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Anti-terrorism, Crime and Security Bill
8.25 p.m.
House again in Committee on Clause 17.
Lord Phillips of Sudbury moved Amendment No. 49:
- Page 7, line 7, after Xauthority" insert Xpursuant to an authorisation order"
The noble Lord said: This group of amendments is important. Amendment No. 89 sets out a proposed new clause dealing with what are called Xauthorisation orders". Such orders would be the only method by which public bodies could be put in the position of having to consider disclosure under Clause 17.
In the light of what the noble Lord, Lord McIntosh, said earlier, I should explain briefly why we believe that this major change to the Bill is essential to its fairness and fair working. The noble Lord made the point two or three times that many of the objections to Clause 17 are misplaced because the workings of the clause will have to be consonant with the requirements of the Human Rights Act, and he referred to the aspects of the Human Rights Act which deal with proportionality and reasonableness.
However, although I am a great supporter of the Human Rights Act, both in concept and now, it has always seemed to me—I am not alone in this—that it would be a bad day for Parliament if it resorted to legislation which failed to grapple with the details, particularly as they may affect civil and individual liberties, but in every case fell back on the parrot cry, XWell, don't worry, old son, you've got the Human Rights Act". We on this side of the House feel very strongly—and I know that the main Opposition party concurs—that it is vital that the protections which, in our view, should be integral to what the noble Lord, Lord McIntosh, admitted was a huge extension of disclosure, should be clear, practical and useable. Above all, using the Human Rights Act to get at your remedy if the remedy is not on the face of the Act is an extremely uncertain business, not only because the Human Rights Act is couched in the most wide and general terms but because the only way of getting those protections is by court process. I need hardly tell the Committee that going to law to obtain protection against unfair disclosure, or against the denial of a disclosure that should be given, is not practical. There is no legal aid for that sort of case. The costs are way beyond the resources of anyone, other than through an organisation with a strong commitment to the legislative principles.
Therefore, we are convinced that the Government will do well by their own purposes, and certainly by those who have to use the provision—and it will be mightily well used—if they provide the clear
authorisation procedure proposed in the amendment. We are not hanging our hat on every jot and tittle of the proposal. We are open to suggestions from the Government as to how it might be improved and these could be examined at the next stage of the Bill.In addition, there is a big problem for applicants for disclosure, as well as for those in respect of whom the disclosure applications are made. Without the provision suggested in the amendment, the public authority receiving the request for disclosure will, first, have to decide whether it falls within the terms of sub-paragraphs (a) to (d). Secondly, it will have to decide whether the Human Rights Act comes into play. In order to determine that, it will probably have to engage in a dialogue with the person making the request in order to elicit a good deal more information. It will then have to apply the Human Rights Act to the prevailing facts and circumstances. That will be an extremely difficult task. If the Human Rights Act does apply, it will then have to decide whether the disclosure can be made, and whether it should exercise its discretion in making the disclosure. The final decision will be subject to judicial review—although, again, that may be more a theoretical than a real problem.
In all this, I have made no mention of the individual whose confidential information is the subject of the disclosure request. Let us not forget him or her. As matters stand, if all we are doing is relying on the Human Rights Act, he or she will not even know that a request has been made, let alone by whom or why. The person will not know whether the request has been granted, or whether the disclosure request has been dealt with fairly. There is no oversight of the whole system or the working of this vital part of the legislation, such as is provided for in the Regulation of Investigatory Powers Act in the form of the commissioner.
For all those reasons, and others, we believe that it is in the interests of public authorities and the individuals whose confidential information is at stake, and in the public interest, to have a clear system of controlling the disclosures allowed for by Clause 17.
Perhaps I may turn briefly to the particular proposal. In relation to subsection (1), it requires a judge to determine the applications made for disclosure. In relation to subsection (2), if he makes an order it must specify the information to be disclosed—that is surely helpful to all concerned—and the purpose for which the order is made; namely, whether it is made under sub-paragraphs (a), (b), (c) or (d). The authorisation will make the disclosure subject to such requirements as the judge thinks fit. That is an extremely useful provision. It will allow a judge to make necessary conditions in all the circumstances, one of which may be that the order is brought to the attention of the person whose confidential information is at stake. Then the order must be served on the public authority in respect of which the disclosure request is made. We go on to prescribe evidence on oath. There must be reasonable grounds for believing that the public authority holds the
information, that the information is not liable to disclosure by other means, and the whole is to be heard in secret.Such provision may seem cumbersome, but it provides a clear framework within which all of this could function. It would reduce at a single stroke the widespread public concern over Clause 17 as drafted. On those grounds, I commend the amendment to the Committee. I beg to move.
