. The Computer Misuse Act 1990 contains offences relating explicitly to the misuse of computers in order to obtain information. These offences carry a maximum sentence of up to five years in prison. If the noble Earl believes that additional powers are necessary, over and beyond those, I shall be happy for him to write to me and we shall pursue the matter.

I assure the Committee that my understanding is that the Bill will not infringe the Data Protection Act. The Data Protection Act will govern the way we operate our powers under this Bill. Should we trespass, then it is enforceable by an enforcement notice. With those assurances, I hope that the noble Lord will feel able to withdraw his amendment.

10.15 p.m.

Lord Higgins

I am grateful to the noble Baroness for such a reassuring response, although I shall need to study what she said. I have just one point requiring clarification. As I understand it, the noble Baroness said that, under the Data Protection Act, anyone drawing social security benefit could serve a form of notice—I have forgotten the Minister's exact form of words—requesting the department to reveal what information it holds on him. Presumably, that would cover the information already available if one wanted to know what one's credit rating was, and so on. But does that mean that an individual can ask to see absolutely everything that the department has obtained with regard to his personal affairs?

Baroness Hollis of Heigham

I am awaiting confirmation on that point. However, my understanding is that anyone who is a benefit claimant can request the DSS to give him a copy of the information that is held under his name. Relying on my memory, I believe that we have had something like 20,000 such requests over the past few years. However, I may be wrong in that respect. It is certainly true to say that the power has been exercised occasionally. As with health records, it can be a useful way of ensuring that no mistakes have been made.

Lord Higgins

I am most grateful to the noble Baroness for that explanation, which I find rather surprising. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Higgins moved Amendment No. 36: Page 2, line 44, at end insert— ("( ) No information in possession of any government department relating to any person who is the subject of an inquiry shall be conveyed or shared with any person or body as specified in subsection (2A) above.").

The noble Lord said: In the course of a Bill as complicated as the one now before us one tends to develop one's own jargon as regards a particular issue. The jargon that I have attached to this set of amendments is "reciprocity". The main thrust of the Bill is to enable the DSS and local authorities to obtain information from the whole string of different organisations listed in the first part of Clause 1. Sometimes the Government will be paying for the information but, more generally, they will not be paying for it.

In the responses to the consultation document provided by various outside organisations there was a tendency to say, "If we give you the information, you ought to give us some information in return"; in other words, there would be a reciprocal arrangement. I referred to one such organisation at Second Reading. As I understand it there is an organisation called CIFAS, which operates in this field. I understand that the Government have no intention whatever that this should be so—that is to say, the credit rating agencies will not be able to say, "We'll tell you what is happening to this particular individual if you tell us something about his income tax return". This is an important point.

In the response to the consultation there seemed to be some expectation that such a deal might be struck. Therefore, I thought it worth while to raise the point at this stage. I look forward to hearing the Minister's comments on my amendment. I beg to move.

Baroness Hollis of Heigham

The noble Lord's amendment seeks to place limits on the information that the department—indeed, government in general—is able to give back to the organisations from which it has obtained information. That is a perfectly laudable aim and was presumably intended as a safeguard against the inappropriate exchange of personal information with the private sector.

I take it that the noble Lord is seeking to ensure that we do not send information back, rather than that we do. Is that correct?

Lord Higgins

Yes, I think so.

Baroness Hollis of Heigham

I rather thought that this was another of the noble Lord's schizophrenic amendments.

Either way, the amendment is unnecessary and would fail in its intended purposes. It is unnecessary because we have no plans to exchange sensitive information about people who may be the subject of an inquiry with information providers. I was trying to think of an example that might persuade the noble Lord. It could be of very real interest to a building society or a mortgage lender to know about someone's outgoings in terms of the number of children that he has to maintain. The number of children involved may not only be those in the immediate family; indeed, there might also be children who are known to the CSA in another family, or who were part of a relationship about which his current partner knows nothing. Clearly, that would be very sensitive information which it would be highly inappropriate to send back, even though the mortgage lending company might think it germane to its inquiries. That would be extremely offensive in terms of any concept of privacy and the right of people to expect the DSS to protect sensitive information.

We are taking steps to ensure that such information does not find its way back to the private sector. We have already had the discussion about not leaving footprints behind with credit reference agencies. However, we know that fraudsters do not respect organisational boundaries and that the people who commit fraud against the benefit system may well try to commit it against the private sector or other organisations in the public sector.

