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Earl Russell: My Lords, that was an extremely helpful intervention, for which I am most grateful to the noble Lord, Lord Grabiner. If the noble Lord will forgive me, I should like to probe one or two of his assertions. First, I do not have the text of the Human Rights Act with me today, but it is my recollection that the requirement to construe existing statutes in the light of the convention is a requirement to do so as far as possible. It must be so, otherwise the whole provision for a certificate of incompatibility would be unnecessary.

Secondly, the noble Lord is clearly persuasive in arguing that Clause 1 of the Bill is a legitimate object within the terms of the convention. However, it has been argued by the Data Protection Registrar that this object is subject to the requirement of proportionality. That is a fairly major argument. There is probably some obligation on this House to consider how far that requirement of proportionality is met. We know that the registrar has had some fairly significant misgivings at earlier stages of the Bill. I understand that discussions have taken place since then. I have heard in the most general terms only about the results of those discussions. However, before we leave this amendment, perhaps we could be enlightened on how far the registrar is currently reassured. That would be extremely helpful to the House.

Lord Grabiner: My Lords, I shall respond briefly to the noble Earl's observations. He is absolutely right to draw attention to the opening words of Section 3(1), which read:


Indeed, I believe that I referred to those words when I drew attention to the provision. However, if it is not possible to do so, the possible consequence is that there would have to be a certificate of, so to speak, non-compatibility. In that event, there would be a potential problem.

The noble Earl also referred to the issue of proportionality. The amendment now before us is one that would have the effect of making the operation of the powers contained in Clause 1 of the Bill expressly subject to the Data Protection Act 1998. The proportionality point does not arise by virtue of the Data Protection Act. It arises under that Act in any event, but it will also arise under this Bill, if and when it becomes law. Therefore, there is no need for this Bill to incorporate a provision that would make it in its operation subject to the Data Protection Act 1998, because the proportionality obligation will have to be satisfied under this legislation standing alone.

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We discussed this issue previously. I entirely agree that it must be necessary; and that means proportionate. The mere process of going through these proceedings--indeed, as we have done in previous debates--reveals most clearly that the product at which we are arriving is a proportionate response to a serious social and criminal problem.

Baroness Hollis of Heigham: My Lords, I am indebted to both my noble friend Lord Grabiner and to the noble Earl, Lord Russell, for expanding the point about the proportionality issue and the degree to which all legislation is subject to the Data Protection Act. That brings me to the first point raised by the noble Lord, Lord Astor. There is no need for amendment No. 14. There is nothing in the Bill that can enable us to contravene the Data Protection Act 1998. The noble Lord asked why we have not placed such a provision on the face of the Bill. I could respond and say that, equally, the Bill must not contravene the Human Rights Act 1998, the Race Relations Act 1976, the Sex Discrimination Act 1975, the Disability Discrimination Act 1995, the Police and Criminal Evidence Act 1984 or the freedom of information legislation. However, we do not seek to place them on the face of the Bill. The law is the law; and, by law, we cannot contravene the law. The Data Protection Act 1998 is the law. Therefore, putting a provision on the face of the Bill to the effect that we cannot contravene it would not change the fact that we cannot contravene it; in other words, the suggested provision would be otiose. Indeed, I believe that my noble friend Lord Grabiner put the case most succinctly.

The question was also raised as to whether the Data Protection Act and its obligations and responsibilities should form part of the training of authorised officers, which I believe to be a most helpful and pertinent question. Yes, indeed, it is important that they should understand that their actions must fall within that framework.

I turn now to Amendment No. 38, and the question of data. As I believe we made clear in Committee, we generally keep data for 14 months, unless it is needed for prosecution purposes. Anyone can ask for the data that is held upon himself at any stage, so long as that request would not jeopardise any investigation. For my own interest, I asked to have sight of a typical print-out of what might be held on a real but anonymised individual in the social security computers. This gives information about national insurance numbers, family, employment, and so on.

In the light of that, I was also asked whether it would be reasonable to reduce the time limit of 40 days down to 21. The reference in the amendment to,


    "the relevant agencies or bodies",

which would include the DSS and local authorities, would also, presumably, include banks and other organisations listed in subsection (2A), as set out in Clause 1. That would mean that the noble Lord's amendment to restrict the time available to make such enquiries to 21 days would not only apply to the DSS but would also apply to banks, building societies, credit reference agencies, and everyone else. As a

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result, I believe that those organisations would be extremely unhappy. They are currently subject to the same 40-day requirement as applies to the DSS. However, as the amendment is framed, they, too, would be brought within the 21-day requirement. I am sure that they would find this very hobbling in terms of their ability to respond, because the time limit would be halved and could be seen as unreasonable.

Finally, I was asked whether the Data Protection Registrar was reassured in terms of what we propose. The truth is that we have not heard from the registrar recently on the subject. I understand that she has been sent the draft code of practice, but has not responded. I believe that it is fair to say that her original concerns have been addressed in part by the amendments that we have proposed, especially Amendment No. 8 that the House accepted earlier, and by the publication of a code of practice, which will be a statutory code of practice. If the registrar has other concerns, she will no doubt communicate them to us. However, I have checked the position. That was certainly the situation yesterday. I rechecked to confirm whether or not we had heard anything further today, but we had not. That is the best information that I can give to the House.

Having addressed some of the concerns that your Lordships expressed--one about the code of practice and the other about subsection (2A)(a), (b) and (c), which was dealt with by way of Amendment No. 8--I hope that my response will also allay the concerns that the Data Protection Registrar gave in response when the Bill was originally published.

5.30 p.m.

Lord Astor of Hever: My Lords, I am grateful for that clarification from the Minister. I cannot recollect saying anything in my short speech to either amendment about putting anything on the face of the Bill. I have checked my notes and I cannot recollect saying that.

The points made by the noble Lord, Lord Grabiner, were helpful, particularly as regards clarifying the Data Protection Act and the Human Rights Act as they relate to the two amendments.

Baroness Hollis of Heigham: My Lords, perhaps I have misunderstood the noble Lord. However, Amendment No. 14 states:


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

In other words, the noble Lord asks for a provision on the face of the Bill that nothing we do can contravene any provision of the Data Protection Act. As I said, that cannot happen. We cannot contravene the provisions of the Data Protection Act because that is law, in the same way as we cannot contravene the Sex Discrimination Act, the Disability Discrimination Act and so on. As I say, perhaps I have misunderstood the noble Lord.

Lord Astor of Hever: My Lords, I accept the points that the noble Baroness makes. These are probing

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amendments to clarify points which we are grateful to have explained. On the subject of the Human Rights Act, normally there are various additional measures in the Bill. However, they are missing. Is there any specific reason for that?

Baroness Hollis of Heigham: My Lords, I do not know what additional measures the noble Lord has in mind. Perhaps he can help me.

Lord Astor of Hever: My Lords, normally the Bill states that it is in conformity with the convention. Is there any reason why that statement is missing?

Baroness Hollis of Heigham: My Lords, that statement was signed originally before the Second Reading. I believe that it was signed at the First Reading of the Bill. I signed that the Bill was compatible with human rights. I believe that on a couple of occasions the noble Lord, Lord Higgins, told me that I had signed that measure and that he held me personally responsible for that. It was certainly signed.

Lord Astor of Hever: My Lords, I take the Minister's word that it does not matter that the measure is not on the face of the Bill at all the other stages.

I return to the amendments. I am grateful for the detailed clarification both from the noble Lord, Lord Grabiner, and from the Minister. It is helpful that we have that detailed clarification. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


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