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Baroness Hollis of Heigham: The noble Lord uses the word "judge". Does he accept that the authority against which the offence may have been committed is the judge of whether it needs information to establish that? It is not the judge of whether an offence has been committed. That will be for the courts to determine.

Lord Higgins: Of course that is true.

Baroness Hollis of Heigham: It is the substantive point.

Lord Higgins: It is a substantive point, but it is not the only substantive point. The question is whether the so-called authorised person will have complete discretion, without anyone being able to check whether they have a justifiable suspicion or a firm basis for carrying out the investigation. We shall deal with that issue on many other aspects of the Bill. I beg to move.

Earl Russell: I support the amendment, to which I have put my name. I join the noble Lord, Lord Higgins, in offering my thanks to the Minister, and through her to her officials, for their kindness, their capacity for taking pains, their courtesy and their great skill and efficiency in dealing with communications about this and many past Bills. They are a model of what a private office ought to be. It is a pleasure to deal with them.

I also join the noble Lord, Lord Higgins, in his comments about fraud. Fraud is an evil. Where there is gold, there will be claim jumping. Where there is public money, there will be fraud. That must be fought. Fraud is a form of theft and is so recognised in law. The prevention of fraud is prima facie always a good and legitimate public objective. That is common ground between all of us. At the same time, all of us, on whichever side of the argument, feel a certain unease about the arbitrary character of the powers created in the Bill.

The Minister and the noble Lord, Lord Higgins, were arguing a moment ago about the concept of judge and party in their own courts. The Minister is correct that the final judge of whether an offence has been committed is the court. Equally, the noble Lord, Lord Higgins, is correct that the final judge of whether there is a need to get the information about a particular person will be the investigating officer. The Minister may say that that is liable to control by the courts. So it is, but by the time that the courts are called in, the horse will have been stolen.

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I, too, have seen the powerful and impressive memorandum from the Data Protection Commissioner, to which the noble Lord, Lord Higgins, referred. She drew attention to the number of people who wish to obtain information for their own private purposes and who are capable of using official procedures to bring it about. I recall one case that concerned the local women's refuge about a quarter of a mile from where I live, sadly now closed. A violent former husband succeeded in getting the address of the refuge through the benevolence of a kindly policewoman in his home town who thought that he wanted it entirely for benevolent purposes. Hope does indeed spring eternal. If the Bill becomes law, with the best will in the world it will encounter such cases.

There is a growing respect in this country for confidentiality and the right to privacy. The problem lies in deciding which is the lesser of two evils. My late noble friend Lady Seear used to say that ethical decisions in politics were always a matter of choosing the lesser of two evils. It will be for the Minister to convince me that the methods that she is proposing are a lesser evil than those that they are designed to prevent. I say that without for one minute wishing to dispute that the evils that the Bill is designed to prevent are very great.

The evil in the proposals in the Bill would be very much diminished by the judicial control proposed in the amendment. The Minister will produce a number of objections along the lines that the amendment will diminish the effectiveness of the proposals in the Bill. I understand that well enough. However, I am asking the Minister to convince me that that is the lesser of two evils. I believe it to be a fair request; and, in the course of setting out to convince me, I ask the Minister to take account of the proposals made in the light of the European Convention on Human Rights.

If the Minister is to show that the proposal does not infringe Article 8.2 of the convention and that, in fact, it enjoys the protection of that article, she must show that what she is proposing is necessary. That, among other things, involves showing that the amendment would not be appropriate. If her proposal can be achieved by the means suggested in the amendment, which, other things being equal, clearly would be preferable, then the proposal itself is not necessary. However, she must show that.

It is necessary to show that the remedy is proportional. It has been suggested, I believe, by the British Bankers' Association that the penalties to be imposed on benefit claimants are harsher than those to be imposed on tax evaders. Were that to be the case, there would be room for an argument that the remedy was not proportional. In order to come within the terms of Article 8.2, it is necessary to show that safeguards are in place. We may address how far that can be done in later amendments. However, it would be prudent for the Government to include safeguards where they are able to do so because that may improve their standing in future court proceedings.

