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Clause 62 [Northern Ireland]:

Lord McKenzie of Luton moved Amendment No. 9:

(a) a registered medical practitioner, (b) a registered nurse, (c) an occupational therapist or physiotherapist registered with a regulatory body established by an Order in Council under section 60 of the Health Act 1999 (c. 8), or (d) a member of such other profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 (c. 17) as the Secretary of State may prescribe.”

On Question, amendment agreed to.

Lord McKenzie of Luton: My Lords, I beg to move that this Bill do now pass.

Moved accordingly, and, on Question, Bill passed, and returned to the Commons with amendments.

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Serious Crime Bill [HL]

4.14 pm

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Brougham and Vaux) in the Chair.]

Schedule 6 [Data matching]:

The Deputy Chairman of Committees (Lord Brougham and Vaux): I advise the Committee that if Amendment No. 115 is agreed to, I cannot call Amendments Nos. 116 or 116A.

Baroness Anelay of St Johns moved Amendment No. 115:

The noble Baroness said: I shall speak to Amendments Nos. 116 and 117 as well. As has been remarked, if I had been minded to press the first amendment in the group, I then could not have addressed the other two. This reflects the complexity of this group. I would have preferred to assist Members of the Committee by unpacking it but I found it impossible to do so in Committee, where it is important to have a rounded debate on substantial issues. Therefore, as I remarked to the noble Lord, Lord Bassam, earlier today, I treat this very much as a probing exercise at this stage, but, because these are contentious issues—perhaps the most contentious in Part 3—I will listen carefully to the Minister’s response and consider how the amendments should be brought back on Report. The overall objective of this small but powerful group of amendments is to limit data-matching to serious crime, but it would substantially restrain an overweening power given to the Secretary of State to extend the purposes for which data-matching may take place.

At present, data-matching may be conducted only for the prevention and detection of fraud. That is achieved by the drafting of new Section 32A(3) in Schedule 6(2). It would amend Section 18 of the Audit Commission Act 1998. However, the same schedule inserts new Section 32G, entitled “Powers of Secretary of State”, which confers on the Secretary of State a power to extend the purposes for which data-matching may be conducted. Those powers can be extended by statutory instrument subject to the affirmative resolution procedure.

The Bill provides by way of illustration a non-exhaustive, broad list of additional purposes. It includes prevention and detection of all crime—with no restriction at all—the apprehension and prosecution of offenders and the recovery of debts owed to public authorities. The schedule therefore appears to give the Secretary of State an open-sesame password for extensive and possibly objectionable

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powers in the future. Our amendments would restrict those powers and ask the Government to justify their attempts to future-proof the Bill in this way, because it leaves the system open to abuse and could result in the inappropriate invasion of individuals’ privacy. The schedule effectively says, “Well, so far, we’ve thought of taking more powers in this way, but we won’t guarantee that we’ll stop there. Give us the powers to do as we please in the future”. That seems extraordinarily broad. As we have said repeatedly during our debates on the Bill, it is important to make the best use of modern data systems to detect or prevent fraud. However, we have serious reservations about the detail of the privacy implications of Part 3.

I suspect that the Minister’s full and informative answers on Part 3 so far will persuade us that we need to bring back only a small number of amendments for further elucidation. The noble Baroness said that she would write to noble Lords to answer those questions that we have not had time to address. However, we are approaching the core differences between us on Part 3.

Amendment No. 115 would restrict the use of data-matching to fraud by removing subsections (1) and (2) of new Section 32G, which provide the Secretary of State with the power to extend the purpose for which data-matching can be undertaken by increasing the involvement of private bodies in data-matching exercises and amending the Data Protection Act 1998. New subsection (2) provides the non-exhaustive list of additional purposes.

Amendment No. 116 would insert a new subsection to prevent the Secretary of State expanding the use of data-matching to include assisting the recovery of debt incurred as a result of serious crime. Amendment No. 117 would remove new Section 32G(3).

We are concerned at how the provisions of this part of the schedule could be used in the future. For example, will the Minister explain how the Bill would guarantee that the national identity register could not be used for data-mining or data-matching purposes, except in cases of serious crime? The Minister will recall our extensive debates on the Identity Cards Bill and her assurances regarding the use of the NIR where serious crime was involved.

When I looked at the Bill, I could not easily see the guarantee that I seek. My noble friend Lord Henley asked the Minister questions from another angle about the national identity register when he moved Amendment No. 110B last night, but he does not recall her answering those questions. I looked at Hansard this morning and did not find an answer, although it may be an issue on which she intended to write to my noble friend. However, today I seek guidance on where in the Bill I might find the guarantee that the information that is to be opened up to data-matching and data-mining by these provisions would not include the national identity register.

It is far from clear that any assertion that data-matching can prevent fraud is justification itself for the extensive powers in Schedule 6. The Delegated

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Powers and Regulatory Reform Committee pointed out in its report that it felt that the Government failed to justify fully the need for this power of modification in their Explanatory Memorandum. I would be grateful if the Minister could today provide that fuller justification that the Delegated Powers and Regulatory Reform Committee obviously felt should have been provided.

