My Lords, I beg to move that the Bill be now further considered on Report.
My Lords, I shall speak also to Amendment No. 95. I have tabled these amendments to ask for further clarification from the Government about the process by which anti-fraud organisations will be specified under the provisions of this part of the Bill.
Clause 61(1) confers powers on a public authority to disclose information as a member of a specified anti-fraud organisation or otherwise in accordance with arrangements made by such an organisation for the purposes of preventing fraud. That is a complicated way of indicating that information is to be shared more widely, but among organisations that must meet specific standards if they are to take part in that exchange.
Between Committee and Report, I met representatives of both Experian and CIFAS. Noble Lords will recall that Experian is a leading UK credit reference agency. CIFAS is a fraud prevention service covering the United Kingdom. It was created in 1988 by a group of retail credit companies and now encompasses many types of financial service organisations including banks, building societies, insurance companies, credit card companies, share dealers and finance houses. The Minister referred to CIFAS in Committee.
I am grateful to both organisations for their helpful briefings. It was as a direct consequence of discussions with them that I felt that it was right to ask the Minister to set out more clearly today the process of designation that the Government expect to implement as a result of the Bill. The Minister gave us some assistance on these matters
It will be vital that the system of designating bodies is secure, effective and capable of withstanding attacks by criminals who would wish to gain access to or corrupt the information that they hold. The system of designating them must be right and those bodies that we designate must properly be able to deal with the information to which they will have access and hold.
What will be the criteria for the designation of anti-fraud organisation that will be specified under the provisions of the Bill? Who will make the decision about which organisations shall be so specified? At the outset, is it the Government's intention that at least two anti-fraud organisations will be designated, perhaps to include CIFAS, in order to avoid creating a monopoly position? Does the Minister agree with the view of the British Bankers' Association, circulated to noble Lords, that the,
"likely outcome should involve more than one organisation ... and that if a single organisation only were to be chosen, then that could be open to monopolies' challenge"?
I beg to move.
My Lords, I thank the noble Baroness for the way in which she has moved her amendment. She has clarified that, in part, the amendment is intended to make clear that the provision applies to any anti-fraud organisation which may be specified under Clause 61 and that there is a prospect that more than one organisation may be specified. I am happy to affirm her assertion in that regard. I am glad to be able to confirm that because it has always been the Government's intention that no organisation should have a monopoly on being specified for the purposes of Clause 61.
As the noble Baroness indicated, I have already mentioned that CIFAS, the UK's fraud prevention service, is the type of organisation we have in mind. I can give the House reassurance, if reassurance is needed, that we would not intend that CIFAS, if it is specified, or any other one organisation should alone be able to benefit from the provisions of Clause 61. The Bill achieves that effect. Clause 61(1) refers to being,
"a member of a specified anti-fraud organisation".
I can assure your Lordships that this wording ensures that the number of organisations that can be specified is not limited to one. It follows that the additional words which the noble Baroness and the noble Lord, Lord Henley, seek to include in Clause 61(8) are unnecessary. I am happy to reassure the noble Baroness in that regard.
Amendment No. 95 changes the definition of "specified anti-fraud organisation" in Clause 62 by adding "body corporate or not-for-profit organisation" to the list of those who might qualify as the "specified anti-fraud organisation". My understanding is that the definition of "person" already accounts for bodies corporate by virtue of the definition of a person in the Interpretation Act 1978. As a result, the amendment would not add substantively to the definitions in the Bill.
There is, of course, interest both within the House and outside about the process of designation of the specified anti-fraud organisation under Clause 61. I know that various bodies and agencies have raised that, as the noble Baroness has indicated they raised it with her. The Bill deliberately leaves the question open. Subsection (8) simply says that,
"'an anti-fraud organisation' means any unincorporated association, body corporate or other person which enables or facilitates any sharing of information to prevent fraud or a particular kind of fraud or which has any of these functions as its purpose or one of its purposes".
That is, I suggest, a very straightforward and open requirement. "Specified" means specified by an order made by the Secretary of State under the negative resolution procedure under Clause 76(6).
The detail of how the Government will consider which organisations to specify has still to be worked through. However, we envisage that the data-sharing by public authorities, which is enabled by Clause 61, will be made subject to some sort of code of practice—a matter to which I intend to refer when we discuss Amendments Nos. 96, 97 and 98. The terms of that code would obviously need to be subject to prior consultation. An important test for any prospective specified anti-fraud organisation—or organisations; there could be a number—would be a willingness and ability to comply with the requirements of any code if public authorities were to disclose information to it for the purposes of preventing fraud. That could be a central test.
However, we would not want to go so far as to suggest how any specified anti-fraud organisation should go about its business. We would see that as a matter for the organisation and would not wish to impose any pre-set mechanism. I hope that that brief explanation helps to give the House some idea of how the Government envisage anti-fraud organisations being specified.
The noble Baroness asked about the Delegated Powers and Regulatory Reform Committee report and the affirmative resolution procedure. She will know that the DPRRC said that the negative resolution procedure was an appropriate method of designating a body, and we accepted that assertion. The affirmative resolution procedure is appropriate for orders under Clause 62 but not under Clause 61. I hope that the noble Baroness will be content with that, and I am happy to have been able to put that explanation on the record for the purpose of clarity.
My Lords, before the noble Baroness sits down and with the leave of the House, did I understand that the Government expect three or more anti-fraud organisations to be designated?
My Lords, we have not specified the number; we have simply said that there will be more than one. Potentially, a number of organisations will put themselves forward for consideration. We agree with the noble Baroness, Lady Anelay, that it would not be right to have a monopoly of just one. Therefore, we will set a code or benchmark to govern the way in which these organisations operate, but it would be improper and wrong for me to suggest that there would be two, three or more. The most important thing is to make a judgment about which organisation or organisations may be fit for this purpose. However, as the noble Baroness has indicated and as others have also said, it is clear that it would be wrong to have only one, because that would create a monopoly and we do not think that that would be right.
My Lords, I am grateful to the Minister. Her elucidation has taken us further than we managed to get in Committee. In particular, she affirmed clearly that there would be more than one organisation. I am grateful to my noble friend Lady Carnegy for trying to tease that out a little further. We shall have to come back to this matter when the negative instrument is put before the House, but it is important that there is not a monopoly. I am grateful to the Government for putting that clearly on the record.
I understand that the Bill leaves the matter of the process open and I understand why the Minister argues that it should be left open, subject to the code of practice issues to which we will turn our debate shortly.
Before Third Reading, I will go back to those who briefed noble Lords in order to check that no further clarification needs to be achieved. If further clarification is needed, it may well be better achieved outside the House and not at Third Reading, where our rules are much more tightly drawn concerning which amendments are allowed. I beg leave to withdraw the amendment.
moved Amendment No. 96:
After Clause 63, insert the following new Clause—
"Role of Information Commissioner
(1) Section 51 of the Data Protection Act 1998 (c. 29) (general duties of the Commissioner) is amended as follows.
(2) In subsection (7), at the beginning insert "Subject to subsection (7A),".
(3) After subsection (7), insert—
"(7A) The Information Commissioner may, on his own initiative, assess any data processing conducted under sections 61 to 65 of the Serious Crime Act 2007.""
My Lords, the purpose of the amendment is to ensure that the information commissioner has the right to carry out assessments of data processing under Clauses 61 to 65 of his own volition. He would not have to wait for an invitation to do so. In Committee we debated at some length the importance of the oversight that should be carried out by the information commissioner.
I am grateful to Mr Vernon Coaker, the Home Office Minister, for arranging between the Committee and Report stages a meeting with the Information Commissioner, Mr Richard Thomas. The meeting was attended by my noble friend Lord Lucas and myself, and we both found it most constructive. I want to put on record that I found it invaluable to hear from the IC himself an overview of his position regarding the provisions of the Bill and his recommendations for improvement. His opinion has determined my approach to amendments at Report throughout the whole of Part 3.
The discussions helped me to crystallise in my mind the core amendments that should be made to the Bill to make it work more effectively and fairly. The Government have already tabled some such amendments, which we shall reach later in the group beginning Amendment No. 105. Of course I shall not pre-empt that discussion, but there remains one issue that has not yet been resolved. It is covered by my Amendment No. 96. I believe that it is important for public confidence in the new proposals for data matching and data mining that the Information Commissioner should have the authority to initiate assessments. The Home Office Minister, Mr Coaker, made it clear at our meeting that he was prepared to take up this proposal from the Information Commissioner by way of an amendment. Will the Minister tell the House what progress the Government have made with their own amendment on this matter? Are they still committed to ensuring that it is inserted in the Bill, and do they believe that that will be achieved before the Bill leaves this House? I beg to move.
My Lords, it may be convenient if I take this opportunity to make a few comments about my Amendment No. 97 in this group. Unfortunately I was unable to attend the meeting arranged so helpfully by Vernon Coaker, and referred to by my noble friend Lady Anelay. Manifestly it was an extremely useful and constructive occasion for all those in attendance, not least because, as my noble friend said, it has inspired the Government's later amendments, which effectively make unnecessary the new clause proposed in my amendment.
We shall come to those in due course. For the moment, and I hope as some measure of comfort to the Minister, I merely note that in these circumstances I see no need to pursue my amendment. Be that as it may, I hope that your Lordships will permit me to make just a few comments. I am both relieved and encouraged that in this instance the Government have recognised that the Data Protection Act does not necessarily offer adequate safeguards. It seems to me that across the piece, Ministers are too often tempted to suppose—perhaps somewhat glibly—that its mere existence is a panacea, and they therefore parrot the mantra that reliance on that Act provides sufficient comfort. However, as I sought to tease out in Committee, the technological landscape has changed dramatically since the legislation was enacted some 10 years or so ago and, in consequence, it is a moot point as to the extent to which it retains effectiveness and robustness. Quite apart from that, as the Minister freely acknowledged in Committee, the Bill limits its safeguards. She said that,
"Clause 64 amends the Data Protection Act to allow for sensitive personal data to be processed for the purpose of the prevention and detection of fraud".—[Hansard, 26/3/07; col. 1512.]
That point was confirmed at paragraph 1.39 of the report on the Bill by the Joint Committee on Human Rights. Moreover, having revisited our debates on the DPA, it is my impression that its drafting was left deliberately "loose"—if I may put it that way—in a number of areas in order to satisfy the expedients of future-proofing. In other words, it was recognised that special and/or exceptional circumstances would require specific legislative provision over and above and beyond the text of the Act itself. Dare I say it: the data-matching and information-sharing provisions of this Bill seem to be just such an occasion. Regardless, it is much to the credit of both the Government and the noble Baroness that the amendments have been brought forward.
Indeed, while I am not holding my breath, I can hope that her welcome enlightenment on this issue may spread to other departments. That said, there is a tangential issue about which I hope the Minister might be able to offer me some information, if not comfort. The volume and spread of the Information Commissioner's responsibilities are extensive and growing. Consequentially, I am always slightly concerned as to whether his office is adequately funded and resourced. More specifically, having arrived at a set of circumstances where we are satisfied that appropriate checks and balances are pretty much in place, it would be regrettable if they could not be acted upon due to inadequate funding. I hope that the Minister can reassure me on that point.
My Lords, I would also like to thank the Minister for arranging the meeting with the Information Commissioner. It was immensely helpful and clarified a lot of worries. However, it focuses me on my noble friend's amendment. We need the Information Commissioner to be proactive in order that the provisions in the Data Protection Act have effect, to ensure that proper records will be kept and that what is going on is entirely proper. I echo the last point made by my noble friend Lord Northesk. At that meeting, I discovered that my appeal, in my private capacity to the Information Commissioner, is the record outstanding Freedom of Information Act appeal, which has been running for over two years and is still unresolved. Therefore, more resources for such things in the future would be very welcome.
My Lords, I join with those who have thanked the Information Commissioner. We have found his advice very helpful and I am glad that noble Lords opposite have too.
I say to the noble Baroness, Lady Anelay, that my honourable friend Vernon Coaker said that he would take the issue away and look at it. The noble Baroness knows, as do I, that all Ministers are bound by others' decisions before making any final decision. I understand why the noble Baroness teased me by phrasing it in the way she did. However, for the record, this issue is being looked at. Whether it will be ready by the time the Bill leaves this House is another matter. I hope that I will be able to respond more fully to the noble Baroness's concerns and those of the noble Earl, Lord Northesk, who I thank for his helpful indication of how he intends to deal with his amendment. I also thank the noble Lord, Lord Lucas.
Amendment No. 96 inserts a new clause after Clause 63 which amends the Data Protection Act regarding the duties and powers of the Information Commissioner. It grants him the power, on his own initiative to assess any data processing conducted under Sections 61 to 65 of the Serious Crime Act 2007.
I would like to start by explaining the similar power already provided to the Information Commissioner in the Data Protection Act. The Information Commissioner can require the data controller of a body or organisation, through an information notice, to produce information for the purposes of determining whether the data controller has complied, or is complying, with the data protection principles.
Any body or organisation dealing with or processing personal information will be registered as a data controller with the Information Commissioner. This includes all bodies using the powers under Clauses 61 to 65. It is not in their interests to refuse access if they wish to satisfy him that their activities comply with the Act.
Failure to comply with an information notice is an offence under Section 47 of the Data Protection Act. In addition, the Information Commissioner has the power to issue enforcement notices to enable the commissioner to investigate and rectify instances of non-compliance with any of the data protection principles and any requirements of the relevant regulations.
We believe that adequate powers are already provided to the Information Commissioner in this regard, without further provision. I hope that the noble Baroness, Lady Anelay, and the noble Lord, Lord Henley, are willing to withdraw this amendment. I have already indicated how we are looking at this issue.
Amendment No. 97 creates a provision for the Secretary of State to produce and disseminate guidance to all those using the data-sharing powers under Clause 61. It would require that the guidance be disseminated to all those involved in the data sharing, that it covers the type of sharing of information that can take place between and among themselves and the circumstances in which that sharing can take place. The amendment also provides that the guidance should be maintained under review and that the Information Commissioner should be consulted on its content. I see the noble Baroness's hand in that, because it requires that the guidance should cover the procedure designed to ensure accuracy and security of information being shared under the powers, the procedures to ensure co-ordination, procedures to govern the circumstances in which information can be shared and so on. The final requirements of this section of the amendment cover the procedure guaranteeing the rights of the data subject and those governing the period of retention.
Amendment No. 98 of the noble Lord, Lord Crickhowell, adds to Amendment No. 97 with a further requirement on the Secretary of State regarding the destruction of data used in data processing. In Committee, I explained why I thought such a prescriptive and detailed requirement on the Secretary of State to provide information was unnecessary and unworkable. That is still the case. However, the Government understand what lies behind the amendment: providing some form of framework for the data sharing enabled by Clause 61.
As the noble Baroness indicated, my honourable friend the Parliamentary Under-Secretary of State at the Home Office, Vernon Coaker, hosted an informative and productive meeting with the Information Commissioner on
We hope to return to the House with a more definite indication of our plans, if not their implementation, by Third Reading. In the circumstances, given the Government's further consideration of these matters, which can be further pursued in another place if necessary, I hope their Lordships and the noble Baroness will be willing to withdraw their amendments. I have found it helpful that we have been able to have these discussions and progress the matter in a collaborative way. We have done a great deal of work to obviate the need for more when the matter goes to the other place. We would have preferred to tie up all the loose ends, but I am not confident that we will be able to dot every "i" and cross every "t". I suppose it will give the other place a little something to do.
My Lords, since it is our usual practice to find vast amounts to do when a Bill reaches this House from another place, it might be nice to leave them a little morsel when a Bill goes from here to there.
