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Lord Lester of Herne Hill: My Lords, perhaps I may clarify the position as regards the amendment to Clause 11. I understand the reasons given by the Minister for seeking to substitute an individual for a person, a corporation--a body of that kind--in seeking compensation. But what troubles me is how one links this to the European Convention on Human Rights. Article 8 of the convention guarantees the right to personal privacy against unnecessary interference. Case law makes it clear that it protects companies as well as individuals. If through data processing there is then a breach of the corporate rights of an organisation and it suffers direct damage as a result, it is also clear under the human rights convention that it is entitled to an effective remedy in domestic law under Article 13 of the convention.

I appreciate that when the Human Rights Bill comes into force it will require this Bill to be read in accordance with the convention if possible. But it is obviously more desirable that Parliament should state the law of the land clearly in this Bill rather than the courts having the obligation of interpretation to make the Bill fit with the convention.

My worry about the proposed amendment to Clause 11 is that it will remove the compensatory remedy where the victim is not an individual, and will

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therefore give rise to a mismatch, not between the Bill and the EC directive directly, but between the Bill and Articles 8 and 13 of the European Convention on Human Rights. In making up my mind about the amendment I shall be grateful to know whether the point has been considered, and what assurances the Government can give the House as to whether or not there is a mismatch.

Lord Mishcon: My Lords, may I be allowed to support what the noble Lord, Lord Coleraine, said in regard to Amendment No. 5? He covered the ground so fully that it is unnecessary for me to say any more.

Lord Falconer of Thoroton: My Lords, perhaps I may deal first with the amendment in the name of the noble Lord, Lord Coleraine, which my noble friend Lord Mishcon, supports. I am grateful to the noble Lord for having given my noble friend Lord Williams of Mostyn notice of his intention to propose the amendment, for having explained its purpose to him in advance, and for having explained it clearly again.

As the noble Lord made clear, in essence he wants to ensure that the subject information exemption in Clause 30 applies not only to qualified professionals such as solicitors, but also to those being trained for a profession. The argument is that the exemption needs to be available for trainees, too, since they are subject to similar rules of propriety of conduct, competence, and so on.

I have considerable sympathy with this objective. I wonder, though, whether the amendment is needed. The exemption in the relevant part of Clause 30 currently applies to,


    "persons authorised to carry on any profession or other activity".

In the first place, I think there is nothing to limit the reference to "any profession" to persons of a particular current status in the profession. Many professions include junior training--or one might say novice--grades which are fully regulated but confined to limited roles. I refer to pupil barristers, or those who used to be called articled clerks. Such regulation seems to me to be integral to protection of the public in respect of persons authorised to carry on any profession, whether by such persons in their present or future capacity. If there is any room for argument about that--which I do not think there is--it must in any event be removed by the Bill's reference to "other activity". I think, therefore, that the Law Society regulation is designed to protect the public in respect of persons authorised to carry on any profession or other activity within the meaning of Clause 30. The same arguments are likely to apply to trainees for other professions.

I certainly understand the noble Lord's concern. I am willing to have another look at this matter, to see whether the position could usefully be clarified, which, with the greatest respect to him, I am not sure his amendment will necessarily do. However, he spoke to it in such a way as to indicate the concerns that we should consider. I shall certainly do so. The amendment goes

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much too wide, and I cannot advise the House to accept it. However, I am very willing to re-examine this subject.

Lord Coleraine: My Lords, before the noble and learned Lord moves on from that point, perhaps I may thank him for his reply. It will save time, and I shall now not need to move my amendment formally. I am glad to hear that he will have another look at the legal points at issue and I am sure that the Law Society will do the same. In the meantime, I am most grateful for his remarks.

Lord Falconer of Thoroton: My Lords, to turn to the point made by the noble Lord, Lord Lester, the answer is this. Our focus in drafting the amendment has been too exclusively on the directive; it has not focused on the interaction between that and the European Convention on Human Rights. It seems to me appropriate, in the light of what has been said, that we should go away and consider the position. I ask the House to agree to the amendment; however, I wish to make clear that we will consider the point that the noble Lord made, which has not yet been considered in detail.

