Data Protection Bill [H.L.]

HL Deb 24 October 1983 vol 444 cc85-123

Consideration on Report resumed.

Lord Donaldson of Kingsbridge moved Amendment No. 17: Page 17, line 38, at end insert ("or the information is held for or acquired in the course of carrying out social work in relation to the data-subject")

The noble Lord said: My Lords, this group of amendments, with one or two more to Clause 29, is designed to reopenthe discussion we had in Committee on the difficult problem of exemptions from the subject's access rights to social work records. Here I want to make it clear that I am specifically avoiding the question of medical records. I understand, through discussion with my old friend and colleague Dame Elizabeth Ackroyd, who is chairman of the Patients' Association, that things are still under discussion with the DHSS and they are hoping to move things later on, perhaps in another place but not here tonight. Therefore, I am dealing this evening only with the problem of social work records.

The principles involved apply today really more to manual records than to those to which this Bill applies, which is computerised records; but increasingly we have to expect manual records to be kept in a form available and ready to be put on a computer. Anyway, I do not see how one can discuss the one without the other, so I make no apology for treating the problem rather generally.

With the leave of the House, I should like to speak to Amendments Nos. 17, 18, 19 and 20 to Clause 21, and Amendments Nos. 35 and 37 to Clause 29 at the same time.

Amendment No. 18: Page 17, line 38, at end insert— ("; and (c).if he cannot comply with that request without disclosing the identity of a person who has requested that his identity remain confidential where that person, not acting in a professional capacity, has given information to government departments, local authorities, voluntary organizations or other bodies carrying out social work in relation to the data subject;")

Amendment No. 19: Page 17, line 38, at end insert— (";and (d) if the request is for access to information held for, or acquired in the course of, carrying out social work in relation to the data subject, and the request is made by a parent whose child is the data subject, and that data subject does not consent to such access by the parent; unless, in the event of a dispute as to a child's capacity, a court has ruled that the child does not have the capacity to consent; and where a court has so ruled, or where the lack of capacity is not in dispute, a parent shall have a right of access, save that one parent shall not be entitled to see confidential information about the other without, where practicable, obtaining the parent's consent.")

Amendment No. 20: Page 17, line 39, after ("(b)") insert ("(and (c)")

Amendment No. 35: Clause 29, page 22, line 11, leave out subsection (2).

Amendment No. 37: Page 22, line 26, leave out subsection (3).

This is not an easy subject. I raise it in a probing spirit and not a controversial one. Our proposal is to exclude social-work records from the exemptions contained in Clauses 21 and 29, with the exceptions in my two amendments, Nos. 18 and 19, which are added to Clause 21(4). These two amendments are proposed on the assumption that Clause 29(2), and preferably (3) as well, be deleted. These amendments are also to satisfy the most serious exceptions indicated in the DHSS circular to which I shall refer later.

As a result of these changes in the Bill—if they are accepted—clients of social work would have a general right to access to anything filed about them, with the two special exceptions in my two amendments referred to. It would not be necessary therefore for the Secretary of State to have special powers to override this right—the special powers which are given to him in Clause 29. As to whether a refusal to respond to a request for information was or was not covered by one of the exceptions, the Minister himself has suggested that a right of appeal should exist, so the intervention of the Secretary of State would not be needed.

I hope that this is a clear statement of what we are trying to do. In a sense we are doing it the other way round from the Bill. We are giving the clients of social work reports a total right to information about what is said about them with the two exceptions which I have listed and which we shall discuss. The right response of anybody who does not entirely agree with us in my opinion would be to add further exceptions, but not to go back to the principles of the Bill as they stand.

I hope, as I have said, that this is a clear statement of what we are trying to do. Whether our series of amendments does it effectively is something on which the Government will doubtless have a good deal to say. I readily concede that there may be technical faults in our drafting, but the Government have brilliant draftsmen to draw on if they agree that our way is better than the much looser method in the Bill. I would particularly draw the attention of the House to the proposed amendment to Clause 21(4)(d) which deals with the issue of social work files and third party information. It is quite normal for files of this sort to contain such information, and to exclude subject access on this ground would unjustifiably deny social work clients access to the reasons for many of the significant decisions made about them.

I should like to quote here, without mentioning names, the procedures in one large county social services department. This operates on a country-wide system with a central computer jointly available to the social services department, the health authority, and the police. Clients have no access to the information on file, and staff are discouraged from mentioning the existence of files. Joint use of the computer must mean that the files are available to the police. This is only one anonymous example but it is a well-documented one, and one can assume that there are similar systems elsewhere in operation.

It seems to me clear that my amendment that we discussed last, No. 16, enforcing data protection principle No. 7, is really most necessary. The least we need is that any client can ask (a) whether there is a file on his or her case; and, (b), what is in it. Under my amendments, (a) could in no circumstances be refused; and (b) could be refused only if it could be shown that the material was covered by (4)(c) and (4)(d), which are my two amendments in question.

I should like to say a word now about the reasons for this proposed change. My noble friend raised the same general point in rather a different way in Committee in our discussions on Clause 29. Incidentally, there were no amendments to Clause 21 in Committee. The Minister, during the discussions, said: The Government are convinced that there are difficult issues here that should only be resolved after the fullest consultation." [Official Report, 21/7/83; col. 1305.] There has been discussion—perhaps a little hurried—and the DHSS circular LAC(83)(14) of 24th August is the result. This recognises the major change in the thinking of social work organisers and social workers about the correct attitude to clients, but it does not go far enough for most of the people concerned.

In Committee, I referred to the views of the family service units, with which I had previously been connected, and my noble friend mentioned the British Association of Social Workers and the Children's Legal Centre. These three organisations and most others working in the same field, including the National Council for One Parent Families, MIND and the National Association of Young People in Care, are disappointed at the circular's failure to make a clean break. Their views amount to the belief that social work records should be kept in such a way that they are confined to facts rather than opinions. The British Association of Social Workers' document on this subject goes so far as to say: A records system should reflect the fact that the perception, interpretation and recording of complex human interaction is always biased by the personal make up of the recorder and the social context in which the records system is created and used and therefore should he designed in a way which minimises these effects".

It goes on: It should reflect the fact that recording is a residual activity which will be done when no more important activity is required".

It goes on to say: Restricted information on an individual, collective or family file should be kept separately with a note being made on the file that information exists which is restricted and its whereabouts.". These extracts show how completely the attitude of the social worker has changed in the last 10 years or so. In my day confidentiality was a fundamental factor in the notes which workers exchanged with one another about their clients. The reaction against this is healthy and ultimately it may well be more disturbing to a client to be told that, for whatever reason, he or she cannot see what is in his or her file than to see the contents of the file, whatever it may contain. The same point was made earlier this evening.

It has taken me a good deal of thought to come round to this view as my past experience has been so different. But most social workers are young and this House, not notable for its youthfulness, should try to legislate for them and their clients and not for their grandfathers.

There are long and weighty arguments which I could have used, but we are at Report stage and must be concise. The noble Lord the Minister knows the arguments and has doubtless seen the documents on which they are based. He is aware of the fundamental change in attitude to clients which is taking place. I hope I have said enough to give a full and frank airing to these views, which are very strongly held by social work clients and their representatives and by a large section of the new generation of social workers. I beg to move.

8.16 p.m.

Lord Avebury

My Lords, as my noble friend has reminded us, we had a discussion on some of these difficult problems when we covered the order-making powers in Clause 29 at the previous stage. The Minister then said that those provisions had been included to allow full consultation to be undertaken before, with a view to deciding what restrictions on the right of subject access there should be, if any, in relation to medical and social records. One can appreciate that, when the Bill first saw the light of day, it would have been impossible to define the limits on subject access. Therefore, as originally drafted, it was necessary to give the Secretary of State an unfettered discretion to restrict that right where personal data were held for carrying out social work in relation to the data subject, if the Secretary of State considered that otherwise the carrying out of that work was likely to be prejudiced.

I should remind your Lordships that it was only a week before the previous discussion that we received the Government's consultation documents. I thought it was a little unfair of the Minister to complain at that time that he was given only 55 hours' notice of the amendments that we then tabled, when we had read the consultation documents, taken advice on them, drafted our amendments and tabled them between a week and three days before the debate took place. I do not think that it was bad going to have given a preliminary airing to the subject after only four days' study of the documents.

My noble friend and I have now had the opportunity of further discussion with the various organisations that he mentioned. We concluded that, out of all the contra-indications to disclosure which were mentioned in the two discussion papers, the protection of sources of information and the protection of children from their parents, which are points (c) and (e) in Paper I, are valid.

We thought it was essential to social work that a person should be able to give information without risking disclosure of his or her identity. The obvious example is that of a neighbour who sees or hears evidence of an assault on a child living next door. That neighbour should be able to give the facts to a social worker knowing that it would not lead to unpleasant confrontation with the alleged assailant. That was one of the paragraphs dealt with by my noble friend's amendment. We were convinced also by the argument in Paper I that the interests of parents and children may not always coincide. We think that that should be recognised explicitly in the Bill.

Paper II says that children's rights are the same as those of adults, but, if the child is incapable of exercising the right by reason of his or her age, the parent or guardian may exercise the right of subject access on behalf of the child. Our amendment would stop that parent from accessing records unless the child consents or a court has ruled that the child does not have the capacity to consent.

In the opposite direction, we were not satisfied that the damage to reputations or relationships which might follow disclosure of information on the data subject's file to third parties justified the withholding of the entire record under Clause 21(3)(b). We have dealt with that in the second of our amendments to that clause. We appreciate that opinions on this matter vary considerably among professionals in client organisations and that some people maintain that social workers may restructure their records in order to exclude froma particular individual's file information which may be highly relevant about other family members or associates. The obvious way of dealing with that problem would be to specify a field in the data subject's record in which the file's references to other relevant individuals would be stored.

It was interesting to note that, on the form used by the county council to which my noble friend referred for recording the information then to be fed into the computer, the only information asked for on other members of the household was the name, date of birth, sex and marital status. That was factual information which would be known to the client himself or herself. If there was relevant information on other members of the household which the social worker needed to access in full consideration of a particular client's case, the social worker would need to look into more than one record. I understand that they sometimes keep whole families on one record when they are held in manual form: but it is an incidental result of computerisation that that will become more difficult. So I think that, because social workers will need to reconsider very carefully the form in which their records are kept, it may not be so difficult as was presented to us by some of our advisers to separate out the individual records of members of families one from another.

I must say that we were agreeably surprised by the tone of the DHSS consultation papers, and we welcome also the recognition in the Government's circular No. LAC 83/14, to which my noble friends have referred. Nowadays, the emphasis has shifted towards the right of subjects to know what is reported and away from the right of officials to say anything that they please about individuals under the cloak of a blanket of complete secrecy. I particularly welcome the forthright statement in Paragraph 4: The Secretary of State believes that the need to refuse requests from clients to know what is said about them in case records will arise only exceptionally. That shift needs to be visible in the Bill itself instead of being left to show itself in other orders, and we hope very much that the Minister will accept these amendments.