I am grateful to the noble Baroness for her response, and obviously to my noble friends Lord Northesk and Lord Lucas for their assistance, support and participation throughout. They are always proactive in looking at the detail of the application of data protection legislation. I make it a practice to go to them as my first port of call on any such matters coming before the House. My noble friend Lord Crickhowell asked me to give the noble Baroness his apologies. I am grateful that she addressed his amendment; he is unavoidably elsewhere at a memorial service which he cannot leave. He hopes to reach the House some time later to take part in today's debates.
The Minister referred to the code of practice, and the fact that the Government are now working through that. That is why she says she does not wish to go ahead with my noble friend's Amendment No. 97 and the system there. She says that she hopes to be in a position to give a better indication of the process by which a code of practice might be achieved and operate by Third Reading. That would be most helpful, but she also refers to the core issue, the substance of my Amendment No. 96: the position of the Information Commissioner. We agree with him that he ought to have a proactive role. The Minister is cautious in the language she uses; she said that the matter is being "looked at", but that whether it will be ready for Third Reading is another matter. I am sure she will not be surprised to hear me say that because I feel this is such a vital matter, if there is no puff of white smoke from the Government to indicate that an amendment will come from them, I may well table this amendment again to give the House an opportunity for further consideration of this matter. However, at this stage, I beg leave to withdraw the amendment.
My Lords, before I describe the effect of the amendments in this group, I ought to put on record that they replicate in Wales and Northern Ireland the data-matching provisions in Clause 65 and Schedule 6. This group includes government amendments in relation to England, to which my noble friend Lady Scotland will speak later. Our ambition is to create a system with safeguards that apply equally to all relevant audit bodies in different jurisdictions. The amendments will have the effect of amending not only the Audit Commission Act 1998 but also the relevant legislation in Wales and Northern Ireland; namely, the Public Audit (Wales) Act 2004 and the Audit and Accountability (Northern Ireland) Order 2003, as specified in Schedule 6, with respect to the insertion of new powers to undertake data-matching exercises. For that reason, Amendment No. 99 amends Clause 65 to reflect the fact that Schedule 6 to the Bill will make provision for data matching more generally, not just in respect of England under the Audit Commission Act.
Amendment No. 103 governs the disclosure of information in order to allow the Audit Commission to disclose the results of data matching to local government auditors in Northern Ireland. This is consistent with the overall purposes of new Clause 32D(2)(b) and new Clause 32D(3) as they currently stand, where we have recognised that benefits may arise from sharing the results of data matching on a cross-border basis with the relevant auditors in the devolved Administrations. The amendment recognises that in addition to being able to share data-matching results with the auditor general for Northern Ireland, the Audit Commission should be able to share results with local government auditors in Northern Ireland. This reflects the audit arrangements in place in Northern Ireland and is a natural consequence of the extension of data-matching powers to relevant audit bodies there.
Amendment No. 104 amends the provision governing the definition of "body" for the purposes of new Clause 32D so that it includes "office". This is in order to recognise that not all the bodies listed in new Clause 32D(3) are, strictly speaking, bodies but are office holders, such as the respective auditors general. The purpose of this amendment is to remove the potential for confusion.
Amendment No. 115 to Schedule 6 amends the Public Audit (Wales) Act 2004 to grant the Auditor General for Wales statutory powers under which to carry out data-matching exercises and provides safeguards for the appropriate conduct of such exercises. It will ensure that data matching in Wales is conducted on a similar basis to that in England. The amendment is necessary to ensure that the national fraud initiative and the benefits it provides may continue in Wales with the necessary safeguards. The amendment includes provisions for bodies other than Welsh local authorities and Welsh NHS bodies to provide data to the auditor general for matching. Such participation will be on the proviso that the auditor general thinks it appropriate. He will have to satisfy himself that it is appropriate to accept the data and that it would meet the purpose of the data-matching exercise.
It is envisaged that, in practice, the auditor general would co-operate closely with the Audit Commission, as he has done to date, to undertake the same national fraud initiative exercise in Wales that is undertaken in England. The most recent national fraud initiative cycle led Welsh public bodies to uncover fraudulent and erroneous payments totalling £2.6 million and, as in England, the auditor general used the results of the exercise to help public bodies in Wales make their systems more robust in the protection of public money.
The Welsh provisions will allow the sharing of data-matching information across the Welsh border. That is necessary to reflect the cross-border facility in the English provisions, and it is important as some fraud involves multiple claims of, for example, housing benefit from local authorities on both sides of the border.
The Welsh data-matching provisions provide the same safeguards as those in the English provisions, including those added by later government amendments. The auditor general's data-matching activity will, as ever, be subject to the processing requirements of the Data Protection Act 1998. An additional safeguard is that the activity may not be used to profile individuals on the basis of patterns that suggest potential to commit fraud. The auditor general will have to prepare a code of practice for data matching, consult the Information Commissioner on it and lay it before the National Assembly for Wales. The conduct of Welsh data-matching exercises will have to have regard to that code of practice. Anyone disclosing data-matching information outside the permitted purposes in Schedule 6 will face criminal sanctions. In short, the amendment replicates for Wales the Bill's data-matching provisions for England.
Amendment No. 116 extends the application of the powers we are creating for the Audit Commission in England to Northern Ireland and incorporates the same safeguards. It will mean that Northern Ireland's Comptroller and Auditor General will be able to use the powers to conduct data matching to assist public bodies to detect and prevent fraud in his jurisdiction. The proposals differ from the arrangements in England only to the extent that many of the functions provided by local government in England are provided by central government in Northern Ireland. That affects the range of bodies mandatorily required to provide data to the auditor general.
The amendment will also enable cross-jurisdictional data matching and sharing of information between the Audit Commission and audit authorities in Northern Ireland. It is important that that should be the case because, as I said, fraud does not respect national boundaries. The amendment will enable a more proactive approach to be taken to fraud prevention in Northern Ireland.
It is envisaged that the auditor general would co-operate closely with the Audit Commission to undertake similar national fraud initiatives in Northern Ireland to those in England, with the same potential to identify fraudulent payments and errors. The same restrictions and safeguards will apply to Northern Ireland audit bodies in applying these powers as apply in England, including compliance with the Data Protection Act. There will be criminal sanctions for disclosure of information outside permitted purposes, restrictions on the use of patient data and a code of practice governing the data matching on which the Information Commissioner will be consulted, which will be laid before the Northern Ireland Assembly.
Amendment No. 129 ensures that data-matching provisions in Wales are in line with those in England, including those on the safeguards to ensure the appropriate conduct of such activity. It enables, in respect of Wales, the inclusion of an appropriate deterrent from disclosing data-matching information outside the circumstances set out in Schedule 6. The amendment would modify the saving provision that takes account of the need for Section 282(1) of the Criminal Justice Act 2003 to commence before a maximum sentence of 12 months can be given for the offence of unauthorised disclosure of data-matching information—by virtue of Section 64D(8) of the Public Audit (Wales) Act 2004.
Amendment No. 134 to Clause 80 removes the confinement to England and Wales that would otherwise apply to proposed Part 3 of Schedule 6. It is needed to take account of the inclusion of data-matching provisions for Northern Ireland in Part 3.
Amendment No. 99 allows for the extension of the data-matching powers being created for the Audit Commission in England to Northern Ireland and Wales. Amendment No. 116 creates this power, under proposed Part 3 of Schedule 6, by inserting the provision in the relevant Northern Ireland audit legislation. The amendment simply restricts to Northern Ireland the extent of proposed Part 3 of Schedule 6. As this amendment inserts data-matching powers into the Audit and Accountability (Northern Ireland) Order 2003, it is necessary to restrict the extent of the provision to Northern Ireland only. I beg to move.
My Lords, I have listened very carefully to what the noble Lord said. These are, politically, very sensitive matters, and this is a very sensitive time politically in Wales because of the current elections. It is absolutely right for Westminster to legislate for Wales on these matters, but has the Welsh Assembly been consulted? If so, what is the Government's response?
My Lords, this group of amendments seems relatively innocuous, but I have one or two questions. First, although I appreciate that the amendments do slightly more than just extend the scope of the orders to Wales and Northern Ireland, it seems rather unusual to add something as basic as this at this late stage. Why are these amendments being introduced now? Perhaps it is as a result of the consultation that my noble friend Lady Carnegy has been asking about.
Secondly, Amendment No. 103 allows information to be passed on from the Audit Commission to the so-called local government auditor in Northern Ireland even though there is no provision for data sharing at local government level in England or Wales. I hope the Minister can explain the Government's rationale for the extension of the sharing of matched data. Have the Government considered that widening the provision could endanger the security of such data? Not for one minute would I want to cast aspersions on local authority auditors; rather, I mean to note that the information systems to which they will have access for storing data may not be quite as secure as those at a higher level. Perhaps the noble Lord will give some thought to those points and explain the reason for these last-minute alterations to the Bill.
My Lords, I shall be brief. I expected the Minister to comment on the report from the Joint Committee on Human Rights. Paragraph 1.37 of its 12th report refers to information sharing and expresses concern that,
"the power of public authorities to share information with anti-fraud organisations is drafted in terms too general to satisfy the requirement in Article 8 ECHR that interferences with the right to respect for private life be sufficiently foreseeable".
The report continues:
"In order to make the effect of the new power more foreseeable, and therefore more legally certain, and to make it less likely that the power to share information will be exercised disproportionately, we recommend that the Bill be amended".
It makes a number of suggestions, including,
"to limit the width of the power, for example by specifying the kind of information which may be disclosed ... to introduce additional safeguards on the face of the Bill".
Overall, the Joint Committee says,
"In our view this amounts to an inappropriate delegation of discretion to anti-fraud organisations to decide to whom they will disclose sensitive personal data".
This matter was raised last week when the report was published. Has the Home Office made a response to the Joint Committee's report?
My Lords, I expressed my views on data matching and data mining at Second Reading, and the points that I made were pursued by my noble friends in Committee. I am distressed to see, and I hope that the people of Wales will note at this delicate time, that these provisions are being extended to Wales. Although the Government have significantly altered their stance on the scope of the orders, they nevertheless maintain their determination to cross-match people's personal data from all sorts of areas in an attempt initially to detect crime and fraud, but with a power to extend the purposes for which the matching takes place to further areas. I appreciate that, possibly as a result of some of the comments that we have already made, those powers are to be limited by another amendment, to be moved by the noble Baroness, Lady Scotland, in its place. Those provisions are already incorporated in the Welsh provisions. However, the power amounts to a typical and serious intervention in the private lives of the people of Wales.
My Lords, I am grateful to noble Lords for their helpful interventions and thoughtful reflections at this sensitive time. I can offer a measure of assurance to the noble Baroness, Lady Carnegy of Lour. We consulted on the Welsh and Northern Ireland amendments and full approval was given. I am sure that it was given after the views expressed were taken carefully into account.
The noble Lord, Lord Henley, asked why we propose to amend the Bill now rather than perhaps adopt a different approach. There was consultation when approval for the provisions was sought. At that stage, it was understood that the Bill was intended to put the national fraud initiative on a statutory footing and include an order-making power for the Secretary of State to increase the jurisdictional extent of that initiative beyond England. Later instructions were prepared, in December, which changed the position so that the data-matching provisions should operate only in England. The change reflected recognition of the competence of devolved Administrations in public sector audit matters and data-matching exercises. Critically, however, it was also assumed that the devolved Administrations would consider the adoption of provisions equivalent to those being made for the Audit Commission to enable an extension of the data matching among bodies in their own jurisdictions. Given the importance of the issue, it was felt that there was a strong case for trying to resolve all these issues together and as soon as possible.
The Welsh Assembly and the Auditor General for Wales have been consulted continuously on these suggested amendments since December. The Welsh Assembly Government decided in December that Welsh public bodies should in the first instance be subject to data-matching provisions for the Auditor General for Wales rather—
My Lords, do I understand the Minister to say that the Welsh Assembly has approved this? Or was it the Welsh Assembly Labour Administration, who I hope will disappear on Thursday?
My Lords, the noble Lord is fully entitled to express his view on which way the electorate should vote later in the week, but it was the Welsh Assembly Government who decided in December that the Welsh public bodies should in the first instance be subject to data-matching provisions for the Auditor General for Wales rather than the Audit Commission so as to provide consistency with all other audit arrangements.
I listened carefully to the noble Lord, Lord Dholakia. His comments related only to data sharing. The amendments deal only with data matching. This matching will be covered by the safeguards that the JCHR deemed appropriate. We will look more closely at its concerns about data sharing. We therefore recognise the importance of the issue that the noble Lord raised.
I think that I have responded to the points that were raised. I hope that noble Lords will now feel able to support the amendments.
moved Amendment No. 99A:
After Clause 65, insert the following new Clause—
Nothing in this Part authorises the disclosure of data contained in—
(a) the National Identity Register (as defined in the Identity Cards Act 2006 (c. 15)), or(b) any database established pursuant to section 12 of the Children Act 2004 (c. 31) (information databases),or the use of such data in data matching exercises."
My Lords, this amendment would prevent data in the children's index or the national identity register being shared or used in data-matching exercises for the purposes of identifying and preventing fraud or for such other purposes as the Government may choose. The purpose of sharing and using data is, at least initially, for the prevention and detection of fraud. It is not for the protection of children. It was for the protection of children that Parliament agreed to the legislation authorising the creation of the children's index. Providing in-depth access to the data in these databases for the purposes covered by Part 3 amounts to an unacceptable example of function creep. The Government say that they want to collect and retain our personal data for one purpose, but then seek to use those data for another, unrelated purpose in the future.
When it comes to the collection of data for the children's index, the Government have heard from these Benches on numerous occasions in the past few weeks, not least from my noble friend Lady Walmsley, about the sensitivity of this issue and how it is becoming increasingly obvious to parents that information which is given about their children may be used for purposes that they did not envisage. I beg to move.
My Lords, the amendment sets up a barrier in the Bill between the national identity register, databases set up under the Children Act 2004 and data matching. It protects the NIR and children's databases from being mined for information. I was caught on the hop because I am so accustomed to the Liberal Democrat Front Bench having two speakers on every amendment, I was sitting and waiting for the second to rise to his feet. But here we are: I have got in first, at the noble Lord's invitation, for which I am grateful.
The objective of the amendment complements the concerns that we on these Benches hold about the Government's policy of using individuals' personal details, which seem to be filling Whitehall databases daily. We raised the issue of mining the NIR for data and came extremely close to protecting the electoral register last year from infiltration within the NIR during proceedings on the Electoral Administration Bill. Indeed, Amendment No. 99A in the name of the noble Lords, Lord Thomas of Gresford and Lord Dholakia, reminds me very much of the amendment that we brought forward in that Bill. I am sure that my noble friend Lady Hanham and others will be delighted that her amendment has been adopted and reincarnated in another Bill. Imitation is the best form of flattery.
At that stage, the noble Baroness, Lady Ashton of Upholland, stated that no dialogue could occur between the NIR and the electoral register unless the affirmative regulation procedure had been followed under the Identity Cards Act 2006. I ask the Minister whether the same procedural safeguard will apply when it comes to authorising the Audit Commission to conduct data-matching exercises.
When we debated my Amendment No. 116 in Committee, at col. 1579 on
The Minister went on to give her opinion that the Audit Commission would wish to use the register only for serious crime in any event. Have the Government discussed that with the Audit Commission, and what is the basis for her opinion? How can we be sure that that will be the outcome given the drafting of the Bill, which refers to "crime" rather than "serious crime" in Schedule 6? I hasten to add that when we debate the drafting of Schedule 6, I shall not press for a definition of "serious crime", for reasons that I shall adduce later.