Lord Lester of Herne Hill: My Lords, I am very grateful for that generous reply. No one, in good grace, could possibly do other than accept it with gratitude. Perhaps I may merely make one point, to which I shall return later. The European Convention on Human Rights is embedded in European Community law. When interpreting the EC directive, the Luxembourg court as well as national courts have to keep their eye on the Convention as well as on Community law. Therefore, while we have in mind the directive throughout these debates, to quote the marvellous metaphor of the Lord Chancellor, the Human Rights Act will make our legal system point towards magnetic north--magnetic north being Convention rights, which are paramount. Therefore, as legislators, we have to try to make the statute fit the directive and the Convention. I am most grateful that this matter will be considered.

On Question, amendment agreed to.

Clause 11 [Compensation for failure to comply with certain requirements]:

Lord Falconer of Thoroton moved Amendment No. 2:


Page 8, line 26, leave out ("A person") and insert ("An individual").

On Question, amendment agreed to.

The Chairman of Committees (Lord Boston of Faversham): My Lords, in calling Amendment No. 3, I should point out that, if it is agreed to, I cannot call Amendment No. 4.

Clause 28 [Crime and taxation]:

Baroness Nicholson of Winterbourne moved Amendment No. 3:


Page 18, line 8, leave out subsection (4).

The noble Baroness said: My Lords, this amendment relates to Clause 28(4), referring to wide-ranging secondary legislation powers given to the Secretary of

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State in order to subvert crime and to enforce powers of taxation. It is a very wide-ranging clause indeed. The Data Protection Registrar states, in a letter that she sent to me on 18th March, that Clause 28(4) is unprecedented and that,


    "Exemptions under this broad heading have been case by case".

She adds that,


    "No other enforcement body internationally has asked for broad based exemptions".

She goes on to point out:


    "Clause 28(4) takes away protection given by the 1984 Act".

With that in mind, I have placed two amendments before the House today. The first, to which I now speak, seeks to follow the line of the Data Protection Registrar and to remove Clause 28(4) completely. Perhaps I may briefly seek to justify that; first, on the basis that the Government, when in opposition, called secondary legislation--to quote from Mr. Derek Fatchett, now a Member of the Government--


    "one golden, malevolent thread running through our constitution, ... the transfer of prerogative powers from the Crown, not to the House, not to Parliament, but to the Executive".--[Official Report, Commons, 23/5/94; col. 112.]

He went on to say:


    "It is revealing that a Government should have the arrogance to ask for such powers. It would be even more revealing if a Parliament--this Parliament"--

he was referring to 1995--


    "agreed to grant Ministers those powers".

Later, during debate on the same Bill, the Deregulation and Contracting Out Bill, on 23rd May 1994, he repeated, at col. 114, a commitment given earlier that,


    "no incoming Labour Government will use the powers, because ... the powers are an abuse of the House of Commons and give too much power to the ... Executive".

He made the further point that,


    "The Labour Party oppose in principle the use of order-making powers to repeal primary legislation".

I have no doubt that that is why the Labour manifesto of 1997 stated,


    "Unnecessary secrecy in government leads to arrogance in government and defective power decisions".

I would not wish to see the new Government fall into that pattern of activity so early in their time of responsibility. It is against the philosophy of New Labour, as I understand it.

To turn to the detail of the clause, it justifies its existence on two important government arms: first, the police, and secondly, the Inland Revenue. I am glad to be able to tell the House that the police do not wish to have this wide-ranging power. Indeed, they have stated to me that they would rather that it was not available to them.

I have in front of me a letter from the chief constable who is the chairman of the ACPO Working Group on Data Protection, the police body on data protection, in which he states:


    "The Police Service is not seeking wider exemptions from the legislation and neither have we made any representations to the Home Office on such matters. It would not be in the interest of the Police Service".

