HL Deb 25 February 1998 vol 586 cc65-134GC

Wednesday, 25th February 1998.

The Committee met at four of the clock.

[The Deputy Chairman of Committees (The Viscount of Oxfuird) in the Chair.]

Clause 28 [Crime and taxation]:

Baroness Nicholson of Winterbourne moved Amendment No. 76: Page 16, line 39, after ("of") insert ("serious").

The noble Baroness said: The clause before us as we start our debate this afternoon is one that has already aroused a great deal of debate. I am pleased to begin the debate by noting that I already have the support of some Members of your Lordships' Committee for the most important amendment, which comes a little later.

Clause 28 is powerful in its effect. It will absolve law enforcement agencies from having to comply with the first data protection principle, that data should be processed fairly and lawfully. It will also prevent an individual from obtaining access to his files and provides an exemption from the non-disclosure provisions. While those exemptions are not absolute, many people have found that under the Data Protection Act 1984 the police almost invariably claim an exemption. In such cases, when the individual requests his subject access report, the answer is that there is no information that the chief constable or the officer in charge is required to supply under the provisions of the Act. That means either that no data are held or that the police do in fact have the data in respect of which they claim exemption from the subject access provisions.

This first handful of amendments therefore tackle points within that justification. The justification for the first amendment, Amendment No. 76, is that the exemptions would apply only to serious crime in relation to personal data processed for the purpose of prevention or detection of crime. I suggest that that is such a wide category that it would include virtually all information held by the police relating to crime. In other words, the Bill does not make a distinction between categories of crime. The amendment would do that: it would distinguish between less serious and more serious crime.

The consequential amendments take the argument further to ensure that the exemptions contained in Clause 28 cannot also be applied to the assessment and collection of taxes and duties. I find it difficult to see why those bodies which assess and collect taxes or duties should be entitled to claim those wide and sweeping Clause 28 exemptions. Obviously, where data subjects are suspected of having committed criminal offences in respect of taxes or duties, subsections (1)(a) and (b) might apply in any case. But this is a very wide-ranging provision and I wonder whether we could consider it also.

I turn now to Amendment No. 85, which would delete "likely" and insert "reasonably considered materially". The objective there is to ensure that two safeguards apply: that the exemption could be claimed only where it was reasonably considered that there would be prejudice; and that there would be material prejudice to the specified purposes and not just any degree of prejudice, however small. I believe that it should be made clear on the face of the Bill that an exemption could be claimed only if there were likely to be prejudice on an objective basis. Requiring material prejudice would also restrict unwarranted claims for exemptions.

This group of amendments also contains the relevant new clause which would ensure that data subjects are informed when an exemption is claimed under Clause 28 and of the reasons. In that context the clause is, I believe, self-explanatory. I beg to move.

The Solicitor-General (Lord Falconer of Thoroton)

The noble Baroness has spoken to five amendments with great clarity, and I shall go through each one in turn.

The first amendment the noble Baroness proposes is in relation to the exemption contained in Clause 21(1)(a) which presently relates to the prevention or detection of crime. If her amendment is allowed, the noble Baroness proposes that it should now refer to, the prevention or detection of serious crime". I invite the Committee to think of the consequences of that proposed change. I do not know how the noble Baroness, in her own mind, would define serious crime, but I imagine that what she has in mind is quite a high test. The amendment would mean that any criminal activity which fell short of that test, namely the test of serious crime, would be outside the scope of the clause. It would no longer be possible, within the excluded categories of criminal activity, for a controller to refuse a request for subject access, even though granting the request would facilitate the commission of an offence or frustrate crime prevention activity. I fear that that is the consequence of the noble Baroness's proposal. The Committee will not be surprised to know that, speaking as I do on behalf of the Home Office, I find that outcome unacceptable, as would quite a number of people. We oppose that amendment.

The second amendment the noble Baroness proposes is, in effect, to delete the exemption as defined in Clause 28(1)(c), namely relating to personal data processed for the purpose of, the assessment or collection of any tax or duty or of any imposition of a similar nature". None of us likes paying taxes but most of us recognise that it is necessary to do so. Most of us also want the Inland Revenue to be able to ensure that all those who are liable to pay taxes do so in the interests of equity and fairness. The amendment would make it more difficult, if not impossible, for the Inland Revenue and the other tax collecting bodies to achieve this. It would stop the Inland Revenue refusing subject access even though it knew that the individual concerned would use the information he obtained to avoid his tax liability. I do not believe, and nor do the Government, that this is an acceptable approach. So again, I invite the noble Baroness to withdraw the amendment.

The next amendment the noble Baroness proposes relates to the words after paragraphs (a), (b) and (c) which presently state that where personal data are processed for any of the reasons mentioned in paragraphs (a), (b) and (c), they shall be exempt from certain provisions, in any case in which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection". The noble Baroness's amendment leaves out the words, would be likely", and inserts the words, reasonably considered materially to prejudice any of the matters mentioned in this subsection". It is the Government's view that the present test, which is based on the likelihood of prejudice to law enforcement or tax assessment or collection, is right. That test is not free-standing. There is another important safeguard already in the Bill, and the exemptions are only available on a case-by-case basis. That is the effect of the words "in any case" which are to be found in the first line after paragraph (c). This means that blanket exemptions are ruled out. But where, in a particular case, it is likely that there may be prejudice to the matters in question, the exemption is available.

This is already a fairly tightly drawn provision. It follows very closely the model of the corresponding provision, Section 28 of the Data Protection Act 1984. As far as I am aware, that provision has not shown itself to be capable of abuse. If anything, the complaints I have heard about Section 28 of the 1984 Act are to the effect that it is too tightly drawn. We believe that it is clear; we believe that it is tight. With the greatest respect to the noble Baroness's amendment, we do not think the amendments are tight. We do not believe they will lead to anything other than difficulty and confusion. We believe that we have struck the right balance in the likelihood test, in particular having regard to the reference to "in any case". Again I invite the noble Baroness to withdraw the amendment.

The final amendment in this batch of five is to insert at the end of Clause 28 a provision that in effect says, "If you are a data controller and you do not provide the information, give a reason as to why you are not providing the reason". I understand the reason for the amendment. Where it is necessary to deny a person their subject access rights for the Clause 28 reasons, we should give them as much information as we can in the circumstances. However, we must look at the purposes of Clause 28 to guide us. If subject access data has to be withheld for the reasons given in Clause 28(1)(a) to (c), revealing the fact that data are being processed may itself be sensitive information which could prejudice the purpose in question. The exemption applies not only to Clause 7 but also—through their connection with the first data protection principle—to the Schedule 1 requirements for information to go to data subjects when or soon after data are obtained. Together, these are known as the "subject information provisions".

It is necessary to look with some care at Clause 7 itself. Clause 7(1)(a) is an entitlement to be told whether a data controller is processing your information. If a Clause 28 exemption has to be claimed from that provision, it would be self-defeating to insist on an explanation of the reasons for it. It could seriously damage investigation or prosecution. Clearly, there may be some situations in which the fact of an investigation or prosecution is known already to the data subject. However, I think that the judgment on this matter should essentially be a matter for the controller. It would not be possible to establish a general requirement for the data subject to be told without there being substantial prejudice to the purposes of the exemption.

