Examination of witnesses (Questions 287 - 299)
TUESDAY 3 MARCH 1998
THE RT
HON THE
LORD IRVINE
OF LAIRG,
QC and MRS
SARAH TYACKE
Chairman
287. Good morning, Lord Chancellor.
(Lord Irvine of Lairg) Good morning.
288. If you would like to introduce your colleague, then
we will start the questioning - or you may have an opening statement,
I am not sure.
(Lord Irvine of Lairg) I have no opening statement
to make; I think, probably, it is better if the maximum length
of time is left for questioning. This is, of course, Sarah Tyacke,
who is the Keeper of the Public Record Office, from whom you have
heard before.
289. Let us go straight into the questioning, then. The
main purpose of us having you here this morning, and where I hope
you will be able to be helpful to the Committee, is because we
have received evidence from, amongst others, the Data Protection
Registrar that in the two Bills that we already have in front
of both Houses of Parliament - namely, the Data Protection Bill,
which is in your House, and the Human Rights Bill, which is now
in front of our House - and also the Freedom of Information White
Paper, which has currently almost become a draft Bill, there is
the potential for confusion. The confusion is over how to reconcile
the right to privacy and the right to freedom of information.
It does seem critical to us, therefore, in the light of the evidence
that we have received, and in the light of you having chaired
many of the Cabinet Sub-Committees, to ask if you could possibly
try to help us on this issue. To what degree can the two existing
Bills that are currently being considered, and the Freedom of
Information Bill which is the main purpose of our inquiry, all
reconcile in a way that can dovetail together the right to privacy
and the right to freedom of information?
(Lord Irvine of Lairg) First of all, I think what
I should emphasise to you is the limited nature of my responsibility.
You appreciate that I chair a range of Cabinet Committees concerned
with constitutional change - in particular the Devolution one
and the two that you may be focusing on today, Freedom of Information
and the Human Rights Bill. I do not have Ministerial responsibility
for any of these; Ministerial responsibility for Devolution (I
appreciate we are not talking about that today) lies with the
Secretaries of State for Scotland and Wales respectively, and
Ministerial responsibility for the Human Rights Bill lies with
the Home Secretary Jack Straw.
290. But you did lead on that in the other House?
(Lord Irvine of Lairg) Yes, certainly I took the
Human Rights Bill through its House of Lords stages, but I am
not the Minister responsible for the Bill or for the development
of policy. The team of civil servants who worked with me in connection
with the taking of that Bill through its House of Lords stages
were Home Office civil servants - which makes the point.
Mr Tyrie
291. You would feel bound by collective responsibility,
though, would you not?
(Lord Irvine of Lairg) Absolutely, of course.
292. You would be able to speak for the Government on
these issues.
(Lord Irvine of Lairg) What I am basically trying
to do is to explain to you that the Minister with overriding responsibility,
for example, for carrying forward the Human Rights Bill is Jack
Straw, and it is David Clark, the Chancellor of the Duchy of Lancaster,
who is responsible for the Freedom of Information Bill. I have
no responsibility whatsoever for the Data Protection Bill and
have not been concerned with any of its Parliamentary stages.
However, I am very, very happy to give you as much assistance
as I can, but arising exclusively out of Chairmanship of Cabinet
Committees and without Ministerial responsibility. Basically,
my responsibility was to get basic policy to bed through the Committees.
It is intended that the inter-connections between these three
Bills - the linkages - be identified by the Committees so that
a harmonious - -
Chairman
293. By your Cabinet Sub-Committees?
(Lord Irvine of Lairg) Sub-Committees, yes, of
course - reporting to an over-arching constitutional committee.
The important thing, I think, is that the Human Rights Bill represents
a floor of rights; it does not represent a maximum of rights,
it is a floor of rights beneath which people should not fall.
These are minimum rights. However, there is nothing in the Human
Rights Bill which prevents the freedoms and rights of individuals
being enhanced above that floor. That is exactly what the Freedom
of Information Bill does. Of course, it is necessary to see that
the Freedom of Information Bill is compatible with the Human Rights
Bill. The Human Rights Bill itself provides that from now on in
- or, more accurately, when the Human Rights Bill passes into
law - the responsible Minister must ensure that the Bill that
he is presenting to the House of Commons is compatible with the
Human Rights Bill. So I think the first answer to your question
is that when the Freedom of Information Bill eventually emerges
- and we have not gone beyond White Paper stage yet, a good deal
of thinking is going into the drafting of that Bill - the Minister,
David Clark, will have to say to Parliament either that it is
or is not, in his judgment, compatible with the Human Rights Bill.
Obviously, his judgment will be that it is compatible, and he
will explain why. If there are any doubts or reservations in Parliament
as to the compatibility of the Freedom of Information Bill with
the Human Rights Bill, then that has to be explored in Parliament.
As far as the data protection legislation is concerned, that arises
out of a European Union Directive which has to be implemented.
Clause 31 of that Bill was specifically fashioned by the Home
Secretary so as to ensure that it was compatible with the other
pieces of legislation. So if you are specifically concerned with,
let us say, freedom of expression - the media, or that sort of
thing - then the aim of the Human Rights Bill is to give people
access, in our domestic courts, to the rights that they already
enjoy at Strasbourg. These include Article 10, which is the right
to freedom of expression, and Article 8, the right to respect
for family and private life. In practice, as I have been at pains
to spell out in debates in the House of Lords, the convention
has been used in Strasbourg to uphold freedom of the press against
efforts by the State to restrict it, and there are many examples
of that - The Sunday Times, Spy Catcher, Tolstoy etc. The
Human Rights Bill will require the courts to take account of the
Strasbourg case law, including the judgments of the Strasbourg
courts, and that will strengthen rather than weaken the freedom
of the press because of the strong case law developed at Strasbourg
which underscores the importance of free expression. I think it
is worth citing the Spy Catcher case, where the European
courts said that "The dangers inherent in prior restraints
are such that they call for the most careful scrutiny on the part
of the Court. This is especially so as far as the press is concerned,
for the news is a perishable commodity and to delay its publication
even for a short period may well deprive it of all its value and
interest."
