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Lord Mackay of Ardbrecknish moved Amendment No. 108:

("(4) For subsection (4) there is substituted--
"(4) The Tribunal shall consist of--
(a) a chairman appointed by the Lord Chancellor after consultation with the Advocate General for Scotland;
(b) such number of deputy chairmen so appointed as the Lord Chancellor after consultation with the Advocate General for Scotland may determine; and
(c) such number of other members appointed by the Secretary of State as he may determine taking into account the respective interests of each part of the United Kingdom."").

The noble Lord said: This is a small amendment. I suspect that an assurance from the Government may save me calling a Division so soon after the one we have just had.

Schedule 2 concerns who is to be appointed to the data tribunal. The amendment seeks to make clear that the tribunal shall consist of a chairman, deputy

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chairmen and members appointed by the Lord Chancellor after consultation with the Advocate General for Scotland. The reason for this is that as a result of the Scotland Act 1998 the structures inside the United Kingdom Government have changed and a new United Kingdom law officer--the Advocate General for Scotland--has been created. This is because the Lord Advocate, who formerly sat in this House and occasionally in the other place, and the Solicitor-General, who sometimes sat either here or in the other place and sometimes in neither, have migrated to the Scottish Parliament. Neither sits in the Scottish Parliament--much, I suspect, to the irritation of one prominent QC who got himself elected as Member of the Scottish Parliament for my constituency. I am sure he would be a worthy occupant of one or other of those offices. However, I had better not stir too much today in case news of this gets north of the Border.

These two historic law officers, the Lord Advocate and the Solicitor-General, have moved to the Scottish Parliament. Here we have only the Advocate General for Scotland. I should not say that; she is a splendid lady. It is a pity that she will lose her seat at the next election, but there you are. She fulfils the role once held by the Lord Advocate. I seek to ensure that when the Lord Chancellor decides these matters he will remember that this is not only a tribunal for England but one which covers those issues in Scotland which are still the responsibility of the United Kingdom Government.

I look forward to hearing some assurance from the Minister. If I do, I shall happily withdraw my amendment--but not until I hear that assurance.

Lord Bassam of Brighton: The amendment would have the effect of changing Section 6(4) of the Data Protection Act 1998 in regard to the way appointments are made to the tribunal. Under the 1998 Act, as amended, the Lord Chancellor is under a duty to consult Scottish Ministers on the appointment of the chairman and any deputy chairmen of the tribunal. The amendment would place a duty on the Lord Chancellor to consult the Advocate General for Scotland instead. The Advocate General for Scotland is a United Kingdom Minister and not a Scottish Minister. We see no advantage in making this change. The 1998 Act already very properly places a duty to consult Scottish interests; that consultative obligation is already there.

Additionally, the amendment would have the effect of placing a duty on the Secretary of State to take into account the respective interests of each part of the United Kingdom when considering appointments of tribunal members. Again, we think this is unnecessary because the Secretary of State is already enabled to consult. He will consult--and no doubt has consulted--very widely.

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On both points we think that the consultative framework is already there and will work well. While the noble Lord always makes a good plea for extra Scottish consultation, we think that in this instance it is not necessary or justified.

Lord Mackay of Ardbrecknish: I am not nearly as satisfied as I thought I would be. The Minister seems to think that if the Lord Chancellor consulted Scottish Ministers that would suffice and I would be satisfied. The problem is that it depends on who the Minister means. "Scottish Ministers" could mean Ministers in the Scottish Parliament. They are responsible for health, education and so on in Scotland, and those matters will be covered by a Scottish freedom of information Bill and a Scottish commissioner.

Although the legislation is not yet enacted in Scotland, the paper An Open Scotland, produced by the Scottish Executive, makes it clear that there will be a dedicated Scottish information commissioner. So matters such as health and education, which are devolved to the Scottish Parliament, will be dealt with by the Scottish information commissioner and by Act of the Scottish Parliament.

