Read a third time.
Clause 10 [Code of Practice for National Statistics]:
moved Amendment No. 1:
1: Clause 10, page 5, line 20, after “for” insert “Official”
The noble Lord said: My Lords, the purpose of the amendment and the others grouped with it is to clear up a muddle from the Report stage last week. We wish to make it clear that the proposed code of practice, together with all the related duties, processes and procedures to be observed by the board and by Ministers, applies directly only to official statistics and not to statistics produced by other bodies such as public companies, universities or charities.
I remind noble Lords that official statistics, as they will be defined under Clause 9, cover the whole range of government statistics, whether produced centrally by the ONS or by the much wider range of government bodies, including departments, agencies, devolved Administrations and any other people acting on behalf of the Crown. Within that wide range, there is a narrower subset of so-called national statistics, which the Minister helpfully described last week as,
“the key statistics that the Government, business and the public rely on to provide an accurate, up-to-date, comprehensive and meaningful description of the UK”.—[Official Report, 18/6/07; col. 36.]
As the Bill arrived in this House from another place, the code of practice was expressly applied only to this narrower subset of national statistics.
On Second Reading and in Committee, it was forcefully argued from these Benches, from the Liberal Democrat Benches and from the Cross Benches that that made no sense and that the code should apply to all official statistics. Wisely, Ministers accepted that advice and on Report, the noble Lord, Lord Davies of Oldham, tabled a series of amendments to leave out the word “national” in references to the code so that, for instance, Clause 10(1), to which my first amendment applies, now reads,
“a code of practice for statistics”.
Of course, that covers all official statistics and so meets the substance of the arguments that we addressed to the Government.
However, that immediately opened up a further argument, which was succinctly put by my noble friend Lady Noakes last Monday. She said:
“Will the Minister explain the subtlety of saying that it is a code for statistics? Is it intended to apply to statistics prepared by voluntary or commercial organisations and, if so, how does that fit in with the Bill? Essentially, the Bill deals with statistics produced by government, which is why we used the Government's own definition of ‘official statistics’ in renaming the code”—[Official Report, 18/6/07, col. 39.]
The Minister chose not to respond to that until right at the end of his reply to the debate, when he was prompted again by my noble friend. She said:
“My Lords, before the noble Lord sits down”—
one is familiar with that formula—
“several of us have raised the question of why the code is now the code for statistics, not the code for official statistics. A definition of official statistics is clearly laid out in the Bill. National statistics are in effect a subset of that, but the Government have chosen to say that this is a code for statistics, which implies that it goes beyond official statistics”.
It is worth reading in full the extraordinary exchanges that followed that question. The noble Lord, Lord Davies of Oldham, said:
“My Lords, the intention is that the code should apply as widely as possible within the framework of the board's competence. I have said that our crucial distinction is between national and official statistics, but the board will identify clear criteria for a code that all to obtain with certain other statistics which may not be official but nevertheless may be of significance to the public realm”.
A moment later, the noble Lord, Lord Newby, intervened and said:
“My Lords, before the noble Lord sits down, I am slightly mystified. I did not think that the board had any role beyond what is defined in the Bill as official statistics. What kind of body other than those covered by the definition of official statistics would the board have any jurisdiction over or seek to take a particular interest in?”.
The noble Lord, Lord Davies, answered:
“My Lords, the issue of national statistics—official statistics which are largely the statistics of governmental bodies”.
I must say that I am not quite sure that I followed that sentence. He continued:
“We can see no reason why certain non-governmental organisations that produce statistics for the public realm should not seek to hit the standards that the code will embody. Of course, the board will not have control over them, but it will be issuing a code which others will observe if they want credibility in public life”.—[Official Report, 18/6/07; col. 45.]
That was the very first intimation throughout the entire progress of the Bill—we are now on Third Reading in the second House—that the code is intended by Ministers to apply to bodies beyond those that produce official statistics. The words that the Minister used seemed to recognise that that will be outside the remit of what will be the Statistics Board. Where does that leave us?
Since that extraordinary debate, I have sought advice from a number of quarters. The reaction of the Statistics Commission—I have been in touch with a senior man, Richard Alldritt—was quite clear. He replied to me:
“The Government is in a tangle on this”.
You can say that again.
