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Lord Bassam of Brighton: The noble Lord, Lord Mackay, started his contribution off by talking about the current Data Protection Commissioner ending up moonlighting. I listened to his argument and I thought it resembled more moonshine than moonlight. I am not convinced at all by what he said. We see it this way. By renaming the Data Protection Commissioner and the Data Protection Tribunal and combining the data protection and freedom of information functions we will have an integrated and coherent approach to the monitoring, promotion and enforcement of compliance of the freedom of information and data protection regimes.
The arrangements in the Bill are logical. They are certainly workable; and one information commissioner will be in a far better position to provide a consistent approach to information management, bringing together the two different strands of information covered by both regimes.
An integrated approach will bring particular benefits where decisions about third party access to personal information--that is, personal information about other people--require review by the supervisory authority. I am sure that public authorities will benefit from receiving advice on the interpretation and application of freedom of information from one source and there being just one official responsible for promoting good practice on information issues.
I am equally sure that having one information commissioner will be beneficial to ordinary members of the public, especially since under the Bill's proposals a potential applicant for information does not need to specify which legislation the application is made under. As I have said, many requests are likely to be for a mixture of personal and other information. If an applicant believes that information applied for should have been released, then there is a clear avenue of complaint to the information commissioner under the Bill as drafted. But I think that confusion would reign under the noble Lord's proposals.
It is worth looking also at the appellate arrangements. The noble Lord's intention is to create a separate tribunal. It seems reasonable to assume that there would be some economies to be gained from having one tribunal covering both freedom of information and data protection. That is exactly what our proposals achieve. They also do more than that. It is likely that a significant proportion of appeals will have a personal information aspect. Under our proposals one tribunal will be able to cover both freedom of information and data protection issues. That will have two benefits: first, it will result in more efficient appeals processes; and, secondly, it will be more easily understood by the public.
The proposal in subsection (1) of new Clause 16 has the effect of establishing a Joint Committee of the House of Commons and the House of Lords. There are already effective arrangements in place to allow Parliament, either directly or through the appropriate Select Committee, to monitor the effectiveness with which legislation is being implemented. It would of
Subsection (7) of new Clause 16 would enable the proposed parliamentary information committee to appoint members of an information tribunal, while subsection (8) of the new clause would enable the Lord Chancellor to appoint one further member of the information tribunal.
By virtue of Clause 16 of the Bill, the provisions of Section 6 of the Data Protection Act 1998 will apply to appointments to, and membership of, the information tribunal. These provisions are there to ensure that the appropriate skills and viewpoints are brought to the tribunal. In our view, it would be a retrograde step to substitute the appointments proposals put forward in the noble Lord's amendment for the arrangements in the Bill.
Subsection (5) of the new clause concerns reports to be laid before Parliament. Subsection (5) is entirely unhelpful. To require the commissioner or ombudsman to publish details of instances where public authorities have failed to comply with guidance--for example, a practice recommendation--is likely to damage any spirit of mutual co-operation that has been established and developed. It is far preferable to leave it to the commissioner's discretion whether to anonymise or summarise recommendations made and the outcomes, as we believe she is likely to do, or whether to refer directly to particular instances, since she will be in the best position to judge when to effectively "name and shame". In cases of failure to comply with a decision or enforcement notice, there is in any case, under Clause 53, recourse to the courts. We believe it is better left to the commissioner's discretion as to what details to publish.
The noble Lord said that the notion of an ombudsman would get rid of confusion of role. That does not happen in Ireland, where the system is very similar to the one that we describe in the Bill; it does not happen in New Zealand; it certainly does not happen in Australia. The only comparable system with the noble Lord's proposed arrangement is that in France. I leave other Members of the Committee to draw their own conclusions as to how effective and robust the French authorities are in working a freedom of information scheme. I believe that those we have identified as being similar to our model work very effectively indeed.
