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Baroness Hollis of Heigham: My Lords, I am happy to say that we shall review these procedures. The last thing the DSS wants to see is criticism from banks and building societies of the actions of its authorised officials. If we receive complaints, we shall either review the managerial supervision element or we shall review the training. If the fears expressed by the noble Lord turn out to be legitimate--I do not think that they will, because officers are already working with equal levels of responsibility in parallel fields; their behaviour is almost always exemplary--then we shall find that out. The code of practice offers plenty of opportunities to make adjustments through training and complaints procedures. Having said that, I should point out that, based on the body of experience from complaints officers currently working in the field, we believe that we have set these processes at the right level.

Lord Higgins: My Lords, I understand the point. Again, although I am reassured by the noble Baroness's comments on training and so forth, if someone is carrying out an investigation which is not reasonable, that is far more a question of an individual's attitude to the issues than it is a question of training. I shall bear in mind the points made by the noble Baroness. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker (Lord Elton): My Lords, if Amendment No. 8 is agreed to, I shall not be able to call Amendments Nos. 9 to 11.

Baroness Hollis of Heigham moved Amendment No. 8:

("(a) a person who has committed, is committing or intends to commit a benefit offence; or").

On Question, amendment agreed to.

[Amendments Nos. 9 to 11 not moved.]

Lord Higgins moved Amendment No. 12:

    Page 2, leave out lines 42 to 44.

The noble Lord said: My Lords, this amendment relates to the provisions as regards members of the family of a suspect. Again, the code of practice has proved to be extremely helpful. In Committee I raised the question of whether it was appropriate to include in the list of those who might be investigated people who were simply members of the family of someone

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who was otherwise suspect. That part of the Bill has now been radically changed. This is the only section which, in effect, has survived the helpful innovations introduced by the noble Baroness.

The relevant paragraphs in the code of practice are paragraphs 2.11 and 2.12. That part of the code does seem to restrict the provision to inquiries about family members whose circumstances are directly relevant to the claim under investigation. For example, if a man is claiming a means-tested benefit but is not declaring his wife's earnings, inquiries may be made about her bank account in order to establish the truth. I have some doubts about the precise wording of paragraphs 2.11 and 2.12, but I think it would be helpful to discuss that when we discuss the code of practice as a whole.

This issue was raised in Committee. However, perhaps the Minister will state for the record precisely why she believes that the members of a family--defined precisely in the code of practice--may need to be investigated. Also, is she satisfied that there are adequate restraints on going beyond the particular cases where the fraudulent benefit claim immediately raises the question of family relationships?

Baroness Hollis of Heigham: My Lords, again I am happy to give the assurance that the noble Lord seeks. I explained in Committee that information about a person's family--the tightly defined nuclear family; in other words, the dependants who are covered by benefit--is needed by the department. People claim benefit not only for themselves but for their dependants.

The crucial point is that income-related benefits are based on household assessment; therefore, we need to know about the household. It is as simple as that. For example, people may be fraudulently claiming for children that they do not have; they may claim that they are single when they are a couple; or a man may be claiming a benefit when the woman is in work. The implication of the noble Lord's amendment is that if a single man were working and claiming benefit he would be prosecuted, but if a married man were claiming benefit when his wife was working--the same offence but within the household--we could not prosecute him. I am sure that that is not the noble Lord's intention.

So I am happy to give the noble Lord the assurance that he seeks. The notion of "family members" is tightly drawn. Because income-related benefits are household based, any claim is on behalf of the whole household; therefore, it is necessary to ensure that the information is correct and valid. That is why we need to retain the provision in paragraph (d).

Lord Higgins: My Lords, that is a helpful explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hollis of Heigham moved Amendment No. 13:

    Page 2, line 44, leave out ("(b) or (c)").

On Question, amendment agreed to.

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Lord Astor of Hever moved Amendment No. 14:

    Page 2, line 44, at end insert--

("( ) Nothing in this Act shall authorise an inquiry which contravenes any provision of the Data Protection Act 1998.").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 38.

Amendment No. 14 seeks to ensure that any inquiry initiated as a result of the Bill is pursued with the full knowledge of the data protection regulations and that the concerns expressed by the Information Commissioner about some provisions in the Bill have been taken into account.

