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Lord Higgins: I am grateful for that explanation. Presumably it could still include the teenage daughter of a member--
Baroness Hollis of Heigham: If the teenage daughter or someone below the age of 16, or even possibly below the age of 19, is in full-time education and the claimant was receiving income support or JSA for that child, certainly yes. It might be that that child of 16 or 17 was actually in work but he or she was still claiming benefit for that child.
Earl Russell: The definition of a family is embedded in social security law right back to the National Assistance Act 1948. It is deep in the case law and in the terminology of the subject. It would be extremely difficult to uproot it if we thought it desirable, which, personally, I do not.
Lord Higgins: In the light of all that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Astor of Hever moved Amendment No. 34:
- Clause 1, page 2, line 44, at end insert--
The noble Lord said: We wish to ensure that all investigations into individual cases are initiated on appropriate grounds for suspicion and not via any random trawling through innocent persons' information.
The amendment seeks to probe how far the Government are prepared to use the legislation to intrude on innocent activity and individuals. We are
Although we are in favour of setting targets, it is vital for them to be meaningful and not abused. It is important to determine the limit to which officials may exercise their powers and to provide some protection for the rights of individuals. Where there is no suspicion, evidence or history of criminal activity, the Government should not allow for random, unsubstantiated fishing trips to take place. I beg to move.
Earl Russell: I am not capable of forming a final decision on the amendment at the moment because I very much hope that the re-drafting of new subsection (2C) will make perfectly plain that it is unnecessary. But were it proved to be necessary I would then support it with alacrity.
Baroness Hollis of Heigham: This is another amendment that could usefully be grouped back with the other discussion. The amendment would prevent us from making inquiries of people selected on the basis of spot checks or through any automated form of selection. It would prevent us using the powers in two ways. First, it would prevent us making inquiries about people selected on a random basis. There is nothing in the Bill that would allow us to make inquiries about a person selected at random. We need reasonable grounds to believe that he or she has committed fraud either now or in the past, or, following my undertaking, intends to commit fraud.
Secondly, the amendment prevents us from making inquiries of people identified by an automated process. The only instance where we would be able to do so is where we have made inquiries of people under new Section (2C)(c) who were disproportionately likely to commit fraud. Any other suspicions of fraud would be in response to some evidence, such as a tip-off from a former partner, a workmate or a person's behaviour, and this could not be automated. So on those grounds, too, the amendment is unnecessary.
New subsection (2C) states that we need "reasonable grounds" for making such inquiries. "Reasonable grounds" are not covered by random checks, spot checks or anything else. Our decisions have to be based on objective evidence; that is, reasonable grounds for having a well-founded belief. With those assurances, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Astor of Hever: In the light of the firm assurances given by the Minister, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Higgins moved Amendment No. 35:
The noble Lord said: It is not my intention to go over the same points I made in moving Amendment No. 1 some considerable time ago. However, it is clear that the representations made by the Data Protection Commissioner were very strong indeed. I have difficulty in recalling representations expressed in such very strong terms from anyone in that kind of position against a proposal from the Government. Clearly, the commissioner is worried about the conflict between the legislation on which her role is based and the proposals in the Bill.
Following the response of the commissioner to the consultation exercise, I presume that discussions have taken place on this set of issues either with officials or, as I would have thought more likely, with Ministers. However, we do not find on the Marshalled List any government amendment to meet the serious concerns expressed by the commissioner. Therefore, it is quite probable--I shall leave on one side whether it is a 50 per cent probability or higher--or quite likely even, that the Act under which the commissioner holds her authority and the Bill now before the Committee are in conflict in various respects. The commissioner has set out the issues very cogently. Therefore, as there are always problems if there is a conflict between one piece of legislation and another, it is important that we should be clear whether, if such a conflict were to arise, does arise, is intended to arise or is likely to arise, the provisions of the Bill or the legislation providing the powers for the Data Protection Commissioner's operations will prevail.
It is a reasonable precaution to ensure that in future we do not find the courts having a real problem in deciding which of two pieces of legislation is the more important. I beg to move.
Earl Russell: I should be grateful for a little advice. At some stage we need to discuss the question of data protection. I had intended to do so during the debate on Clause 1 stand part. Would it be for the greater convenience of the Committee if we were to do so now and get it all over with in one debate?
Baroness Hollis of Heigham: As long as the noble Earl does not repeat his remarks when we reach Clause 1 stand part.
We need to take into account the disincentive effect on people who may be thinking of depositing their data in a place where they may be looked at. We have seen this with the poll tax, the census and the electoral register. The Minister is well aware that the Government are interested in trying to persuade more people in receipt of benefit to make use of bank accounts in one form or another. It could well be that the prospect of having their data, which they have
Under the Data Protection Act, we have a series of criteria which should be taken into account, on which I shall touch briefly. There is the question of transparency. When one gives data to a bank or other institution, an undertaking of confidentiality is agreed and one needs some understanding of exactly who will have access to that data. I appreciate that a later Act of Parliament can override an earlier duty of confidentiality. Proverbially, an Act of Parliament may do whatever it likes, but it does not follow that an Act of Parliament should do whatever it likes. If it does have such a deterrent effect, it may be worth considering how far it should go in doing that under the criterion of fairness.
The Minister's comments on subsection (2C)(c) encourage me to say that there will be no need to spend nearly as long on it as I had first intended. However, we have here no additional penalties for the abuse of information. If we are thinking in terms of safeguards under the European Convention on Human Rights, the question of penalties for abuse of information for a purpose other than that for which it was collected is likely to be quite important. Before we are finished with the Bill, we may need to think of an amendment designed to meet that need. However, such an amendment would not be suited to amateur drafting, which is why I have not, at this stage, made any attempt to advance one. If such an amendment were to be drafted, I should prefer to see it agreed through informal discussion outside the Chamber before it is brought before the Committee. Negotiations over the wording could become rather lengthy.
Another general principle arises over the question of security. Abuse always takes place in one way or another. However, I made most of my remarks on that matter in the debate on Amendment No. 1 and I shall not return to it. I shall return to only one point on which I have not yet touched; namely, the danger inherent in collecting data on the wrong person. I understand that a serious piece of academic work argues that "Shakespeare" was not written by Shakespeare, but by someone else of the same name. A great many people share the same name as others. If the data produced refer to the wrong person, a great deal of misapprehension may result.
Until very recently, I was not the only "Lord Russell" in this Chamber. The amount of his post which I received and the amount of my post which he received--in both cases that sometimes still happens--is very large indeed. The danger of a bank revealing that data about one of us in mistake for the other would be real. His grandfather and my father once wrote a joint letter to The Times saying, "Sir, we hereby wish to state that neither of us is the other". If no protection is in place against data being produced about the wrong person, a good many other people may wish to do exactly the same thing before the effect of the Bill is through.
The question of safeguards and the question of whether the action can be proved to be necessary are both subjects that I addressed in my remarks on Amendment No. 1. They need further thought, but for the moment I shall say no more about them.
("( ) It shall not be legitimate to make a person the subject of an inquiry on the basis of a spot check or any automated form of selection.").
Page 2, line 44, at end insert--
("( ) Nothing in this Act shall authorise an inquiry which contravenes any provision of the Data Protection Act 1998.").
10 p.m.
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