294. Are you dissenting from my statement that potentially
having these two existing Bills - that is the Data Protection
and the Human Rights Bills - in front of the two Houses, and the
almost draft Bill (when we get it) on Freedom of Information,
all have a central bearing on this issue of having to reconcile
the right to privacy with the rights of freedom of information?
(Lord Irvine of Lairg) No, I entirely agree that
a central purpose of those Bills is to do that. What I was about
to say was that the Home Secretary, in relation to data protection,
fashioned Clause 31 and was designed to do just that. In relation
to data protection, what is insisted upon, really, is that the
courts must have particular regard to freedom of expression as
having very high value and, also, they will be required to consider
other factors, such as compliance with the press industry's code
of practice. The Home Secretary, at second reading of the Human
Rights Bill in the House of Commons, announced that he proposed
an amendment to the Human Rights Bill on exactly the same lines,
and that is designed to bring harmony between the two Bills. What
it does is focus attention on the predominant high value that
our courts traditionally give to freedom of the press - it makes
it statutory. What I think has also been welcome to the Press
Complaints Commission is that it includes a mandatory consideration
for the courts to have regard to the extent of compliance with
the self-regulatory code of the Press Complaints Commission. The
short answer is I do not see any incompatibility. That there is
a risk of incompatibility, of course, and that that is something
that must be addressed, I well see.
295. Was your having chaired the various Cabinet Sub-Committees
a recognition that there was a danger that when these three Bills
become Acts and have to be interpreted there was a possible problem
arising if they did not dovetail?
(Lord Irvine of Lairg) Absolutely. I think the
Prime Minister is on record as having said that he saw a great
deal of merit in having the Chairmanship of these Committees in
a single pair of hands, precisely for the reason that you have
to get the interconnections and the linkages right, and you have
got to - hopefully - see them all. Mind you, the Parliamentary
process exists down the line - -
296. Indeed. That is one of the reasons why we are in
existence as well.
(Lord Irvine of Lairg) Exactly. However, of course,
it is the duty of the Committee, as far as it can, to see in advance
these interconnections and to see that what emerges is a consistent
whole - bearing in mind that the Human Rights Bill derives out
of a convention that we ratified 50 years ago, bearing in mind
that data protection arises out of a European Directive by which
we are bound, and that freedom of information is, if you like,
home grown. So they have different ancestors, but you must try
and get them fit and square, certainly.
297. Can I just give you an example of one of the problems
that is, possibly, something that we foresee? In the Freedom of
Information White Paper, civil servants are treated as a special
category in being denied the right of access to their own personnel
records. That is, perhaps, one of the penalties of being a civil
servant - you do not have the rights as other people will have
of access to personnel files. However, under the data protection
legislation, it looks as though civil servants will be able to
apply through the Data Protection Bill, as presently drafted,
for personnel records which will be denied them under the Freedom
of Information Bill. That is a possible area - if we understand
it correctly - of an absence of dovetailing between the different
measures, albeit that they are at different stages.
(Lord Irvine of Lairg) I am not sure that you
are right, but, as I say, I am not an expert on the Data Protection
Bill, for the reason that I have given. Just to deal with it in
stages, personnel records cannot be accessed by public servants
under the White Paper on freedom of information. If they could
be, of course, that would put public employees at an advantage
over private employees who, generally, do not have a right of
access to their personal records either, so there is no incompatibility,
in my view, between the position excluding access to personal
records on the part of public employees, by comparison with any
actual access rights enjoyed by employees in the private sector.
Again, I am willing to have it demonstrated that I am wrong, but
I think, in relation to data protection, what is contemplated
is not personnel records but information held by official bodies
about individuals - that is to say, something different from personnel
records or job files. I do not think there is an incompatibility,
but if you write and tell me I am wrong then I will acknowledge
it - but I do not think I am.
298. We may want to take that further, certainly. As
regards, for instance, the alignment of charging regimes for access
to information under the Data Protection Bill and under the Freedom
of Information Bill, I think it is accepted in the Freedom of
Information White Paper that it would not make sense at all if
you had different charges, for instance, for trying to get the
same information via data protection or under freedom of information.
(Lord Irvine of Lairg) No, the primary proposition
is £10.
299. Absolutely. On the other hand, do you accept that
if it is right to try and align the charging regimes and the time
limits laid out, you should also align the exemptions and exclusions;
that they should, broadly speaking, also have the same thrust?
Otherwise, it is going to lead to what we have generally had put
to us by the Data Protection Registrar and others that you could
have a "bugger's muddle" arising from different exclusions
and exemptions. So the general public, in wanting to make use
of these three Bills, as distinct from professional lobbyists
or lawyers, or whatever, will not know which route to take in
order to maximise the freedom of information rights that they
are having conferred on them by the different bills, when they
eventually pass into law.
(Lord Irvine of Lairg) That is certainly something
that will be looked at as the freedom of information legislation
is carried forward. I readily accept that the freedom of information
legislation was home grown, and was a system of freedom of information
that was developed with a view to accessing official information
from government departments and arms of the State more broadly
construed. On the other hand, data protection addresses a different
subject matter; that is, information held on computer and by particular
means analogous to the computer-based storage of information.
|