“On the one hand it wants the Code to be seen as applying very widely; hence Lord Davies’s comments about ‘certain non-governmental organisations that produce statistics’ But, on the other hand, the Board’s responsibilities extend only to official statistics, as defined in [the] Bill and the code is only binding on producers of National Statistics. The Code that we want to see adopted”—
I remind the House that the Statistics Commission has produced a draft code—
“would not be suitable for ‘unofficial statistics’ if that is taken to mean, for example, the published results of surveys conducted door to door for a retailer—we would not expect those to be done to the same standards as government household surveys and, in any case, it is no business of the Board’s how they are done”.
He went on to suggest that the right answer was,
“to label the Code as the ‘Code of Practice for Official Statistics’”.
That is exactly the amendment that we have tabled. There was a similar response from the RSS—the Royal Statistical Society, whose president, Tim Holt, replied:
“The only thing the Board has competence for is Official Statistics. It may argue that in general terms the spirit of the Code should be adopted by non-governmental producers but it could have done that using a Code for Official Statistics—it has no wider jurisdiction”.
From the professional side, there was a clear reply, and I shall return in a few moments to the suggestion about the spirit of the code.
I also consulted a number of organisations outside government—one major commercial company and one university institute. Earlier this month I attended a presentation by BP of its formidable annual Statistical Review of World Energy 2007. It covers a vast range of energy statistics, and was presented on that occasion by BP’s chief economist, Peter Davies, and his nominated successor, Christof Rühl. When I asked for their reaction to the Minister’s statement, their response was:
“While we have absolute confidence in the impartiality and accuracy of BP’s Statistical Review, we cannot say at this stage with any certainty whether such a code as proposed by the Bill would cause legal or other reasons for us to hesitate publishing this or any other publication of a statistical nature. Such publications are intended to facilitate knowledge of energy statistics in a convenient and easily accessible fashion. But they are secondary statistics compiled from other official sources and it is unclear whether such a Code would oblige us to assume a greater responsibility for the veracity of the statistics than is currently the case. We will now need to consider the legislation and code very seriously, both during its passage through Parliament and should it be enacted”.
BP is right to be concerned. More worryingly, there is no evidence that it or any other commercial company was consulted on the proposal. Indeed, there seems to have been no consultation whatever, so my first question to the Minister is: what consultations have there been on his suggestion that the code should, as I said earlier, apply as widely as possible to certain non-governmental organisations that produce statistics for the public realm? I have found no one who knew anything about it, so will the Minister say what consultations there have been?
My second approach was to the Institute for Social and Economic Research—ISER—at Essex University, a body for whose work I have had great respect over many years. Its reply, which I shall quote in full because it is helpful, was very forceful, and states:
“ISER is currently responsible for producing one major longitudinal survey heavily used in scientific and policy research, the British Household Panel Survey, and is developing another, the UK Longitudinal Household Study. We would be concerned if the Statistics Bill did attempt to extend the scope of the Code of Practice beyond Official Statistics or National Statistics. There has been no opportunity to consult properly on such an extension, nor to explore its implications properly”.
The response continues:
“More generally, there is a risk that if the Statistics Board was attempting”—
this is the important point—
“to develop a Code of Practice which applied to a wide range of statistics outside government, it would dilute the very necessary principles which should apply to official statistics”.
Again, there has been no consultation, but a significant risk is identified in that final sentence; so my second question to the Minister is whether he will confirm that when the Statistics Board prepares its code of practice under Clause 10, it will be directed solely to the range of official statistics that lie within its remit and it will not “dilute” that by trying to make the code applicable to a wider range of statistics outside its remit.
Finally, I return to the point I referred to earlier about the spirit of the code, which was mentioned by the Royal Statistical Society. He suggested that the spirit of the code might be adopted by non-governmental producers. I would not be so concerned if the Minister had said in reply to my noble friend’s question on Report, “The code will, of course, be for official statistics but producers of other statistics may find some of the principles in that code of value as they produce and disseminate their own statistics”. So my third question is whether that is actually what the Minister meant to say. Those were not his words, but I think that is what he may have meant.
There has apparently been no consultation with anybody on the Minister’s propositions as put forward last week. They have clearly caused anxiety among important producers of statistics outside the range of official statistics. I suspect that the Minister may have gone further than he intended. He could clear all this confusion up in a moment by accepting our amendment, which provides that this code should apply to official statistics. I beg to move.
