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Lord Phillips of Sudbury: My Lords, we should like to identify ourselves with the amendment. It is perhaps strange that the Commissioners for Inland Revenue were not placed within the definition of "relevant public authority" from the outset. As the noble Lord, Lord Grabiner, said, it is ludicrous for the Inland Revenue to be hamstrung in the proper collection of taxes at a time when there are already signs that tax is falling not so much on the well off as on the law abiding. Therefore, we are wholly supportive of this measure.
Lord Bassam of Brighton: My Lords, I am grateful to my noble friend for raising this matter. Like other Members of this House, I am familiar with his report on the black economy and with the great respect in which that report is held. From what I understand and from the eloquent way in which my noble friend set out the considerations this evening, there seems to be a strong case for the inclusion of the Inland Revenue among those public authorities which are able to access communications data.
For my part, I appreciate that this amendment would enable the Inland Revenue to track down those businesses that advertise a telephone number alone and have not told the Inland Revenue that they are liable to pay tax. This Government are encouraging people working in the informal economy to put their affairs in order. That encouragement needs to be balanced by powers which enable those who remain in the informal economy to be detected and brought to account. As such, that appears to me to be a sensible and proportionate suggestion.
I am entirely convinced by what my noble friend has said. I was most interested in the discursive and informative comments made by the noble Lord, Lord Cope, and welcome the positive reaction from noble Lords opposite that this would be a useful addition to the statute book. Therefore, I can say that the Government are more than happy to accept this amendment.
Lord Cope of Berkeley: My Lords, before the Minister sits down, could he respond to the point that I made about whether this provision would only give the Inland Revenue the possibility to make the reverse telephone number enquiries to which the noble Lord, Lord Grabiner, referred? Alternatively, will it go further than that in covering all communications data?
Lord Bassam of Brighton: My Lords, I struggle to read the writing that is in front of me. We agree that the Inland Revenue should be limited in the communications data that it can obtain. The Secretary of State will make an order under Clause 24(3) limiting the data that can be obtained by the Inland Revenue. I think that that answers the noble Lord's point.
The noble Lord said: My Lords, this amendment seeks to remove the possibility of the Secretary of State adding other public authorities to the relevant list. We have just added one. Clause 24(1)(f) implies that further public authorities may be added to the list. What other public authorities do the Government have it in mind to add to the list? The present list is, admittedly, fairly limited and comprises the police, the National Criminal Intelligence Service, the National Crime Squad, Customs and Excise, and the intelligence services. The Inland Revenue has now been added to the list.
However, Clause 21 contains all kinds of measures which are not undertaken by the distinguished public authorities that I have mentioned. For example, Clause 21 mentions "protecting public health" and,
Lord Lucas: My Lords, I entirely support my noble friend's amendment which points out the dissonance between the clause we are discussing and Clause 21. There are so many purposes in Clause 21 for which communications data can be obtained that there
Lord Bassam of Brighton: My Lords, this is altogether a more difficult issue than the question discussed earlier of whether we can add to the purposes for which communications data can be accessed. This issue addresses whether we can add to the list of public authorities which can access communications data.
I am aware of the views of noble Lords opposite who think that the power should be removed, and, of course, I have read the 21st report of the Delegated Powers and Deregulation Committee. But the simple fact is that we are entering uncharted territory as we approach the implementation of the Human Rights Act. One of the prime purposes of this Bill is to enact an ECHR compliant regime for the use of the six investigatory powers which are covered by the Bill.
As I have previously explained, the power of accessing communications data in Chapter II of Part I effectively replaces for the agencies named in Clause 24 the voluntary arrangements under the Data Protection Act 1998. There are significant constraints on the use that the public authorities named can make of the power. This is deliberate; it is necessary in order to ensure ECHR compliance. We have also instituted for the first time proper oversight and redress arrangements for the accessing of communications data.
We are proud of the regime for communications data in the Bill. It is better than the voluntary arrangements currently operated under the Data Protection Act. The Bill brings strict controls, judicial oversight and recourse to the tribunal. We want to be sure that the regime is capable of applying to other agencies with important investigative or regulatory functions. Those agencies might use their own statutory powers as at present; or they might use voluntary arrangements; or they might not access communications data at all. The amendment, however, would prevent those other agencies from coming within the ECHR-compliant system in the Bill. That would be a curious result.
The noble Lord asks why we cannot list now all the bodies which need to access communications data. We have done so in Clause 24, where we have listed the key law enforcement and intelligence agencies which we know will need these powers. But we are not sure that the list is or can be complete. I shall try to explain why.
First, a concrete example: we had an interesting discussion on the case for the Inland Revenue to be added to the list. The case for the Inland Revenue, eloquently put by the noble Lord, Lord Grabiner, has arisen out of a learned and detailed consideration of the issues affecting the informal economy and the need to enforce it. I suggest that this is a good example of how very cogent reasons can be put forward for a public authority to be added to the list and which, perhaps with some justification, we would wish to accept.
But there are other regulators in the corporate and financial fields which may also be candidates for inclusion. Again, the position is not yet clear. This is not only because we are still finding out which techniques are used by which agency--although, as your Lordships know, there is some truth in that; it is one of the very instructive consequences of the Human Rights Act--but also because regulatory techniques change as patterns of business behaviour change. Communications data may well become more important to some agencies. If that happens, we do not believe that primary legislation should be the only means of responding.
Finally, there may be bodies which do not yet know that what they are doing interferes with Article 8 rights and needs to be regulated. We hope that convention awareness is fairly good across the public sector, but we cannot be 100 per cent certain. There may be bodies which do not yet know that they are likely to be "public authorities" for the purpose of the Human Rights Act.
For these reasons, we maintain that there is a strong argument for retaining the order-making power in Clause 24 and elsewhere in the Bill. Orders must be approved by each House, giving Parliament an opportunity to scrutinise any authorities that are added to the list. I ask noble Lords to reflect carefully on that matter. I would never disagree with the Committee lightly; I had intended to speak with Members of the Committee, but that has not been possible. After reflection, I ask noble Lords opposite to withdraw their amendment.
We require flexibility and, if this amendment were to be agreed to, effectively we would need Acts of Parliament to add new agencies. While that might be desirable in terms of the level of scrutiny, it would be unduly inflexible and add an unnecessary burden to the legislative programme. This could perhaps be much better dealt with through order making, where there will be an opportunity to scrutinise any further authorities which need to be added to the list. With that, I trust that noble Lords opposite will feel able to withdraw their amendment.
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