While trying to ring fence sensitive information which it would be inappropriate to disclose, we are trying to be helpful—as I say, we have had this debate—about giving information that is non-sensitive and non-personal. I gave the example of giving information about someone who was already dead. However, the noble Lord will be aware that our inquiries may at any time uncover fraud against one or more of the organisations that we seek information from. The effect of his amendment would be to prevent us informing a company that it is the victim of fraud and that we had information that might help put a stop to it. The exemption that allows us to pass on information about criminal acts is contained in that self-same Section 29 of the Data Protection Act and in common law.

In fact, the amendment goes further than that. It would also prevent any other government department from passing on such information. For example, if we made inquiries about a person suspected of benefit fraud, we would effectively prevent the Inland Revenue from informing a bank about its suspicions of his involvement in mortgage fraud. Perversely, the amendment would not apply to people about whom we have not sought information. What I am trying to say to the noble Lord is that it is rather a bad amendment on all possible grounds. We shall not exchange personal information about people whether they are the subject of our inquiries or not, except in the circumstances covered by Section 29 that I have described. I hope that in the light of those comments the noble Lord will wish to withdraw his amendment.

Lord Higgins

I am grateful to the noble Baroness. I do not think that the amendment covers the point she made about transferring information from the DSS to the Inland Revenue as it is not specified in subsection (2A). One can see that there may well be a case for exchanging information within government. I shall need to consider the other points which the noble Baroness made as regards people who are dead. Obviously if a pension is continuing to be drawn when the person whose life was insured has departed, it may be appropriate to inform the pensions department of that. However, that raises issues as regards how far that measure will extend. What prompted the amendment with all its faults was the suggestion in a representation, which I believe came from CIFAS, that it would do a deal; that is, it would give information to the Government if the Government would give it information. I understood that that was not something that the Government would go along with. Perhaps the Minister will confirm that.

Baroness Hollis of Heigham

A number of financial organisations would dearly like to have additional information held by the DSS. I was not clear whether the noble Lord argued that they should or should not have that. They will not get it. However, we are considering whether we can release to them non-sensitive, non-personal information, for example, address verifications or verifications of deaths, which are obviously relevant to companies paying out insurance policies. These organisations have asked us about stolen/blank death, birth, marriage certificates and bogus national insurance numbers. We are considering those matters and we are talking with organisations to see whether we can be helpful in a common activity against fraud without in any sense endangering someone's right to privacy in terms of the sensitive information we hold.

I do not know whether that reply helps the noble Lord. However, we shall not give the private sector any information about a claimant's benefit details. However, as I say, we are considering some of the other more neutral areas such as information on national insurance numbers or checking whether someone has died and therefore whether an annuity should not continue to be paid. We are considering whether that information could usefully be made available. Perhaps, after all, we are on the same side; namely, that we do not wish to see sensitive information going round the system out there in the private sector. Equally, if in non-sensitive areas we can help in checking fraud, we shall do so.

Lord Higgins

Let me be clear. I am not in favour of reciprocity in the way I described. The Minister said that there may be occasions where information would be transferred which was not sensitive and personal. Clearly, the information would be personal because it relates to an individual. What is sensitive is a matter of judgment.

It has been helpful to have the discussion. We shall need to consider what the Minister said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Viscount Simon)

Before calling Amendment No. 37 I have to advise the Committee that if it is agreed to, I cannot call Amendment No. 38 or 39 due to pre-emption.

[Amendment No. 37 not moved.]

Lord Grabiner moved Amendment No. 38: Page 2, line 45, after ("(2B)") insert ("or (2C)").

The noble Lord said: We have already debated the amendment in the context of Amendments Nos. 20 and 22. I beg to move.

On Question, amendment agreed to.

Lord Grabiner moved Amendment No. 39: Page 2, line 46, leave out from ("officer") to ("whose").

The noble Lord said: I tabled the amendment in order to raise a question. As presently drafted, the power which would be granted by the Bill in new subsection (2D) is concerned with information to be obtained from utility providers. The intention is to give that power only to an authorised officer who is an official of a government department.

My amendment would not limit the power to the government department official. It would enable an authorised officer appointed by a local authority to have these powers.