My Lords, the very few cognoscenti of this issue and those who have been following the debate know that we had an issue with what we called the muddle. On Report, we attempted to deal with it, but the Government clearly liked the concept and created another muddle around the nature of the code and the statistics to which it applies. I do not intend to repeat the arguments made by the noble Lord, Lord Jenkin of Roding, but I shall say that the Bill as amended on Report contains an ongoing muddle. On page 5, line 18 reads “National Statistics”; the heading of Clause 10 is,
“Code of Practice for National Statistics”;
but by the time we get to the next line it refers to,
“a Code of Practice for Statistics”.
The Bill is a muddle, and we hope that the Minister can sort it out in the way that the noble Lord, Lord Jenkin of Roding, suggested; that is, by setting out that it applies to what everybody in the House understood it to apply to during the first part of the debate on Report.
My Lords, I added my name to my noble friend’s amendments. He introduced them in a masterly way, and there is little additional material for us to cover. My main concern is that what the Minister said on Report and the nature of the amendments that were accepted then have created uncertainty. Until that moment, the status of the code in relation to non-governmental preparers of statistics—those that are not preparing official statistics—was not unclear. The Bank of England, for example, produces a number of statistics. I understand that they are not official statistics. Does the Bank of England now have to regard the code of practice as useful guidance, or is it something entirely on a higher plane? That is very unhelpful.
The noble Lord, Lord Newby, spotted, as indeed I did, that the text of the Bill had not caught up. Of course we are not allowed to amend headings. I am told—my noble friend Lord Jenkin has raised this with the Public Bill Office—that the Bill will catch up as the headings do not yet reflect the amendments that were passed last time. So I do not think that we need worry on that score.
I have one further question for the Minister. Is the Statistics Board obliged to call this the code for statistics or may it use some more sensible title like the code for official statistics?
My Lords, I am grateful to noble Lords for their contributions to the debate, although I do not think that the issue has been anything except clear from the Government’s point of view. If I have not expressed it with sufficient clarity, the fault certainly lies with me, and I will be as clear on it as I possibly can today. Far from there being a muddle, there has been a clear position on the code for statistics, which I want to emphasise today.
The title, “code of practice for statistics”, expresses succinctly exactly what the code is, and I do not see a case for change. I see a case for my clarifying and reassuring noble Lords about the anxieties to which they have given voice, and I will seek to do that. I do not think that the Bill needs amending because I do not think that there is anything between us in the arguments put forward on what is desirable in the legislation. I want to make it clear that the Government are bent on ensuring exactly the clear terms that the noble Lord, Lord Jenkin, and the other noble Lords who have spoken in the debate have enjoined on me.
As we discussed on Report last week, the code will be applied across official statistics, but it will have a particular role for national statistics. That is the understood position about how the code will work. We discussed it at great length last week and of course that is the position in the legislation. The particular role for national statistics is that this is a code against which the board will assess statistics to determine their compliance and whether to award national statistics status. We all know that about 1,300 statistics would be likely to fall within this framework. When new statistics are produced or when it is desirable that current statistics are brought within the framework of national statistics, they must be in full compliance with the code and be judged by the board to be up to the standard of national statistics status.
Calling the code, as the amendment suggests, the “code for official statistics” may be confusing and could imply that it refers only to those official statistics and not to the subset of statistics that are national statistics—the ones for which we have a specific category. It was always the Government’s intention that the code should have application to both categories: national statistics with their particular appliance of the code—withdrawal of that status would be the ultimate sanction if statistics fell below standards—and official statistics.
Questions were addressed about whether the code would have application beyond government. Clearly, the board does not have any jurisdiction beyond the official statistics boundary and I do not think that I suggested that it did last week on Report. It does not apply to the commercial world, the world of charitable organisations, the universities or any other category. However, there is a proper expectation that a code produced by the United Kingdom’s pre-eminent statistical authority will have significance beyond government and the scope of official statistics. Others, such as those in local government or even commercial organisations, would be free to use the code as a guide for the production and publication of statistical outputs if they wished. For these reasons, the Government feel that the amendments would blunt the edge of the code’s clear, concise and appropriate title. Of course, the code applies to official statistics, especially national statistics, but others may aspire to it in the quality of work that they do.
