Protection of Freedoms Bill

Baroness Hamwee Excerpts

Tuesday 13th December 2011 Grand Committee

I made reference earlier to Amendment 96, which would establish a new duty on schools to consult teachers, parents and pupils before introducing biometric recognition systems into schools. In relation to the previous three amendments, we support the principle that parents should be able to excuse their children from having their biometrics processed where they felt strongly on the matter. It is to the unnecessarily burdensome and prohibitive framework that the Government propose that we object. This amendment provides for a common-sense approach to parental and pupil consultation by requiring a full consultation of views by the school prior to the introduction of any new biometric recognition system. Like the Association of School and College Leaders and the Association of Managers in Education, we are confident that most parents and pupils will continue to welcome the opportunity to access new technologies in schools and that, by ensuring full prior consultation by schools and allowing parents and pupils over the age of 16 to opt out, we would strike the right balance.

[Baroness Hamwee]

My Lords, I have Amendment 91 in this group, which is in my name and that of my noble friend Lady Walmsley. The noble Lord, Lord Lucas, has obviously not been subject to Black Rod’s little talk about security in this place, which urges us all to wear our passes at all times—which I acknowledge I am not at this moment—rather than rely on people knowing who we are.

[Lord Lucas]

My Lords, I know that we are all supposed to do that, but I am sure that the noble Baroness has seen, as I have, groups of guests wandering around with unidentifiable passes and noble Lords with their passes on back to front so that you cannot see even whether they are a Lord let alone who they are. Eyeball recognition by the doorkeepers is much more reliable and efficient, and is probably cheaper at the end of the day.

[Baroness Hamwee]

Perhaps I had better not continue down this route—I could, but it would take more time than the Committee might like to devote to it.

Another point on which I am perhaps not with the noble Lord is that every school knows what every child is up to all the time—I wish that were so. I am sure that we are going to hear from the Minister about the balance between privacy rights and sensible use of technology—I hope that we are not going to hear about feed-in tariffs, which seemed to stretch the analogy a bit far.

The noble Lord, Lord Lucas, did not know, on reflection, what his Amendment 85 was about. I have been in that situation as well, but that is not so on this amendment, against which I wrote “silence equals assent”—I think that it is the difference between opt-in and opt-out.

Before I come to the detail of my amendment, I wish to pick up on the point made by the noble Lord, Lord Rosser, about the technology being used in schools not being as sophisticated, if I can use that term, as technology used in other contexts. Can the Minister say how reliable the equipment is? That was the immediate question I had in response to the noble Lord’s comment.

My amendment does not contradict any of the other amendments that have been spoken to and is not inconsistent with the Bill. It provides that the relevant authorities, schools, academies and FE colleges should tell parents and children of their rights to refuse consent at least once in every academic year—in other words, it is about informed consent. The suggestion comes from the Children’s Rights Alliance for England, which supports the provisions in the Bill for ensuring that the institutions cannot process biometric data if consent is refused. I know that my noble friend will say a word about the convention rights.

I have been told by the Children’s Rights Alliance about research which shows that most children using these systems have not considered how long their fingerprints would be held for and they generally were not concerned. My response to that is that of course they would not—they are children and they do not necessarily think through all the implications of what they are being asked to agree to. Therefore explaining exactly what the subject matter is, both to them and their parents, is important. Other research—again, I am not surprised about this—shows that when schools have introduced a biometric system they have emphasised the benefits and not talked about the problems. All of this is natural human reaction.

The noble Lord, Lord Rosser, referred to the report of the Information Commissioner in 2008. The Information Commissioner made it clear that schools which collect data must be aware that children are data subjects and that they,

“should in the first instance be informed and consulted about the use of their personal data”.

This being the first principle of the Data Protection Act, he went on to say that,

“Fairness requires that schools ensure that pupils are informed about and understand the purpose for which their personal data is being processed”.

Our amendment would require that they are in a position to give consent—or, indeed, withhold it—but on an informed basis.