My Lords, I rise to speak as I would not wish to disappoint the noble Baroness, Lady Anelay. Will the Minister respond now to my earlier argument on the Joint Committee on Human Rights report? Is this an appropriate moment to ask about data sharing and what the Home Office intends to say about the report? If it is not possible now, may we have a response before Third Reading, so that it can be dealt with then?
My Lords, the national identity register is increasingly anxiety-making for many people. The noble Lord speaking from the Liberal Front Bench suggested that the Government collect data for one purpose but use them for another. That seems very true in the case of data sharing. I hope the Minister will give a very detailed defence of the fact that these two registers may be used in the Bill.
My Lords, I am very happy to provide clarification and to take up the suggestion of the noble Baroness, Lady Carnegy of Lour. I hope I shall be able to do it as shortly as possible. I understand that an explanation would be helpful.
The amendment of the noble Lords, Lord Dholakia and Lord Thomas of Gresford, would prevent the sharing of data which are contained in the national identity register and ContactPoint—previously known by the working title of "information sharing index"—and the inclusion of those data in data-matching exercises. It would take it out in its entirety, which I do not believe is what the noble Baroness opposite would wish to do. Neither do I believe that, in truth, that is what the noble Lord, Lord Thomas of Gresford, would wish.
ContactPoint will be a national online directory that will become operative in all 150 local authority areas by the end of 2008, consisting of basic demographic data pertaining to children and contact details of those providing specialist and targeted services to them. It is designed to facilitate a co-ordinated approach to providing care and services to children—something which, around the House, we have emphasised and underlined as necessary. Its purpose, as set out in Section 12 of the Children Act 2004, is expressly linked to the duties in the Act on local authorities and their partners to co-operate to improve the well-being of children and to safeguard and promote their welfare. Access will be restricted to those who need it in connection with their work, including, for example, those in education, health, social care and youth offending. That is something which we have sought on all Benches to secure.
Section 12 of the Children Act 2004 gives the Secretary of State power to make regulations governing the disclosure of data for the purposes of ContactPoint, in relation to both the bodies that must contribute data to this directory and the circumstances in which data from it can be disclosed. These regulations are due shortly to be laid before Parliament and are subject to affirmative resolution. That may satisfy the noble Baroness.
Given the careful policy considerations that underlie the drafting of the Children Act, in particular Section 12, and the deliberate decision to vest in the Secretary of State the responsibility for making regulations governing the appropriate disclosure of information from this index, I am loath to pre-empt those decisions by making it impossible in this legislation for the Audit Commission or the specified anti-fraud organisation ever to have access to these data.
For the present purposes, it is very difficult to see how the data contained in the ContactPoint would be relevant to the specific task of assisting in the prevention and detection of fraud. That is a criterion that has to be satisfied for data matching. We must remember what the Audit Commission will be able to do in obtaining data for data-matching purposes and that there are important limits on those powers. Even where the Audit Commission is able to require bodies to provide data on a mandatory basis under Section 32B, this must reasonably be for the purpose of conducting data-matching exercises that are designed to assist in the prevention and detection of fraud. So where data are provided on a voluntary basis, that must first be deemed appropriate for the purposes stated above, which will be a judgment that the Audit Commission as a public body will be required to make on reasonable grounds. I cannot see it but those would be the tests, and I think that how they would operate would be relatively safe and straightforward. On the basis of the regulatory framework already provided for in the Children Act and the limits on the Audit Commission's powers to obtain information, I do not believe that it is necessary or appropriate to make the further amendment that is sought.
Let me take this opportunity to explore whether part of the impetus for this amendment is the fear that data matching might be used to profile the propensity of children to commit offences in the future. I do not know whether the noble Lord, Lord Thomas of Gresford, had that in mind. I see him nodding. It is the sort of issue that I anticipate might concern him. I can quickly put his mind to rest by saying that I have tabled the amendment that will prevent the Audit Commission profiling individuals, both adults and children. So we have got rid of that difficulty.
I turn now to the national identity register, which, as your Lordships know, is not yet in existence but will hold identity information on everyone issued with an ID card. It is intended eventually to include everyone aged 16 and over who is resident in the United Kingdom. I should stress that this will be a register of identity—information such as name, address, date of birth, nationality and so on. It will include photographs and biometric information such as fingerprints, but it will not be an amalgamation of every bit of personal data held by government. So there will be no criminal records, medical records or tax records.
It is conceivable that under the Identity Card Act 2006 information in that register could be supplied to the Audit Commission under the statutory gateways already provided for in that legislation and subject to the terms of the secondary legislation. In particular, Section 20 of that Act would allow for the provision of specified information in the register to a specified public authority for a specified purpose. This would in theory enable identity information to be provided to the Audit Commission, but no information could be provided under Section 20 unless and until an order subject to the affirmative resolution procedure has been debated and agreed by both Houses of Parliament.
The national fraud initiative is one of the very tools that might in the future provide the basis on which provision of information to the Audit Commission might be necessary in order to confirm an individual's identity or provide particular information relating to a person, such as date of birth or address. Therefore, we can see no reason in principle why we should seek expressly to prohibit the Audit Commission's use of the register in the manner proposed.
Similarly we believe it would be a mistake not even to admit the possibility that the national identity register could be effectively and properly used for the prevention of fraud within the terms of Clause 61. One of the statutory purposes of the register as specified in Section 1(4) of the Identity Cards Act 2006 is the prevention and detection of crime. So, at a general level, if one accepts that fraud is a serious problem—the Government do, and the noble Lady opposite has said that she does too—and a corrosive problem that undermines confidence and makes us all pay more for services than we need to, it seems unwise to block off the use of means that might, and I emphasise might, be used to help to counter it. But the amendment is saying that in no circumstances could these two databases be used under this part of the Bill to prevent and detect fraud. I do not know whether either of them could or would be so used. In the case of the databases made under the Children Act 2004, I have already said that it is hard to conceive of their use for preventing and detecting fraud, but it would be going too far to rule them out from the start. We are not arguing in this part of the Bill for a free-for-all in the sharing or matching of data; it will be allowable only for the prevention and detection of fraud and will be subject to the safeguards of the Data Protection Act as regards proportionality and the other conditions which it applies.
I also indicated when discussing Amendments Nos. 96, 97 and 98 that we will be looking to introduce a code of practice for data sharing that would ensure that such data disclosure as takes place under Clause 61 is entirely correct and proper—one already exists for the Audit Commissioner. The range of safeguards available is such that we think that fears over the national identity register, which have been echoed by the noble Baroness, Lady Carnegy of Lour, will not prove well founded. We think that fears about databases established under the Children Act 2004, which are demonstrated by the amendment, are also unfounded.
The noble Lord, Lord Dholakia, asked for a general comment about the JCHR report. We very much appreciate the concern raised by the JCHR on Clauses 61 to 64. We are considering these matters further and will return to them later; we have already committed to doing so, albeit in another place. We will seek to do this as soon as we can.
The noble Baroness, Lady Anelay, asked whether we discussed the limitation of data matching involving the identity register to serious crime. We have—the Audit Commission is quite content with the limitation that we have, so we think that there is a really good balance.
I am relatively confident from hearing the contributions that have been made that noble Lords will be loath to prevent this opportunity to identify fraud and crime if, following the affirmative resolution procedure, both Houses thought that that was a fit and proper thing to do. I hope that on that basis, and with the assurance that noble Lords opposite have done so much to underline about the need for care, attention and scrutiny, that the noble Lord, Lord Thomas of Gresford, will think that he has done his valiant best and can rest content that his duty is done.
My Lords, I am most grateful to the noble Baroness for that tribute to my valour. I shall have to take it a step further, however, because I did not hear a single word from her which indicated a reason for rejecting the amendment. She said that she cannot imagine that the children's database will ever be used for the detection of fraud but that it cannot be ruled out. She agrees that the identity card register, when it comes into being, is not to be used for data mining, but that it cannot be ruled out. I do not see that as a proper answer to the amendment and I feel it necessary, as a matter of principle, to seek the opinion of the House.
My Lords, I invite your Lordships to consider further the Government's amendments on the data-matching provisions of the Bill. I should like to make it clear that although I will speak as though they affect only the Audit Commission's work in England they will similarly apply to equivalent exercises undertaken by the auditing bodies in Wales and Northern Ireland.
Your Lordships expressed concerns in Committee that the Audit Commission could use its new powers to profile individuals on the basis of their particular characteristics and behaviour in order to predict their future propensity to offend. The Audit Commission had, and has, no intention of profiling individuals in this way. Rather, as I explained in Committee, the purpose of including a power to identify patterns and trends is to enable the Audit Commission to identify where individuals may be working in concert to commit fraud or crime, or where organised crime rings may be operating across a particular geographic area. As drafted, the definition of "data matching" would allow the Audit Commission to provide its analysis of emerging trends and patterns to those participating in the exercise so that they can co-ordinate their efforts in tackling at its root cause fraud that is happening now.
I understand from the demonstration of the national fraud initiative that the Audit Commission recently gave to some Members of the House that the noble Lord, Lord James, was anxious to know how the national fraud initiative would help tackle organised crime rings where a Mr Big was lurking behind a number of small operators. I do not see the noble Lord in his place, but I know that it is an issue of concern and so I am happy to deal with it. As I have explained, this is precisely why the Audit Commission needs the power to be able to identify patterns and trends that emerge from data matching.
Your Lordships may also recall the point I made to the House earlier; the new power will enable the Audit Commission to identify emergent risks in areas where existing fraud is on the increase so that bodies can better target their resources. That said, I do recognise that legitimate limits need to be in place to ensure the protection of individual liberties, not least privacy and the presumption of innocence, that citizens in this country are entitled to enjoy.
Following a useful discussion with the noble Baroness, Lady Anelay, for which I am grateful, I understand that her concern is to prevent profiling which could be used to predict the propensity to offend in the future. I can understand the noble Baroness's concern considering the particular nature and purpose of the national fraud initiative. As we have said all along, this initiative is designed specifically to detect anomalies without making any assumptions as to guilt. On that basis, I have tabled an amendment which I hope will meet that concern. It will impose a sensible limit on the extent to which data matching can be used for the identification of patterns and trends in the national fraud initiative. Specifically, the amendment will ensure that data matching cannot be used to profile individuals according to their characteristics or behaviour so as to predict the likelihood of future offending. I hope that that will provide the desired assurance about what the Audit Commission can and cannot do with the national fraud initiative tool and, at the same time, leave in place provisions which are essential in the fight against existing fraud. I hope that the noble Lords, Lord Thomas of Gresford and Lord Dholakia, will agree with that. I know that that concern was raised on the matter.
The noble Lord, Lord Henley, and the noble Baroness, Lady Anelay, propose that the Audit Commission should not be able to obtain patient data from bodies that are under a mandatory duty to participate in the national fraud initiative. Patient data are already explicitly excluded from the data that bodies may contribute to the Audit Commission on a voluntary basis. Therefore, Amendment No. 102 would effectively mean that the Audit Commission would not be able to require patient data at all.
I must resist this amendment on the grounds that, first, the exclusion of these data could severely undermine the value of the national fraud initiative to the "mandatory bodies", particularly NHS trusts, and, secondly, there are adequate safeguards to ensure that this sensitive information is dealt with in an appropriate manner. I should say at the outset that the national fraud initiative does not currently use medical records or clinical data in its data-matching exercises, nor does it have any plans to do so in the future.
The term "patient data" is, however, defined more broadly than that to include not just clinical information, which the Audit Commission does not, in any event, use, but also demographic data, such as a patient's name and address. Specifically, patient data for data-matching purposes mean data that relate to an individual and are held for "medical purposes", as defined in the National Health Service Act 2006. The term "medical purposes" is, itself, broadly defined to capture information held for the purposes of preventive medicine, medical diagnosis and research, the provision of care and treatment and the management of health and social care services, as well as information about individuals' physical or mental health or condition, the diagnosis of their condition or their care and treatment.
The Audit Commission may wish to use demographic data in data-matching exercises where they could indicate fraudulent activity, such as where practitioners either knowingly receive payments from NHS trusts for patients who are no longer registered with them or duplicate payments for those patients. NHS trusts will be mandatory bodies for the purposes of the Audit Commission's data-matching exercises, and these data will be obtained from those bodies.
However, we recognise that patient data—even just their demographic aspect—are particularly sensitive pieces of information. For that reason, following consultation with officials at the Department of Health, voluntary bodies have been precluded from providing any patient data, both demographic and clinical, to the Audit Commission on a voluntary basis under these provisions. In our view, this achieves the correct balance between, on the one hand, using patient data for those bodies for which we have decided it is especially important, and therefore mandatory, to participate in the national fraud initiative and, on the other, bodies for whom it is merely optional.
I also draw your Lordships' attention to the specific protections that will apply with respect to the use and disclosure of any patient data used for data-matching purposes. Where patient data have been included in the national fraud initiative, the results of those matches will, under new Section 32D, be disclosable only if the purpose relates to a relevant NHS body or its auditor. A breach of these provisions governing disclosure will attract criminal sanctions. On that basis, I hope that the noble Baroness will not feel it necessary to press her amendment.
I turn now to Amendments Nos. 101A to 101C, tabled in the names of the noble Lords, Lord Dholakia, Lord Burnett and Lord Thomas. They would have the effect of amending the proposal that we have tabled with respect to the Audit Commission's power to identify patterns and trends from data matching. I shall address Amendments Nos. 101A to 101C together.
Their intention seems to be further to limit the extent to which the Audit Commission will be able to undertake data matching, first, by removing the words "nothing more than" and, secondly, by adding another circumstance where the Audit Commission will be specifically precluded from using its powers.
I am afraid that we must resist these amendments for the following reasons. I refer noble Lords to the proposal that the words "nothing more than" be removed. I understand that the amendment is designed to ensure that data matching cannot be undertaken to profile individuals who are likely to commit fraud in the future, even if there are ancillary benefits to be had. I appreciate the concerns that have been raised in this House regarding the extent to which data matching may be used to profile individuals. This is precisely why I tabled Amendment No. 101. However, this subsequent amendment goes too far. The words "nothing more than" have been deliberately chosen to target the specific mischief we are trying to address, without compromising the exercise as a whole. I hope we all agree that we do not want the Audit Commission to be able to use data matching to identify patterns and trends in individual behaviour or characteristics so as to predict future propensity to offend. However, by removing the words "nothing more than", we run the serious risk of losing data matches that indicate fraud that is happening right now merely on the basis that they might also be taken as an indication of propensity to commit fraud in the future. We are seeking to preserve not simply ancillary benefits but the integrity of the core exercise itself.
Noble Lords have proposed an amendment that will insert a further circumstance in which the Audit Commission will be precluded from undertaking data matching. I understand that this is to make clear that the Audit Commission should also be prevented from using data matching in order to identify individuals who may fit a profile of those who might commit offences in the future. I shall start by reiterating that the Audit Commission has no intention of using data matching to profile individuals in the first place, much less to identify individuals who may fit these. In any event, the amendment that I am proposing will already prevent the Audit Commission creating such profiles in the first place. If this is the case, it must surely beg the question as to exactly what it is anticipated the Audit Commission will have available in order to achieve the mischief that is feared. On this basis, we hope that the House will be content with the amendment. We think that it is significant; it hones the issue finely; and goes further than the amendment suggested by the noble Baroness. The reason it goes further is that we thought it important to have the clarity that will prevent the Audit Commission doing that which none of us would wish it to do, and that which it itself asserts it does not wish to do. Our amendment gets it just about right. As your Lordships know, I claim no credit for the drafting because those who are really experienced and specialist in drafting have helped us to do this on behalf of the House. With that, I hope that the noble Baroness, the noble Lord, Lord Dholakia, and other noble Lords will be content. I beg to move.
