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The noble Lord said: My Lords, I move this amendment on behalf of my noble friend Lord Phillips of Sudbury. The amendment restores the position to when the Bill went to the Commons.
It may be helpful if I remind your Lordships very briefly why we passed the amendment. Clause 17 of the Bill provides that a public authority—some 40 plus are listed in Schedule 4—may be required to disclose information in its possession about an individual or a company—medical records, bank records or company records—to anyone considering initiating any criminal investigation whatever anywhere in the world. It is not limited to the United Kingdom; it is not limited to the United Kingdom law enforcement agencies; and it is not limited of course to terrorism or suspicion of terrorism.
Many people will say, XWell, I have nothing to hide. People can look into my affairs if they want. It is a price worth paying for security. In times of danger security comes before privacy". We on these Benches entirely agree with that sentiment. Our amendment ensured that these unprecedented powers were given to the agencies in this country and abroad simply for the purposes of the Bill; namely, information believed—or even just suspected to be—related directly or indirectly to a risk to national security or to the existence of terrorism.
A further restriction was put on: that the information should not be released to anyone, which is what the clause stated as originally drafted, but a relevant public authority. Therefore, the effect of the
Clause 19 concerns the Inland Revenue and Customs and Excise and provides that they may release their files and records,
The addition of subsection (2)(a) was quite significant because it was an addition to the Bill as originally drafted and brought before your Lordships and withdrawn before the general election. This Bill, unlike the original Bill, gives power to the commissioners of the Inland Revenue and Customs and Excise to make disclosure,
The amendment passed by your Lordships' House simply restricted the scope of such disclosures to the disclosure of information believed or suspected to relate to a risk to national security or to a terrorist. I emphasise the word Xsuspected". All that is required is that a person carrying out an investigation should say to the public authority, XI am investigating terrorism"—or the possibility of terrorism, or the existence of a possible terrorist—Xand I should like your co-operation". We have no objection to that. We and, I am sure, all of your Lordships think it essential for the security of this country that such powers be granted in that limited way.
However, the Government have not listened in the other place and have returned the Bill to us seeking to reverse our decisions. All that has been added is a proposal that,
We must ask: what is meant by the words,
When it comes to income tax and Customs and Excise authorities, it is unlikely that a person will write down Xterrorist" as his occupation. Consequently, it is for the police or other investigating authority—that is,
The amendment proposed by the noble Lord, Lord Rooker, is just window dressing. It adds nothing to the previous provision and does not assist your Lordships. The purpose of my amendment is that the position on which we decided after a great deal of debate should be maintained.
Moved, That, as an amendment to the Motion that the House do not insist on their Amendment No. 5 to which the Commons have disagreed and do propose Amendment No. 5B in lieu thereof, leave out the words after XHouse" and insert Xdo insist on their Amendment No. 5".—(Lord Thomas of Gresford.)
Baroness Buscombe: My Lords, in rising to speak to this group of amendments, I should say straightaway that Her Majesty's Official Opposition take a different approach from that of the noble Lord, Lord Thomas of Gresford. We are grateful to the Government for, as we see it, responding to our concerns—concerns that we expressed during each stage of consideration of the Bill in your Lordships' House. Indeed, it is fair to say that we have worked hard to persuade the Government that there is a fundamental problem with Part 3 as drafted. Their proposals for disclosure of information go way beyond the agenda that we all want to support. That agenda is the fight against terrorism.
Part 3 as drafted is draconian, not measured, and the question of proportionality would in practice only arise, and possibly bite, in the event that an individual or class of person felt aggrieved and acted on that grievance after disclosure had been made and the damage done. The government amendment recognises that thought must be given by the relevant investigatory authorities, such as the National Criminal Intelligence Service, the National Crime Squad and the Commissioners of the Inland Revenue or the Commissioners of Customs and Excise, as to whether the request for information is proportionate—in other words, in comparative ratio—to the investigation at hand before that request is made.
Time will tell whether that works in practice. We shall wait and see. On that basis, we shall support the government amendment.
