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Lord Goodhart: Before the noble Lord sits down, perhaps I may ask whether the logic of his argument--that it is not necessary to get a magistrates' order in order to obtain this private information--would lead on to the argument that it is quite unnecessary to go to a magistrate in order to obtain a search warrant to search someone's house because the police officer who believes that there is reason to do so is satisfied in his own mind.
Lord Grabiner: The concerns that drive the answer to the question of whether or not the obtaining of a search warrant should be made subject to an order of
the court would no doubt depend on the particular context. I know, for example, that such procedures and provisions apply in relation to serious revenue offences, or to the suspicion that there has been a serious revenue offence. However, it does not follow that the investigatory powers that are being sought would operate in a context that should be subject to the same considerations that statutorily will be applied, if that is the decision, in the case of search warrants.I turn to another important point in this context. We talk a great deal about the infringement of rights, and it is entirely right for us to do so. The Human Rights Act 1998 is an important part of our law. Articles 8 and 14 are critical in this discussion. We shall later discuss that in more detail. In that debate I shall certainly draw attention to the provisions of Section 29 of the current data protection legislation. That section legislates for the permission that is granted in the second paragraph of Article 8 of the convention, and it deals with the fact that it is right and proper to permit an interference with what would otherwise be people's rights under the first paragraph of Article 8 in a suitable case. A suitable case is one that involves the need to detect tax avoidance, or perhaps I should say tax evasion, a subtle distinction, but Members of the Committee will be familiar with it. It also involves the need to detect crime in its early stages. There is little point in closing the gate after the horse has bolted.
The provisions are consistent with the entitlement that is granted under Section 29 and provide an opportunity to detect wrongdoing in advance and without the need to wait until it is too late to do anything about it. If we talk about necessity in this context, I respectfully suggest that Section 29 has to be taken into account. The relationship operates both ways: we need to take into account fairness to the individual and fairness to the community at large.
Earl Russell: The noble Lord, Lord Grabiner, is correct to say that fairness works both ways, but he made a remark that surprised me very much. He said that he could not see that a useful purpose would be served by allowing the test that is currently in the Bill to be used by someone other than the investigating officer. However, it is surely fundamental, as a principle of law, of politics, and of common prudence, that having to consult someone else and rely on his decision before going ahead and doing what one wants to do is a valuable belt-and-braces double check on human judgment, which at all times is necessarily imperfect.
I was also a little surprised by the extent to which the noble Lord relied on the argument that the courts would be overwhelmed by the body of work. However much that argument may have some substance in fact, it is capable of being worked to a dangerous degree of extension. If he relies on that argument I should be grateful if he would indicate what the point is beyond which he would not take it. How great an erosion of reliance on the courts would he allow in order to pursue his objectives?
The trouble is that the DSS and other government departments far too easily think that because something appears to them to be just and expedient they should be free to do what they want without further checks or controls. We all feel that, but it is not always good for us to be able to get away with it. I shall return to that point when we discuss the Bill's regulation-making powers. I detected just a whiff of that approach in the noble Lord's speech. I look forward to his further answers because I have not yet heard enough to persuade me.
4.45 p.m.
Lord Grabiner: I shall try to deal with the two points that the noble Earl made. On the first, I suspect that I was putting my argument inadequately. I pointed to the fact that the investigator has to be satisfied that there are reasonable grounds for forming the judgment that he has prima facie formed, and I discovered in the amendment that a similar test--indeed, precisely the same test--would be deployed. The point I was trying to make was that I find the situation illogical. A complaining individual, so to speak, may be targeted by the exercise of the powers, and it might be said, when the individual investigating officer had formed that judgment, that the individual's behaviour would be susceptible to judicial review; that is, to civil proceedings. However, that approach would disappear if the individual had to satisfy a magistrates' court of precisely the same test because that would involve criminal jurisdiction. The point I was trying to make was that that seemed an unnecessary and illogical confusion. I well understand the belt-and-braces argument, but the real argument is about whether the particular context justifies what I would regard as a rather onerous and burdensome way of going about things.
