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Baroness Hollis of Heigham: It is grouped on the list that I have.
Lord Higgins: The noble Baroness has a more updated list. I am entirely happy that it should be grouped; that is appropriate. As the noble Lord pointed out, he has tabled a series of amendments on specific points which are designed to improve the drafting--although, I think I am right in saying that to some extent, in improving the drafting, the amendments narrow the provisions of the clause to individuals rather than to any wider group. So this is not purely a drafting matter. It may well be that this is helpful in the context of whether the provision contravenes the Human Rights Act and so on. As I said at the beginning, there is bound to be a thread running through all our debates--either human rights or data protection.
We have no wish to prolong proceedings or to have tedious repetition. Therefore, it will probably be helpful to the Committee if we deal with the broad issue of human rights when we come to debate whether the clause shall stand part. We have heard some powerful representations on that point. But it is clearly relevant in relation to this set of clauses, and particularly in relation to Amendment No. 32.
Concern was expressed at Second Reading about the provision in the clause stating:
- "it is legitimate to make a person the subject of an inquiry if there are reasonable grounds for believing that he is or may be ... (c) a person belonging to any description of persons who are more likely than others to fall within paragraph (a) or (b) above".
There is also a more general concern. At Second Reading the noble Baroness cited the example of window cleaners. She seemed rather preoccupied with window cleaners in relation to an earlier amendment. Why all window cleaners should be stigmatised in this way, I do not understand. No doubt the Minister will produce other examples, but at present it seems that she is endeavouring to enter a rather specialist field! It seems to me that the subsection is objectionable. That is also the widespread view outside this Chamber.
The noble Lord raised the question of whether the paragraph is likely to contravene the provisions. He rightly pointed out that this may reasonably be interpreted to mean a more than 50 per cent chance. I have the gravest doubts as to whether there is a more than 50 per chance of window cleaners engaging in social security fraud; however, it is a serious point. The question of the words "or is likely to" give legitimate cause for concern.
The noble Lord raised other important aspects. We have received representations from a number of outside groups that the subsection could be used routinely and arbitrarily in circumstances where there is no reasonable suspicion of fraudulent activity or criminal conduct, and that such powers should be restricted to cases where there are reasonable grounds for believing that an offence has been committed. For all these reasons, there is a strong case for arguing that paragraph (c) should be deleted from subsection (2C) .
A further point raised by the noble Lord related to previous convictions. This brings us to the question of whether it is a person who has contravened--as against "is likely to contravene"--the social security regulations. The preoccupation there is that we must consider whether past offences should be taken into account when deciding whether or not a further offence is "likely to" be perpetrated. Indeed, we come to this point later with the, "two strikes and you are out" argument. None the less, it is a point that we need to consider carefully.
Overall, I believe this to be an important amendment. It would not be appropriate to vote on it tonight, but my feeling is that the noble Baroness would be wise to accept that new subsection (2C)(c) is objectionable on a number of counts. It is not really necessary for the correct functioning of the Bill. Indeed, that was borne out by the noble Lord's remarks on proposing the amendments and supporting, as I understand it, Amendment No. 32. On that basis, I very much hope that the noble Baroness will be able to accept the amendment. That would save us a good deal of time on Report.
Earl Russell: We are dealing with a new subsection (2C) to the administration Act, which, I believe I am right in saying, attracted as much unfavourable
comment on Second Reading as the whole of the rest of the Bill put together. I support Amendments Nos. 20 and 22, tabled in the name of the noble Lord, Lord Grabiner. I am most grateful to him for his support for Amendment No. 32 to which my noble friend Lord Goodhart and I, as well as the two noble Lords on the Opposition Front Bench, have attached our names. I can only apologise to the noble Lord for depriving him of the opportunity of adding his name, which I should have been very happy to see there.The noble Lord explained the case against paragraph (c) with such wonderful lucidity that I can only wish that I shall be able to express it as clearly when we reach Third Reading. However, my misgivings extend a little wider than that. Essentially, they come under two headings. I do not believe that I have any objection to the Minister's policy intention, as we discovered that in the briefing meeting and on Second Reading. The Government are attempting to do something that I do not wish to stop them from doing. My concern is with the words with which it is expressed.
