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Lord Mackay of Ardbrecknish: We come to an interesting debate; namely, how the Freedom of Information Act, as it will be, should be policed. Under the current provisions of the clause at certain times the data protection commissioner should, so to speak, double up--moonlight--as the information commissioner. The amendments in my name, most of which are consequential--we are now considering the principle--would not give that task to the data protection commissioner but set up an information ombudsman backed by a parliamentary information committee. The committee would be appointed from Members of both Houses of Parliament and act in much the same way as some of the present committees where commissioners or ombudsmen report to Parliament.
There is a tension, which I believe the Committee has debated once or twice before, between the role of the data protection commissioner, which is to ensure rights of privacy, and the role of the freedom of information commissioner, which is to ensure openness. Just stating it in that way shows the contradiction: one is in the business of ensuring personal privacy; the other is concerned with ensuring government openness. There is a danger that in certain cases if the duty falls to the same person the balance will come down in favour of privacy and against openness.
Part of the reason is that, as the Government may argue shortly, the role of the data protection commissioner results from an EU directive which must take precedence over national legislation. It is slightly odd that we are placed in that position, but there we are. Therefore, if the data protection commissioner in her role as the freedom of information commissioner has a conflict, she must place data protection above the need for openness. We believe that that is unsatisfactory.
We also believe that it is unsatisfactory to remove some of these responsibilities from Parliament. It may come as a shock to the present Government, but Parliament is supposed to be the body which keeps the executive in check and calls it to account. For a number of reasons, I do not believe that that role has been performed terribly well in the other place. Dare I suggest that it has been performed slightly better in this Chamber? The freedom of information legislation will give the citizen a role which is perhaps most frequently exercised via pressure groups, journalists, MPs, or would-be Members of Parliament. After all, no longer will MPs be able to be brushed aside with the kind of Answers to which noble Lords are accustomed. They do not tell one anything but they read magnificently and appear to respond to the Questions. MPs will be able to use the freedom of information legislation if they believe that the parliamentary Answers that they receive are less than adequate.
Parliament has a major role in this issue. To bring in an outsider in the form of the freedom of information commissioner diminishes the role of Parliament, which I do not believe is sensible. My series of amendments means that, rather than give that role to the data protection commissioner or appoint an independent person who is not the data protection commissioner, the creation of an ombudsman should root the system to police the Freedom of Information Bill firmly in Parliament where it belongs.
I do not need to go on any longer. It is fairly easy to explain the amendments, and the case is self-evident. I shall need a good deal of convincing by the Government that we are better off with the data protection commissioner rather than either an independent commissioner or, better still, a parliamentary ombudsman who is responsible to and will report to Parliament, which is supposedly the rock on which people's liberties depend. Parliament is supposed to be the place which probes and calls government to account; it looks into the deepest recesses where the executive often wants to keep things, finds out what is in there and informs itself and the public. That is what MPs are for, and we should not take that role away from them. The way to link the Freedom of Information Act, as it will be, with both Houses of Parliament is via an ombudsman.
Lord Goodhart: I am somewhat puzzled by this group of amendments. Why have an ombudsman? The usual role of such an individual, for example the Parliamentary Commissioner for Administration, who is the original ombudsman, is to make non-binding recommendations and act more as a mediator than judge. That is the general rule, but there are exceptions to it. For example, the pensions ombudsman has judicial powers. However, that is a semantic point. These amendments do not propose to change the role of the freedom of information commissioner under the Bill. However, they separate the role of the data protection commissioner from that of the freedom of information commissioner. There is undoubtedly a case for that, although I am not sure that it is a persuasive one. In some countries these roles are combined; in others, they are separated.
