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Lord McIntosh of Haringey: He has the right to ask for that information. That is the only right that he has and unless he does it convincingly he will not get it.
Lord Thomas of Gresford: Exactly, he must establish that he is a police officer, for example by showing a flash on his shoulder, by producing his warrant card or by demonstrating that he is investigating a crime. It is only one step further for him to say, XThe crime that I am investigating involves terrorism. That is my interest. That is my duty. That is why I want the information that you can provide". I hope that the Minister will consider that when he considers the wording of my amendment.
Lord Hylton: While the Minister considers that, I return him to my point about overseas. Clause 17(2)(a) and (b) both refer to criminal investigations and proceedings,
- Xin the United Kingdom or elsewhere".
Lord McIntosh of Haringey: I think that I had better write to the noble Lord on that subject.
Baroness Buscombe: I thank the Minister for his full and robust response to this group of amendments. As my noble friend Lord Goschen said, it crystallises the nub of our concern, which is that the gateway is too wide. In the brief time that we have had to consider the implications of the Bill, we have encountered significant opposition to it. We do not want to weaken the pursuit of terrorism—there is no question of that. All that we want is to limit the Bill to say that the purpose of the investigation should at the outset be the genuine pursuit of terrorism. I again thank my noble friend Lord Goschen for making that point.
We want to ensure that authorities can pursue investigations properly but in a way that means that they are genuinely limited to terrorism. Whether they turn out to be successful pursuits of terrorism is another matter, but terrorism should be in the minds of those authorities when they set out in their task to require the disclosure of information.
I thank the Minister for his assurance when he said that doctors are not public officials. I shall invite the General Medical Council to read tomorrow in Hansard what the Minister said. I also thank him for his reassurance that if there is any doubt—and we have doubts about the role of the Audit Commission—he will consider the matter further before we, in a sense, say goodbye to the Bill in the coming days.
There are several issues relating to Clause 17 that we shall want to pursue, but, for our part, we shall endeavour to be brief, because we shall want to return to them on Report. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 50A to 55 not moved.]
Lord Phillips of Sudbury moved Amendment No. 56:
- Page 7, line 16, leave out paragraph (d).
The noble Lord said: This amendment and Amendment No.80 seek to exclude paragraph (d) from Clause 17(2) and paragraph (e) from Clause 19(2). The paragraph concerned refers to,
- Xthe purpose of facilitating a determination of whether any such investigation or proceedings should be initiated or brought to an end".
Baroness Buscombe: I rise simply to say that I entirely support what was said by the noble Lord, Lord Phillips of Sudbury.
Lord McIntosh of Haringey: I have said almost everything I wanted to say about this amendment when speaking to other amendments. If the power of disclosure is to have any effect, it must have effect when the suspicion first arises. I am not so much concerned with the provision of the initiation of an investigation because if I were to ask for disclosure of information I would merely say, XYes, I have started the investigation. I started five minutes ago. Can you help me?" I do not believe that that is the problem.
The reason that we need the provision is for bringing to an end any investigation of proceedings. It will allow the authorities to clear an individual's name by providing information which shows he is innocent and allows the investigation to be closed. It will also be able to help the police to determine whether an investigation should start by providing information on an individual thought to have left the country or thought to be dead.
Both of those circumstances seem to me to be entirely inoffensive. The first could easily be overcome if the provision were not made, but the ability to use it to clear someone's name seems to me to be extremely valuable.
Lord Hylton: I note that subsections (2)(c) and (2)(d) do not include the words Xin the UK or elsewhere". Nevertheless, I suspect that that phrase may be read into them. If it is capable of being read into them, it reinforces what I said earlier in the debate on the clause about disclosure to overseas countries.
Lord McIntosh of Haringey: They refer to Xsuch investigation or proceedings", which relates back to subsections (2)(a) and (2)(b). Therefore, it means the United Kingdom and elsewhere.
I believe that I can set at rest the mind of the noble Lord, Lord Hylton, because there is no question of information being disclosed to those abroad who would misuse it. He gave the example of eastern Europe, but probably there are better examples. However, I shall write to the noble Lord giving all the details of the constraints which make it impossible under the legislation for information to be passed to those who would misuse it in the way he fears.