8.24 p.m.

Lord Elton

My Lords, with this complex series of amendments we return to the difficult question of the extent to which the right of subject access should apply to social work records. I am grateful to the noble Lord, Lord Donaldson, both for his notice and for his patient exposition of the intention of these amendments, because I have found them a little difficult to follow. Now let me recap on their effect. Clause 29(2) provides the Secretary of State with an order-making power to exempt from the right of subject access or to modify that right in relation to social work records. As I explained during Committee stage, we have included this power because, while there is general agreement that some special provision will be needed concerning subject access to such records, the precise nature of that provision must depend upon the views of the practitioners in that field. That is why the Department of Health and Social Security issued a consultative document on the content of the order under Clause 29(2), ensuring that the relevant professions and other interested parties had a full opportunity to express their views. Responses to their document, I gather, are still arriving. As I have said earlier, I think that about two-thirds have arrived, and we await others. The department has yet to digest fully the representations that it has received.

The noble Lord, Lord Donaldson, puts before us a proposition to consider that we should do away with the order-making power in Clause 29(2), and, in the process, he also does away with subsection (3), although that applies equally to the order-making power under Clause 29(1) concerning health records, which ought perhaps to be retained. However, I let that go.

In its stead, these amendments would provide two new paragraphs in Clause 21(4) setting out two circumstances in which subject access to social work records may be refused. I gather that what the noble Lord fears is that the Government have it in mind to allow more grounds for refusing subject access to social work data than he wishes to see. Certainly the Government in the consultative document on the Clause 29(2) order, have set out certain possible ideas which allow for further grounds for refusing access than would be permitted under the noble Lord's amendments. Equally, in a recent circular referring to the general issue of access to records, manual as well as computerised, the DHSS, after consultation, has indicated that it sees those further grounds as being justified. It suggested, for example, that access might be limited in certain cases to protect the subject or to maintain the confidentiality of sensitive judgments, or to prevent access to information about other individuals covered by the same record.

In a profoundly interesting speech, the noble Lord argued that certain of the professional bodies concerned believed that it would be unduly restrictive to withhold access to that extent; and he sides with those bodies. I do not for a moment underestimate the force of the views of the bodies cited by the noble Lord, but I understand that expert opinion is not all on one side and that various other organisations, commenting on the question of access to records generally, felt that the DHSS proposals struck broadly the right balance. These included the Association of Directors of Social Services, the Residential Care Association and the National Council of Voluntary Child Care Organisations.

Therefore, I respectfully submit to your Lordships that what this demonstrates is the need to allow adequate time—and I am sorry that noble Lords feel that such time ought already to have been adequate; but, frankly, it has not been so—for the fullest consideration of these difficult issues and of the differing and sometimes conflicting views being expressed. It would be wrong to pre-empt all further consideration by setting the exemptions in tablets of stone now. I do not think that that is what the noble Lord is proposing. I think he is proposing that we should at least adopt an attitude now which forecloses answers other than those which he himself favours.

I do not think that I or the Secretary of State, or the Department of Health and Social Security and its Ministers, would wish to foreclose any of the options remaining open until they had considered all the views expressed, both those which have come to hand and those which are awaited. I think that there is nothing dilatory or pusillanimous about that: I think it is a matter of proper prudence. If we ought to have had the information earlier, well, I regret it; but since we do not have it we are in the position of having to await it.

The issuing of the circular on the general question of access to social work records does not mean that the Government have effectively taken decisions on the exemptions to be granted from subject access to computerised records, although I accept that a sensible starting point would be the presumption that the same arrangements should be adopted for both types of record. The Bill creates a different situation raising new issues by conferring a legal right of access; and different provisions may, therefore, be necessary. No final decisions have yet been taken with regard to the contents of the Clause 29(2) order.

The noble Lord, Lord Avebury, also contributed a most interesting dilation on what I can best describe as the cascade of levels of confidentiality envisaged by him and his noble friends. Those I shall refer to my colleagues with great interest. But I think I made clear that there are broad reasons why the Government think it appropriate to deal with the subject access to social work records as the Bill proposes, thus not closing any doors. There are, as the noble Lord suggested, a number of drafting defects. I do not think that that affects my judgment at all. I am not addressing myself to them. I would hope that what I have said will persuade the House that the Bill as cast adopts the proper approach and that the noble Lord would agree that I have justified what we now propose.

Lord Mishcon

My Lords, there is not the slightest doubt that this is a most difficult part of our consideration. Quite a different approach has to be made, as has been pointed out, to medical records from the considerations which apply to social workers' records. Almost the only consideration in regard to medical records is whether or not it is for the good of the patient to know what is upon them. But when we get to the question of social records, very different considerations apply. On one side, are you limiting the power of the social worker to do good by limiting the things that he records? On the other side, are you stopping someone from pointing out that there is a grave error?—and grave errors have administratively occurred in many directions affecting mental health and things of that kind. Are you stopping him or her from putting right what is wrongly on a record by withholding the information from the client of the social worker?

I feel, and my friends feel with me—although this is by no means something which political parties can deal with on the basis of a political decision because it is very much a human matter on which one can hold very different views without any consideration of party loyalty—as I tried to express before, that to leave a matter of this kind to the haphazard future that it might have by way of statutory instruments or orders-in-council is to divest Parliament of a heavy responsibility which Parliament ought not to shift in this way.

I repeat—and I hope the noble Lord the Minister will not think me a nag for doing it—that with a Bill which appears for the second time before Parliament, with all the intervening space that has occurred as a result of the Bill's having died in the last Session, not to have accumulated all the relevant information from the bodies concerned and to have assimilated that information and come forward with a judgment so that this House and another place might debate it is, if I may say so, quite irresponsible. I am left with the suspicion that the reason nobody has tried to expedite this is because it is a very difficult decision that the Government would have to make in affording guidance. One does not make a decision any easier by leaving it to an order-in-council with, as I say, the procedure in regard even to an affirmative resolution, one that we well know.

I leave the Dispatch Box with complete unhappiness in the sense that there is no proper guidance upon this matter. I am so grateful, as are my noble friends, to the mover of this amendment, the noble Lord, Lord Donaldson, and to the noble Lord, Lord Avebury, for having brought out these principles perfectly fairly and properly and for saying that they are doing it for the purpose of achieving a discussion of these matters which is so vital. If the Government have to leave it by opposing this amendment and saying, "Leave it until the consultation is over and it may be that will be a date after the other place has considered this matter and this has become an Act of Parliament", I repeat that this is a very unhappy state of affairs. It is one which, if I may say so—and I am not trying to use dramatic language—has some flavour of cowardice about it in front of what is a very, very vital matter for so many social workers and so many clients of social workers.

Lord Elton

My Lords, it is not the custom for Ministers to join in twice on other people's amendments, but I feel I must respond to the point which the noble Lord, Lord Mishcon, has just contributed. I am not concerned to defend the Government's record as to the speed with which they have sought advice because I do not think that is germane to our debate; but I do say it is necessary to have the advice in order to make the right decision. The noble Lord, Lord Mishcon, says that the decision should not be remitted by Parliament to another body. If that is right, then the proper answer to the argument is simply to detain or delay legislation until the advice is to hand. That was an alternative which presented itself to us when we first went for the advice. Because we saw that we could not get sufficient advice in time for legislation in the timetable, we decided to go for the order-making power. I think that was the right decision.

The noble Lord—and I am sure he will repent of this—suggested that this was a cowardly decision because the decision was going to be a difficult one to make. The degree of difficulty will depend very largely on the balance that is finally presented in the different bodies of advice given to the Government. If they are equally balanced it will be a difficult decision; if they are very preponderantly on one side it will be a great deal easier. I do not think, with respect, that the noble Lord advances his cause by suggesting that the Government are influenced by cowardice in this business. I do not intend to make an issue of it but I do think it would he imprudent to proceed ahead of the knowledge that we genuinely need to come to the right and, as it may prove, difficult conclusion. The way to do that is not to legislate now in one sense and to exclude the possibility of the other. The Government's mind is not made up: it will remain open.

Lord Donaldson of Kingsbridge

My Lords, I am delighted to hear that the Government's mind is not made up. That takes us a long way because this is a changing situation in the thought of the people concerned. I have changed my mind completely in the past year as a result of talking to the people who are concerned. I am very surprised at having been able to do so; but I am quite clear that this is right and I hope the Government will follow.

I rely on my noble friend, if I may so call him, Lord Mishcon, to do the "rough stuff" and so I will not say any more—just as when we want to attack the Labour Party we rely entirely on the noble Lord, Lord Boyd-Carpenter. But I think I must say that the Second Reading of the original Bill was on the 20th January. I think something needs an explanation, although I do not ask for one tonight, because the consultative paper was sent out only in July. That is not a very prompt response to a new situation. My complaint is that this is what we get every time both from the Home Office and the DHSS. We get a very slow response to a new situation. This is a new situation: it is new to me and to my friends and to the noble Lord who is replying. It is new to all of my generation and a couple younger as well.

We used to regard confidentiality as the one thing you had to insist on, and the workers now do not like it. They are against it, I think to a man really. Some of the organisers of social work are on the other side; but there is hardly a single social worker in the field, so far as I can make out, who does not believe that access to what is recorded about you, not only in a computer but also manually—though that does not concern this Bill—should be available to you.

I do not want to go into all this again because we have been through it before. I should like to say just one thing, and I refer to Clause 29(3). I shall not speak to it when we come to that amendment because we shall withdraw it but Clause 29(3) is absolutely extraordinary. It says: An order under this section may make different provision in relation to data consisting of information of different descriptions. Could I have a short essay with a dozen examples of what that means? It seems to me almost entirely meaningless. I think that to give Secretaries of State the right to do something that is meaningless is going too far. So I say that when we come to this clause I shall not speak on it but I think we might take a verbal vote anyway, because it is really such nonsense.

Having said that, I said originally that this was a probing amendment. I wanted to get this matter discussed. It has been discussed and the people concerned on both sides will read what we have said. It will not end there. I think it has been useful and I appreciate the trouble that the noble Lord has taken in replying to us. On that note of sweet accord, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 18 to 20 not moved.]

8.40 p.m.

Lord Elwyn-Jones moved Amendment No. 21:

After Clause 21, insert the following new clause:

("Exercise of rights by data subject not to be condition of employment.

