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The noble Lord said: My Lords, Amendment No. 4 is a mirror image of the previous amendment. We are now told that inquiries will be made on a relatively centralised basis, albeit there are some 14 centres. But the question then arises whether they will be directed
This matter was discussed briefly in Committee and the Government were able to say that it will be possible for it to be done through a single part of the organisation from whom the information is being requested. We see again in paragraphs 422 and 423 of the code of practice that that will be done. The noble Baroness pointed out that my original amendment would have been too restrictive; it could only have been done through a single access point. However, she has fulfilled what she said in Committee and the code reflects that. However, perhaps she will once again confirm it. I beg to move.
Baroness Hollis of Heigham: My Lords, I am happy to give that confirmation. I agree with the noble Lord that it is helpful to cross-read amendments against the draft code in order to clarify any possible misunderstandings. We will go to the point to which businesses wish us to go, which will normally be a central department. That is what many organisations request when dealing with the police. Where an organisation does not wish to set up a central point--for example, a school--which may be too elaborate when dealing with a very occasional inquiry, we shall not force them to do so. Were this amendment to be carried, as the noble Lord admitted, the British Bankers' Association said that its effect would be to make the workings potentially inflexible.
I am happy to give the assurances that the noble Lord, Lord Higgins, seeks. We are working very positively with businesses to that effect. We shall do what business wishes. In the light of that assurance, I hope that the noble Lord, Lord Higgins, will feel able to withdraw his amendment.
Lord Higgins: My Lords, in the light of that response, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hollis of Heigham moved Amendment No. 5:
The noble Baroness said: My Lords, in moving Amendment No. 5, I shall speak also to Amendments Nos. 8 and 13 and the grouped amendments that stand in my name. They refer to the circumstances in which authorised officers may obtain information--new subsections (2B) and (2C).
My noble friend Lord Grabiner led an extremely helpful debate on these provisions in Committee. During that debate concerns were expressed in the Chamber about the implications of these "unamended" phrases. Your Lordships expressed two concerns. The first was on the provisions to obtain information on persons falling within groups who are more likely than others to commit fraud. The second concern--particularly identified by the noble Earl, Lord Russell--was the concept of obtaining
Amendment No. 8 is the substantive amendment. It is a rather elegant piece of drafting. On the first of your Lordships' concerns, the amendment removes the provision regarding those in groups more likely than others to commit fraud--the old Section (2C)(c) which now goes. During Committee, I explained that through research we are finding out the characteristics of those people who commit fraud. I took heed of your Lordships' views. We felt that, given the reverse search of the telephone directories--the first amendment that we discussed today--some of our concerns about groups of people that we may wish to pursue (for example, tree fellers) can be met without the possible infringements that subsection (2C) might have opened up. We felt that we could meet the concern of the House and remove subsection (2C)(c).
I turn to the second area of concern and the amendment of the noble Earl, Lord Russell, which replaces the words, "is likely to" with the words, "intended to". I agreed to consider that amendment. As I indicated in Committee, the words "is likely to" were meant to cover circumstances where fraud was intended because we believe it is better to prevent fraud rather than to let it into the system and then have to set about detecting it. I accepted that the words "is likely to" had a more common meaning which might be unacceptable.
The suggestions of the noble Earl, Lord Russell, more or less retain the policy intention while addressing the concerns expressed by the House. Consequently, with the addition of the present tense to the provision--"is committing"--I have returned with an amendment along the lines suggested by the noble Earl. I decided that the suggestion regarding provisions relating to contraventions of social security legislation was in line with our policy intention. I felt that the fact that we could remove those provisions relating to contravention because they were subsumed in the broader category was in line with those statements.
Finally, I was able to go beyond what we agreed in Committee because, in talking subsequently with the noble Lord, Lord Goodhart, I was asked to consider removing the words "or may be" from the test of reasonableness that an authorised officer has to satisfy when considering whether or not to make an inquiry. Thus, an authorised officer would only be able to make an inquiry if it appeared to him that there were reasonable grounds for suspecting that a person "is" a person, as opposed to "may be", who has committed, is committing or intends to commit a benefit offence. It represents a slightly higher test of reasonableness for authorised officers to attain.
