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Archer of Sandwell, L. [Teller]
Attlee, E.
Blatch, B.
Burnham, L.
Byford, B.
Colville of Culross, V.
Cope of Berkeley, L.
Craig of Radley, L.
Fookes, B.
Glentoran, L.
Henley, L.
Hilton of Eggardon, B. [Teller]
Kingsland, L.
Lucas, L.
Luke, L.
Mackay of Ardbrecknish, L.
Mancroft, L.
Mar, C.
Northesk, E.
Norton of Louth, L.
Renton, L.
Whitaker, B.
Acton, L.
Ahmed, L.
Alli, L.
Amos, B.
Andrews, B.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Borrie, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Carter, L. [Teller]
Chandos, V.
Clarke of Hampstead, L.
Clement-Jones, L.
Cocks of Hartcliffe, L.
Cohen of Pimlico, B.
Crawley, B.
Davies of Coity, L.
Donoughue, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gladwin of Clee, L.
Goldsmith, L.
Goodhart, L.
Goudie, B.
Gould of Potternewton, B.
Grenfell, L.
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jay of Paddington, B. (Lord Privy Seal)
Judd, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
McNally, L.
Methuen, L.
Mitchell, L.
Nicol, B.
Palmer, L.
Plant of Highfield, L.
Puttnam, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Simon, V.
Smith of Leigh, L.
Symons of Vernham Dean, B.
Turnberg, L.
Warner, L.
Wedderburn of Charlton, L.
Whitty, L.
Williams of Mostyn, L.
Winston, L.
Woolmer of Leeds, L.
Young of Old Scone, B.
Resolved in the negative, and amendment disagreed to accordingly.
10.55 p.m.
[Amendments Nos. 46 to 48 not moved.]
Clause 39 [Personal information]:
Lord Mackay of Ardbrecknish moved Amendment No. 49:
- Page 24, line 21, at end insert--
The noble Lord said: My Lords, in most cases, the exemption for personal information applies if disclosure would contravene one of the data protection principles set out in the Data Protection Act 1998. In many cases, there will be no contravention of the principles if the data subject--the person to whom the information relates--consents to the disclosure. This amendment would require the authority to take reasonable steps to ask whether the consent will be given, provided that it is reasonable so to do. Where the individual is, for example, a civil servant and the personal data involve information about what he has done in that capacity, the information may technically be personal data, and therefore exempt, but it would probably be reasonable for the department to ask for his consent. However, where someone is seeking information on the health of a neighbour, it is clear that that would not be reasonable.
One reason I have tabled the amendment is because the Campaign for Freedom of Information brought to my attention the fact that it had recently been refused information as regards the identity of private sector employees who were seconded to the DTI, on the grounds that identifying such staff would contravene data protection principles. I doubt whether the individuals concerned were even asked whether they wanted that kind of protection. The concern here was that a member of the public might contact the department to raise worries about a company, but it could be that they then found themselves dealing, not with a career civil servant, but with an employee of exactly the same company. For that reason, I believe that information of this kind ought not to be kept secret but should be made available to those who inquire.
The amendment seeks to ensure that the authority, whether it is one of the 50,000 bodies that have been referred to, takes reasonable steps to ask the subject whether he will consent to the disclosure. I beg to move.
Lord Bassam of Brighton: My Lords, the noble Lord has raised an interesting example and I shall try to refer to the points he has raised as I move through my response. As drafted, the amendment would apply to information which is exempt by virtue of one of the conditions relating to Clause 39(2), but I believe that its application would be limited.
This amendment is likely to have relevance to information only where a Clause 38(2) exemption falls to be considered by virtue of the condition set out in subsections (3)(a)(i) or (3)(b). This condition relates to a request for a disclosure of personal information by a third party where such disclosure would contravene the data protection principles set out in the Data Protection Act.
I believe that we debated a similar amendment in Committee, tabled on that occasion by the noble Lord, Lord Lucas. I said then, and I repeat tonight, that I am not persuaded that the duty proposed in this amendment amounts to anything which would improve the Bill. The amendment proposes that there should be a duty to,
The Government recognise that public authorities should, in appropriate circumstances, be encouraged to consider consulting a third party where to do so might result in the disclosure of information which would otherwise be exempt. But we do not believe that it is appropriate to place on authorities a statutory duty to do so. For that reason we have set out the requirement as a provision within the Secretary of State's code of practice, which will be made under Clause 44.
Of course the commissioner can look at the way in which an authority is complying with the code. If she is not satisfied that an authority is exercising its functions in conformity with that code she will, of course, as ever, be able to issue practice recommendations under Clause 47 and, if the authority is still not complying, "name and shame" that authority in a report to Parliament.
We think that that is a more appropriate way to deal with the issue.
Lord Mackay of Ardbrecknish: My Lords, before the Minister finishes, can he tell us what the advice will say in the code of practice?
Lord Bassam of Brighton: My Lords, I shall have to take further advice on that point.
The point I was making is that we feel the "name and shame" route and the issuing of practice recommendations would be a more appropriate way of dealing with the issue raised by the noble Lord. I do not dispute that the noble Lord has raised a good issue.
As currently drafted, the draft code of practice contains good practice advice to public authorities on consultation with third parties. It proposes that where, for example, there is an issue of personal privacy and the consent of a third party would enable a disclosure to be made, a public authority should consult that party prior to reaching a decision unless it is clear to the authority that the consent would not be forthcoming.
I think that I have addressed the point made by the noble Lord. If not, I shall reflect further on his observations should he require further explanation.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the Minister. I am puzzled how an authority would know that the consent would not be forthcoming unless it goes and asks the person. It seems rather a nice get out, "I did not ask them because I knew they would not consent". It is not very satisfactory. In any case, it seems amazing that the Government are happy to put something along these lines in a code of practice with that caveat, which I find difficult to understand, but are not prepared to put it on the face of the Bill.
However, I am getting to the desperate stage in regard to some of the Government's arguments on the Bill. I shall not pursue this matter further. I shall read what the noble Lord said and study the words of the code of practice. Perhaps the Minister and his officials will think about it. Will the code of practice be strong enough? As to naming and shaming after the event, there are 50,000 authorities. It will take a devil of a long time to name and shame all 50,000 as cases come up. There will not be that many cases like this; they will not all be flowing in during the first few weeks. Firm guidance should be given on this issue, and the firmest guidance can be given on the face of the Bill.
("( ) Where information is exempt only by virtue of the fact that it is--
(a) information to which subsection (2) applies by virtue of the fact that the first condition referred to in that subsection is satisfied; and
(b) that condition would not be satisfied if the data subject consents to the disclosure,
the authority shall, if it is reasonable in all the circumstances to do so, take reasonable steps to enquire whether the data subject consents to the disclosure.").
"the authority shall, if it is reasonable in all the circumstances to do so, take reasonable steps to enquire whether the data subject consents to the disclosure".
I believe that the amendment is quite unusual in that it means exactly what it says and is fairly easy to understand. Furthermore, it is not subject to some of the disagreements that we have had during most of our debates tonight as regards what exactly the Bill means.
"take reasonable steps to enquire",
of the data subject whether he consents to disclose relevant information,
"if it is reasonable in all the circumstances".
I have noted that this is not a duty to consult. I would not support such a duty, but I could at least understand how it might be enforced. But the duty which this amendment proposes is too vague to be effective or to be effectively enforceable.
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