1. .—(1) It shall not be a condition of employment or of a contract for service or an offer of employment or of a contract for service or of the provision of goods or services that a data subject exercise his rights under Part III or furnishes to any person a copy of the file obtained in accordance with the provisions of Part III; and any person who attempts to impose such a condition shall be guilty of an offence.
2. (2) For the purposes of Part V of the Employment Protection (Consolidation) Act 1978 an employee shall be treated as unfairly dismissed if the reason or principal reason for his dismissal is that he has refused to exercise his rights as a data subject under Part III of this Act and/or that he has refused to furnish to his employer or any other person a copy of the file relating to him obtained in accordance with the provisions of Part III of this Act.").

The noble and learned Lord said: My Lords, on the face of it, this would seem to be a somewhat academic matter, but it is not at all so. It is a provision regarding the possibility—which in the United States has proved to be more than that; namely, indeed, the probability—in respect of a certain type of employer, that he will seek to compel the employee to exercise his right as a data subject to be informed of what is on the record about him and then to communicate that information to his employer. This would require the employee to find out what there may be, or is, about him in some form of data processing and then to let the employer have that information. The employer may indeed ask that every six months he should be informed of what there is on whatever data process may be relevant about him; for example, a social security report. The employee would then be required to make that available to his employer and so perhaps be compelled to incriminate himself on something that may be erroneous, or be required to rectify what is erroneous and embark upon a wholly complex and possibly expensive procedure. Once a system of access if formalised, we fear that the practice may develop of some employers demanding some form of certificate of good conduct from prospective or even current employees.

Curiously enough this matter arose in Washington, D.C. and was the subject of a report to a conference held in October, 1982, in the Inner Temple on computers and the law at which Commander Williams, the head of the National Identification Bureau, spoke. He indicated that this practice was, in fact, being used in Washington, D.C. to the intense anger, embarrassment and difficulty of the employees concerned. We think that any such practice would be intolerable. To be accurate, the relevant document would require regular up-dating, considerable expense for the employee and of course a heavy administrative burden on the staff of the index involved.

This experience in Washington, D.C. has proved to be not an idle and purely academic risk; and it is something which, now that this Bill is going through Parliament, will in due course become law. We think it right that the exercise of rights by a data subject ought not to be a condition of employment and, indeed, that any person attempting to impose such a condition on his employees should be guilty of an offence, as subsection (1) indicates. It would be a monstrous, as the French say, abus de pouvoir on the side of the employer and we feel that it ought to be legislated against, even as a possibility, at this stage. I beg to move.

Lord Elton

My Lords, the noble and learned Lord has explained the concern which lies behind this amendment and it is a concern which I fully understand. It is, I think I am right in saying, the first time that it has been raised in the context of this Bill and I am afraid that we cannot do it the justice which we could have done it had he raised it at Committee stage; but I shall do my best. The noble and learned Lord is anxious lest the right of subject access should prove in some circumstances to be a hindrance rather than a help to data subjects; in particular, in the field of employment. This is a possibility which had not escaped us and we have, in fact, considered whether something might be done to avoid the sort of abuse which the noble and learned Lord has in mind.

There are however a number of difficulties. In the first place, it is not easy to see why a prospective employer should necessarily be prohibited in all circumstances from asking a job applicant for written confirmation—which is accessible by exercising the right of subject access—of certain details given by the applicant in his application form. After all, as things stand at present, if the applicant says that he has certain qualifications, nobody I think would object if the employer were to ask to see written evidence of them in the form of a certificate, an O-level or whatever. Similarly, there would I think be no objections to the manager of a road haulage firm asking prospective employees to produce a valid driving licence, which, unlike the O-level certificate, may reveal evidence of convictions for motoring offences. What then is the difference between these cases and others where we might say that a requirement to produce information by exercising subject access rights, was improper or unfair? I suspect that the answer lies in the circumstances of the individual case and has nothing to do with the manner in which the information is obtained. In other words, much depends upon the type of information which is being sought and the relevance of that information in the particular circumstances. But the noble and learned Lord's amendment does not recognise such considerations and imposes an absolute ban on employers requiring information to be obtained for them by the data subject under Clause 21.

We are here very much in the field of employment practice, rather than data protection. We accept, after all, that an employer should be able to ask for references from an employee and that he may ask referees for as much detailed, personal information about the employee as he considers necessary and relevant. If this is not an unfair employment practice, I wonder whether it is right to say that it is unfair to ask the subject himself to provide the information. In either case, the subject may refuse to comply with the request and may as a result fail to get the job. But I am not sure why the employer who has asked directly for the information should be penalised while the one who has asked for the same information from a referee should not. It seems to me that if there is a problem here—and there may indeed well be—it is one which needs to be looked at in the context of employment practice generally and not simply against the background of data protection.

Moreover, it is I think worth pointing out that a provision of the sort proposed by the noble and learned Lord would be likely to give rise to a number of difficulties of enforcement. It is, after all, unlikely that an employer would put in writing a request to see a copy of data obtained by the subject under Clause 21 if he knew that it would be an offence to do so. Equally, successful applicants would have no reason to go to law. Any prosecution therefore would resolve itself into a dispute between a prospective employer and a disappointed applicant and I can foresee that there might be considerable difficulties in attempting to distinguish between genuine allegations and malicious ones prompted by a failure to get the job in question for perfectly legitimate reasons.

I have tried to explain the general range of difficult questions of both principle and practice raised by this amendment, which touches on very important ground. I do not suggest that it does not address an area which is well worth consideration. But I do suggest that it appears to be aimed at removing from prospective employers a right which at present they exercise without question—in most cases at least—and that it may present fairly considerable difficulties in enforcement. These are matters which would have to be teased out with some care before we concluded them in one one way or another. I certainly could not advise your Lordships to accept them in our present state of knowledge; and Report stage, I regret, does not offer a sufficient means of improving the amendment in this House. I am sorry that I cannot be more friendly to what the noble and learned Lord has said. I recognise that there is a matter of substance here, but I do not think that we can cope with it at this stage.

Lord Donaldson of Kingsbridge

My Lords, I did not quite understand the noble Lord's argument. As I see it, the amendment states that it shall not be a condition of employment—not that the employer should be forbidden to ask the man to do it, but that it shall not be a condition of employment and any person who attempts to impose such a condition shall be guilty of an offence. The entire argument of the noble Lord seemed to me to be that there was no harm in the employer asking the man to do it. Of course there is not. The point is that he cannot enforce it. I do not know whether I have misunderstood both sides, but it seems to me that the amendment is perfectly clear and that the noble Lord's answeris entirely irrelevant to it.

Lord McIntosh of Haringey

My Lords, the noble Lord the Minister has indicated that there is a possibility of further consideration, even if for another place rather than in this House. That is a small step forward and I am grateful to him for it. When the Government give the matter further consideration, may I ask them to consider two things which were lacking from the noble Lord's statement?

First, the noble Lord gave a number of examples, which were quite incontrovertible, where an employer would have to seek confirmation of what was being claimed in terms of academic degrees, or a valid driving licence, or whatever it might be. Unless I misunderstand the amendment, this is not what either the amendment or the Bill are about. We are talking about data subjects. This is itself confidential and will be dealt with in Amendments Nos. 33 and 34. It may be that this amendment needs to be revised in order to make that absolutely clear, but information which is obtained under conditions of confidentiality and which, under the provisions of the Bill, is made available to the data subject is quite different in nature from that which is publicly available, such as a driving licence or an academic record. When the Government look at this matter again, they ought to make that distinction and consider a future amendment which takes into account that distinction.

The second point which the noble Lord, Lord Elton, made is that this is an issue of employment practice rather than of data protection. That is true of a large number of the subjects of this Bill. The Bill is about the way in which data processing impinges on all sorts of aspects of our lives, but the fact of the matter is that the availability of data processing and the possibility of abuse of data processed information affects employment practice as well as affecting various judicial practices and various social practices and other aspects of our life. It is no criticism of the attempt to include a provision of this kind in this legislation to say that this is a matter of employment practice. In so far as employment practice is changed by the availability of mechanically processed data, then it should be a part of the Bill.

The Earl of Halsbury

My Lords, would it be helpful to reconsider the wording of the amendment so as to deal rather less ambiguously with the distinction between employment and prospective employment? It seemed to me, listening to the debate which has taken place, that you cannot impose conditions on a prospective employee because you have no sanctions on him. On the other hand, once he has become an employee, an inquest into his past ought surely to be brought to a close—a sort of res judicata. If the wording could be redrafted so as to make it a little clearer that there is much more latitude in considering prospective employment than in imposing conditions on people who have been employed, I believe that it might be a way past the difficulty where the noble Lord. Lord Elton, wants to be helpful but cannot quite see how at this moment.

Lord Mishcon

My Lords, the noble Earl very often helps the House and I believe that he may have helped the House on this occasion, but I should like to add one very short point. In this Bill we are for the very first time affording rights to data subjects and casting duties upon data users. It would be an entirely wrong way of adapting the principles of this Bill if what we were doing was to give somebody outside both classes of data subject and data users rights which they never had before this Bill was passed. As my noble friend Lord McIntosh of Haringey has said, we are not dealing with examples that the noble Lord the Minister gave of producing a driving licence, and so forth. That is there to be produced and is a perfectly proper requirement, and the driving licence will have endorsements upon it if they are there to be seen. It has got nothing to do with producing a certificate relating to the award of a diploma or degree. But what it does do for the very first time, if we are not careful, is that it enables an employer to say, whether by way of an offer of employment or the continuance of employment, that he wants to be sure that that person has rights under the Bill, that he wants to enforce those rights so far as that person is concerned, and that it is a condition of the offer of employment and of the continuance of employment that he applies under Part III of the Bill and produces it. This must be wrong.

However, the noble Lord the Minister has said—and it is a perfectly fair comment—that this point was not raised at the Committee stage. I say in all frankness that it was brought to the attention of my noble and learned friend and myself between Committee and Report stage, but I hope that the noble Lord the Minister will say at Third Reading what the Government's attitude is to this point and how far he can help, because I believe it is something which this House ought to attend to. We should not just leave it to another place.

8.58 p.m.

Lord Elton

My Lords, so many of your Lordships have trailed your coats that perhaps you will allow me to tread briefly upon them. I think the tone and content of the speeches has absolutely borne out my point that it is a Committee stage proceeding that we need. I shall deal briefly with the points which have been made.

The noble Lord, Lord Donaldson of Kingsbridge, said that the amendment was addressed only to those who sought to make it a condition of employment that information should be provided, but as soon as they seek not to appoint someone because they have not provided this information they will be imposing a condition. Therefore the process would seem to me inevitably to follow. If an employer wishes to know if somebody has a criminal record, he is entitled to ask; but as soon as he asks, either the answer is no good to him, if the applicant tells him to go and get lost, or the applicant is not appointed and the suspicion is that he is not appointed because he has not provided the information. I hope the noble Lord will not return to that charge. I merely wish to illustrate the difficulties that I see which could not be dealt with at this stage.

