Powers of Entry etc. Bill [HL]

moved Amendment No. 3: 3: Clause 5, page 2, line 6, at end insert— ““( ) a privacy impact assessment has been carried out, in conjunction with the Information Commissioner’s Office, to assess the proportionality of the power.”” The noble Earl said: The purpose of the amendment is straightforward; namely, to require that the state’s powers of entry be subject to privacy impact assessments, so that their proportionality can be evaluated. The Minister may consider that a provision such as this might impose too onerous a burden on the state. I am bound to say that, for reasons that I shall try to explain, I would find such an outcome disappointing. We know, because the Minister has told us so in his letter of 25 January to my noble friend Lord Selsdon, that the Government are already committed to conducting this sort of evaluation in respect of their powers of entry. I quote from the letter: "““The work is being carried out in three phases: … Phase 1: Existing Powers … This will involve identifying each power of entry, and determining the purpose of the legislation within which it is contained and the purpose of the entry power … Phase 2: Assessment of Continuing Need …We intend to use this exercise to examine the continuing need for these powers and, if the power is considered necessary, to look at the level of safeguards and protections in place and whether these are appropriate for the 21st century””." At a pinch, it could be argued that the proposed statutory requirement for a proportionality test goes a little further than the current Home Office process, but, for all practical purposes, the amendment requires the Government to do little more than that to which they are already committed and are already doing. That might tempt one to suppose that the amendment is therefore otiose, but, as I have said, the proportionality test envisaged by the amendment is something of an innovation. It is needed to take due account of the pace of technological change in recent years. For many of these legacy powers, as ancient as they are, privacy considerations would simply not have been an issue when they were enacted. But in the current age, with the proliferation of the database state and surveillance technology, viable and meaningful demonstrations of the proportionality of any given power in privacy terms are highly desirable, not just in their own right but also as a means of engendering and fostering public trust. Moreover, and in mild anticipation of the amendment tabled by my noble friend Lord Marlesford, I hope that this provision is structured in such a way that, in so far as the Government may legislate for additional powers of entry in the future, these too would be subject to the requirement for privacy impact assessments. The Minister might suggest that the terms of the amendment could impose unnecessary delay on a process already in train in Whitehall, because of the requirement to prepare appropriate methodologies for privacy impact assessments. He knows as I well as I do that guidance on appropriate processes in this field has already been issued by the Information Commissioner. Given that these are essentially aimed at the commercial sector, it is conceivable that they might need a little tweaking to accommodate their use in a government context. In so far as this may be necessary, I hope the ICO would be able to deliver on this in very short order and, indeed, could welcome the opportunity to do so. This leads to my final point on the amendment. Viewed rationally, the state’s powers of entry cannot be disentangled from broader considerations of the individual’s right to privacy. Accordingly, it is important that, in its capacity as the privacy watchdog for our citizenry, the Information Commissioner’s Office be accorded some formal locus in respect of the provisions of the Bill. Dare I say that the amendment provides this in an elegant and comprehensive way? I beg to move.