In this part of the Bill there is a strong case for saying that any changes by order are not appropriate and that we should seek to extend purposes only by way of primary legislation. Noble Lords have just seen a prime example of the limitations on this House in dealing with a statutory instrument. The noble Lord, Lord Trimble, moved what would have been a fatal Motion on Northern Ireland matters. I am not commenting on that; I abstained in that regard. The Minister will be aware that it is extraordinarily rare for my noble friends to vote on a whipped vote to kill a statutory instrument, which cannot be amended but only rejected. Of course, there may be free votes, but I have not taken part in the 10 years that I have been here in a whipped vote to kill a statutory instrument. It is so rare that when the Criminal Justice Act went through, the Minister will remember, the Government gave a specific assurance that, if a statutory instrument were brought forward to enable the abolition of jury trial in serious fraud cases, the Government would accept that my noble friends might well choose to vote down that statutory instrument.

It is not sufficient for the Government to say that there is an affirmative process. In some circumstances, with matters of constitutional importance, one may of course vote, but they are so rare that it is important always to see whether the procedure is appropriate. In this case, unless we have acceptable assurances—at the moment I cannot see how they might be—changes to extend the Secretary of State’s purposes, adding matters to the schedule, should be by primary legislation not statutory instrument. I beg to move.

Lord Burnett: As we come to the close of the Committee stage—not quite yet, but we are getting there—it is about time that I put on record my gratitude to the Minister of State and her noble friend for the full, detailed and courteous way in which they have handled these matters. That is one of the joys of this place, when one debates such matters. This is a serious Bill for serious crime—I apologise for the cliché, but it is an important Bill, and I understand what the Government are getting at. It is our job to try to redress the balance between the state and the private individual. Having said that, proceedings in this place seem so much more constructive, and there is an element of give and take that has been for some years rather absent in another place.

My name and that of my noble friend Lord Dholakia are attached to Amendment No. 115, which has already been covered extremely competently by the noble Baroness, Lady Anelay, and on which we have had discussions and briefings from Liberty. It would require Parliament to pass primary legislation to add further purposes for which data-matching or

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mining may be undertaken. As the noble Baroness, Lady Anelay, said, the reasons for such provision have been demonstrated. At present, the only purposes for which data-matching may be conducted are the prevention and detection of fraud. The Bill would, however, also confer a power on the Secretary of State to extend the purposes for which data-mining may be conducted. It also provides a non-exhaustive list of additional purposes including,

Data-mining may help to detect fraud and may also have benefits in relation to those other purposes. Nevertheless, as we have discussed and I have mentioned, it is far from clear that those benefits are sufficient to justify the sweeping invasions of privacy that indiscriminate data-sharing and data-mining inevitably involve. Given the serious privacy implications, it is important that Parliament retain strong powers to control the purposes for which data mining may be conducted. The Bill provides that any order to extend the purposes for which data-mining may be conducted would have to be approved by a resolution of both Houses of Parliament. We do not consider that sufficient in this context because of the limited time that is usually allowed to debate draft orders and particularly because Parliament would not be able to amend such an order.

The Government could, for example, propose that the following extra purposes be added: first, detection of serious crime; secondly, preventing terrorism; and, thirdly, identifying people who might be interested in taking part in a No. 10 policy forum. Parliament may agree that purposes one and two justify the invasion of privacy and that data-mining is correct in those circumstances but that purpose three does not. However, Parliament would not be able to delete purpose three and would have to vote for all or nothing. That is perhaps rather an extreme example in my notes but it brings home the point made so ably by the noble Baroness, Lady Anelay. I hope that the Minister will respond to the compelling points that we have raised.

Baroness Scotland of Asthal: I thank the noble Lord, Lord Burnett, and the noble Baroness, Lady Anelay, for exploring the issues as they have. I absolutely accept that the noble Baroness is trying to achieve clarity in understanding better how the provisions will work and whether it will be possible to make inappropriate extensions contrary to that which we have already said. I understand that her proposal to remove new Section 32G should be read in that context.

Although the list given in new Section 32G(2)—

is an illustration, I hope that it demonstrates the potential value of leaving open the possibility of extending the scope of the valuable tool provided by the national fraud initiative. I thank the noble Baroness for indicating that she accepts the value of

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that initiative. She and other noble Lords have made that clear throughout, so we are at one.

This effective tool for identifying irregularities through data matching could, for example, have a potential role in identifying convicted sex offenders who are working with vulnerable adults and children. The noble Baroness will know that the names of those working with children or vulnerable adults can be checked against the sex offenders register and List 99. However, current checks are expensive and not as effective as they should be. Given the comments made so often in this Chamber, I cannot imagine that any noble Lord would want to discard a potential method of identifying those working with vulnerable people who should have been prevented from doing so.

4.30 pm

Of a different level of potential seriousness, but none the less important, the national fraud initiative should, subject to parliamentary approval, be allowed to help recover public debt from persons who have left without making payment or giving any forwarding address. I do not believe that we should close the doors to such possibilities now.

