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The Minister of State, Department of Social Security (Mr. Jeff Rooker): I hope and believe that I may reassure the hon. Lady on the matter without accepting the amendment. It is almost axiomatic that we would not act unreasonably. [Interruption.] Well, the Government have a duty to act reasonably in all cases and if we do not, my learned friends will be informed of the matter, perhaps by outside bodies. Local authorities are also under a duty to act reasonably, as is the Secretary of State, wherever there is a power of discretion. That principle is well established and would apply to the provision.
Paragraph 4.6 of the ``Draft Code of Practice on Obtaining Information'' states:
``If a reasonable excuse for not providing the information has been given, the Authorised Officer must not insist on obtaining the information.''
That is unambiguous, and examples of industrial action or a computer breakdown are given. We have already said that organisations will not have to set up new software and information systems simply to meet the Bill's demands. Powers are limited to organisations that already provide third parties with electronic access to records. In those circumstances, I cannot see how it would be unreasonable to make a request. If the request were unreasonable, because it transgressed the code of practice and the legal rules that usually apply to the Government, it would be stopped, as the threat of judicial review would be hanging over Departments, which they do not enjoy because it brings them into disrepute and costs money.
Mrs. Lait: I welcome the Minister's reassurances, and I hope that he can also reassure BT and Orange that they will not have to invest in upgrading their systems to meet the demands. Therefore, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 ordered to stand part of the Bill.
Clause 3
Code of practice about use of information powers
Mrs. Lait: I beg to move amendment No. 39, in page 7, line 10, after `shall', insert `by order'.
The Chairman: With this we may discuss amendment No. 40, in page 7, line 26, leave out subsection (4) and insert—
`(4) An order under this paragraph shall be made by statutory instrument and shall not be made unless a draft has been laid before and approved by each House of Parliament'.
Mrs. Lait: Once the code of practice is agreed, all proposed changes to it should be debated under the affirmative resolution procedure in the House of Commons, and subsequent changes should also fall under that procedure. The debate would be brief if the Under-Secretary were to nod her head in agreement to that. We have tabled the amendment because the Bill is not clear about the matter.
The code of practice is crucial, as it addresses contentious matters that could lead to litigation—although I do not wish to imply that Ministers have given reassurances in bad faith. The Minister of State referred to learned friends, and it is important to be aware that many brilliant minds are devoted to generating court cases from such matters. As the details of the code of practice are controversial, the House of Commons should debate any proposed changes to it under the affirmative procedure. Amendments to it could result from court proceedings, although I would prefer them to develop due to custom and practice, as systems are improved and problems are overcome.
Liberty and organisations that usually disagree with its point of view have expressed similar opinions about the Bill and the code of practice. That highlights why it is important that both Houses of Parliament should be able easily to debate them. I hope that the consultation on the code of practice will continue, as there have been oversights. For instance, with regard to the gathering of information, the problem of fishing expeditions arose. Efforts have been made to address that. In relation to the utility industries, the wording of the House of Commons draft code of practice is less open to fishing expeditions than was the wording of the House of Lords version. Chapter 2.3.e of the Commons code of practice, refers to
``Customer details from a utility company''.
However, on page 18, chapter 4.33.c mentions
``Utilities where we are obtaining bulk information'',
and ``bulk information'' allows for the kind of fishing expedition that worries me.
Angela Eagle: We dealt with this matter in passing in previous Committee sittings. The bulk exchange of information with utility companies is based on addresses, not individuals. As my right hon. Friend the Minister of State said, the intention is to look for evidence of abnormally low or high use of utilities' services. It is a search not on individual names but on addresses. When we have searched for them in that bulk manner, it will be up to the DSS to check names with addresses to check whether properties are being used as giro drops, or for another purpose. The Committee should know that the measure about searching for information does not imply a bulk exchange of names and addresses.
10.15 am
Mrs. Lait: I absolutely accept the assurances that the utilities will provide addresses rather than names. However, it is possible to match names and addresses simply by looking at the land register or the electoral register, which may be done by computer. Although fishing expeditions are officially frowned on, they remain possible under the code of practice and, owing to concerns about that point, we are keen that the House should debate the code of practice when it is finally agreed. We will discuss another group of amendments about the seniority of the authorised officers. That is another issue that will need to be resolved before the code of practice is published in its final form.