The noble Lord, Lord Mishcon, invites me to come to a conclusion by Third Reading, which is only a few days off. I cannot undertake that, but what I can undertake is to take the various items of concern expressed by noble Lords, principally by the noble and learned Lord himself but also by those who spoke, to my honourable and right honourable friends so that they may be apprised of them before the Bill reaches another place. With that, it would be an abuse of the procedures if I were to reply to the other detailed points which were made because they can be made better in Committee elsewhere.

Lord Elwyn-Jones

My Lords, I appreciate that this comes to the House for the first time, but the fact is that it comes from the context that the problems we have raised have arisen in actuality in not entirely dissimilar conditions of employment. As we are creating a wholly new scene which can make its impact on employment relationships, this is a matter which ought to be clarified. I quite see the difficulty of pressing the view that there should be a decision between now and Third Reading. As the noble Lord has undertaken to draw this problem, in all its seriousness and all its actuality, to the attention of his Ministerial colleagues, this will come as a message (and I do not mention this as a threat) to my noble friends and to our honourable friends in another place, and even if nothing further can be said by the Government at Third Reading I do not promise there will not be some observations about it then. In all the circumstances, and stressing the importance of this safeguarding measure preventing abuse by the unscrupulous, I ask leave to withdraw the amendment.

Amendment, by leave withdrawn.

Lord Elton moved Amendment No. 22:

[Printed earlier: col. 24.]

The noble Lord said: My Lords, I spoke to Amendments Nos. 22, 23 and 24 with Amendment No. 4. I believe the noble Lord, Lord Mishcon, wants to make an observation on Amendment No. 22, and I therefore move only Amendment No. 22.

Lord Mishcon

My Lords, the noble Lord the Minister is very courteous. I did have an opportuiity to give him very short notice of the point I am about to raise. This amendment deals with a very important matter; that is, the compensation that can be awarded to a data subject by reason of an inaccurate record. The amendment says: In the case of data which accurately record information received…by the data user from the data subject or a third party, subsection (1)"— that is the one that gives the right to compensation— does not apply if the following requirements have been complied with. There are certain requirements which I need not read, but they are important requirements which, upon being fulfilled, deny the right of the data subject to his compensation.

The question I put to the noble Lord is this. The amendment has got no date in it by which the data user can exempt himself from this liability by complying with these requirements. For example, the inaccuracy may be there for a very substantial period of time, and the minute before the matter comes before the court for the claim to compensation information may reach both the court and the data subject that these conditions have now been complied with. In the meantime, the poor data subject has suffered all the wrong by reason of the inaccurate information being there, and only at the last minute has the matter been put right. There is nothing here about the fact that it would have to be done immediately, within a reasonable time or by a given date. My query is: when have the requirements to be complied with in order to deny the data subject the right to compensation?

I say, frankly,that this is how I read the amendment. It may be that I have missed something, and the noble Lord the Minister, with his usual graciousness, will point out the error of my ways or the omission of which I am guilty. But if it happens to be a point that has some substance I believe your Lordships would want to know about it, and that is why I have raised it.

Lord Elton

My Lords, I am grateful to the noble Lord for his courtesy in giving me warning. The date that he is looking for is the date in Clause 22(1)—the date on which the subject suffers damage by reason of the inaccuracy of the data. That inaccuracy must exist at the time the damage is caused, and subsection (2) cannot on any reasonable construction nullify that by allowing the user to remedy the inaccuracy after the damage has been caused and so avoid liability. So the idea of somebody coming up to him on the steps of the court and saying, "Sorry, old chap, but I put this right last night", does not arise.

However, I have had but little time to take advice. I will take further advice and will make myself 110 per cent. sure that this is the case. If it is not, I undertake to let the noble Lord know and to take the appropriate steps.

Lord Mishcon

I am much obliged to the noble Lord.

On Question, amendment agreed to.

Lord Elton moved Amendments Nos. 23 and 24:

[Printed earlier: col. 24.]

On Question, amendments agreed to.

9.8 p.m.

Clause 23 [Compensation for loss or unauthorised disclosure]:

Lord Elton moved Amendments Nos. 25, 26 and 27:

Page 19, line 19, after ("data") insert (", or access having been obtained to the data,").

line 23, leave out from second ("to") to second ("in") in line 24 and insert (", or access by, any person falling within a description specified pursuant to second 4(3)(d) above").

line 29, leave out ("or disclosure") and insert (", disclosure or access").

The noble Lord said: My Lords, with permission, I will take with Amendment No. 25 the other two amendments to Clause 23, Amendments Nos. 26 and 27. Clause 23 provides the data subject with a right to compensation if he suffers damage as a result of a data user's failure to take adequate security precautions. It thus provides a cause of action where there is damage caused by a breach of the eighth data protection principle. The failure in security may result in the loss, the unauthorised or accidental destruction or the disclosure of data without the authority of the data user; and, as cast, Clause 23 deals with these situations.

But these are all cases of deliberate disclosure. There is no provision in the clause as drafted for negligent disclosure, which may, after all, be equally improper and equally damaging to the data subject concerned. Inadequate security may lead to unauthorised persons gaining access to personal data. In some cases unauthorised disclosure will also be involved, but we have come to realise that this will not invariably be the case. A person may, for example, secretly tap in to a user system without there being any positive disclosure of data to him;or because of inadequate physical security that person may be able to gain direct access to the equipment and operate it illicitly himself. Clearly, if a data subject is harmed as a result of poor security allowing someone to gain unauthorised access to data held about him in these ways, it is right that Clause 23 should allow the subject to obtain compensation. That had always been our intention, but Clause 23 did not perhaps fully give effect to it.

These amendments, therefore, insert into Clause 23 the appropriate references to unauthorised access, thereby ensuring that there is no barrier to the subject claiming compensation in the kind of case I have described. I think this is an aim with which your Lordships will sympathise. I beg to move Amendments Nos. 25 to 27.

On Question, amendments agreed to.

Clause 24 [Rectification and erasure]:

Lord Elton moved Amendment No. 28:

[Printed earlier: col. 24.]

The noble Lord said: This amendment is another to which I have already spoken with Amendment No. 4. I beg to move.

The Deputy Speaker (Lord Aberdare)

As an amendment to this amendment we have Amendment No. 29.

Lord Elwyn-Jones

I am sorry my Lords, but have we passed by Clause 28? I was hoping to make a comment on it.

The Deputy Speaker

Amendment No. 28 has been proposed and we now come to Amendment No. 29 as an amendment to No. 28.

Lord Mishcon

My Lords, I was endeavouring to speak on Amendment No. 28.

Lord Elwyn-Jones

On new Clause 28, my Lords?

Lord Mishcon

My Lords, on new Clause 24, as in Amendment No. 28, if the House will bear with me.

Lord Elton

My Lords, I wonder whether by any chance we are at cross-purposes. Amendment No. 28 is one to which I spoke with Amendment No. 4. The amendment to new Clause 24 is in Amendment No. 29. The noble Lord is addressing himself to the amendment we debated earlier? I see that he is.

Lord Mishcon

My Lords, it is only a short point but I think an important one which relates to subsection (2)(a) of the new clause which your Lordships may think, and the Minister may consider on reflection, is surely far too restrictive.

Suppose a data user holds data about a data subject which have been supplied to him by a third party which the data subject contends are inaccurate or misleading. Clearly the data user cannot be expected to sit in judgment over the dispute in order to determine which of them is right. He has no incentive in a normal case; and, indeed, would not have the necessary powers to do this. However, a court is in a different position. If there is a genuinedispute about the accuracy of the information, a court of law is surely the only place where it can be conclusively resolved.

The proposed subsection (2) (a), by saying that, no order shall be made under subsection (1) … if the requirements mentioned in Section 22 (1A) above have been complied with would prevent any court from even having jurisdiction, as I understand it, to do this. The result would be that a data subject could never have incorrect or misleading data about himself put right, even if he can prove affirmatively that they are wrong. All that he can ever achieve is the addition of an indication that he disputes the accuracy of the data. It is therefore this limiting power on the court in subsection (2)(a) to which I ask the Minister to give his consideration. I hope he may be able to do it now; but, if not, at a later stage on Third Reading.

Lord Elton

My Lords, I was hoping that someone else might express a few lengthy views on the subject. It is rare that I ask others to consider. I am advised to re-advert to material which I thought I had already used. If the noble Lord finds it wanting in any respect I shall happily come back at a later stage, as he suggests.

I now recall that I have material on this. The noble Lord suggested that while the amendment goes a long way towards protecting the rights of the data subject, it does not go far enough in one respect. He argued that, while the insertion of the appropriate markers should guarantee the data user against a claim for compensation under Clause 22, there is no reason why those markers should also protect him from an order under Clause 24 if the data can be shown to be inaccurate. In other words, the data subject should have a right to have data corrected under Clause 24, irrespective of any markers.

While I can see the attraction of the argument, which I hope was the argument that the noble Lord was advancing, we must not lose sight of the twin aims of these clauses, which are to protect the data subject while at the same time allowing the minimum interference to the operations of users who have taken all reasonable precautions in relation to received data.

I suspect that if we are to accept the grounds put forward we might find this balance being upset. Nevertheless, I am prepared to consider the points that have been raised to see whether there is any way in which they might be accommodated. I hope that noble Lords will understand if I do not promise to have resolved all the issues before the Bill leaves this House.

How I wish I could have put my hands on that information 30 seconds earlier!

The Deputy Speaker

My Lords, I have called Amendment No. 29. Is anyone wishing to propose it?

Lord Elwyn-Jones moved, as an amendment to Amendment No. 28, Amendment No. 29: At end of subsection (1), insert— ("and may further order the data user to communicate the court's findings, in such manner as the court may approve, to persons to whom he had previously disclosed, or who had previously obtained access to, the inaccurate data or such an expression of opinion based on them.").

The noble and learned Lord said: My Lords, we seemed to be trifling for a moment with disorder, but I think we are gradually getting back to anchorage. Amendment No. 29 proposes an addition to subsection (1) of new Clause 24 relating to rectification and erasure, Your Lordships will see that, if a court is satisfied on the application of a data subject that personal data held by a data user … are inaccurate … the court may order the rectification and so on.

This amendment proposes that the court may make a further order to the data user requiring him, to communicate the court's findings, in such manner as the court may approve, to persons to whom he had previously disclosed, or who had previously obtained access to, the inaccurate data or such an expression of opinion based on them. The difficulty is this. By the time the court has ordered rectification or erasure, the data user may have communicated the incorrect matter to other people. It seems to us that the court should at least have power to order him to tell those people he has misinformed that what he had previously told them was wrong. It may not be wholly satisfactory merely to lock the stable door, but in won cases at least he who has suffered may know where the horse has bolted and be able to retrieve it. This is a modest amendment that we propose to strengthen the value of rectification and erasure. I beg to move.

9.15 p.m.