In general terms, my concern falls under two headings. The first is that defining people as members of a class--that is, any class, even window cleaners--is not a prima face ground for suspicion, at least not a judicial prima face ground for suspicion. As soon as you identify people by a class, you are judging them on something other than their own nature, their own character and their own record of what they have done. For that reason, among many others, I was delighted by what the noble Lord, Lord Grabiner, said about Amendment No. 32.
My other concern is that I feel a profound misgiving about any legislative drafting that defines what it is looking for by reference to the future rather than to the past. I believe that the Minister will understand why the section of my notes bearing on the whole of new subsection (2C) is headed, "The man most likely to". The concept recurs over and over again. As soon as you start talking about people who are "likely to" do certain things, you are into the area of prophecy. As every gambler and every weather-forecaster knows, prophecy is an extremely risky activity. But the point that emerges through listening carefully to the noble Lord, Lord Grabiner, and to the Minister, is that these projections that people are "likely to" do something normally rest on something solid that those people have done.
Therefore, rather than using the prophecy as the defining feature of the Bill, it seems to me that it might be wiser to move away from the prophecy and return to the solid thing that the person has done that gave rise to the prophecy in the first place. The effect would be the same, but, conceptually, I would find it a great deal more acceptable. I hope that the Minister will understand why. Legislation, investigation and detection--which is what this is essentially--must rest on some genuine ground of suspicion, which focuses on the actual behaviour of that individual. As the words, "likely to" are being invoked because of something that the person has done, if we return to that activity we shall do rather better.
I had a first stab at making a draft to deal with the issue by way of Amendment No. 29, which is tabled in my name and that of my noble friend Lord Goodhart. It proposes to strike out all of these "likelies" and to authorise an investigation if there is reasonable ground for suspicion that the person has committed, or intends to commit, a benefit offence. I hope that the notion of intention covers the same ground that is invoked by the words "likely to". I believe that it does so in a slightly more concrete and, therefore, slightly better justiciable way. It is an amateur piece of drafting, to which I am not wedded. I shall listen carefully to any suggestions that the Minister makes for its improvement. However, it must be fastened on what the person has done. To me, that is the one essential element.
If we had that ground and included the concept of intention, it seems to me that the subordinate paragraphs (a), (b) and (c) would no longer be necessary. We could then have the advantage that would please the noble and learned Lord, Lord Simon of Glaisdale, of keeping down the growing prolixity of the statute book. Other things being equal, that is a good objective. There is, perhaps, some policy intention behind paragraphs (a), (b) and (c) that I have missed and for which we still need words to express. If the Minister says so, I shall listen most carefully to what she has to say. I would be interested in trying to make a further draft to try to meet the Minister on that point.
However, as far as I can see, Amendment No. 29 authorises investigation into all those whom the department wants to investigate. If that is not good enough, I shall be very interested to hear why not. With an open mind, I am ready to play it from there.
Lord Goodhart: Perhaps I may briefly follow my noble friend Lord Russell. I believe that there is another problem with the use of the word, "likely" in that there is an ambiguity about it. Does it mean that you are prophesying something about the future, which I believe is the way that both the noble Lord, Lord Grabiner, and my noble friend have interpreted the word? It could also mean that you are looking not at someone who is likely at some future time to commit and offence, but at someone who is likely to be committing an offence now; and, indeed, if you investigate that fact, you will find that he is committing an offence. It seems to me that the Bill is perhaps directed at the second of those meanings. If you are simply looking at someone who has a propensity to commit an offence and may commit it in the future, you are unlikely to find any useful information now because, by definition, he is not committing an offence.
Alternatively, if you are looking at someone who is the sort of person "likely to" commit that offence and if, by looking through the facts, you may find that he is committing it now, there would be some logic behind the provision. However, at the same time, that particular logic seems to me to lead to exactly the same problem that arises with new subsection (2C)(c); in
other words, you are investigating someone not because you have actual reason to believe that he is committing an offence, but simply because he is the sort of person who might be committing an offence. Indeed, if you look into the matter, you may find that he is committing an offence--
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