The national fraud initiative requires only a limited amount of information from each data set that is held by a body. It does not indiscriminately swallow vast amounts of personal data in a way which may cause prejudice to innocent people. Instead, it carefully matches only the relevant information which has the potential to uncover where fraud, or possibly in the future, other crimes or irregularities, may have occurred.

It should also be remembered that the power to add the new purposes will be subject to the affirmative resolution procedure of both Houses. Of course, I hear what the noble Baroness says about that, but she and I have experienced this House’s increasing willingness to challenge, and its ability to do so when that is right and proper. I have never been slow to accept the reality of that position. One of the beauties of adding issues to the list by way of affirmative resolution is that the House has an opportunity to say “yea” or “nay” to such a change. The process is an increasingly powerful one and one which this House has not hesitated to take recently.

I endorse what the noble Lord, Lord Burnett, said—that this House, and increasingly the other place, are working hard together, particularly on these issues, to find sensible resolutions to problems. I have the happy advantage of having worked with the noble Baroness on so many Bills that they are too bountiful to recall, though some stand out with glowing memory. This is a very important safeguard, ensuring that any new purposes are appropriate and justified.

Amendment No. 116 offers an alternative to limiting these further purposes, which would extend the national fraud initiative powers beyond fraud only where it relates to the prevention and detection of serious offences as defined by Schedule 1 to the Serious Crime Act 2007.

Although it is certainly possible that data matching might assist in preventing and detecting these crimes, Schedule 1 does not set out an appropriate list by

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which to constrain the types of crime contemplated in extending the purposes of the national fraud initiative. Schedule 1 would not enable the commission to undertake data matching to identify where convicted sex offenders may have wrongfully gained employment working with vulnerable people. Nor would the commission be able to undertake data matching for the purpose of identifying the whereabouts of individuals who have absconded, leaving behind public sector debt, such as tenant rent-arrears owed to a local authority. Regrettably, the indications are that these sums are substantial.

It is important to remember not only what the national fraud initiative tool can do but also what it cannot do and what it is not. The Audit Commission has no intention or need to use this tool invasively to look into the lives of the law-abiding public or to extend this tool to private companies to collect debt owed by customers. The national fraud initiative is a flexible tool that could be adapted to serve the public interest—I emphasise, the public interest—not only in preventing and detecting fraud, as the Bill currently does, but in other areas, too, subject to Parliament’s future approval.

The noble Baroness mentioned the assurances we gave on the national identity register. Those hold true. The intention would be only to use the register to identify crime where a specific provision was made in the law introducing it, or where the Government had decided not to do so because its use would be voluntary. The Audit Commission would wish to use the register only for serious crime, in any event. I do not believe that there is any dissonance between the position that we explored when we discussed the national identity register and the current position.

The noble Baroness’s Amendment No. 117 would remove the power to add bodies subject to mandatory participation in the national fraud initiative. Currently, only bodies subject to audit and inspection by the Audit Commission are included on the mandatory list. Over time, reorganisations occur and governance and accountability can change at a local level. This clause allows the national fraud initiative to be flexible to such potential changes and, thereby, to keep pace with the developing ways in which criminals endeavour to take advantage of the public sector. Again, it should be noted that this power is subject to the affirmative procedure in both Houses.

I understand that the noble Lord, Lord Burnett, and the noble Baroness, Lady Anelay, are concerned about the apparent elasticity in this clause, but I hope I have gone some way to explain why it is essential that the national fraud initiative has flexible and appropriate powers at its disposal.

The noble Baroness pressed me on the justification for the further extensions. I hope that I have been able to persuade her that we require a flexible tool that can be used where needed and can allow cross-border matching. For example, we cannot now match between northern England and southern Scotland, which leaves a loophole for fraudsters to exploit. I am

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confident that neither the noble Baroness nor the noble Lord, Lord Burnett, would wish that to continue.

On the identification of people who wish to take part in the policy forum, which was raised by the noble Lord, Lord Burnett, giving that purpose to the Audit Commission could not be justified. He does not need to worry about that.

I hope that I have said enough to reassure the noble Baroness and the noble Lord that we do not need to return to these issues, but I accept that the noble Baroness will want to look carefully at what I have said, in addition to the issues that we explored in previous amendments. I accept that once she has done that, she may well wish to come back and hone any further amendments on Report. Before that, I would be very happy to discuss any of those issues with her, if she wished to do so.

Lord Crickhowell: I apologise for not being in the Committee when my noble friend moved her amendment. I had not intended to rise, except to say, as on previous occasions when we have debated these matters, that I wholly support what she said about the affirmative resolution procedure and the undesirability of giving extensive powers by such a route.

I am tempted to my feet by what the noble Baroness, in the course of her always helpful and thorough explanation, said about subsection (2). The clause raises a question about the use of the words “in particular”. The noble Baroness did not add clarity by saying that the clause sets out a number of items “by way of illustration”. I am not sure that we should have legislation “by way of illustration”. It seemed to me that her example of the convicted sex offender did not really add enlightenment. Surely, if the purpose is to assist in the prevention and detection of crime, other than fraud, the case of the convicted sex offender must already be covered. I ask myself, what is added? The same is true of her other example, the national fraud investigation review arrangements. Surely, that is covered by paragraph (c), which says,

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