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Lord Goodhart: The issues I sought to raise on whether Clause 3 should stand part of the Bill have been covered, to a large extent, in the debate on the first group of amendments to the clause. For that reason, I do not think that any useful purpose would be served were I to pursue them.
5 p.m.
Lord Higgins moved Amendment No. 63:
- After Clause 3, insert the following new clause--
(" .--(1) The Secretary of State shall prepare a code of practice on the use and processing of personal data for purposes associated with the provisions of this Act or the relevant provisions of any enactment amended by this Act.
(2) A copy of any code of practice prepared under the provisions of this section shall be laid before Parliament.
(3) Before he lays before Parliament a copy of any code of practice prepared under this section, it shall be the duty of the Secretary of State to publish a draft of that code and consider any representations made to him about that draft by--
(a) the Data Protection Commissioner, and
(b) any other person or body,
and he may modify that draft accordingly.
(4) A code of practice prepared under the provisions of this section shall not come into effect until it has been approved by resolution of each House of Parliament and issued by the Secretary of State.
(5) The Secretary of State may from time to time revise the whole or any part of a code of practice issued under the provisions of this section, and the provisions of subsections (1) to (4) above shall apply to any such revision, with appropriate modifications.
(6) It shall be the duty of the individual nominated by the Secretary of State to keep under review compliance with any code of practice issued under the provisions of this section, and in pursuance of this duty he shall have power to require the provision of any information necessary to him in the discharge of this duty.
(7) Where the individual nominated by the Secretary of State considers that the provisions of any code of practice issued under this section have been breached, then such a breach will be deemed to be a breach of the principles to which that part of the code relates.
(8) The Secretary of State shall lay before Parliament annually a report on the monitoring of compliance with any code of practice issued under this section.").
The noble Lord said: In moving this amendment, it may be convenient if I speak also to Amendment No. 102. This rather lengthy amendment seeks to insert into the Bill a new clause which would, in effect, provide a draft code of practice. We have spent a great deal of time discussing the code of practice in the course of our debates. When we had our helpful informal discussions with the Minister, we understood that the code of practice would be produced between now and Report stage. That is extremely important if we are to ensure that many of the doubts which have been expressed can be dealt with adequately through a code of practice rather than on the face of the Bill. Obviously, some proposals can appropriately be dealt with in that way. However, when we see the code of practice we may find that other points ought to be incorporated into the Bill.
Amendment No. 102 amends the commencement provisions by stating that,
It will not be a simple matter to devise the code of practice. A large number of aspects of the Bill, in particular those which have been raised by the Information Commissioner and by Justice, have given us cause for concern. I believe that we might also be able to tighten up the proposals as regards the extent to which the investigation to be carried out is justified and so forth. Perhaps the noble Baroness can now confirm that the code of practice will be published between now and the Report stage.
In Amendment No. 63 we have drafted a form of words which reflect a certain degree of plagiarism. I understand that this code of practice was suggested in 1997 by the Labour Party spokesman on a similar issue--Mr Henry McLeish was the author. Although
At this point, can the Minister tell the Committee whether the Government envisage producing a comprehensive code of practice? Can she also confirm whether the Information Commissioner--I must say that I thought the title, "Data Protection Commissioner" was rather better--will be involved in the preparation of the code? Will the code that we see at the next stage have been approved by her? If that is the case, then a great many of the qualms which have been expressed about the terms of Clause 1 will be alleviated. Perhaps the noble Baroness can bring us up to date and let us know the state of play. I beg to move.
Lord Goodhart: I support the noble Lord, Lord Higgins, on this matter. The code of practice will be extremely important, in particular as regards the concerns raised in connection with Clause 1 on the infringement of human rights. If we are not to have any degree of judicial control put in place over the use of the powers under Clause 1, then a good, solid code of practice will be absolutely essential. Furthermore, it is strongly desirable that we should have not only a code, but a code that is subject to a measure of parliamentary control. The initial version should be subject at least to the affirmative resolution procedure, as is proposed here.
I am not sure that I agree with some of the drafting in the amendment. Subsection (7) of the proposed new clause is a little unclear in its meaning and effect. I believe that we may also encounter problems with Amendment No. 102, which would prevent the Bill being enacted until a resolution had been passed. Nevertheless, I agree with the principle and I am happy to express my support.
Baroness Noakes: In expressing my support for the amendment, perhaps I may widen the scope a little. As drafted, it covers the use and processing of personal data. However, another area is causing concern. At the briefing given by the Minister before we began our deliberations in Committee, she spoke of the way in which the code of practice would exactly cover how the powers are to be used and how business will interface with the DSS and local authorities. That is important and will cover many unanswered questions being put by the corporate organisations which will be affected by the new powers.