[The Earl of Erroll]

My Lords, this is an area which I have been thinking and worrying about because of the practicalities of it all. The part about children and schools is a well meaning and well intentioned effort to introduce legislation to make sure that children’s privacy is not breached and that no information is kept on them which could make things difficult for them in later life. It is very important that we should not do that.

However, as the noble Lord, Lord Rosser, said, we could try to make sure that the biometric information that is used for administrative purposes is not kept to evidential standards. In other words, the information could not be used in courts; it could not be linked up with the police computer; it could not be linked up elsewhere. That could be done simply by making sure that it is kept to a standard which is good enough to identify people for administrative purposes in populations of a few thousand, but once you raise it up to a national scale it does not work. For instance, under EU directives there have to be 13 matching points for a fingerprint to be admissible in evidence in court—that is, 13 out of 18. If only 10 or 11 were kept, which is probably quite sufficient for the school’s purposes, the information could never be linked with the main national databases. That might well be a way round it. That is contained within this group of amendments.

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I do not like the two amendments that require consultation or going out and explaining things to people every year, which I think will be an unnecessary cost. I do not think it will get us any further. Although I think that Amendment 91 is very well meaning in thinking that we should explain everything to parents and children every year, it is hard enough to get the law understood. If we are going to interpret the law correctly, if we rewrite it, is that not going to cause problems? I do not know. Perhaps we should write clearer laws, and then they could read the law and not have a problem.

[Baroness Hamwee]

My Lords, the amendment simply provides for the turnover of pupils generally on an annual basis. I certainly did not intend it to be reworded every year. Information goes out from schools frequently on an annual basis. Sometimes, it sits in the bottom of a child’s bag.

While I am on my feet, the noble Earl may be comforted if the Minister can confirm that, for the purposes of these provisions, writing includes e-mails and other forms of electronic communication, which I suspect it does.

[The Minister of State, Home Office (Lord Henley)]

In the interests of time, I confirm that that is correct.

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[Lord Henley]

My Lords, I think this is what lawyers refer to as a question of fact and degree. If the system were, as my noble friend puts it, enhanced considerably and that involved a real change, then there would have to be further approval from the parents and children concerned. If it were a minor or technical change, I think that would not be the case. I shall leave it there, as it is a question of fact and degree as to whether there has been a proper change. I am in the hands of my noble friend Lord Lucas, but I hope that with those explanations of the various amendments he will feel able to withdraw his amendment. I think this debate has been very useful. We might not all agree totally but, as always, it is a question of getting the balance right on these matters, and I hope we have got it more or less right.

[Baroness Hamwee]

Am I right in understanding—and I apologise if this sounds as if I am trying to put words into the Minister’s mouth—that his concern is the bureaucratic provision of a requirement to make information available every year but he accepts that consent under these clauses would not properly be given unless the parent or child, as the case may be, is properly informed?

[Lord Henley]

Parents and children, to the extent appropriate for the child’s age, must be informed in the appropriate manner, and we want to get that right. We just do not think it needs to happen every year. If, as my noble friend Lady Walmsley said, there were substantive changes to what was being proposed, then further consent would be required, but we do not have to do that each and every year. Once should be enough for the duration of that child’s journey through that school.

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Moved by

[Baroness Hamwee]

100: Clause 29, page 22, line 19, after “to” insert “and operational practices of”

[Baroness Hamwee]

My Lords, I shall speak also to Amendment 101, and there are other amendments in this group. My amendments are quite simple. They are probing amendments. Clause 29(3) provides that provision may, in particular, be made in the code about standards applicable to persons using systems or processing information. When I read that, I hesitated and wondered what was meant by “standards” in this context. My amendment proposes inserting a reference to operational practices because it seems to me that they are relevant, rather than the people who are using or maintaining the systems as individuals. I beg to move Amendment 100 in order to help me understand the clause a little better.

[Lord Tunnicliffe]

My Lords, I rise to speak to Amendments 102, 106 and 112A. I thank the noble Lord for ensuring that the results of the first consultation on the proposed CCTV code of practice were published before the Committee stage in order to ensure proper scrutiny. The opposition amendments in this group seek to probe the Government’s thinking in this area and to tease out more detail of the shape of the final code now that they have reflected on the results of the consultation.