My Lords, I am grateful to the Minister. The purpose of the amendment, which was suggested by Liberty, was to tease out as much information from the Minister as possible. It is a probing amendment and we are satisfied with the explanation that the Minister has offered. In light of that, we do not intend to move the amendment.
My Lords, it is a little complicated when we have amendments tabled to the Minister's main amendment. I do not want to confuse matters further but I should like to give an explanation about Amendment No. 100, to which the noble Baroness has referred. In advance of today, I gave notice to the Front Benches and to the Lord Speaker that I would not move Amendment No. 100. It was a procedural device to ensure that on Report the noble Baroness could open the debate on this group of amendments and have the opportunity to answer any questions.
That did not mean that I had no faith in my amendment but I will immediately indicate that the objective achieved by the Government's amendment fully meets my objections in Committee. As the Minister has remarked, the government amendment is broader than mine and is thereby even more welcome. I was trying to prevent a situation where individuals' details could be data-matched or data-mined and used improperly in profiling individual characteristics. I am grateful to the Minister for tabling her amendments.
The Minister referred to Amendment No.102. It picks up on a theme that I explored in Committee about the kind of patient data that will be data-matched or data-mined. In Committee, the Minister said:
"Patients' data are not disclosable beyond the National Health Service".—[Hansard, 26/3/07; col. 1537.]
I wondered how that was guaranteed in the Bill. Today, the Minister has given a helpful and full explanation of how information will be disclosable, not only in a voluntary, but also in an enforced statutory way, and will involve the National Health Service trusts.
I have a further question on that. I have followed the Minister's arguments today but it occurred to me during her explanation that National Health Service trusts do carry out work for the private sector. The private sector buys time in operating theatres and operations are carried out. There is a close liaison between the National Health Service trusts and the private sector whereby both clinical and demographic data might be built up as a result of that exchange.
I wonder whether it is possible that information held in the private health sector may find its way through a gateway in the NHS trust into the demographic use of data matching and data mining in this Bill. That occurred to me only as the noble Baroness was speaking, so if she is able to respond today, that would be helpful. However, she may wish to write to me on that and we might be able to resolve that before Third Reading.
I am trying not necessarily to prevent demographic profiling and use of information which may properly prevent or detect serious fraud but to ensure that there is none of the function creep to which the noble Lord, Lord Thomas of Gresford, rightly referred earlier, and that we do not allow the Bill to leave this place with an imperfect and incorrect understanding of what information might be properly matched and mined and which might not.
We must ensure that the public have confidence in the process by which all this takes place. All of us will be aware of the daily scandals about patient data held on the NHS supercomputer. I was looking at the BBC website on Saturday and read that the Government had closed down the job application website for junior doctors amid fresh concerns of security lapses. This is an area in which we are talking about the National Health Trusts disclosing and using information. We need to be sure that it is secure and to know whether information held elsewhere may also find its way into that database.
My Lords, I hear what the noble Baroness says about the alignment between NHS and private data. I think that the answer will be that the NHS data will be dealt with. I shall come back to the noble Baroness, because she raises an interesting point which it would helpful to clarify. I certainly undertake to write to her between now and Third Reading.
moved Amendments Nos. 103 and 104:
Schedule 6, page 66, line 24, at end insert—
Schedule 6, page 67, line 19, at end insert—
"( ) In this section, "body" includes office."
On Question, amendments agreed to.
moved Amendment No. 105:
Schedule 6, page 67, line 19, at end insert—
(1) Nothing in section 32D prevents the Commission from publishing a report on a data matching exercise (including on the results of the exercise).
(2) But the report may not include information relating to a particular body or person if—
(a) the body or person is the subject of any data included in the data matching exercise,(b) the body or person can be identified from the information, and(c) the information is not otherwise in the public domain.
(3) A report published under this section may be published in such manner as the Commission considers appropriate for bringing it to the attention of those members of the public who may be interested.
(4) Section 51 does not apply to information to which section 32D applies.
(5) This section does not affect any powers of an auditor where the data matching exercise in question forms part of an audit under Part 2."
My Lords, Amendment No. 105 provides a publication power to the Audit Commission so that it may report on its data-matching exercises. It also limits the kinds of information which may appear in this report.
It is already the practice of the commission to publish a report once the results of data-matching have been properly investigated by the audited bodies and the exercise has been completed. The purpose of these reports is to provide to the public an overarching summary of the exercise, including the amount of detected overpayments and fraud. The reports do not, however, identify individual data subjects, although the commission may, from time to time, identify particular audited bodies following consultation with them. That might arise in circumstances where a particularly significant fraud has been uncovered as a result of a local authority's investigation into the results of a data-matching exercise. In this way, the public can keep abreast of the commission's activities and form their own view as to the gains achieved by the national fraud initiative.
The amendment will place the commission's existing good practice squarely in the Bill. Although the commission will be able to identify those bodies which have provided it with data in its reports, it will not be able to identify the individuals, partnerships or companies to whom the data relate unless that information is already in the public domain. Accordingly, the provision strikes the right balance between ensuring transparency and accountability on the one hand while, on the other, ensuring that the appropriate safeguards are in place.
On Amendment No. 106, the noble Lord, Lord Henley, and the noble Baroness, Lady Anelay, propose that the code of data-matching practice which the Audit Commission prepares, and any revisions to it, should be made subject to the approval of the Information Commissioner and then both Houses of Parliament by way of affirmative resolution. On Amendment No. 107, the code should, alternatively, at least be made subject to the approval of the Information Commissioner. I know the noble Baroness and noble Lord will not be surprised that I shall resist that amendment. I am grateful to them for tabling it, because it again enables me to explain our amendments. I first reiterate the comments I made in Committee: it is not the role of the Information Commissioner to approve codes of practice issued by public authorities. It would severely undermine the Information Commissioner's independence, and therefore public credibility, if the situation were otherwise. It is probably for this reason that there are no precedents in any other context of which we are aware where the Information Commissioner has been required to approve another body's code of practice in the way now proposed.
As a matter of practice, the Audit Commission will also seek to consult the Information Commissioner in preparing and revising the code and I will shortly speak further on this point on a government amendment. The Information Commissioner will retain a statutory overview on the Audit Commission's activities under the Data Protection Act 1998, which gives him all the powers of supervision and intervention that he needs.
It is also for that reason that the further proposal, to require that the code be approved by both Houses of Parliament by way of affirmative resolution, is excessive. It would not be good use of the House's time, or that of our colleagues in another place, if we were required to deliberate on a code in circumstances where the task will already fall within the general supervisory and regulatory remit of the Information Commissioner.
We appreciate that a central premise behind Amendment No. 108 is a desire to enhance the checks and balances that will be in place with respect to the Audit Commissioner's data-matching activities. For that reason, I have tabled an amendment that will place a duty on the Audit Commission to consult the Information Commissioner when preparing and revising the code.
In relation to Amendment No. 109, we believe there is some force in the points that have been made concerning the visibility of the code, which will spell out the standards that members of the public can expect when their data are matched and the detailed safeguards that will apply to each exercise. The amendment places a duty on the Audit Commission to send a copy of the code to the Secretary of State so that it can be laid before the House. It also places a duty on the commission to publish the code from time to time. The Government tabled Amendments Nos. 108 and 109 in order to meet the concerns that have been raised. We believe that they strike the right balance between the exercise of efficient and effective data matching by the Audit Commission and the safeguards that should apply to it. In the circumstances, I hope that the noble Baroness and the noble Lord will not move their amendments. I thank them in advance for keeping the amendments on the Marshalled List as it has allowed me to explain them. I hope that has assured the House that all that should be done has been done and that we are all in agreement. I beg to move.
My Lords, I support the Government's amendments that have responded to a great degree to the debates we had on the amendments that I moved in Committee, in particular, the debate on Amendment No. 114A, which can be found in Hansard for
I would be completely satisfied if the Government were to bring forward an amendment that gives the Information Commissioner the right to initiate assessments of his own volition. However, that has to wait until Third Reading but, I hope, no longer.
Amendment No. 105 is most welcome. It allows the Audit Commission to publish reports on the data-matching exercises that it conducts. We think that is an essential part of public accountability and transparency. The Minister said that it is good practice put into statute. We think that the Government are right to add to the existing duty on the Audit Commission the duty to produce, have regard to and maintain, by way of updates, the code of data-matching practice.
Amendment No. 108 requires the Audit Commission to consult the Information Commissioner before producing the code of practice and to do so when and if it amends it. That is particularly welcome and is a more proper way forward than the solution in my Amendments Nos. 106 and 107. Having had the opportunity to meet the Information Commissioner, I understand why he would say that the government amendment is appropriate whereas he might feel that my Amendments Nos. 106 and 107 would impose a duty upon him that would not fit with his independence of action. I accept that the Government's amendments are superior to mine.
Amendment No. 109 is particularly welcome because it provides for parliamentary accountability—to a limited degree, it is true—by requiring the Secretary of State to lay the code before Parliament. The Audit Commission will have to publish the code from time to time, which is important because it means that this House and another place will have a continuing ability to exercise their scrutiny. Throughout our debates on the Bill, noble Lords have spoken about how information technology is developing. The Government often use that argument as a reason for wishing to have flexibility in legislation, but it is an argument for Parliament having continuing scrutiny of measures that may have to develop in different ways to meet new needs in future.
We support the Government's amendments and will not be moving Amendments Nos. 106 and 107.
These amendments give me the opportunity to make a brief point that arose from the presentation on the Audit Commission's current fraud initiative. At present, information is brought to the commission on disks, which are carefully stored and then destroyed once the information has been used so that the record is gone. I asked why the commission used disks when we are dealing with electronic information. The reply was, "We find it easy at the moment but we might want to move on to different methods of providing information, using electronic techniques". The risks would be different in such a situation. It is well known that, although you can remove information from computers, it is left on hard disks and there are ways of getting at it.
It is important that the Information Commissioner in his exchanges with the Audit Commission ensures that, as new techniques are adopted, the commission takes the same care to destroy information and render it secure as it has done until now. We enter into a period of new vulnerability. My noble friend referred to recent incidents that showed the vulnerabilities of computer systems. I hope that the Information Commissioner will pay particular attention to that in his discussions with the Audit Commission and when the codes of practice are being drawn up.
My Lords, I am very grateful for the noble Lord's comments. He had the advantage of seeing how the Audit Commission manages the current initiative. He is right that the commission is scrupulous in destroying disks. I am given to understand that it appreciates clearly the need to expunge data and that, if it changes its processes, it will ensure that data are similarly expunged.
I hope that the noble Lord, Lord Crickhowell, and the House also appreciate the close interaction with, and the respect given to, the Information Commissioner and his comments on data. There is no indication that that high regard will be diminished. Much confidence can be drawn from the sound and proper manner in which the Audit Commission carried out the current initiative; there is nothing to indicate that it will resile from its current position.
I thank the noble Lord for highlighting the importance, which the commission itself has underlined, of expunging data when it is no longer needed.
moved Amendments Nos. 108 and 109:
Schedule 6, page 68, line 10, at end insert—
"( ) The Commission must—
(a) send a copy of the code, and of any alterations made to the code, to the Secretary of State, who must lay the copy before Parliament, and(b) from time to time publish the code as for the time being in force."
On Question, amendments agreed to.
My Lords, government Amendments Nos. 110 and 112 limit the further purposes to which data-matching exercises can be carried out to those already listed in the Bill. The noble Lord, Lord Henley, and the noble Baroness, Lady Anelay, propose that the Secretary of State's order-making powers to add to the purpose for which data-matching can be undertaken should be removed in their entirety. Amendments Nos. 113 and 114, alternatively, propose the removal of the words "in particular" from proposed new Section 32G(2) of the Audit Commission Act 1998 and the insertion ofthe word "serious" in order to clarify the nature of the crime for which data matching may be extended to prevent or detect.
I am afraid that I have to resist all these amendments. In relation to the first amendment, I would be chary about confining ourselves at the outset to undertaking data matching solely for the purposes of preventing and detecting fraud in circumstances where we already know that there may be other public evils which could be greatly ameliorated through the use of these exercises. Proposed new Section 32G(2) does not provide the Secretary of State with a carte blanche to add further purposes at his whim. Quite the contrary, this can be done only with the approval of both Houses under the affirmative resolution procedure.
With respect to the proposed alternative amendments, I turn first to the suggestion that the words "in particular" be omitted from new Section 32G(2). I understand this amendment is based on the primary concern expressed by noble Lords in Committee that, because the current list of potential new purposes is non-exhaustive, this creates uncertainty and therefore unease as to the nature and types of purpose that might be contemplated. To put it another way, one might describe this concern as possible function creep I think that the noble Baroness has described it like that in the past. However, if that is the case, we cannot see how the omission of the words "in particular" will make any difference. The section will remain open-ended because of the continued presence of the word "includes", which imports the concept that these are examples only and not an exhaustive list.
I can deal with the further alternative proposal to preface the word "crime" with the word "serious" in relatively short order. The simple insertion of this word does not, in itself, provide any guidance in practice as to what would qualify as a "serious" offence. The amendment makes no attempt to define what would constitute a serious offence and for that reason it simply will not do.
Moreover, it is difficult to limit the uses to which this tool could and should be put simply by saying that it must be restricted to serious crime. I gave the example in Committee that the tool could be used to identify registered sex offenders working in schools. This in itself might be a breach of the conditions placed on a sex offender but would not be a "serious offence" within the meaning of Schedule 1. However, data matching may prevent or detect the offence committed when a person on the sexual offences register slips through the net and is employed in direct contact with children. I would also offer the example of immigration offenders. Overstaying visas may not be considered by some to be a serious crime. None the less, it is something that the public would be keen to see the Government use every tool available to them to prevent and detect.
On Amendments Nos. 110 and 112, notwithstanding the specific objections I have identified above, I thank the noble Baroness for letting her amendment stay because it gives me an opportunity better to explain how we deal this. I can see merit in the thinking behind these amendments to ensure that the prior definition of any new purpose which may be added appears in the Bill. On that basis, I have tabled amendments that will confine the potential extension of purposes for which data matching can be undertaken to those currently listed as examples in new Section 32G(2): namely, first, assisting in the prevention and detection of crime other than fraud; secondly, assisting in the apprehension and prosecution of offenders; and, thirdly, assisting in the recovery of debt owing to public bodies. I hope that these amendments squarely address the specific concerns that have been raised. I thank noble Lords for pursuing these matters, which enabled us to have a good discussion and, I hope, come to a solution which meets all our ends. I therefore beg to move.
My Lords, I support the government amendments. I shall speak to my Amendments Nos. 111, 113 and 114, to which the Minister has already responded.
The government amendments go a long way towards meeting the objections that I raised in Committee on
Top of my wish list was a measure that would confine the purposes to those already in the Bill and a measure requiring further purposes to be added by primary legislation. My objections to the list of examples of purposes for future consideration set out in new Section 32G(2) were objections of principle and practice. I was unhappy that if we accepted a subsection that gave a list of particular examples, we could today be fettering the House when it came to decide in future on its view of delegated legislation brought forward by the Government to add purposes already mentioned in primary legislation. It could have looked as though we had already indicated that those purposes listed in new Section 32G were acceptable and we might therefore have been free only to express a view if the Government brought forward a statutory instrument that referred to new purposes not listed in new Section 32G.
