The Minister gave me some preliminary notice of the Government’s attitude to this amendment and alluded to the potential confusion of different roles and different names. No doubt I might even make the mistake of using the term “Information Commissioner” rather than “Investigatory Powers Commissioner”.
However, there is an important point here on which we want to probe the Government, and that is about the changing world and how we respond to it and make sure that the interests of the individual are properly thought of and protected. The point is about restoring public confidence. We have a legal framework that is structured around the Data Protection Act and a regulatory framework that allows breaches to be investigated and matters to be determined where there has been a breach. It is a system that protects the individual after the event. What we are trying to do
here is what the Investigatory Powers Act, which became law at the end of last year, sought to do—that is, it does everything possible to ensure that intelligence agencies and law enforcement use only such powers as Parliament approved after a careful and well-informed debate. We cannot revert to a world in which the Government understand and apply the law in ways that were not foreseeable to the rest of us, still less to a world in which our freedoms depend on the potentially harmful activities of whistleblowers.
This amendment seeks to ensure that, in this fast-changing world, in the plans for the future use of powers identified in the Bill, the rights of the individual are not only safeguarded but are put at the head of the agenda rather than considered as an afterthought. That is why we have used the framework of the Investigatory Powers Act to raise this issue. With regard to future changes or extension of powers, who is thinking of the rights of the individual? It is important that the Government, if they are unable to deal with this consideration in today’s group, return to this subject in future provisions.
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This group is also about general safeguards. We have a number of amendments in this group about safeguards and how we ensure that they are maintained. How do we make sure that the regulations that we have seen in draft are proportionate? What about appropriate consultation? How do we guarantee sufficient time for a consultation? We are also ensuring that. I am sure that the Minister will return to the fact that the principles are contained in the original Data Protection Act. However, our concern is about the information being relevant to the individual.
We also have issues with the clause introducing a criminal offence of unlawful disclosure. Why does it not apply to HMRC? This is about being consistent in ensuring that there are proper safeguards. This is another of the issues that has come up.
Again, I note that the noble and learned Lord, Lord Keen, has referred to the Data Protection Act. The Bill sets out the need to comply with the DPA but overrides the common law duty of confidentiality. The BMA has asked what the justification is for that. We are keen to hear from the Minister. We know from the briefing circulated to noble Lords by the BMA that its view is that the provisions of Clause 33(7) could be used to override the existing common law safeguards for health data. The BMA is concerned, as is everyone, about the effect on the important relationship between doctor and patient. We need to ensure that that remains confidential.
We have seen the problems. We thought that we had appropriate data sharing with all the safeguards in place. However, in relation to the NHS using bulk data for research, last June it emerged that nearly a million people had opted out of the database because of their concerns. We know that reviews have examined this. However, this is why we have to understand better the Government’s intention in terms of consistency and ensuring that the appropriate safeguards continue. I am sure that other noble Lords will pick up some of the points that I have not covered. I beg leave to move.