The noble Lord, Lord Jenkin, indicated that that may not be an aspiration for organisations carrying out certain kinds of surveys because they cannot match the official surveys of government. That is fully understood. No one is suggesting that the code has jurisdiction over unofficial statistics. It is merely an exemplar of what can and should be achieved in the production of statistics at the most rigorous levels, and it may be a useful guide for those outside its framework. The legislation does not go beyond official statistics.
The noble Lord asked about consultation. We consulted very widely on the Bill, as he will recognise. Indeed, we would not have been able to produce the Bill without the benefit of such consultation. We did not consult commercial organisations that produce statistics outside the public realm because we never intended to legislate—and have not legislated—for statistics outside official statistics. What I said last week seems to have given rise to uncertainty in the House about the extent to which the code might obtain outside official statistics. It does not pertain to those statistics. I was merely indicating that it might be a reference point for quality and rigour. I hope that that is clear and that consultation was never really an issue.
The noble Lord also asked about the code of practice in relation to official statistics. We have made the position absolutely clear. The code of practice applies to official statistics, but the sanction that it contains of withdrawing national statistics status applies only to a very limited number of statistics—the most important ones that meet the full rigour of the test of the code. We are all too well aware that the boundaries of national statistics will fluctuate over time; some statistics may move in and others may move out. That will be at the board’s discretion. The boundaries are porous under the terms, provided that the criteria are met. We have made it quite clear that national statistics have a particular status under the code and that official statistics embrace national statistics as well as a wide range of statistics that go beyond them.
I resist the amendment because the Bill is absolutely clear about the code of practice governing statistics. I have sought to respond to the noble Lord’s anxieties, which arose from our last debate; I do not think that he had them before. In so far as I helped to generate them, I am glad of the opportunity to clarify the matter. The Government have always been clear about the position with regard to the code. I hope that I have clarified that further in answer to the noble Lord’s questions and that he and other noble Lords who have contributed to the debate will accept that the amendments do not advance the position in any way, shape or form. The code for statistics is in the Bill, which I seek to defend. I hope that the noble Lord will feel able to withdraw his amendment.
My Lords, we found very confusing the argument that it would be difficult to understand that national statistics were within the code, national statistics being a subset of official statistics, if the code were called the “code for official statistics”. Unless I missed it, I do not think that the Minister answered my question: is it open to the board to call the code the “code for official statistics” or not?
My Lords, the board will operate within the framework of legislation, which will say the “code for statistics”. If the board finds that that is in any way, shape or form restrictive, in a way that I cannot anticipate—and I do not think that the noble Baroness has substantiated what may cause difficulty for the board’s operation—it would be for the board to make representation on that point and we would have to address our minds to it. We do not see that there is any problem for the board. Here is a code for statistics. The board will know its responsibility for all official statistics and its specific responsibilities with regard to national statistics. In so far as there has been confusion as to whether the board has any responsibility for statistics that are not official statistics, the answer is no. But what was sought and what is hoped for is that the board’s work—the definition of statistics and the quality and rigour of those statistics—will act as a guide to others who aspire to put statistics into the public realm; if such bodies hit the standards that the board has established for official statistics, they are much more likely to be credible in their work.
My Lords, would my noble friend help the House by reiterating that the code is permissive as far as non-governmental statistics are concerned and that it is not obligatory? After all, the board is called the Statistics Board, not the official statistics board, so we can easily have a code for statistics.
My Lords, I am grateful to my noble friend. I hope that I have identified the reason why the code of practice for statistics in the legislation accurately defines the responsibilities of the board, which is why I hope that the noble Lord will feel able to withdraw the amendment.
My Lords, the noble Lord, Lord Davies of Oldham, has an enviable reputation for concealing his retreat under a remarkable torrent of verbiage. It is clear that he has answered my third question, which was that other bodies,
“would be free to use the code as a guide”.
That meets the substance of my point. I hope that that will be drawn to the attention of those who have expressed concerns. The words that he used last week had a very different purport. That may be what he intended to say, but it is not what any of us, or any of those with whom I have been in touch, understood him to say.
The noble Lord has now made it very clear that others are free to use the code as a guide and that the code might be, as he said, an exemplar to others. It was never intended to apply to others outside, which is why none of them was consulted. But that was not their reaction when they saw what he had said last week. I quoted some of the responses that I received.
