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Lord Falconer of Thoroton: My Lords, there is a general noise that suggests that there would not be that opportunity. It all seems to come down to the fact that the House has to rely on the Government's good faith, which the noble Viscount has indicated he quite rightly accepts. I earnestly suggest that that is the right course to take in that respect. We will look at it. But it is up to the noble Viscount whether he accepts that or not. I would strongly suggest that he does.
The noble Lord, Lord Lester, asked whether the European Convention on Human Rights would be breached. That would not depend on this power; it would depend on any order that was subsequently made under it, assuming it remained unamended. At that stage consideration would be given to the question of the
relationship between whatever order was produced and the provisions of the European Convention on Human Rights.
Lord Lester of Herne Hill: My Lords, I am very grateful to the noble and learned Lord for that reply. Going back, if I may, to the question raised by the noble Viscount, the problem is that unless one of these amendments is accepted by the House, and fully accepting the Government's good faith in every respect, there may be a problem. Let us suppose, hypothetically, that the Government decided that they were right in the first place and that no amendment should be made in another place, there would then be no mechanism when the Bill came back to this House because another place would not have disagreed with a decision taken by your Lordships' House. That is why, in effect and in the most charming way, the noble and learned Lord is asking the House to accept not only the Government's good faith, but whatever decision they reach, subject to another place. That does not seem to be a satisfactory position to be in.
Lord Falconer of Thoroton: My Lords, after the position has been so clearly explained to me by the noble Viscount, Lord Astor, after the noble Lord, Lord Lester, has explained it, after the growl from the House and the noble Earl, Lord Russell, nodding so enthusiastically that they could only be right, I have accepted and understood finally what the procedural position is. I also accept, on the basis of what everyone has told me, that if we in good faith decide that we will not bring forward any amendments there will be no opportunity in the context of this Bill for the matter to be debated again by this House, though of course the matter could be raised by other means; for example, by an Unstarred Question relating to the issue. There is no growl of dissent to that suggestion!
The noble Lord, Lord Lester, has put his finger on it. One does have to accept the Government's good faith and accept it on the basis that if we do not bring forward an amendment in the context of this Bill there can be no debate. But, again, I would earnestly suggest in relation to this Bill that in the context of a government who are listening, who are genuinely trying to improve the Bill and who have brought forward amendments at the suggestion of Members of the House, the correct course is to rely on the Government, recognising that there will not be another opportunity for debate if your Lordships take that chance.
Earl Russell: My Lords, of course we accept the noble and learned Lord's word unreservedly. But would it be a correct understanding of his word that he has not said he will do something; he has said only that he might do something?
Lord Falconer of Thoroton: My Lords, with respect, that is a most accurate account. I have said that we will look at something. I have made no commitment on behalf of the Government to come back with any amendment. Therefore, it is perfectly possible, on the basis of what I have said, that we will not come back
with any amendment. That is a perfectly accurate account of the matter. But surely it must be better, when we are looking at it in good faith, for us to do it on that basis rather than putting the matter to a vote, as that would sour the perfectly friendly and constructive approach that has so far prevailed in relation to this most excellent series of debates. I am surprised that everyone laughs when I say that.
Baroness Nicholson of Winterbourne: My Lords, before the Solicitor-General sits down, perhaps I can take him away from the Primrose Farm and the happy debate on mechanics and back to the hard graft, the coal face, which is what this Bill is all about.
Does the noble and learned Lord accept that in his explanation of why he wishes me to withdraw my amendment there is an inherent contradiction? On the one hand, he said that the Government have not conceded that the clause needs altering and, on the other, he stated that if no other department wishes to use the clause it will be restricted. In other words, the noble and learned Lord has not conceded that the clause needs alteration but will now do a wide-ranging, Star Wars-type search around the globe to see whether by any chance anybody happens to want it. It is rather like a Christmas present that nobody has picked up. Does he accept also that he has not offered any recognition of the police position by even giving a guarantee that he will withdraw from the Bill that part of it that relates to crime?
I feel that the noble and learned Lord's offer is rather like a Trojan Horse. Can he reassure me about that?
Lord Falconer of Thoroton: My Lords, I have said that, after what the noble Baroness described as a Star Wars trawl around other departments, if nobody else wants the clause we will look seriously at an amendment to restrict the scope of subsection (4).
I can take the matter no further. I accept what the noble Baroness said--which is a repetition of what everybody else said--and I am making no promises in relation to what, if any, amendment I may come back with. It would be wrong for the House to amend the Bill simply with a view to making sure that the matter can be debated on another occasion. That is what appears to be in the minds of those who tabled the amendment.
I will not assist my case by repeating it. I shall be deeply sorry if those who have until now been so co-operative and received their reward think it appropriate to put the matter to the vote.
Baroness Nicholson of Winterbourne: My Lords, I am grateful to the Solicitor-General. It is a pleasure to work with him on this important piece of legislation. However, I feel that I need to help him out of his difficulties. Since the Data Protection Registrar stated on 17th March,
- "It remains my view that Clause 28(4) should be deleted";
since the Chief Constable of Police in charge of data protection for the entirety of the police in England and Wales believes that the clause should not include them; and since so far the Inland Revenue has given no good
cause to include the clause, other than enforced subject access, on which we could have another debate if we so wished, I feel sure that the Solicitor-General will feel a lot more comfortable if the clause is in the wastepaper basket where we believe it belongs.