My concern is that both housing benefit and council tax benefit are administered by local authorities and I do not understand why this power should not be provided to local authorities as well. The relevant safeguards are already in the Bill. First, the power could be exercised only by an authorised officer; and, secondly, the limited subject matter of the power—namely, whether or not gas, water or electricity is consumed at identified premises—is hardly earth shattering in data protection terms. It is low grade information. I beg to move.

Earl Russell

I like the policy intention underlying the amendment. I wonder whether the amendment is the best way to achieve it. If we have the amendment in this form, we do not only authorise local government—I think that there is quite a strong case for that—we shall also allow authorisation of a wide variety of people who might be acting on the Government's behalf, those possibly in the private security industry. That could raise questions about which we might be less happy. If that is an unnecessary worry, I shall be happy to be told so.

Lord Grabiner

I understand that the expression "authorised officer" is elsewhere defined in the master legislation into which these provisions would go. I do not think that it would extend as far as the noble Earl suggests. I should have to be advised about that, but I believe that to be the position.

Baroness Hollis of Heigham

My noble friend is right in his reply but it does not make me like his amendment any the more.

The amendment would remove the requirement that in order to obtain information about consumption from a utility company the authorised officer should be an official of a government department. This in effect opens up the use of the power to local authority officers.

The way that we envisage the information that we receive from utility companies being handled means that this extension of the power to local authority investigators is unnecessary. We do not intend—I do not think that it would be reasonable—that investigators at local level, whether employed by the DSS or local authorities, would approach utility companies to obtain bulk information about consumption. They will, of course, be able to use the powers in new subsection (2A) to get information about individuals where they have ground for doing so. But what this power is about is getting bulk information for matching against our social security records. We shall do this through our data matching service based in the North West. It should be necessary only for authorised officers carrying out this data matching to use the power.

Local authorities will be a major beneficiary of the results of these data matches as they are expected to reveal residency fraud which is a major concern as regards housing benefit. But they will not have to extract the data from the utilities themselves. We will do it for them through our existing housing benefit matching information service.

I hope that that explanation satisfies my noble friend's concern and that he will feel able to withdraw his amendment.

10.30 p.m.

Lord Grabiner

At this hour of the night it would be entirely inappropriate for me to have cross words with my noble friend. We can have this discussion elsewhere. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 40: Page 3, line 20, at end insert— ("(2F) Nothing in this Act shall be construed as conveying a right to use information gained under this Act for any purpose other than that of detecting social security fraud, or to communicate such information to anyone not otherwise authorised to receive it."").

The noble Earl said: I do not know to what extent the amendment may be necessary. I look forward to the Minister's remarks on that. However, it contains a principle that needs to be asserted. Under the general principle of the need for safeguards, information that is gathered under the powers of the Bill should be confined to the purposes for which its collection has been authorised. Information is like an oil slick—it has a remarkable habit of spreading into all sorts of places where it is not wanted. The Bill creates a formidable machine for information-gathering. We need to make provision to ensure that that machine shall not be driven on the pavement.

I do not know in what ways the amendment might or might not be necessary. I look forward to enlightenment on that. Even if it is not formally necessary, we should bear in mind that to some extent legislation has a hortatory effect. It is read. Not everybody who reads the Bill will have listened to the Minister's excellent replies on Amendment No. 35. Not everybody will know about the security provided in the Data Protection Act. The public reaction to the Bill might be more favourable with the restriction spelled out than without. The consent of the public to the existence of such sweeping powers will be a large part of their effectiveness. The department might be wise to bear that in mind. In hope of the Minister's answer, I beg to move.

Baroness Hollis of Heigham

I understand where the noble Earl is coming from. I shall seek to allay his fears.

The aim of the amendment is to prevent the DSS and local authorities using information obtained under the Bill for purposes other than detecting social security fraud and to prevent us disclosing it to people not authorised to receive it.

Clause 1 sets out the circumstances in which we could require information about an individual and about the quantity of utilities supplied to addresses. The information that we obtain under those powers may not be used for any other purpose unless there is a statutory provision allowing for that.

I shall explain the ways in which the law allows us to use such information. We took powers in the Social Security Act 1998 to allow us to use any information that we obtained for any other purpose connected with functions in relation to social security, child support or war pensions. Obtaining accurate information can sometimes be a time-consuming exercise. Claimants and groups that work with them, such as CABs, tell us that they want to be able to interact with the department in a much more convenient way. They want to provide information only once. They want a correct and reliable spine of information to be available—an architecture on which the benefits system can be built. They expect one area of the department to know what they have told another. The exasperated claims that I hear from people who have told the CSA one thing, but we have not passed it on to the Benefits Agency when they believe that we should have done, are evidence of that.