I was concerned also that the list refers to "crime" rather than to "serious crime", which I would have much preferred. I shall return to that matter. The Minister has given some clear examples of where it would be dangerous to go down the line of referring just to serious crime.
In Committee, my noble friend Lord Crickhowell spoke strongly against the use of the term "in particular". The Government's amendment makes it clear that the potential for expanding the list of purposes for which data matching may take place is now to be confined to those currently listed as examples, so the examples become a closed list. That is exactly what I would have hoped for; I welcome the amendment.
The amendment gives the House the opportunity to decide now, while it is considering primary legislation, whether that list is appropriate. It prevents other matters being added by delegated legislation. The letter that noble Lords received from the Minister appeared to imply that the Government would not consider bringing forward by way of primary legislation any further purposes in the future. If that is the correct interpretation of her letter, it would be most welcome in the year or two for which Mr Brown takes over the helm.
I would have preferred it if the new subsection had referred to "serious crime" rather than "crime". I accept all the arguments against that which the noble Baroness has adduced today. In addition, the Minister and I had a meeting between Committee and Report where we discussed the matter. She put forward the argument that if one were to have a reference to serious crime, one would need a schedule to the Bill to list the involved. That is not beyond the wit of man and woman, because the Government have two schedules to the Bill, Schedules 1 and 3, where they have tried to list crimes to be taken into account. We now know that that is a defective list and that they are going to change it, so perhaps I was right all along. However, the solution that the Government have achieved is as good as is possible within the context of Part 3, so I shall not move my amendments and will support the Government.
My Lords, I add my thanks to those already expressed by my noble friend to the Minister for producing some very helpful amendments and, in particular, for the way in which she has now limited new Section 32G(2). I cannot refrain from expressing a little pleasure that my damn-fool question—that is, the question posed by an ignorant layman to a House full of lawyers—has produced the amendment that I suggested. The words that I thought were unnecessary have been deemed to be unnecessary; indeed rather more than unnecessary, because they have the effect of suggesting that things could have been added which might have been unnecessary. All I want to do is to say "Thank you very much" to the noble Baroness.
moved Amendment No. 115:
Schedule 6, page 68, line 39, at end insert—
"Part 2Data Matching: Wales
4 After Part 3 of the Public Audit (Wales) Act 2004 (c. 23) insert—
"PART 3AData matching
64A Power to conduct data matching exercises
(1) The Auditor General for Wales may conduct data matching exercises or arrange for them to be conducted on his behalf.
(2) A data matching exercise is an exercise involving the comparison of sets of data to determine how far they match (including the identification of any patterns and trends).
(3) The power in subsection (1) is exercisable for the purpose of assisting in the prevention and detection of fraud in or with respect to Wales.
(4) That assistance may, but need not, form part of an audit.
(5) A data matching exercise may not be used to identify patterns and trends in an individual's characteristics or behaviour which suggest nothing more than his potential to commit fraud in the future.
(6) In the following provisions of this Part, reference to a data matching exercise is to an exercise conducted or arranged to be conducted under this section.
64B Mandatory provision of data
(1) The Auditor General for Wales may require—
(a) any body mentioned in subsection (2), and (b) any officer or member of such a body, to provide the Auditor General or a person acting on his behalf with such data (and in such form) as the Auditor General or that person may reasonably require for the purpose of conducting data matching exercises.
(2) The bodies are—
(a) a local government body in Wales (as defined in section 12(1));(b) a Welsh NHS body (as defined in section 60).
(3) A person who without reasonable excuse fails to comply with a requirement of the Auditor General under subsection (1)(b) is guilty of an offence and liable on summary conviction—
(a) to a fine not exceeding level 3 on the standard scale, and(b) to an additional fine not exceeding £20 for each day on which the offence continues after conviction for that offence.
(4) If an officer or member of a body is convicted of an offence under subsection (3), any expenses incurred by the Auditor General in connection with proceedings for the offence, so far as not recovered from any other source, are recoverable from that body.
64C Voluntary provision of data
(1) If the Auditor General for Wales thinks it appropriate to conduct a data matching exercise using data held by or on behalf of a body or person not subject to section 64B, the data may be disclosed to the Auditor General or a person acting on his behalf.
(2) A disclosure under subsection (1) does not breach—
(a) any obligation of confidence owed by a person making the disclosure, or(b) any other restriction on the disclosure of information (however imposed).
(3) But nothing in this section authorises a disclosure which—
(4) Data may not be disclosed under subsection (1) if the data comprise or include patient data.
(5) "Patient data" means data relating to an individual which are held for medical purposes (within the meaning of section 251 of the National Health Service Act 2006 (c. 41)) and from which the individual can be identified.
(6) This section does not limit the circumstances in which data may be disclosed apart from this section.
(7) Data matching exercises may include data provided by a body or person outside England and Wales.
64D Disclosure of results of data matching etc
(1) This section applies to the following information—
(a) information relating to a particular body or person obtained by or on behalf of the Auditor General for Wales for the purpose of conducting a data matching exercise,(b) the results of any such exercise.
(2) Information to which this section applies may be disclosed by or on behalf of the Auditor General for Wales if the disclosure is—
(a) for or in connection with a purpose for which the data matching exercise is conducted,(b) to a body mentioned in subsection (3) (or a related party) for or in connection with a function of that body corresponding or similar to the functions of an auditor under Chapter 1 of Part 2 or the functions of the Auditor General under Part 3 or this Part, or(c) in pursuance of a duty imposed by or under a statutory provision.
(3) The bodies are—
(a) the Audit Commission, (b) the Auditor General for Scotland,(c) the Accounts Commission for Scotland,(d) Audit Scotland,(e) the Comptroller and Auditor General for Northern Ireland,(f) a person designated as a local government auditor under Article 4 of the Local Government (Northern Ireland) Order 2005 (S.I. 2005/1968 (N.I. 18)).
(4) "Related party", in relation to a body mentioned in subsection (3), means—
(a) a body or person acting on its behalf,(b) a body whose accounts are required to be audited by it or by a person appointed by it,(c) a person appointed by it to audit those accounts.
(5) If the data used for a data matching exercise include patient data—
(a) subsection (2)(a) applies only so far as the purpose for which the disclosure is made relates to a relevant NHS body,(b) subsection (2)(b) applies only so far as the function for or in connection with which the disclosure is made relates to such a body.
(6) In subsection (5)—
(a) "patient data" has the same meaning as in section 64C,(b) "relevant NHS body" means—(i) a Welsh NHS body as defined in section 60,(ii) a health service body as defined in section 53(1) of the Audit Commission Act 1998 (c. 18),(iii) an NHS body as defined in section 22(1) of the Community Care and Health (Scotland) Act 2002 (asp 5),(iv) an HSS trust within the meaning of the Health and Personal Social Services (Northern Ireland) Order 1991 (S.I. 1991/194 (N.I. 1)).
(7) Information disclosed under subsection (2) may not be further disclosed except—
(a) for or in connection with the purpose for which it was disclosed under paragraph (a) or the function for which it was disclosed under paragraph (b) of that subsection,(b) for the investigation or prosecution of an offence (so far as the disclosure does not fall within paragraph (a)), or(c) in pursuance of a duty imposed by or under a statutory provision.
(8) Except as authorised by subsections (2) and (7), a person who discloses information to which this section applies is guilty of an offence and liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both, or(b) on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine not exceeding the statutory maximum or to both.
(9) Section 54 does not apply to information to which this section applies.
(10) In this section "statutory provision" has the meaning given in section 59(8).
(1) Nothing in section 64D prevents the Auditor General for Wales from publishing a report on a data matching exercise (including on the results of the exercise).
(2) But the report may not include information relating to a particular body or person if—
(a) the body or person is the subject of any data included in the data matching exercise,(b) the body or person can be identified from the information, and(c) the information is not otherwise in the public domain.
(3) A report published under this section may be published in any manner which the Auditor General considers appropriate for bringing it to the attention of those members of the public who may be interested.
(4) This section does not affect any powers of an auditor or the Auditor General where the data matching exercise in question forms part of an audit under Part 2 or 3.
64F Fees for data matching
(1) The Auditor General for Wales must prescribe a scale or scales of fees in respect of data matching exercises.
(2) A body required under section 64B(1) to provide data for a data matching exercise must pay to the Auditor General the fee applicable to that exercise in accordance with the appropriate scale.
(3) But if it appears to the Auditor General that the work involved in the exercise was substantially more or less than that envisaged by the appropriate scale, the Auditor General may charge the body a fee which is larger or smaller than that referred to in subsection (2).
(4) Before prescribing a scale of fees under this section, the Auditor General must consult—
(a) the bodies mentioned in section 64B(2), and(b) such other bodies or persons as the Auditor General thinks fit.
(5) If the Welsh Ministers consider it necessary or desirable to do so, they may by regulations prescribe a scale or scales of fees to have effect, for such period as is specified in the regulations, in place of any scale or scales of fees prescribed by the Auditor General and, if they do so, references in this section to the appropriate scale are to be read as respects that period as references to the appropriate scale prescribed by the Welsh Ministers.
(6) Before making any regulations under subsection (5), the Welsh Ministers must consult—
(a) the Auditor General for Wales, and(b) such other bodies or persons as they think fit.
(7) The power under subsection (5) is exercisable by statutory instrument subject to annulment in pursuance of a resolution of the Assembly.
(8) In addition to the power under subsection (2), the Auditor General may charge a fee to any other body or person providing data for or receiving the results of a data matching exercise, such fee to be payable in accordance with terms agreed between the Auditor General and that body or person.
64G Code of data matching practice
(1) The Auditor General for Wales must prepare, and keep under review, a code of practice with respect to data matching exercises.
(2) Regard must be had to the code in conducting and participating in any such exercise.
(3) Before preparing or altering the code, the Auditor General must consult the bodies mentioned in section 64B(2), the Information Commissioner and such other bodies or persons as the Auditor General thinks fit.
(4) The Auditor General must—
(a) lay a copy of the code, and of any alterations made to the code, before the Assembly, and(b) from time to time publish the code as for the time being in force.
64H Powers of Secretary of State
(1) The Secretary of State may by order amend this Part—
(a) to add any purpose mentioned in subsection (2) to the purposes for which data matching exercises may be conducted,(b) to modify the application of this Part in relation to a purpose so added.
(2) The purposes which may be added are—
(a) to assist in the prevention and detection of crime (other than fraud) in or with respect to Wales, (b) to assist in the apprehension and prosecution of offenders in or with respect to Wales,(c) to assist in the recovery of debt owing to Welsh public bodies.
(3) The Secretary of State may by order amend this Part—
(a) to add a Welsh public body to the list of bodies in section 64B(2),(b) to modify the application of this Part in relation to a body so added,(c) to remove a body from that list.
(4) Before making an order under this section, the Secretary of State must consult the Auditor General for Wales.
(5) An order under this section—
(a) is to be made by statutory instrument, and(b) may include such incidental, consequential, supplemental or transitional provision as the Secretary of State thinks fit.
(6) No order under this section may be made unless a draft of the statutory instrument has been laid before, and approved by a resolution of, each House of Parliament.
(7) In this section "Welsh public body" means a public body (as defined in section 12(3)) whose functions relate exclusively to Wales or an area of Wales."
(2) In sub-paragraph (3)(b) after "government audit)" insert "or, so far as the functions relate to local government bodies in Wales, Part 3A of that Act (data matching)".
(3) In sub-paragraph (4)(c) for the words from "Part 2" to the end substitute "the following provisions of the Public Audit (Wales) Act 2004 (c. 23)—
(i) Part 2 (including those charged as a result of paragraph 11(3)(c)),(ii) Part 3A (but only those charged to a local government body in Wales)."
(4) After sub-paragraph (4) insert—
"(5) "Local government body in Wales" has the meaning given in section 12(1) of the Public Audit (Wales) Act 2004 (c. 23).""
On Question, amendment agreed to.
moved Amendment No. 116:
Schedule 6, page 68, line 39, at end insert—
"Part 3Data Matching: Northern Ireland
After Article 4 of the Audit and Accountability (Northern Ireland) Order 2003 (S.I. 2003/418 (N.I. 5)) insert—
4A Power to conduct data matching exercises
(1) The Comptroller and Auditor General may conduct data matching exercises or arrange for them to be conducted on his behalf.
(2) A data matching exercise is an exercise involving the comparison of sets of data to determine how far they match (including the identification of any patterns and trends).
(3) The power in paragraph (1) is exercisable for the purpose of assisting in the prevention and detection of fraud.
(4) That assistance may, but need not, form part of an audit.
(5) A data matching exercise may not be used to identify patterns and trends in an individual's characteristics or behaviour which suggest nothing more than his potential to commit fraud in the future.
(6) In Articles 4B to 4H, reference to a data matching exercise is to an exercise conducted or arranged to be conducted under this Article.
4B Mandatory provision of data
(1) The Comptroller and Auditor General may require—
(a) any body mentioned in paragraph (2); and(b) any officer or member of such a body,to provide the Comptroller and Auditor General or a person acting on his behalf with such data (and in such form) as the Comptroller and Auditor General or that person may reasonably require for the purpose of conducting data matching exercises.
(2) The bodies are—
(a) any body (including a holder of a statutory office) whose accounts are required to be audited by the Comptroller and Auditor General, other than a body whose accounts are required to be so audited by virtue of section 55 of the Northern Ireland Act 1998 (c. 47);(b) any body whose accounts are required to be audited by a local government auditor.
(3) A person who without reasonable excuse fails to comply with a requirement of the Comptroller and Auditor General under paragraph (1)(b) is guilty of an offence and liable on summary conviction—
(a) to a fine not exceeding level 3 on the standard scale; and(b) to an additional fine not exceeding £20 for each day on which the offence continues after conviction for that offence.
(4) If an officer or member of a body is convicted of an offence under paragraph (3), any expenses incurred by the Comptroller and Auditor General in connection with proceedings for the offence, so far as not recovered from any other source, are recoverable from that body.
4C Voluntary provision of data
(1) If the Comptroller and Auditor General thinks it appropriate to conduct a data matching exercise using data held by or on behalf of a body or person not subject to Article 4B, the data may be disclosed to the Comptroller and Auditor General or a person acting on his behalf.
(2) A disclosure under paragraph (1) does not breach—
(a) any obligation of confidence owed by a person making the disclosure; or(b) any other restriction on the disclosure of information (however imposed).
(3) But nothing in this Article authorises a disclosure which—
(4) Data may not be disclosed under paragraph (1) if the data comprise or include patient data.
(5) "Patient data" means data relating to an individual which are held for any of the following purposes and from which the individual can be identified—
(a) preventative medicine, medical diagnosis, medical research, the provision of care and treatment and the management of health and social care services;(b) informing individuals about their physical or mental health or condition, the diagnosis of their condition or their care and treatment.
(6) This Article does not limit the circumstances in which data may be disclosed apart from this Article.
(7) Data matching exercises may include data provided by a body or person outside Northern Ireland.
4D Disclosure of results of data matching etc
(1) This Article applies to the following information—
(a) information relating to a particular body or person obtained by or on behalf of the Comptroller and Auditor General for the purpose of conducting a data matching exercise;(b) the results of any such exercise.
(2) Information to which this Article applies may be disclosed by or on behalf of the Comptroller and Auditor General if the disclosure is—
(a) for or in connection with a purpose for which the data matching exercise is conducted;(b) to a body mentioned in paragraph (3) (or a related party) for or in connection with a function of that body corresponding or similar to the audit functions of the Comptroller and Auditor General or a local government auditor under any statutory provision or the data matching functions of the Comptroller and Auditor General under Article 4A; or(c) in pursuance of a duty imposed by or under a statutory provision.
