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Earl Russell: I am grateful to the Minister for that reply but I am sure he will not be surprised if I ask him a few questions in order to find out quite how grateful I ought to be. I make no complaint whatever about his going on. In fact it was extremely helpful to the Committee. Indeed, so much do I not reprove him for that that I am about to invite him to go on a little longer.

I cannot help thinking that his argument about restrictions which apply only to the Department of Social Security did a little too much for his own purposes. If we should not have restrictions that apply only to the Department of Social Security, then, by the same argument, would it not follow that we should not have privileges of access that apply only to the Department of Social Security? That is not my position at present but the Minister could turn it into my position. I would advise him not to do so.

The point he made about the European directive, where we do have a good deal of work to do, and the argument that perhaps we should not have a massive change in the law ahead of that, do carry some force. But does not that same force suggest that there might be an argument for postponing the Bill until we have the law sorted out in the light of the European directive?

I was extremely pleased to hear about the code of practice. I was extremely pleased to hear that the Bill would be operated according to the principles of the Data Protection Act. I was extremely pleased to hear that the department intends to operate the Bill according to the highest standards. But the crucial question is: who is to be judge of those standards? There were moments in the Minister's speech--only moments--when he reminded me of the old case of the servant who turned up with an open testimonial from his previous employer saying, "During his period of service with me Mr. So-and-so has discharged his duties entirely to his own satisfaction". The key point is: is there to be any independent judge of whether the department has in fact exercised its powers to the highest standard? We all believe that we are exercising our powers to the highest standard and all of us sometimes are wrong.

As the Minister's speech went on, in several passages he indicated that he expects the Data Protection Registrar to have an oversight over the Bill. If that is correct, it is extremely welcome. However, the advice available to me is that, in order to give the Data Protection Registrar that oversight, we would need to amend the Bill to provide for it. Under the present text of the Bill, where data matching activities are specifically provided for in law, as they are in the Bill, issues of unfair obtaining and the non-disclosure requirements of the Data Protection Act do not apply. Is the legal advice available to the Minister the same as that? If it differs, how does it differ? That is the point

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on which I should be extremely grateful for an answer. If the Bill needs amending in order to allow the Data Protection Registrar the power of monitoring, and if the Minister gets legal advice to that effect, is he prepared to amend the Bill accordingly? If he would say yes, that would advance his cause very materially.

The Minister did not touch at all on the issue of proportionality under the European Convention on Human Rights. I should like to know exactly how his code of practice will impinge on that. That will depend on the details of wording, on which we shall need a certain amount of advice. I do not know whether the Minister is in a position to give that advice, but many of us may need it before we reach any final decision on this question.

I understand what the Minister said about the case for matching data. I can understand and respect as legitimate the view that the balance in favour of civil liberties has been tipped too far. I would not agree with that view but I can see how it can be honourably argued. What I think cannot be honourably argued is that we should do things which are contrary to our international legal obligation. That is a position with which I understand the Government are in full agreement. Nor can it be argued that a sensible Parliament should leave two contradictory provisions on the statute book at the same time. If the Minister can convince me that his code of practice will meet those dangers, I really will be grateful to him.

4 p.m.

Lord Mackay of Ardbrecknish: The problem with answering many of the noble Earl's questions is that I shall have to repeat almost everything that I intend to say on other amendments later on. It is rather a pity that this particular amendment was promoted so high on the agenda and before we had the opportunity to look at some others. We could then have considered it in its appropriate place with Amendment No. 18. However, for some reason the amendment has been promoted to number one, and that causes some difficulty when looking forward to other amendments.

Baroness Hollis of Heigham: Is the Minister saying that he does not share our assessment that this is a major issue in the Bill and therefore that it should be taken as early as possible?

Lord Mackay of Ardbrecknish: I shall be here all evening. It seems to me that if an issue is of great importance it should take its proper place in our deliberations, but I am well used to things being promoted to number one in what I might call in television terms "prime time" and here it is. I am simply saying--

The Earl of Balfour: I believe that my noble friend the Minister will find that Amendment No. 1, which we are dealing with, was grouped with Amendment No. 18

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in the Marshalled List. I believe that he said that he wished to speak to Amendment No. 18 when we come to it. I may have misheard.

Lord Mackay of Ardbrecknish: No, I did not say that. I said that a number of the points raised by the noble Earl arise in amendments that we are about to take and I would have been able, without repeating myself, to deal with some of the issues when we come to Amendment No. 18 if that amendment had been in its proper place. But that amendment was promoted to be with Amendment No. 1 in order to bring it up, as the noble Baroness clearly agreed, to prime time. However, I do not want to make too much of that.

I wish to answer the noble Earl quite quickly. I do not believe that it would be sensible to postpone the Bill until the law is changed to take account of the EU directive. I believe that the Bill contains more than just data matching, but the ability to data match is important in the pursuit of fraud. My understanding is that all parties are in agreement about the need to use modern tools in order to make sure that there is not fraud in the system.

As regards the code of practice, I said quite clearly--and I repeat it in case there is misunderstanding--that the registrar will be fully consulted when it comes to making up the code of practice. Indeed, she has agreed to that. I was not very sure of one or two other points that the noble Earl made, but I am able to say to him that the registrar has all the powers under the Data Protection Act. As I said in my main contribution, that Act is still there and the powers and principles are still there. We shall have to abide by them.

The question of proportionality is an interesting one. I should have thought that 30 per cent. of public expenditure, which is what the Department of Social Security's budget covers in these matters, represents a fair amount of proportionality. As regards the size of the fraud mentioned by the noble Baroness, although we do not entirely agree with the figure for housing benefit, I do not believe that in that ball park anyone can doubt that there is not a measure of proportionality.

The main point is that the Department of Social Security has for many years collected a lot of information on people. We have a good record in protecting that information and handling it properly. All the computer processes of personal data by the department and by its contractors are registered under the Data Protection Act. Officials are in regular contact with the Data Protection Registrar and our office to seek advice in advance where there is any doubt about the application of data protection principles to a particular activity. So I believe that we are very well used to dealing with a lot of sensitive information and doing so in a secure and safe manner, in conjunction with the registrar whose role we fully understand and appreciate and whose advice we seek when we feel that we need

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some help from her to decide how we can treat some of the data that we collect. I hope that these assurances help the noble Earl.

Earl Russell: Bearing in mind the case of Pepper v. Hart, can the Minister give us an assurance that the powers of the Data Protection Registrar impinge on the provisions of this Bill?

Lord Mackay of Ardbrecknish: With the Pepper v. Hart judgment in mind, I simply refer the noble Earl to what I said in my original speech that nothing in the Bill amends the Data Protection Act 1984 or limits the application of that Act to the new powers.

Lord Carter: The noble Earl has raised a very real point. As regards the role of data protection and the registrar, clearly she has a locus in this Bill. That follows the rules laid down in the 1984 Act. If the registrar wishes to enforce compliance with the data protection principles, she serves an enforcement notice on the data user, knowing that failure to comply with such a notice is a criminal offence by virtue of Section 10(9) of the Data Protection Act. However, Section 38(2) of that same Act states that a government department cannot be prosecuted. So if such a department cannot be prosecuted presumably enforcement notices cannot be enforced. The briefing that we have had is that the Data Protection Registrar is powerless to enforce the principles. If there were a statutory code that would help to overcome the problem. If the code is non-statutory, it is all very well saying that the registrar will have to take into account any breach of such a code, but how does all that match with the section of the Data Protection Act which states that a government department cannot be prosecuted? What are the real powers of the registrar in this case? Does not the Bill need amending to make sure that the registrar has the powers that the Minister believes she has?

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