I remind the Committee that this exemption can only be applied in any case where it is likely to prejudice the purposes in question. It will very often be the case that the reasons which make it necessary to invoke the exemption will also make it necessary to be reticent about those very reasons.

I make one final point. There is not a total absence of protection. It must be borne in mind that in Clause 40 we have provided a specific protection for data subjects who are refused subject access, for whatever reason. They can ask the commissioner to investigate. Clause 40(3)(c) points the commissioner in the particular direction of subject access refusals. Clause 40(4)(b) provides a specific mechanism for giving the subject reasons for refusal, where it is appropriate. That formula takes account of the points I have made. It is the mechanism indicated by the directive, and I think that it is the best way to deal with the point made by the noble Baroness. I believe that I have dealt with all five amendments. I invite the noble Baroness to withdraw them.

Baroness Nicholson of Winterbourne

I am grateful to the noble and learned Lord for his exposition of the reasons for his rejection of my amendments in this clause. I make two points before withdrawing my amendments. I remind him—if he needs it, and I am sure he does not—that recent legislation such as the Police Act 1997 has distinguished between serious and other crime. I refer to Amendment No. 76. When the noble and learned Lord considers again the amendments that have been rejected, possibly that point could be taken into account. In other words, there is already a distinction in modern legislation. Perhaps it is worth looking at the issue again.

With regard to Amendment No. 78, I accept his reasoning that requesting information and obtaining it where there was criminal intent circumvents the objective of the work of the Inland Revenue. Nonetheless I remind him that by making that assumption across the board it tars everybody with the same brush. All requests for access to Inland Revenue subject data would therefore be deemed to be of criminal intent, which does not seem to me to be the attitude that the Solicitor-General would wish that department to adopt. With those points upon which I am sure he will reflect, I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

Baroness Turner of Camden moved Amendment No. 77: Page 16, line 39, at end insert— ("() the prevention of anti-social behaviour or crime and disorder for the purposes of the Crime and Disorder Act 1998;").

The noble Baroness said: I beg to move the amendment standing in my name on the Marshalled List. I would say at the outset that I was approached by the Local Government Association in connection with the amendment which is before us this afternoon. The purpose of the amendment is to clarify that the definition of, the prevention or detection of crime", for the purposes of exemptions under the Bill will include information relating to the community safety work done by local authorities.

The Local Government Association is concerned about restrictions on data exchange between local authorities and the police for the purposes of preventing crime, disorder and anti-social behaviour. The Crime and Disorder Bill currently before Parliament imposes a new duty on authorities to work with the police to develop local crime and disorder reduction strategies. The Bill also confers a new power to apply to a magistrates' court for an anti-social behaviour order.

The exchange of relevant information between local authorities and the police is essential to the carrying out of these functions. I believe it is true that the Government are willing to introduce a new clause to the Crime and Disorder Bill to ensure that information exchange by local authorities and the police is not ruled out of order, but the exercise of that power in specific cases will depend on a relevant exemption existing in the Data Protection Act.

Clause 28 of the Data Protection Bill, as we know, allows for an exemption for, personal data processed for … the prevention or detection of crime". However, I understand that the Data Protection Registrar has made it clear that she interprets this as referring only to information that relates to specific criminal proceedings or police detection of criminal offences. Her interpretation of Clause 28 does not include information relating to "crime and disorder", "anti-social behaviour" or civil proceedings (for example, the anti-social behaviour order procedure in Clause 1 of the Crime and Disorder Bill).

I understand that local government feels strongly that this formulation does not provide sufficient statutory support for the exchange of information relating to crime and disorder audits or the casework necessary for serving an anti-social behaviour order. Furthermore, there is great concern that the Bill will make matters worse because it will extend this restrictive regime to information held in card files.

I would be grateful to have the response of the Government to these representations which have been made, which seem to me to be quite legitimate in the context of the crime and disorder legislation.

Viscount Chelmsford

In rising to support the noble Baroness I would like to make one or two points. I would also like to bring in my own amendment which is grouped with this, Amendment No. 80.

I had not heard, until the noble Baroness mentioned it just now, about the Data Protection Registrar's interpretation. I would have thought that that interpretation is much less wide than we have heard from the noble and learned Lord both on Monday and this afternoon. It was my intention before he spoke, and it still is my intention, to say that everything that he has told us seems to me to give great comfort to those who are involved in the prevention and detection of crime.

I would like to go beyond that. I am afraid I do not agree with the noble Baroness, Lady Nicholson, in her views on this clause. I would like to find out how the Government intend to treat those who are involved in collecting information for purposes other than criminal ones, particularly for civil purposes. I am not sure how one should go about this, but it seems that one possible way to draw a response would be to put down, as I have done, "evidence required by solicitor". That at least brings it into an expected court proceeding. Obviously, those who are involved, for example, in divorce proceedings, need to be able to collect information. It will clearly be prejudicial to their client's case if such information must be given to the data subject who is on the other side of the case.

My amendment is a probing amendment. I shall be interested to hear how the Government intend to handle this side of the Data Protection Bill.

Lord Falconer of Thoroton

There are three amendments in this group: Amendment No. 77, which is the amendment moved by the noble Baroness, Lady Turner; Amendment No. 80, put down by the noble Viscount, Lord Chelmsford; and a third one—not even mentioned by anybody!—which would have been moved by the noble Baroness, Lady Young. I shall deal with all three, although the third one has not been moved.

The first one, moved by the noble Baroness, Lady Turner, wishes, in effect, to extend the exemption to not merely the prevention and detection of crime but also, the prevention of anti-social behaviour or crime and disorder for the purposes of the Crime and Disorder Act 1998". The second one wishes, in effect, to extend the exemption to, the preparation of evidence required by a solicitor in respect of expected civil proceedings". The third one wishes to extend Clause 28(2) to cover not just personal data processed for the purpose of discharging statutory functions but also personal data processed, to assist statutory authorities in the discharge of their legal duties". As these changes would all extend the exemption, it is important to give careful consideration to the justification for them. The provisions to which the exemptions relate are key elements of the data protection regime. Subject access is arguably the most important right for individuals created by the Bill; and the restrictions on disclosure are essential to the safeguarding of information. If we are to remove either of these two key safeguards, we need to be absolutely sure that we have sound reasons for doing so and that the exemptions are strictly necessary. We must also not forget that our Bill is implementing an EC directive which lays down restrictions on the scope of exemptions. We must be sure, therefore, that the exemptions are permitted by the directive.

I must admit that I have reservations about all three of the new proposed exemptions. Having had a part to play in taking the Crime and Disorder Bill through this House, I certainly wish to ensure that its objectives are not undermined by the Data Protection Bill. I have listened carefully to what the noble Baroness, Lady Turner, said in moving her amendment. I agree that partnership and inter-agency co-operation are crucial to the success of measures in the Crime and Disorder Bill. The Government are keen to ensure that measures in the Crime and Disorder Bill which require inter-agency co-operation are effective and workable.