Through initiatives such as the ONE pilots, we are demonstrating our commitment to trying to produce a client-centred rather than a benefit-centred approach. However, that would fall at the first hurdle if we could not pass information throughout the social security system. It is also important from the cost point of view to be able to obtain information only once.

It is important that the information that we obtain under the Bill can be used for any social security purpose. For example, if we obtained information from a bank that a claimant had considerable savings, not only would we stop that person claiming benefit, we would also wish to re-examine his child support arrangements to ensure that he was meeting his responsibilities in maintaining his children. We would not expect the Child Support Agency accidentally to find that person and discover that he was failing to declare his income to that agency, too.

The principle of using information efficiently and effectively is a government-wide issue. Should any information held by the DSS assist other departments to perform their functions more effectively, we should be able to share that information.

Statutory powers allow us to provide information to the Department for Education and Employment, Customs & Excise, the Inland Revenue, the Home Office and the Lord Chancellor's Department. Those powers clearly set out the purposes for which information may be transferred; in other words, they are highly transparent. For example, legislation in the Jobseekers Act 1995 enables the DSS to share information with the Department for Education and Employment which determines a person's availability for work. Should we obtain information that a person is studying full-time, that would affect his or her availability for work and we may need to share that information with the DfEE.

Finally, the DSS, like any other organisation, can provide information to other organisations where that helps to prevent and detect crime. On that point, we return to Section 29 of the Data Protection Act. Therefore, in highly specific circumstances we may be in a position to provide information to the police.

Local authorities also need to share some information to help to prevent fraud in housing and council tax benefits. Therefore, social security legislation allows local authorities to share housing benefit and council tax benefit information with each other and with the DSS.

The Committee will be interested to know how long the department retains information for such purposes. It is normally held for approximately 18 months, but that period could be extended in the case of an ongoing action. From July, the retention period will be reduced to 14 months. We are not talking about a vague data bank which is held in perpetuity.

Members of the Committee have expressed concerns that information obtained under the powers could be disclosed inappropriately where no legislation existed to allow the disclosure. Perhaps I may reassure the Committee that we are experienced in holding DSS information securely. That point arose in our discussions on an earlier amendment.

We have already produced a detailed protection of customer information guide. That sets out clearly the legislation which governs the protection of information and the disciplinary and legal consequences for staff who fail to act properly. Again, that is a subject on which I have already touched. It also provides guidance on such matters as what should be considered when making a decision about whether to disclose information—for example, whether the disclosure is necessary and whether legislation permits it—and what information should be recorded about the disclosure.

That guide is published on the DSS internet site. Staff who do not follow the guidance are subject to disciplinary procedures and, where appropriate, will he prosecuted under Section 123 of the Social Security Administration Act 1992. That section provides for an offence of unlawfully disclosing information obtained during social security administration. It is punishable by a prison sentence of up to two years, and so on. Safeguards are also provided under the Data Protection Act and the Computer Misuse Act. The existing provisions ensure that those who disclose information unlawfully can be punished. They provide a deterrent.

I wish to make one other point. It may not have been the noble Lord's intent, but the effect of the amendment would be to amend at a sweep all the provisions of the Social Security Administration Act 1992. That is the main legislation governing the administration of benefit. Therefore, we would be prevented from obtaining any information under its provisions for any purpose other than detecting social security fraud. That would prevent us, for example, collecting any information on the basis of which we could pay benefit to claimants. Therefore, this is not only, so to speak, an amendment which wrecks the Bill but an amendment which wrecks the entire social security system in one fell swoop.

We would look to maximise the use of any information which we obtain, as the public and business rightly expect. Should information be useful for other social security purposes, we would use it within the framework of the law. In order to maximise efficiency, we would, where appropriate, also make available to other departments information which was useful to them, but, again, only where the law allowed us to do so. We have strong guidance which governs the disclosure of information, and strong safeguards to prevent disclosure which is not allowed for by law.