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In other words, the police comply with the 1984 Act. They have a good professional relationship with the Data Protection Registrar. They have managed to maintain public confidence in an area of great sensitivity; namely, electronic data holding in the modern era. Their behaviour has been exemplary, and they do not wish that public confidence to be shaken by any well-meant but inherently clumsy attempt to give them wide-ranging powers that they do not desire. Their view is that blanket provision such as this is a step too far for any public body. They wish exemptions to be kept to a minimum, they are knowledgeable about using the new technology and feel that public confidence in the police would be shaken if they were given Clause 28(4) powers. I am grateful to be able to lay a part of that letter, which is already in the public domain, before the House.

Secondly, I turn to the question of the Inland Revenue, on whose shoulders therefore this clause must now rest for its inclusion in the Bill. Here I suggest that the Inland Revenue, if it seeks this broad exemption, should surely not wish to have it placed in front of your Lordships in this hole-in-the-corner method. If this is not a Henry VIII clause then surely, from the way in which such clauses were debated by the Labour Party in the other House while I was in the other place, at least it is a "White Queen" clause. Henry VIII, when he said, "Off with their heads", did it; the White Queen merely said rather loudly, "Off with their heads, off with their heads", and perhaps not so many people suffered. Either way, it is a secondary legislation power. If new large powers are needed by the Inland Revenue, noble Lords should be convinced that there is no proper Inland Revenue legislation under which they could be debated.

As the noble and learned Lord the Solicitor-General said in the previous debate on this Bill, we are in an era where the Inland Revenue's future is unknown. That future may, of course, be less unknown since the Chancellor's speech, with insurance being twinned with Inland Revenue computer systems. Undoubtedly, many more changes lie ahead very soon.

However, is it right that the Inland Revenue, with these changes coming to its work, should be authorised by ministerial order alone to remove from Parliament the capacity to debate such matters and for us to be the judges as to what is right and proper in terms of Inland Revenue special provisions in the electronic era?

Before I sit down, perhaps I may pick up a challenge that will immediately be thrown at me that it is an affirmative order and that we can debate it. When on an affirmative order I raised an important point just before Christmas about EU database protection, I was subsequently informed that 13 minutes was far too long. I am asking should wide-ranging, blanket Inland Revenue powers which take away rights of individuals already given under the 1984 Act be trimmed down to such a narrow window of democratic opportunity? I beg to move.

3.30 p.m.

Viscount Astor: My Lords, we debated this amendment at both Committee and Report stages of the Bill. At Committee stage I added my name to the

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amendment by the noble Baroness. Our first debate was largely after the report of the Delegated Powers and Deregulation Select Committee, which stated that it thought that the powers in Clause 28(4) would be "impossible to justify". Those were their words. The Government listened to that concern and came forward with an amendment that dealt with the problem to a degree, but not entirely. It softened the blow, if I could describe it that way. But at the same time, the Government then came up with many other reasons why this draconian power was necessary.

Throughout the progress of the Bill, on this side of the House we have never been entirely convinced by the necessity for those powers. At Report stage we also debated the present Amendment No. 4, which is grouped with Amendment No. 3, moved by the noble Baroness. That amendment did not delete subsection (4) but sought to amend it in a way that we on this side of the House thought might be more acceptable to the Government.

At that stage, the noble and learned Lord gave reasons why the Government did not want to accept that amendment, which is Amendment No. 4. His main argument was that the Government would lose the flexibility to deal with new developments. That was not a convincing argument against the amendment. It may be that deleting subsection (4) is going slightly too far, but we are not happy with the subsection. The noble and learned Lord must accept that unless he is prepared to consider Amendment No. 4 by the noble Baroness, we would support her in deleting subsection (4) so that the Government could go back, consider the matter more carefully and come up with better drafting.


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