Clause 80 ordered to stand part of the Bill. - Clause 81 - Inspection of overseas information systems
Crime (International Co-operation) Bill [Lords]
9:10 am
Mr James Paice (South East Cambridgeshire, Conservative)
I beg to move amendment No. 154, in
clause 81, page 54, line 23, after 'inspect', insert '(but only in person)'.
I welcome your return to the Chair, Mr. Benton. This is a probing amendment. The clause states that ''The Commissioner may inspect'', but the commissioner is expected to inspect data not only in the United Kingdom but abroad. For instance, he will be inspecting the Schengen and Europol information systems; and the clause also refers to a power to
''inspect, operate and test equipment which is used for the processing of personal data.''
That implies that the commissioner will be able to go anywhere to check the systems. It is self-evidently improbable that the commissioner himself will do all that. The purpose of moving an amendment that stipulates that it should be only the commissioner is to discover who will do the work.
I recognise the validity of the case for inspection. I appreciate that the system should be capable of being inspected, because of the possibility of British citizens being subject to judicial process. It is therefore sensible that the system should be inspected. I have no problem with that. However, the inspection system should not be open to abuse. One assumes that the Minister will say that it will not be the commissioner himself but those whom he permits—I shall be interested to hear her phraseology. However, I am concerned about the security of that information, which will be significant.
Not only does the clause state that the commissioner may ''inspect, operate and test'' equipment to be used for the processing of personal data; it also states:
''The Commissioner may inspect any personal data''.
The people doing the work will therefore have access to personal data.
The purpose of the Data Protection Act 1998 is to protect personal data. If we allow people to inspect personal data, there will be a security risk. It is therefore important that the information is protected as much as possible, commensurate with the need to ensure that the systems are working. It is a question of finding the right balance. Most important, we do not want information falling into the wrong hands—which the Act is meant to prevent.
It is a straightforward probing amendment. I do not suggest that the commissioner should roar round the world inspecting systems—I hope that the Minister accepts that—but it provides the Committee with the opportunity to probe the Government on precisely who they mean by the commissioner, how the inspection will take place and how the anticipated security will be maintained commensurate with the inspection of data under subsection (3).
Mr David Heath (Somerton and Frome, Liberal Democrat)
I welcome you to the Chair, Mr. Benton.
The hon. Gentleman has made a valid point, but it is a forlorn hope that anyone could keep track of the information system. That is not to argue against Britain entering the Schengen information system, but simply to recognise the beast that it has become. As we discussed on Second Reading, 49,000 terminals were attached two years ago—goodness knows how many there are now—with tens of thousands of people accessing the system throughout Europe and thousands inputting information. The difficulty is that with so many people inputting information into a common system, it is inevitable that mistakes will be made. We know from our own domestic experience that the police crime computer is capable of holding incorrect information on people for a long time without anyone noticing, and the police sometimes act incorrectly on the basis of that incorrect information.
We should express our concern, but I can see the advantages of being within such an information system. I do not know what the remedy is other than to recognise that it is a very large database and capable of causing error in a big way. The commissioner will have a very big job.
Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)
Good morning, Mr. Benton. I am looking forward to our proceedings today.
The hon. Member for South-East Cambridgeshire (Mr. Paice) gave a helpful introduction. To make the matter clear from the outset, the commissioner referred to is the Information Commissioner. The Freedom of Information Act 2000 gave the existing role of Data Commissioner new powers and changed the name to Information Commissioner. Under the Data Protection Act 1998, any function of the Information Commissioner may, to the extent authorised by him, be performed by any of his officers or staff. That principle will apply to the new powers of the commissioner under clause 81.
The powers under clause 81 are similar to those granted to the Information Commissioner under schedule 9 of the 1998 Act, and that schedule provides for a warrant to be issued to the commissioner in respect of premises and materials when an offence under the Act is suspected. In that case, a warrant would provide authorisation to
''the Commissioner or any of the Commissioner's officers or staff''.
That makes it clear that the commissioner is not expected to carry out all inspection duties in person,
which, as the hon. Gentleman rightly said, would be impossible. I hope that that clarifies the situation.