Justice points out that under the convention it is not an absolute requirement for intrusions into private life to be subject to judicial authorisation. However, the

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European Court of Human Rights said in the case of Klass v. Germany that it is in principle desirable to entrust supervisory control to a judge. Justice argues that that principle should be reflected in the Bill. That would put the Government into a much safer position in any future legal proceedings. Therefore, to that extent, the amendment would be desirable.

If the Minister can put forward reasons which persuade me that, in spite of all those advantages, the amendment is less desirable than the procedure laid out in the Bill, I shall listen. But it remains for her to convince me.

4.30 p.m.

Lord Grabiner: As I understand them, these amendments would render the Clause 1 powers expressly subject to the approval of a magistrates' court. I believe that the practical effect of the amendments, were they to be agreed, would be not simply to diminish--I believe that that was the word used by the noble Earl, Lord Russell, a moment or two ago--those powers but, in my view, to emasculate them to the extent that they would become unworkable. Magistrates' courts are already heavily overworked and Parliament would not be thanked for having unnecessarily increased that workload.

With regard to the question of necessity, I believe that it should be borne in mind that the exercise of the powers will not inevitably or even probably lead to an arrest or prosecution. The powers are intended to enable, for example, DSS investigators to detect and prevent fraud and error. The introduction of what, in effect, would be an additional level of vetting is, I suggest, entirely disproportionate in that it would unreasonably cut down the value of the powers being granted in the first place.

The point can be tested by reference to the drafting of the proposed amendment. First, so far as concerns the language of the existing Bill, the prerequisite for the exercise of the powers in the first place involves the need for the investigator to have reasonable grounds for believing that one or other of the matters currently listed in sub-paragraphs (a), (b), (c) or (d) have in fact happened or, as the case may be, are likely to happen in the future.

I suggest that the presence of that pre-condition is the short answer to the point made by the noble Lord, Lord Higgins, in his opening remarks. He said that the power was unfettered. With great respect, that is not right. The power cannot be exercised absent the satisfaction of the investigating officer to the extent provided for under the terms of the Bill.

The amendment, as drafted, introduces precisely the same test--on this occasion to be operated by the magistrates' court--as the one currently provided by the Bill which is to be operated by the investigating inspector or investigating officer of the DSS. I do not understand what possible advantage there can be in introducing precisely the same test--namely, that the magistrates must be satisfied that there are reasonable grounds, and so on--as the one which must be satisfied by the investigating officer. If the amendment were to

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be adopted, I believe that inevitably it would result in delay and enormously increased expense. Meanwhile, without over-emphasising that concern, Rome is burning.

I wish to make one other point which has already been raised by the noble Earl, but I emphasise it because it is important. A wrongful exercise of a power--that is, the power specified in the Bill as currently drafted--would be judicially reviewable. I believe that in those circumstances the position of the private individual is adequately protected without the need for these amendments.

Finally, in the course of his opening remarks, the noble Lord, Lord Higgins, drew to the attention of the Committee some observations made by the information commissioner, as I believe she is now called. One point to which he drew attention was that, under these arrangements, a person would not know that he had been the subject of investigation. The information would be sought pursuant to powers without the knowledge of, so to speak, the target of the inquiry.

The comparison was made with the situation relating to credit ratings. However, I suggest that there is a significant difference between the two sets of circumstances. With respect, I agree that substantive criticism can be made of credit ratings, although the current law allows precisely for that to take place. In such a scenario, and to give a clear example, an individual would be refused credit without knowing that the reason for the refusal was that the person deciding whether or not to give the credit was acting on the basis of erroneous information. That would be a very bad case. However, I dare say that, even as I speak, such cases are occurring hundreds of times out there in the real world.

The distinction between that type of case, which, as I say, takes place at present under existing law, and the case with which we are concerned here is simple and obvious. If information is obtained pursuant to the powers that we are now discussing and it leads investigators to the conclusion that there is a case to be answered, inevitably the individual concerned will have to be invited to give an answer to the question. If, on the other hand, the investigators are satisfied that there is no case to be answered, that will be the end of the matter. With respect to the information commissioner, perhaps I may suggest that the point which she has put forward is not a good one.


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