Examination of witnesses (Questions 600
- 614)
TUESDAY 7 APRIL 1998
THE RT
HON JACK
STRAW, MP,
THE LORD
WILLIAMS OF
MOSTYN, QC
AND MR
LEE HUGHES
600. On the work of the panel, have you
come close to deciding who might sit on that panel and how you
will go about selecting them?
(Mr Straw) No. What I am doing is raising the
issue about whether we are involved in that. I have been dealing
with other issues, Mr Tyrie, I have not been able to deal with
this in detail. There are a number of discussions which have taken
place with my officials and also with the Director General of
the Security Service. Things are not yet gelled. There is no argument,
by the way, either in the Office or with the Director General
that so far as possible the Security Service should make these
files available for historical research purposes when it is safe
to do so. It is not an issue, it is just a question of how we
do it.
601. Is it your intention that you or another
Minister should see every file or at least the name on every file
before it is brought up for recommendation by the panel for destruction?
(Mr Straw) I have already dealt with the issue
about any file on me.
602. Except your file.
(Mr Straw) Yes. My view, however, is that what
Ministers should do is lay down the policy and make it public
and that should then be operated by experts in the field. I think
the idea of having Ministers in the bowels of Thames House going
through these files on microfiche saying "throw that one
away" is risible. I think it is also slightly unconstitutional
as well. The criteria should be laid down and should be public
and then its application should be for officials. Obviously we
will have to have some check involved in it as well.
603. Have you inherited any precedents from
previous administrations on the destruction of files relating
to people who have been in prominent positions in public life?
(Mr Straw) As you will be aware, there are very
careful rules to protect previous administrations against disclosure
to current Ministers as to what previous administrations did or
did not do. I have seen nothing relating to this in this area
and I cannot speak for my predecessor.
604. You have not been given any advice
by officials that might lead you to find a way of seeking continuity
of policy in this area?
(Mr Straw) It has not arisen. There are informal
discussions, as you may be aware, with Ministers who have previously
been involved in having responsibility for the security and intelligence
agencies from time to time and I have availed myself of those
discussions but this issue has not come up.
605. Have any of your colleagues at any
time discussed this with you?
(Mr Straw) Sorry?
606. Have any of your fellow Members of
Parliament, perhaps those who might have files on them, discussed
this with you?
(Mr Straw) Yes, they have. If you are asking me
to name them I am not willing to do so.
607. No, I will not. But I would be interested
if you could tell me whether they are on the side of the interests
of history or privacy? That is, retention or destruction.
(Mr Straw) I cannot tell you that. I am not even
sure. I think that arose in one case but not in another.
608. Can you give me an idea of how many
of your colleagues have raised this with you?
(Mr Straw) I can give you an idea. It is a handful.
If you want I am happy to write to you.
609. Would you do that?
(Mr Straw) I shall only give you the numbers,
I shall not give you the names.
Mr Tyrie: No, of course
not, I quite understand.
Chairman
610. Before we finish there are a few questions
on the Data Protection Bill. I wonder whether you can hang on
for another five minutes, in which case you can all finish together,
which might be to the benefit of both yourselves and the Committee.
Both Ministers will be aware there are three Acts, Bills or White
Papers which we are considering in the Houses of Parliament almost
altogether, namely the Human Rights Bill, the Data Protection
Bill and the Freedom of Information White Paper. We have been
concerned as a Committee with alignment, whether thought was given
as to how to ensure that the general public, the ordinary man
or woman on the Clapham omnibus, will be able to make maximum
benefit of the three Bills, assuming that the Freedom of Information
White Paper becomes a Bill, for instance in ensuring that the
charging system for use of them is roughly the same thing. If
it is £10 for the Data Protection Bill it should be £10
for the use of Freedom of Information when that becomes a Bill
or an Act. If there is a gateway to get in, do you have to use
an MP filter or not? In all of these things we think, or we are
inclined to think, that there should be a similar gateway, similar
access provisions, similar charging provisions, and possibly even
one point of entry as well so that people do not get confused
as to whether they should exercise their rights through data protection,
human rights or freedom of information. What thought has been
given by any of the responsible Ministers on the issue of alignment?
(Lord Williams of Mostyn) As you know, the first
Home Office flagship Bill was the Human Rights Bill and that is
the general conceptual scheme. On the Data Protection Bill we
were under the constraints of time because the Directive of 1995
requires us to have a workable regime in place by October of this
year. There were constraints of time. Obviously there has been
the interlocking that we have discussed in the Home Office and
with colleagues in other departments. I do not think necessarily
that you need the same gateway because data protection really
is an individual right about individual information which may
or may not be accurate, may or may not be properly processed,
may or may not be properly disseminated elsewhere. That is an
individual question. Freedom of information is a different concept
altogether. I think there is a perfectly legitimate case to be
made, whether it is persuasive in the end, that you should have
a different charging regime, for instance, in respect of an individual
who is concerned about his or her private data as opposed to someone
who has got a general inquiry on freedom of information. I do
not think, in fact, there is a difficulty there about having different
regimes. I do not think the public really are quite that bemused.