That would be sensible and prudent in the light of some of the concerns expressed by your Lordships that there could be ultimately the potential for abuse despite our checks. As a result of that, I accepted the suggestion that we should remove the words--"or may be"--thus tightening the clause even more.
Amendments Nos. 5 and 13 are consequential. So I hope that your Lordships will agree that the Government have listened to the concerns expressed--led by my noble friend Lord Grabiner in Committee--and, as promised, I have brought forward amendments not only to address those concerns but to go slightly further than I promised. I shall be deeply upset if your Lordships feel unable to support my amendments today. I beg to move.
Lord Higgins: My Lords, the Minister and the noble Earl, Lord Russell, on a previous occasion--although not for some years--have heard me quote a dictum by the late Iain Macleod that we do not shoot Santa Claus. What he meant was that, if one had a concession from a government in response to representations, one did not then proceed to make a speech for three hours saying what it was all about in the first place. I intend to follow that practice. I learnt my trade at his feet and it always seemed a good dictum.
The Minister has fulfilled the commitment she gave in Committee to consider this matter, both with regard to the objectionable word "likely" and the extremely objectionable part in relation to groups of persons said to be in danger of committing fraud, even window cleaners. The noble Baroness met both those points admirably. I agree that the amendment is elegantly drafted. We are pleased that these amendments have been moved. It is entirely appropriate to leave unasked how the second of them ever entered the Bill in the first place. None the less, it is a great improvement and we are grateful for it.
Earl Russell: My Lords, we have here a model of the way Parliament ought to work--it sometimes does, and it is nice when it happens. I do not think that the Minister expected to be disappointed in this quarter. The Minister will have observed that I put my name to her amendments. The only reason why I have not put my name to the amendments from the noble Lords, Lord Higgins and Lord Astor of Hever--to which I had my name at the previous stage--is that the Minister's amendments have now rendered them redundant.
I thank noble Lords for what has come about; the Minister for master-minding the whole thing and for seeing an opportunity and taking it. The noble Lord, Lord Grabiner, offered more helpful contributions than we are ever likely to know. My noble friend Lord Goodhart makes me rather pleased I was not able to be present previously because he saw an opportunity and took it with his consummate skill. He produced a great improvement as a result. I thank the Minister's officials. We have a model of proceedings as envisaged in the committees chaired by the noble Earl, Lord Jellicoe, and Lord Rippon of Hexham in which a great deal of the work is done before we come into the Chamber. That work is vital. They played a vital part in it and the Bill is very much improved as a result. I welcome it.
On Question, amendment agreed to.
Lord Astor of Hever moved Amendment No. 5A:
The noble Lord said: My Lords, in moving Amendment No. 5A, with the leave of the House I shall speak also to the consequential Amendment No. 20A.
Amendment No. 5A ensures that an authorised officer can only require information which is likely to be of substantial value to the inquiry, and does not consist of items subject to legal privilege. Sufficient safeguards should be put in place to ensure that the new powers are proportionate to the intended outcome. Amendment No. 5A recognises the importance of an individual's right to privacy by ensuring that information will only be disclosed in circumstances where the information sought will be of substantial value to the investigation and does not consist of or include items which are subject to legal professional privilege. That will ensure that the same criteria as must be fulfilled before a court will grant production orders under other measures, will apply before a notice can be issued.
Article 8 of the European Convention on Human Rights enshrines the right to privacy. The law has shown a willingness to acknowledge that right through, inter alia, the doctrine of legal, professional privilege. To preserve that doctrine and ensure that communications between a solicitor and client are privileged, provision should be made on the face of the Bill to the effect that the power to require information under these provisions will not extend to disclosure of information subject to legal privilege. I beg to move.
("( ) Requests for information made to any of the persons specified in subsection (2A)(a) to (m) above shall be made to a central department in the organisation.").
Page 2, line 24, leave out ("subsections (2C) and (2D) below") and insert ("the following provisions of this section").
Page 2, line 29, at end insert ("and shall be exercisable only if there are reasonable grounds for believing that the information is likely to be of substantial value (whether by itself or together with other material) to the inquiry and does not consist of or include items subject to legal privilege").
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