Therefore, I hope that the noble Earl, Lord Russell, will agree that we should not expect a person to submit separate pieces of information when he may be receiving housing benefit, council tax benefit, income support, child support, and so on, and possibly disability benefit as well. Asking him to repeat the same information five, six or seven times over with the possibility of error, which would lead to the information being thrown out by data-matching, is not something that we should contemplate lightly. Against that background, I hope that the noble Earl will feel able to withdraw his amendment.

Throughout, my emphasis has been that any exchange or passing on of such information must be transparent. That is within the framework of the law. The information which we seek to obtain will be used for the purpose of prosecuting fraud. I believe that that is a matter of common ground between us.

Earl Russell

The Minister reminds me of an incident that took place in this House in 1641 during the prosecution of the Earl of Strafford. He was asked by prosecuting counsel, "Is the noble Earl arguing whether this kingdom be this kingdom?". The Minister is telling me that this Bill is not this Bill. That alone would have prevented me from pressing the amendment further tonight had I been minded to do so, which I am not.

The Minister makes a very persuasive case about conveying data from one place to another, especially with regard to the CSA and the Benefits Agency. The number of cases about which I have heard in which mothers were left without income because their maintenance stopped but their benefits did not kick in is legion. That alone would be enough to require us to consider the matter seriously.

I confess that the Minister has not entirely allayed my concerns about this matter. She invoked the Data Protection Act 1998—I had wondered whether she would. I remember our debates on that legislation during its passage through the House—I participated in them. I felt the same uneasy and hesitant misgivings about that legislation that I feel about the Bill. I could see a strong case in favour of it but strong grounds to be hesitant about it. That view was shared by the citizens advice bureaux, whose name the Minister invoked. She will remember the briefs that it submitted on the 1998 Act. In the end, after a great deal of hesitation, I decided that I was prepared to accept the Bill that became the 1998 Act as the lesser of two evils, roughly along the lines of our debate on Clause 1. However, I did not know then that the 1998 Act would have a ratchet effect—it will be used together with the powers conferred on it in the present Bill. A salami-slicing process is involved, which increases the powers of the executive. If that is to continue in future legislation, it could cause considerable misgivings. By invoking the 1998 Act and recalling my hesitations about it, the Minister made me wonder whether I was right to let it go through as freely as I did. That may slightly damage the case that she wanted to achieve.

I am prepared to consider some variation of the amendment for future use. I should be happy to discuss whether there is any prospect of doing so constructively, which there may be.

The Minister said that the data cannot be used for any other purpose unless an Act of Parliament provides otherwise. There would be real propaganda advantages in terms of public reaction in having a restriction even as limited as that spelt out in the Bill. That would mean that anything that involved communicating the data in the future would have to come before Parliament. It could also possibly be useful with regard to the ECHR charter and the argument about safeguards.

The Minister will not necessarily want to discuss that question across the Committee tonight, but I should he very grateful if we could discuss it in future. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 41 not moved.]

10.45 p.m.

Lord Goodhart moved Amendment No. 42: Page 3, line 23, at beginning insert ("subject to subsection (6A) below,").

The noble Lord said: In moving Amendment No. 42, I shall speak also to Amendment No. 44.

The amendments were motivated to a large extent by the serious concerns of the Delegated Powers and Deregulation Committee about the width of the power in proposed new subsection (6)(a) of what is Section 109B of the Administration Act. That proposed new subsection will allow the Government by order to add any person without any qualification to the list of persons from whom information can be demanded.

I see a case for allowing some possibility of developing new methods of electronic communication. One thinks perhaps of a replacement of the Student Loans Company or of bodies similar to those now included in subsection (2A) from which it would be appropriate to obtain information. It may be undesirable that that should require primary legislation each time a change is made. But at the same time, the power could clearly be exercised by order so as to include those who are plainly unsuitable as persons from whom information could be required.

Those now listed in subsection (2A) are people who obtain what might be called routine information in the course of their business or undertakings. For example, utility bills identify whether or not somebody is a student at an educational establishment, and so forth. But it is plainly not limited to that. In our view, it is desirable that there should be certain exclusions from the list of people who could be added. In particular, we are concerned with those people to whom the subject of the inquiry has gone to obtain advice or professional information. That includes the legal professional privilege. No doubt if that legal professional privilege stood alone, the information could not be ordered to be disclosed because to do so would be a breach of the Human Rights Act.