The Minister assured us in Committee that if the Information Commissioner believed the Bill to be in breach of the Data Protection Act, she could issue the department with an enforcement notice. Would it not be preferable to smooth over any potential areas of conflict before the Bill becomes law and subject to the provisions of the Data Protection Act?

Although safeguards exist in the Bill and in the draft code of practice, as the noble Earl, Lord Russell, said in Committee, it is questionable whether the action can be proved to be necessary and, therefore, whether any inquiry is or will be within the bounds of the Data Protection Act. Will the Minister give the House an assurance that knowledge of the data protection regulations will be required as part of the training of the authorised officers who will exercise the powers provided under the Bill?

Turning to Amendment No. 38, the Minister was kind enough to say that she would confirm whether or not an individual could request information held on him by the DSS and under what circumstances there would be an opportunity to do so. We are grateful to the Minister for the confirmation set out within the code of practice that an individual will be able to access personal data in accordance with the Data Protection Act. However, although the draft code of practice has established that an individual has the right to subject access, and would be eligible without our amendment to access personal data held on him by the DSS, it does not confirm at what stage, if any, individuals may access that information if they are under investigation in accordance with the provisions of the Bill. I beg to move.

5.15 p.m.

Lord Grabiner: My Lords, I shall speak to Amendment No. 14. We examined this amendment on the first day of the Committee stage. My instinctive reaction then was that the amendment was unnecessary and that that is still my view.

I think that the source of the problem is that the Data Protection Act 1998 is widely misunderstood and that even experienced lawyers are a little nervous of it. I include myself in that category. The obscurities of the 1998 Act are driven by the fact that it has its origins in the human rights convention, and the legal concepts in the convention were then very novel, and still are quite novel, to English lawyers and legislators.

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The relevant provision of the convention is Article 8. The first paragraph of the article spells out the right to respect for private and family life, home and correspondence. Obviously, the right is not absolute or unlimited. The convention is carefully structured and makes a sensible balance. Accordingly, paragraph 2 of Article 8 makes it plain that a public authority may be entirely justified in interfering with that right provided that the interference,

    "is in accordance with the law and is necessary ... [for] the economic well-being of the country, for the prevention of... crime ... or for the protection of the rights and freedoms of others".

Those two aspects of Article 8 are perfectly mirrored in the Data Protection Act. The right in paragraph 1 is covered by the so-called Data Protection Principles, especially the first principle. The limitation on the right is set out in Section 29 of the Act, which expressly exempts from the first data protection principle cases where personal data is processed for the purpose of preventing or detecting crime or for the purpose of apprehending or prosecuting offenders. It follows that in this context Article 8 of the convention is made effective in our domestic law by the Data Protection Act.

The next step in the argument is the Human Rights Act 1998. Section 3(1) of the Act requires that, so far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the convention rights. The obligation to construe all legislation in this way is, therefore, cast squarely on the court.

It will immediately be obvious that it is entirely unnecessary and indeed circular to introduce any provision into this Bill of the kind that we are now discussing. In the first place, it adds nothing to the Data Protection Act, which cannot be excluded or side-stepped. Secondly, Section 3(1) of the Human Rights Act means that, if and when the Bill becomes law, it must be read and given effect in a way which is compatible with the convention rights.

I should like to emphasise one further point that I believe is sometimes under-rated in our debates, and, for the most part, ignored in the representations from some of the outside bodies, or pressure groups, that have given their views on this particular subject. The purpose of Clause 1 of the Bill is to enable the DSS to detect or prevent crime and to apprehend and prosecute benefit fraudsters. That is an entirely legitimate object in any civilised society. It is specifically authorised by the convention. That is especially the case where these powers are necessary as a check on whether a particular benefit claimant has, on a previous occasion, given honest answers to questions properly put to him or her and where the answers are to be relied upon for the purpose of deciding whether or not the claimant qualifies for the relevant benefit. We must always take full account of the convention right in paragraph 1 of Article 8, but there is absolutely no justification for disregarding or watering down the limits on that right that we find in paragraph 2 of Article 8.

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In the result, I believe that this amendment is unnecessary for at least two reasons. First, if and when these powers in Clause 1 are enacted, they will be exercisable only in accordance with the requirements of the Data Protection Act 1998; and, secondly, the provision will have to be construed by the court compatibly with the convention because Section 3 of the Human Rights Act 1998 says so.

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