§ (".—(1) Subject to subsection (2), the Commissioner or his current or former servant or agent shall not disclose any information about any person—
- (a) which has come into his possession in the course of carrying out his functions;
- (b) which is not generally available; and
§ (2) Subsection (1) shall not apply where, and to the extent that—
- (a) disclosure is necessary for the discharge of the functions of the Commissioner or his current or former servants or agents;
- (b) there is an overriding public interest in disclosure; or
§ The noble Baroness said: This is a simple amendment. It merely changes the wording in Clause 54. I believe it offers a clearer and a shorter version of what is down already. I beg to move.
§ Lord Falconer of Thoroton
This is a difficult area. Article 28.7 of the directive, to which we are obliged to give effect, requires member states to put the national data protection supervisory authority, which in our case means the commissioner and her staff, under a duty of what the directive calls "professional secrecy". This duty is to apply even after the employment has ended.
We have thought carefully about how we can achieve this. The only thing that we have been able to come up with is the effect of creating a criminal offence which applies to the commissioner and her staff. I am aware—because I have been told this—that the Data Protection Registrar does not like the approach that the Bill follows. I am told that she believes that it is too heavy handed to put the commissioner's staff—she is less concerned about herself than she is about her staff—under threat of criminal sanction for breach of confidentiality. Speaking for myself, I can entirely understand that and I sympathise with her in relation to that.
126GC My noble friend Lord Williams has discussed the matter with her and he has told her that he is very ready to consider an alternative, workable approach if one can be found. So we are not at all adverse, if some solution can be brought to our attention, to put it into effect.
Unfortunately, I do not think that the noble Baroness's suggested formulation will work because it has no means of enforcement. That appears to be the problem, and I think the commission would look askance at it. If the noble Baroness herself or any other member of the Committee is able to think of a way to give effect to the directive's requirement without what the commissioner has described as the heavy handed approach of a criminal offence, we will readily consider it. If it works in the sense of compliance with obligation under Article 28.7, we will put it into the Bill. I can say no more than that.
§ Baroness Nicholson of Winterbourne
I thank the Minister for his kind reply. I believe this wording does in fact sit comfortably with the commissioner's own views, but if it is unenforceable, that is another matter. We shall have to try again. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 54 agreed to.
§ Clauses 55 to 57 agreed to.
Baroness Nicholson of Winterbourne moved Amendment No. 146:
After Clause 57, insert the following new clause—