The hon. Member for Somerton and Frome (Mr. Heath) questioned the quality of data on the Schengen information system. There have been concerns in the past about the quality of that data, and the United Kingdom is taking steps to try to ensure that UK entries are accurate. There are three levels at which the accuracy of data will be assured. Primary responsibility for accuracy will rest with the police force that makes the entry. The training given to the police in relation to the Schengen information system will stress the importance of accurate and complete records. Technical checks will be made by the national SIS before data are passed to the central SIS to establish, for example, that all mandatory fields are complete. The European SIS siren working group has also taken steps to improve the quality of the SIS data and a programme of action was initiated in April last year. Monthly checks are made at the central SIS to highlight individual records when fields have not been properly completed. Obviously, it is important to keep a close eye on the matter to ensure that information is as accurate as possible.
Mr David Heath (Somerton and Frome, Liberal Democrat)
What the Minister is saying is reassuring up to a point. The system can deal with omissions, but it cannot deal with incorrect information that has been entered into correct fields. Is there a regular audit of information held on the system?
Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)
Perhaps I could get back to the hon. Gentleman on that.
I hope that I have reassured colleagues that the system operates under existing legislation and that the commissioner and the process by which anyone else might take action is clear.
Mr Nick Hawkins (Surrey Heath, Conservative)
Good morning, Mr. Benton.
I did not intend to intervene in this debate, but given that the Minister is making such a point of whom the Information Commissioner is and that we are talking about information, I wanted to put on record that the commissioner can be helpful. I had a case in which the Information Commissioner website and staff were very helpful to some of my constituents only two days ago.
I have known the present commissioner, Richard Thomas, as a professional colleague and friend for many years, and I concur that it should become increasingly apparent who he is and that much of the work that he and his staff are doing is valuable, particularly in stopping fraud. There was a danger that some of my constituents might have been caught by fraud, and that was stopped by the commissioner.
Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)
I thank the hon. Gentleman for that intervention. I know that he is always keen to ensure that constituency issues are brought into discussions of national legislation, which is important. If we what we do here does not affect people's lives, it is meaningless, so I am pleased that he has put on record the good
work of the Information Commissioner and the sound way in which he and his staff carry out their duties.
Mr James Paice (South East Cambridgeshire, Conservative)
I appreciate the Minister's explanation of who the commissioner is—she rightly reminded me of the change in title, although my mistake was a slip of the tongue—and her confirmation that, as I suggested, he would not do all the work himself. She explained the system well.
I omitted to say that I share the concern of the hon. Member for Somerton and Frome about the proliferation of the information, its accuracy and its ready availability given the number of countries that are now signed up to Schengen. That also raises the spectre of what happens if article 4 of the convention is ratified, as it will open it up even further. However, I am grateful to the Minister for her explanation, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr James Paice (South East Cambridgeshire, Conservative)
I beg to move amendment No. 155, in
clause 81, page 54, line 41, at end insert
'and is liable on a summary conviction to a fine not exceeding level 3 on the standard scale'.
Again, this is a probing amendment. I am not necessarily committed to a fine that does not exceed level 3. However, the purpose of stipulating the penalty is to try to extract from the Minister, first, what the penalty for the offence would be and, secondly, who would be liable to that penalty. We are talking about overseas information systems—that is in the clause heading—and, under subsection (6), any person who
''intentionally obstructs a person exercising the power conferred by subsection (1)''.
Someone who is obstructing such a power will not necessarily be in Britain or a British citizen. It could well be someone who is in partial control of the Schengen or Europol information system and located in a different country. Who could commit the offence and therefore be subject to the penalty? I am not suggesting that we should treat lightly anyone in this country who commits an offence. However, it seems somewhat odd if, as I suspect, an offence is committed if the person is in Britain, but we have no influence when a foreign national in another country somehow obstructs our Information Commissioner in carrying out his duties.
If we are going to have an international system, the legislation should apply internationally across that system. I am interested to hear the Minister's response. I am not so much concerned about the issue of what the penalty would be—although I hope that the Minister will tell us that—but whether the Government really believe that the whole of subsection (6) is of any validity, given the vast range of people who have access to the system, and could intentionally obstruct the commissioner or his staff in the carrying out of their duties.