That brings me to the noble Earl's second point, although I should be happy to give way to him if he would prefer me to do so.
Earl Russell: No, the noble Lord should conclude his speech.
Lord Grabiner: The noble Earl's second point was about how far we should be willing effectively to erode the legal process in favour of the individual. I am not in favour of eroding any legal processes for any individual. Apart from anything else, that would be inconsistent with my professional life. The more legal process there is, the better off I am. I thereby disclose an interest. In a more serious vein, the decision is essentially a matter of judgment. Are we discussing a situation that falls on the side of the line that requires the judicial approval of a magistrate before the matter can be taken any further? Alternatively--I contend that this is the case--are we on the side of the line that involves saying that it is good enough, given the context of a particular case, that the matter need not go to a magistrate because it could be dealt with effectively by an investigating officer who acts bona fide and in accordance with the requirements of the statutory provision?
What persuades me that it is unnecessary to go through the process of a magistrates' court--I appreciate that this may not necessarily persuade the noble Earl--is that if one exercises the powers, one is taken to the continuing process of inquiry. One is not taken to prosecution or conviction. One is taken to a process of further inquiry. If the matter is to go any further, there are adequate safeguards in the system--in the criminal process--for dealing with any complaint that may arise thereafter. I respectfully suggest that in many cases the matter will go no further but if it does there will be adequate safeguards to protect the individual.
Lord Higgins: It may be convenient for me to intervene now rather than later. I want to take up some of the issues raised by the noble Lord, Lord Grabiner. I may not have fully understood his arguments. I am not, as Members of the Committee know, a lawyer. He keeps referring to a magistrates' court. I searched in vain in the amendment for such an expression. That is a relevant consideration. Having said that, the question is whether it is appropriate for a magistrate to take an impartial view on the issue. The noble Lord pointed out that the test is much the same in both cases but that there is a difference between the test being applied by someone who is an authorised officer of a department and by a magistrate who will adopt an impartial view and who may be able to appraise the situation. After all, those authorised officers are not going to be at the level at which decisions are taken; for example, cases in regard to Inland Revenue fraud and so forth, where it is an impartial officer in the department.
Judicial review may arise if the matter comes to court. But all these investigations are going on without the individual's knowledge. It is only if the department eventually decides that there may be a case to answer that the individual is told. None the less, a great deal of this information will start floating around the system and one of the worries I have about the Bill generally--perhaps reflected in the views of the commissioner--is that the information, once it is in the system, will tend to leak from one part to another. Hitherto there have been the most stringent Chinese walls between various government departments, but increasingly those seem to be disappearing.
It is for those reasons, among others, that we feel there is a case for this amendment. The noble Lord, Lord Grabiner, says that the Bill will be emasculated. But such provisions did not emasculate any of the Bills concerned with other offences. As far as I know--perhaps the noble Baroness will tell us if I am wrong--in other instances there is a degree of impartial review of whether or not it is appropriate to go ahead.
Lord Grabiner: Perhaps I may respond briefly to those points. I did say "magistrates' court" and the amendment refers to "a magistrate". I presume that what is intended is that the matter can be dealt with by a single magistrate, and I stand corrected accordingly. However, it does involve the judicial process. I do not know how one goes about that; I have not been in such
a place for many years. But I am sure that it takes up valuable time and is expensive. That may not be so for an individual case but, multiplied by the anticipated 900,000 figure, it comes to a lot of time and quite a lot of money.
I did not say that the provision would emasculate the Bill; I said that it would emasculate the Clause 1 powers with which we are concerned in this amendment. My final point--and then I shall sit down--is that we are concerned about investigating officers who will, as I understand it, be nominated persons specially trained for the tasks involved in this legislation. They will be brand new powers, the use of which will require proper training and education.
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