Examination of witnesses (Questions 300 - 319)
TUESDAY 3 MARCH 1998
THE RT
HON THE
LORD IRVINE
OF LAIRG,
QC and MRS
SARAH TYACKE
300. "Structured files" they call them.
(Lord Irvine of Lairg) Yes. The primary object
of the Data Protection Directive is to enable individuals to satisfy
themselves that what is stored about them on computers - across
the board, as it were - and which is used for all manner of reasons
(for example, assessing credit-worthiness) is actually accurate.
It gives them an opportunity to access information about themselves
as individuals and provides a regime which enables them to correct
mis-information. That, I think, is actually a different subject
matter from the subject matter of the Freedom of Information Act
which allows people to access government information, not merely
information about themselves but information in which, for whatever
reason, they have an interest - citizens interested in good government.
Journalists will be able to make extensive use of freedom of information
legislation to assist them in in-depth analysis and reporting.
So, in practice, the subject matters are different.
301. Would you accept, though, that in various Commonwealth
countries which have introduced freedom of information legislation
and which also have data protection legislation, up to 75 per
cent of the requests that are made to exercise rights conferred
under freedom of information legislation are what are called "subject
access rights" - that is, demands to see personal files:
Benefits Agency, Immigration Department and whatever may be the
equivalent of the Child Support Agency in Australia? It is in
that area of information that people exercise the right to see,
under freedom of information legislation, in three-quarters of
cases.
(Lord Irvine of Lairg) I would not dispute that
at all. That is extremely important for individuals. All I would
say is you should not just by measuring 75/25 - if that is the
correct figure - diminish the significance of the 25 per cent.
A very important use of freedom of information made available
under the statute will be by scholars, researchers, writers and
journalists.
302. Politicians?
(Lord Irvine of Lairg) And politicians, I do not
doubt.
303. One last question: Did you, in your Cabinet Sub-Committee
deliberations, and in the light of what you have said so far -
I think in agreeing with me about the potential confusion over
the best routes for the general public to exercise, and to prevent
confusion between the three different Bills and what rights they
confer - did you give any thought to the possible advantages of
having a merged Ombudsman service or Commissioner service - Ombudsman
College, as you might call it - whereby instead of having a Data
Protection Commissioner or Registrar and an Ombudsman who might
be able to assist, or a Freedom of Information Commissioner, they
could be merged into one either collegiate whole or one person?
(Lord Irvine of Lairg) I have heard of that suggestion
and we did consider it, yes. These suggestions are very often
put forward in the name of symmetry, as if symmetry is a good
thing in itself. I actually do not think so. I think that the
Freedom of Information Commissioner (and I am sure you will ask
me questions of detail about him) is absolutely inspired, and
I think it is so much better that he be an independent officer
and so much better to keep the courts out of it, substantially,
but with a backstop to judicial review. It is so much more appropriate
for the Information Commissioner to be able to get his nose into
government departments and build up knowledge about Whitehall
and develop principles, and so on. The short answer is I do think
that the function of freedom of information legislation, across
the whole range of government, is characteristically different
from the limited ambit of data protection.
Miss Johnson
304. I would like to pursue a little bit more the line
of questioning that you have already been answering. You said
that there was not any overlap between data protection and freedom
of information.
(Lord Irvine of Lairg) I have not said that, but
I think they are characteristically different subject matters.
They have different origins. Freedom of information is addressing
all the information that is held across the whole of the government
machine.
305. Yes. The point, I think, is that we could, presumably,
have tackled all the aspects of privacy and personal information
by looking at the Human Rights Bill and the Data Protection Bill
rather than leaving any of it to be dealt with under Freedom of
Information. There was, presumably, a decision that we wanted
to carry on and have the overlaps, which the Chairman has already
outlined to you, that there might well be on, for example, civil
servants' personnel records.
(Lord Irvine of Lairg) I agree with that, and
it is a consequence of what I have said, but nobody has put to
me any troubling overlap - any problem. I am not aware of a problem.
306. What will you do if you do think there is a problem?
Supposing we are able to demonstrate to you that there is a problem?
