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All in all, I very much hope that the Government will accept the amendment. I beg to move
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The Earl of Erroll: My Lords, I put my name to the amendment, because there is an important point of principle behind it. I thank the Minister for his words at the previous stage of the Bill and I fully accept his good intentions. The real challenge, about which I entirely agree with the noble Earl, Lord Northesk, is that a matter has to be brought to the attention of the Information Commissioner before he can act on it. He cannot act proactively under his current powers. There must be a complaint—it does not have to be much of one. One of the protections is, of course, that the data controller can ask him about some laxity, but how likely is the person in charge to make such a request of someone who might point fingers at him? One would hope that that would happen, if only to get good advice and to obtain verification from a third party that best practice was being carried out, but it tends not to happen, particularly when there are budget cuts.
The problem on the other side is that you do not know what you do not know. You would not know that there had been a breach or whatever until after it had happened. You would not realise that wrong procedures were in place because no one would previously have known that, unless someone had general oversight. The data controller, or whoever was in charge at the agency, might be very good at their job, but keeping up with information security is a full-time job these days and is very time consuming. The situation is moving all the time. Only a couple of years ago, everyone thought that firewalls were brilliant and that you could create a fortress around an organisation. We now know that you cannot. Considering how things are moving, data leak out very quickly despite any fortress. Data sharing means that such information will move across such firewalls.
The trouble is that things can appear to be anonymous—they can be pseudo-anonymised, or whatever—but the way that we are now breaking down demographics to get better statistical information from which government can make properly informed decisions means that if I carry out cross-matching between people, profile and post code, I can end up with a good idea of who is who and what they are doing. If you are the only person with an income above a certain level or who satisfies certain criteria within a post-code block of, say, five, 20 or 30 houses, I can probably identify you from the statistics provided by the statistics service. We probably need to look at this issue from time to time, and the problem is that the Office for National Statistics will be under pressure to produce results—but at the end of the day they may not be in the best interests of the citizen.
We should give the Information Commissioner a little bit more power to keep an eye on this issue. After all, we have surveillance commissioners and people who look after all the other things that intrude into our lives when government bodies have similar powers. It would be a good idea to reinforce that a little more in this matter by giving the Information Commissioner more proactive power.
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Baroness Noakes: My Lords, I am mightily relieved that my noble friend Lord Northesk has returned to assist at Third Reading. I moved a similar amendment on Report, but withdrew it, because my understanding and the Minister’s understanding of the powers of the Information Commissioner under the Data Protection Act 1998 were at odds. On 18 June, the Minister said that,
- “the Information Commissioner already has statutory powers to undertake the activities set out in this amendment”.—[Official Report, 18/6/07; col. 64.]
I believed that that was not the case and, clearly, that was important. I therefore withdrew the amendment in order that we could clarify the position. The Minister wrote to me quickly after the Report stage and I am grateful to him for the letter and for the speed of the reply. However, his letter has reinforced my view that the amendment remains necessary.
The Minister’s letter rested on the provisions relating to the serving of information notices in Section 43. As my noble friend Lord Northesk has pointed out, we do not get to the provisions of Section 43 unless there is a request under Section 42. It is not always the case that a person will be aware that his or her data have been incorrectly processed and hence will not be in a position to make a request, let alone to establish a substantive request. We therefore have to come back to the Information Commissioner’s powers contained in Section 51(7) of the 1998 Act—not Section 57 as I incorrectly informed the House on Report—which allow the commissioner to carry out an assessment only if the data controller consents. Obviously, in most cases consent will be given, but we cannot always assume it because we have seen that government departments disagree with the Information Commissioner in a number of areas and there is no reason to assume that the data controller of the Statistics Board would always agree with the Information Commissioner. The noble Earl, Lord Erroll, has pointed out that it sometimes works against the interests of the person whose data are going to be inspected to agree to that.
I hope the Government will agree to this relatively small additional power for the Information Commissioner.
Lord Newby: My Lords, this is a straightforward, clear amendment. It deals with the issue with which we have grappled all the way through the Bill: how we can ensure that the Bill, to the maximum possible extent, enhances trust in official statistics. Giving the Information Commissioner the powers set out in subsection (1) of the amendment provides another piece of the framework in which individuals can have trust not only that the system is robust but that if there is a problem it can be dealt with. As previous speakers have said, in this area many people will be unaware that information about them is being misused. To give the commissioner the chance to go in on his own initiative makes a great deal of sense.
I, too, am grateful for the letter which the Minister circulated on 20 June. He said in the House that the Information Commissioner had been very positive about the Statistics and Registration Service Bill. However, there is a wonderful weasel word in the letter, which states:
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If “overall” is very positive, there must be some matters on which he has been negative and that has made me slightly suspicious. I am sure that is being unfair to the Minister but perhaps he can explain why it was an “on balance” enthusiasm by the Information Commissioner rather than the unalloyed joy that the Minister suggested he felt.