Although what I have pointed out is not contained in the wording of the proposed new clause, I should be grateful if the noble Baroness could express her view on the matter.
Baroness Hollis of Heigham: We have always intended that the information gathering provisions in Clauses 1 and 2--although not for the rest of the Bill--would be subject to a code of practice. Noble Lords will recall that I explained during the first Committee
I should say also that noble Lords will receive a draft version of the code of practice before the Report stage. It will draw on comments made by noble Lords and also by business. That may provide the opportunity being sought by the noble Baroness, Lady Noakes. The final version will be shown to the Information Commissioner. That explains how we aim to proceed.
The code of practice will cover the following issues: why we need to make inquiries; the extent and nature of the new powers; who can use them; how we will authorise officers to make inquiries; the standards to be expected from those using the powers; how we will safeguard the information obtained; what kind of information we will require; what will be done with the information; penalties for misuse of the powers; from whom we will require information; how we will get it; how we will manage our requests for information; the statutory duty to provide information; who will be the data subjects; what are reasonable grounds; training of staff; what checks we will make to ensure that our requests are lawful; the safeguards in place to ensure confidentiality and security; appeals and complaints procedures; rights of subject access; principles of electronic access; human rights compatibility; data protection compatibility; and paying for information. The code will set out the distinctions between making inquiries about individuals and bulk matching. Indeed, it will be written in a way that will meet the concerns of three audiences: the investigator, at whom it is primarily aimed; the data provider and the data subject.
I have taken up the Committee's time with that explanation because I thought it might be useful before we come to Report stage to specify the code. I hope that the Committee will agree that it is extremely full and that it meets any residual concerns.
Complaints about DSS staff will be addressed to the professional standards unit of the office of our chief of investigations, as will complaints about local authorities if complainants do not get satisfaction from the local authorities themselves.
We all agree that the code of practice should provide a clear guide to authorised officers, setting out the limitations of their powers and the standards of behaviour expected of them when conducting their inquiries. We have discussed previously in Committee the level of experience we can expect those officials to have. We have already consulted with representatives of business and we are seeking to meet them in regard to working on the draft and before the draft becomes the final code of practice.
The new clause proposed in Amendment No. 63 contains a number of detailed provisions relating to the code of practice. There is a great deal within the proposed new clause with which I concur, although I am not convinced that it all needs to be included in the legislation. It is important to produce a draft code of practice for consultation--which we shall do--and that the consultation should be widespread and
I listened to the debates on Second Reading and at last week's Committee stage. That is why I have tried to spell out what will go into the content of such a code of conduct and to ensure that business will have ample opportunity to take part in consultations and to comment upon it.
I recognise the concern about the need for additional certainty on this issue--which is the point behind the amendment--and I should like to consider further whether, and in what form, the Bill should contain provision for a code of practice on Clauses 1 and 2. If the noble Lord will agree to withdraw the amendment, I shall endeavour to bring forward a government amendment on Report to address that concern.
As to Amendment No. 102, the noble Lord, Lord Goodhart, has already done his "this is a wrecking amendment" speech because it is technically flawed. He is, of course, absolutely right. It was never our intention to commence the provisions in Clauses 1 and 2 without a code. The problem with the amendment is that it makes the whole Bill subject to a code of practice and we could not implement any part of it without one. I cannot think that that is what the noble Lord intends.
I could go on, but it may be that in the light of the heavy guns fired by the noble Lord, Lord Goodhart, and the grapeshot from myself, the noble Lord, Lord Higgins, may feel that he does not wish to pursue this matter either. I shall not continue with my remarks as to why it would be inappropriate to apply it to colluding employers, benefit penalties and so on because I cannot believe that that is what the noble Lord intended. The code of practice is not relevant to that part of the Bill.
In the light of that explanation and the rather full description of what may be contained within the code of practice, together with reassurances about not only consultation but seeking to give it some security by returning with an amendment to place it on the face of the Bill, I hope that the noble Lord will feel able to withdraw his amendment.
"no such statutory instrument shall be laid until an order containing the code of practice for the administration of this Act shall have been approved by both Houses of Parliament".
This may be a technical problem in that, before it is introduced, it would be desirable for the House and another place to be given an opportunity to express their views on a code of practice and, if possible, to suggest amendments to it. We shall need to see how that might be done either on Report or at Third Reading.
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