(Lord Irvine of Lairg) In that case one would
have to look very, very closely at the Freedom of Information
Bill - if that was the correct vehicle - or if the Data Protection
Bill was the correct vehicle, for ironing out any problem. However,
you are tending to suppose that there will be problems without
being able to focus attention on any.
307. We believe, from the evidence we have had that there
is a potential problem, yes, which could easily arise - of which
the records are one example. It makes a nonsense that we will
have one bit of legislation that says "People shall not have
access to these things" and yet another bit of legislation
in which they would clearly be able to gain access to these things.
(Lord Irvine of Lairg) I do not know. One can
see the point that you cannot see your own personnel records.
You might agree with it or disagree with it, and you might say
that you should be entitled to see your own personnel records,
but if freedom of information legislation entitled public employees
to see their own personnel records that would put them at an advantage
over employees in the private sector, and it would be allied to
what you say is the inconsistency. The Data Protection Directive
is wished upon us by Europe, and it is focusing not on personnel
records but on material held in computers which may be accurate
or inaccurate. That seems to me to be a sufficient answer.
308. From what you have said I draw one conclusion as
a question, really. The conclusion is that you do not see any
conflict and have not been aware of any potential conflict up
until this point.
(Lord Irvine of Lairg) No, but I am very, very
willing to listen, if there is one. If there is a serious conflict
nobody would wish more than me to find a way through.
309. That was my question: you would propose to address
it if we convinced you of the fact that there is one?
(Lord Irvine of Lairg) Absolutely.
310. That is very helpful.
(Lord Irvine of Lairg) I certainly do not think
these White Papers or these pieces of draft legislation are jewels
which are beyond improvement - quite the contrary. These are very,
very difficult areas.
311. Can I move on to a very different question in relation
to freedom of information and the process of appointment of judges?
The quality of our judiciary has been of some considerable concern
to the public in recent years, with some questions about the quality
of some individuals. Indeed, I think there was a recent resignation
- not a common occurrence.
(Lord Irvine of Lairg) No, not a common occurrence.
312. However, there are a number of judges who have attracted
quite considerable media attention because of their performance
and their pronouncements. Obviously, the appointment of such people
is of considerable public interest. Do you envisage that the process
of appointments will be exempt under freedom of information, or
will the legislation, in your view, lead to greater transparency
and a more publicly accountable process?
(Lord Irvine of Lairg) One thing I would like
to say, on my own behalf, is that, as you probably know, I have
introduced advertisements for appointment to the High Court Bench
for the first time - which, I think you will agree, is a very
good thing. I do not think that people should wait to be invited;
I think the only way that people can be assured that their legitimate
claims are being considered is by having a right to apply. I have
introduced that, and that never existed before. I have said there
will be an annual report to Parliament on the judicial appointments
system, and the first report will be in respect of 1998/99. I
am also exploring the idea, which I personally favour, of an Ombudsman
to investigate complaints that the system has not properly preferred
a particular individual. I have to say, however, that information
about individual candidates for, or holders of, judicial office
will not be subject to disclosure under the Act[1].
The reason is because the system cannot work without a vast amount
of information being given by individuals in confidence. There
is much that has impressed me and much that has not impressed
me since 2 May, but one thing that has actually impressed me is
the quality of the consultation system that exists in my department
for assessing the ability and performance of individuals over
a very, very long period of time - peer assessment. It is actually
very good. You simply would not get that frank assessment unless
on a confidential basis. Therefore, it will be covered by confidence,
which is a ground for non-disclosure, when the legislation comes
forward. I may change it, however. If, for example, there are,
as you occasionally get, allegations of misconduct against an
individual, that he or she has behaved wrongly, or unprofessionally,
I have said I will pay no attention to these unless they are properly
particularised, unless they are drawn to the individual's attention
and he, or she, is given an opportunity to comment. If the person
who alleges misconduct is not willing to waive confidence for
that purpose, then the allegation will be disregarded. However,
I cannot apply that, in my view, to things that are different
from allegations of misconduct - which is assessments of the quality
of the individual. I just do not think that judges and senior
members of the Bar - Chairman of the Bar - Heather Hallett this
year - would give frank assessments unless on a confidential basis.