(3) The bodies are—
(a) the Audit Commission for Local Authorities and the National Health Service in England;(b) the Auditor General for Wales;(c) the Auditor General for Scotland;(d) the Accounts Commission for Scotland;(e) Audit Scotland.
(4) "Related party", in relation to a body mentioned in paragraph (3), means—
(a) a body or person acting on its behalf;(b) a body whose accounts are required to be audited by it or by a person appointed by it;(c) a person appointed by it to audit those accounts.
(5) If the data used for a data matching exercise include patient data—
(a) paragraph (2)(a) applies only so far as the purpose for which the disclosure is made relates to a relevant NHS body;(b) paragraph (2)(b) applies only so far as the function for or in connection with which the disclosure is made relates to such a body.
(6) In paragraph (5)—
(a) "patient data" has the same meaning as in Article 4C;(b) "relevant NHS body" means—(i) an HSS trust within the meaning of the Health and Personal Social Services (Northern Ireland) Order 1991 (NI 1);(ii) a health service body as defined in section 53(1) of the Audit Commission Act 1998 (c. 18);(iii) a Welsh NHS body as defined in section 60 of the Public Audit (Wales) Act 2004 (c. 23);(iv) an NHS body as defined in section 22(1) of the Community Care and Health (Scotland) Act 2002 (asp 5).
(7) Information disclosed under paragraph (2) may not be further disclosed except—
(a) for or in connection with the purpose for which it was disclosed under sub-paragraph (a) or the function for which it was disclosed under sub-paragraph (b) of that paragraph;(b) for the investigation or prosecution of an offence (so far as the disclosure does not fall within sub-paragraph (a)); or(c) in pursuance of a duty imposed by or under a statutory provision.
(8) Except as authorised by paragraphs (2) and (7), a person who discloses information to which this Article applies is guilty of an offence and liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both; or(b) on summary conviction, to imprisonment for a term not exceeding 6 months, to a fine not exceeding the statutory maximum or to both.
(9) Article 27 of the Local Government (Northern Ireland) Order 2005 (NI 18) does not apply to information to which this Article applies.
(10) In this Article "body" includes office.
(1) Nothing in Article 4D prevents the Comptroller and Auditor General from publishing a report on a data matching exercise (including on the results of the exercise).
(2) But the report may not include information relating to a particular body or person if—
(a) the body or person is the subject of any data included in the data matching exercise;(b) the body or person can be identified from the information; and(c) the information is not otherwise in the public domain.
(3) A report published under this Article may be published in such manner as the Comptroller and Auditor General considers appropriate for bringing it to the attention of those members of the public who may be interested.
(4) This Article does not affect any powers of the Comptroller and Auditor General or a local government auditor where the data matching exercise in question forms part of an audit carried out by either of them.
4F Fees for data matching
(1) The Comptroller and Auditor General may charge a fee to any body required under Article 4B(1) to provide data for a data matching exercise.
(2) But a body whose functions are discharged on behalf of the Crown may not be charged a fee under paragraph (1) except with the consent of the Department.
(3) In addition to the power under paragraph (1), the Comptroller and Auditor General may charge a fee to any other body or person providing data for or receiving the results of a data matching exercise, such fee to be payable in accordance with terms agreed between the Comptroller and Auditor General and that body or person.
(4) Any fee received by the Comptroller and Auditor General by virtue of this Article is to be paid by him into the Consolidated Fund.
4G Code of data matching practice
(1) The Comptroller and Auditor General must prepare, and keep under review, a code of practice with respect to data matching exercises.
(2) Regard must be had to the code in conducting and participating in any such exercise.
(3) Before preparing or altering the code, the Comptroller and Auditor General must consult the bodies mentioned in Article 4B(2), the Information Commissioner and such other bodies or persons as he thinks fit.
(4) The Comptroller and Auditor General must—
(a) send a copy of the code, and of any alterations made to the code, to the Department and the Department must lay the copy before the Assembly; and(b) from time to time publish the code as for the time being in force.
4H Powers of the Department
(1) The Department may by order amend Articles 4A to 4G—
(a) to add any purpose mentioned in paragraph (2) to the purposes for which data matching exercises may be conducted;(b) to modify the application of those Articles in relation to a purpose so added.
(2) The purposes which may be added are—
(a) to assist in the prevention and detection of crime (other than fraud);(b) to assist in the apprehension and prosecution of offenders; (c) to assist in the recovery of debt owing to public bodies.
(3) The Department may by order amend Articles 4A to 4G—
(a) to add a public body to the list of bodies in Article 4B(2);(b) to modify the application of those Articles in relation to a body so added;(c) to remove a body from that list.
(4) An order under this Article may include such incidental, consequential, supplemental or transitional provision as the Department thinks fit.
(5) An order under this Article is subject to affirmative resolution.
(6) In this Article "public body" means a body or person whose functions—
(a) are functions of a public nature; or(b) include functions of that nature,but, in the latter case, the body or person is a public body to the extent only of those functions."
In Article 6 of the Audit (Northern Ireland) Order 1987 (S.I. 1987/460 (N.I. 5)) (expenses and accounts of Northern Ireland Audit Office), in paragraph (5) after "examination" insert "or in respect of data matching"."
On Question, amendment agreed to.
My Lords, this amendment stands in the name of my noble friend Lord Glentoran, and I thank the noble Baroness, Lady Harris of Richmond, for adding her name to it. The amendment is the same as one moved in Committee. On reading the Minister's response, I am afraid that I am not entirely reassured that the concerns that we raised were unnecessary. I am still not convinced that a single designated officer will result in the Northern Ireland team being given the priority it deserves or the flexibility it needs to adapt its strategy to the unusual circumstances of the criminal community there.
However, at this stage, I would like to look more deeply at the pratical implications of the restructuring. I am deeply sceptical of change for change's sake, and I remain unconvinced of the Government's deeper motives behind this clause. There are three potential uses of an effective asset recovery agency; the first two are the most acceptable. Confiscating criminals' assets is an effective method of redistribution against criminals and acts as a means of deterring potential criminals by ensuring that neither they nor their families will enjoy the fruits of their crimes during or after any jail sentence. Of course, there is a third benefit to the Government. It provides a very useful source of income. Can the Minister confirm that the Government are not intending to use the assets that Northern Ireland asset recovery teams bring in for operations outside Northern Ireland?
I am also concerned about the cost of this restructuring. How much do the Government predict it will cost to incorporate the current agency into SOCA and how do they intend to pay those costs? How long does the Minister envisage this restructuring will take?
There are also the costs that are far more difficult to measure but are just as crucial to performance—the effect of the change on the performance and morale of the current employees. There is absolutely no demand for this change from those on the ground or from the police or anyone else involved in asset recovery in Northern Ireland. I cannot think that it is to the benefit of asset recovery to force such a change on them. I beg to move.
We need an absolute assurance that the merger of the Assets Recovery Agency and SOCA will not diminish the excellent work already done by the ARA, which was referred to in Committee. The noble Baroness gave us some reassurance but, like the noble Viscount, Lord Bridgeman, we still have some concerns. Following the Committee stage, is the Minister able to give us any indication of the numbers transferring from the Assets Recovery Agency to SOCA? I refer her to Hansard for
"The agency will dedicate at least the same level of resource in Northern Ireland as the Assets Recovery Agency currently spends, and SOCA's presence in Northern Ireland will be at least as large as the current office of the Assets Recovery Agency".—[Hansard, 27/3/07; col. 1592.]
That predisposes me to think that, if only one officer is being used for asset recovery within the new set-up, SOCA will consume what was a much larger assets recovery unit. Would the Minister be good enough to comment on that?
My Lords, I say to the noble Viscount and to the noble Baroness that I hope I can reassure them that their fears of significant change to the detriment of Northern Ireland are simply unfounded. There is common ground between us on the merits of merging the key functions of the Assets Recovery Agency with the Serious Organised Crime Agency. We are also at one on the excellent work that the Assets Recovery Agency has done in Northern Ireland, which is rightly held in very high esteem by both politicians and the general public.
The Government's clear aim is for that success and for the current level of asset recovery activity against criminals in Northern Ireland to continue after the merger. To ensure that our aim is realised and in recognition of the high profile, public confidence and notable success achieved by the Assets Recovery Agency in Northern Ireland in tackling organised crime through the recovery of assets, we have made specific provision in the Bill requiring the Serious Organised Crime Agency to appoint and designate one of its staff as a person with responsibility for the agency's assets recovery effort in Northern Ireland. We do not expect there to be significant cost relating to that merger. That is the same requirement that was imposed on the director of the Assets Recovery Agency in the Proceeds of Crime Act 2002. The 2002 Act did not require the director of the Assets Recovery Agency to set up a separate unit in Northern Ireland. Equally, we do not believe it would be appropriate to make specific provision in this Bill for such a unit to be established by SOCA. However, I am able to give a specific assurance that SOCA will have an assets recovery unit in Northern Ireland for the foreseeable future. I believe that such a commitment deals with the essence of this amendment.
The aim of SOCA is to reduce crime and harm from those who would seek to commit such crime in Northern Ireland and to seize and to confiscate the assets so obtained. That exercise cannot happen without efforts in the Province itself. There will be no reduction in the attack on organised crime in Northern Ireland through the recovery of assets. We have given assurances that the resources currently made available to the Assets Recovery Agency will be retained in Northern Ireland for the purpose of proceeds-of-crime work. There will be no change in the drive to make criminals pay for their ill gotten gains.
I want to make it absolutely clear that assets recovery work in Northern Ireland under SOCA will take account of local priorities. Assets recovery effort will continue to be aimed at local priority targets in the community who, if they were in England or Wales, might be of lesser interest to SOCA but are very important in a Northern Ireland context.
The close working relationship that the Asset Recovery Agency has established with the Irish Criminal Assets Bureau is very valuable in the pursuit of criminal assets on both sides of the border and we are committed to continuing the close co-operation when ARA and SOCA are merged. What we want to avoid is imposing on SOCA and locking it into a rigid operating model for the future of asset recovery work in Northern Ireland. This amendment limits SOCA's ability to change its structures to ensure they are as effective and efficient as possible as regards the recovery of criminal proceeds and in the light of possible future developments. For these reasons we find the amendment unhelpful and would have to resist it.
In his letter to my right honourable friend Peter Hain, the Secretary of State for Northern Ireland, the Home Secretary mentioned an action plan on assets recovery and that action plan will soon go out for consultation on how we will achieve our challenging new targets and on the new ways to transform asset recovery. I cannot give specific details at this stage but there will be a separate action plan on asset recovery for Northern Ireland and that plan will be published. All ARA staff, whether based in England or Belfast, will have the opportunity to transfer to SOCA or the National Policing Improvement Agency. Every possible opportunity will be taken to ensure that we retain the current staff and experience in ARA in Belfast. We cannot guarantee that some will not take the opportunity to leave, but it will remain business as usual. It will be a matter for the director-general of SOCA to determine how best to use his staff in Northern Ireland following the merger. No decisions have yet been taken about the exact shape of the new organisation in Northern Ireland or the total number of staff to be based in Belfast following the merger but there will be no reduction in the resource available for asset recovery work in Northern Ireland. Under the Cabinet Office statement of practice, staff will be offered appropriate opportunities in line with their competencies. All staff will be kept fully informed of the progress of the merger project and both organisations have well established mechanisms and are fully committed to engaging with trade unions regarding the merger. On the practicalities, a tripartite merger project has been set up with representatives of all three agencies to ensure smooth transition that maximises the expertise and best practice of each organisation.
I hope I have said enough to reassure the noble Viscount, Lord Bridgeman, and the noble Baroness that we have taken every step possible to make sure that the good work and fine results we have been able to secure in Northern Ireland are preserved and that there will be proper opportunity to enhance and develop the work as we would deem appropriate. I hope that the noble Lords opposite will be content with that.
My Lords, I am grateful to the noble Baroness, Lady Harris, for supporting the amendment. I am also grateful, as always, to the Minister for the very comprehensive explanations she has given us. I am reassured that there will be a continuing Northern Ireland dimension and particularly that there will be a Northern Ireland expertise still continuing in this asset recovery activity. I am also reassured once again of the co-operation there will be with the Criminal Assets Bureau in the Republic. We look forward from these Benches to seeing details of the action plan which we shall examine with critical attention. In the mean time, I beg leave to withdraw the amendment.
moved Amendment No. 119:
After Clause 75, insert the following new Clause—
"CHAPTER 4Other measures to disrupt serious crime
Power to search for firearms
If a police constable has reason to believe that a person or persons in a particular area may be carrying firearms, he may arrange—
(a) for that area to be sealed off; and(b) for the searching of any people or vehicles in that particular area for firearms, by whatever means he considers appropriate."
My Lords, Amendment No. 119 introduces a new clause to provide power to search for firearms. I note that as recently as last Monday the Minister replied to a Written Question from the noble Lord, Lord Ouseley, on gun crime and outlined a whole series of slightly wishy-washy measures. She concluded—or perhaps I should say Sir Humphrey's draft concluded—with the great words:
Oh dear, oh dear! I hope that we will be able to provide something more substantial for the Government today.
In 2005-06, there were 10,990 offences involving firearms other than airguns. In the same year, firearms were involved in 1,115 serious incidents of violence against the person, excluding homicide, and there were 46 homicides with guns. The Library has supplied a mass of press comment; from the heavy papers alone on gun crime in Britain in the past couple of months, I quote three very short extracts. The Guardian referred on
"three gun murders of teenagers in 11 days and five killings since February 3".
The Independent said that,
"it is abundantly clear to those who work in areas such as south London that the 'gun culture' remains strong—and among young men it is actually getting stronger".
"Most of the victims of gun crime to survive either do not want to make a complaint or give us information to enable us to track down their attacker. We have seen an increase in the number of teenagers involved in gun crime".
He referred to,
"the need to change the culture of young people who carry guns".
So I make no apology for reintroducing my amendment.
The purpose of the amendment is very simple: it is to help to get guns off Britain's streets, and thus to reduce gun crime, which is causing misery not just to those who tragically get caught up in it but to the far greater number whose anxiety has been growing over recent years. Whether they are right or wrong, they perceive themselves as vulnerable. The amendment would give the police a simple and over-riding power which would enable them to make it far more risky for anyone to carry an illegal firearm. Ideally, I would like to make it as risky as it would be for any member of the public who decided to take a gun on an aeroplane from one of Britain's airports, but that, I fear, we will never achieve. Frankly, no gun-carrying mobster or terrorist would ever risk trying to travel by air with a firearm, but the risk of carrying guns in the streets in Britain today is far too small.
Under the amendment, the police would have the power, as and when they felt it appropriate, to check anyone, in any area, for firearms. Obviously, modern technology makes this far more rapid and effective than it used to be. The primary instrument is the metal detector, in all its many and sophisticated forms. It enables the rapid scanning of large numbers of people in a non-discriminatory way; it is unlike searching for drugs, which is slow, intrusive and involves selecting individuals under the existing stop-and-search powers which, as we know, can cause resentment and problems with community relations.
With metal detectors, you can scan extremely fast, either by putting up a temporary arch, as we know so well, or using hand-held machines. If I am asked to take my keys out of my pocket and the metal detector is used again, it will confirm that I have no gun and I can go through. It happens very fast.