Lord Elton

My Lords, building on the powers of the courts under our new Clause 24, the noble and learned Lord seeks to extend those powers in a significant new direction. In the new clause now accepted by your Lordships, the courts have the power to order the correction or erasure of inaccurate data. It is now proposed that, as well as ordering correction or erasure, they should also be able to order the user concerned to inform all persons to whom he has disclosed the inaccurate data that they are inaccurate. By virtue of our amendment to Clause 10, which keeps the registrar's power consistent with those of the court here, the registrar too would be able to serve on users an enforcement notice having the same effect.

I am sure we all see clearly the intent behind the amendment. I do not take issue with it in principle. Indeed, I sympathise with it. The noble and learned Lord is on the side of the data subject. I am a data subject, as is everyone else in the House. If a data user has been spreading false information about someone, no matter how unwittingly, it is desirable that when he discovers that the information is false he should get in touch with the people he has misinformed and put them right. Where the data user supplies this information as a service to others I suppose that the credibility and therefore the viability of that service may to some extent depend on his doing so and one may reasonably hope that he will. But the amendment extends to all data users everywhere and always. Much as I sympathise with the noble and learned Lord's wish to defend the interests and indeed the reputations of data subjects, I find the consequences that would flow from it dauntingly large.

In effect, what it means is that, since nobody can be certain that all his data are accurate, everybody must assume that some of his data maybe inaccurate. If it is going to be inaccurate, he must further assume that he may be ordered by the courts to put right everybody whom he wrongly informed about the data subject should the data subject go to law. Regrettably, that means that every single disclosure will have to be logged by every user and the log kept for at least as long as he keeps the data on his tapes. Otherwise he might find himself subject to a court order with which he was incapable of complying. This would be an insurance policy but a remarkably expensive one. The cost to a large user recording each disclosure and retaining that record for as long as, and possibly longer than, the data are held would be immense in administrative and technical terms.

Admirable as the amendment may appear at first sight, and warmly as I regard its intentions. I am afraid that, for the reasons I have stated, it is not one that I can recommend to your Lordships. For every single data user it would generate a volume of logging and record keeping that would be enormous against the possibility, however unlikely, that the court would require corrections. I hope that corrections will take place but I do no think that we can afford to bring them about in this way.

Lord McIntosh of Haringey

My Lords, before the noble Lord sits down, as we are at Report stage, would he say what the Government propose to do about this?

Lord Elton

My Lords. I am tempted to a flippant reply, but the answer is that I think we intend to leave the Bill as it is because it is the best that we can do.

Lord Elwyn-Jones

My Lords, I venture to think that the noble Lord has exaggerated the difficulties which exist here. I think that it is reasonable to assume— perhaps as a lawyer I have more confidence than the layman—that courts will behave reasonably in the use of these powers. What is given here is a power—it is not an absolute duty—that the court may in a given case require this to be done: namely, this is such an outrageous case with such serious consequences, that the court thinks it is proper in this case to order the data user to correct the errors for which he has been responsible. That is not an excessive power to put in the hands of the court.

If it would help to achieve acceptance of this amendment to insert the words, "when the court thinks it proper or reasonable so to do"—though that is slightly insulting to a court, I should have thought—but if that point of punctilio is required in the drafting, perhaps if the noble Lord would be content with that, I should be content to leave his acceptance of the amendment on that basis. But I feel that he having admitted that there is a mischief here, that ought to be dealt with in the provisions of the Bill—and it is common ground that there is such a potential mischief—perhaps pending some view from another quarter that that is a better way to deal with the matter. If the noble Lord the Minister is content with that proposal of mine, I shall wait to hear what he has to say before I leave the matter.

Lord Elton

My Lords, I think that the question of whether the noble and learned Lord wants to dispose of the matter now is going to rest very largely with him. I cannot encourage him to expect a beneficial result from patience. Obviously I am prepared to look at anything that he puts forward, but my immediate advice is that there will be nothing that I shall be able to say as a result of so doing. Therefore, if the noble and learned Lord wishes to try the issue now, he should do so. I am not in favour of deferring matters to Third Reading, but if he wishes me so to do I am prepared merely to say that we will look at it; but I have no reason to suppose that I shall be able to do anything other than say, no.

Lord Elwyn-Jones

My Lords, I shall not push the matter at this point, but if the noble Lord will look at it, as he has undertaken, I accept that. In the circumstances, I beg leave to withdraw the amendment.

Amendment to the amendment, by leave, withdrawn.

On Question, amendment agreed to.

Clause 28 [Crime, taxation and immigration]:

9.22 p.m.

Lord Elton moved Amendments Nos. 30 and 31: Page 21, line 24, at end insert ("or") line 25, leave out from ("duty") to end of line 26.

The noble Lord said: My Lords, I wish to move Amendment No. 31 as well as Amendment No. 30. There are certain occasions when a Minister can rise to his feet to move an amendment almost wholly confident that noble Lords opposite will welcome the amendment. I think that this is one such occasion. Amendment No. 30, along with No. 31, which goes with it, removes "the control of immigration" from the list of purposes in Clause 28(1) for which data may be held and so qualify for exemption from those particular provisions of the Bill to which Clause 28 applies. I ought perhaps to mention that in the Bill as printed the line numbering has gone astray. Line 25, to which the first amendment relates, is in fact that containing paragraph (b), and not paragraph (c), as would appear to be the case by looking at the printed numbering.

The effect of the amendments, therefore, is that data held for the control of immigration will be in a position no different from that of all other "ordinary" data. If they are also held for one of the purposes that remain in Clause 28(1)—the prevention of crime, for example—they may of course benefit from that exemption, but, if not, they will be subject to the full rigours of the Bill, in the same way as, say, data held for the purposes of personnel management.

It is tempting to say nothing more, and to stop there and sit down. But I believe that I should say more to explain the reasons why the Government have accepted that the immigration exemption should be removed from the Bill. First, I want to emphasise one thing. From the outset the exemption has been enveloped in a fog of misunderstanding, unfounded accusation and unnecessary fears. For instance, it was not racially discriminatory. It applied equally to all people, irrespective of racial origin, where the granting of subject access, for example, would have prejudiced immigration control. Nor was it at odds with the Council of Europe Convention. That allows exemptions where necessary in the interests of protecting the rights and freedoms of others. And we believe that all persons settled in this country have a right to expect immigration control to be exercised and to be effective.

But what we could not ignore were the fears that have been engendered by the perception that now exist about the exemption, however misplaced they may be. However unnecessary those fears might be, they were genuine and were strongly felt, particularly among members of the ethnic communities. We were advised from a number of quarters—not all of whom necessarily objected to the exemption on its merits—that it was important to allay those fears before they spilled over into the field of race relations. It was for this reason above all else that, as I promised in the course of our Committee stage debate, we reviewed the importance of the exemption for immigration control.

During the course of both this Bill and its predecessor I have made clear more than once that the amount of data that would actually have benefited from the exemption was very small. The bulk of data would not have been affected at all, since there would have been no prejudice to the control of immigration from exposing the data to the full provisions of the Bill. At the other end of the spectrum, certain immigration data are held for the purposes of the prevention or detection of crime or the apprehension or prosecution of offenders, and can, where necessary, seek exemption on that basis. Only in the middle is there a small category for which we originally sought some special protection. But we have concluded that the benefits of that protection are outweighed by the suspicions that might be aroused about our information-handling practices for immigration control if we allowed the accusations to grow up—however unfounded—that we were intent on casting a cloak of secrecy across all personal data used in the immigration context.

So, my Lords, we have concluded that the exemption should be removed from the Bill. On occasions, subject access may now have to be given to those who seek it in order to avoid controls. But such people will be few in number and access to their data will be of limited assistance in achieving their objectives. Also, all disclosures of data, unless of course made for crime prevention purposes, will have to be registered in advance. But, again,we never envisaged resorting to that exemption frequently for immigration purposes, since all the principal, regular transfers of information would be previously registered regardless of the existence of the immigration exemption, and there will be no need for any changes in procedures there. In sum, therefore, the importance of avoiding both prejudice to race relations and fears of secret information-handling procedures persuaded us that the exemption should go. In that spirit, I beg to move.

Lord Elwyn-Jones

My Lords, while we, on this side of the House, both on my right and behind me, naturally rejoice in the belated decision of the Government to remove what has been a blot on the Bill all the way through, we regret the lack of awareness and the element once again of insensitivity — —

Lord Denham

That is a little ungracious.

Lord Elwyn-Jones

I am not being ungracious. I am replying to a speech that has used phrases like "fogs of misunderstanding" apparently being deliberately, or perhaps not quite deliberately, created. If the Chief Whip wishes to intervene, he can get on his feet. It is because of this attitude, which has surprisingly come from the Minister, who has been very helpful throughout the Bill, that I feel entitled to respond in the way that I have done. It is a pity that he thought it right to deal with it in the way that he did.

At any rate, however, let us look to the future rather than to the past and accept the withdrawal of this provision from the Bill. It worked in this way. Who were the people likely to be most affected by the special provision relating to the control of immigration? They were the immigrants themselves, the ethnic minority. They were the potential source of any problems or any unfairness that might have arisen if this provision had remained in the Bill. There was no mystery about the fact that they should have felt endangered and exposed. However, I go along with the Chief Whip so far as to say that I am very willing, at this point, to welcome the decision of the Government.

During discussion, I remember suggesting that we were running our heads against a brick wall and that the noble Lord the Minister was apparently carrying round his own brick wall for the purpose. Well, the wall of Jericho has tumbled. We are glad of it. We welcome the belated decision of the Government. I am happy to leave the matter on that note, and no other.

Lord Avebury

My Lords, I should like to welcome the Minister's concession on this clause. I should not have felt it necessary to say more had it not been for the provocative tone of the Minister in moving this pair of amendments. The Minister has really invited us to say something about the manner in which the debate was conducted by, the phraseology that he used, and particularly the term "fog of misunderstanding", which the noble and learned Lord, Lord Elwyn-Jones, has already quoted. I do not know whether the Minister was intending that the epithet should be applied to the manner in which discussion has been carried on in your Lordships' House. If so, it was very unfair. No suggestions have been made in this House which have been refuted by the Minister: and in particular, if I may say so, what he has said about the Council of Europe Convention and the meaning of Article 9 has never been satisfactorily answered.

We tried to suggest—and I shall not rehearse all the arguments again but I shall just mention the point very briefly—that the reference in that article to the rights and freedoms of others was meant to be a reference to individual rights and freedoms as, for example, in the European Convention on Human Rights. It was not a reference to collective rights such as the Minister tried to imply when he talked about the infringement of the rights and freedoms of others that was likely to result from the presence in this country of one illegal entrant who would be undetected as a result of deleting the immigration control from Clause 28.