However, with my data protection hat on I am not convinced that the amendment of the noble Baroness, Lady Turner, is strictly necessary. Other things apart, to the extent that the amendment applies to crime, the exemption provided by Clause 28 is already available. To the extent that the intention is to make the exemption for activities which are not criminal, we would need to look carefully at what the directive permits. Having said that, I fully understand the point that she is making on behalf of the Local Government Association. The proper action is to take her point and investigate whether there is a gap which needs to be filled, because I quite understand the basic point being made.

I should like to make clear that I am aware of the concerns that have been expressed by the Local Government Association about its ability—quite apart from the data protection law—to exchange personal data relating to behaviour which is not criminal but is anti-social. Examples are information relating to crime and disorder audits or the case work necessary for serving an anti-social behaviour order.

This is something we are looking at closely in the context of the Crime and Disorder Bill. That, rather than this, is, I suggest, the right context for determining what information should be exchanged. Equally, there is still a potential gap that we need to consider in the Data Protection Bill before we finally respond to the amendment that the noble Baroness has proposed.

The second amendment relates to civil proceedings. The point was raised by the noble Viscount, Lord Chelmsford. I listened carefully to his comments. The Bill already makes provision in paragraph 9 of Schedule 7 for a subject information exemption for legal professional privilege. Thus if a solicitor is preparing a case and getting information which would itself attract legal professional privilege, that would be exempt. It is not clear to me why this exemption does not meet the noble Viscount's concerns.

The third amendment, which has neither been moved nor spoken to, takes a different tack. It not having been moved or spoken to, all I shall say at this stage is that I am not persuaded of the need for it.

Baroness Turner of Camden

I thank the noble and learned Lord for what he said—that there is a gap and that this will be looked at. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (The Viscount of Oxfuird)

Perhaps I may point out that under the assembly of these amendments it is the first amendment that is moved, and the remaining amendments along that assemblage line are spoken to. They are not moved at the same time as the first amendment. Every amendment is dealt with seriatim.

[Amendments Nos. 78 to 80 not moved.]

Baroness Nicholson of Winterbourne moved Amendment No. 81: Page 16, line 43, leave out ("the first data protection principle and").

The noble Baroness said: With this amendment I seek to delete, the first data protection principle and", from the bottom of page 16 of the Bill. The purpose is clear: that the police and the law enforcement agencies should remain under the obligation to process personal data in accordance with the first data protection principle.

I find it odd that I should have to argue for this with particular reference to what we have called in the Bill—I believe correctly—sensitive personal data which refer to ethnic origin, gender, religious beliefs and political opinions. Those are basic human rights that we take seriously in our civil liberties-oriented society.

I am seriously concerned that for no apparent reason law enforcement agencies in particular should be excluded from the simple duty of having to process that data fairly and lawfully. I find that extraordinary, and difficult to accept. Surely in our society all the law enforcement agencies are bound by the rule of law; and a fundamental law is that material that is held, particularly by a government department, should be processed fairly and lawfully. Those two words seem to me to be a basic need if personal data are to be processed at all.

I beg the noble and learned Lord to take this matter very seriously and to see whether a way could not be found to water down this broad provision that has been allowed, which the amendment seeks to alter. I beg to move.

The Deputy Chairman of Committees

I must advise the Committee that if the amendment is agreed to I cannot call Amendments Nos. 82 and 83 due to pre-emption.

The Earl of Northesk

I note that Amendment No. 88 is also in this grouping. In essence, my purpose with Amendment No. 88 was contingent upon Amendment No. 32 which we addressed on Monday. I do not propose to say very much about it. Apart from that, I suspect that my purpose in the amendment is much more likely to be achieved under Amendment No. 89, and so I will leave my deliberations about it until that amendment is moved.

Lord Norton

In the light of Amendment No. 83, I do not propose to speak on Amendment No. 82.

4.30 p.m.

Viscount Astor

Perhaps I could just say a word of general support for the principle of the amendment moved by the noble Baroness, Lady Nicholson of Winterbourne. Clause 28 is causing the Committee some concern and we have more amendments on it. There is a problem here and I look forward to hearing the Minister's reasoning behind some of the rather draconian provisions that are in the clause.

Lord Falconer of Thoroton

On Monday, in talking to Amendment No. 32 in the name of the noble Earl, Lord Northesk, my noble friend Lord Williams of Mostyn said that he thought the subject matter of his amendment was germane to this batch of amendments. If I may, in my response later on I will deal with that amendment as well.

There are two amendments that I will deal with. The first is Amendment No. 81 moved by the noble Baroness, Lady Nicholson of Winterbourne. I will also, if I may, deal with the government amendment, No. 83, which has led the noble Lord, Lord Norton, to withdraw his Amendment No. 82.

Amendment No. 81 would remove the exemption from the fair and lawful processing requirement for those controllers whose purpose is dealing with crime, offenders and collecting taxes. As the noble Baroness, Lady Nicholson of Winterbourne, says, on the face of it it seems a perfectly reasonable proposition that any controller should be subject to the requirement to be fair and lawful. For most organisations these are basic principles of our present data protection law and of the regime the Bill introduces. However, the reason for the exemption is to be found in the particular purposes identified by Clause 28(1).

Law enforcement and tax collection necessarily involve a battle of wits against people who are working hard to cover their tracks and establish whether, and, if so, how far, investigations against them have progressed. Moreover, under the Bill the term "processing" goes very wide indeed. Under Clause 1(1) of the Bill it embraces, for example, obtaining, recording and holding, as well as manipulation, consultation, disclosure and destruction. Depending on the circumstances, the term "fairness", applied to both obtaining and processing, for example, can require considerable information to be given to data subjects—information of a kind whose release would frustrate the inquiries they are making. A requirement for lawful processing may also in practice lead to challenges to important investigative work.

I remind the Committee that the exemption applies only to individual cases where compliance with the principle would frustrate the law and order and taxation purposes. That is embodied already in the terms of the clause. I should also explain that its practical effect is the same as the present law. The Data Protection Act 1984 prevents the registrar from taking enforcement action in respect of the first principle where crime, offenders and taxation are concerned; and, more generally, it gives individual data subjects no enforcement powers in respect of that principle.

I should also make clear the limited nature of the exemption from the requirement to process lawfully. All this means is that the unlawfulness is not actionable as a matter of data protection law. It does not make the unlawful act otherwise lawful, and it does not prevent any other form of enforcement or redress in respect of the unlawful act.

Against that background I would invite the noble Baroness, Lady Nicholson of Winterbourne, to withdraw her amendment.

But before the noble Baroness makes any decision about this, I would like to turn to the government amendment, Amendment No. 83. On the face of it, this is more technical in nature, although what I have to say should help to give reassurance to the Committee. As we have heard, Clause 28(1) creates an exemption in limited circumstances from the first data protection principle, but the first data protection principle itself has to be read alongside the provisions of Schedule 2 and Schedule 3. The first principle cannot be satisfied unless at least one of the conditions in Schedule 2 has been met and also, in the case of sensitive personal, one of the further conditions in Schedule 3 has been met.