I know that the Minister is normally briefed by the Home Office to say that the police neither need nor want these powers. That is not what I have found. I am particularly glad to have had an invitation from the noble Lord, Lord Graham of Edmonton, to attend last Monday the graduation dinner of the police service parliamentary scheme in the Cholmondeley Room, when I was able to discuss the amendment with a number of very senior police officers. All those with whom I discussed it welcome the prospect of such a power. I particularly noted the enthusiasm of Assistant Commissioner Tariq Ghaffur of the Metropolitan Police, who has particular responsibility for safety on London streets.
I believe that the people of Britain will welcome the knowledge that the police have this new power, just as most of us are glad that the use of modern technology has made our airports safer—and, indeed, the Palace of Westminster has been made much more secure. Those who will be most grateful will be those who live in areas in which the gun culture is strongest, who depend on the police to keep their lives secure. I previously tabled this amendment to other Bills—the Violent Crime Reduction Bill in May last year and the Police and Justice Bill last October. Each time, the Home Office resisted it. I am tempted to say, "Well, it would, wouldn't it?".
The Minister has said and perhaps will say again that there are already many different powers of search. I know there are—I am sure there are. However, as I pointed out on
My Lords, I strongly support my noble friend's amendment, to which I have added my name. He is right to bring this matter before the House again and I hope that it may be resolved in his favour tonight. Illegal use of guns on some of our streets brings injury to some and misery to many; it is the scourge of the generation, in some areas. The considerable merit of my noble friend's amendment is the simplicity of the description of the powers that he seeks to confer on the police. I am aware, of course, that powers already exist that enable the police in certain circumstances to search people, but they are to be extracted from a myriad of legislative instruments.
After a spate of shootings in London earlier this year, the Prime Minister called together a gun summit in February. He brought together Ministers, police chiefs and community leaders for crisis talks on what he perceived himself as a growing problem. The media were told that there would be a review of gun laws to establish increased sentences for young offenders with penalties for being gang members. What has happened to that review?
It was reported that at the summit Ministers were given clear warnings from senior officers who said that many shootings involved the same highly mobile criminals using the same stock of constantly circulating weapons. After the murder of one victim—Billy Cox, aged 15, shot dead in his bedroom—Cressida Dick, the Met's Deputy Commissioner, said that London offenders were now being caught in cities across the UK, either trying to take over the drugs markets or carrying out enforcement for local drugs barons. She said:
"We are dealing with greater mobility of the more serious and entrenched offenders. We are seeing firearms being used in several different crimes, and sometimes by different offenders. It is simple to hire a firearm for the night, give it back, and not be associated with it".
It is important to take strong and effective measures against the illegal use of guns. If the Government want to give a clear message about their commitment to reduce the level of gun crime, they should accept my noble friend's amendment tonight.
My Lords, I am delighted to support this amendment. I have done so on three previous occasions—and one thing you can say about the noble Lord, Lord Marlesford, is that he has been consistent in his approach to gun crime. The Minister has said repeatedly that the Government have ample powers to deal with gun crime, yet the evidence is there before us to see that despite those powers gun crime is on the increase, too many innocent lives are lost and, more disturbingly, more and more young people, some of them children, carry or use guns.
The noble Lord, Lord Marlesford, was good enough to provide statistics. Gun crime has grown at an alarming rate in this country and has, overall, doubled since 1997. Crimes involving imitation firearms have quadrupled. The vast majority of people who legally own guns use them responsibly. The aim of further changes to the law must be to tackle the threat from weapons that are held or used illegally. Gun crime is a complex problem and tackling it requires a holistic approach. We need to use intelligence-led policing to attack the organised criminal gangs responsible for many of the shootings in some of our urban areas. To achieve better conviction rates, we need to encourage more people to come forward by improving the protection offered to vulnerable witnesses. It is also important that the Government support community groups that work with young people who are at risk of becoming involved in drugs and gun crime.
We hope that the amendment will go some way in sending a signal that more needs to be done to tackle this problem and that the Government are not afraid to enact legislation of this nature. I am delighted, therefore, to support the amendment.
My Lords, like the noble Baroness, Lady Anelay, and the noble Lord, Lord Dholakia, I am happy to lend the strongest support that I can to the amendment of the noble Lord, Lord Marlesford. It has the benefit of being simple, clear and entirely understandable, given the increasing problem of gun crime on our streets.
It was interesting that the noble Lord, Lord Marlesford, mentioned the support that he received from senior police officers when he spoke with them. I have also spoken on this matter to serving police officers, who find it extraordinary that there has not been universal support for this measure and that it has not been introduced previously. One of them who served with me in Northern Ireland said that, in fact, there are more guns in this country than we were looking for in Belfast, when we had every available measure, such as metal detection and other methods, to help us and the police in searching for such weapons.
I admit that it is extraordinary, given the level of this crime and the Government's keenness to act on many aspects of crime, that there is a sort of dilatoriness in dealing with gun crime, In addition to admiring the persistence of the noble Lord, Lord Marlesford, in pursuing this issue, I point out that he has pursued the issue of a register of firearms; 11 years after Dunblane, one has still not been established. Extreme urgency seems to be attached to some other measures. I wish that the same urgency was put to the firearms issue, which is causing increasing concern among the people who suffer most.
Last year, I went to a club in Moss Side, Manchester. There had been 15 or so murders around the club over the previous five years, all of which involved the use of firearms. I talked to a group of young people from a radio club called "Unity Radio" which was operated to provide these young people with information from the area. The question that came up over and over again was, "Why can we not do more to rid this area of the guns that make our lives here such a misery?". We have here an opportunity to put in the police's hands something that would do that and which would therefore do so much for our people who are suffering from this problem.
My Lords, I add my voice to those who support the amendment. We live in a violent society. We have daily, or certainly weekly, reminders of the terrible use of violence to kill or wound people. The use of knives is one method, and brute force is another. People are dragged to the ground by a gang and kicked to death. Guns are a frequent method of inflicting death. That violence involves, among other things, rival gangs.
This House should be looking at ways to make the country safer. Today we are looking at firearms. We have a simple proposal to give the police the power to search people or vehicles for firearms. This is not indiscriminate stopping, there has to be a genuine belief. The amendment of the noble Lord, Lord Marlesford, is founded on the proposition that a police constable or officer believes that firearms are being carried by a person or are in a vehicle. We are not dealing with something random. We are dealing with very serious crime. I hope the Minister, when she puts forward the Government's answer, will not resist it on technical grounds based on the language because the amendment could be redrafted in various minute respects and perhaps made easier to apply. One might have expected the amendment to be embraced warmly at an earlier stage of the Bill. Tonight we want to test the principle of whether this House is in favour of giving the police a simple method of trying to catch those who are carrying guns and to cut crime.
My Lords, it is pretty trite doctrine that the best deterrent is the likelihood of being caught. As has been brought out in this short debate, we are facing a year-on-year increase of the gun culture. It is partly due to the complexities of the law surrounding the undoubted powers of the police to search for guns. The laws are proving less than satisfactory because they are so complex and, as we heard, because police officers are unwilling or at any rate reluctant to get involved in them.
The Government have been charged with being dilatory by the noble Lord, Lord Ramsbotham—a less charitable word would be "obstinate"—and taking refuge in the fact that there are many ample powers, as Ministers have said, to deal with guns. I think that my noble friend Lord Marlesford's proposal has this very strong beneficial effect: it is simple. Presentationally, it will be known in the circles where guns are carried that the police now have the power to seal off an area and search everybody and that you are more likely to be caught. That is the essence of the proposal's virtue. I hope the Government will cease to be dilatory and say, "Yes, let's give it a try".
My Lords, as the only representative of the blue line present in your Lordships' House today I would like to support the amendment of the noble Lord, Lord Marlesford. Successive Governments have regulated the legal use of firearms to the point where many believe that the legal owner is over-regulated. Yet society as a whole has steadily lost control of the illegal carrying and use of firearms, particularly over the past four or five years. The growth is obvious. I will not weary the House with the figures because they are a matter of record. Guns are carried as a fashion accessory, as many of us know. They are carried illegally to further a turf war, often driven by the drugs trade.
One of the more worrying factors about the current growth of illegal firearms is the quite awesome power of the weapons concerned. The low-velocity revolvers and sawn-off shotguns of the old days, highly dangerous though those two weapons were and are, nowadays have far been surpassed by the growth of weapons used by criminal gangs. They include military weapons or weapons that use Parabellum ammunition, very high-velocity projectiles and often fully jacketed bullets, and often they are fully automatic weapons with a staggering rate of fire. Young people—they often are young—are in possession of those sorts of weapons, so a largely unarmed police force is facing a highly dangerous situation on the streets.
In passing, it is worth noting that the majority of patrolling officers know that they could very well meet someone with that sort of weapon in their possession who has a desire to use it in order to evade arrest, and those officers are continuing to patrol our streets. An amendment such as that proposed by the noble Lord, Lord Marlesford, has my full support. It would give incredible courage and support to an overstretched police force; it would help to make our streets safer; and it would help to drive crime down.
My Lords, when the noble Baroness responds on this amendment, I should be grateful if she could bring us up to date on the matter of the register. My noble friend Lord Marlesford has been raising this point for so long that I am beginning to wonder whether the Government have some sort of policy hang-up in this area. It is not possible to think of any good reason why this matter is still in limbo, so I ask myself whether there is a bad reason for it. If there is a bad reason, which I would define as a lack of commitment on this whole area of policy, perhaps we should know about it. The register is not the subject of the amendment, but the whole response of the Government on gun crime seems to be a little gently paced and I think that we need to see things moving rather more rapidly.
My Lords, we have heard speeches from the noble Lords, Lord Ramsbotham and Lord Dear, and from my noble and learned friend Lord Mayhew and my noble friend Lord Marlesford. The noble Lord, Lord Dear, made the very important point that those who own guns legally are over-regulated and those who own them illegally are not caught. This House is supposed to be a House of experts and clever people. The Government have now been given polite advice by experts and clever people and they should accept it.
My Lords, I have spoken on this subject in the past and have made a few unfavourable remarks not only about the Government of today but about the previous Government. As the noble Earl said, loyal and legal citizens have been penalised and yet criminals are walking the streets and carrying guns with complete impunity. I do not feel that the Government are in control. I echo the words of the noble Lord who said that there seems to be nervousness in this area, but perhaps we can keep it under the carpet, so to speak.
I also have very much in mind the police officers, who have a myriad of possibilities regarding what they can and cannot do but nothing very simple. Here is a simple directive which supports the police officer on the beat and elsewhere. I say again that the Government are not in control at the moment. They should show much more perseverance in removing guns from the streets of our country.
My Lords, I want to reiterate what my noble and learned friend Lord Mayhew said about this amendment. It has a particular merit which perhaps we have not seen in many previous attempts to legislate.
If you are a young man who carries a gun for the sort of reason referred to by the noble Lord, Lord Dear—as a fashion accessory or just as a statement of what a great man you are—and if you know as you walk about the street at any given moment the police might seal that bit of the street off, search everybody and find the gun, that would be a real disincentive. It is the kind of thing that a casual carrier of a gun would understand. The news about that would get around, so the amendment has a particular merit.
As I read the Bill, the amendment would apply to Scotland. I talked to one or two people because the noble Lord is my noble kinsman, and I was especially interested in discovering whether it would go down well in Scotland. It was thought that its simplicity and the fact that young people would understand it would go down very well indeed. As noble Lords will realise, ever since Dunblane, this subject has been much discussed in Scotland. I enthusiastically support my noble kinsman.
My Lords, I join others who have commended the noble Lord, Lord Marlesford, on his persistence. As he said, this is the third opportunity he has given me to respond. I have to say that my response will be similar in nature to the responses that I have had the joy of giving him in the past. Rarely are such compliments showered on the Home Office—dilatory, obstinate, stubborn. Some more flavoursome adjectives doubtless could come my way. I would rather say that we are being proportionate and reasoned.
I agree with all those who have highlighted the pernicious nature of gun crime, but we have dealt with this matter with a great deal of vigour and energy. We are reminded once again by the recent tragic shooting incidents in London and Manchester that we still have a way to go to win the fight against gun crime. The Prime Minister acknowledged that at his summit on guns and gangs on
Nevertheless, we have already put in place substantial legislation to support the fight to drive down gun crime. For example, there is the five-year minimum sentence for those adults convicted of unlawful possession of a prohibited firearm and the new offence of using someone to mind a weapon, which came into force on
Of course, this is not the first outing for this amendment, and I make no apology for restating the other reasons it cannot be accepted, which have not changed. Legislation is already in place, providing a range of enforcement powers to the police under Section 47 of the Firearms Act 1968. For example, in the circumstances specified in this legislation, a constable can require a firearm or ammunition to be handed over for examination. The person can be searched and detained for the purpose of the search. If a vehicle is involved, it may be searched and the person driving it or in control of it can be required to stop it. Furthermore, for the purpose of exercising these powers, a constable may enter any place.
The Government are absolutely clear that they are fully committed to tackling gun crime. We are also committed to ensuring that the police have sufficient and proportionate powers to help make communities safe. The existing legislation helps meet those objectives, and no purpose would be served by duplicating the powers already available under existing legislation.
My Lords, the police have powers to close off areas. As a result of the anti-social behaviour legislation and other Bills that we have put through, we have now got a power that enables the local authority and the police to designate an area for a particular purpose, if they believe that is necessary. We have to look at whether this power is proportionate, because proportionality has featured high. I notice the noble Baroness, Lady Anelay, smiling, if not laughing.
My Lords, I would not normally interrupt. The Minister has misconstrued my remarks. She has just argued that there are ways of designating areas. I was remarking to my colleague that designation cannot take place on the spot. My noble friend's amendment gives immediate recourse to the police to carry out a search where they have reason to believe that firearms are being carried. I would never laugh about that. I was merely smiling at the Minister trying to get out of a very deep hole that the Government have dug for themselves.
My Lords, I thank the noble Baroness for suggesting that. However, the powers that I have just identified enable the police to take appropriate action in every case where they fear that there is a gun or there may be reason to look for it, as I have indicated, both in the car and on the person. Therefore, this power is unnecessary.
Let us just look at what the noble Baroness says in relation to the existing police power. It is clear that if the existing power is too complex one would have to look at whether it could be simplified. On searches, the law is clear, straightforward and for once, simple. The police are familiar with the legal provision setting out the extent of their powers. The existing power to search is not overcomplicated. The police are content that it works in practice and they use and have used this power for many years. Although firearms legislation might be complicated in other areas, it is not in relation to the existing power to search.
Taking up what the noble Lord, Lord Dear, said about the police position and other comments about contact with the police, he will be familiar with the way in which ACPO works. The fact that it chooses the police officers who will be entrusted to lead on its behalf in the force's response to activities and initiatives and come to a concerted position on the propriety of making representations and how they would be put through.
The noble Lord will know that it remains the view of both the ACPO lead on the criminal use of firearms, Chief Constable Keith Bristow of Warwickshire and the Stop and Search lead, Deputy Chief Constable Craig Mackey of Gloucestershire, that the following is the force's expressed position:
"a) there are sufficient powers already in existence to detain and search; b) the amendment as drafted would create a wide extension of police powers; c) the power has not been requested by the police, nor do they identify a gap in current legislation that requires such new powers".
