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The noble Earl, Lord Erroll, made a very interesting suggestion, which we will look at, but one has to see that it would meet the rubric that we have set out on the proper constraints and safeguards. I am not suggesting that we can necessarily do that, but I undertake to think about it.
Lord Crickhowell: I am grateful to the noble Baroness for spelling out the position. She said that the Audit Commission can decide which sets can be matched, but obviously it does not cover all aspects of the matter. She went on to refer to various bodies and the Data Protection Act, and talked about the rules that apply to anti-fraud organisations. As I see it, the difficulty is that these rules have been developed one by one over time to meet the developing situation, and are likely to develop further as we change the law and move on. I go back to the British Bankers’ Association’s support for the development of such a code or codes of practice as those endorsed by the Information Commissioner. The British Bankers’ Association understood the importance of public confidence and of having something comprehensive that we could see as a whole.
The trouble with what the noble Baroness has been saying is that, yes, I dare say that if you search with all the resources that she has available you can find exactly what the rules are, how they are operated and what the protocols are. I suggest that this is a case where we need something more. We need something more because the situation is developing the need for it. We need it because public confidence is important. It is not good enough to refer back to a whole lot of previous rules and regulations with which people are wholly unfamiliar.
Baroness Scotland of Asthal: I hope that I have made it clear that the whole point of using the Information Commissioner, which is what the banking world has asked for, is that he is seen as the arbiter of
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I think that it was the noble Lord, Lord Burnett—although it might have been the noble Lord, Lord Crickhowell—who said that, once you have the set, that is not the end of it; it is the basis on which you then make the inquiry. I hope that I made it clear in responding to the first set of amendments that the way in which the fraud initiative works follows that template. It appears to me at first blush that we are not at odds. I am seeking to explain the way in which the Bill has been structured in order to deliver and give the assurance about data protection that the Committee clearly wants and that the Government want, too. It was very important to us when we were developing this process that it was a process with which the Information Commissioner could feel comfortable.
Lord Crickhowell: I am grateful to the noble Baroness and will consider carefully what she said, as I am sure will my noble friend—I hope that she will say so now.
Baroness Anelay of St Johns: Indeed. I am grateful to noble Lords who have contributed to this debate on what is a key matter, as the noble Baroness accepted. It is about public confidence. I appreciate that the Government are concerned about that. Any Government would be, otherwise they would not win the next election—although I hope that this one will not. The noble Baroness looks shocked. Does she think that I would hope otherwise?
It is difficult to see how the Bill as currently structured provides cohesive protection for the public. I know that the Government are trying to achieve that; I do not question that. The noble Baroness refers to the protection of, for example, the Data Protection Act; she has done so before. However, she will know from what I said at Second Reading that people outside this House have briefed us on their concerns that there are gaps; they have said that the Bill may have been drafted in such a way that the Data Protection Act does not cover all the new provisions. That is why we are testing the boundaries of protection.
The noble Baroness said that there are other safeguards, and she went through them, which was very helpful. However, I agree with my noble friend Lord Crickhowell that we could end up without a coherent system of protection to which one could easily refer. It may well be that that is not achievable, but our first stab at achieving it was to ask the Secretary of State to table a code of practice.
My noble friends and others have tabled amendments that look specifically at the role of the Information Commissioner. Like the Minister, I have great confidence in the work that the Information
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Amendment, by leave, withdrawn.
[Amendment No. 104 not moved.]
7.15 pm
Baroness Anelay of St Johns moved Amendment No. 104A:
(c) is personal data, within the meaning of section 1 of the Data Protection Act 1998 (c. 29), pertaining to a person who the public authority does not suspect of involvement in fraud.”The noble Baroness said: I shall also speak to Amendments Nos. 111A and 112A. These again are probing amendments. They would authorise the sharing of personal data only if those data pertained to a person who is suspected of involvement in fraud. The amendments would place no additional restrictions on the sharing of non-personal data. They also aim to ensure that the Audit Commission’s power to require a body to disclose information does not displace any restrictions on the disclosure of information under the Regulation of Investigatory Powers Act 2000 and the Data Protection Act 1998.
This is a recurring theme in our debates. In fact in almost every part of new legislation we are concerned about the Government’s aim to enable a more permissive regime for data sharing. My noble friend Lord Northesk, who I am relieved to see in his place, quite rightly said during a debate on the Identity Cards Bill that,
- “the statute book is groaning under the weight of successive legislation aimed essentially at creating a more permissive regime for data sharing”.—[Official Report, 14/12/05; col. 1351.]
Identity cards, DNA databases, and the children’s data sharing index are but a few examples. Data sharing of various types is proposed in the current Digital Switchover (Disclosure of Information) Bill. It is reflected in the provisions of the Offender Management Bill, which is to reach us very shortly, and of the Welfare Reform Bill. Members of this House have always questioned why there is a need for such wide-ranging, all encompassing exchanges of information.