Lord Phillips of Sudbury: I should love to have a clear example of a non-terrorist case which falls within paragraph (d) because it would represent 99.99 per cent of the cases within that provision. I should like a
clear example to show why the Government believe that only paragraph (d) provides the kind of protection that is needed for non-terrorist offences. However, I shall not have such an example, and I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Baroness Buscombe moved Amendment No. 57:
- Page 7, line 17, at end insert—
The noble Baroness said: In rising to move Amendment No. 57, I shall speak also to Amendments Nos. 64 and 88. The purpose of these amendments is to add appropriate safeguards to the provisions. We shall try again. Clause 17 provides that information obtained by a very wide range of public authorities under a vast array of legislative provisions listed in Schedule 4 would be capable of being disclosed for the purpose of a criminal investigation into, or criminal proceedings for, any offence in the United Kingdom or elsewhere, or for the purpose of,
The clauses in Part 3 are identical to those in Part 2 of the Criminal Justice and Police Act which came into force earlier this year. The Joint Committee on Human Rights has considered the provisions of the current Bill. In its report published on 14th November 2001 the committee referred to its earlier criticisms of provisions in the Criminal Justice and Police Bill. In particular it concluded that,
It is our view that the provisions as drafted are much wider than is necessary for the prevention of terrorism. We wholeheartedly endorse the views of the Joint Committee in pressing for the need for appropriate safeguards to be included in the provisions. Clause 17(2) relates to the disclosure of information by or on behalf of a public authority. The definition of Xpublic
When the Joint Committee considered the provisions in the Criminal Justice and Police Bill it heard evidence from Mr Hartnett who said:
However, it cannot be assumed that the Bill will be interpreted in such a way that disclosure will be compatible with Article 8 of the convention. By including a clause which makes express provision for tests of reasonableness and proportionality means that there can be no doubt that Article 8 should be complied with. The fact that there may be a need for this anti-terrorism legislation to enter the statute books fairly quickly is not an excuse to sacrifice certainty. I beg to move.
The Earl of Northesk: I support the amendment. I agree with every word of my noble friend's introduction of this group of amendments, specifically in regard to the human rights issue. However, I should like to add a few thoughts of my own.
I know that the Minister is not entirely in concurrence with my view on this point, but, I repeat, my concern is that Part 3—particularly when taken in tandem with Part 11—represents carte blanche for data matching and/or data sharing throughout the machinery of government. The worth of the amendments is in limiting the scope for the use of such techniques to matters relating solely to terrorist activity as well as subjecting them to a proportionality test. In this way we could perhaps be assured that there will continue to be a presumption that authority for the future application of such measures will be on a case-by-case basis via primary legislation. At the very least, as my noble friend suggested, that will deliver greater consistency with the ECHR.
There is a subsidiary issue, albeit one of important significance. I refer to some of the concerns that were inadequately debated in the context of the Criminal Justice and Police Bill during the previous Session. As far as I am aware, the existing statutory disclosure provisions as they relate to the Revenue authorities, while limited in scope—I accept that—have operated well, striking the right balance between the rights of the individual, the requirements of the state and the public interest. Part 3 is a fundamental departure from the principles upon which this regime is based; namely, that information disclosed to tax authorities for tax purposes should be used only for tax purposes.
I can understand the desirability of disclosure, particularly in terms of the terrorist threat, but, none the less, its potential for undermining the successful
To get back to the point, the Minister will not be surprised to hear me say that the situation is exacerbated because of the vast scope for data matching when cross-referenced with Part 11. By imposing the test of proportionality and limiting the scope of the disclosure regime to terrorist activity, the amendments go at least some way towards addressing the problem.
I would add one other thought. The Bill has been severely criticised for the way in which it introduces elements of, as it were, non-emergency legislation. Necessarily, this suggests a less than adequate process of consultation. This is becoming a matter of particular anxiety for the financial services sector in respect of this part of the Bill. I very much hope that the Minister does not underestimate how deeply harmful these provisions could be if they are enacted as they stand. The amendment is justified on this basis alone as it would ensure that a wider and more appropriate disclosure regime could be developed, with appropriate consultation and in a less hurried way.
I do not gainsay in any way the Government's purpose in bearing down on the financial aspects of terrorism. Nor do I mean to be alarmist. But to take risks with the pre-eminence of the City—and the position could be that serious—by legislating too broadly and quickly would, I suggest, be both unwise and unreasonable. As I said, I support the amendment.
X( ) Information to which subsection (2) applies shall not be disclosed by the public authority until such time as that public authority has undertaken a pre-disclosure assessment of the request for information and it has been shown by the requester—
(a) that there are reasonable grounds for suspecting that the information in question would be relevant to an inquiry into terrorist activity;
(b) that the data subject has committed an offence related to terrorism; or
(c) that the request to disclose information on a particular individual is proportionate in the context of the offence in question."
Xfacilitating a determination of whether any such investigation or proceedings should be initiated or brought to an end".
XThere is a need to introduce adequate safeguards into this legislation. Consideration should be given to amending these provisions to include . . . a requirement that there should be reasonable grounds for suspecting that the information in question would be relevant to a criminal inquiry or that the data subject has committed an offence, and a requirement that a pre-disclosure assessment be made of the proportionality of disclosing information on a particular individual in the context of the offence in question.
XConsideration should also be given to limiting the very wide power to make disclosures 'for the purposes of initiating . . . any such investigation or proceedings'. We draw the attention of each House to these provisions, and consider that necessary safeguards should be provided to ensure they are compatible with the right to privacy".
Xany person certain of whose functions are of a public nature".
Xwe have described a 'public authority' as that which has the same meaning . . . as in Section 6 of the Human Rights Act. So we feel that that not only deals with the specific point about disclosure, but the fact that we have anchored this . . . to Section 6 of the Human Rights Act means that any disclosure that a public authority makes must be compatible with Article 8 of the convention . . . and thereby it has to meet the tests of reasonableness and proportionality which we understand the committee was concerned about in January".
10 p.m.
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