That is the ACPO position, expressed on behalf of the police force. In making these consultations, it is only right and proper that we go to ACPO, ask the police what its view is and then listen to it. That is its informed, current view of those who are responsible for carrying out these duties on a day-to-day basis now, as opposed to what may have been or will be their position. We take those views very seriously indeed. There is therefore a concern which has been dealt with. If other measures are necessary, we will come back to the House to ask for further support. The review that was mentioned is ongoing. The first meeting of a working group including community members will be held on
Of course we understand the great need to get this right, which is why a great deal of time and attention is being attached to it. The National Firearms Licensing Management System has now been rolled out to all 43 forces in England and Wales. The final data-cleansing work to connect the system to the PNC is under way. We have come a long way. I absolutely agree with those who say that it has taken a long time compared to the National Firearms Licensing Management System. That is wide of the amendment, and I am happy to give that indication, but these amendments on Report are about whether we need further legislation. All the indications are that we do not. I therefore invite the noble Lord not to press his amendment, although I am confident that he will.
My Lords, I thank the noble Baroness for her reply. I particularly thank noble Lords on all sides of the House for their interest in and support for the amendment.
I was particularly unconvinced when the Minister referred to the ACPO view. It happens that, when I first started to do this some months ago, I spoke to that bit of ACPO—in Worcestershire, I think. I spoke not to the Chief Constable, but to his chief staff officer. We discussed my amendment, and he said how sensible it was. We all know that the Home Office still has quite a lot of influence in its remaining days. No doubt Sir Humphrey was able to produce a rather good reply which the noble Baroness could read out. Frankly, however, I prefer to take the view of the noble Lords, Lord Dear and Lord Ramsbotham, and my own experience speaking to chief officers of police only last Monday. They gave a totally different view from that which the Home Office chooses to interpret as being the police's view. I therefore wish to test the opinion of the House.
moved Amendment No. 120:
Schedule 11, page 98, line 40, at end insert—
"In section 5 (interception with a warrant) after subsection (3) insert—
"(3A) Paragraphs (a) and (c) of subsection (3) shall not apply to an application for a warrant made by Her Majesty's Revenue and Customs.""
My Lords, I shall speak also to Amendment No. 121. In Committee I moved several amendments concerning the new powers that the Bill gives Her Majesty's Revenue and Customs. I was grateful for the fullness of the Minister's answer then and the comprehensive letter that I received late last week, following up the points that she made. The noble Baroness will see that I have retabled amendments on only one of the topics that I raised in Committee, in a form that I hope addresses some of the technical points that she made.
The amendments concern the powers in the Regulation of Investigatory Powers Act 2000 to allow HMRC to obtain an intercept warrant, under Section 5, and to carry out intrusive surveillance, under Section 32. The powers are available to use for preventing or detecting serious crime as defined by that Act. Amendments Nos. 120 and 121 do not disturb the effect of Schedule 11 to the Bill, which is to extend the use of those powers to all HMRC activities.
My amendment would confine the use of the powers to the prevention and detection of serious crime, hence removing the possibility that HMRC might use them in other circumstances by relying on one of the other purposes for which they may be used under the Act. The two other purposes are the interests of national security and safeguarding the economic well-being of the United Kingdom.
In Committee, the Minister said that HMRC, which can currently use the powers for just its former Customs and Excise functions, only ever applied for the use of the powers to prevent or detect serious crime. She said:
"HMRC does not apply to use the powers for national security purposes or to protect the economic well-being of the United Kingdom as HMRC's functions do not include those purposes and an application would be inappropriate and no doubt unsuccessful".—[Hansard, 27/3/07; col. 1615.]
The functions of HMRC are somewhat illusive. The Commissioners for Revenue and Customs Act 2005 basically says that the functions are to collect and manage taxes and that HMRC has all the functions that the former Inland Revenue and Customs and Excise had. We never managed to get a full list of those functions when we debated that Bill in 2005. HMRC's website does not take one much further. It summarises what HMRC does by saying:
"We are here to ensure that the correct tax is paid at the right time".
In Committee, I sought to argue that since the collection of taxes is a crucial part of the economics of government it was not difficult to see an argument that pursuing tax assessment and collection could be to protect our economic well-being. When pursuing taxes which are being evaded through serious crime, no issue arises. But I pose the question of the pursuit of tax avoidance—a wholly legal activity which involves no crime whatever. However, tax avoidance reduces the tax take, sometimes very significantly, and has the potential to harm the economic well-being of our country.
The Minister's argument was that safeguarding the economic well-being of the UK relates to activity that is similar to the security of the state and was, hence, not available to HMRC. The Minister said that the powers could not therefore be used for tax avoidance. I put it to the Minister that the Act does not place this restriction on the use of the economic well-being powers.
I fully accept that the Minister does not believe that HMRC should use the powers other than in the context of serious crime and should not use them for tax avoidance. But I hope she will see that there is some ambiguity in the statute and that it would be better to remove that ambiguity in order to protect future generations.
In her letter to me of
The Minister will know that my amendments would in no way affect the RIPA powers for any of the other agencies who might need to use them: we have no desire to do that. My amendments are modest, relate only to HMRC and would simply ensure that what the Government think should happen will in fact do so. I beg to move.
My Lords, I am afraid that I must resist these amendments to the Bill, but I hope that in so doing I will be able to persuade the noble Baroness that her concern about the issue is not as well founded as she may fear. The amendments would place restrictions so that HMRC cannot apply to intercept communications, or authorise intrusive surveillance, in the interests of national security or for the purpose of safeguarding the economic well-being of the United Kingdom.
As the noble Baroness knows, under the Regulation of Investigatory Powers Act 2000, intercepting communications and intrusive surveillance are subject to stringent safeguards and controls and are possible only where necessary to prevent or detect serious crime, in the interests of national security or for the purpose of safeguarding the economic well-being of the United Kingdom. I am grateful to her for highlighting her understanding of that and setting out what we debated on the last occasion. However, national security and the economic well-being of the UK are mentioned in the Act as these powers are available to a number of law enforcement and security agencies, some of which may need to use the powers for those purposes. I understand that she is saying "I'm not talking about them, I am just looking at HMRC". Her Majesty's Revenue and Customs applies to use these powers only for the purpose of preventing or detecting serious crime, not in the interests of national security or for the purposes of safeguarding the economic well-being of the United Kingdom. I was trying to make a distinction about the different roles that the different bodies would seek to take in applying those powers.
Safeguarding the economic well-being and national security are not part of the statutory functions of that department and noble Lords may know that it is unlawful for an agency to act outside its statutory functions, so an application would be both inappropriate and unsuccessful. In particular, the purpose of protecting the economic well-being of the UK is concerned with matters relating to national security and this was discussed when the Regulation of Investigatory Powers Act 2000 was debated. The link between national security and the economic well-being of the United Kingdom is also recognised and reinforced by the code of practice on the interception of communications. As the noble Baroness has identified, that code of practice states that the Secretary of State will not issue an interception warrant unless a direct link between the economic well-being of the United Kingdom and national security is established.
In addition, the Regulation of Investigatory Powers Act ensures that an authority to intercept communications can be granted as necessary only in the interests of the economic well-being of the United Kingdom where the information which it is thought necessary to obtain relates to the acts or intentions of persons outside the British Isles. That is set out at Section 5(5) of RIPA.
Amendment No. 121 may also have drafting errors. It would insert new subsection (3A) into Section 32 of RIPA, but there is already a subsection (3A) that was inserted by the Enterprise Act 2002. If it gives comfort to the noble Baroness, I am always grateful for having officials who will trawl through the minutiae to stop me entering into error and I understand the noble Baroness's acuity in looking at these issues and that she may not necessarily have the number of people to support her in that regard. In addition, the amendment refers to paragraph (m) of subsection (5) of that Section, but that paragraph does not exist so the legislation would become difficult to interpret and operate. The amendment is possibly intended to refer to paragraph (m) of subsection (6) of Section 32 of RIPA.
Amendments Nos. 120 and 121 are unnecessary as Her Majesty's Revenue and Customs can apply to use these powers only for the purpose of preventing or detecting serious crime and not for protecting the economic well-being of the UK or in the interests of national security. I therefore assure the noble Baroness and the House that the situation will not be altered by Schedule 11.
In addition, the amendments would complicate what is already complex legislation and could make it more difficult to interpret and apply. For these reasons, I must resist them.
The noble Baroness was in essence asking how we can be sure that HMRC officers will use these powers appropriately and will not misuse them. The training provided to HMRC staff who are investigating serious tax crime, and the stringent safeguards and procedures that come with these powers, will ensure that they are used appropriately. The procedures ensure that any possible use of one of these powers is subject to strict internal scrutiny before an application can even be made for their use. The powers are used only where other methods of investigation have failed or would clearly not succeed in obtaining the evidence or intelligence being sought. Many of the powers require independent external authorisation before they can be used; for example, a warrant must be obtained from the Secretary of State before communications can be intercepted. The use of all these powers is also subject to regular, independent external inspection to ensure that officers use them appropriately. We have spoken in the past about the procedures that we have followed in authorising interceptions. Therefore, I hope that the noble Baroness will see that, although I share her concern about getting this right and I understand her fear of the possibility of one issue bleeding into the other in a way that we would both regard as wrong, we have structured the Bill in a realistic way which prevents that happening. Having given the noble Baroness that assurance, I hope that she will feel able to withdraw her amendments.
My Lords, the Minister will be aware that the three ways of using the power are set out separately in the Act under Section 5 and Section 32. There is no interdependence between them. The Act does not state that the economic well-being should be read in the light of the security of the nation.
There is a code of practice relating to Section 5 which makes that explicit link, but there is also a code of practice covering surveillance. That does not make the link; it makes no mention of it whatever. The natural interpretation would therefore remain. Will the Minister comment on that?
My Lords, that is not necessarily so, because one of the difficult aspects of putting this legislation together is that various agencies will be responsible for different areas of activity commensurate with their own limitations. When one reads the legislation, one must look at the purpose which is likely to be addressed by this agency—that is, HMRC—what its function is and, therefore, how it will be used. One then looks at the codes of practice which apply quite directly to each.
I am happy to look again at whether the code of practice needs to be refined. I do not believe that the codes as they are currently structured need such definition, but I am happy to write to the noble Baroness if, on mature reflection, we reach the view that something may need to be changed. I do not believe that that will be necessary, but I am happy to see whether my assumption is correct.
My Lords, I am grateful to the Minister for saying that she will look again at the codes of practice. That is helpful. In her usual way, she has pointed out the technical deficiencies of one of my two amendments and for that reason, I shall withdraw it today. I shall carefully read her remarks on the way in which HMRC's powers can be used. I do not believe that it is clear beyond peradventure that HMRC could not be said to be protecting the economic well-being of the country by the way in which it prosecutes its activities in collecting and managing the tax system. I shall carefully read what she has said at the Dispatch Box to see whether it constitutes sufficient assurance for those who may come to use these powers in the future and who may look back at what she has said. In the mean time, I beg leave to withdraw the amendment.
moved Amendment No. 122:
After Schedule 11, insert the following new Schedule—
Admissibility of intercept and metering evidence
(a) the contents of an intercepted communication ("intercept evidence"), and(b) communications data ("metering evidence"), shall be admissible in criminal proceedings to which this paragraph applies.
(2) This paragraph applies to—
(a) proceedings in respect of serious crime;(b) proceedings in respect of an offence or offences relating to terrorism.
(3) An application for permission to introduce intercept evidence or metering evidence, or both, may be made by the prosecution for the purpose of conducting a criminal prosecution to which this paragraph applies, and not otherwise.
(4) Unless and until an application has been made by the prosecution in any such proceedings the provisions of section 17 of RIPA (exclusion of matters from legal proceedings) shall continue to apply in connection with those proceedings.
Considerations for allowing intercept or metering evidence
2 In deciding whether to admit intercept or metering evidence the court shall take account of all relevant considerations, including in particular—
(a) any application by the Secretary of State to withhold the evidence or part of the evidence on the ground that its disclosure, or the disclosure of facts relating to the obtaining of the evidence, would be contrary to the public interest, and(b) any submission that the evidence was obtained unlawfully.
3 In this Schedule—
"communications data" has the same meaning as in section 21(4) of RIPA;
"intercepted communication" has the same meaning as in section 4 of RIPA;
"RIPA" means the Regulation of Investigatory Powers Act 2000 (c. 23);
"serious crime" has the same meaning as in section 81(2)(b) of RIPA;
"terrorism" has the same meaning as in the Terrorism Act 2000 (c. 11).
Minor and consequential amendments
4 (1) In section 5(3)(b) of RIPA, for the words "or detecting" substitute ", detecting or prosecuting".
My Lords, we debated this amendment with Amendment No. 21, on which the House divided last Wednesday. I beg to move.
On Question, amendment agreed to.
Clause 76 [Orders of the Secretary of State and the Scottish Ministers]:
[Amendments Nos. 123 to 126 not moved.]
Clause 77 [Supplementary, incidental and consequential provision]:
[Amendment No. 127 not moved.]
Clause 78 [Transitional and transitory provisions and savings]:
[Amendment No. 128 not moved.]
Schedule 12 [Transitional and transitory provisions and savings]:
moved Amendment No. 129:
Schedule 12, page 103, line 6, leave out from "in" to end of line 8 and insert "each of the following provisions is to be read as a reference to 6 months—
(a) section 32D(8)(b) of the Audit Commission Act 1998 (c. 18) (as inserted by paragraph 2 of Schedule 6 to this Act);(b) section 64D(8)(b) of the Public Audit (Wales) Act 2004 (c. 23) (as inserted by paragraph 4 of that Schedule)."
On Question, amendment agreed to.
Schedule 13 [Repeals and revocations]:
moved Amendments Nos. 130 to 132:
Schedule 13, page 103, line 19, at end insert—
|"Magistrates' Courts Act 1980 (c. 43)||Section 32(1)(b).|
|In Schedule 1, paragraph 35."|
Schedule 13, page 103, line 27, at end insert—
|"Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26))||Article 60(1)."|
Schedule 13, page 103, line 34, at end insert—
|"Public Order Act 1986 (c. 64)||In section 12(10), the words from "notwithstanding" to the end.|
|In section 13(13), the words from "notwithstanding" to the end.|
|In section 14(10), the words from "notwithstanding" to the end.|
|In section 14B(7), the words from "notwithstanding" to the end.|
On Question, amendments agreed to.
My Lords, Amendment No. 133 repeals a provision in the Wireless Telegraphy Act 2006 but amends a provision in the Commissioners for Revenue and Customs Act 2005. The Serious Crime Bill will repeal that provision in the Commissioners for Revenue and Customs Act 2005 as a result of the changes being made to the HMRC provisions in the Bill. As a result, that provision in the Wireless Telegraphy Act 2006 is, of course, no longer necessary. These are minor and technical amendments. I beg to move.
moved Amendments Nos. 134 to 138:
Clause 80, page 43, line 15, leave out paragraphs (a) and (b) and insert—
"(a) section 70(1) and (2); and(b) Parts 1 and 2 of Schedule 6 and section 65 so far as relating to those Parts."
Clause 80, page 43, line 22, leave out "section 55" and insert "sections (Amendments relating to service law) and 55, Schedule (Amendments relating to service law)"
Clause 80, page 43, line 33, leave out subsection (4) and insert—
"(4) The following provisions extend to Northern Ireland only—
(a) section 70(3) and (4); and(b) Part 3 of Schedule 6 and section 65 so far as relating to that Part."
Clause 80, page 43, line 34, leave out subsection (5) and insert—
(a) it does not extend to Scotland; and(b) paragraph 41A of Schedule 5 does not extend to Northern Ireland."
Clause 80, page 43, line 38, after "Schedule" insert "(Amendments relating to service law),"
On Question, amendments agreed to.
Clause 81 [Commencement]:
[Amendments Nos. 139 and 140 not moved.]