Lord Davies of Oldham: My Lords, it is rare for a Minister to feel that all the problems at Third Reading are a consequence of what he said on Report, but I am beginning to get that feeling today, certainly as far as the noble Lord, Lord Newby, is concerned. He is wrong when he says that on Report I referred to the Information Commissioner’s satisfaction with the Bill. It was not only at the Report stage: in Committee, on Second Reading and all the way through I have maintained, with confidence and without contradiction, that the Information Commissioner is broadly satisfied with the Bill.
How can I be specific and say that every single line and phrase in the Bill is endorsed by the Information Commissioner? Of course I cannot say that. But what I am indicating—and did so on those three separate occasions and I will do so again today—is that the Information Commissioner did not identify any part of the Bill with which he was dissatisfied or of which he was critical, otherwise we would not have prayed his name in support of the Bill. For obvious reasons, we were all too well aware that we could have been challenged at any stage where we took his name in vain. I reiterate, for the fourth time, the salient fact that the Information Commissioner is broadly satisfied with the Bill and is positive about it. He has welcomed the fact that it recognises the importance of ensuring personal information is used only where necessary and that confidentiality is respected.
It will be recognised in the House, particularly with the high levels of expertise we have here about the operation of statistics in this county, that the Office for National Statistics already has a good working relationship with the Information Commissioner, and it is in the interests of the board, when it is established, to continue that good relationship to help ensure that people trust the board to hold its information securely. Noble Lords will recognise that that is a cardinal obligation upon the board, as it has been upon the ONS up to now.
As I noted on Report and, as the noble Baroness indicated, spelt out in rather more detail in the letter I sent to noble Lords who participated in last week’s debate, the Government believe that the Information Commissioner already has similar powers in the Data Protection Act to carry out the activities set out in the amendment. In our debate on Report, there seemed to be some misunderstanding over the powers the commissioner already has. The noble Baroness, Lady Noakes, and the noble Earl, Lord Erroll, seemed to be under the impression that the commissioner required the consent of the board to assess the processing of personal data. The noble Baroness said that the commissioner,
- “can assess the processing of personal data if, and only if, the data controller consents to the assessment, otherwise his powers
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That is not so. Under the Data Protection Act, the Information Commissioner already has the power to request information from the board by issuing an information notice, if, as Section 43 of the Act says, he,
- “reasonably requires any information for the purpose of determining whether the data controller has complied or is complying with the data protection principles”.
The noble Earl, Lord Northesk, took the argument one stage further. He said, “Ah, but Section 43 only comes into play if in fact there is a request for assessment made by someone under Section 42”. The commissioner can issue an information notice where he reasonably requires any information for the purposes of determining whether the data controller has complied. That is his right.
It should be recognised that when we stated that the Information Commissioner is broadly satisfied with the Bill and that sufficient powers exist for examination with regard to the board, what I attested to last week also obtains this week and renders the amendment unnecessary. The commissioner does not need the consent of the board to issue such an information notice. His powers to issue a notice are backed up by sanction, in that a person who fails to comply with an information notice or provides false information in response to one is guilty of an offence. Moreover, if, on the basis of the response to an information notice or for another reason, the Information Commissioner believes that the board has contravened any of the data protection principles, the commissioner may serve on the board an enforcement notice requiring it to take specified steps to comply with the principles or to stop processing personal data. Not to comply with the Information Commissioner’s notice is an offence.
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I have already indicated that there is a very strong incentive for the board, when it is established, to co-operate with the Information Commissioner. I recognise that the motives behind the tabling of the amendment, which would deal with the most extreme circumstances, are entirely worthy. If, in the extreme circumstances, the board continued to refuse to co-operate with him, the Information Commissioner could ultimately get a court warrant to operate and test equipment used by the board for data processing or seize any documents or other relevant material. These powers are not to be dismissed lightly. The Information Commissioner has them with respect to compliance with the eight data protection principles, a set of fundamental principles designed to ensure the proper processing of personal data. The Office for National Statistics and the board will be in possession of very important personal data.
In brief, the data protection principles make sure that personal information is fairly and lawfully processed; that it is processed for limited purposes; that it is adequate, relevant and not excessive in relation to the purpose for which it is processed; that it is accurate and up to date; that it is not kept for any longer than is necessary; that it is processed in line with individuals’
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In conclusion, it is hard to understand what powers the amendment would give the Information Commissioner that he does not already have or need with respect to the board. He can require from the board any information required for determining compliance with the data protection principles. The board must comply, otherwise the Information Commissioner can take steps to enforce compliance. The data protection principles provide an overarching framework which covers many aspects of data processing. The Information Commissioner’s power is not only with regard to specific cases where complaints have been made—a very important point. The Information Commissioner does not require the board’s consent to exercise these powers.
