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Mr. Greenway: I have been looking forward to the contribution of the hon. Member for Leyton and Wanstead
(Mr. Cohen). He tabled a great number of amendments for the Standing Committee, but sadly, for reasons that I cannot explain, he was not selected to serve on the Committee, so we were denied the opportunity of hearing from him. However, having listened to the hon. Gentleman, and having considered his amendment No. 13, Conservative Members would oppose its inclusion in the Bill.
We considered this important matter in Committee, and we were at pains to support the Government in requiring that the provision be in the Bill. It is provided for by the directive in article 13 and we believe that, on balance, clause 28 provides an adequate appeal mechanism to the tribunal. While we understand that there are always concerns about such matters, we are not convinced that the House needs to go further in this legislation than the appeal mechanism that is already provided in clause 28.
Mr. George Howarth:
My hon. Friend the Member for Leyton and Wanstead (Mr. Cohen) and the hon. Member for Sheffield, Hallam (Mr. Allan) tempt me along highways and byways in this debate that it would probably be sensible not to pursue. However, it is important to say at the outset that the Data Protection Act 1984, to which my hon. Friend referred, does not exempt agencies from the data protection principles. Only data users who are required to register are bound by the principles. Section 27 of the 1984 Act provides an exemption from registration where the exemption is needed for national security purposes. That is the exact position.
Consistent with that, clause 28 provides for personal data to be exempted from the main elements of the Bill when that is necessary in order to safeguard national security. The question of necessity is subject to ministerial certification. There is a right of appeal for any person who is directly affected by that certification. The exemptions provided in clause 28 apply only to the extent needed, and a Minister must satisfy himself that the exemptions claimed are in fact required for the purpose of safeguarding national security before issuing a certificate.
The right of appeal against a national security certificate is an important new safeguard. It represents an advance on the 1984 Act, which offered no appeal rights. Appeals will be considered by a specially constituted panel of the data protection tribunal, whose membership will be drawn from the chairman and deputy chairman appointed by the Lord Chancellor and designated by him as being capable of hearing such appeals.
My hon. Friend's amendment would, perversely, have the effect of extending the roles of certain commissioners well beyond those that Parliament intended for them. Commissioners were appointed to carry out certain well-defined and limited functions specifically in relation to the security and intelligence services, the use of intrusive surveillance by the police and the interception of communications. Furthermore, the commissioners' remits by no means cover the whole field encompassed by the national security exemption.
The arrangements set out in clause 28, as drafted, give continued effect to the well-established policy that personal data should be exempt from the main elements of the data protection regime, including supervision by the Data Protection Commissioner, where that is necessary in order to safeguard national security. My hon. Friend
chooses not to recognise that the exemption is balanced by the provision for appeals to be made to the tribunal against the issue of ministerial exemption certificates. My hon. Friend's amendment would undermine that policy.
Mr. Cohen:
I hear what my hon. Friend has said, particularly in his initial comments. The thrust of my argument is that, under the 1984 Act, the security services have a legal duty to comply with the data protection principles, although they do not have to register. The Bill takes away that duty in the law for security services to comply. Is the Minister saying that I have misread the situation--that the security services still have a duty to comply with the data protection principles and that the 1984 Act has not been weakened in any way?
Mr. Howarth:
I apologise if my hon. Friend misunderstood me earlier. The 1984 Act exempts the security services from the principles, and it is important to recognise that fact. In light of my arguments and the necessity for such arrangements, I hope that my hon. Friend will feel able to withdraw his amendment.
Mr. Cohen:
I will seek to withdraw my amendment, as I hear what the Minister has said. However, I ask him to re-examine his last comment that the 1984 Act did not require the security services to comply with the data protection principles. As I understand it, section 2(2) of part I of the Act requires them to comply with those principles. I ask my hon. Friend to re-examine that point and perhaps clarify the situation in writing. On the basis of my hon. Friend's comments, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Greenway:
I beg to move amendment No. 8, in page 17, line 45, after 'prevention', insert 'investigation'.
This is the first of two or three important points that the Opposition wish to raise on Report. The entire Committee stage was characterised by several debates about the importance of safeguarding those organisations, other than the police service and public authorities, whose role is to protect us from the criminal and fraudulent activities of others.
I shall briefly explain the background. The Bill essentially blocks or prevents the processing of sensitive data, including matters relating to criminal convictions and criminal records, other than in the case of certain specific exemptions. The main exemptions with regard to crime are set out in clause 29. Those exemptions are clearly enshrined in article 13 of the directive, which the Bill seeks to implement in our law.
The specific exemption is that personal data may, in certain circumstances, be exempt from the provisions of the Bill if they are processed for the prevention or detection of crime. Article 13 refers not just to the prevention or detection of crime and the prosecution of criminal offences but to the investigation of crime. We believe that the inclusion of the word "investigation" in the Bill will give added comfort to those who undertake risk assessment work in order to combat potential fraud
involving credit cards, false insurance claims and so on. Much of that work is of an exploratory nature, when there is no evidence of any crime.
Investigation and detection are two separate activities. For instance, let us suppose that we are talking about a suspicious death. When it is clear that that suspicious death is the result of a murder, the investigation seeks to detect who committed that murder. However, if there is a suspicious death and the investigation seeks to establish the circumstances of that death, it may be discovered that there was no murder at all. However, there is an investigation. Commercial organisations conduct such routine investigations every day in assessing whether certain people are making a succession of fraudulent insurance claims or are involved in credit card or other banking or financial fraud. Many of their investigations conclude that there was no crime committed in a particular case.
Although we had a lengthy debate in Committee, and although we acknowledge that Ministers have said that they will give other comforts to those organisations--I should state for the sake of the record that the order-making power at paragraph 9 of schedule 3 provides that the Secretary of State may exempt several specific circumstances from a number of provisions--the Bill would be better if it included the word "investigation". That word adds something, and we thought it important for that reason to draw the House's attention to the matter. I ask hon. Members to accept the amendment.
Mr. George Howarth:
I hope to convince the hon. Member for Ryedale (Mr. Greenway), as he anticipated, that his amendment is unnecessary. Clause 29 sets out specific exemptions that are needed to tackle crime and to collect taxes. They variously affect the fairness and lawfulness principles, subject access, subject information and the non-disclosure provisions. Between them, the purposes set out in subsection (1)(a) and (b) cover the whole process of tackling crime--from measures intended to prevent crime being committed, to the prosecution of an offender if a crime occurs.
The clause does not leave any gaps. The phrases
The scope of clause 29 is limited to the purposes of law enforcement and public protection. The investigation of a crime in that context is limited in its purposes to the prevention or detection of crime and the apprehension or prosecution of offenders. Those are the only relevant objects of criminal investigation for current purposes, and they are already covered by clause 29.
"prevention or detection of crime"
and
"apprehension or prosecution of offenders"
are familiar from the Data Protection Act 1984. They embrace the whole investigative process, which is covered by a combination of "detection", "apprehension"
and "prosecution". The investigation of a crime is an activity rather than a purpose. There are a number of purposes for which someone might want to investigate a crime: they might be benign, such as academic research, or not, such as the furtherance of a crime. The hon. Member for Ryedale went some way to acknowledge that point.
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