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Amendment disagreed to accordingly.

4.39 pm

Clause 24 [Appointment of National Identity Scheme Commissioner]:

Lord Phillips of Sudbury moved Amendment No. 76A:

The noble Lord said: My Lords, after that excitement, I beg to move this short amendment, which would make the Information Commissioner appointable by the Crown on the recommendation of the Secretary of State, rather than by the Secretary of State alone. In Committee, we discussed a number of amendments designed to give more independence to the commissioner in carrying on his or her work. Most of that work will be with regard to public authorities.

Indeed, in moving the amendment, I could do no better than to take over wholesale the arguments advanced by the noble Baroness, Lady Scotland of Asthal, for resisting the previous amendment. Noble Lords may remember that the proposal of the noble Earl, Lord Northesk, was for the Secretary of State to have responsibility for issuing guidance and so on. The noble Baroness said that that was monstrous, completely improper and unsuitable. She said that the commissioner should have those powers because much of the work is to be done by departments of government and therefore it would surely be more appropriate for the commissioner to have the powers. I say, "Hear, hear". That is right in every particular, and apparently your Lordships agreed with the noble Baroness because they failed to approve the amendment.

The powers under the Bill relating to the commissioner are absolutely critical. It is plain—is it not?—that there is a great deal of anxiety in this place and in the country about the prospects of disclosure of information not following the lawful courses provided for by the Bill, leading to inadvertent disclosure of highly sensitive information. Indeed, it is fair to say that there is a great deal of anxiety about the Bill in all its aspects. While it is our duty to make the best of it, I believe that this modest amendment will give the commissioner a little more distance in terms of his or her relationship with the Secretary of State.

We have tabled a later amendment, which would require the commissioner to report to Parliament rather than to Parliament through the Secretary of State. I hope that, when we reach it, the amendment will be accepted or voted upon affirmatively. But, for the time being, Amendment No. 76A deals with the appointment of the commissioner. It is just worth mentioning that Clause 24(2)(a) describes the function of the commissioner as keeping under review,
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There is a great deal more of that type of obligation. As I said, it is another vivid example of how the relationship between the commissioner and the Secretary of State is apt to be extremely sensitive and important, and therefore it must be desirable to provide a little more distance and independence in relation to the appointment of the commissioner. With those few words, I beg to move.

Lord Crickhowell: My Lords, in the later group to which the noble Lord, Lord Phillips of Sudbury, referred I will be saying rather more about the important issue of independence and the need to have a strong and robust commissioner who, if necessary, can stand up to the pressures that may be placed on him. I must confess that I cannot recall whether, when I became chairman of the National Rivers Authority, I was appointed by the Crown, the Minister of Agriculture or the Secretary of State for the Environment. Certainly I was answerable to the last two but I think that my authority succeeded in being robustly independent.

I will have something to say on the later group, but now I will simply say that I believe that the principle being addressed in the amendment—that the commissioner must be the strong protector of the citizen; again, I go back to using the word "citizen"—is so important that anything we can do to support and strengthen it should be backed by the House.

Lord Ackner: My Lords, I strongly support the principle, which has just been elegantly announced.

Baroness Anelay of St Johns: My Lords, I add my support to this amendment, moved with such commendable brevity. I think the important point is that the noble Lord, Lord Phillips of Sudbury, is proposing a method by which the authority of the Secretary of State would not be compromised, but the position and independence of the commissioner would be enhanced. As my noble friend Lord Crickhowell said, that is exactly what we are trying to achieve as well as ensuring that there is a champion for the citizen throughout this procedure—somebody who will be able to stand up to the Secretary of State. The Minister may, I think as a result of some murmuring I heard from him a moment ago, be about to ask whether it really matters, because people will not particularly understand the difference. I see the Minister shaking his head; I am glad that he is not going to take that tack. The importance will be seen by Parliament and by the person appointed as commissioner. If they are appointed by the Crown, it gives them that "stand back" position, that extra position of authority and impartiality, which would be welcome.

Lord Bassam of Brighton: My Lords, the noble Lord, Lord Phillips of Sudbury, and other noble Lords have very adequately set out what they seek to achieve. Noble Lords will be aware that there are a variety of different statutory commissioners, some appointed by
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Her Majesty, some by the Prime Minister and some by the Secretary of State. Among the commissioners appointed by Her Majesty, there are those, including Her Majesty's Inspectors of Constabulary and Her Majesty's Inspector of Prisons, who nevertheless report to the Secretary of State. There is then the example of the Information Commissioner, who is appointed by Her Majesty by Letters Patent, who is a corporation sole, and who reports directly to Parliament.

We take the view that it is appropriate for the National Identity Scheme Commissioner to be appointed by the Secretary of State. I accept the point that the commissioner might be seen as more independent if he were a Crown appointment, but I am not aware that, for instance, the Immigration Services Commissioner is regarded as biased because he is appointed by the Secretary of State, nor that the Intelligence Services Commissioner is compromised for being appointed by the Prime Minister.

To a degree—I hope that the noble Lord, Lord Phillips of Sudbury, will accept this point—this is a presentational issue more than anything else. There are no differences in terms of powers and there is little that can be achieved by the amendment, as the noble Lord himself put it. All it would achieve is the perception of a little more distance. The noble Lord is not, I think, advocating complete independence, such as the Information Commissioner has. The Information Commissioner has the power to serve enforcement and information notices on data controllers, Secretary of State data controllers included. He also has the power to bring prosecutions. Total independence is therefore entirely appropriate in such a case. The National Identity Scheme Commissioner, by contrast, has a rather different role—that of reviewing and reporting—so that both the Secretary of State and Parliament benefit from his overseeing the scheme.

I am unconvinced that a case has been made for the National Identity Scheme Commissioner to be appointed by the Crown on the recommendation of the Secretary of State, as opposed to being simply appointed by the Secretary of State. I can reassure the noble Lords that the appointment of the National Identity Scheme Commissioner will follow the Office of the Commissioner for Public Appointments rules and, importantly, its code of practice, as well as Home Office guidance on public appointments by Ministers. I understand the desire for robust independence. We think that the legislation, as it is set out, achieves exactly that, so I hope that the noble Lord will feel able to withdraw his amendment.

Lord Ackner: My Lords, the Minister accepted that this might relate to perception. Is it not the Government's view that that can be vital—hence the decision to move the entirety of the Lords of Appeal out of this House?

Lord Bassam of Brighton: My Lords, that is a neat point. However, as I said in addressing the issue
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precisely when considering the point on commissioners, it would be commonly assumed that the Immigration Services Commissioner and the Intelligence Services Commissioner, as well as other commissioners who are appointed in the same or a similar way to the National Identity Scheme Commissioner do not have their independence compromised. One could fairly argue that they are more than prepared to take a robust and independent line.

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