My only other point takes up that made by my noble friend on the Front Bench. Surely national statistics are a subset of the wider range of official statistics; they are not something separate. As the Minister has explained, within the whole range of official statistics are those that qualify to be called national statistics. So I am not sure that I buy entirely his argument that the use of the term “official statistics” would be inappropriate. However, I do not want to prolong the debate. I think that the noble Lord has retreated and has given the undertaking that I was looking for: that the code is a code for the official statistics and that others may use it as a guide. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Assessment]:
[Amendment No. 2 not moved.]
Clause 12 [Duty to continue to comply with Code]:
[Amendment No. 3 not moved.]
Clause 13 [Re-assessment]:
[Amendment No. 4 not moved.]
Clause 15 [Requests for assessment: supplementary]:
[Amendment No. 5 not moved.]
Clause 30 [National Statistician: executive functions]:
[Amendment No. 6 not moved.]
Clause 35 [Delegation]:
[Amendment No. 7 not moved.]
moved Amendment No. 8:
8: Before Clause 37, insert the following new Clause—
“Information Commissioner
(1) The Information Commissioner may assess any aspects of the way in which the Board holds, uses, discloses or shares information.
(2) The Board must provide any assistance or access that the Information Commissioner requests in connection with an assessment under subsection (1).
(3) If the Information Commissioner carries out an assessment under subsection (1) he is to report his findings to the Board.
(4) The Information Commissioner may publish any report he makes under subsection (3) and any such report must be laid before each House of Parliament.
The noble Earl said: My Lords, because of commitments overseas which meant that I was unable to be here for the Report stage—I apologise to the House—I begin by thanking the Minister for the assurances he offered in Committee and repeated to my noble friend on Report that it is categorically not the intention of the Government that the Bill,
“should allow the board to become a general repository for raw data or to introduce the widespread sharing of confidential information throughout government”.—[Official Report, 23/5/07; col. 746.]
That is most welcome. However, it is important to bear in mind the context in which these data and information-sharing provisions will operate. It is undoubtedly the case that identity management and associated issues of privacy and confidentiality are becoming an increasingly important and significant area of public debate. By the same token, and for entirely understandable and potentially beneficial reasons, I am certain that the Government have no intention whatever of abating their information-sharing agenda. To that extent, considerable pressure exists for sharing to be widened and deepened.
I have no difficulty with this per se, although I am bound to confess that in respect of statistics my own preference might have been that we follow the Canadian model, generally acknowledged to be the best in the world, and disallow any sharing of raw data at all. As I sought to point out in Committee, the board will always be a secondary source of such information and I am therefore sceptical about the necessity of having the exemptions to non-disclosure listed in Clause 38(4). Be that as it may, what matters here is that we get the checks and balances right, if only because in the circumstances it is wholly conceivable that elements of “function creep” could worm their way into the regime as the Government’s data-sharing agenda gathers pace.
No doubt the Minister will cite the existing powers afforded by Section 43 of the Data Protection Act 1998 as a defence against the amendment. To be fair, it would be accurate to say that that goes some way towards satisfying the intentions expressed in the amendment. However, as the noble Lord will be only too well aware, the power is constrained by Section 42 of the 1998 Act, which requires not only that the intervention of the Information Commissioner must be subject to an external request or complaint, but also that the reason for the intervention must be substantive. In other words, unlike the amendment, the existing powers do not allow the processes through which data and information sharing are conducted to be subject to independent audit. This is the crucial point. If public trust is to be fully and adequately engaged in this area, the legislation must be seen to satisfy minimum standards of privacy and confidentiality in respect of the generality of the regime rather than merely affording the individual a form of redress when things go wrong. As things stand, my understanding is that the Bill achieves only the latter.
I would not want to be misunderstood. I have every faith and confidence in the probity of the board and its statisticians in this area, something I am less willing to say in respect of other elements of the public sector. Witness, for example, the data breaches at the DVLA or within the NHS at, from memory, the Leeds trust. Indeed, it could be said that as a generality the public sector in respect of privacy and confidentiality is as leaky as a sieve. Needless to say, it would be undesirable if the board were to be tarred with a similar brush. This makes it all the more important that the data protection regime of the Government Statistical Service should be made as robust as is humanly possible, even to the extent of stating the obvious in the legislation, in order that the perceptions as well as the actualities which frame public trust can be satisfied.