The noble Lord referred to Members of Parliament seeing their role eroded or sidelined by these arrangements. That will not be the case, particularly since the commissioner will have the obligation to report annually to Parliament. She has made it plain that she would like to see more reporting mechanisms put in place. That is exactly what Select Committees are there for. I find it strange that we might have a Joint Committee appointing an officer of the Commons with the task of going right across the public service with the freedom of information and data access legislation. That is a very strange construct.
The noble Viscount, Lord Goschen, raised the issue of conflicts of interest. The Bill sets up a clear relationship between freedom of information and data protection or data access, however one wishes to describe it. It is likely that a significant number of requests will be for a mixture of personal and more general information. Through this model we will get consistency in approach. I do not think that more conflict is inherent in combining the role of data protection and information commission in the protection of personal privacy under the Data Protection Act and the right of access; rather, it will create and generate a culture of openness under freedom of information.
Viscount Goschen: I am grateful to the Minister for giving way. One can see that organisational efficiencies would arise from having the two bodies together, just as the noble Lord has described. But how would this regulatory body act in the circumstances where an individual's data were held by a government authority but that individual had very strong reasons for wanting that information kept to that authority? The information might have been given to the authority on a certain basis and the individual concerned would want that protected. But someone--perhaps an investigative journalist--might seek access to a body of information of which that might be one piece. Surely in those circumstances there are two conflicting demands on the regulator. Does the Minister accept that, with other regulatory bodies, the trend in recent years has been to separate regulatory functions so that they are extremely carefully defined and the regulator knows whose side he is on?
Lord Bassam of Brighton: The noble Viscount hypothesises an interesting instance. There is no doubt that the commissioner will have some difficult conflicts to resolve. I do not entirely agree with his final point. It is true to say that where a service has been provided, it is unlikely that the same organisation will hold a regulator within itself. There certainly has been a shift. But here we have the benefit of a regulator looking at both sides of the coin--one side is data access and the other is freedom of information. They are two parts of the same whole in terms of the argument. We see many more benefits working in that way and, as I have said before, there are a number of other jurisdictions where the model we are offering works perfectly well and where there is now a long history and a deep tradition of developing a culture of openness.
Lord Mackay of Ardbrecknish: It has been an interesting debate. I am not entirely sure where the reference to "moonshine" came into the Minister's answer. I have to say that I was becoming almost convinced by the noble Lords, Lord Lester and Lord Goodhart, but I started to become unconvinced by the noble Lord, Lord Bassam of Brighton. I began to
The slight problem with the amendments is that I brought two questions together. I brought the question of whether the Data Protection Commissioner should be the same person as the information commissioner together with the idea that perhaps Parliament should have a proper role in these proceedings. I can see that one could devise two different sets of amendments to address those two issues.
My problem--I say this to the noble Lord, Lord Goodhart--is that, although there may not be any precedent for what I am suggesting, there is not a great deal of precedent in the United Kingdom for a freedom of information Act. In fact there was not a great deal of precedent for a Data Protection Commissioner. Indeed, it is not long ago since we first had one. Therefore, I do not think that we should be too bogged down by precedent. We should be more interested in seeing whether we can get it right.
While the Minister prayed in aid the Irish situation, it occurred to me that he was not very keen on the Irish situation on Tuesday when it came to having a purpose clause. Perhaps his words that the Irish seem to have it right will come back to haunt him when we return to the purpose clause on Report.
It is a novel concept, which I may study in detail when I see Hansard, that if we have two conflicting interests--a conflict between the citizen who wants information and another citizen, some of whose information is contained in the body of information the first citizen wants--that conflict is best resolved by having the same person act for both. Does that logically mean that the courts of this country would be far more efficiently organised if the prosecutor and the defence were one and the same person? He would then be able to resolve the conflicts himself and not have to bother the judge. I do not know whether the noble Lord, Lord Lester, now wants to tell me how wrong I am about that.
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