3rd reading in the Lords
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Lord Jenkin of RodingConservative- Quote
- moved Amendment No. 1:
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- 15:07
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Lord NewbyLiberal Democrat- Quote
- 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.
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Baroness NoakesConservative- Quote
- 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?
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Lord Davies of OldhamLabour- Quote
- 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.
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- Baroness NoakesConservative
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- 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?
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- Lord Davies of OldhamLabour
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- 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.
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Lord DesaiCrossbench- Quote
- 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.
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- Lord Davies of OldhamLabour
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- 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.
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- Lord Jenkin of RodingConservative
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- 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.]
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The Earl of NortheskConservative- Quote
- moved Amendment No. 8:
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The Earl of ErrollCrossbench- Quote
- My Lords, I put my name to the amendment, because there is an important point of principle behind it. I thank the Minister for his words at the previous stage of the Bill and I fully accept his good intentions. The real challenge, about which I entirely agree with the noble Earl, Lord Northesk, is that a matter has to be brought to the attention of the Information Commissioner before he can act on it. He cannot act proactively under his current powers. There must be a complaint—it does not have to be much of one. One of the protections is, of course, that the data controller can ask him about some laxity, but how likely is the person in charge to make such a request of someone who might point fingers at him? One would hope that that would happen, if only to get good advice and to obtain verification from a third party that best practice was being carried out, but it tends not to happen, particularly when there are budget cuts. The problem on the other side is that you do not know what you do not know. You would not know that there had been a breach or whatever until after it had happened. You would not realise that wrong procedures were in place because no one would previously have known that, unless someone had general oversight. The data controller, or whoever was in charge at the agency, might be very good at their job, but keeping up with information security is a full-time job these days and is very time consuming. The situation is moving all the time. Only a couple of years ago, everyone thought that firewalls were brilliant and that you could create a fortress around an organisation. We now know that you cannot. Considering how things are moving, data leak out very quickly despite any fortress. Data sharing means that such information will move across such firewalls. The trouble is that things can appear to be anonymous—they can be pseudo-anonymised, or whatever—but the way that we are now breaking down demographics to get better statistical information from which government can make properly informed decisions means that if I carry out cross-matching between people, profile and post code, I can end up with a good idea of who is who and what they are doing. If you are the only person with an income above a certain level or who satisfies certain criteria within a post-code block of, say, five, 20 or 30 houses, I can probably identify you from the statistics provided by the statistics service. We probably need to look at this issue from time to time, and the problem is that the Office for National Statistics will be under pressure to produce results—but at the end of the day they may not be in the best interests of the citizen. We should give the Information Commissioner a little bit more power to keep an eye on this issue. After all, we have surveillance commissioners and people who look after all the other things that intrude into our lives when government bodies have similar powers. It would be a good idea to reinforce that a little more in this matter by giving the Information Commissioner more proactive power.
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- Baroness NoakesConservative
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- 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.
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- Lord NewbyLiberal Democrat
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- 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.
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- Lord Davies of OldhamLabour
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- 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.
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- The Earl of NortheskConservative
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- 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.
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- Lord Davies of OldhamLabour
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- 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.
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