So we still think that the convention would be shown to have been breached if the Minister had left the Bill unchanged and we think it was very wise for him to do so from that point of view. We still think also that, as originally couched, the Bill would have been racially prejudiced indirectly, in the sense that the people who would be liable to be caught under Clause 28 would have been predominantly black. No one can doubt, for example, if we look at Clause 28(2) where we see the exemption from non-disclosure provisions, that the transfer of information from other computer systems to those under the control of the Home Office immigration system, would have primarily concerned black people and that when they trawled hospitals, health authorities, local authorities, and so on, to find data in relation to people suspected of having flouted the immigration system or having been concerned in some way with violations of immigration control, the individuals whose data would have been transferred would have been predominantly black.

That was a legitimate reason for the fears that the ethnic minorities felt about the way in which the provisions would have been carried out. From that point of view the Minister has been very sensible to withdraw the provision. We were not talking about a small category for which special protection was needed, when we consider that 300,000 names are already included on the Harmondsworth computer. Therefore, we have achieved on this side a small victory, one which will be enormously welcomed by the ethnic minorities throughout this country. The Minister could have avoided the type of anxieties of which he has spoken if he had listened to us a little earlier on and had not insisted on taking these proposals to the very brink, as he did.

Lord Pitt of Hampstead

My Lords, I am sorry that I was not here earlier to hear the Minister and therefore I will not delay the House very long. I shall merely say that there is always joy in Heaven for a sinner that repenteth.

Lord Elton

My Lords, that was a welcome observation from the noble Lord, Lord Pitt, which has given me more comfort than anything else that I have heard in the debate. I came to this House four times on the last piece of legislation and three times on this one, on, in my view, the perfectly valid precept that the legislation we had in hand as it was drafted was not racist but was effective. If there was a misunderstanding—and I am convinced that there was—I failed to dispel it. The fault was mine. I do not accuse noble Lords opposite of obfuscating or being in any way contrary. I merely say that I remain convinced that we were within the Council of Europe definitions and that we were within strict fairness between the different races in this country, all of whom may cultivate aliases for suspect reasons, all of whom may run illicit immigration rackets, and so on.

I was anxious to tell your Lordships that in spite of all this, and in spite of the fact that we feel that this is a piece of legislation that would assist in running this country, we believed that the demands of good race relations were more important. I felt that that was something as regards which I would have the sympathy of noble Lords opposite, and that merely rehearsing the reasons why I had been reluctant to agree with them would not Lords opposite, and that merely rehearsing the reasons why I had been reluctant to agree with them would not have precipitated the type of response that we had. I know that in their heart of hearts they are glad that we did this. I would merely say to the noble and learned Lord, Lord Elwyn-Jones, that I do not represent the walls of Jericho; I represent a door which, if sufficiently heavily and frequently knocked on, sometimes opens to answer to reason. I am glad that your Lordships accept this amendment. I beg to move.

Lord Elwyn-Jones

My Lords, I was not questioning the personal uprightness of the noble Lord, and I am content to leave the matter on the oratorical Mosaic note struck by my noble friend Lord Pitt from the Back- Benches.

On Question, amendments agreed to.

9.36 p.m.

Lord Elwyn-Jones moved Amendment No. 32: Page 21, line 32, at beginning insert ("Subject to subsections (2A), (2B) and (2C) below,")

The noble and learned Lord said: My Lords, this amendment is a very important amendment and it is unfortunate that we come to it at such a late stage in our deliberations. It relates to Clause 28(2) of the Bill, which has evoked almost as much controversy as Clause 28(1). Indeed, in a submission to the Home Office, the Lindop Committee called it a "palpable fraud on the public", which is pretty strong language. Its effect is that the data protection register, so far from encouraging public confidence in computerised information systems, will, we fear, in fact, diminish it, since the very disclosures which the public most fear—thatis to say, disclosures of personal information to agencies inherently hostile to the data subject—can lawfully take place without the public being warned prospectively by an entry in the register that they can take place or any retrospective public accountability after they have taken place.

It has been the argument of the Home Office that the public will know about these things because they will have read Section 28(2) of the Data Protection Act, but we do not find that a satisfactory position and in our view the subsection would disfigure the statute book. Few would know it was there. If they did know, they would have no confidence in the register and they would never know the extent of the secret data traffic about what might be highly sensitive and confidential information.

In an earlier debate, the noble Lord, Lord Elton, gave an example of why, in the Government's view, Clause 28(2) was needed. He suggested as an example that the police might need to know whether a person—John Smith—had been at his workplace at a particular time on a particular day in order to eliminate him from their inquiries into a serious crime which had been committed at that time. Attendance records for the workplace are held on computer. Unless the employer had anticipated the contingency or had filled in his application form for entry on the register, it would be a criminal offence for him to tell the police whether, according to his record, John Smith is shown as having clocked in before and not clocked out until after the relevant time on that day.

That, of course, was persuasive as an example of one state of affairs. Clearly, the employer must be able to give that information even if he has said nothing about such disclosures on the register. But the point of our amendment is that, in the circumstances of that hypothetical case, the information was not communicated in confidence in the first place, and disclosing it to the police will therefore not involve any breach of an obligation of confidentiality which the employer owes to John Smith.

The matter is very different in the field with which we are concerned in this amendment—namely, confidential information—and especially (and this is the matter which has given rise to most concern) for health records. It is a fundamental rule of all health care that confidential information obtained by health professionals will not be used for any purpose other than the continuing care of the patient or client concerned, save in quite exceptional cases such as the prevention or detection of serious crime if that cannot be done without such disclosure. The scope of those exceptions will always be known in advance. Health authorities and health professionals already have policies about such disclosures and will continue to have them after the Bill has been enacted.

Accordingly, what this amendment seeks to achieve is to except confidential information from the general exemption which is now found in Clause 28(2). Its effect would be that the disclosure of confidential personal data to law enforcement agencies would have to be prospectively notified on the register so that the public would know in advance in what circumstances such disclosures would be made. The wording included in the amendment defining confidential information is taken from the Police and Criminal Evidence Bill in the form in which it was last before Parliament.

I should like to add that the amendment has the support of all the health professions—doctors, dentists, nurses, midwives, health visitors, psychologists—the professions supplementary to medicine, social workers, et cetera, represented on the inter-professional working group chaired by Sir Douglas Black, which has been convened on the initiative of the DHSS in order to establish common policies among all health professions about this. I received from him yesterday a letter recalling that he had written to me previously about this matter, and stating that if the amendments which I now move were passed they would meet his group's concern, and that they therefore fully support them. That is support indeed from a highly responsible and, your Lordships may think, reliable source and we feel it is right to set those fears aside. I therefore beg to move this amendment.

Lord Elton

My Lords, the amendments before the House bring together two strands of our previous deliberations on Clause 28(2)—that is, restricting the application of the exemptions, and requiring certain disclosures to be notified to the registrar. As the noble and learned Lord explained, Clause 28(2) exempts personal data from the non-disclosure provisions in any case where the data are disclosed for one of the Clause 28(1) purposes—that is the prevention or detection of crime; the apprehension or prosecution of offenders; or the assessment or collection of any tax or duty—where the application of the non-disclosure provisions would prejudice any of those matters. It no longer exempts them where they would prejudice the control of immigration.

Broadly speaking, Clause 28(2) disapplies the new prohibitions on disclosure created by the Bill in specified circumstances, allowing a user to disclose personal data to the police and revenue authorities, even though they are not registered as recipients of his data, without committing a criminal offence under Clause 5 or contravening the data protection principles. Clause 28(2) has been the subject of much misunderstanding, if I may say so without annoying your Lordships. But I would hope that, with the help of the noble Lords who have shown such an interest in this clause, most of the misconceptions have now been laid to rest. At the risk of repeating myself too often, let me emphasise yet again that the clause contains no new powers to require the disclosure of information; it does not in any way release a holder of personal data from any legal or other obligation of confidence; and it does not attempt to deceive a person consulting the register of data users established under the Bill, because the legislation itself makes clear that there are certain exceptions to the rules governing registration and that the register is not therefore absolutely comprehensive.

Thus we are left with the real difference of view between the Government and the noble Lords opposite on Clause 28(2). The Government believe that in certain circumstances it is essential to disapply the new prohibitions on disclosure in the Bill—thus doing nothing more than retaining the status quo—in order to ensure that the important work of the police and other law enforcement bodies is not prejudiced. The noble Lords opposite apparently take the view that it is not necessary to make special provision, because police and revenue work must take second place to confidentiality. The amendments to Clause 28 would introduce three new subsections. The first, subsection (2A), would provide that the exemptions from the non-disclosure provisions in Clause 28(2) will not apply to certain "confidential" categories of data. This would mean that in the case of such data no disclosures could be made for crime prevention or crime detection purposes in any circumstances unless the police were first registered as recipients. If a user held information of value to the police in a particular investigation but had not registered them as recipients of the data, he would be unable to disclose the data. And this would be the case irrespective of the seriousness of the incident being investigated, the clear public interest in disclosure, the urgency of the matter or the willingness of the data user to co-operate. That is something new in the law. It is a brand new statutory gag on willing key witnesses ready to help the police to protect society from the criminal.

The definition of the confidential categories of data has I think been drawn from Clause 10 of last Session's Police and Criminal Evidence Bill; and like so many grafts from one piece of legislation to another, the graft does not take very well. I appreciate that the noble Lords were trying to be helpful by limiting the application of Clause 28(2) rather than deleting it as they had proposed before; but the category of "confidential" data is really very wide. Thus for example it would include all personal data held by the Government because it is covered by the Official Secrets Act.

The amendment ignores the fact that although there may be restrictions on the disclosure of particular information in certain circumstances, disclosures may he allowed to the police in other cases. This is the case I think with the doctor's obligation of confidence. The profession recognises that it may be overridden in very exceptional cases where the public interest in for example solving a serious crime requires. Yet under the amendment no allowance is made for that. Disclosures would not be permitted even in those special circumstances where it is acknowledged that the normal restrictions should be overridden. The brand new legislative gag would be applied willy nilly. Given these considerations I cannot think it right to deprive the police and the communities which they protect of the benefits of Clause 28(2) in relation to the wide category of information set out in the amendments.

That was enough to quench my enthusiasm for the amendments, but there was more to come. The second effect of the amendments would be to require, under new subsections (2B) and (2C), that all disclosures of "confidential" data for Clause 28(1) purposes must be notified to the registrar even though all such disclosures will have to be registered. This notion of notification is very different from the one previously proposed by the noble Lords, Lord Avebury, Lord Wigoder and Lord Donaldson of Kingsbridge, which would be related to unregistered disclosures. Subsections (2B) and (2C) would imposean additional requirement to notify certain disclosures to the registrar, even though the disclosures were registered. I really do not see the need for singling out disclosures for these purposes in this way. Perhaps the least attractive aspect of these new subsections is the fact that they are limited to disclosures for the Clause 28(1) purposes. The imposition of particular disincentives to disclosure simply because they were for such laudable purposes as the prevention of crime can scarcely be an approach which would be welcomed in this House or elsewhere in the country.