On Amendment 102, we are concerned that any future code should not force local authorities and police forces into disclosing the location of cameras. The consultation notes that some respondents,

“considered that there ought to be public access to a full list of camera locations and data retention periods”.

I note that the Government, although not committing to such a view, stated in response:

“The Government intends that the Code of Practice will increase transparency over the operation of surveillance cameras”.

It is right that, in some cases, CCTV locations are made public. Indeed, many cameras are clearly visible to the public and their visibility acts as an important deterrent to crime. However, it must be right that local authorities and police should reserve the right to conceal the location of other cameras, particularly those positioned in sensitive locations and deployed temporarily in order to apprehend criminals. There is also a real concern that, by disclosing the location of cameras and surveillance centres, there is a risk that these will become the targets of vandals and criminals wishing to prevent the detection of crime. Will the Minister give a clear assurance to the Committee that any future code of practice will not include a blanket requirement to disclose the location of surveillance cameras?

Amendment 106 probes the Government’s intentions with respect to the code of practice in relation to CCTV and ANPR footage that is used as evidence in court. Clause 33 currently provides:

“A court or tribunal may, in particular, take into account a failure by a relevant authority to have regard to the surveillance camera code in determining a question in any such proceedings”.

In fact, this would appear to be the only real enforcement tool at the disposal of the Government. Local authorities will be required to have regard to the surveillance camera code but they will commit no criminal or civil offence if they fail to adhere to it. The implication is that the Government envisage that local authorities and police forces will feel compelled to comply with the code for fear that otherwise evidence provided by their cameras will not be admissible in court.

This view is reinforced by the response to the consultation in which the Government note that the failure to comply can be tested in judicial proceedings. It is one thing to conclude that evidence should be inadmissible on the basis that it violates requirements under the Data Protection Act; however, it is quite another to jeopardise whole trials on the basis that, for instance, the location of the camera in question was not adequately disclosed to the public. What assurances can the Minister give to the Committee that enforcement of the code in this way will not lead to the police being hamstrung in their use of key evidence derived from CCTV cameras?

Finally, Amendment 112A seeks again to probe the Government’s intentions with regard to ensuring that there is clarity for local authorities on the overlap of existing requirements under the Data Protection Act and those under the proposed code of practice. This point was raised by a number of sources when the Bill was debated in another place. Indeed, the Information Commissioner has himself expressed concerns about the implementation of the code in this area. In a letter to my noble friend Lady Royall on 22 November the Information Commissioner noted:

“There is potential overlap between these provisions, including my role, and those set out in the bill relating to the Secretary of State’s Code of Practice and the activities of the Surveillance Camera Commissioner”.

In his memorandum to the Public Bill Committee, the commissioner goes further, stating that,

“there is a risk that regulation becomes frequently fragmented, confusing and contradictory, especially if commissioners take different approaches … there will be overlaps in their responsibilities running the risk that commissioners may adopt differing interpretive approaches and guidance on each other’s statutory provisions”.

The Government’s consultation recognises that there is an issue to be dealt with, and states:

“We shall take note of the concern expressed by respondents in the way we develop the role of the Surveillance Camera Commissioner and how this interacts with that of the Information Commissioner and the Surveillance Commissioners”.

To prevent unnecessary bureaucratic burdens and confusion in the public sector, I ask the Minister to take this opportunity to expand on how the Government aim to ensure maximum clarity and minimum overlap in the roles and requirements of the two commissioners.

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[Baroness Hamwee]

My Lords, it may be helpful if I address this issue now so that we do not need to come back to it later. The wording is “standards applicable to persons”. Is the Minister saying that this refers to the standards used by persons but it is not applicable to them? If anything, it is about them: it is not who they are but how they work and the standards that they use. It reads as though it is much more personal.