In allowing for an exemption from the first principle in Clause 28(1), it is not our intention to remove the requirements for compliance with those threshold requirements. In other words, that means that the effect of the government amendment is that people claiming exemption under Clause 28(1) are not exempt from having to show that they have a legitimate purpose for the processing, such as the administration of justice or fulfilling a legal obligation. That is the point which Amendment No. 32, with which we dealt on Monday, was concerned with, and with respect to the noble Earl, Lord Northesk, it deals with precisely the point he raised in Monday's debate on his Amendment No. 32.

I come back to what I believe to be a key point. These exemptions are required to assist in the prevention or detection of crime, the apprehension or prosecution of offenders and the assessment or collection of tax. They are limited to a case-by-case basis, and they apply only in respect of where it would be likely to prejudice any of the matters concerned. If the position is that the Data Protection Bill would lead to prejudicing the prevention or detection of crime, for example, it seems only right and proper to the Government that there should be an exemption to it. A balance has to be struck, and we have struck the balance in the right place. In those circumstances, I would invite the noble Baroness and the noble Earl to withdraw their amendments.

Lord Skelmersdale

Before the noble Baroness withdraws her amendment, I wonder whether I can probe the noble and learned Lord a little further on what he said about the government amendment, No. 83, except to the extent that it requires compliance with the conditions in Schedules 2 and 3". By very definition, the data subject cannot possibly give their consent under Clause 28(1), and surely to goodness this is one of the things which ought to be removed from the exceptions to which the government amendment refers—that is to say, Schedule 2, paragraph 1.

Lord Falconer of Thoroton

I cannot think of a circumstance, although there may be one, where consent could be given, but the first data protection principle provides that personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless at least one of the conditions in Schedule 2 is met. Consent is not the only condition in relation to Schedule 2. Obviously there is a large number of other conditions which could be fulfilled which would satisfy the requirement of the first data protection principle in paragraph 1. That is how it works.

Viscount Astor

Before the noble Baroness replies, perhaps I could ask the noble and learned Lord a question. I follow the logic of his answers, but for these data to be exempted for these purposes under this clause, does that purely relate to data that are held by either a government department or a government agency, or can it be wider than that? My concern is whether this could be a quango or some totally outside third party. If that is the case, that would certainly cause me some concern, as opposed to data specifically held by some government department.

Lord Falconer of Thoroton

It is not restricted to government departments and I can see no reason why it should be. If there are bodies holding data for the purpose of the prevention or detection of crime—there may be bodies that hold information, for example on child abuse, which are not government departments—why should their purchasing of that material, and therefore their activities in the prevention or detection of crime, be restricted? It seems to me as a matter of principle wrong that it should only be government departments that have that protection.

Viscount Astor

The noble and learned Lord uses rather an extreme case, but in my experience there are organisations such as quangos which are reluctant to reveal material to people involved. They all too easily use excuses. It would be far too easy to say "There might be a case". It is difficult to drag information out of them. Often this is information which belongs to the public. But the organisations have an aversion to revealing information. That information may not be correct; it may be entirely fallacious. Therefore I am worried that there are organisations that are not directly connected to government departments or government agencies holding information which is entirely wrong. It either has been included by mistake, or it may have been included for some malicious reason. How can this ever be corrected?

Lord Falconer of Thoroton

I know I am repeating myself to some extent, but there is no harm in that. First, it is dealt with on a case-by-case basis. I take the first example. In order for the exemption to apply it has to be for the prevention or detection of crime. The exemption will apply only in relation to where it would be likely to prejudice any of the matters mentioned in the subsection. It has to prejudice the prevention or detection of crime. Moreover, the exemption is only from the first data protection principle, subject to the change made by the amendment. Therefore there is no exemption from the fourth data protection principle, which is that the personal data shall be accurate and. where necessary, kept up-to-date. That meets the noble Viscount's point.

If a quango—which is the noble Viscount's concern—wrongly uses this exemption to keep back information, it is not through this exemption but it is misconduct, in effect, on the part of the quango. If, on the other hand, this mythical quango that he has in mind is holding the information back in order to assist itself in the prevention or detection of crime, then in the Government's view that is a fair operation of the exemption.

Viscount Astor

I am grateful to the noble and learned Lord. I can assure him that there will be cases in the future where people write to agencies enclosing a copy of the Hansard statement that he has made today.

Lord Falconer of Thoroton

I am very glad to hear it.

Baroness Nicholson of Winterbourne

I am grateful to the Minister for his explanations. I beg leave to withdraw the amendment. We are about to discuss a more wide-ranging amendment in which we can return to the same topic.

Amendment, by leave, withdrawn.

[Amendment No. 82 not moved.]

Lord Falconer of Thoroton moved Amendment No. 83: Page 16, line 43, after ("principle") insert ("(except to the extent to which it requires compliance with the conditions in Schedules 2 and 3)").

The noble and learned Lord said: I formally move the amendment. I have just spoken to it.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 84: Page 16, line 43, leave out ("in which") and insert ("to the extent to which").

The noble and learned Lord said: I formally move this amendment. It was spoken to by my noble friend Lord Williams of Mostyn on Monday.

On Question, amendment agreed to.

[Amendments No. 85 to 88 not moved.]

4.45 p.m.

Baroness Nicholson of Winterbourne moved Amendment No. 89: Page 17, line 15, leave out subsection (4).

The noble Baroness said: I am particularly delighted that the teatime crumpets, or maybe the 6 p.m. whisky that the noble Viscount. Lord Astor, found on Friday evening encouraged him to support this amendment. It is a very important one and I was glad on Monday morning to find that he had noticed it; indeed, we should look at this very seriously. The Select Committee on Delegated Powers and Deregulation of the House of Lords in its session 1997 to 1998, which published a report on 4 February 1998, turns our attention to it immediately.

On page 3, the committee reported that, when examining the Data Protection Bill, it looked to see whether or not the grant of secondary power was appropriate, and states: With the potential exception of clause 28(4), to which we return later, in each instance we concluded that it was". That of course undermines my earlier amendment which referred to Clause 28(1) but it puts it in the context of the Select Committee's concerns on Clause 28(4).

In paragraph 6 of the report the Select Committee states: ''The order-making power in clause 28(4) is one of the most controversial elements of the bill. It gives the Secretary of State an apparently unlimited power to exempt personal data of a specified description from the data subject's right of access to personal data (section 7) and from the requirement to process personal data fairly and lawfully (set out in paragraph I of Schedule I to the Bill)". It goes on to say in paragraph 7: As the Minister acknowledged during the Second Reading debate on this bill, there is a particularly difficult balance to be struck with this power, about which the Data Protection Registrar has expressed her concern". The committee goes on to say: The need for the power in section 28(4) to create additional exemptions"— on top of the extension in Clause 28(1) which the Minister has begged us to support— is not immediately apparent, and indeed the Minister told the House that the Government had 'made no firm decisions about its use'. It is not easy to see what clause 28(4) adds which is not covered by clause 28(1)". In other words, if the Minister wishes us to accept Clause 28(1), would he not reconsider Clause 28(4)? Indeed, the Select Committee concludes that this is: a power which in the Committee's view it would be impossible to justify. The House will no doubt wish to consider these issues with the greatest care during the Bill's subsequent passage and may wish to amend the Bill to remove the general power to grant exemptions from the first data protection principle.

