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Lord Elton: Will the Minister explain to me, as I plod along behind the Committee trying to understand, what there could be in Section 9(1) of the Diseases of Fish Act 1983 or Article 6(1) of the Sex Discrimination
(Northern Ireland) Order 1976 that it would be necessary to treat retrospectively as though it were connected with terrorism?9 p.m.
Lord McIntosh of Haringey: No, I cannot. It is not retrospective, but that is not the point. I could have been briefed on every one of them if we had had enough time. That is a defect of hasty legislation—I shall give the noble Lord that for nothing.
Each Act has been included in the schedule because there are items of information collected under statutory powers that could be relevant. I repeat that it is only those items of information that are collected under statutory powers, and each item of information provided under those Acts must be covered by the existing statutory restrictions on disclosure. That applies to the Diseases of Fish Act 1983 just as much as it applies to the Health Act 1999.
Lord Phillips of Sudbury: I am grateful to the Minister for endeavouring to defend the Government's position. I am totally dissatisfied with what he said. The issues around Clause 17 are of the greatest possible moment and the Minister's answer does not hold water. His main point is that, unless the Bill is enacted as it stands and the Government refuse to have a framework or system for obtaining disclosure, terrorists will run amok and the chances of the security and police authorities catching them will be destroyed. That is nonsense.
It has been made clear in interventions that the law as it stands, and as it has always stood, requires that citizens whose houses are to be searched or whose possessions are to be confiscated should be subject to the protection of a magistrates' warrant or order to allow the police to proceed. That action can be carried out with the greatest rapidity. Applications to a judge under the procedure provided for by the amendment could be done virtually instantaneously. A duty judge would be available at a moment's notice to deal with the matter, which can be done entirely orally. We totally reject the notion that the proposal is defective.
I grant that the amendment could be improved if there were added to it something that specifically addresses the imminent threat that might be posed by the discovery of certain potential terrorist activity. But that amendment could be made, which reduces the vestige of the justification of the Minister's argument.
Constant references to the Data Protection Act do not assuage my anxiety or that of anyone else. There was a reference in Clause 45 of the previous Bill, which can be found in Clause 18 of this Bill but which has been excised from Clause 17, to the effect that nothing authorised the making of any disclosure that was prohibited by any provision of the Data Protection Act 1998. In effect it said that the framework of the 1998 Act should not be punctured by the provisions of this Bill.
Protection for the framework of the 1998 Act is punctured by the absence of that provision in Clause 17 of this Bill. The Data Protection Act 1998 is
one of the Acts of Parliament included in Schedule 4. The provisions of Clause 17 are as wide as the blue sky—at least we all agree on that. The exceptions will now be part of the Data Protection Act arrangements, which means that the restrictions on disclosure provided by that Act vis-a-vis its present and former commissioners, staff and agent, no longer hold and that Clause 17 provisions are written into it.We view this—I was about to say lacunae, but it is a huge black hole at the heart of the Bill—as undermining its effect. It may look good to give authorities the widest powers that they will enjoy under the Bill, although the Minister's constant references to public officials and official agencies betray the fact that the measure extends far beyond the police and state authorities, as I tried to explain earlier. We on this side of the Chamber will have to give a great deal of thought to what to do at Report stage. We shall certainly table an improved amendment, but I sincerely hope that the Government will consider what has been said tonight. It is not insignificant that not a single speaker in the Chamber has supported Clause 17 as it stands.
The Earl of Onslow: Before the noble Lord, Lord Phillips, withdraws his amendment, I seek a scintilla of hope for those of us on this side of the Chamber who have genuine and deeply held doubts. Will the Government perhaps reconsider and say that it is just possible that we may be right? That would enhance the reputation of the Government and this Chamber. I know that the noble Lord, Lord McIntosh, and I am beginning to know that the noble Lord, Lord Rooker, are both men of independent minds who will listen. They do not have to do anything too publicly but they could say to the Government, XThere was something in what old fuddy-duddy Onslow and young Phillips and Northesk had to say, so perhaps we should consider the issue again". That is all that we ask.
I hope that the noble Lord, Lord Phillips, will table some more amendments at Report stage, and I hope that the Government will listen more carefully and intelligently than they have done so far.