But the amendment goes considerably wider than that. It would cover information received from citizens advice bureaux or other advice agencies, and advice provided by them by people who were not lawyers, and so legal professional privilege could not be obtained. In those circumstances the restriction imposed by Amendments Nos. 42 and 44 is one that will cause no harm to the purposes of this Bill, but will be a reasonable and proper protection for those who seek and provide information in the course of seeking advice. I beg to move.

Lord Astor of Hever

I support Amendments Nos. 42 and 44. The safeguard to protect individuals so eloquently suggested by the noble Lord, Lord Goodhart, seems eminently sensible and I agree with him that it will cause no harm to the Bill.

Baroness Hollis of Heigham

This issue was raised perfectly properly at Second Reading. The amendment seeks to prevent us adding those who provide advice or professional assistance to the list of organisations that could be required to provide information. In particular, the noble Lord had in mind lawyers and members of the CAB.

I have already stated that we shall not add lawyers to the list of organisations which could be required to provide information. I also made it clear at Second Reading that in the same way we shall not be adding CAB. We have not sought to make such groups exempt from the provisions of the Bill because it is not necessary to do so. The order-making power to extend the list of organisations that can be required to provide information is subject to the affirmative procedure. Parliament would thus have the opportunity to consider whether any new proposals were an appropriate use of the power

This amendment may go further than providing such protection. "Advice" is a rather wide term and could cover, for example, the advice given by a building society in response to a mortgage application. We would not want to be prevented obtaining information about a property that someone had failed to declare when making a claim for benefit. In light of the substantive point that to add professional or confidential advice to the list of organisations would require the affirmative parliamentary procedure, perhaps the noble Lord, Lord Goodhart, will feel able to withdraw the amendment.

Lord Goodhart

I am grateful to the Minister. I think that we have a problem here. The Minister stated that the Government have no intention of extending subsection (2A) to CABs or similar bodies. Nevertheless, that is not covered by Pepper v Hart. The declaration has no binding effect and in no way binds any future government. In those circumstances I am not altogether happy with the fact that there is no restriction of any kind. It may be possible to draft something which is more satisfactory to the Government which achieves the object we seek. However, we shall consider the matter. We may return to it at a later date.

Baroness Hollis of Heigham

Perhaps I may ask the noble Lord why he is not content with the affirmative procedure, which seems to me to be a high degree of parliamentary scrutiny and should surely abate his fears.

Lord Goodhart

[f something is plainly undesirable—I believe that information which is obtained by somebody who goes confidentially to obtain advice should not be subject to disclosure under the Bill—it is better to exclude it on the face of the Bill rather than to say that it will be covered by the affirmative procedure. Equally, one could say that it does not matter if the procedure is negative because it can always be prayed against. If, plainly, it should not be the subject of an order and can reasonably well be defined, it should be on the face of the Bill and not in secondary legislation. Having said that, it is not my intention to press the matter tonight. I shall ask the leave of the House to withdraw the amendment. However, before I do that, I believe that my noble friend wishes to speak.

Earl Russell

I am grateful to my noble friend. Before we finish with this, I have a further answer to the Minister's point about the affirmative resolution. She should have been expecting it; I have made it many times before. It is only an adequate assurance if it is regularly accepted that it is the normal practice of the House to vote on statutory instruments. We are in a state of suspense on that at the moment. It is accepted in large parts of the House that we do so. At present it is done only on high days and holy days, which means that there is a limited amount of control, but not as much as there is through a Bill. I do not know what the attitude of the Labour Party might be on this matter were it to find itself again in opposition. One takes it for granted that every government deplores voting on regulations and always will. But what its attitude might be in opposition, should that happen, would be material. I do not know whether the Minister has anything to add. There are two questions here: scrutiny and control. The affirmative procedure gives scrutiny; it is only if it also gives control that it is an acceptable answer to this sort of concern.

Baroness Hollis of Heigham

I do not want to go into a debate which this Chamber has enjoyed many times. The affirmative procedure gives this House scrutiny; it gives the other House control. The problem I have always had with the position of the noble Earl on the right to vote down affirmative orders in this House—I speak as an individual at least as much as a member of the Government—is that I do not think it right that this House should have equal power with the elected Chamber to block secondary legislation. That is where I stand. That would mean that the elected Chamber could pass an affirmative order or agree it and, by voting it down, we could block the will of the other House prevailing. That is where my problems lie. I do not believe that a secondary chamber, especially as we are not an elected secondary chamber, has any authority or legitimacy to do that.