The noble Earl, Lord Northesk, played a full part in the significant discussion in the proceedings of the Serious Crime Bill about the power of the Information Commissioner to assess data processing. That Bill was very different from this one. Even the noble Baroness, Lady Noakes, suggested that this Bill was a teddy bears’ picnic compared with the Serious Crime Bill. The data-sharing aspects of the Serious Crime Act have very different purposes to those in this Bill.
The amendment in this form was not appropriate in the Serious Crime Bill, and it certainly is not appropriate here. I hope that the noble Earl will feel that he can safely withdraw the amendment on the clear assurance that we have thought through the very important aspect of the role of Information Commissioner with regard to the large amount of personal data that the board will inevitably control and that the House can be satisfied that the Bill adequately provides the necessary powers for the Information Commissioner to safeguard citizens’ rights.
The Earl of Northesk: My Lords, I thank the Minister for that reply. I am grateful for the support of my noble friend Lady Noakes, the noble Lord, Lord Newby, and the noble Earl, Lord Erroll. Indeed, as the noble Earl said, an important point of principle is at work here. I agree.
I remain deeply dissatisfied with the Minister's response in respect of the powers of the Information Commissioner. In a way, the Minister is on something of a roll because, in terms, he proved my point for me. He indicated that the Information Commissioner has more than adequate powers to deal with breaches of the data protection principles. I have no dispute about that. However, I seriously dispute that the Information Commissioner is empowered on his own initiative to view the operation of the data-sharing regime at the Statistics Board in the round—not in respect of breaches but in the round. As far as I read the Data Protection Act 1998, the Information Commissioner simply does not have that power.
Viewed more widely, it is interesting to note that this Bill is, of necessity, a product of the Treasury. To a greater or lesser extent, it flows from the thinking of the Chancellor of the Exchequer. In turn, the amendment
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On Question, Whether the said amendment (No. 8) shall be agreed to?
Their Lordships divided: Contents, 136; Not-Contents, 147.
Addington, L.
Allenby of Megiddo, V.
Anelay of St Johns, B.
Astor of Hever, L.
Avebury, L.
Blaker, L.
Bowness, L.
Bradshaw, L.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Byford, B.
Caithness, E.
Carlile of Berriew, L.
Carnegy of Lour, B.
Cathcart, E.
Chalker of Wallasey, B.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Courtown, E.
Craigavon, V.
Crickhowell, L.
Cumberlege, B.
De Mauley, L. [Teller]
Dearing, L.
Deech, B.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dykes, L.
Eden of Winton, L.
Elton, L.
Erroll, E.
Fearn, L.
Fookes, B.
Freeman, L.
Gardner of Parkes, B.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Goodlad, L.
Hamilton of Epsom, L.
Hamwee, B.
Harris of Richmond, B.
Hayhoe, L.
Higgins, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
James of Blackheath, L.
Jenkin of Roding, L.
Jopling, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Laing of Dunphail, L.
Laird, L.
Lamont of Lerwick, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Livsey of Talgarth, L.
Luke, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Marland, L.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Molyneaux of Killead, L.
Montrose, D.
Morris of Bolton, B.
Neuberger, B.
Newby, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Onslow, E.
Oppenheim-Barnes, B.
Palmer, L.
Park of Monmouth, B.
Pearson of Rannoch, L.
Pilkington of Oxenford, L.
Quinton, L.
Redesdale, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
Saltoun of Abernethy, Ly.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Sharman, L.
Sharples, B.
Shephard of Northwold, B.
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Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Swinfen, L.
Taverne, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thomson of Monifieth, L.
Tonge, B.
Tordoff, L.
Trimble, L.
Trumpington, B.
Tyler, L.
Verma, B.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Williams of Crosby, B.
Windlesham, L.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bledisloe, V.
Blood, B.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brett, L.
Bridges, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Campbell-Savours, L.
Carter of Coles, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Corston, B.
Craig of Radley, L.
Crawley, B.
David, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L.
Desai, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L. [Teller]
Falconer of Thoroton, L. [Lord Chancellor.]
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kilclooney, L.
King of West Bromwich, L.
Kingsmill, B.
Lea of Crondall, L.
Lipsey, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mallalieu, B.
Mason of Barnsley, L.
Massey of Darwen, B.
Mitchell, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Moser, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Prosser, B.
Quin, B.
Radice, L.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Rosser, L.
Rowlands, L.
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St. John of Bletso, L.
Sawyer, L.
Sewel, L.
Sheldon, L.
Simon, V.
Smith of Leigh, L.
Soley, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Tenby, V.
Thomas of Macclesfield, L.
Thornton, B.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Resolved in the negative, and amendment disagreed to accordingly.
Lord Davies of Oldham: My Lords, I beg to move that this Bill do now pass.
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