[Lord Henley]

I think that my noble friend has got it right. If she has not, I will certainly write to her. The point I was trying to get across is that the standards apply to the process and not just to the person. I expect my noble friend is a better draftsman than I am—I give her an assurance that I did not draft this myself—but Parliamentary draftsmen are a law unto themselves. If we have not quite covered the point that my noble friend is making, we will look at it.

I was slightly surprised that Amendment 102 was spoken to by the noble Lord, Lord Tunnicliffe, but I appreciate that it is a probing amendment and seeks to find out what we are trying to do. I repeat that the Government, despite what the noble Lord, Lord Rosser, said, are committed to supporting the use of CCTV and ANPR—automatic number plate recognition—as very effective crime-fighting tools and to their being used with the support and confidence of the public. That is the important point we must remember. We need the support and confidence of the public, and that is why I mentioned the experience of Birmingham when debating an earlier amendment.

Such support will be dependent on transparency on the part of the system operator about the purpose of their camera deployment and the area in which the cameras are being used. Not only would Amendment 102 send a signal that operators can be more covert about their use of CCTV but, more fundamentally, it is likely to run contrary to the Data Protection Act. The Information Commissioner’s existing CCTV code of practice is very clear on the general requirement to let people know that they are an entering an area with CCTV coverage. The guidance states:

“The most effective way of doing this is by using prominently placed signs at the entrance to the CCTV zone and reinforcing this with further signs inside the area. This message can also be backed up with an audio announcement, where public announcements are already used, such as in a station. Clear and prominent signs are particularly important where the cameras themselves are very discreet, or in locations where people might not expect to be under surveillance. As a general rule, signs should be more prominent and frequent where it would otherwise be less obvious to people that they are on CCTV”.

As I said earlier, we saw in Birmingham that public confidence can very rapidly be undermined if the police and others are seen to be imposing these systems without the appropriate public consultation or support.

That is not to say that there will not be occasions when covert surveillance needs to be conducted using CCTV. We are not ruling that out. However, in such cases the surveillance will need to be properly authorised under RIPA. Clearly, in such cases there would not be the same expectation that the location of the relevant cameras was publicly disclosed.

On Amendment 106, I appreciate that it stems from a concern that justice might be prevented or denied in a criminal trial where the defence argued successfully that a small technical breach of the code is sufficient to demonstrate that CCTV or ANPR evidence is flawed and not of a sufficient evidential standard. From that starting point it might be possible to construct a scenario where, in an attempt to invalidate that evidence against their clients, lawyers would be falling over the detail of a relevant authority's performance against the code and seeking auditable records of any decisions made. We believe that that evidence may be very valuable in any trial, but it is rarely going to be the only source of evidence. I find it difficult to foresee a scenario where a case would be dismissed just because CCTV evidence is argued as inadmissible due to the system operator being in some way non-compliant with the code. The amendment should be seen in the context of a code that is intended to be a reference document to help ensure that surveillance cameras are used proportionately and effectively but which does not impose absolute requirements on operators. Against that backdrop, we do not believe that the provisions will give rise to the fears expressed by the noble Lord.

On Amendment 112A, I have a degree of sympathy for the spirit that underpins it. It seeks to ensure coherence between the requirements in the surveillance camera code and the Data Protection Act and I can see why there might be concerns about overlapping guidance in this area. Those concerns are precisely the reason why we are proceeding with the development of the code through close discussion with the Information Commissioner and his office. The Information Commissioner is keen to work with us to help ensure that there is effective regulation of surveillance cameras with clarity and coherence for both system operators and the public. I believe that that work will ensure that not only the code of practice but the roles and responsibilities of the two commissioners fit together and everyone can be directed to the right place for guidance, information and advice.

I think that I have dealt with the point raised by my noble friend Lady Hamwee, and I hope I have dealt with the points raised by the noble Lord, Lord Tunnicliffe. I hope that my noble friend will feel able to withdraw her amendment.

[Baroness Hamwee]

Indeed. I beg leave to withdraw the amendment.

Amendment 100 withdrawn.