Among others, Liberty is concerned that the information is being collected because it just might be of use at a future point or because, with the recent technological advances, by looking at the information the state might, not would, find that we have done something wrong. It all too neatly fits with an urge that we think the Government have to say that one is guilty until proven innocent. Collecting personal data in this way is treating us as suspects rather than as citizens.
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At Second Reading, the noble Lord, Lord Thomas of Gresford, who I am relieved to see in his place after a short diversion, likened these data-sharing and data-mining powers to,
- “is not necessary for there to be evidence of wrongdoing, a probable cause or a warrant based on reasonable suspicion”.—[Official Report, 7/2/07; cols. 738-39.]
We have always argued that any use of data needs to be both justified and proportionate. However, we also have to consider whether infringing the privacy of millions of people on the chance that a few cases of fraud will be identified is proportionate in respect of the Human Rights Act. I know that the Minister has said that it is compliant and that there is no problem. We have yet to be persuaded.
We are not saying that personal data should never be shared or searched to identify fraud. There is a strong case that the provisions of the Data Protection Act and Article 8 of the European Convention on Human Rights, as set out in Schedule 1 to the Human Rights Act 1998, provide a flexible and reasonable legal framework that already permits private information to be used to combat crime. Liberty, which has briefed noble Lords on this point, argues that this should not be done on an indiscriminate basis but in a limited way. The Minister has stated that she envisages data being shared in a narrow and targeted way. We wonder why the Government then feel that the current provisions are not adequate. I beg to move.
Lord James of Blackheath: Can the Minister clarify a point that is troubling me greatly? I recognise that I am now so confused that I am probably asking the question in the wrong place. Do the clauses deal with my long-standing concern about whether in future the Stock Exchange council will be allowed to disclose to shareholders where a criminal offence has formerly been committed by someone moving to a position of authority and power in a public listed company? Some notable instances of that have led to direct fraud. The noble Lord, Lord Dear, and I share one common experience of this, for some £80 million of theft, and I have another one with the SFO that amounted to £400 million by a man who had a previous conviction for fraud in a foreign jurisdiction. Will the provisions overcome the Stock Exchange objection in the past that it could never tell anyone because it was prohibited from doing so under data protection and the workings of the Rehabilitation of Offenders Act?
Baroness Scotland of Asthal: I will respond first to the amendments. I notice with hurt surprise the repetition of “suspects” rather than “citizens”. I do not chide the noble Baroness in that regard, but it would be an unfortunate way to view such people because, as she would wish, we seek to justify the provisions on the basis that they are a proportionate use of the data. We will resist the amendments, but I hope that I will be able to explain why. I may take a little time doing that, because we need to sort it out at this stage if we can.
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Amendment No. 104A seeks to prohibit the sharing of personal information as defined in Section 1 of the Data Protection Act, where it pertains to a person whom the public authority does not suspect of involvement in fraud. I am a little surprised by that, because we accept that fraud exists and is suffered in almost endemic proportions by both the public and private sectors, as the noble Baroness alluded to. To prohibit the sharing of information where there is no suspicion of fraud will devalue the worth of the data-sharing power. The amendment would prevent public authorities being able to check new and seemingly honest applications for services against the list of known or confirmed fraudsters held by an anti-fraud organisation. As I tried to say earlier, that would provide successful fraudsters with an opportunity time and again to exploit services, in the knowledge that their application would be assumed honest. I very much bear in mind the personal example that the noble Baroness gave earlier about the proper and vigorous attempts that I am sure she made to prevent this happening in her time. The amendment would raise the threshold so high as to make the clause incapable of being used to prevent fraud, which causes huge losses to the public purse.
Amendment No. 111A is about the provision of data by the mandatory bodies in Schedule 6. Specifically, it seeks to incorporate a new subsection that states that nothing in the provision authorises the disclosure of data in breach of the Data Protection Act or the Regulation of Investigatory Powers Act. That would mirror new Section 32C(3), which governs the disclosure of information by voluntary bodies. In addition, the noble Baroness seeks that personal data should not be provided to the commission by either mandatory or voluntary bodies, unless the supplying public authority suspects those individuals of being involved in fraud.
I gently suggest that the amendment is inappropriate and would seriously undermine the workings of the clause. First, it is not appropriate to mirror new Section 32C(3) in new Section 32B. New Section 32C(3) is effectively a saving provision designed to ensure that the Data Protection Act and the Regulation of Investigatory Powers Act continue to apply where data are shared on a voluntary basis. We need that because new Section 32C lifts the statutory bars that would otherwise prevent bodies contributing their data to the commission for the purposes of data matching. We therefore need to make specific provision to preserve the applicability of those two Acts, and to ensure that the key safeguards remain in place. By contrast, new Section 32B does not lift any statutory bars, and the Data Protection Act and the Regulation of Investigatory Powers Act will already apply where the commission is obtaining data using its mandatory powers. In other words, one does not need to put back what has not been taken away.