My problem is with areas such as, for example, social security which are still dealt with on a UK basis. The information commissioner will look at matters relating to social security across the whole of the United Kingdom from time to time. That is why I want to know whom the Lord Chancellor might consult. It is why the amendment mentions the Advocate General. It may well be that the Lord Chancellor will consult the Secretary of State for Scotland--for as long as that office continues to exist, which I do not believe will be much longer, because, frankly, I do not think that the poor gentleman has much to do. He seems to pop up on radio and television discussing all kinds of matters other than Scottish matters. He seems to be the person in Whitehall who is known by everyone to have time on his hands, so he is sent out to defend the Government on a wide range of issues. The fact that he does it quite well is neither here nor there. It probably encourages the Government. But it illustrates that, unlike his predecessors, he does not have a demanding role.

Is it the Secretary of State for Scotland whom the Minister envisages as being consulted; or is it Scottish Ministers in Edinburgh? If it is the latter, a suggestion that he will at least examine the matter with a view to deciding whether consultation will be with the Advocate General or the Secretary of State for Scotland would go some way to helping me on this point.

Lord Bassam of Brighton: We have amended the duty to consult so that we can consult Scottish Ministers; that is, members of the Scottish Executive. We have done so because the Executive has responsibility for the legal system in Scotland, including tribunals.

Of course, we need no provision requiring one member of the Government to consult with another. That much is clear. We shall be consulting with the

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Scottish Executive. That is arranged by way of the duty as set out. So the consultative framework is in place. The noble Lord need not worry too much. I am much obliged to him for his kind comments about our Secretary of State for Scotland. He is indeed an excellent performer.

Lord Mackay of Ardbrecknish: Yes, but not a Secretary of State for Scotland--which is the point I was making.

I am reasonably satisfied that there will be consultation and that the Advocate General will be involved. I look forward to the day when there will no longer be a Secretary of State for Scotland. In fact, the position of Scotland vis-a-vis United Kingdom issues will have to be looked after much more by the Advocate General.

However, I presume that what I said has been heard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 109:

    Page 60, line 42, leave out paragraph 19.

The noble Lord said: Like the previous amendment, this is not the most important amendment before the Committee, but it deals with what appears to be a curious anomaly in this legislation. The problem was drawn to our attention by the Campaign for Freedom of Information. In this case, given that the organisation knew a good deal more about the matter than I did, I relied to a considerable extent on the excellent briefing which it provided.

The amendment deletes a provision that would make it a criminal offence for the information commissioner to disclose certain information. The offence could be committed by disclosing information to which the public would have a right of access under the Bill.

Paragraph 19 of Schedule 2 of the Bill extends the secrecy provision which applies to the Data Protection Commissioner under Section 59 of the Data Protection Act to the commissioner in her role as information commissioner under this Bill. The restriction applies to unpublished information about an "identifiable individual or business" obtained by the commissioner for the purposes of the Act. Its disclosure without the consent of the person involved would be an offence unless it was either necessary for the discharge of the commissioner's functions or necessary in the public interest,

    "having regard to the rights and freedoms or legitimate interests of any person".

The problem is that "necessary" is a strict test. A disclosure which may be useful or desirable may not be "necessary". If the commissioner's functions can be discharged properly without releasing the information, disclosure may not be necessary. The public interest justification would presumably protect a disclosure made to the applicant or someone else with a direct interest. Disclosures to the press and public at large might not be held to be necessary in the public interest.

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The presumption would be that the commissioner could not identify any Minister, civil servant or company official with whom she had held discussions or about whom requests for information had been made unless the specified conditions were met.

The most objectionable element of the restriction as applied to the role of information commissioner is that it contains no "harm" test. The offence is not limited to the disclosure of trade secrets or commercially damaging information, but could be caused by a harmless disclosure of information about an identifiable business.

The consequence would be that information about a business which an authority would have to disclose under the Bill because it did not reveal a trade secret or prejudice the commercial interests of the business concerned, could result in the commissioner being guilty of a criminal offence if she disclosed it.

The Government maintain that they are obliged by the data protection directive to create the offence under Section 59 of the Data Protection Act--although that view has been questioned by the Data Protection Commissioner. Whatever the legal position in regard to the Data Protection Act, the offence is surely not necessarily in relation to the role of the commissioner as information commissioner under this Bill since this role does not flow from the directive and the rationale for extending the offence appears to be based on an unnecessary preference for consistency. I beg to move.

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