Mr Alistair Carmichael (Orkney and Shetland, Liberal Democrat)
I support the amendment. It is sensible that if there is an offence, it should carry a proper penalty. I have had a quick look at the remainder of the Bill, and I can see no other provision that would attach a penalty. The
penalty will be an exceptionally modest one, and the offence is to be tried only summarily, which suggests that it is perceived at being at the lower end of the scale. One can imagine circumstances in which such an offence could be serious. I commend the hon. Member for South-East Cambridgeshire for tabling the amendment. I also endorse his remarks on the establishment of jurisdiction in respect of any proceedings that would be brought under this provision.
I also wish to put on record that the terminology used in paragraph (b) is somewhat curious. There is an exceptionally fine distinction between someone who obstructs and someone who fails to give assistance that may be reasonably required. It is an unusual formulation of words, and I am interested to hear about the Government's thinking on that.
Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)
I shall deal first with the level of the fine. Amendment No. 155 would insert in the Bill the level of the fine that would be incurred by anyone who intentionally obstructed a person carrying out an inspection or who failed to provide that person with proper assistance. We do not believe that it is necessary to put the level of the fine in the Bill, as the clause forms an amendment to the Data Protection Act 1998, and the fine will therefore be set by reference to existing provisions in that Act. In particular, section 60 of the Act will apply to an offence under clause 81. That section provides that a person guilty of an offence relating to the powers of the Information Commissioner is liable to a fine not exceeding level 5 of the standard scale, which is currently £5,000.
The level of fine proposed by the amendment is inappropriate. Having a different level of fine for an offence arising from new powers being given to the Information Commissioner would suggest that they are less important than the commissioner's existing functions, and would create needless confusion. We take the new role for the—ensuring that the EU systems are properly monitored—extremely seriously.
As for obstruction, I clarify that the powers of inspection relate to the UK national section of the systems. We cannot give powers of inspection that would apply overseas. The person who is obstructing, under the clause will be in the UK. We have no power to commit the Information Commissioner to exercise powers in another jurisdiction. That is why, for example, we have not included any power to access the Europol index system, which can be accessed only in The Hague. We understand that, in the past, the lack of legal powers has not been a problem, and that the UK unit in Europol has readily assisted the commissioner in his work.
Mr James Paice (South East Cambridgeshire, Conservative)
The hon. Lady has shed a substantial ray of light on clause 81 because she has told us that it applies only to UK information systems. Neither the Minister nor I are lawyers. I would not pretend to understand every piece of legal jargon, but as I read it, nothing in clause 81 implies that it applies only to UK systems. Subsection (1) refers to two international systems. It also refers to the operation and testing of equipment, but it does not specify that that applies only to the UK. The hon. Lady has answered my point about obstruction, but only if it is clear that inspection
can take place only in the UK. My point, however, is that nothing in the clause says that.
Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)
According to my information, that is the case, but I hope that some more information to help with that will come from my left very shortly.
The scope of power of the Information Commission under data protection provisions may relate only to data where the data control is established in the UK. All legislation passed in the UK refers to powers within our jurisdiction. We cannot legislate in other jurisdictions.
Mr James Paice (South East Cambridgeshire, Conservative)
I am afraid that the Minister has been let down in that last statement.
Mr James Paice (South East Cambridgeshire, Conservative)
I was going to make a comment on the absence of the hon. Member for Liverpool, Walton (Mr. Kilfoyle), who is usually full of advice from the left for the Government. However, the whole Bill is about international legislation. I am sorry to say it, but the Minister cannot get away with suggesting that we can only legislate for within the UK, otherwise we would not be in this Committee discussing this Bill. Obviously, I take at face value what she said, but it is surprising that the fact that the clause applies only to the UK is not clearly stipulated.
Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)
This is a matter that needs to be clarified, so I shall make sure that we get something to the hon. Gentleman to explain.
Mr James Paice (South East Cambridgeshire, Conservative)
I am extremely grateful to the Minister for that offer, which of course I accept. In the light of that, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 81 ordered to stand part of the Bill.