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Another example of where sharing between the ONS and other departments is allowed by existing legislation is the Inter Departmental Business Register. The IDBR is a list of UK businesses maintained by the ONS, collected under legislation such as the Statistics of Trade Act 1947. These data are used by various government departments, such as the Department for Education and Skills and the Department for Environment, Food and Rural Affairs, or by the devolved Administrations, for selecting samples for surveys of businesses to produce, for example, analyses of business activity. It is vital for statistics around government to ensure that these existing flows of data from the IDBR are allowed to continue. Amendment No. 176 would stop this by preventing the board from sharing data when other enactments allowed it. The noble Baroness asked for a comprehensive list. We hope to provide that to her before the next stage of the Bill. I hope that she will feel able to withdraw her amendment in the light of what I have said.
Baroness Noakes: I thank the Minister for offering to provide that list. I was merely seeking clarity, rather than leaving an undefined ability in the Bill. When the Minister produces the list, perhaps he will explain the relationship between it and Schedule 2, to which he referred me and which provides for continuity with a number of specific Acts. Is Schedule 2 a comprehensive statement? I am happy for the Minister to write to me on that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 177 and 178 not moved.]
Baroness Noakes moved Amendment No. 179:
Clause 36, page 15, line 33, at end insert and only where the information is being made available for statistical purposes
The noble Baroness said: I was confused earlier by the noble Lord, Lord Newby, not moving Amendment No. 174, with which Amendment No. 179 was grouped. Since we have now reached Amendment No. 179 on the Marshalled List, I shall exercise my right to move it.
Noble Lords will know that we on these Benches have a fair degree of suspicion about the designs of the European Community on matters within our national competence. We can just about see that there might be statistical obligations within the Community that require disclosure of personal information. We are not convinced that that is the case, but we are prepared to give the benefit of the doubt. However, we are wholly resistant to the notion that the Statistics Board, which is the guardian of personal information for statistical purposes within the UK, should have any right or obligation to pass on personal information under Community laws that are not statistical in origin. That is a step too far and it should be resisted. I beg to move.
Lord Desai: I have been puzzled by some of the observations that have been made and have been trying to restrain myself. I do not know what the worry is. What information of a personal nature does the noble Baroness think could be revealed by the Statistics Board? Where a sole corporation is concerned, the name of the corporation may be revealed. I do not know what sort of person the noble Baroness is worried about.
Baroness Noakes: I find that question a little difficult to answer. I am worried about any form of personal information that the Statistics Board might hold for its statistical purposes. I have no problem with the Statistics Board receiving personal information to produce statisticsthat is entirely sensible and rationalbut I am probing the circumstances in which the Statistics Board may pass on that personal information. It will acquire quite a lot of personal information; for example, it will be able to acquire information from NHS registration practices. I am sure that the Minister can assure the noble Lord, Lord Desai, that it will be quite normal for the Statistics Boardor the ONS at the momentto have access to personal information in the production of its statistics. I am probing the removal of that information beyond the Statistics Board, not its use within it.
Lord Davies of Oldham: EU regulations and directives impose duties on member states as regards the collection of statistics and regulate the way in which they are collected. Community obligations are an important part of the UK Governments responsibilities within the European Union. We currently provide significant amounts of information in response to our Community obligations; for example, member states are required to submit to Eurostat data on balance of payments, international trade in services and foreign direct investment for the production of Community statistics.
I emphasise that we are not currently aware of any Community obligations that require disclosure of statistical information for a non-statistical purpose. However, the Government believe it necessary to ensure that this clause does not create a barrier to disclosure, in the event that a Community obligation should require this in the future. This is particularly necessary given the criminal sanctions in Clause 36. We certainly would not want somebody inadvertently to be criminalised because they had met a future Community obligation.
Our obligations and responsibilities within the European Union are important. It would not be right to restrict disclosure where the Community required it. EC regulations are binding in their entirety and are directly applicable in member states. As a matter of law, any national provision that is inconsistent would need to be repealed in any case. The exception in Clause 36(4)(b) is required to ensure that there is sufficient flexibility for the future should a Community obligation require disclosure, whether or not that disclosure is for a statistical purpose. No legislation from the Community requires this at this stage, and nothing is imminent, but if we did not have any flexibility in this legislation, someone could be subject to criminal sanctions for obeying a European requirement to which we had properly assented. That is the reason for this element of flexibility, but I indicate again that there has been no instance of this disclosure being required by the European Community in the several decades for which it has existed.
Baroness Noakes: The truly shocking aspect of the Ministers response was his saying that the Government might agree to releasing personal information for non-statistical purposes into the EU. He referred to the UK properly assenting to such a requirement. In my view, the UK could never properly assent to any such notion, but clearly the Governments views and ours on what we will do with our citizens data within the EU do not coincide, as is the case with many of our views on our relationship with the EU. However, that is too large a subject to pursue further this evening. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 180 not moved.]
