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To withdraw immediately.

Reasons for disagreeing to certain Lords amendments reported, and agreed to; to be communicated to the Lords.

24 Nov 2008 : Column 573

Data Protection and Freedom of Information

Queen’s recommendation signified.

8.45 pm

The Secretary of State for Justice and Lord Chancellor (Mr. Jack Straw): I beg to move,

The position and role of Information Commissioner arise out of two sets of decisions by this House and the other place: the Data Protection Acts of 1984 and 1998 and the Freedom of Information Act 2000. Even when the post was simply concerned with data protection, its duties could involve a conflict with the Government of the day, since the commissioner acts on behalf of the individual to protect personal information held on those individuals, not least by Government. Still more, there is a fundamental conflict of interest in the commissioner’s role under the Freedom of Information Act, which this House and the other place passed after much debate in 1999 and 2000—and, indeed, strengthened as a result of pressure from both sides of the House and in both Houses, including in respect of making Parliament subject to the Act. That Act involves enforcing the public’s right to have access to information against public authorities and the Government where, by definition, the issue will only land on the desk of the Information Commissioner if the public authority has refused to provide the information requested.

The role of the commissioner, therefore, is one that requires great independence and integrity, legal facility and an ability to make difficult and balanced judgments. I think I speak for the whole House in expressing my gratitude to Richard Thomas for the way he has conducted himself in this post through the birth pangs of the implementation of the Freedom of Information Act. He showed that he has those qualities of independence, integrity, legal facility and an ability to make difficult and balanced judgments.

The Government have carefully considered the commissioner’s salary in the light of the changes to his role and responsibilities since it was last reviewed in March 2001, shortly after the Freedom of Information Act was formally passed by this House and received Royal Assent, but a full four years before it came into force. The extraordinary prevailing economic conditions quite properly place constraints on public sector pay settlements. However, the Government position is that the particular circumstances of the Information Commissioner’s case warrant the increase set out.

There are three reasons for that. First, the world has changed considerably since the data protection registrar was originally appointed in 1984 to safeguard personal information. There is no need to explain to the House the astonishing revolution in the collection and dissemination of personal information of all kinds as a result of the IT and internet revolution. Secondly, the implementation of the Freedom of Information Act 2000 effectively doubled the range of the commissioner’s responsibilities, combining those for data protection and freedom of information in one job description.

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Recently, there have been two further sets of changes, both of which add to the commissioner’s responsibilities. First, as all Members are aware, there has been great public and parliamentary concern about data security within both the public and private sectors. This has led to a great deal more work for the Information Commissioner and, so far as Government are concerned, it has led to us proposing to the commissioner—which he has acceded to—spot checks of Government Departments and the production by him of an annual surveillance report.

Secondly, and more fundamentally, on 25 October 2007 my right hon. Friend the Prime Minister announced that he had asked Professor Mark Walport, director of the Wellcome Trust, and Mr. Thomas, the Information Commissioner, to undertake a major review of data sharing in the public and private sectors. The report of the review was published on 11 July 2008 and, in a written ministerial statement today, I have announced the Government’s response to it. The consequence is that the commissioner will be taking on further responsibilities, including greater inspection powers to ensure data protection compliance, powers to demand information necessary to assess compliance, a statutory duty to publish a data sharing code of practice, and a new tiered notification fee with an extra penalty for false registration. Those changes will improve the transparency and accountability of organisations dealing with personal information, and that is important if we are to regain public confidence in the handling and sharing of that personal information. The significant expansion of the commissioner’s responsibilities has been matched by an increase in the importance and status of his post.

James Brokenshire (Hornchurch) (Con): The Lord Chancellor is talking about the Information Commissioner’s enhanced role, and he referred to the statement he made today. Mention has been made of the new statutory code of practice on data sharing, and I note that the statement envisages some overarching governmental authority for the Secretary of State on that. What rights will the Information Commissioner have under these new plans to enforce that new statutory code? As I am sure the right hon. Gentleman will be aware, this concept of data sharing is a sensitive one.

Mr. Straw: The Information Commissioner will have considerable rights, and I shall give the hon. Gentleman the precise answer when I sum up, if I have your permission and that of the House to do so, Madam Deputy Speaker. He rightly says that data sharing is a sensitive issue, but data sharing is necessary and it is not prohibited by the Data Protection Act 1998, nor by subsequent legislation. What is crucial is that if data sharing takes place, it does so in strictly regulated circumstances, so that the data that are shared lawfully are regulated, and severe penalties and procedures are in place to ensure that data are not wrongly shared.

Rob Marris (Wolverhampton, South-West) (Lab): I entirely agree with my right hon. Friend that those protections are extremely necessary, but many of my constituents welcome data sharing because they are sick of being asked for the same information two, three, four or five times. The balance between the protections, on the one hand, and the “ask once, use many times” approach, on the other, is a difficult one to strike.