I would add another small point to address the Minister’s previous comments about the Information Commissioner’s views on, and lack of criticism of, the Bill. The power granted by the amendment to the Information Commissioner is entirely permissive. In other words, he need only intervene in the way and to the extent that he may feel it necessary to satisfy himself that everything is operating according to the data protection principles. Indeed, we could hope that he would not envisage an occasion when he may feel that it was necessary to exercise the power, but I would emphasise that that does not obviate the need for the power to be available to him, in the interest of public trust—not as much to address his concerns or, more correctly, lack of them, but to assuage the very much wider interests and needs of public trust.
All in all, I very much hope that the Government will accept the amendment. I beg to move
My Lords, I put my name to the amendment, because there is an important point of principle behind it. I thank the Minister for his words at the previous stage of the Bill and I fully accept his good intentions. The real challenge, about which I entirely agree with the noble Earl, Lord Northesk, is that a matter has to be brought to the attention of the Information Commissioner before he can act on it. He cannot act proactively under his current powers. There must be a complaint—it does not have to be much of one. One of the protections is, of course, that the data controller can ask him about some laxity, but how likely is the person in charge to make such a request of someone who might point fingers at him? One would hope that that would happen, if only to get good advice and to obtain verification from a third party that best practice was being carried out, but it tends not to happen, particularly when there are budget cuts.
The problem on the other side is that you do not know what you do not know. You would not know that there had been a breach or whatever until after it had happened. You would not realise that wrong procedures were in place because no one would previously have known that, unless someone had general oversight. The data controller, or whoever was in charge at the agency, might be very good at their job, but keeping up with information security is a full-time job these days and is very time consuming. The situation is moving all the time. Only a couple of years ago, everyone thought that firewalls were brilliant and that you could create a fortress around an organisation. We now know that you cannot. Considering how things are moving, data leak out very quickly despite any fortress. Data sharing means that such information will move across such firewalls.
The trouble is that things can appear to be anonymous—they can be pseudo-anonymised, or whatever—but the way that we are now breaking down demographics to get better statistical information from which government can make properly informed decisions means that if I carry out cross-matching between people, profile and post code, I can end up with a good idea of who is who and what they are doing. If you are the only person with an income above a certain level or who satisfies certain criteria within a post-code block of, say, five, 20 or 30 houses, I can probably identify you from the statistics provided by the statistics service. We probably need to look at this issue from time to time, and the problem is that the Office for National Statistics will be under pressure to produce results—but at the end of the day they may not be in the best interests of the citizen.
We should give the Information Commissioner a little bit more power to keep an eye on this issue. After all, we have surveillance commissioners and people who look after all the other things that intrude into our lives when government bodies have similar powers. It would be a good idea to reinforce that a little more in this matter by giving the Information Commissioner more proactive power.
My Lords, I am mightily relieved that my noble friend Lord Northesk has returned to assist at Third Reading. I moved a similar amendment on Report, but withdrew it, because my understanding and the Minister’s understanding of the powers of the Information Commissioner under the Data Protection Act 1998 were at odds. On 18 June, the Minister said that,
“the Information Commissioner already has statutory powers to undertake the activities set out in this amendment”.—[Official Report, 18/6/07; col. 64.]
I believed that that was not the case and, clearly, that was important. I therefore withdrew the amendment in order that we could clarify the position. The Minister wrote to me quickly after the Report stage and I am grateful to him for the letter and for the speed of the reply. However, his letter has reinforced my view that the amendment remains necessary.
The Minister’s letter rested on the provisions relating to the serving of information notices in Section 43. As my noble friend Lord Northesk has pointed out, we do not get to the provisions of Section 43 unless there is a request under Section 42. It is not always the case that a person will be aware that his or her data have been incorrectly processed and hence will not be in a position to make a request, let alone to establish a substantive request. We therefore have to come back to the Information Commissioner’s powers contained in Section 51(7) of the 1998 Act—not Section 57 as I incorrectly informed the House on Report—which allow the commissioner to carry out an assessment only if the data controller consents. Obviously, in most cases consent will be given, but we cannot always assume it because we have seen that government departments disagree with the Information Commissioner in a number of areas and there is no reason to assume that the data controller of the Statistics Board would always agree with the Information Commissioner. The noble Earl, Lord Erroll, has pointed out that it sometimes works against the interests of the person whose data are going to be inspected to agree to that.