I do not myself think that in data protection terms you need to
go through an MP, in fact quite the opposite.
611. If I can use a politically incorrect
expression: one man's freedom of information could be another
man's infringed right of privacy. I think it is fair to say that
the Data Protection Bill and the Human Rights Bill are privacy
oriented, not exclusively but they are inclined towards attempts
to prevent the oppressive state messing about with the individual
in an oppressive way, whereas the Freedom of Information Bill,
including the rights to access about third parties, can be seen
to be in conflict with the privacy orientation of the Human Rights
Bill and certainly the privacy orientation very much so of the
Data Protection Bill. How do we ensure that they are workable
together when all three measures have been implemented as Acts
of Parliament?
(Lord Williams of Mostyn) There is a tension there
but it is the same sort of tension that Mr Ruffley was describing
when he was speaking to the Home Secretary by way of question,
namely how do you balance individual privacy, or perhaps consequential
privacy for their relatives when they themselves are dead, and
the very important principle and virtue for which Mr Ruffley and
the Home Secretary contended, namely the great importance in the
nation's life of historical records? There are tensions here but
they are not irreconcilable. The Human Rights Bill is not privacy
oriented. We have to think of Article 10 because for the first
time in a statute in our country freedom of expression is given
its proper weight. That never has been before. We have done the
same in Clause 31 of the Data Protection Bill, we have stressed
the public importance of——
612. I think I accept all that. Have you
read the evidence given by the Data Protection Registrar to this
Committee that one of the ways of resolving that tension between
the protection of privacy and the access to increasing freedom
of information, including freedom of information about third parties,
is to have either a single ombudsman who covers the whole issue,
which is a device used by many Commonwealth regimes, or to have
a college of ombudsman or whatever which actually brings all the
threads together so that the resolution of the tension can take
place within the ombudsman type service, if you like?
(Lord Williams of Mostyn) I have looked at her
evidence and it is something that obviously we have discussed
over the months. We have not been in perfect agreement always
with her solutions. We are still considering her suggestion whether
there should be a single commissioner, however you designate him
or her, to be in charge of freedom of information and data protection.
There is a virtue there, certainly a virtue of simplicity. We
are still discussing that.
613. On an issue which is slightly related
to law enforcement and some of the other questions, much of the
Government's view is that this will not be a direct Home Office
responsibility but I am pretty sure the Home Office will have
given advice to both the Treasury as well as regards to the Inland
Revenue functions which Mr Shepherd was raising earlier and on
the issue of Social Security and so on where the Government is
now seeking in its drive against, say, benefit fraud, tax fraud,
and so on, and there are very considerable civil liberties implications
for this in the exchange of information between local authorities,
housing benefit departments, the tax people in the Inland Revenue,
Social Security and so on. What is the provision there, which
the Data Protection Registrar also was concerned about, that she
must have some grip on the way that information is exchanged,
not in order to obstruct the pursuit quite properly of benefit
fraud, tax fraud and so on, but in order to make sure that the
state does not become oppressive towards the individual? What
is the advice you are giving the actual operational departments,
such as Social Security and the Inland Revenue, on this issue?
(Lord Williams of Mostyn) First of all I think
we start from the common basis, to turn your phrase round, that
one man's tax fraud is another man's increased tax burden or less
benefits. I do not think there is any doubt in principle that
there ought to be, subject to appropriate safeguards, opportunity
to obtain this information. What we are looking to her for is
guidelines and advice that she will be happy with to safeguard
the individual's rights about the mining and matching of information
bearing in mind the overall public context of the importance of
rooting out tax fraud and benefit fraud. It is not easy by any
means because the difficult tension which you identified is exacerbated
I think when you are talking about the privacy of benefit claims
and records.
614. Thank you. I think we have brought
our question session this morning to a close, if nobody else has
any burning issues. I am sorry if we are going to make you slightly
late for your next engagement but I am pleased that you have been
able to stay until the end. I think if I can try and sum up this
morning's session. It is very briefly to make the point that there
were views expressed previously, and there have been views expressed
to you this morning, which do indicate that there is a danger
of Home Office overkill on some of the issues and that the reason
for us quoting analogies from other regimes where there are exemptions
which are testable as distinct from blanket exclusions is not
in order to slavishly follow other countries' examples but simply
in order to show that certain things can be done when there might
be a view from the Home Office that it is much safer to simply
leave things out altogether through a blanket exclusion. Obviously
we are interested in trying to reduce the number of untestable
blanket exclusions to the minimum that is compatible with the
proper operation of Government.
(Mr Straw) Thank you, Mr Chairman. Can I just
say as my last word that I think you will find that the harm tests
in other jurisdictions are easier to pass than the substantial
harm test in the White Paper.
Chairman: Thank you
very much.
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