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Baroness Hollis of Heigham: I do not want to go into a debate which this Chamber has enjoyed many times. The affirmative procedure gives this House scrutiny; it gives the other House control. The problem I have always had with the position of the noble Earl on the right to vote down affirmative orders in this House--I speak as an individual at least as much as a member of the Government--is that I do not think it right that this House should have equal power with the elected Chamber to block secondary legislation. That is where I stand. That would mean that the elected Chamber could pass an affirmative order or agree it and, by voting it down, we could block the will of the other House prevailing. That is where my problems lie. I do not believe that a secondary chamber, especially as we are not an elected secondary chamber, has any authority or legitimacy to do that.

Earl Russell: My problem with that is that equal power with another place to control the Government is no power whatever. Unless they are controlled here they are controlled nowhere.

Baroness Hollis of Heigham: That will remain the difference between us.

Lord Goodhart: I am sorry that we do not have time to pursue that issue, which is extremely interesting and important. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 43 to 45 not moved.]

On Question, Whether Clause 1, as amended, shall stand part of the Bill?

Lord Higgins: When we began debating the Bill--it seems a long time ago--I said that two themes would run through it. One was data protection and the other was human rights. There is some relationship between the two but, as I have said at various stages, it seems to me appropriate to deal with the second issue on the Question whether the clause shall stand part.

Although we have touched on the human rights issue in various amendments, we have not considered other detailed points. I believe that it would be appropriate to do so now but I do not intend to raise other matters which we have considered comprehensively when debating individual amendments.

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It is important to deal with the matter because under the present arrangements the Minister responsible for the Bill is obliged to give an assurance. That appears on the first page of the Bill. Under the heading "EUROPEAN CONVENTION ON HUMAN RIGHTS", we see the statement:

"The Baroness Hollis of Heigham has made the following statement under section 19(1)(a): In my view the provisions of the Social Security Fraud Bill [H.L.] are compatible with the Convention rights".

I have two initial questions to ask about that. It is stated that the Bill is

"compatible with the Convention rights"

rather than with the implementing legislation which we have subsequently and rather dramatically passed. Perhaps the Minister would clarify why that is done in terms of the treaty rights rather than the domestic rights.

Secondly, we are still unclear about the level at which the advice, no doubt advice on which the Minister made her statement, is being given. We do not know whether it comes from within the department, from the Law Officers, from the Foreign Office lawyers or whoever? It is relevant in the context of this Bill because Members of the Committee will have received a notice from Justice setting out a number of problems with the Bill. We must consider whether the advice which the Minister is receiving is likely to be of equal quality or weight to that embodied in the representations made to us by Justice. It would be helpful to know how expert are those advising the noble Baroness.

Justice, in its recommendations, is very clear. It states:

"The extent of the intrusions into privacy rights, sanctioned by the Bill as presently drafted, is unlikely to be justifiable under Article 8 of the convention. In the light of this, the statement of compatibility made in respect of the Bill under Section 19(1)(a) of the Human Rights Act may need to be reconsidered".

That is an important statement.

It is the case that had we accepted Amendment No. 1 much of the doubt expressed by the representations we have received would have been put at rest. Paragraph 15 of the note points out that a minimum safeguard Justice considers fair should be prior judicial authorisation for the compulsory acquisition of information in each particular case. It goes on to cite Klaus v Germany in the European Court of Human Rights to that effect.

However, the Committee has not accepted Amendment No. 1. That raises the question whether the doubts which have been expressed in this respect are valid, and the dangers if they are not. I am not sure what the consequences will be if they are not. Irrespective of whether that will be resolved by the Human Rights Act being invoked or the European Court of Human Rights, at all events it lends strength to the argument that Amendment No. 1 is important and should be reconsidered on Report.

Having said that, a number of the comments made by the Minister this evening lead one to believe that some of the complaints about the Bill as it now stands

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may not in the event turn out to be a problem. We spent some time debating the question of whether something is likely to be a contravention of social security law. I believe that it was implied that the Minister would look at it and perhaps clear up that particular point. The other remarks related to subsection (2C)(c). The suggestion that that matter will be eliminated by Amendment No. 32, or something like it, also helps to reassure those who are concerned about the position under the convention.

Another important point is the report of the Select Committee on Delegated Powers and Deregulation which expresses concerns, which are reflected in the recommendations of Justice, about whether the order-making powers are too great. The Select Committee suggested that various assurances might be given with regard to the uses of the powers in Clause 6(8) and (10).

11 p.m.

Baroness Hollis of Heigham: Has the noble Lord had access to the sixth report of the Delegated Powers and Deregulation Committee. That is the committee's response to the Government's response to the fifth report. If so, the noble Lord will see that the committee says that the Government have responded constructively and satisfactorily.

Lord Higgins: In that case, I take the point. If so, is it the case that the assurances have been comprehensively put together and laid before the House as a clear package, as the Select Committee recommended?

Baroness Hollis of Heigham: Yes.

Lord Higgins: Obviously, I accept what the Minister says on that point. None the less, we shall need to consider carefully at later stages of the Bill the extent to which the provisions of the Bill are compatible with the convention; in particular, whether the various provisions of subsection (2C) are proportionate to the requirements of the legislation and sufficiently specific. However, in that respect the point made by the noble Lord, Lord Grabiner, about making the provision relate to a particular individual may be helpful. Other than that, I believe that it would be helpful to have the Minister's comments on the points that I raise.

Lord Goodhart: I rise only because the noble Lord's reference to Justice reminds me that earlier I should have made a declaration of interest. I am a vice-chairman of the council of Justice. As an officer of that organisation, it is right that I declare that interest.

Lord Grabiner: I shall be very brief. The reason for brevity, apart from the fact that it is my natural inclination, is that I believe that the debate which may otherwise result from the notice of intention to oppose the Question that Clause 1 stand part of the Bill will be much more fruitful when the Committee sees the wording of the Bill in the light of amendments accepted thus far and the amendments which the

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Committee anticipates will be tabled by my noble friend. So I do not propose at this hour to devote time to discussing the specific point, save to pick up two matters.

The noble Lord drew attention to the language of the endorsement on the face of the Bill. My understanding is that that is in absolutely standard form and is entirely consistent with the requirements of Section 19(1)(a) of the Human Rights Act, a provision to which the noble Lord specifically referred. That is precisely what the endorsement says. The meaning of convention rights is defined in Section 1 of the 1998 Act as encompassing the relevant provisions of the articles of the convention and the relevant articles of the first and sixth protocols as read with Articles 16 to 18 of the convention. It is in standard form.

I, too, should disclose a position in Justice. It is not as dignified as that of my noble friend; I am a mere council member. But I want to enter a note of caution in this discussion. Every person has a view about whether or not what we are discussing and the kinds of matters we have been discussing today are compatible with the European Convention on Human Rights. The mere fact that someone, however distinguished, from whatever organisation, however outstanding and wonderful, expresses a view about these matters should be taken careful account of.

But at the end of the day these are essentially judgmental matters. They are about reasonableness, fairness and common sense. Part of the process involves the debate that we have been having today. My own view, for what it is worth, is that what we have been discussing and what we have so far been agreeing to has all been in accordance with the requirements of the convention and compatible with it. If I felt that it was not, I would not have gone along with it. But I think that that discussion would be much more fruitfully had in the light of a clearer and cleaner version of Clause 1.

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