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Lord Faulkner of Worcester: My Lords, I am grateful to my noble friend for giving way. Can the Minister tell the House how the Government propose to monitor the implementation of the Public Places Charter, given that it is a voluntary code? Is he satisfied with the progress that has already been made, given that it is supposed to be in place in 50 per cent of establishments by 2002?
Lord Whitty: My Lords, we have not yet reached 2002. Considerable progress has been made, although it should be said that it has been achieved mainly among the larger establishments and employers. It is my hope that, were we to reach an understanding with the hospitality sector in this area, that progress will extend to smaller premises and employers.
Of course, those are not necessarily additional costs over and above the costs of complying with the Public Places Charter--the additional costs may be somewhat less than that--but the cost falls disproportionately on the hospitality sector whether one talks about gross or net costs. That has to be taken into account.
We are addressing the question of how both smaller businesses and the hospitality sector as a whole should meet adequate standards. Nevertheless, the Government accept that the benefits of doing something in this area are significant in terms of protection of workers. We need to assess the real benefits and the real costs. The Government are continuing to do that in discussions with representatives of industry as whole, the hospitality sector and the Health and Safety Commission.
The noble Lord said: In moving Amendment No. 20 I shall speak also to Amendments Nos. 22 and 38. I shall speak in support of Amendment No. 32 and say something about Amendment No. 29. For the purpose of Amendments Nos. 20, 22 and 38, it would be helpful for Members of the Committee to have handy a copy of the Bill, otherwise what I say will be essentially gibberish. Amendments Nos. 20 and 38 are consequential to Amendment No. 22.
The amendments fall into two categories: technical and substantive. Perhaps I may speak first to the technical element. The amendments seek to clarify or simplify the drafting which currently incorporates the expression in subsection (2B),
We can and should dispense with the repetition of the word "information"; and we can also abandon the concept of legitimacy because it is fully covered by the pre-condition that there must be reasonable grounds for believing that the identified person is or may be doing any of the things listed in paragraphs (a), (b), (c) and (d). Those are the technical matters. They are essentially designed to shorten and clarify the existing drafting.
Leaving aside the technicalities, the more important substantive point is that the effect of these amendments will be to emphasise the importance of the need to identify a particular person by name or description. That expression does not appear in the current drafting. But it does appear in the suggested amendment and, therefore, if accepted, the particular person would have to be identified by name or description.
I hope that such an amendment will make it clear beyond doubt that these provisions are not designed to be generally intrusive. On the contrary, they are intended to be highly specific and precise. That is all I wish to say by way of introduction in respect of those amendments.
Perhaps I may now turn to the related amendment, Amendment No. 32, which stands in the names of the noble Lords, Lord Higgins and Lord Astor of Hever. The thrust of the amendment is to the effect that subsection (2C)(c) should be deleted. I should say, with some regret, that I was too late to add my name in support of the amendment.
At Second Reading, the noble Earl, Lord Russell, my noble friend Lord Desai and the noble Lord, Lord Astor of Hever, expressed reservations about subsection (2C)(c). In summary, two concerns were put forward. First, that when deciding on the relevant class or description of persons, the authorised officer might, consciously or otherwise, take into account considerations which are impermissible, in particular in relation to one or other of the matters listed in Article 14 of the convention, such as sex, race, colour and so on.
The second concern was not expressed at Second Reading in quite this way, but I think what it came to was that the concept behind paragraph (c) was vague and imprecise. I believe that the conceptual justification for the retention of paragraph (c) can be supported. An obvious example of something falling within that paragraph is the class consisting of previous offenders. It may well be reasonable to conclude that persons previously convicted of benefit fraud are statistically more likely to re-offend and that investigators should therefore have this proposed power. It would enable them to conduct investigations and to detect wrongdoing at an early stage without being hamstrung by the current powers, which, I suggest, are inadequate. No doubt it is possible to think of other examples.
I acknowledge the real concerns which were expressed by noble Lords on all sides at Second Reading about the possibility that people may end up being categorised on a capricious or unlawful basis. Any categorisation which involves or takes into account an inadmissible factor would be offensive as being incompatible with Article 14 of the convention, and it would certainly, in my view, be judicially reviewable. Furthermore, any doubts there may be about this point could, of course, be clarified by the code of practice and by the proper training of authorised officers.
Having said that, I have a nagging reservation about paragraph (c). The structure of paragraphs (a), (b) and (c) of subsection (2C) leads me to the view that you get to paragraph (c) in a case where neither paragraphs (a) nor (b) applies. It follows that, for the purposes of paragraph (c), the person in question, ex hypothesi, has not contravened, is not contravening and is not likely in the future to contravene the social security legislation. That is the starting-point for the analysis of paragraph (c). If those were the circumstances--and I certainly think that such circumstances could arise under the provision in subsection (2C)(c)--there must be some real doubt as to whether paragraph (c) is strictly necessary in order to deal with the problem.
"Necessity" is the test under the Human Rights Act. The argument is nicely balanced. The exercise of the power would lead only to the ability to obtain information; it would not lead automatically to a prosecution. Still less would it lead inevitably to a conviction. On the whole, I believe that the Bill would be improved if this provision were deleted. Certainly, for what it is worth, my nagging concern would disappear. Therefore, I hope that my noble friend the Minister will give careful consideration to the suggested amendment, which has my support.
I turn finally to Amendment No. 29 standing in the names of the noble Earl, Lord Russell, and the noble Lord, Lord Goodhart. Some criticism has been directed at the formula, to be found in paragraphs (a), (b) and (c), that a person,
Looked at from the point of view of the person concerned, it seems to me that the language of the Bill provides strong protection. First, there must be "reasonable grounds for believing", which are the words that lead into the relevant provisions. Secondly, the words "likely to" mean "more likely than not"--that is, more than 50 per cent; or, as a lawyer would put it, and I suppose I am in that sense qualified to put it this way, "on the balance of probabilities".
The answer to the question of whether that provision can be satisfied is essentially fact-driven. It depends entirely on the information that is available to the person making the judgment. The language is abstract, but the answer to the question, "Was there a sufficient basis for making the request for the information?" depends entirely on the information which was then available to the investigating officer.
It may be possible to find a different formula, and it is not beyond the wit of man to do so. However, I should be surprised if it turned out to be a better one from the point of view of the person who is the subject of the inquiry. I also emphasise the importance in this context of Section 29 of the Data Protection Act. In judging the reasonableness of this proposed legislation and whether or not it is human rights compatible, legislators are entitled--indeed, I would say, bound--to have regard to the fact that anticipating, preventing and detecting fraud is important and necessary, and we should not shrink from this point. Subject to the possibility that the language may be improved, the current drafting of these provisions produces a fair and balanced result. I beg to move.
Lord Higgins: Once again, the Committee will be grateful to the noble Lord for his assistance in relation to the Bill. I suppose that in a real sense he should be regarded as its "father" whereas we are in the role of "midwife" rather than anything else. Obviously, we must put considerable weight on the noble Lord's remarks.
I was under the impression that Amendment No. 32, standing in my name and that of my noble friend, was to be grouped with this set of amendments. The groupings list that I have in front of me seems to have it separated. But I entirely agree--
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