The Select Committee referred to the concerns of the Data Protection Registrar and, in a note circulated to noble Lords in this Committee on Monday of this week, she drew attention to her briefing note which expresses her considerable disquiet at Clause 28(4). She welcomes the tenor of those amendments, which would in a proportionate way exempt from the powers of the commissioner and the courts rather than giving blanket exemption from the principles, and also provide an opportunity to carry out assessments when the exemptions are relied upon. That refers to her own release on the Data Protection Bill of 2nd February, when she claims in paragraph 6: A blanket exemption is disproportionate". She goes on to say: It is difficult to see how it is consistent with the limited power to provide exemptions in Article 13 of Directive 95/46/EC which permits exemptions which are 'necessary' to safeguard, among other things, law enforcement and 'an important economic or financial interest of a Member State …including…taxation matters'". She also points out that there, must also be a risk of a breach of Article 8 of the European Convention on Human Rights which is currently the subject of a Bill before Parliament which would incorporate it into UK law". She, herself, makes the proposal that if the Inland Revenue requires more powers, they should be placed in a financial piece of legislation.

Of course there are many other bodies which have expressed their concern such as Justice, which has subsequently sent a brief, and the organisation Liberty. But I believe that our concern is fully warranted as Members of this Committee. With the digestion of Clause 28(1) will the Minister not save us an additional course to give us indigestion with Clause 28(4)?

The Deputy Chairman of Committees

I have to advise the Committee that should this amendment be agreed to, I cannot call Amendments Nos. 90 and 91 due to pre-emption.

Viscount Astor

I was happy to add my name to this amendment put forward by the noble Baroness, and she has explained the reasons extremely fully. I do not need to add anything, therefore, except that I note that we are also speaking to Amendment No. 90 tabled in the name of the noble Lord, Lord Williams of Mostyn, to which the noble and learned Lord will no doubt speak momentarily. I looked carefully to see whether that gave any help to the concerns that we have on the clause, and I am not sure that it really does. However, I shall listen with care to the noble and learned Lord.

Lord Skelmersdale

I, too, looked at subsection (4) and, as is my wont, being occasionally somewhat dyslexic, I read it backwards. I discovered very quickly that the whole of subsection (4) hangs on subsection (1). The only difference I observed from subsection (1) was the fact that the orders may be made for producing an exception for the non-disclosure provisions. Apart from that, no orders need to be made, as I understand it, because they are already there in the exemption given by subsection (1). In that case, what do we want all this for at all? Would it not be far better to put the non-disclosure provisions in paragraph(c) into subsection (1) and do away with this subsection altogether?

The Earl of Northesk

I rise to support the noble Baroness, Lady Nicholson, and my noble friend Lord Astor in the amendment. I have nothing to add to their argument except one small thought. It struck me that it may be intended to accommodate a number of "what if?" scenarios; in other words, attempts to pre-empt technological advances before they have taken place. I would contend that there are more appropriate and better ways of achieving this object on the face of the Bill rather than by the subsection as currently drafted.

Lord Falconer of Thoroton

If I may say so, a formidable case would appear to have been put up in relation to Clause 28(4). However, with respect to all the excellent speeches that have been made, it appears to some extent to be based upon a slight misunderstanding of the inter-relation between Clause 28(1) on the one hand and Clause 28(4) on the other. If I may, I shall deal with the whole clause to try to explain what we are trying to achieve with Clause 28(4).

With differences of detail between subsections (1) and (3), their basic approach is that where in the individual cases the purposes referred to—prevention and detection of crime, and so on—would be prejudiced, there are exemptions from the requirement to apply the first principle—fair and lawful processing—and other particular principles or provisions of the legislation referred to in Clause 28(1). The one that is important in this context is the Schedule 1, Part II, paragraph 2 requirement for information about processing to be given to data subjects when data about them are obtained from them or from third parties. You can have an exemption under Clause 28(1) in relation to that sort of data.

The common feature of subsections (1) to (3), and indeed the theme which runs through the equivalent provisions in the present data protection law, is that the exemptions shall apply where the crime, offender and taxation purposes would otherwise be likely to be prejudiced in the particular case. There are no general exemptions, for example, on the basis that some of the data are of a type which might prove to be relevant to crime, offenders and taxation. It meets the point that was made a few moments ago to the effect that, "Why don't you just bung the non-disclosure provisions referred to in Clause 28(4) into Clause 28(1), and that meets the point?". The answer is that they are dealing with different things. Clause 28(1)deals with an individual case where, for example, the prevention or detection of crime would be prejudiced, or would likely to be prejudiced, by complying with, for example, Section 7. Clause 24(1) gives the Secretary of State power to exempt information in a general area, not on a case-by-case basis.

Lord Skelmersdale

Is the noble and learned Lord leaving that point and moving on to a slightly different one?

Lord Falconer of Thoroton

I was going to go on, but please interrupt me if I have not explained it adequately. Subsection (4), as proposed in the Bill, deliberately widens the approach of Clause 28(1) to bring in cases where a category of information may prove to be relevant to crime, offenders and taxation but it is not known at the time whether or how much of it will be relevant.

I stress that any exemptions under subsection (4) would not extend beyond crime, offenders and taxation and that they would have to be set out in an order subject to affirmative resolution. Ministers would have to bring forward a particular proposition and justify it to Parliament. It is not, therefore, an open gateway for the Executive to pass through as it likes. Nothing could be done without explicit parliamentary approval.

As Committee Members will know, the Government have tabled an amendment to remove one part of subsection (4). I will turn to that later, and deal first with the fundamental question raised by the amendment of the noble Baroness, Lady Nicholson of Winterbourne—why have we included the provision at all—having explained how it relates to Clause 28(1). Essentially it is to protect important functions, carried out on behalf of the public and which benefit us all, which need to be balanced against the protections in the Bill for individuals in the Bill—

Baroness Nicholson of Winterbourne

Might I ask the noble and learned Lord whether he can explain why in that case this has not been necessary since 1984 with the initial Data Protection Act?

5 p.m.

Lord Falconer of Thoroton

The immediate reasons for bringing forward the proposal relate to the collection of taxes. Without the protection afforded by subsection (4), key areas of the Inland Revenue's business, which are central to the fight against tax evasion and fraud, would be put at risk. This is particularly so under the new tax self-assessment system which is now being introduced. Given the extent to which data controllers nowadays hold information on computer or in structured manual collections, these problems may not have been so apparent in 1984 as they are now.

The key issues are that it is likely that the Revenue would have to tell people about whom it has received information from third parties, for example, from banks, through the use of its statutory powers, what that information was and what the Revenue intended to do with it. It may not be able to receive information provided voluntarily by third parties which is necessary to identify "ghosts" and "moonlighters" and help in identifying tax dodgers. It will not be able to maintain the confidentiality of systems designed to identify falsely completed tax returns.

Disclosure of some of the information the Revenue holds and indications of how it identified false tax returns would enable rogues to arrange their tax affairs in such a way as to avoid inquiry and therefore detection. It would be tantamount to giving burglars a wiring diagram of the alarm system. In other words, if you do not have a general exemption in relation to certain specified sorts of information, people who wish to dodge their taxes would simply ask for particular categories of information and then use that as a blueprint for how to dodge their taxes.