Earl Russell

My problem with that is that equal power with another place to control the Government is no power whatever. Unless they are controlled here they are controlled nowhere.

Baroness Hollis of Heigham

That will remain the difference between us.

Lord Goodhart

I am sorry that we do not have time to pursue that issue, which is extremely interesting and important. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 43 to 45 not moved.]

On Question, Whether Clause 1, as amended, shall stand part of the Bill?

Lord Higgins

When we began debating the Bill—it seems a long time ago—I said that two themes would run through it. One was data protection and the other was human rights. There is some relationship between the two but, as I have said at various stages, it seems to me appropriate to deal with the second issue on the Question whether the clause shall stand part.

Although we have touched on the human rights issue in various amendments, we have not considered other detailed points. I believe that it would be appropriate to do so now but I do not intend to raise other matters which we have considered comprehensively when debating individual amendments.

It is important to deal with the matter because under the present arrangements the Minister responsible for the Bill is obliged to give an assurance. That appears on the first page of the Bill. Under the heading "EUROPEAN CONVENTION ON HUMAN RIGHTS", we see the statement: The Baroness Hollis of Heigham has made the following statement under section 19(1)(a): In my view the provisions of the Social Security Fraud Bill [H.L.] are compatible with the Convention rights". I have two initial questions to ask about that. It is stated that the Bill is compatible with the Convention rights rather than with the implementing legislation which we have subsequently and rather dramatically passed. Perhaps the Minister would clarify why that is done in terms of the treaty rights rather than the domestic rights.

Secondly, we are still unclear about the level at which the advice, no doubt advice on which the Minister made her statement, is being given. We do not know whether it comes from within the department, from the Law Officers, from the Foreign Office lawyers or whoever? It is relevant in the context of this Bill because Members of the Committee will have received a notice from Justice setting out a number of problems with the Bill. We must consider whether the advice which the Minister is receiving is likely to be of equal quality or weight to that embodied in the representations made to us by Justice. It would be helpful to know how expert are those advising the noble Baroness.

Justice, in its recommendations, is very clear. It states: The extent of the intrusions into privacy rights, sanctioned by the Bill as presently drafted, is unlikely to be justifiable under Article 8 of the convention. In the light of this, the statement of compatibility made in respect of the Bill under Section 19(1)(a) of the Human Rights Act may need to be reconsidered". That is an important statement.

It is the case that had we accepted Amendment No. 1 much of the doubt expressed by the representations we have received would have been put at rest. Paragraph 15 of the note points out that a minimum safeguard Justice considers fair should be prior judicial authorisation for the compulsory acquisition of information in each particular case. It goes on to cite Klaus v Germany in the European Court of Human Rights to that effect.

However, the Committee has not accepted Amendment No. 1. That raises the question whether the doubts which have been expressed in this respect are valid, and the dangers if they are not. I am not sure what the consequences will be if they are not. Irrespective of whether that will be resolved by the Human Rights Act being invoked or the European Court of Human Rights, at all events it lends strength to the argument that Amendment No. 1 is important and should be reconsidered on Report.

Having said that, a number of the comments made by the Minister this evening lead one to believe that some of the complaints about the Bill as it now stands may not in the event turn out to be a problem. We spent some time debating the question of whether something is likely to be a contravention of social security law. I believe that it was implied that the Minister would look at it and perhaps clear up that particular point. The other remarks related to subsection (2C)(c). The suggestion that that matter will be eliminated by Amendment No. 32, or something like it, also helps to reassure those who are concerned about the position under the convention.

Another important point is the report of the Select Committee on Delegated Powers and Deregulation which expresses concerns, which are reflected in the recommendations of Justice, about whether the order-making powers are too great. The Select Committee suggested that various assurances might be given with regard to the uses of the powers in Clause 6(8) and (10).

11 p.m.

Baroness Hollis of Heigham

Has the noble Lord had access to the sixth report of the Delegated Powers and Deregulation Committee. That is the committee's response to the Government's response to the fifth report. If so, the noble Lord will see that the committee says that the Government have responded constructively and satisfactorily.

Lord Higgins

In that case, I take the point. If so, is it the case that the assurances have been comprehensively put together and laid before the House as a clear package, as the Select Committee recommended?