Finally, the proposed amendment to Clause 34 would require the registrar to publish these notifications—though not in a way, I would suggest, that will he particularly helpful or informative. Indeed there would be a constant danger that without a great deal of explanation and commentary, his publication of them could arouse more fears and misunderstandings than it allayed, by giving a misleading view of what had been going on quite out of context.

On the question of the medical professions, both the Home Office and the Department of Health and Social Security and their respective Secretaries of State are anxious to allay fears which we do not think are well founded that the Bill might alter the position concerning the role of doctors and other health professionals in determining the use of medical records.

I want to emphasise that it is not the wish of the Government to use this Bill to the detriment of the professionals in that respect. Our wish is to maintain the present position whereby the professionals, when asked by the police for information, continue as at present to be free to respond as they think fit and with all due regard to the ethical constraints upon him.

We are a law-making Chamber. We make laws in order to protect our fellow citizens from crime and to see that they are not swindled out of the proper financial support of corporate and private taxpayers. We make the laws. These amendments will make it a great deal harder for the agencies who enforce them to do their job. In the process innocent victims will go needlessly unavenged and society at large will be less effectively protected. I know that is not what noble Lords opposite want to bring about. They have an innocent and honourable purpose; but I regret to say that that would be the consequence if they were to pursue it further down this road and I must ask your Lordships to resist it.

9.50 p.m.

Lord McIntosh of Haringey

My Lords, I fear that the Minister or his advisers have been carried away somewhat in the strength of his reaction to what is essentially a very moderate series of amendments. It would have been possible to have started from a much more radical viewpoint. I will not conceal from your Lordshipsthat I feel that the power of data processing applied to police activities and applied to Revenue activities, unless it is checked, can lead to as grave an injustice, and sometimes a graver injustice, than that which it seeks to remedy. It is not so much the reporting of criminal offences as the ability of instant access to computers for non-criminal activities to be used—particularly against young people. Anybody who has teenage children, or perhaps children slightly older, will know from them how often young people, and particularly young blacks, are stopped by the police and an instant interrogation is made of the police computer as to whether anything is known about them. That is bad enough, but we know that the very fact of their being stopped is itself being recorded in the police computer, and they have a record thereafter.

This amendment does not say anything like that. This amendment does not seek, as some of us might wish to seek, to restrict further the exemptions. It does not seek even to stop communications of data from other sources. It certainly has no effect on the ability of the police computers themselves to collect and transmit information within and between police forces. What it says (and this is why I describe it as moderate) is that when information has been acquired for some other purpose—the purpose of a trade or profession, as my noble and learned friend has said—and only when that information has been acquired under conditions of explicit or implied confidentiality, then the fact it has been transferred should be notified to the data subject. One cannot be milder than that in protecting data subjects. One could go a great deal further. I suggest to the Government that they are grossly over-reacting to something which is not just an innocent, honourable purpose, as the noble Lord, Lord Elton, has said, but is the minimum requirement for the protection of individual liberties.

Lord Donaldson of Kingsbridge

My Lords, I must express a small doubt about this. I have been concerned in my professional career with problems in Northern Ireland and police and terrorists. There is not the slightest doubt that the difficulty of getting information which leads to an arrest involves all sorts of rather disagreeable methods from which we, the citizens, benefit. Occasionally these methods are exposed and the police get into trouble. I am unhappy about any amendment which is going to make the position of the police in getting information about serious crime more difficult than it now is. It seems to me that this amendment does that, and I therefore express a doubt at this moment. I could be convinced otherwise, but I express a doubt.

Lord Mishcon

My Lords, I believe there may be quite a lot of misunderstanding about this amendment. Let me make it perfectly clear that noble Lords on the Benches which I have the privilege to occupy—and I am sure that this applies to the Liberal Benches and the SDP Benches, especially when the noble Lord, Lord Donaldson, expresses a doubt—want to assist the police and all authorities who are in charge of law and order within the limits that have to be set in order to safeguard the professions and the ordinary citizens.

We always have problems of this kind. There have been problems of this kind, if I may say so—and I hope I am not taking the matter out of context—in the recent Waldorf case. Many of us are extremely worried, wanting to assist the police in all the dangerous work they do but nevertheless feeling that we have to have some limitations if the liberty of the subject is to be properly guaranteed as well as having the other guarantee that we want, which is not to shackle the hands and limbs of the police who do such a dangerous job so often in difficult circumstances. That is the dilemma.

It may very well be that this particular amendment holds the kernel of a profound truth. For the very first time, in this Bill we are saying what people can do who have confidential information about citizens in this country and we have had debates on confidentiality, privacy and so on arising out of the Younger Committee and other committees. The doctors are worried. There is no point in the Minister pushing that to one side with very gracious and carefully chosen language. The doctors are worried, and they are worried about a patient who goes along to them and tells them something about an illness. You can go along to a solicitor because that is covered by privilege, and you can disclose to him that you sustained a certain injury in a certain way, and nothing in the world can make the solicitor divulge that information—but when we get to the doctor and he is told something by a patient and that goes on to some computer somewhere, perhaps because of a social services inquiry which has nothing to do with the commission of a crime, suddenly the doctor is called upon to disclose this information because it is said to him: "You are entitled to do so under this Bill".

These are the considerations that worried my noble and learned friend and they worried the noble Lord, Lord Donaldson, if I may say so. They leave us in some doubt as to whether this situation is properly covered. If this amendment does not commend itself to the Government, I hope at least that the noble Lord the Minister may be able to say—and this may possibly stop our having to express a very definite view, though that decision is happily not in my hands—that he recognises that there is, as was explained by my noble and learned friend, such a body of opinion here, among doctors especially, that causes everyone anxiety. I hope he will say that it causes him anxiety and that the views expressed today and the views of the doctors also will be taken properly into account so that something may be done in order to reach this proper frontier which is so difficult—I refer to the liberty of the subject and the freedom of the doctor-patient relationship on one side and the needs of law and order on the other.

Lord Avebury

My Lords, it seems to me that the advent of computers is forcing us to consider a subject which has been dealt with in an entirely ad hoc way in the past. What the noble Lord the Minister's speech may be summed up as presenting to the House is the proposition that although information has been held in confidence by many and varied organisations in the past, those persons or bodies responsible for the data have always felt themselves at liberty to divulge the information to the police where very serious questions of public policy are concerned. All we are saying on this side of the House is that if it is the intention of those organisations to continue behaving in this way they must bring some order into the process by announcing at the very beginning when they register under Clause 4 that they intend to give the information in this manner to the police and in what circumstances they would do so.

If it is to be serious crimes, what kind of serious crimes are we talking about? Are we talking, as in the case of the Inland Revenue, about murder, treason and arson in Her Majesty's dockyards, which are the only circumstances in which Inspectors of Taxes and others in the Inland Revenue will disclose information to the police, as was mentioned on a previous occasion? The Inland Revenue have a clearly defined policy, which is there for everybody to know and discover, and that is something which they feel is absolutely necessary so that taxpayers who give information freely to inspectors will feel an absolute confidence that the information which they voluntarily disclose about themselves to these officers will not be used for any other purpose.

All we are saying is that people who give confidential information to doctors—which was the example given by the noble Lord, Lord Mishcon—to health service professionals or indeed to any other holder of personal information, such as a local authority, should be entitled to know in what circumstances they would give that information to the police, or indeed if they intend to do so as a matter of principle, anyway. They should be entitled to know that that data user is required from the outset to state formally that it is his policy, in certain limited circumstances, to breach the obligation of confidentiality which he would otherwise have to the people whose data he uses or holds.

Secondly, he has to address himself on this point to the circumstances in which that disclosure would be made. In other words, he has to formalise the process which the noble Lord the Minister has described as going on throughout the whole country when data users holding confidential information are approached by the law enforcement agencies now. This is already happening. They know what their rules are, so they would have no difficulty in putting them down on paper when they come to register. But I accept that perhaps the formulation in the amendment is not as precise or limited as we could have hoped.

I fully understand the doubts which my noble friend Lord Donaldson has expressed on it. Nevertheless, I feel that before the Bill leaves your Lordships—obviously, it cannot be done this evening and perhaps we could do it on Third Reading—we should attempt in some way to define limits on Clause 28(2) that will give confidence to members of the public who are divulging this personal information to all kinds of agencies that it will not be wilfully and freely disclosed to limited enforcement agencies on trivial grounds. That is what members of the public have a fear of; that it is not questions of murder, treason or terrorism which would invoke the disclosure provisions of Clause 28(2), but comparatively minor offences, such as theft or driving without a licence.

They fear that on these grounds many professionals may feel themselves under some pressure from the police, who will point to Clause 28(2) and say, "There you are. Parliament has decreed that you are relieved of the obligation of confidentiality which all other data users have towards the holders of personal data, and therefore you are empowered—we will not say 'obliged'—by Parliament to give us that information". So they would feel compelled by some moral pressure to release information to the law enforcement agencies, and even if they did not do so on a wide scale nevertheless the fear would always be there among members of the public.

So it is a matter of confidence. The noble Lord has already given us a substantial amount because he said that the confidence of ethnic minorities would be undermined in relation to the immigration control provisions in Clause 28. I would respectfully urge him to give equally careful consideration to this very much wider aspect of Clause 28.

Lord Elton

My Lords, I have only one shot in my locker. If the noble and learned Lord wishes to intervene it would perhaps be better if he did so now.

Lord Elwyn-Jones

Most certainly, my Lords. The ambit of this amendment is limited. What it seeks to achieve is to except confidential information from the general exemption which Clause I gives about the right of access provisions in regard to personal data in the fields that are indicated. Its effect would be that the disclosure of confidential personal data to law enforcement agencies would have to be notified prospectively on the register so that the public would know in advance in what circumstances those disclosures would be made. The anxiety which the noble Lord, Lord Avebury, mentioned is that the public would not know that and would fear that this right to disclose even matters they give in the most confidential circumstances may yet, in circumstances remote from the commission of serious crime, be communicated to the authorities without their knowledge and without their being informed.

The fact that this matter has raised concern to the extent I have indicated in the most responsible branches of the medical profession shows that we are up against a very serious problem. I say that with great respect to the Minister whose integrity and wish to help I have never challenged in the course of our long debates. If I said something earlier which, according to the Chief Whip, may have questioned that approach to him I certainly did not intend to communicate it. But this is a matter of great concern to the public. I said earlier that even stronger words than I have used were used by the members of the Lindop Committee, which called what is proposed a palpable fraud on the public, in that something was going on which they would not know about and which they would be unaware of, and that all this protection of the privacy of the subject was a gigantic bluff. These are the fears which have been created and which now exist.