8.30 p.m.
The Earl of Onslow: Is it right for a Back-Bencher to enter the debate at this stage? The noble Lord, Lord Phillips, has demonstrated, first, that he has a complete grasp of an extraordinarily complicated subject, which I, frankly, do not have. I am not a lawyer. If I wanted to bring a case under the Human Rights Act, I think I should instruct the noble Lord, to the immense benefit of his practice, I hope.
The noble Lord is pointing out that there is an element of sloppiness in the Government's thinking. That is either due to idleness or because they have not had time to get it right. It could be a case of, XWe just want to make sure that we can do anything, just like that. We can grab anything. If the legislation is not tight, it does not matter". That attitude of mind runs all through the Bill. It is an unattractive attitude of mind. I hasten to add that when some of my noble friends were in government such temptation did not always pass them by. It is a habit of government.
Those of us who, for the benefit of their country, have never been allowed near a Front Bench in any circumstances are entitled to point this out. We are by nature natural libertarians and rebels. We want the Government to legislate tightly. If they do not, my learned friends buy more villas in Zurich out of the fees that they generate by going to the human rights court on this matter or that. It is as simple as that. My noble friend Lord Phillips—I call him Xmy noble friend" because I have always been attracted to his libertarian point of view—is doing himself out of pounds, shillings and pence by making sure that the Bill is properly, tautly and correctly drafted so that the objects that the Government say they want are clear and concise and we know absolutely where we are.
There is too much sloppiness. That was demonstrated in relation to the previous amendment. The Minister said that when making a forfeiture order we may not know that it is to do with terrorism when we start. I did not like that. That tendency runs the whole way through the Bill. I suggest that it is the duty of this place to tighten up the legislation, not only for the sake of the country but for the sake of the quality of government legislation.
Lord Elton: The trouble with this procedure is that Back-Benchers like myself do not have time to inform themselves to the extent that they should, and therefore have to ask questions which would otherwise be superfluous. I do not know whether this is the occasion to ask for this information from the Minister, but I hope that he will find an occasion to explain to
me the effect of subsection (2). I understand that it places all the provisions listed in Schedule 4 in a new sort of category described in paragraphs (a) to (d). That is clear enough. But the effect of those categories is not clear. No doubt it is clear to noble Lords who are familiar with this ground. It would help in our assessment of what is said if we could be told.
Lord Hylton: As was mentioned in the debate yesterday, the words Xany criminal investigation whatever" and Xany criminal proceedings whatever" are very wide indeed. This seems to me to have a bearing on personal privacy, on confidentiality and on economic and business matters. On those grounds this series of amendments is helpful. The amendments give clarity and precision to the Bill and I am strongly in favour of them.
The Earl of Northesk: I support the amendment of the noble Lord, Lord Phillips. I also apologise for returning to the Chamber a little later than I would have wished. I accept the strictures of my noble friend Lord Onslow about the complexity of the issues before us.
I want to make one important point. As I suggested at Second Reading, the provisions of Part 3 taking in tandem with those of Part 11 represent a regime of management of personal date by public authorities which is of an entirely new character. These proposals could be said to constitute a form of data matching and/or data sharing throughout the machinery of government.
Perhaps I may address the Minister's remarks prior to the dinner break. In so far as the Minister argues that there are Xno new gateways" he is correct. That is not the point at issue. It is, to use the Minister's words, that there is a widening of the gateway. I am not convinced that the Minister has satisfactorily explained that point. No one should underestimate the significance of this issue in terms of giving Government control over citizens or how open to abuse such a system would be.
Because the regime would integrate data in entirely new ways, it involves categorically new and more perilous dangers. Necessarily, therefore, new methods should be contemplated to offer protection. Unfortunately the Data Protection Act was not constructed to address this problem. Indeed, the words of the noble and learned Lord, Lord Falconer, which I quoted at Second Reading would seem to imply that the policy contained in these proposals was not even a twinkle in the Government's eye during the passage through Parliament of the Data Protection Act. As a result, although useful, that Act provides no concrete limitations as to how data can or should be dealt with once it has been lawfully acquired by law enforcement.
Moreover, principally because of the enactment of the Regulation of Investigatory Powers Act the ability of the Data Protection Act properly to enforce subject rights and the data protection principle has been compromised, at least in part, because of what could be called tensions between the two Acts. They pull in different directions.
For those reasons, an entirely new authorisation procedure, as suggested by the amendments, is necessary, partly to address the very much greater risk posed by the wholesale data matching regime being made available to public authorities and partly because the Data Protection Act was not designed to deal with this problem.
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