I hope the Government will agree to this relatively small additional power for the Information Commissioner.
My Lords, this is a straightforward, clear amendment. It deals with the issue with which we have grappled all the way through the Bill: how we can ensure that the Bill, to the maximum possible extent, enhances trust in official statistics. Giving the Information Commissioner the powers set out in subsection (1) of the amendment provides another piece of the framework in which individuals can have trust not only that the system is robust but that if there is a problem it can be dealt with. As previous speakers have said, in this area many people will be unaware that information about them is being misused. To give the commissioner the chance to go in on his own initiative makes a great deal of sense.
I, too, am grateful for the letter which the Minister circulated on 20 June. He said in the House that the Information Commissioner had been very positive about the Statistics and Registration Service Bill. However, there is a wonderful weasel word in the letter, which states:
“As I have said in the House, overall the Information Commissioner has been very positive”.
If “overall” is very positive, there must be some matters on which he has been negative and that has made me slightly suspicious. I am sure that is being unfair to the Minister but perhaps he can explain why it was an “on balance” enthusiasm by the Information Commissioner rather than the unalloyed joy that the Minister suggested he felt.
My Lords, it is rare for a Minister to feel that all the problems at Third Reading are a consequence of what he said on Report, but I am beginning to get that feeling today, certainly as far as the noble Lord, Lord Newby, is concerned. He is wrong when he says that on Report I referred to the Information Commissioner’s satisfaction with the Bill. It was not only at the Report stage: in Committee, on Second Reading and all the way through I have maintained, with confidence and without contradiction, that the Information Commissioner is broadly satisfied with the Bill.
How can I be specific and say that every single line and phrase in the Bill is endorsed by the Information Commissioner? Of course I cannot say that. But what I am indicating—and did so on those three separate occasions and I will do so again today—is that the Information Commissioner did not identify any part of the Bill with which he was dissatisfied or of which he was critical, otherwise we would not have prayed his name in support of the Bill. For obvious reasons, we were all too well aware that we could have been challenged at any stage where we took his name in vain. I reiterate, for the fourth time, the salient fact that the Information Commissioner is broadly satisfied with the Bill and is positive about it. He has welcomed the fact that it recognises the importance of ensuring personal information is used only where necessary and that confidentiality is respected.
It will be recognised in the House, particularly with the high levels of expertise we have here about the operation of statistics in this county, that the Office for National Statistics already has a good working relationship with the Information Commissioner, and it is in the interests of the board, when it is established, to continue that good relationship to help ensure that people trust the board to hold its information securely. Noble Lords will recognise that that is a cardinal obligation upon the board, as it has been upon the ONS up to now.
As I noted on Report and, as the noble Baroness indicated, spelt out in rather more detail in the letter I sent to noble Lords who participated in last week’s debate, the Government believe that the Information Commissioner already has similar powers in the Data Protection Act to carry out the activities set out in the amendment. In our debate on Report, there seemed to be some misunderstanding over the powers the commissioner already has. The noble Baroness, Lady Noakes, and the noble Earl, Lord Erroll, seemed to be under the impression that the commissioner required the consent of the board to assess the processing of personal data. The noble Baroness said that the commissioner,
“can assess the processing of personal data if, and only if, the data controller consents to the assessment, otherwise his powers are limited to cases where a request comes from the person affected by the processing of data”.—[Official Report, 18/6/07; col. 62.]
That is not so. Under the Data Protection Act, the Information Commissioner already has the power to request information from the board by issuing an information notice, if, as Section 43 of the Act says, he,
“reasonably requires any information for the purpose of determining whether the data controller has complied or is complying with the data protection principles”.
The noble Earl, Lord Northesk, took the argument one stage further. He said, “Ah, but Section 43 only comes into play if in fact there is a request for assessment made by someone under Section 42”. The commissioner can issue an information notice where he reasonably requires any information for the purposes of determining whether the data controller has complied. That is his right.