The doubts which exist are there and the fears exist that if nothing is done to repair the uncertainty, if these powers remain unchallenged as they stand, the public will suffer. Public anxiety would increase about the way the criminal system was being administered. Any lack of confidence in the set-up would be damaging to the enforcement of the law. It may well be that better words can be devised to protect the exploitation of what is proposed by the criminal. I do not myself at the moment see it, but if anything of that kind is brought forward it can be done. However, I should have thought that in the circumstances with which we are faced in the Bill as it now stands it is proper that the House should have an opportunity to express a view as to whether the seriousness of the risks involved and whether the fears of the medical profession are such —

Lord Elton

My Lords, I understood that the noble and learned Lord was inviting me to respond. I hope I have not misled him.

Lord Elwyn-Jones

My Lords, I paused at this point merely to emphasise the fact that this is not a perverse view of those with no sense of public responsibility. On the contrary, we feel this very deeply. We feel it is our duty to the public, as Members of the House, to see that the matter is put in a way which will not endanger or worry them unduly.

Lord Elton

My Lords, we share a common purpose and a common duty to the public good, and I am very grateful for the courteous and friendly way in which the noble and learned Lord concluded the argument on his side of the House. With the leave of the House, I should like to take up a number of the points which have been made, and I think it proper that I should do so. The noble Lord, Lord Mishcon, pointed out, quite rightly, that we are engaged in drawing parameters within which and up to the borders of which it is proper for the police to operate in order to protect us.

The noble Lord, Lord Avebury, pointed out that we are now seeking to legislate on areas of conduct which hitherto have not come before Parliament for legislation. That makes me reflect that when the noble Lord, Lord Mishcon, says that somebody one day will go to a professional and say, "Will you make this disclosure? You are entitled to under this law", he could well say that at present that same person is entitled to do so under common law and also indeed is entitled not to do so under the common law. Nobody is proposing by legislation to say that under certain circumstances under this Bill people shall be required to reveal things to the police. When the noble Lord, Lord Avebury, and others used the phrase, "This Bill empowers people to give information to the police", I have to repeat that it does no such thing. What it may do is refrain from preventing people from giving to the police information that they are able to give at the moment.

The noble Lord, Lord Mishcon, has argued that the areas of information concerned are small, but I suspect that they are really quite large; it is a wide definition, and some of the information could be of critical value to police involved in solving crimes of the sort which almost daily, regrettably, reach the tabloid papers. I do not believe that it is right to circumscribe access to information which may result in avenging the innocent or, more important, protecting the innocent from injury and possibly death. The noble Lord, Lord Donaldson, therefore uttered a wise word of caution.

Nor can I accept that the Lindop Committee's description of a palpable fraud on the public is really applicable to the clause as it now stands, because there is no question of introducing a new power of revelation; it is an old power which people are free to exercise or to refrain from exercising exactly as they now are under the same pressures from professional convention, or from the oaths they take as students or on entering the professions. I do not think it is reasonable to extend it to anything uttered in specific or assumed confidence to somebody in the pursuit of their profession. The noble Lord, Lord Mishcon, can think of illustrations where he has said things to me and I have said things to him under professional implied and indeed explicit confidence. If that was to be material evidence in discovering why my body was found floating face down in the Thames tomorrow morning, my goodness, I hope he would give that evidence to the police. Under this Bill he would not be free to do so out of mere self-interest as well as public interest. I do ask your Lordships to reject this amendment.

Lord Elwyn-Jones

My Lords, we have canvassed the ground very thoroughly. I do not pretend that this is an open and shut issue, but I think the issue has been indicated sufficiently for the House to be able to take a view. Therefore, I move the amendment.

10. 11 p.m.

On Question, Whether the said amendment (No. 32) shall be agreed to?

Their Lordships divided: Contents, 25; Not-Contents, 43.

DIVISION NO 3
CONTENTS
Airedale. L.	Lockwood, B.
Avebury, L. [Teller.]	McIntosh of Haringey, L.
Beaumont of Whitley, L.	Mishcon, L.
Bishopston, L.	Ogmore, L.
Cledwyn of Penrhos, L.	Pitt of Hampstead, L.
Collison, L.	Ponsonby of Shulbrede, L.
David, B.	[Teller.]
Elwyn-Jones, L.	Shackleton, L.
Gladwyn, L.	Stewart of Alvechurch, B.
Hatch of Lusby, L.	Stewart of Fulham, L.
Irving of Dartford, L.	Stone, L.
John-Mackie, L.	Tordoff, L.
Llewelyn-Davies of Hastoe, B.	Underhill, L.
NOT-CONTENTS
Alport, L.	Crathome, L.
Avon, E.	Croft, L.
Beloff, L.	Cullen of Ashbourne, L.
Belstead, L.	Denham, L. [Teller.]
Boardman, L.	Digby, L.
Brabazon of Tara, L.	Drumalbyn. L.
Brougham and Vaux, L.	Elton, L.
Caithness, E.	Enniskillen, E.
Coleraine, L.	Gisborough, L.
Cork and Orrery, E.	Glanusk, L.

Glenarthur, L.	Mottistone, L.
Halsbury, E.	Portland, D.
Home of the Hirsel, L.	Redesdale, L.
Kemsley, V.	Romney, E.
Kinnaird, L.	Skelmersdale, L.
Lindsey and Abingdon, E.	Strathclyde, L.
Long, V.	Swinton, E. [Teller.]
Lucas of Chilworth, L.	Trumpington, B.
Lyell, L.	Ullswater, V.
Mackay of Clashfern, L.	Vaizey, L.
Marley, L.	Wise, L.
Marshall of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos. 33 to 37 not moved.]

10.20 p.m.

Clause 31 [Payrolls and accounts]:

Lord Elton moved Amendment No. 38: Page 22, line 41, leave from ("or) to second ("or") in line 2 on page 23 and insert ("paying remuneration or pensions in respect of service in any employment or office or of calculating amounts payable by way of such remuneration or pensions;")

The noble Lord said: My Lords, the purpose of this amendment is to ensure that the definition in Clause 31(1)(a) is adequate to cover all types of data properly used for what we would broadly describe as payroll purposes. As noble Lords will recall, Clause 31 exempts data held for payroll and accounting purposes from the provisions of the Bill and in our anxiety to ensure that the definitions of such data are not so wide as to allow data held for other purposes to benefit from the exemption it appears that we may inadvertently have drawn the definition of payroll data a little too narrowly.

As the Bill is cast it appears that data, such as addresses or bank account numbers, which are necessary for actually paying rather than for calculating wages, and so on, may not be included in the definition of data held for payroll purposes. Clearly such data are payroll data in the sense in which we all understand that term and this amendment is therefore designed to ensure that they are covered by the exemption in Clause 31, provided of course that all the other requirements of that clause are also met. I beg to move.

On Question, amendment agreed to.

Lord Elton moved amendment No. 39:

[Printed earlier: Col. 23.]

The noble Lord said: My Lords, I spoke to this with Amendment No. 3. I beg to move.

On Question, Amendment agreed to.

Clause 32 [Domestic or other limited purposes]:

Baroness Trumpington moved Amendments Nos. 40 and 41:

Page 23, line 35, leave out ("subsection (3)") and insert ("subsections (3) and (3A)")

Page 24, line 5, at end insert— ("(3A) It shall be a condition of the exemption of any data under paragraph (b) of subsection (2) above that the data are not used for any purpose other than that for which they are held and of the exemption of any data under either paragraph of' that subsection that the data are not disclosed except as permitted by subsection (3B) below. (3B) Data to which subsection (3A) above applies may be disclosed—

1. (a) if the data subject (or a person acting on his behalf) has requested or consented to the disclosure of the data either generally or in the circumstances in which the disclosure in question is made; or
2. (b) in any case in which disclosure would be permitted by any other provision of this Part of this Act if subsection (3A) above were included among the non-disclosure provisions.

The noble Baroness said: My Lords, as noble Lords will recall, Clause 32(2) exempts from the provisions of Part II of the Bill and Clauses 21 to 24 personal data held by an unincorporated members club and certain data held only for mailing purposes. Noble Lords will also recall that during Committee stage the noble Lord. Lord Mishcon, moved an amendment designed to make it a condition of the exemptions under Clause 32(2) that the data are not disclosed. I said in reply that I thought that the need to obtain the subject's consent to holding the data provided an adequate safeguard and that to prohibit all disclosures might go so far as to deter users from claiming the exemption at all. Nevertheless, I undertook to have another look at the issue raised by the noble Lord, who kindly agreed to withdraw the amendment at that stage.

The amendments before the House today represent the fruit of the Government's re-examination of the issues. We have concluded that there is a case for limiting disclosures of data covered by the exemptions, but, as noble Lords will see, we have felt it necessary to provide for certain exceptions where disclosure is permitted.These permitted disclosures arc the same as those in Clause 31(4) and (5), which deal with the disclosure of payroll and accounting data exempt under Clause 31. Therefore, amended, the clause will provide that it is a condition of the exemption of any data under Clause 32(2) that the data are not disclosed, except as permitted in the new subsection (3B). This allows the data to be disclosed, first, if the subject, or someone acting on his behalf, has, in general terms, requested or consented to the disclosure of the data; and, secondly, in any case in which the disclosure would he permitted by one of the exemptions from the non-disclosure provisions, such as that in Clause 33(4), which permits disclosures which are required by law. That is entirely consistent with Clause 31.

I ought also to mention that the amendments will make it a condition of the exemption of data held for mailing purposes under Clause 32 (2) that the data are not used for any other purpose. This is necessary because of the distinction between holding and using, as explained by my noble friend Lord Elton in relation to an earlier Government amendment, No. 3. In conclusion, I would hope that these amendments will meet the concern voiced by the noble Lord, Lord Mishcon, and I commend them to your Lordships. I beg to move.

Lord Mishcon

My Lords, I am most grateful to the noble Baroness for the gracious way in which she referred to my contribution to the debate on the amendment in Committee. I am equally grateful for the consideration which has been given to the principles that we then tried to advance, and personally I feel that these amendments cover the points that were then made. I repeat my gratitude.

On Question, amendments agreed to.

Baroness Trumpington moved Amendment No. 42:

[Printed earlier: Col. 23.]

The noble Baroness said: My Lords, I beg to move. On Question, amendment agreed to.

Clause 34 [General duties of Registrar]:

[Amendment No. 43 not moved.]

Clause 40 [Commencement and transitional provisions]:

Lord Elton moved Amendments Nos. 44 and 45:

[Printed earlier: Col. 25.]

The noble Lord said: My Lords. I spoke to Amendments Nos. 44 and 45 with Amendment No. 4. I beg to move, and I thank your Lordships for bringing us to a happy conclusion this evening.

On Question, amendments agreed to.