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Mr. Straw: My hon. Friend makes an important point, with which I think the whole House agrees. It illustrates the difficulty inherent in the role of the Information Commissioner—he must balance both sets of interests. Each of us have personal data that we wish to remain personal and to be used only for the purposes for which they were given. At the same time, we do not want to be bothered by having to provide the same data three or four times. In respect of the electoral register, there is provision for the data to be shared, because sharing council tax data and so on will greatly improve the comprehensive nature of the register and its integrity.

Simon Hughes (North Southwark and Bermondsey) (LD): Following on from the intervention made by the hon. Member for Wolverhampton, South-West (Rob Marris), I wonder whether the Secretary of State has addressed the fact that official organisations often ask for information—for example, if one is involved in a telephone exchange with them about some matter—but do not make it clear that supplying it is voluntary, rather than compulsory. Could clear guidelines be given to show that where a Government official or agency of Government asks someone questions, they should indicate that the provision of that information is voluntary—one can give it, but one is at liberty not to do so? An example of such information might be an office phone number or a date of birth, which may not be required for the exchange.

Mr. Straw: I shall certainly follow that up, because it is an area in which the Government must ensure that what happens on the ground reflects the law and practices.

I wish to make two final sets of points. The first is about the way in which this role has moved from being that of Data Protection Registrar, which was a fairly modest role out of the public eye, to that of Information Commissioner, which is a large role in the public eye. The change has been a considerable one. The Information Commissioner is in the media almost every day. Last year, he had to appear before nine Select Committees, which, I believe is more than any Minister has had to do in a year.

Secondly, I am happy to respond to questions about the Information Commissioner’s remuneration, but I should just say that the level of remuneration was carefully scrutinised within government and it is not only comparable with, but, in many respects, lower than that for many other posts that bear less responsibility. With those considerations in mind, I commend the motion to the House.

8.54 pm

Nick Herbert (Arundel and South Downs) (Con): I suspect that the Secretary of State for Justice might agree that the timing of this proposal is unfortunate. On a day when the Government have been forced to announce significant future tax rises for working families, the House is considering a significant salary increase for a senior public servant, amounting to a 40 per cent. increase in salary, from £100,000 a year to £140,000. Of course, that will be backdated to last November, which means that for this year we are talking about an 80 per cent. increase. We must therefore consider this motion carefully, especially in view of how the public may regard it.

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I suppose that Mr. Thomas will at least be glad that he has escaped the new top rate of income tax band that the Government have announced today. It is true that the additional sums of public money that will have to be found to fund his salary will be a drop in the ocean compared with the £1 trillion of national debt that this country now faces.

I sympathise with the Secretary of State in that we are having to decide a salary increase for a serving official, as opposed to deciding whether an increase for a new occupant of the post, as yet unnamed, would be merited. Nevertheless, that is made easier for us by the fact that the official concerned is of clear stature, and has spoken out with authority and independence on matters of data protection. He can command the confidence of the whole House.

It would have been more helpful to the House if we had had some information about the justification for the increases in advance, although I accept that the Secretary of State has raised the issue with some of us beforehand. His comments about the proposed increase were fair. First, the position is increasingly important, as are the issues involved. We need to ensure that someone who is exceptionally able, and has sound judgment and experience, holds the position of Information Commissioner. As the Secretary of State pointed out, the office holder now also has to be comfortable in the public eye.

Mr. Thomas has certainly demonstrated the independence that the House requires. Only today he publicly confirmed that, despite the Secretary of State for Children and Families stating that he had contacted the Information Commissioner’s Office about releasing certain sensitive matters—

Madam Deputy Speaker (Sylvia Heal): Order. I remind the hon. Member, and other hon. Members, that the motion that we are discussing relates to the salary of the said person.

Nick Herbert: Of course, Madam Deputy Speaker. I was just pointing out that one of the justifications for a significant salary rise was that the Information Commissioner has to exercise great judgment and independence and that, only today, he had demonstrated that independence by being willing to say something publicly about a claim made by a Cabinet Minister. That reinforces the need for a person of stature and quality in that position.

The second reason that the Secretary of State for Justice gave for the salary increase was the increase in work load that the Information Commissioner has experienced. The pay is being backdated, but the work load has clearly increased in the year to which the backdating will apply. In his annual report in July, Mr. Thomas pointed out:

Of course, he has had to deal not least with the serial data losses over which the Government have presided, beginning with the loss of data from Her Majesty’s Revenue and Customs last year. Again, that has involved him in difficult decisions and in exercising his judgment about what to say publicly on the matter. That underlines the importance of his independence.

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The third point is that given the seniority of the Information Commissioner’s position, the increase in salary will not put him out of line with other public sector salaries. Indeed, given his work load and the importance of his position, it could be argued that his salary is low in relation to those of other public officials.