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Moved by

[Baroness Hamwee]

111: Clause 34, page 26, line 2, leave out beginning to “as” and insert “Her Majesty by Letters Patent shall appoint an independent person”

[Baroness Hamwee]

My Lords, I am grateful for that clarification. Under Clause 34, the Secretary of State is to appoint the Surveillance Camera Commissioner. My amendment proposes that the appointment instead be made by Her Majesty by Letters Patent. The reason for this amendment is that the Information Commissioner, to whom we have referred several times this afternoon and previously in Committee, and who before holding this office was in a previous incarnation the Data Protection Commissioner and before that the Data Protection Registrar, is appointed through the process which I propose here. The roles of the Surveillance Camera Commissioner and the Information Commissioner seem to be complementary; there is a lot of common ground and certainly they have quite a lot of mutual interest. My amendment seeks to understand the distinction in the modes of appointment. Are the Government seeking to create some sort of hierarchy or, briefly, why is there a difference?

Before he had to leave the Committee the Earl of Erroll came over and said that he supported my amendment. Possibly his support is greater than the thrust of my amendment, at any rate at this stage, but I thought I should report that to the Committee. I beg to move.

[Lord Henley]

I am grateful to my noble friend for her amendment and for her explanation of what it is about. I am also grateful that she assured us that she had the support of the noble Earl, Lord Erroll, who I think has some very important hereditary role in Scotland which probably influenced him in his view of insisting that this should be a matter for Her Majesty rather than the Home Secretary.

I will make just a few remarks about the role of the commissioner which I hope satisfy her concerns. It is a role which will be pivotal in promoting first the new code of practice, and in assessing its effectiveness and impact. In particular, the commissioner is charged with encouraging compliance with the code, reviewing how it operates, and providing advice on the code. Precisely how the commissioner decides to fulfil those duties will be a matter for him, but it will involve an impartial and independent assessment of all the issues. Independence is something we want to stress.

As we have already made clear, as did my honourable friend when he debated these matters in another place, our intention is to combine the new role of the commissioner with that of the existing Forensic Science Regulator. The existing regulator, Mr Andrew Rennison, was appointed by the previous Government as the interim CCTV regulator. He therefore already has considerable grounding in this area, and he has established a wide range of contacts with interested parties. That will be helpful in his new role of promoting and monitoring the code of practice.

At the same time his work as the forensic regulator will provide a useful complement, as well as much relevant background, in the area of seeking to improve the consistency of use and standards of performance of CCTV. Improving the evidential value of camera usage and images is also an important area, and one which cuts across both roles.

At the moment—and I will come on to this—I appreciate that sometimes these matters are dealt with by the Home Secretary and sometimes by the Crown. However, I do not see the need to depart from the normal practice, that is that the appointment is made by the relevant Secretary of State, in this case my right honourable friend. As with any other statutory office holder, we would expect the Surveillance Camera Commissioner to discharge his responsibilities independently of ministers and without fear or favour.

As with other public appointments, the appointment process will be overseen by the Public Appointments Commissioner and from April 2012 it will be regulated by the Office of the Commissioner for Public Appointments code of practice. This will be the case whether the appointment is made by my right honourable friend or by Her Majesty on advice from the Government.

The amendment would not actually provide a materially different outcome in terms of independence of the officeholder. I appreciate that my noble friend has drawn a comparison with the Information Commissioner, suggesting that there is some sort of hierarchy between different appointments as to who makes them. However, that office has a somewhat wider remit and plays a key role in regulating the Government itself. The additional assurance provided by the appointment by Her Majesty is therefore justified in that case but I do not think it is warranted here, given the somewhat narrower focus of the Surveillance Camera Commissioner, and would not lead to a different outcome.