Amendment No. 112A is the proposal that personal data should be provided only for data matching where the public body suspects the individuals of fraud. If bodies already suspect individuals of fraud, they will not need to participate
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Two ancillary points should be made in relation to this amendment. The first is that it is inconsistent with the proposed changes to the data-matching purposes, which would require the detection of actual or attempted fraud. If that were the case, it would surely not be sufficient for a body merely to suspect that a person had been involved in fraud before it provided its data to the commission. In any event, as I hope I have explained, data matching can add little where a body either already knows or suspects an individual of fraud. The second point relates to the drafting of the amendment. It will not only be public bodies participating on a voluntary basis, and inserting the provision into new Section 32C would mean that public sector bodies alone would be subject to the restrictions, without their private sector counterparts. I do not believe that that is what the noble Baroness intends.
I turn to the question asked by the noble Lord, Lord James of Blackheath, in relation to the Stock Exchange. Only members of the specified anti-fraud organisations can share information. If both the London Stock Exchange and, for instance, the noble Lord were members, they could share information via the specified organisation, but would not be obliged to do so. I see that it is one minute before half-past seven, so I will be happy to write to him further in that regard if it will further assist him.
Lord James of Blackheath: If the Stock Exchange is not the appropriate body, and as the DTI has responsibility for disqualifying directors after they have committed an error, should it not now accept the responsibility for screening them on appointment before they commit the error?
Baroness Scotland of Asthal: That will take a longer answer that even I, speaking as quickly as I can, could not get in within one minute. Will the noble Lord allow me to write to him? For the reasons I have explained, I hope that the noble Baroness will feel able to withdraw her amendment. I hope that, after consideration, she will not need to trouble to bring it back.
Baroness Anelay of St Johns: I am grateful to the noble Baroness for her extensive answer. She was right to note that we were not trying to destroy the provisions of this clause. I am grateful to Liberty for its briefing. Our position, when we looked at the clause, was to be concerned that there should be no circumstances in which information on health records, for example, could readily be exchanged.
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The noble Baroness was concerned that if she gave a longer answer she might exceed the one minute remaining before 7.30 pm. Of course, as my noble friend Lord Henley, remarked, the noble Baroness can go long beyond 7.30, but the way in which the number of people on the Benches has changed in the past few minutes somehow makes me believe that if I continued beyond 7.30, I might not have much longer to live. So, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: As is customary, I beg to move that the House do now resume. It is also customary to name a time when we return to Committee, but I am happy to announce that we will not be returning to Committee on the Bill this evening.
Moved accordingly, and, on Question, Motion agreed to.
Equality Act (Sexual Orientation) Regulations 2007
7.30 pm
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews) rose to move, That the draft regulations laid before the House on 13 March be approved. 12th Report from the Statutory Instruments Committee and 14th Report from the Merits Committee.
The noble Baroness said: My Lords, these regulations are the final stage in a journey which began in December 2005, when the Government accepted an amendment in this House to include a power in the Equality Act enabling regulations to be made to outlaw discrimination in the provision of goods and services—for example, in shops and hotels—in the exercise of public functions—for example, in the delivery of health services—in education and the rental and sale of premises.
We have, therefore, reached a final chapter in a process which has been inspired by a determination to create a society which is fair in all respects and to all members of society. That means, quite simply, that no one will be denied the right to be themselves and to be treated fairly. And much of this debate centres on the right to dignity and equal treatment—the right not to be humiliated. It cannot be right, in the body of evidence that we have seen on discrimination against gay and lesbian people, that same-sex couples may be asked to leave a restaurant for holding hands, or that a school can turn a blind eye to homophobic bullying, or that young, homeless people can be asked to leave sheltered accommodation on grounds of their sexual orientation, or that an elderly gay couple in residential accommodation is denied the right to be together.
This House certainly did not think that was right, which is why the Equality Act 2006 legislated for new protections on the grounds of sexual orientation.
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The regulations are certainly not without controversy. They reflect deep and sincere beliefs. They cover complex ethical issues. But we are confident that, having listened and having had an inclusive and thoughtful debate over issues of faith, conscience and the law, we have achieved a balance. That approach, significantly, has been endorsed by the Joint Committee on Human Rights.
I appreciate that the nature of some of the concerns raised are expressed in the amendment tabled by the noble Baroness, Lady O’Cathain, and I want to try to anticipate and address some of the concerns that she may raise about religious liberty, classroom teaching and the situation in Northern Ireland. But I also want to try to reassure the House on the scope of the debate, its seriousness and the process that has been followed, and to lay to rest some of the misunderstandings and, indeed, some of the myths that have overtaken and sometimes confused the debate itself.
I need to start by addressing some procedural concerns with regard to the passage of the new protections, before explaining the substance of the Great Britain approach, which broadly follows the Northern Ireland approach, albeit differing in five important respects.
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