Your Lordships may well ask whether these concerns about tax evasion and fraud are sufficiently serious to justify this clause. I believe they are. Tax evasion and fraud harm those honest citizens who pay their proper share of taxes: the tax burden evaded by the few falls on the many, so that every honest taxpayer subsidises the tax-evader's lifestyle. Furthermore, the infrastructure of a civilised society, transport and roads, schools, health and social services that we all rely on, the policing, the social housing, the system of law and order which protect our peace of mind, our families and our property, are all funded by tax. Tax evasion means less revenue to fund these services.

A couple of examples may help your Lordships appreciate the amounts of revenue at risk here. In a recent Inland Revenue project, information obtained informally from a trade body led to investigations which yielded nearly £70 million in additional tax. In two Revenue initiatives in the retail sector, tax-relevant information provided voluntarily by third parties suggested a potential loss of tax of about £100 million. Important sums of money could well be lost if there is not at least this power.

While it is not possible to provide precise figures for the amount of tax at risk if the exemptions were not available, it is fair to assume that these will be substantial and that those who have something to hide would soon find out how to gain access to Revenue information.

Honest members of the public need have nothing to fear from the power and I believe they would welcome this measure to safeguard initiatives to act against the small minority who cause significant loss to the public purse through tax evasion and fraud.

Your Lordships have also asked why we seek a general power to exempt by order. The reason is that the needs of the Inland Revenue to operate in the public interest are the most immediate and obvious example, but practices do and will change elsewhere in government and we may come across similar situations elsewhere. As indicated earlier, both the Inland Revenue case and any other would have to be justified individually to Parliament, and the exemption could not be made unless Parliament agreed through affirmative resolution.

I therefore invite the Committee to reflect on the reasons why we included this provision. There is nothing sinister about it at all; we have to reconcile the interests of individuals with the wider public interest. This discussion is not really about the power of Inland Revenue officials but about the interest we all have as individuals in crime being tackled effectively and in the tax collection system working fairly and in the interests of the law-abiding majority. On that basis, and in recognition of the Government's more targeted amendment, to which I will come in a moment, I invite the noble Baroness to withdraw her amendment.

Just to repeat, the important distinction between Clause 28(1) and Clause 28(4), which gives the reason for Clause 28(4), is the need to deal with categories of information rather than on a case-by-case basis, which is all that Clause 28(1) is concerned with. With the analysis I have given about what the prospective risks are of people obtaining information from the Inland Revenue as to the information it has, it seems to me that an extremely strong case can be made for the existence of the exemption power. Used responsibly, and subject as it is to parliamentary scrutiny, it is an appropriate safeguard in relation to the abuse of the tax system through the data protection principle which will occur if there is not such an exemption power.

Let me now move to the Government Amendment No. 90. I hope it will be clear from the remarks I have made on the noble Baroness's amendments that the Government are trying through this Bill to achieve a fair balance where interests conflict. The government amendment is an earnest of that approach.

It would delete the reference in paragraph (a) to the first data protection principle and replace paragraph (b)'s reference to Clause 7 with a reference to, (he subject information provisions". These are defined in Clause 26(2) to mean Clause 7—subject access—together with the very limited aspect of the first principle, which requires data controllers to give data subjects certain information when they collect data about them. That aspect is set out in Schedule 1, Part II, paragraph 2. Taken together with Clause 7, it comes under the broad heading of the subject information provisions.

Essentially, the amendment reduces the Clause 28(4) exemptions to those mechanisms in the Bill which, as the case may be, could lead to undesirable disclosures to the data subject or could impede reasonable disclosures by data controllers. It takes the fair and lawfulness principle out of the equation. We readily accept that, as one of the core principles of data protection, fairness and lawfulness should not be amendable through the Clause 28(4) process.

With respect to what was said by the noble Viscount, Lord Astor, it meets head on the point made by the Select Committee on Delegated Powers and Deregulation; namely, that Clause 28(4) would, on the face of it, permit the Secretary of State by exemption to cut the heart out of the provisions of the Bill by giving exemption in respect of the first data principle. Our amendment effectively prevents that, and meets the criticisms that have been made. I very much hope that that indicates an earnest of the Government's genuine intentions in this respect. In those circumstances, I shall move the government amendment in due course.

Baroness Nicholson of Winterbourne

I thank the noble and learned Lord for his long and very helpful explanation, which will need careful studying when we see it in Hansard, combined with the Government's own amendment which is most welcome. The point I raised, however, regarding the Data Protection Act 1984 and the lack of need for the current Clause 28(4) was met by the Minister, who pointed out that the Inland Revenue was not computerised at that time. I myself wonder if the—admittedly less sophisticated—computerisation of the Inland Revenue does make a relationship with this particular piece of legislation, whereby we are also talking about records that are not electronically stored or digitally created.

Lord Falconer of Thoroton

I did not explain myself adequately. The 1984 Act does not apply to manual records whereas the 1998 legislation—that is, the Bill—does and, therefore, you need to deal with that point as well. You did not need an exemption when there were no manual records.

Baroness Nicholson of Winterbourne

I do know that, but I also know that the computerisation of the Inland Revenue was well advanced in the middle of the 1980s, and therefore those records which were digitally created fell under the 1984 Act. I wonder therefore if the Minister has yet made a convincing enough case for Clause 28(4), with the argument that I have perhaps slightly nullified.

The Minister also made the point that there was greater security because of self-assessment. It is inherent in self- assessment that the data subject knows a great deal more about the data than ever before, because the self-assessment form has been created. Nonetheless, that may be nit-picking. I am looking forward to seeing in Hansard the results of the way in which the Government's own amendment, which I believe will be accepted, will affect the first and, implicitly, the fourth subsection. I do, however, dislike these wide-ranging seven powers that the Government have given themselves, with affirmative or negative resolution, in this Bill. It is clear that the substance of the problem in Clause 28(4) is the Inland Revenue, and whether a financial piece of regulation would not be the better way forward. I accept that the difficulty of data protection legislation of any sort is that it impacts upon all government departments. I myself raised the question of medical records on Monday; indeed, there is an impact on the Department of Health. I am grateful to the Minister and look forward to reading his arguments in Hansard. I hope not to have to refer to this matter again, but may well do so.

Viscount Astor

Before the noble Baroness, Lady Nicholson, withdraws her amendment, may I ask a question? From our debate it has become clear, as the noble Baroness said, that this is driven by the Inland Revenue and tax collection. The Committee would feel happier in the circumstances if Clause 28 could be more specific, for that reason. I am still concerned that it is too wide-reaching. As the noble Lord agreed, Clause 1 affects data which can be held by almost anybody. While we agree with their laudable intentions and this point about tax raising, would the Government consider between now and Report stage the fact that the powers go beyond mere tax raising?

Lord Falconer of Thoroton

The point made by the noble Baroness, Lady Nicholson, should be dealt with in the Finance Bill, rather than in the Data Protection Bill. If it is a data protection problem, it should rightly be faced here, rather than in a Finance Bill. But we should not, as it were, change the principle from some other Bill.