I hope that that assurance is sufficient for my noble friend. I assure her that we will want a robust, independent commissioner dealing with surveillance cameras and that the appointment process provided for in the Bill will secure that outcome. Although I appreciate that there are occasions when it is appropriate that Her Majesty should make the appointment on the advice of the Government, there are other occasions when it is just as appropriate that it should be by my right honourable friend the Home Secretary. I hope therefore that my noble friend will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, that response is helpful, particularly the comment about the Information Commissioner regulating the activities of the Government. Of course, the Minister will understand that we think that the way the Government use cameras should also be regulated, as in my noble friend’s Amendment 107. I accept that there will not be any difference in reality in the process, except for that last stage. It is important to have had the assurance that there is not a hierarchy in importance or in powers. I was concerned that there should not be, given the potential mutual interest—as I said, it is not quite an overlap—and I think we have had that. I beg leave to withdraw the amendment.

Amendment 111 withdrawn.

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Moved by

[Baroness Hamwee]

113: After Clause 35, insert the following new Clause—
“Commissioner’s report on alteration or replacement
As soon as the Commissioner considers it practicable but in any event not later than three years after the date provided by section 35(2)(a)(i)—(a) the Commissioner must prepare a report about the alteration or replacement of the code which shall in particular include reporting on extending the code to operators not initially subject to it;(b) the Secretary of State must lay a copy of the report before Parliament; and(c) the Commissioner must publish the report.”

[Baroness Hamwee]

My Lords, this amendment proposes that the commissioner should, within three years, prepare a report about the extension of the code to other operators. We have already touched on this in referring to Clause 33. My noble friend Lord Phillips, who has been taxing me with notes asking me to justify the drafting of this section, which is not my responsibility, asked under a previous amendment not about the extension of the code but about which operators were subject to it. He was asking why this chapter starts by appearing to be quite general and then becomes more restrictive once we get into the detail of Clause 33. He is nodding; I hope that I am interpreting him correctly.

My understanding of this is that because, under Clause 33(5)(k), more persons can be added to those who come within the definition “relevant authority”, Clause 29 and the succeeding clauses are drafted in that slightly wider way. I share my noble friend’s concern that “relevant authorities” should extend to a wider group of operators than are listed in Clause 33(5)(a) to (j).

A similar question was asked during the Committee stage in the Commons, and the Minister, James Brokenshire, said:

“The report—

this is the regular report to the commissioner—

“will be an instructive and formal means for the commissioner to telegraph clear recommendations about the code, its application and whether it is achieving its intended objectives”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 26/4/11; col. 364.]

My amendment takes the matter wider to those who operate the code.

It occurred to me only during this debate that it will be helpful to have—and I am sorry to be technical, but the noble Lord, Lord Faulks, will probably tell me that I am not accurate in this question—reassurance that the sui generis rule does not apply and that by having a list that is very specific we are not stuck to those organisations and persons who are similar to those listed in paragraphs (a) to (j) of Clause 33(5). Clearly there is concern that a much wider group of persons—private companies do not quite come within this—and all operators of CCTV, those who run shopping malls, for instance, should not be brought within the scope of the code. We know how the concerns have started, but the more we talk about it, some of us feel that there should be a code that is observed by all operators. While I understand that getting experience of the use of the code under one’s belt might be a good thing, I think that we would like to know that the position will be reviewed in fairly short order. I beg to move.

[Lord Phillips of Sudbury]

My Lords, I would just like to add a few points to those made very effectively by my noble friend Lady Hamwee. I regret to ask the Minister some questions, because it always seems churlish to spring technical questions upon a well meaning Minister, but I hope he gets advice from his rear quickly.

First, Clause 34 “Commissioner in relation to code” states that in Clause 34(2)(b) that the commissioner has the function of,

“reviewing the operation of the code”.

I agree with my noble friend Lady Hamwee that that does not, on the normal reading of those words, extend to consideration of the exercise of power to specify new bodies to be caught by the code under Clause 33(5)(k).

Secondly, will the Minister confirm that there is nothing in Clause 35 “Reports by Commissioner” that appears to authorise the commissioner in making reports to consider the point of extension of the code, which I would have thought justifies Amendment 113?