Lord Falconer of Thoroton: My Lords, before the noble Baroness sits down, perhaps I can say that she should not divide the House simply to make me feel more comfortable. It will make me feel more uncomfortable.
Baroness Nicholson of Winterbourne: My Lords, sometimes the medicine tastes a little sour but the illness is then cured. I am sure that in the privacy of the Lobby the noble and learned Lord will come to see, not the error of his ways, but the error of the Inland Revenue's tempting efforts to draw him down the road of secondary legislation in a way which is antipathetic to the Government whom he so well represents at the Dispatch Box in your Lordships' House.
I feel that I need to test the opinion of the House to see whether it agrees with myself and the noble Viscount, Lord Astor.
3.54 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 134; Not-Contents, 99.
Addington, L.
Ailsa, M.
Aldington, L.
Anelay of St. Johns, B.
Archer of Weston-Super-Mare, L.
Astor, V.
Astor of Hever, L.
Avebury, L.
Baker of Dorking, L.
Bath, M.
Beaumont of Whitley, L.
Beloff, L.
Bethell, L.
Brain, L.
Bridges, L.
Brigstocke, B.
Butterworth, L.
Cadman, L.
Calverley, L.
Carlisle, E.
Carnarvon, E.
Chesham, L.
Clancarty, E.
Coleraine, L.
Coleridge, L.
Craigavon, V.
Crook, L.
Cross, V.
Dahrendorf, L.
De Freyne, L.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dilhorne, V.
Dixon-Smith, L.
Dowding, L.
Ellenborough, L.
Elles, B.
Elliott of Morpeth, L.
Erne, E.
Erroll, E.
Exmouth, V.
Ezra, L.
Falkland, V. [Teller.]
Forbes, L.
Gainford, L.
Gardner of Parkes, B.
Geraint, L.
Glenarthur, L.
Goodhart, L.
Gray of Contin, L.
Grey, E.
Hampton, L.
Hamwee, B.
Harmar-Nicholls, L.
Harmsworth, L.
Hayhoe, L.
Henley, L.
Hothfield, L.
Hutchinson of Lullington, L.
Hylton, L.
Hylton-Foster, B.
Inglewood, L.
Jacobs, L.
Jenkin of Roding, L.
Jopling, L.
Kinnoull, E.
Kirkwood, L.
Kitchener, E.
Knollys, V.
Lang of Monkton, L.
Lauderdale, E.
Layton, L.
Lester of Herne Hill, L. [Teller.]
Linklater of Butterstone, B.
Lucas of Chilworth, L.
Ludford, B.
Mackay of Ardbrecknish, L.
McNair, L.
McNally, L.
Maddock, B.
Malmesbury, E.
Mar and Kellie, E.
Marlesford, L.
Marsh, L.
Masham of Ilton, B.
Middleton, L.
Monro of Langholm, L.
Montgomery of Alamein, V.
Morton, E.
Mountevans, L.
Moyne, L.
Newby, L.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Norrie, L.
Northesk, E.
Norton, L.
Ogmore, L.
Oppenheim-Barnes, B.
Platt of Writtle, B.
Rankeillour, L.
Razzall, L.
Redesdale, L.
Rees, L.
Renton of Mount Harry, L.
Ritchie of Dundee, L.
Rochester, L.
Rodgers of Quarry Bank, L.
Romney, E.
Russell, E.
Russell-Johnston, L.
Sainsbury, L.
St. John of Bletso, L.
Sandford, L.
Selkirk of Douglas, L.
Stair, E.
Stockton, E.
Strange, B.
Swinfen, L.
Teviot, L.
Thomas of Gwydir, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thurso, V.
Tordoff, L.
Vivian, L.
Waterford, M.
Weatherill, L.
Wharton, B.
Wigoder, L.
Williams of Crosby, B.
Winchilsea and Nottingham, E.
Young, B.
Acton, L.
Ampthill, L.
Archer of Sandwell, L.
Ashley of Stoke, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Blackstone, B.
Blease, L.
Blyth, L.
Borrie, L.
Bruce of Donington, L.
Burlison, L.
Callaghan of Cardiff, L.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Castle of Blackburn, B.
Chapple, L.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Currie of Marylebone, L.
David, B.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Elis-Thomas, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gainsborough, E.
Gallacher, L.
Gilbert, L.
Glenamara, L.
Gordon of Strathblane, L.
Graham of Edmonton, L.
Gregson, L.
Grenfell, L.
Hardie, L.
Hardy of Wath, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. [Lord Chancellor.]
Islwyn, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jenkins of Putney, L.
Kennedy of The Shaws, B.
Kennet, L.
Kilbracken, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McIntosh of Haringey, L. [Teller.]
Mason of Barnsley, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Mishcon, L.
Molloy, L.
Monkswell, L.
Montague of Oxford, L.
Murray of Epping Forest, L.
Nicol, B.
Orme, L.
Peston, L.
Pitkeathley, B.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Richard, L. [Lord Privy Seal.]
Sefton of Garston, L.
Shepherd, L.
Shore of Stepney, L.
Simon, V.
Simon of Highbury, L.
Smith of Gilmorehill, B.
Stallard, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Turner of Camden, B.
Wallace of Coslany, L.
Wedderburn of Charlton, L.
Whitty, L.
Williams of Elvel, L.
Winston, L.
Resolved in the affirmative, and amendment agreed to accordingly.
4.3 p.m.
Clause 30 [Regulatory activity]:
Clause 31 [Journalism, literature and art]:
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