Lord Newby moved Amendment No. 181:
The noble Lord said: I apologise to the noble Baroness for not having moved Amendment No. 174, but my principal reason for not moving it was that I was rather reassured, somewhat against the grain of this Bill, by the Ministers response to Amendment No. 171, when he saidor I thought that he had saidthat disclosure would take place only for statistical purposes. Perhaps I was lulled into a false sense of security.
In moving Amendment No. 181, I shall speak also to Amendment No. 183. They are not grouped together, but they are both probing amendments. The two paragraphs to which they refer appear to deal with information which would be disclosed for non-statistical purposes. I cannot imagine a court ordering the board to disclose information for statistical purposes, nor can I imagine the intelligence services doing the same. This clause looks very similar to a clause that I remember debating in a Bill merging the Inland Revenue and HM Customs and Excise; it is a general clause. Could I have some explanation from the Minister as to circumstances in which personal information might be required by the court and, if he could, circumstances in which the intelligence services might be given that information? I beg to move.
Lord Evans of Temple Guiting: I shall speak to Amendments Nos. 181 and 183.
Amendment No. 181 would remove the exception allowing the board lawfully to share information in pursuit of a court order. This exception is necessary to avoid the board being put under competing legal obligationsfrom the court order and the confidentiality obligation at Clause 36. If the board were made the subject of a court order requiring it to disclose this information, the boards employees would face conflicting legal demands. On the one hand, they would be subject to the limit on disclosure of information in the confidentiality obligation and, on the other hand, they would be required to disclose information as a result of an order of the court.
Of course, if a court requested information from the board, the board could present arguments to the courts as to why they should not be required to release the information, as the ONS has done in the past. However, we do not want the board or its employees to face conflicting legal demands if, after considering those arguments, the court order requires the information to be passed to them.
Amendment No. 183 would remove the provision which allows the board lawfully to share information with the intelligence services, in the interests of national security. This provision effectively replicates the current position, whereby we believe that, if the intelligence services were able to make out a principled case for access to information, restrictions on disclosure of information could be over-ridden in the public interest. The provision ensures that the Statistics Board is not restricted from making a disclosure of this nature in the future, should it be regarded as necessary.
As with all the exceptions to the confidentiality obligation, this exception allows, but does not compel, disclosure by the board. This is a discretionary gateway under which the board would be able to disclose if it was satisfied that the disclosure fell within the terms of the Bill. Should the board receive a request for information from the intelligence services, it would have to consider that request on a case-by-case basis. Additionally, before making a disclosure, the board would need to be satisfied that the disclosure did not breach the Human Rights Act 1998, particularly Article 8the right to privacyand was consistent with the Data Protection Act 1998.
There are other existing legislative safeguards against abusein particular, the legislation establishing the intelligence services places statutory duties on the heads of the intelligence services to ensure that there are arrangements for securing that information is not obtained except in so far as necessary for the proposed discharge of their functions.
I hope that my comments on these two amendments have reassured the noble Lord, Lord Newby, and that he will be able to withdraw his amendment.
The Earl of Northesk: In respect of both instances that are the subject of the noble Lords amendment, the board will end up being the secondary source of information. The information will have been derived from primary sources, whatever those sources may be. In that event, why on Earth is it necessary for the law statutorily to demand the right of access to the boards information when as a matter of course that information primarily is available elsewhere?
Lord Evans of Temple Guiting: It may not be available elsewhere. It may have been collected from a variety of sources. The point of my explanation on the amendments is that there is nothing new here. This is how the board operates at the moment and we are simply explaining that that is how it will operate in future. If the noble Earl believes that there is a basic inefficiency in how the ONS has done its duty in the past, we will be very happy to look at that. The noble Baroness, Lady Noakes, shakes her head. If I was proposing that the board did things in a different way, there might be a reason for some discussion, but I am describing what happens now.
Lord Newby: I am grateful to the Minister for that explanation, which technically I understand. However, because he has not given us any examples of either of these powers being used in the pastalthough I accept that that might be difficult to do because of national securityit is very difficult to have a discussion about whether they have been used reasonably. It is highly likely that such orders of the court are rarely used. I could not think of a case in which a court would be ordering the ONS to disclose personal information. However, if there is a strand here, it would be useful to have some evidence of what it is and why the provision is so valuable. The Minister may be able to give me some satisfaction on that.
Lord Evans of Temple Guiting: This is an answer to the question asked by the noble Earl, Lord Northesk. It is likely that courts would go to primary sources, but there may be circumstances when they consider it necessary to approach the board.
Lord Newby: I am sure that the noble Earl, Lord Northesk, is extremely grateful for that explanation. Perhaps the Minister would feel it helpful to drop me and other noble Lords participating in this debate a short note about circumstances in which the court has applied for information. I think that we would all find that extremely helpful.
Lord Evans of Temple Guiting: I shall be very happy to do that.
Lord Newby: I am extremely grateful to the noble Lord. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 182 to 186 not moved.]