The real oddity here is that the appointment of the freedom of information commissioner is to be made by a parliamentary committee rather than the Crown. To begin with, it is rather odd that a Joint Committee of both Houses should appoint an officer of the House of Commons, as the amendments provide. As the noble Lord, Lord Mackay of Ardbrecknish, pointed out, the role of Parliament is legislative and to call Ministers to account. However, the role of the freedom of information commissioner under these proposals is not legislative but judicial. There is no precedent of which I am aware for Parliament, or a committee of both Houses, to make such an appointment. I believe that it is quite inappropriate for an officer of the House of Commons to take judicial decisions, even if they are binding on the executive. The executive is properly called to account by parliamentary proceedings, not by setting up what may be called a parliamentary
Viscount Goschen: I find my noble friend's argument persuasive. I believe that he identifies a significant issue of conflict. My noble friend puts forward one potential solution which is to establish another body so that there is not a joint poacher/gamekeeper authority, as appears to be suggested in the Bill. At this stage it is important to look very carefully at the regulatory arrangements to be put in place to ensure that the structure is correct. I am sure my noble friend does not claim that his amendments are the last word as to what can be put in place, but they are one very firm proposal as to how to address the problem which the noble Lord, Lord Goodhart, recognised. Although the noble Lord agreed with the amendments to a certain extent, he was unable to support them for the constitutional reasons that he put forward.
At the very least we need a robust argument from the Minister as to how he proposes that any potential conflicts are to be dealt with. My noble friend put the issue very simply when he said that essentially the data protection commissioner had the job of protecting information and ensuring that it was not disclosed beyond that which was appropriate, whereas the new body would have the inverse role. We look to the Minister for an explanation as to how such conflicts can be resolved.
Lord Lester of Herne Hill: I have a particular interest in ombudsmen. Indeed, I introduced a Bill to attempt to widen the powers of the poor wee office of ombudsman, as it now stands in this country, to allow direct access to him from the public. I know that it is being sympathetically considered in the Cabinet Office as a proposal.
I am delighted that the noble Lord, Lord Mackay of Ardbrecknish, has decided to put the Swedish word--or is it a Danish word--"ombudsman" into his amendment. But, with great respect, I think that the amendment is misconceived. Leaving aside the constitutional problems about who will appoint this office holder--I should like to see Parliament notified in advance of appointment, but that is another matter--the noble Lord, Lord Mackay, has given a very good reason against his own amendment. The good reason is that there is a balance to be struck between competing rights and interests. On the one hand, there is a public right of access to government information; and there is also a personal right of access to private or personal information. The data protection regime is designed to protect part of that. This Bill is designed to protect the other part of the balance. There is no better way to ensure a fair balance between what are inevitably rights in conflict or rights to be balanced than to have the same office holder, namely a data protection commissioner, dealing with these rights and a balance between them.
Perhaps I may say that the present Data Protection Commissioner, Elizabeth France, demonstrated extremely effectively in her evidence to the Select Committees of both Houses on this Bill and on the data protection legislation that she is well aware of the problem raised by the noble Lord, Lord Mackay of Ardbrecknish.
The noble Lord rightly says that the problem is that under European Union law the right to be protected in one's personal privacy is anchored in a strong directive and statute, whereas there is no corresponding right in European Union law to public access to information of the same character. But it seems to me that the way to address that is to make sure that the right enshrined in the Bill is strong and that--the other side of the coin--personal privacy, confidentiality and government interests should be put in the balance as exceptions to that basic right. In that way there is a proper framework. That is what the Bill is designed to do.
I see no point in having two office holders who will be in conflict with each other, one dealing with data protection and personal privacy and the other dealing with public right of access to official information. It is surely better that one person should do the necessary balancing of these different rights and interests.
Lord Howie of Troon: We are dealing with the Question of whether Clause 16 shall stand part of the Bill. That has been put to the Committee by the noble Lord, Lord Mackay of Ardbrecknish, in two ways. First of all, he has pointed out how there is an inherent conflict in placing the work on the Data Protection Commissioner. That is a strong point. I am inclined to agree with him. However, the noble Lord went on to say that we should not do that; we should do something else. The something else is really to place the onus in another place. That was dealt with by the noble Lord, Lord Goodhart, fairly firmly. I am inclined to agree with him. So I am now agreeing with the noble Lord, Lord Mackay of Ardbrecknish, on the first part of his proposals and with the noble Lord, Lord Goodhart, on the second part. That is a situation I frequently find myself in. It is known colloquially as confusion.
However, I see a way out of that confusion. Since Clause 16 is unsatisfactory, I would be half inclined--although not wholly because I am a party man after all, as the noble Lord, Lord Mackay, knows--to go with him in taking the clause out of the Bill, leaving a hole in the Bill. I would not then go on to put his proposal into the hole. I would expect my noble friend to consider this lacuna in the Bill and think of something else to put in it which would deal with the quite firm objective which the noble Lord has proposed. So I resume my seat and sit, as so often, on the fence.
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