As far as the point made by the noble Viscount, Lord Astor, is concerned, we have included a general exemption power rather than one specific to the Inland Revenue because we believe it may well be that practices will change in other areas which cannot be foreseen and which make it appropriate to have a general power. If it can be dealt with in this way in relation to the Inland Revenue, then so could it in relation to other offences, for example. That is why it is appropriate to have a general power, rather than a specific one.

Lord Skelmersdale

Presumably the general power the noble and learned Lord has been referring to would include national insurance charges, for example?

Lord Falconer of Thoroton

The general power is limited to the exemptions required for any of the purposes mentioned in subsection (1), which are: (a) the prevention or detection of crime, (b) the apprehension or prosecution of offenders, or (c) the assessment or collection of any tax or duty of any imposition of a similar nature".

Lord Skelmersdale

I misunderstood. The noble and learned Lord spent so much time in his very explicit speech defending Clause 28(1) rather than Clause 28(4) that I became somewhat confused. My question was directed to Clause 28(1)(c): the assessment or collection of any tax or duty or of any imposition of a similar nature", and I was asking whether national insurance charges would be of a similar nature.

Lord Falconer of Thoroton

They would be.

Baroness Nicholson of Winterbourne

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendments Nos. 90 and 91: Page 17, line 17, leave out from ("from") to ("the") in line 20 and insert ("the subject information provisions and"). Page 17, line 21, after ("if") insert ("and to the extent that he considers that").

On Question, amendments agreed to.

Lord Norton moved Amendment No. 92: Page 17, line 22, at end insert— ("() The Commissioner may, with the consent of the Secretary of State, assess any processing of personal data exempted from any provision of this Act by virtue of this section.").

The noble Lord said: Clause 28, as the Committee already realises, is the atomic bomb clause of the Bill. It gives data controllers, which include the police as well as commercial concerns, huge rights in three defined purposes: exemption from the first principle—now much modified by the Minister; the refusal to grant subject access; and the exemption from non-disclosure provisions in cases where the disclosure would be likely to prejudice any of the three purposes. These include the prevention and detection of crime and the prosecution of offenders.

The term "likely to prejudice" has been held by the tribunal as the real likelihood of prejudice in a particular case, rather than a mere risk of prejudice. It is therefore quite a strong test.

The exemptions are considered case by case but are frequently used on a constant basis in anti-fraud departments in commerce. Among police uses are the exchange of photographs of known or suspect shoplifters with shopping centres, under-age drinkers or photographs of football hooligans with football stadiums. I understand that the photographs are not restricted to wanted criminals but to those whom the police consider to be relevant targets. I wonder how much analysis, on a case-by-case basis, goes on considering the limited resources of the police. Given their limited resources, there must be a temptation to release more and more information, thereby increasing the effectiveness of policing, irrespective of any involvement of likely criminal activity. There is now the digital technology to recognise faces, not just number plates, by computer, so it is a very fine line that we could he treading before entering the dreaded Orwellian world.

The clause is essential but because of the concerns of possible abuse in commerce and other authorities, including the police, I believe it has to have the safeguard of allowing the commissioner automatic access to data controllers to verify the bona fide operation of any data controller relying on Clause 28, which is what my amendment proposes. I believe this would strengthen the clause's effectiveness by applying a discipline to the working of the clause as well as safeguarding the data subject.

It is not as if the commissioner will not have access to sensitive information, because it is expected under the innocuous Clause 51(4) that the commissioner will be granted audit powers by the Secretary of State to audit Europol, NCIS and the Customs information system. These databases will hold highly sensitive information and thus access by the commissioner to activity under Clause 28 should present no problem. I beg to move.

5.15 p.m.

The Earl of Northesk

I note that Amendment No. 140 is in this grouping, so, if I may, I will speak to it. Its effect would be to give the data protection commissioner specific authority to conduct a systematic data protection audit of an organisation, whether public or private, in addition to any good practice assessment.

Article 23(3) of the directive requires each national data protection authority to have: investigative powers, such as powers of access to data forming the subject-matter of processing operations and powers to collect all the information necessary for the performance of its supervisory duties". In this context, Clause 49(1) of the Bill follows Section 36 of the 1984 Act in requiring the commissioner to: promote the following of good practice by data controllers and…promote the observance of the requirements of this Act by data controllers". But, as a generality, the commissioner will be unable to monitor compliance, nor, more crucially, to detect future problems before they become serious.

Noble Lords will recall that at Second Reading I made the point that the Bill does little to acknowledge the inexorable march of computer technology. The capacity of the law to stay abreast, let alone get ahead, of IT development is inevitably restricted. As mentioned in the Delegated Powers and Deregulation Committee's report: automated processing is increasing rapidly, and is likely to continue to do so as developments in computer technology continue to push areas of the law into hitherto uncharted territory". By affording the commissioner audit powers of the kind envisaged in the amendment, the potential is created for the commission to monitor and keep pace with technological developments as they occur.

It is worth noting that elsewhere in the world, albeit that the precise way in which monitoring is achieved varies widely from country to country, such audits are the norm. Some commissioners rely almost entirely upon informal visits and inspections, while others devote resources to a smaller number of detailed audits. The important point is that all data controllers are made more aware of the possibility of sanctions and, in the case of public authorities—and this is a particularly important point—of the public exposure of failure with embarrassing consequences.

As an aside—I am mindful that we will be debating data matching later in Committee—such audits could be used to monitor data matching activity more effectively. It is also worth making the point that with regard to the general category of information attempted to be picked up by Clause 28(4), in some respects that might be more usefully dealt with by the audit powers of the commission that the amendment proposes.

I have no doubt that the Minister will in response highlight the issue of financial cost. This need not be excessive, dependent upon the mechanisms adopted to exercise the powers granted. Moreover, I believe that the UK Government seem to be very much in a minority in their insistence that data protection supervision should aim to be self-financing from the collection of fees. Other governments treat data protection as an essential public service.

Baroness Nicholson of Winterbourne

I should like to add to that point by reference to Amendment No. 139, which is also welcomed by the Data Protection Registrar because it would allow her to develop her powers to encourage good practice. There are significant limitations on her supervisory powers in the Bill, and many organisations have deliberately flouted the current Data Protection Act 1984. Indeed, some analyses have suggested that as many as 40 per cent. of companies have flouted the current legislation. I personally believe, therefore, that these supervisory powers for the data protection commissioner, the former registrar, in the new Bill are very important indeed, and that if she or her successor is inhibited by the data controller, who may be evading the legislation completely, her powers are very few. I am confident that the Government do not wish to be in the position of the previous government, who put through a great deal of legislation that has not been honoured. I believe that they will wish their legislation to be treated seriously and fairly by all concerned. I suggest that this very modest amendment would be a helpful move.

Lord Falconer of Thoroton

With the permission of the Committee, I shall deal with the three amendments as they are grouped together.

Amendment No. 92 was proposed by the noble Lord, Lord Norton. It would give the Commissioner power, subject to the consent of the Secretary of State, to assess any processing to which the Clause 28 exemptions apply. It is not clear from the amendment how the mechanism for securing the Secretary of State's consent would operate. Nor is it clear what the purpose of the assessment would be. However, those are shameful points to make when I understand the purpose of the amendment, which is in effect to give the commissioner power to investigate whether an exemption is being properly claimed.