Lord McIntosh of Haringey: I want to say something to those who believe what has been said as sincerely as they do; and let us try to avoid personalising the issue: of course it is necessary for us, as far as we can, to restrict the scope of these disclosure provisions. I have explained how we have sought to do so. In so far as the pressure is to continue to restrict the scope of these amendments, those who are trying to do so have an argument on their side which we recognise and share. But at the same time they have to recognise how essential it is in the present circumstances—not just in this country but in the whole world—not to allow potential or actual terrorists to slip through our fingers because of defects in the law. That has been happening and must not be allowed to continue.
Lord Phillips of Sudbury: In the spirit in which the Minister made those last remarks, one of the problems with the pace of the Bill's proceedings is that one does
not have the usual opportunity to review and discuss. None the less, if the Minister would make time available to contemplate some of the issues that we have talked about tonight, I should welcome that.I remind the Minister that the Regulation of Investigatory Powers Act that his Government introduced only last year has all the protections for which we are calling in the amendment. It has an Interception of Communications Commissioner; it requires authorisation for every directed surveillance, it has a warrant for all sorts of interventions; it has appeals by Surveillance Commissioners. All that framework is presently contained in the RIP Act. This is a more potentially important piece of legislation than RIPA.
Lord McIntosh of Haringey: First, this Bill does not override the statutory restrictions on disclosure. That is why we need these provisions. Secondly, my noble friend Lord Rooker has already said that he has booked the Ministerial Conference Room 10A on the first floor from 11 o'clock every morning. Anybody from any party who wants to come along after midday on any day that the House is sitting to talk about any aspect of the Bill will be welcome. My noble friend says I have gone a bit wide. But of course we are open to talking to anybody.
Lord McNally: Yesterday both Front Benches paid tribute to the noble Lord, Lord Rooker. He made that offer at that time. Perhaps it would be helpful if we were to serve notice that my noble friend Lord Phillips intends to come along at 12 noon tomorrow and explore with the noble Lord, Lord Rooker, and his officials the areas which are causing concern.
Lord McIntosh of Haringey: It is certainly better to give notice. We can then ensure that the officials who know about this particular part of the Bill are present.
Lord Phillips of Sudbury: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Buscombe moved Amendment No. 50:
- Page 7, line 10, after Xany" insert Xcounter-terrorist"
The noble Baroness said: In moving Amendment No. 50, I shall speak also to Amendments Nos. 50A, 51, 53, 53A, 54, 72 to 75, 77, 77A, 78, 91 to 96.
Paragraph 3 of the Explanatory Notes to this Bill states:
- XThe purpose of this Bill is to strengthen legislation in a number of areas to ensure that the Government, in the light of the new situation arising from the September 11 terrorist attacks on New York and Washington, have the necessary powers to counter the increased threat to the UK".
We shall be covering ground that in some senses has already been covered this evening. But I make no apology for that. Clauses 17 and 19 of this Bill, as presently drafted, go way beyond that purpose.
Clause 17 permits disclosure by public authorities to assist in any criminal investigation or criminal proceedings being carried out in the United Kingdom
or abroad. Clause 19 allows the commissioners of Inland Revenue and Customs and Excise departments to disclose information to assist any criminal investigation or criminal proceedings being carried out in the United Kingdom or abroad, and also allows disclosure to the intelligence services in support of their functions.This new power to disclose information, which may have been given in confidence, extends to assist any criminal investigation or criminal proceedings rather than merely terrorism. It therefore goes way beyond the purpose of the Bill and we seek to limit Clauses 17 and 19 with these amendments to permit disclosure to assist any investigation or proceedings relating only to terrorism.
We have serious misgivings about allowing such disclosure, particularly where information has been given to the public authorities, the Inland Revenue or Customs and Excise in confidence. Terrorism is the greater of the two evils and we must prevent terrorism at all cost—almost at all cost. We therefore support the Government as regards Clauses 17 and 19 in so far as they are limited to disclosure for the purposes of countering terrorism.
We are in two minds as to whether disclosure should be permitted to assist criminal investigations or criminal proceedings. We can see that as regards serious crime the balance probably comes down in favour of disclosure. On the other hand, we could not support disclosure for the purposes of minor criminal offences.
