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Lord Falconer of Thoroton: Let me deal first with Amendments Nos. 136 and 137, and then Amendment No. 138 to which the noble and gallant Lord, Lord Craig of Radley, has just spoken.
First, the amendment of the noble Viscount, Lord Astor: Amendment No. 136 seeks to reverse Clause 49, which places a duty upon the commissioner to promote good practice and to procure compliance with the law. The noble Viscount would like to reverse the order, but with the greatest respect to him we feel that that is wrong. The clause places good practice first; it is the broader concept encompassing compliance with the relevant legislation, a more specific requirement. As presently drafted, the clause quite clearly focuses attention on that aspect of good practice which consists in observing the requirements of the Act. That is unmistakably emphasised. I am not convinced that the amendment of the noble Viscount, Lord Astor, is an improvement at all. It is right that the general principle of good practice is stated first and that the most important aspect of that principle--compliance with the law--is properly emphasised. I believe that the clause as drafted gets that right.
The second element of the noble Viscount's amendment would place the commissioner under a new duty to consult with the parties affected before seeking to promote good practice. I wonder whether a statutory requirement of this kind on the commissioner is necessary. It raises the question with whom the commissioner is to consult. That would be difficult to prescribe. I believe that that is something that should be left to the commissioner's discretion. In exercising that discretion, the commissioner will always be under a duty to take into account all relevant considerations and it would seem to be a matter for her as to whom she wishes to consult in relation to good practice.
The second amendment of the noble Viscount, Lord Astor, Amendment No. 137, would carry forward this requirement to consult those parties affected to subsection (3)(a) of the clause, which empowers the commissioner to prepare and disseminate codes of practice for guidance as to good practice. Again, and for the same reasons, I wonder whether this is necessary. There might be some advantage in requiring the
commissioner to consult before issuing definitive codes of practice, and I shall certainly have another look at this. However, in the light of the other comments I have made, I hope the noble Viscount, Lord Astor, will consider withdrawing his amendment.Amendment No. 138, moved by the noble and gallant Lord, Lord Craig of Radley, appears to seek to create stronger regulatory powers for the commissioner. It requires that, where she considers it appropriate to issue a good practice code of conduct, that code should be legally enforceable. The commissioner already has the necessary regulatory powers and this amendment will, in fact, give him or her less flexibility. Under the Bill, if the commissioner considers it appropriate to issue a code, it will be enforceable to the extent that it is based on the Bill's regime.
In particular, the first principle in Schedule 1, requires that,
- "Personal data shall be processed fairly and lawfully",
so that if any code of practice that she may choose to issue reflects that obligation, it will be enforceable. This principle also has detailed interpretation in the first three schedules. The Bill also gives the commissioner the option of including guidance in a code which, although not enforceable, is recognised good practice.
The effect of the amendment will be to prevent her from doing this because in any code of practice that she issues she will have to stick to matters that can be enforced. There is a clear role to be played by enforcement and a clear role to be played by general, non-regulatory guidance. We need both. The effect of this amendment is to restrict the codes of practice that she would issue to enforceable matters. This is not appropriate; the balance struck in the legislation as presently drafted is about right.
I hope, in those circumstances, that the noble and gallant Lord, Lord Craig of Radley, will feel able to withdraw his amendment.
7.30 p.m.
Viscount Astor: I do not know whether the noble and gallant Lord wishes to respond, before I withdraw the amendment?
Lord Craig of Radley: No. I much appreciate what the noble and learned Lord, Lord Falconer of Thoroton, has just said. What is important is the knowledge that closed circuit television is in a regime which ensures and maintains public confidence. I shall obviously read with great care what has been said, but I have nothing further to add to what I have said at this stage.
Viscount Astor: I am grateful to the noble and learned Lord for his response. I am sorry that he does not consider my drafting to be an improvement, but I have to say that it is not the first time and those who draft bills do not often like improvements. I accept that mine may well not be an improvement, but I shall certainly study his comments carefully and I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 137 to 140 not moved.]
Clause 50 [Assistance by Commissioner in cases involving processing for the special purposes]:
Viscount Astor moved Amendment No. 141:
The noble Viscount said: At Second Reading I brought forward the issue about legal aid. In effect it is created in relation to this area for the first time under the Bill. I am grateful to the Minister for writing to me about the costs to the commissioner of helping individuals in cases involving the media. He said that costs will be met from the normal funding arrangements, principally the commission's grant in aid, and that costs in such cases are to be a first charge on any costs awarded by a court, or sums received in an out of court settlement by those the commissioner assists.
The amendment inserts the words "there is an arguable case". As I understand it--I have probably the least expertise on legal aid here--in order to obtain legal aid someone has to take the decision that there is an arguable case. My intention in moving the amendment is to elucidate from the Minister exactly how this will work. Who will advise the commissioner that it is a case which should be granted legal aid? What factors will be taken into account? Will there be guidelines for the commissioner? How will it work? Also what happens if the costs suddenly become greater than her grant in aid? This is a new area in relation to this subject. It is important for all noble Lords to be aware how the Government intend the provision to work. I beg to move.
Lord Williams of Mostyn: As the noble Viscount pointed out, Clause 50 provides a power for the commissioner to assist individuals to bring court proceedings to protect their rights in respect of processing for journalistic, artistic and literary purposes. However, it is not every individual's claim that will fall within the category of a case involving a matter of substantial public importance, because there may be cases of significant individual importance and consequence which would not be within the phrase which I specified. That is why we have made it plain that the commissioner may not grant assistance unless, in her opinion, the case indeed involves a matter of substantial public importance.
The formula, "there is an arguable case", embodied in the amendment, is similar to that which sets out one of the conditions for the grant of civil legal aid in the legal aid legislation.
The amendment may have the always laudable purpose of ensuring that public money is not spent on cases with little chance of success. But we have not given this power to the commissioner as a legal aid provision to help those who simply cannot afford to bring their cases to court. What we have wanted to do is to entrust someone, who after all has enormous experience and expertise and is held in high regard, with the power to ensure that important matters of principle are brought before the courts and considered by them. We do not expect the power to be used freely or without
Viscount Astor: I am most grateful to the Minister for his explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 9 [Further provisions relating to assistance under section 50]:
Lord Williams of Mostyn moved Amendments Nos. 142 and 143:
The noble Lord said: I am speaking to and moving en bloc Amendments Nos. 142 and 143. These are small technical amendments. They have two virtues: they make the grammar better and they make it clearer. I beg to move.
On Question, amendments agreed to.
Schedule 9, as amended, agreed to.
Clause 51 [International co-operation]:
Page 29, line 2, leave out ("the case involves a matter of substantial public importance") and insert ("there is an arguable case").
7.45 p.m.
Page 54, line 21, leave out from ("bring") to end of line 22 and insert ("to an end any proceedings").
Page 54, line 30, leave out from ("bring") to end of line 31 and insert ("to an end any proceedings").
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