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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

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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 be 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

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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.

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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: If 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

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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.


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