CODE OF PRACTICE (Hansard, 5 June 1984)

§ Mr. Denis Howell
I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker
With this it will be convenient to take the following: Government amendment No. 33, in clause 35, page 27, line 40, at end insert— '(3) It shall be the duty of the Registrar, where he considers it appropriate to do so, to encourage trade associations or other bodies representing data users to prepare, and to disseminate to their members, codes of practice for guidance in complying with the data protection principles.'.
Amendment (a) to Government amendment No. 33, at end insert ', and upon request to express his views on the conformity of such codes of practice with the data protection principles.'.

§ Mr. Howell
New clause 8 was tabled before we realised that the Government were going to respond with their own amendment. I have already acknowledged that, although I regret that the Government's amendment does not make codes of practice a statutory obligation, it requires the registrar to take initiatives to bring about codes of practice. Therefore, I think that it would not be right for me to take up any more time.
I do not know whether this has ever been done in one speech from the Dispatch Box, but, if what I am saying is correct — and the Minister nods his head — in the course of moving the new clause, I will withdraw it in order that we can make progress.
We very much welcome what the Government have done, although we wish that they had made this a statutory obligation. It would be churlish to proceed with moving new clause 8 in the light of the concessions that we have already gained from the Government on this matter.
Does the Minister nod his head?

Mr. Deputy Speaker
In order to have a tidy arrangement and an orderly debate, it would be better if the right hon. Gentleman were to move the new clause, and to withdraw it after the debate, if he wishes to do so.

§ Mr. Waddington
I am grateful to the right hon. Member for Birmingham, Small Heath (Mr. Howell) for what he has said. I shall not detain the House long in explaining Government amendment No. 33.
215 We had some interesting debates on the matter in Committee. There is nothing in the Bill, as cast, to prevent users from producing voluntary codes of practice. The Bill, as drafted, allows them to consult a registrar, and clause 35 makes it clear that the registrar can advise on such matters.
Although there may be no need for any statutory provision to underpin this, I acknowledge the strength of feeling on the matter, and the general desire for the position to be spelt out clearly on the face of the Bill as an encouragement to the registrar and to data users. It was for this reason that I made the undertaking in Committee to consider sympathetically the substantive issues involved, and to come forward with a suitable amendment.
In drawing up our proposals, we have had regard to the precedent provided by section 124 of the Fair Trading Act 1973 commended to us by, among others, the Consumers Association, which imposes a duty on the Director General of Fair Trading to encourage others to draw up codes of practice. I understand that some 19 codes of practice have been drawn up under this legislation, and that they are generally regarded as valuable and as serving a useful purpose. The codes drawn up under the Fair Trading Act have no legal standing, and there is no statutory provision for them to be referred to in legal proceedings. These aspects are important and relevant in the context of the Bill.
As I indicated earlier, the principles must be paramount, and must determine what may or may not be done. I am afraid that there is no way in which codes of practice can be regarded as the standard yardstick in the context of the Bill. Therefore, they cannot properly be given any express evidential value or implicit seal of approval.
I believe that amendment No. 33 goes as far as it can in giving statutory recognition to the value of codes of practice without falling foul of the objections that I voiced in Committee. By imposing a duty on the registrar to encourage representative organisations to formulate and disseminate codes of practice, we have made it clear, in so far as is not already apparent, that he has a positive part to play in this process.
I believe that it would be undesirable and inappropriate for the registrar to be responsible for producing codes of practice, as would have been required under new clause 8, or for approving any particular codes as being in conformity with the principles.
I hope, therefore, that the right hon. Member for Small Heath will agree to withdraw new clause 8 in favour of amendment No. 33, which honours the undertaking given in Committee.

§ Mr. Maclennan
Amendment (a) builds upon Government amendment No. 33, and would impose a duty upon the registrar to give his views about whether codes of practice drawn up not by him but by others, would be in conformity with the data protection principles. Such a proposal could not impart any firm legal definitions, or amount to a statement of whether the codes were in conformity with the data protection principles from an evidential point of view.
I took it from what the Minister said at the end of his remarks that he was not favourably disposed towards the purposes of amendment (a). In practice, whether or not this is a statutory obligation—and it may be debatable whether it should be—it must be part of the registrar's 216 function to advise those who seek his expert opinion whether such codes of practice fulfil the purposes that they are intended to fulfil. That would be analogous to the important role of the Director General of Fair Trading under the Fair Trading Act.
It would be sensible if the expertise of the registrar could be made available to those who seek to conform to the Bill's provisions. It would not impose a huge practical burden and would ease the task of those endeavouring to draw up codes of practice. The Bill would be enhanced if such duties were accepted by the registrar. I agree that it may not be desirable to encapsulate that duty in statutory form, but it would be encouraging if it were normal for the registrar to give advice and help when needed.

§ Mr. Waddington
I did not mention amendment (a) because I was not sure that the hon. Member for Caithness and Sutherland (Mr. Maclennan) would press it. There is a serious objection to the proposal in that amendment which would elevate the guidelines to a status above the principles. Clearly that would not do. The principles must be paramount and most people accept that. It cannot be right to say that compliance with a code of practice would be deemed to amount to compliance with the principles since no code could ever guarantee to cover all eventualities. What would be the position of the registrar if he knew that a principle had been breached, but a user was able to demonstrate that he, had complied with a code of practice which said nothing about the particular circumstances which had arisen? Any provision which prevented him from acting in such cases must be wrong.
The same is true of any provision which required the registrar to certify codes of practice. I recognise that amendment (a) does not refer to certification as such, but there is a danger that by singling out this particular aspect of the registrar's powers to give advice — covered generally in clause 35(2)—it will be taken to mean that codes have the registrar's stamp of approval.
As I have already said the registrar's position would be extremely awkward if, after having said that in his view a user complying with a code would be complying with the principles, it then turned out that a breach of the principles had nevertheless occurred. Users would surely have cause to complain if the registrar then took action when they would have assumed that compliance with a code in effect guaranteed them immunity.
We have to make up our minds whether codes of practice or the principles are supreme. We have decided that the registrar should seek observance of the principles because the principles are supreme. That is a complete answer to the amendment to our amendment.

§ Mr. Denis Howell
I am grateful to the Minister for his explanation of amendment No. 33 and its relationship to new clause 8. I beg to ask leave to withdraw the motion.

§ Mr. Maclennan
rose——

§ Mr. Waddington
On a point or order Mr. Deputy Speaker. The hon. Member for Caithness and Sutherland (Mr. Maclennan) is trying to catch your eye because we have not yet disposed of his amendment to the Government amendment.

Mr. Deputy Speaker
That amendment will be dealt with later. the new clause has been withdrawn and in due course I shall invite the Minister to move amendment No. 33 formally.