It should be recognised that when we stated that the Information Commissioner is broadly satisfied with the Bill and that sufficient powers exist for examination with regard to the board, what I attested to last week also obtains this week and renders the amendment unnecessary. The commissioner does not need the consent of the board to issue such an information notice. His powers to issue a notice are backed up by sanction, in that a person who fails to comply with an information notice or provides false information in response to one is guilty of an offence. Moreover, if, on the basis of the response to an information notice or for another reason, the Information Commissioner believes that the board has contravened any of the data protection principles, the commissioner may serve on the board an enforcement notice requiring it to take specified steps to comply with the principles or to stop processing personal data. Not to comply with the Information Commissioner’s notice is an offence.
I have already indicated that there is a very strong incentive for the board, when it is established, to co-operate with the Information Commissioner. I recognise that the motives behind the tabling of the amendment, which would deal with the most extreme circumstances, are entirely worthy. If, in the extreme circumstances, the board continued to refuse to co-operate with him, the Information Commissioner could ultimately get a court warrant to operate and test equipment used by the board for data processing or seize any documents or other relevant material. These powers are not to be dismissed lightly. The Information Commissioner has them with respect to compliance with the eight data protection principles, a set of fundamental principles designed to ensure the proper processing of personal data. The Office for National Statistics and the board will be in possession of very important personal data.
In brief, the data protection principles make sure that personal information is fairly and lawfully processed; that it is processed for limited purposes; that it is adequate, relevant and not excessive in relation to the purpose for which it is processed; that it is accurate and up to date; that it is not kept for any longer than is necessary; that it is processed in line with individuals’ rights; and that it is held securely and not transferred to other countries without adequate protection. The powers I have described give the Information Commissioner the ability to investigate any conceivable breaches by the board in so far as they are breaches of the data protection principles.
In conclusion, it is hard to understand what powers the amendment would give the Information Commissioner that he does not already have or need with respect to the board. He can require from the board any information required for determining compliance with the data protection principles. The board must comply, otherwise the Information Commissioner can take steps to enforce compliance. The data protection principles provide an overarching framework which covers many aspects of data processing. The Information Commissioner’s power is not only with regard to specific cases where complaints have been made—a very important point. The Information Commissioner does not require the board’s consent to exercise these powers.
The noble Earl, Lord Northesk, played a full part in the significant discussion in the proceedings of the Serious Crime Bill about the power of the Information Commissioner to assess data processing. That Bill was very different from this one. Even the noble Baroness, Lady Noakes, suggested that this Bill was a teddy bears’ picnic compared with the Serious Crime Bill. The data-sharing aspects of the Serious Crime Act have very different purposes to those in this Bill.
The amendment in this form was not appropriate in the Serious Crime Bill, and it certainly is not appropriate here. I hope that the noble Earl will feel that he can safely withdraw the amendment on the clear assurance that we have thought through the very important aspect of the role of Information Commissioner with regard to the large amount of personal data that the board will inevitably control and that the House can be satisfied that the Bill adequately provides the necessary powers for the Information Commissioner to safeguard citizens’ rights.
My Lords, I thank the Minister for that reply. I am grateful for the support of my noble friend Lady Noakes, the noble Lord, Lord Newby, and the noble Earl, Lord Erroll. Indeed, as the noble Earl said, an important point of principle is at work here. I agree.
I remain deeply dissatisfied with the Minister's response in respect of the powers of the Information Commissioner. In a way, the Minister is on something of a roll because, in terms, he proved my point for me. He indicated that the Information Commissioner has more than adequate powers to deal with breaches of the data protection principles. I have no dispute about that. However, I seriously dispute that the Information Commissioner is empowered on his own initiative to view the operation of the data-sharing regime at the Statistics Board in the round—not in respect of breaches but in the round. As far as I read the Data Protection Act 1998, the Information Commissioner simply does not have that power.
Viewed more widely, it is interesting to note that this Bill is, of necessity, a product of the Treasury. To a greater or lesser extent, it flows from the thinking of the Chancellor of the Exchequer. In turn, the amendment quite deliberately engages matters of transparency, accountability and, crucially, public trust. Accordingly, the Minister’s rejection of the amendment today begs the question of how much confidence we can really have in Gordon Brown's avowed intent to reinvigorate virtues of accountability, transparency and public trust when he takes over from Mr Blair. That being so, I feel entirely justified in seeking the opinion of the House.
My Lords, I beg to move that this Bill do now pass.
Moved accordingly, and, on Question, Bill passed, and returned to the Commons with amendments.