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Lord Goldsmith: I am not sure that, standing on my feet, I am going to be able to satisfy the noble Lord's request for specific examples or even general examples. However, I think and hope that I can reassure him of the intention behind these words.
The purpose of including the word "general" is to enable an ability to issue class instructions which would relate to a particular class as opposed to requiring, for example, an instruction in relation to a specific piece of information even though it is exactly the same sort as one where the principle and the precedent has been set. So a general instruction could apply to a number of disclosures. It does not mean that the instruction itself will be general. It is certainly not the intention that there should be completely open-ended instructions. Indeed, on Clause 20, I have already referred to the narrowness of the regulations.
But it would be very undesirable to limit in either case the disclosure to something which is specific in the sense that it relates only to one occasion. There could be occasionsthere could quite likely be occasionswhen it is necessary urgently to pass information because of an event that needs to be dealt with quickly. For example, if officers were to discover something that would immediately have an impact and could be very damaging to public health, it would be unsatisfactory if they could not act in accordance with a pre-existing general instruction that such information could be disclosed, but have to go back to seek authorisation for it. This might happen, for example, if they were working jointly with the police and immigration authorities at ports and airports, where they could come across something that needed to be dealt with urgently.
Essentially, to confine this in either case only to specifics would be both undesirable and, I hope the noble Lord will agree, unnecessary. As long as the class is properly defined, thought through and compliant with the Human Rights Act, which it will need to be, there is no reason why it should not stand as an instruction relating to that class of information for the future. I hope the noble Lord finds that reassuring.
Lord Kingsland: I am most grateful to the noble and learned Lord for his response, which is indeed helpful. I entirely take the point about the convenience of issuing a class instruction where a particular example turns out to be one of what is likely to be in the future a large number of other similar examples. It would be administratively convenient, therefore, to deal with that matter in one instruction.
I would add to that only that it would be inappropriate for a public authority to fetter its discretion in relation to a line of future cases. One
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would hope that despite the generality of an instruction it would not undermine the requirement for the officer, or whoever was responsible, to look at each individual case.
I think that I am satisfied. I am very grateful to the noble and learned Lord for his reply. I shall reflect on what he said. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland moved Amendment No. 43:
"( ) after due consideration of whether, in all the particular circumstances of the case, disclosure is justified as being necessary and proportionate,"
The noble Lord said: The amendment provides that tests of necessity and proportionality should be applied where disclosures are made under the proposed public interest exemption. I hope that the noble and learned Lord the Attorney-General will consider this to be a wholly unexceptional and unobjectionable proposal. Indeed, as I am sure the noble and learned Lord recognises, it chimes with a specific suggestion of the Joint Commission on Human Rights, namely:
"In our view the Bill should contain an express requirement that, before any decision to disclose confidential information is made, a structured assessment of the proportionality of such disclosure in that individual's particular circumstances should always be made".
It may be that the noble and learned Lord might seek to persuade the Committee that the provision is unnecessary on the basis that, by virtue of Clause 22, such tests will occur as a matter of course. For ourselves, given the importance we all attach to the confidentiality of taxpayer information, we favour a "belt and braces" approach.
To return to the recurrent theme of my amendments, what matters is that the regime is not only robust but also seen to be robust. Indeed, I am tempted to suppose that in many ways the Government are of the same view. As the Explanatory Notes observe, a fundamental purpose for the inclusion of Clause 22, even though it is not strictly speaking necessary, is that it puts the issue of whether the Data Protection Act applies "beyond any possible doubt". In other words, the Government accept the value of a "belt and braces" approach in that particular regard.
Quite apart from that, it is my hope that the amendment stretches beyond the DPA to the Human Rights Act, although I am uncertain as to what extent that is effectively reflected in the text. As I have already said, I very much hope that the noble and learned Lord will feel able to accept the amendment. I beg to move.
Lord Goldsmith: In the short observations that the noble Lord has made, he has anticipated correctly my answer. It is not necessary precisely because the requirements of the Human Rights Act and the Data Protection Act will continue to apply, as Clause 22
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makes clear. The short answer is that it is not necessary to put in the Bill that which is required in any event by those other Acts which continue to apply.
Lord Kingsland: I am not wholly surprised at the noble and learned Lord's response. I am somewhat disappointed that he will not express it in the Bill, but I am glad to have his undertaking on the record in Hansard. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland moved Amendment No. 44:
The noble Lord said: This clause also seems to be too widely drawn. To permit disclosure in the public interest to,
is, in my respectful submission, unacceptably broad.
The noble and learned Lord the Attorney-General may well be able to give the Committee some examples of what it is anticipated will form the substance of "other factors". I would welcome that in order to be able to understand what the limits of the provision may or may not be.
Of course, it is entirely possible that I have misconstrued the text and that some measure of restriction is applied to paragraphs (e) and (f) from elsewhere. No doubt, the noble and learned Lord will advise the Committee if that is the case. Nevertheless, I would hope that the noble and learned Lord understands the disquiet that this excessively relaxed drafting inspires. I beg to move.
Lord Goldsmith: I think that the amendment would have the opposite effect to that which the noble Lord wants. This is about limitations or restrictions that can be placed in the regulations. It is prefaced by the words,
Paragraphs (e) and (f) provide additional methods for restricting the limitation that can be imposed.
For example, the provision might limit the disclosure to an officer of the Special Branch. That would be caught by,
You could go further, as long as we leave paragraphs (e) and (f), to say, for example, "but only in connection with a transport matter" or "only in connection with an immigration matter". So it provides an additional ability to specify restriction on disclosure, a further constraint on disclosure, rather than widening it out.
When the noble Lord reflects on that, I hope that he will see that he is better off with the provisions in rather than out.
Lord Kingsland: With the assistance of some helpful tuition from the noble and learned Lord the Attorney-General, I think that I see what he means. If, on mature
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reflection after the Committee, I continue to take that view, I will not only withdraw the amendment, but I will also not reintroduce it on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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