We shall want an affirmative resolution debate on the code of practice to ensure that all the issues that we have raised in Committee, on Report and Third Reading have been legitimately agreed to. The Government have been generous in amending the Bill to allow such a debate in the Lords. The easiest and most generous way in which they could deal with the matter would be to allow an affirmative resolution debate on the code of practice and any subsequent amendments.
Mr. Peter Atkinson: I seek from the Minister an illustration of how the bulk transfers of information would work. She referred to utility companies; does the DSS propose to hit whole cities and have a vast amount of information transferred on a regular basis? Is that something that could involve several utility companies providing power in a particular place, or does it work on individual addresses or streets, like a TV Licensing operation?
Angela Eagle: Amendments Nos. 39 and 40 would make the draft code of practice subject to affirmative parliamentary approval before it could come into force. This is a familiar debate. I must tell the hon. Member for Beckenham (Mrs. Lait), however, that the affirmative parliamentary procedure would not necessarily prevent court action from being taken. I am not sure that the lawyers who watch such matters closely would necessarily regard an affirmative parliamentary debate as a reason why they should not try their hand in the courts, but time will tell.
When we were asked to provide a statutory code of practice in the other place, we moved our position considerably in response, as the hon. Lady generously acknowledged. We produced the draft code and are already, in an informal way, consulting on that. If Parliament decides to enact the Bill, we shall hold a formal consultation, which we anticipate will take three months, on the contents of the draft code.
Clause 3 states that the code
``shall be admissible in evidence in any civil or criminal proceedings.''
That is an important provision, which gives the code a lot of clout. Under the clause, the Secretary of State is required to consult on the draft code of practice and revisions to it. He must consider all representations made to him on the draft, from all interested parties. We want to create a reasonable and workable code. The code is intended not to be draconian but to present more detail than can be provided sensibly in primary or secondary legislation about how the provisions work. It also provides, as do many other codes of practice, the day-to-day detail that enables citizens and the organisations or authorities involved to know in more detail what will be required of them, when it will be required, and how it will be required.
The opportunities to comment on the information-gathering provisions and how they will be operated are already substantial. An affirmative procedure, which creates inflexibilities of its own, would not add to that. Many other codes of practice are laid before the House under the negative procedure. That does not prevent Parliament commenting on or debating such codes of practice. If Parliament wants to debate a draft code of practice, parliamentary time can be made available in a variety of ways. I am not saying that there should not be parliamentary debate on such matters. The code, and the provisions in the Bill on the consultation and agreement that must be sought before the powers can be commenced, are adequate and substantial.
I shall give the hon. Member for Beckenham a couple of examples of codes of practice that have been laid before the House in the same way. Neither the code that accompanies the Terrorism Act 2000 nor the code that accompanies the Immigration and Asylum Act 1999 requires Parliament to approve them using the affirmative procedure, although there is provision for consultation in relation to both. I ask the hon. Lady to accept that that is adequate. I am not sure whether she will do so; we shall find out in a minute.
I want to comment on a couple of the hon. Lady's observations on the code of practice, which may be helpful to the Committee. Her first example, which is from page 6 of the code, was about what types of information will be requested. That refers to clause 1, which deals with information and how it will be requested. Her second example, which is on page 18 of the code, refers to clause 4 on payment for information. The hon. Lady is not comparing like with like. Clause 4 is about how we will pay for information that we require, whereas clause 1 is about the types of information that we will request. Therefore, some of her comparisons were not analogous.
I hope that the hon. Lady will accept my assurance that we are not trying to sneak anything into the code hoping that no one will notice it. There will be many opportunities to have a substantial and meaningful consultation on the code, without adopting the affirmative procedure. We cannot commence the powers in the Bill without having the code consulted and agreed on.
I hope that the hon. Lady will accept that the arrangements, which we made following strong representations in the other place, are more than adequate. They are set out clearly in clause 3 and are analogous to many other codes of practice, which are changed and updated by Government, without any affirmative parliamentary procedure, in consultation with many of the organisations on which they have a bearing. I hope that she will recognise that the Government have made a serious and substantial attempt to answer some worries that first surfaced in the other place. I also hope that she will accept that we are not trying to sneak anything past any of the organisations that have been involved in drawing the code of practice, and that we have provided an adequate and substantial response to those criticisms.
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