In particular, in Amendment No. 96, we ask the Government to amend the Bill to ensure that terrorism has the meaning given to it by Section 1 of the Terrorism Act 2000 and I ask Members of the Committee to refer to Part I of that Act where it makes absolutely clear that Xterrorism" means,
- Xthe use or threat of action where . . . the use or threat is designed to influence the government or to intimidate the public or a section of the public, and . . . the use or threat is made for the purpose of advancing a political, religious or ideological cause . . . [if it] involves serious violence against a person . . . involves serious damage to property . . . endangers a person's life, other than that of the person committing the action . . . creates a serious risk to the health or safety of the public or a section of the public, or . . . is designed seriously to interfere with or seriously to disrupt an electronic system".
A line will have to be drawn somewhere, but now is not the time or place to discuss exactly where. There must be wider consultation and further consideration of these two clauses in so far as they will permit disclosure as regards any criminal investigation or criminal proceedings. I thank the Minister for suggesting that we have further discussions outside the Chamber on this particular point. We believe passionately that such a wide power is not appropriate in emergency legislation.
In particular, the General Medical Council has expressed serious concerns with regard to the possible extent and purpose of disclosure of, for example, identifiable patient records under the Bill. I would very much appreciate some assurance from the Minister
with regard to the concerns of the General Medical Council. In fact, I am saying this on purpose because, if anything, we can at least this evening seek to try to reassure various bodies beyond the Palace of Westminster in relation to these clauses. Unfortunately, as yet we remain unconvinced of the Government's argument. However, I believe that it will help all of us if we have an opportunity now to flush out some of our differences, as we have already begun to do this evening, and also perhaps to check on the record where reference has been to made to this part of the Bill in the media.The General Medical Council states:
- XWe are concerned that this Bill may introduce measures that could require the disclosure of identifiable patient records held by the Commission for Health Improvement and the Audit Commission as part of criminal investigation anywhere in the world".
- XCurrently, we advise doctors that they may disclose information in order to 'assist in the prevention, detection or prosecution of a serious crime', usually a crime which will put someone at risk of death or serious harm (such as terrorism). That is because only serious matters will expose third parties to a risk so serious that it outweighs the patient's privacy interest. Disclosure of medical records in relation to non-serious crimes may seriously undermine the trust that is central to the doctor-patient relationship. The Bill does not appear to place any restrictions, or conditions on disclosure of data and it is possible that a police force could simply require records to be disclosed without any justification. [For example, say] we are looking for people who have had 'X' condition or shown 'Y' symptoms). A criminal investigation in this context is defined by the Bill as 'an investigation of any criminal conduct, including an investigation of alleged or suspected criminal conduct, and an investigation of whether criminal conduct had taken place'. We are, therefore, keen to establish the possible extent and purpose of disclosure of identifiable patient records under the Bill. The Audit Commission has access to records and does demand patient information for some investigations. CHI also holds copies of patient records and we are seeking to establish their position on this issue.
- The Bill also gives the Treasury, by Statutory Instrument, the ability to add provisions contained in subordinate legislation to the list given in the schedule (4) to the Bill. If there are confidentiality provisions contained in subordinate legislation (and we believe there may be) then it is possible that they might be added in the future".
Perhaps I may also refer very quickly to a transcript of an interview on Radio 4 yesterday, which was included in the XToday" programme, with Beverley Hughes MP. She stated:
- XSchedule 4 of the Bill lists all of the pieces of legislation that at the moment regulate that and the only thing Clause 17 is doing is simply making it clear to officials that they can give the specified information earlier on in an investigation and as regards to the NHS the only provisions that are included are the disclosure of the price of medical supplies and information relating to the Audit Commission's financial enquiries into the NHS. There is nothing at all to do with patient records or the doctor/patient relationship whatsoever and as I've said it is an example of the kind of scare mongering we had in relation to parts of the Bill which is very misleading".
The General Medical Council and a fair number of other bodies have been in touch with us in the past 24 to 36 hours on this point. They all say that they cannot agree that the Bill, as currently drafted, reads like that at all. So we are offering the Government an
opportunity to clarify the situation. So far we are not convinced, but we and many others would like some kind of reassurance on this matter. I beg to move.
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