Keith Vaz (Leicester, East) (Lab): Parliament has also added to the burden on the Information Commissioner. The report by the Select Committee on Home Affairs on the surveillance society requested that he produce an annual report to Parliament. That would also justify an increase not just in his salary but in the funding for his office.

Nick Herbert: I agree with the right hon. Gentleman. It is clear that the work load of the Information Commissioner has increased considerably since the incumbent took office.

Bob Spink (Castle Point) (UKIP): Is the hon. Gentleman aware that “the powers that be” have just reduced the chairman of the Electoral Commission proposed pay of £150,000 a year to only £100,000 a year? Does not that give a lead as to what salary should be set in this case? It should not be £140,000 a year but nearer £100,000.

Nick Herbert: I do not think that the two situations are related. Compared with chairman of the Electoral Commission, the Information Commissioner will be working for a different period—for more days in the week, I think, than the current chairman. It is not possible to make the easy read-across that the hon. Gentleman suggests.

I was making the point that given the Information Commissioner’s work load and his seniority, he is paid rather less than a number of other senior public officials. We know that 800 local government officials now earn more than £100,000 a year—an increase of 27 per cent. on the previous year. Some 132 council managers are paid more than the annual salary of a Cabinet Minister. It is also true that the Information Commissioner has been in the same salary bracket since 2005-06. I do not think that it is sensible to fix a senior public servant’s salary in such a way and to have a particularly large rise to compensate for that fact, rather than making arrangements whereby his salary would increase sensibly in line with other salaries in the public sector year on year.

Finally, it is clear that the Information Commissioner’s responsibilities are growing. Today’s announcement of additional powers for the Information Commissioner is largely welcome. There are concerns about the proposals for data sharing, which we will no doubt debate on a different day, but they underline the fact that the commissioner, who is responsible for a growing annual budget—it is now £16 million a year—and for 260 staff, will have to deal with those thorny issues. He will face continuing challenges. No doubt he will have more cases of Government data loss with which to contend over the course of the next few months, if the last few are anything to go by. He will have to deal with ensuring data protection in the private sector, too, and with the sensitive matter of data protection issues relating to Members of this House. We hope that he will maintain his firm resistance to the planned communications database.

The Opposition’s conclusion is that data issues are no longer peripheral; they are central to public concerns
24 Nov 2008 : Column 578
about personal privacy and to good government. Therefore, the Information Commissioner must be rewarded appropriately. We need to ensure that the post has an occupant of stature, quality and integrity. It is vital that that person has those qualities and can maintain the independence that the office demands.

9.4 pm

Simon Hughes (North Southwark and Bermondsey) (LD): I have generally the same analysis of the position as the hon. Member for Arundel and South Downs (Nick Herbert): it is somewhat ironic that, today of all days, we are debating this apparently very significant increase in salary. My initial instinct was to be concerned about the increase. I looked at the figures since we first had an Information Commissioner—a post first created in 2000-01, when the salary was in the £70,000 to £75,000 range. It was still about the same when Elizabeth France finished and Richard Thomas took over. It has gone up gradually. Until today, it has been just about £100,000.

The proposal is that it should go up by £40,000, as the Secretary of State for Justice says. I am persuaded, having looked at the evidence and compared similar jobs in the public service, that that is the right remuneration. I understand that the increase is justified by two arguments, the first of which is that the Information Commissioner has a huge additional workload. The right hon. Member for Leicester, East (Keith Vaz), who is Chairman of the Home Affairs Committee, has just referred to one additional piece of work. The Secretary of State referred to the fact that the Prime Minister asked the commissioner to co-author another investigatory report. The Minister of State, Ministry of Justice, the right hon. Member for North Swindon (Mr. Wills), has today given a written answer that deals with further work in the pipeline, so I am persuaded that plenty of extra work has come and plenty of additional work will be done.

David Taylor (North-West Leicestershire) (Lab/Co-op): Did the hon. Gentleman hear the figures quoted a moment ago by the hon. Member for Arundel and South Downs (Nick Herbert)? I hope that I heard him correctly, and perhaps he will intervene on the hon. Gentleman if I did not. He said that the commissioner was responsible for a budget of £16 million a year. If so, is that not rather out of kilter with, for instance, the Secretary of State for Health, who is responsible for budget of at least £96 billion a year, which is a multiple of 6,000 times that of the data protection and freedom of information commissioner? There is something adrift, is there not?

Simon Hughes: There is a serious point: we do not look at these salaries in the round. The proposal is for one salary for one person for one post; some salaries either come to the whole House or go to a Committee upstairs, and we should look at them comparatively. I take that point. There is an argument that Ministers, who are politicians, might for all sorts of reasons be paid relatively much less than people who are not, but we certainly ought to have the debate.

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