313. You referred to a massive amount of information
available.
(Lord Irvine of Lairg) Massive.
314. Perhaps you could enlighten us, at least, as to
what kind of information is used in this process at the moment,
because many of us will have no idea - as the public will have
no idea.
(Lord Irvine of Lairg) I will be absolutely delighted.
One of the reasons I intend to have an annual report to Parliament
is so that this is made absolutely clear. I am happy to tell you
here and now. When somebody is considered to be an Assistant Recorder
or somebody is considered for elevation to Silk (Queen's Counsel),
which is a very important career step, then there is a remarkably
wide consultation community. A section of my department, called
"Judicial Appointments" - a considerable number of civil
servants - devote an enormous amount of time (in fact, I am sure
it is a very costly exercise) in going round consultees. The consultees
are the judges and senior members of the profession who are most
likely to be able to offer an informed opinion as to the quality
of the individual and the suitability of the individual for becoming
an Assistant Recorder, who will sit in the Crown Court in an important
criminal jurisdiction, Queen's Counsel and then, ultimately, a
Circuit Judge/High Court Judge.
315. Are there sets of criteria against which these people
are marked?
(Lord Irvine of Lairg) Oh yes, certainly.
316. Is that publicly available?
(Lord Irvine of Lairg) Yes. There is a document
in relation to Silks, and there are application forms which do
set it out. Hearing what you say, I think it would be very, very
useful - and perhaps earlier than the first annual report to Parliament
- to set out very clearly what the criteria are. Obviously the
criteria are what you would expect: their legal ability, legal
experience, knowledge of the law, integrity, and capacity as an
advocate - in particular, if you are talking about Queen's Counsel.
In addition, of course, because of the interview system, you have
to have regard to whether individuals have proper judicial attitudes,
are capable of being impartial judges and are people without prejudice.
Mr Hancock
317. The suggestion that you are going to allow people
to put themselves forward for these positions is very interesting,
and I would also be interested to know how you would explain the
fact that you would have to turn some of those people down. How
would they then be able to exercise their right to fully understand
why they have been turned down and have not come up to whoever's
judgment?
(Lord Irvine of Lairg) That is a perfectly fair
question, and it must be very, very worrying for people when they
are turned down. They wonder why - of course. They can come along
and see officials in my department (and this quite often happens)
who will give them as much information as possible, consistent
with confidentiality of sources, to tell them. Sometimes this
is for the good of an individual. For example, supposing an individual
is not thought of as likely to be a very strong advocate as a
Queen's Counsel and, therefore, the judgment of his peers is contrary
- -
318. I would rather concentrate on judges.
(Lord Irvine of Lairg) I am - I really am. Let
us suppose that the judgment of an individual is that he is not
suitable to be a QC but that he is suited to be a Circuit Judge
- and you get some people who are not great advocates but who
are perfectly good judges (and may be better judges than some
great advocates). It is very important that individuals, if that
is the assessment of them, should know that. It is well-known
in the legal community that individuals can come along to the
Department - they do regularly - and see officials in the division
that I am talking about, who give them as frank an assessment
as they properly can of their strengths and their weaknesses and
whether they think it profitable to apply in another year, and
so on. As much information is given to individuals on their personal
assessment as is consistent with maintaining the confidentiality
of sources.
319. That is fine for a judge. Let us turn to freedom
of information. Let us talk about someone who has sought British
Citizenship. They get turned down, and ruled out and they are
not around to have that personal interview with the people concerned
and they are not given the rights. How do you square the fact
that judges get this opportunity of personal visitation but somebody
who has sought to become a British Citizen is being denied the
access to that sort of information?
(Lord Irvine of Lairg) We started off this discussion
on the basis of people who wanted to be judges or wanted to be
Queen's Counsel who were not being fairly dealt with. I have now
persuaded you, perhaps, that they are being fairly dealt with
and you are changing the goalposts and saying "Why is this
good enough for judges - - "
1
See Appendix 1, p. 103. Back
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