The Earl of Northesk moved Amendment No. 187:
(c) appropriate safeguards to guarantee adequate data protection for the relevant personal information.The noble Earl said: The amendments clear purpose is to ensure that approved researchers are bound by adequate data protection safeguards, not least so that such individuals are fully cognisant of the legal requirement to maintain confidentiality in respect of raw data. I have absolutely no difficulty with such individuals being granted access to personal information by the board. Indeed, such a provision can be interpreted as both necessary and beneficial in generating an effective and useful statistical product. That said, given the nature and scope of the raw data that will potentially be disclosed to them, it seems entirely appropriate that a strong and robust analysis of the data protection safeguards with which approved researchers would need to comply should be an element of the criteria that the board considers.
As I suggested at Second Reading, I can be reasonably certain that the Minister will pray in aid the defence that the Data Protection Act applies in any event. However, as I argued elsewhere, the protections afforded by the DPA are not necessarily as robust as they may seem, not least because the technological landscape has changed so dramatically since it was enacted some 10 years ago. Quite apart from that, the massive scope of personal information now encompassed by administrative data requires that regimes protecting it should be as robust as possible, even more so than those in the private sector.
Accordingly, I believe the belt-and-braces approach that is intrinsic in the amendment to be both necessary and sensible. I beg to move.
Baroness Noakes: I added my name to the amendment and completely support it. The Bill wisely drafts in the requirement to sign a confidentiality declaration and that the board consider various issues. However, the board is not required to consider the additional safeguards for handling information; therefore, my noble friends amendment is an essential addition.
Lord Evans of Temple Guiting: As we have heard, the amendment relates to the appointment of approved researchers by the board. As we discussed earlier, the Government are giving the board a function of promoting statistical research, allowing it to give academics and statistical researchers access, with tight controls, to some of the wealth of government data it holds, benefiting the wider public through the provision of better research and statistics.
The amendment would insert the requirement that the board, when appointing an approved researcher, must consider whether there are appropriate safeguards to guarantee data protection. I reassure the Committee that, as my noble friend Lord Davies explained, the Government consider it essential that there be strong confidentiality safeguards to give people confidence that their personal data will be held securely by the board. Furthermore, I reiterate that the Bill is not intended to make the Statistics Board a repository or conduit for the widespread sharing of information throughout government, beyond, of course, replicating the existing situation.
A great number of safeguards are in place to ensure adequate data protection when the board promotes statistical research. However, the key point is that we do not consider it necessary to specify in legislation that the board must expressly consider that there are appropriate safeguards to guarantee data protection when appointing an approved researcher.
The Bill specifies that the board must periodically publish the criteria on which it will appoint approved researchers. We would expect these criteria to include a consideration of the safeguards in place to guarantee data protection. However, given that a number of specific and general legal safeguards are already in place, we do not think that it is necessary to specify this in the legislation.
I hope that the noble Earl, Lord Northesk, is satisfied with the information I have given and that he will withdraw the amendment.
The Earl of Northesk: I am grateful to the noble Lord. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 188 not moved.]
Baroness Noakes moved Amendment No. 189:
( ) Section 33(1) does not apply to the Boards power to authorise a disclosure under subsection (4).
The noble Baroness said: This probing amendment would insert two new subsections into Clause 36.
We have talked about various disclosures of personal information which may be permitted under Clause 36(4). We have varying degrees of enthusiasm for some of those categories. Amendment No. 189 addresses a related concern; namely, the level at which disclosure may be authorised. The first new subsection says that only the board may authorise disclosure, and the second says that the ability to delegate set out in Clause 33(1) does not apply to disclosure under Clause 36(4).
We are concerned with the liberal delegation powers allowed by Clauses 33 and 29, through which the authorisation of disclosure may slip down the organisation and what should be exceptional and subject to a high level of scrutiny may become routine and unsupervised. I mean no suggestion of dishonesty or negligence if the board staff were handling disclosure, but when disclosure becomes routine and out of the close oversight of the top of the organisation, it is easy to forget that crucial issues of data confidentiality are at stake. That is why it is important that disclosure of personal information never becomes routine.
I hope that the Minister will explain what controls the Government would expect the board to exercise over disclosure. Given that the Government are not supposed to interfere with the board, how will they be sure about what actually happens, if it is not laid down in statute? I beg to move.
The Earl of Northesk: It may be convenient to the Committee if I speak to my clause-stand-part Question at this time. In common with Clause 24, the scope of the clause, in so far as it is not confined to the statistical functions of the board, is extremely wide. The board would be empowered to,
that is to say, to include any and all administrative data within its purviewto,
Accordingly, as I understand the drafting, any public authority, in so far as it provides the service of disseminating raw data to the board, could qualify under the terms of the clause and have disclosed to it information held by the board. To that extent, my impression is that the clause could facilitate a revolving door policy in respect of data-sharing; that is to say, notwithstanding earlier comments from the Minister, data could be disseminated to the board by one authority effectively for onward transmission to any other.
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