Baroness Hollis of Heigham


Lord Higgins

Obviously, I accept what the Minister says on that point. None the less, we shall need to consider carefully at later stages of the Bill the extent to which the provisions of the Bill are compatible with the convention; in particular, whether the various provisions of subsection (2C) are proportionate to the requirements of the legislation and sufficiently specific. However, in that respect the point made by the noble Lord, Lord Grabiner, about making the provision relate to a particular individual may be helpful. Other than that, I believe that it would be helpful to have the Minister's comments on the points that I raise.

Lord Goodhart

I rise only because the noble Lord's reference to Justice reminds me that earlier I should have made a declaration of interest. I am a vice-chairman of the council of Justice. As an officer of that organisation, it is right that I declare that interest.

Lord Grabiner

I shall be very brief. The reason for brevity, apart from the fact that it is my natural inclination, is that I believe that the debate which may otherwise result from the notice of intention to oppose the Question that Clause 1 stand part of the Bill will be much more fruitful when the Committee sees the wording of the Bill in the light of amendments accepted thus far and the amendments which the Committee anticipates will be tabled by my noble friend. So I do not propose at this hour to devote time to discussing the specific point, save to pick up two matters.

The noble Lord drew attention to the language of the endorsement on the face of the Bill. My understanding is that that is in absolutely standard form and is entirely consistent with the requirements of Section 19(1)(a) of the Human Rights Act, a provision to which the noble Lord specifically referred. That is precisely what the endorsement says. The meaning of convention rights is defined in Section 1 of the 1998 Act as encompassing the relevant provisions of the articles of the convention and the relevant articles of the first and sixth protocols as read with Articles 16 to 18 of the convention. It is in standard form.

I, too, should disclose a position in Justice. It is not as dignified as that of my noble friend; I am a mere council member. But I want to enter a note of caution in this discussion. Every person has a view about whether or not what we are discussing and the kinds of matters we have been discussing today are compatible with the European Convention on Human Rights. The mere fact that someone, however distinguished, from whatever organisation, however outstanding and wonderful, expresses a view about these matters should be taken careful account of.

But at the end of the day these are essentially judgmental matters. They are about reasonableness, fairness and common sense. Part of the process involves the debate that we have been having today. My own view, for what it is worth, is that what we have been discussing and what we have so far been agreeing to has all been in accordance with the requirements of the convention and compatible with it. If I felt that it was not, I would not have gone along with it. But I think that that discussion would be much more fruitfully had in the light of a clearer and cleaner version of Clause 1.

Baroness Hollis of Heigham

I know that this is a debate on Clause I stand part but I do not intend to tire the Committee by reviewing what we have discussed and established so far. I shall be extremely brief—the more so as my noble friend Lord Grabiner has addressed much better than I could the human rights issues raised by the noble Lord, Lord Higgins.

The Bill is a balance. It is about powers to obtain information that we need in order to safeguard taxpayers' money against fraud, but it limits those powers to inquiries that we believe are reasonable. Elsewhere, there are safeguards against the unauthorised obtaining and disclosure of information. I have also outlined what amounts in my view to a comprehensive system of administrative safeguard.

To come to the point which is at the core of the concerns of the noble Lord, Lord Higgins, we have no doubt that these measures are both necessary and proportionate to the problem. We are confident that they comply with the European Convention on Human Rights and data protection legislation. They are measures which uphold people's rights while providing us with the powers we need to check for cheats.

The noble Lord, Lord Higgins, asked about the status of legal advice. My advice comes from department lawyers and from Foreign and Commonwealth Office lawyers. My advice has been that the Government's position and these provisions are compatible with convention rights. We could, as my noble friend Lord Grabiner said, argue about whose lawyer knows better. But I do think that the core of the concerns which gave rise to issues about human rights were largely associated with new subsection (2C)(c).

I shall do my best to come back with wording that might satisfy your Lordships and look at the repercussions and read-across. In the light of that, I am confident that what I have signed remains correct. I took it on sound legal advice and I have every reason to believe that the Bill properly balances the pursuit of fraud while protecting the human rights and the rights of individuals appropriately to privacy where their privacy is not a shelter against serious fraud. In the light of that, I hope that the noble Lord will allow Clause 1 to stand part of the Bill.

Clause 1, as amended, agreed to.

Baroness Amos

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at eleven minutes past eleven o'clock.