The Earl of Onslow: My Lords, this particular Member of Her Majesty's Loyal Opposition tends to agree with the other part of the opposition. The government amendment does not go far enough. It is rather sad that we on these Benches have been seen to cave in to what I would describe as waffle. There are many ways to beef up the amendment a little. If someone puts Xdrug dealer" on his tax return, it is always possible that he is actually a manager of Boots the Chemists, but he probably is not. It strikes me as
I am afraid to say that if the Liberal Democrats push this to a Division, I shall be trotting through the Lobby with them. I believe that it is the duty of your Lordships' House to protect, as much as we humanly can, the individual rights and liberties of the subject. This is a minor blip—that is all—on the otherwise impeccable behaviour of those on my Front Bench. They have conceded too much on this matter.
Lord Lester of Herne Hill: My Lords, I wish to say one or two words in support of the amendment standing in the name of my noble friend Lord Thomas of Gresford. The government amendment is indeed a piece of window dressing. If the noble Baroness, Lady Buscombe, will forgive my saying so, I find it a bit pathetic that a piece of window dressing should wholly satisfy the Official Opposition.
If we penetrate the true legal position and the government amendment, it is much more complicated than appears at first sight. I want to explain the position because public authorities may be liable as a result of the legal uncertainty that will remain if the Government have their way.
My noble friend is completely right when he says that the government amendment begs the question when it says,
I recognise that under Article 8.2 of the European Convention on Human Rights it is permissible to invade personal privacy not only to protect national security but also to prevent or detect crime. I therefore recognise that a power of the width which is being conferred by Clause 17 is capable of falling within a legitimate aim in terms of the ECHR and that then a test of proportionality necessarily comes into place not because of the government amendment but because of the various provisions of the Human Rights Act, to which this amendment adds nothing of substance.
However, in practice it means that if anyone discloses information acting under Clause 17 in a way that breaches Article 8 of the human rights convention—the guarantee of personal privacy—for any of the aims stated in Clause 17(2), although he may be pursuing a legitimate aim he must do so only in a proportionate way.
The word Xproportionate" is not defined in the amendment but it means that the means used to accomplish one of those aims must be necessary—and
Therefore, there is quite a strict test, but the problem is that the poor old public authority or other body which makes the disclosure will be potentially liable under a Bill conferring powers which are broad and not well defined. If we reject the link with terrorism which the Liberal Democrat Benches have sought to make and leave it to the window dressing of the amendment about proportionality moved by the noble Lord, Lord Rooker, all we shall be doing is dumping the problem on the public authorities and in the end on the courts. There will be great legal uncertainty and it will be unsatisfactory.
However, I concede that ultimately when people are properly advised and can afford to bring their cases and sue, the courts will provide effective protection. For those who understand their legal rights that will be so. But I regard the position as a mess—and an unsatisfactory mess. Therefore, I very much hope that even at this late stage the Official Opposition will join with the rest of us on these Benches in standing firm to clarify the position so that we can avoid lawyers such as myself earning far too much money, as the noble Lord, Lord Rooker, would say, in arguing such cases.
5CLord Thomas of Gresford rose to move, as an amendment to the Motion that the House do not insist on their Amendment No. 5 to which the Commons have disagreed and do propose Amendment No. 5B in lieu thereof, leave out the words after XHouse" and insert Xdo insist on their Amendment No. 5".
Xfor the purposes of any criminal investigation",
anywhere, to anyone in the world.
Xfor the purpose of facilitating the carrying out by any of the intelligence services of any of that service's functions".
So the Bill widens the provision from the ordinary police investigating authorities to the intelligence services for any of their purposes.
XNo disclosure of information shall be made by virtue of this section unless the public authority by which the disclosure is made is satisfied that the making of the disclosure is proportionate to what is sought to be achieved by it".
That merely restates the existing duty under the Human Rights Act 1998, because proportionality is a basic principle of that Act. If there is an invasion of privacy, it should be permitted only by means proportionate to the need that requires it.
Xproportionate to what is sought to be achieved by it"?
If an investigating authority comes to this country from overseas and says, XI am investigating a drugs matter. Please release all your records", is it proportionate if the public authority releases information to that agency? Let us take the example given a moment ago by the noble Lord, Lord Rooker, of drugs being found in a car. That information should be passed to the police, but it is for the police to make the connections when they receive the information.
3.45 p.m.
Xproportionate to what is sought to be achieved by it".
If the Liberal Democrat amendment is not passed, the answer to the question is partly given in Clause 17(2). In other words, without any link with terrorism on the face of this part of the Bill, if the disclosure of information is for the purposes of any criminal investigation, criminal proceedings and so forth, the question will be whether the disclosure is proportionate to those matters and not to any link to terrorism.
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