Finally, all those arguments would count for nought if in Clause 33(5)(k) the proper construction of “any person” is to confine “any person” to bodies comparable to “relevant authorities”. My own view is that it does not. In view of the opaqueness of the drafting of this part of the Bill and, as I said earlier, the fact that Clause 29 refers twice to “persons” but not at all to relevant authorities, I feel we need to be very clear of our ground here. In my humble view, there is a lot more concern about the operation of CCTV cameras by private interests than by public ones. I cannot think, for example, that the Sub-Treasurer of the Inner Temple is likely to abuse the CCTV cameras within his or her purview, but I am afraid I can foresee that some private operators might get up to things that are extremely undesirable.

The end of all that is whether the Minister can say to us now that he will take this away, look at it and if necessary bring forward his own amendment at the next stage of the Bill. I hope he might do that. I apologise again for springing this rather nasty group of questions upon him, but I was unprepared for the debate as it has evolved.

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[Lord Henley]

Obviously, I will take advice from those who are skilled in drafting, which is a skill that I have never learnt and I have no way round it. To me, it is quite clear that there is a relevant authority, and we list the relevant authorities, but “relevant authority” can be extended by subsection 5. Relevant authority is mentioned in subsection (1), but “any person” in subsection (2) would include all those in subsection (5)(a) to (j) and paragraph (k) when it expands the role of paragraphs (a) to (j). I suspect that we will not get very far by arguing this now, but it might be that we could discuss it later. It might be something that I can assure my noble friend that we will look at with the relevant drafting authorities to make sure that we get it right if he thinks that we have got it wrong.

I shall move on to the other questions that my noble friend asked about Clauses 34 and 35 and what the commissioner can do and how he can review the code. My noble friend felt that Clause 34(2)(b) on,

“reviewing the operation of the code”,

and Clause 34(2)(c) on,

“providing advice about the code”,

limit what the commissioner can do. Again, I stress that the commissioner is independent and it will be up to him to decide in the light of what is in statute. He will also have the ability to go beyond that should he so wish. The question that we come back to with the amendment concerns what sort of review we should have. I agree with my noble friend Lady Hamwee that it is quite right that we should keep the code under review, but I believe that the Bill provides adequately for that.

Clause 34 sets out the functions of the commissioner in some detail. They include encouraging compliance with the code and reviewing its operation. The commissioner is also asked to report annually on the exercise of those functions, and those reports will be laid before Parliament. In discharging those functions, we fully expect the commissioner to consider whether the code needs to be revised in any way and, no doubt, to offer advice and include recommendations to that effect in his annual report. We would also expect the commissioner to review from time to time whether the duty to have regard to the code should be extended to other operators, be they public or private, given that the extension of this duty is one of the ways in which he will be able, under Clause 34(2)(a), to encourage compliance with the code. Again, this is something that we want to do. Although the code will initially be binding on the relevant authorities only, we hope that others will look to it as the model by which they act. The commissioner will report annually on his functions so, again, we do not need to wait for up to three years, as suggested by my noble’s friend amendment.

With those assurances and that explanation, and accepting the point that we will certainly look again at what my noble friend Lord Phillips had to say about the drafting—I do not agree with him, but I might be wrong; I frequently am—I hope that my noble friend will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, the Minister referred to compliance by relevant authorities and others who might look at how it is working. That takes us straight back to Clause 33(5)(k) and whether the person referred to there is to be construed in the normal meaning of that language. I have been trying to catch the eye of the noble and learned Lord, Lord Scott, to tempt him to enter into this, but he has resisted, which is probably quite right. I see now that he is not going to resist.

[Lord Scott of Foscote]

Everyone who is mentioned in subsection (5) is either an individual or a corporate body and would fall within the meaning of the word “person”.

[Baroness Hamwee]

I think that might assist us. We are concerned that private corporations, if that is a concept that one can have, should be caught within the term “person”. The example that I used was the operator of a shopping mall. However, perhaps it is not fair to continue this debate in public. My noble friend Lord Phillips and I have made our concern very clear, and this debate is a little circular, so at this point the best thing I can do is to beg leave to withdraw the amendment.

Amendment 113 withdrawn.