We believe that that is not an addition that needs to be made to the Bill. We believe that the commissioner already has adequate powers in the Bill to seek the information she needs to enforce the law. I draw your Lordships' attention in particular to Clause 41, which sets out the information notice procedure where the commissioner has received a complaint or otherwise suspects that there might be an infringement. She also has the power, with the consent of the data controller, to make an assessment of good practice. We believe that that is enough to allow her to discover whether any abuse is taking place in relation to a particular data controller.

Lord Norton

The commissioner has already indicated that Clause 41, to which I shall speak later, is totally useless and she would not use it. I wonder whether the Minister has another point?

Lord Falconer of Thoroton

I understand that the Home Office is in discussion with the commissioner about that. The clause gives her the ability to ask questions of people. The alternative is that she simply be given a general power to find out what is going on. A balance must be struck between, on the one hand, people being legitimately entitled to carry on their business without inappropriate intervention from the state, but, on the other, the state—by which I mean the commissioner—having powers to make such investigations as are appropriate.

If and in so far as the commissioner believes that Clause 41 does not give her sufficient powers, that seems to be a matter that should be discussed with her. One hopes that agreement could be reached with her as to the appropriate course to take.

Lord Norton

Section 28 is used on a constant, day-to-day, basis by banks, insurance companies and police who exchange information with a variety of commercial operations, and I do not feel that the necessary discipline is set out in the Bill. It would act as a comfort for the person exchanging the information to know that that other person had an outside accountability. The police may draw comfort knowing that the information that they were giving to a data controller was capable of being audited on a spot-check basis.

Lord Falconer of Thoroton

The position is that if there is a belief that the exemption is being improperly claimed, or that is what the commissioner believes, she will believe, or have reasonable grounds for suspecting, that a data controller is contravening one of the data protection principles, and she can serve an information notice.

Lord Norton

Is the Minister saying that a belief is "reasonable grounds"?

Lord Falconer of Thoroton

The words of Clause 41 are that, If the Commissioner … has reasonable grounds for suspecting that a data controller has contravened or is contravening any of the data protection principles".

Lord Norton

That is my point. Reasonable grounds have to be established in order for the commissioner to go in. I want there to be no grounds at all. The commissioner can knock at the door and say, "We understand you are using Section 28", and this applies to loss adjusters and insurance companies; I have seen a great deal of it on a day-to-day basis. It would act as a discipline. The "reasonable grounds" are too strong a test in my view.

Lord Falconer of Thoroton

I have understated my case because the commissioner can also make a request where she has received a request from a member of the public under Clause 40 in respect of any processing of personal data. Surely a balance has to be struck. Why is it that in all areas of endeavour, the one area where the state can simply march in and say "I want to see what you are doing" is here? What you have here is a perfectly responsible official who is given particular powers either upon complaints—that may be the wrong word—from a member of the public or where he or she has reasonable grounds for suspecting that some sort of infringement is going on. Then and only then can the enforcement officer, if I may call the commissioner that, compel the subject to answer questions. Surely a balance has to be struck somewhere.

Lord Norton

I agree that a balance has to be struck. We all know that the current registrar is a very reasonable and sensible operator and very popular in the commercial world for her balanced consideration in allowing clauses such as Clause 28(2) to operate. In my view, however, that would strengthen the case because she is not going to charge around interfering. Restrictions can be drafted to enable that. The data subject does not even necessarily know that he is under investigation. Records could be held by individuals who have absolutely no idea that they are on a file, and the commercial bodies have no rights to have those things. There has to be the discipline of telling people that they cannot maintain these files on these subjects on the excuse of Clause 28.

Lord Falconer of Thoroton

We can go round and round. In my and the Government's view this is plainly correct. There must be some safeguards even for the data controller. It seems to me that Clause 41 gives the commissioner appropriate powers, though we are discussing with her whether they can be improved one way or another. A balance has to be struck and with the greatest of respect to the noble Lord, Lord Norton, what he appears to be suggesting is that in certain circumstances there should be no safeguards and no controls on what the data protection commissioner can do in relation to making investigations of what data controllers are doing. That is going too far.

I shall move to the other amendments. I will deal with them in reverse order. The noble Baroness, Lady Nicholson of Winterbourne, proposes that, where an audit of good practice is going on, that should not have to depend on the consent of the data controller. Again, this seems to be a question of balance, and it is essentially a matter of judgment as to where the balance has to be struck. We believe that the consent safeguard is very important. Removing it, as with the amendment, would entirely change the nature of the provision—it would no longer be related solely to the development of good practice as now, but it would become a very powerful means of enforcement. The commissioner would be able to make spot checks on data controllers, uninvited, and with no good reason whatsoever for suspecting any infringement of the data protection laws.

The Government believe that this goes much too far. At present we believe the Bill achieves just about the right balance. It provides a means for the commissioner to seek the information she needs to enforce the law under Clauses 41 and 42 where she has received a complaint or otherwise suspects that there might be an infringement. Separately, under Clause 49(5), she is able to conduct an audit of good practice, but with the consent of the data controller.

It is a question of judgment as to where one pitches the balance. I understand the point, sincerely made, but it is my very strong view that we should be giving much too strong a power to intervene without good reason in controller activity if either the noble Baroness's amendment were made or even if the noble Earl's amendments were made. All the same points I made in relation to the other two amendments apply to his.

I therefore respectfully invite the noble Baroness and the noble Lord to withdraw their amendments.

5.30 p.m.

Lord Norton

I have heard the Solicitor-General's comments. I shall study them in Hansard, and in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28, as amended, agreed to.

[Amendment No. 93 not moved.]

Clause 29 agreed to.

Clause 30 [Regulatory activity]:

The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn) moved Amendment No. 94: Page 17, line 45, leave out ("in which") and insert ("to the extent to which").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 30, as amended, agreed to.

Clause 31 [Journalism, literature and art]:

Lord Williams of Mostyn moved Amendment No. 95: Page 18, line 29, leave out ("the provisions") and insert ("any provision").

The noble Lord said: I beg to move.

On Question, amendment agreed to.

The Earl of Northesk moved Amendment No. 95A: Page 18, line 30, after ("publication") insert ("or broadcast").

The noble Earl said: There is a series of amendments here which are very much probing in character. I admit that on the surface the inclusion of the word "broadcast" in Clause 31 adds nothing to its sense. In particular, the current drafting of subsection (6), For the purposes of this Act "publish", in relation to journalistic, literary or artistic material, means make available to the public or any section of the public", makes it clear that the exemption is as much intended to apply to TV and radio as it is to text-based forms of publication, and I have no difficulty with that. However, it did strike me that it is somewhat less clear as to whether the definition is intended to apply to the Internet, and that is the simple point on which I seek clarity from the Minister. I beg to move.

Lord Williams of Mostyn

There are a number of amendments grouped here, and perhaps it will be useful if I specify them. They are Nos. 95A, 97A, 103A, 103C, 106A, 106B, 106C and 100 to 103 inclusive.

I will deal shortly with the question of publishing. We believe that publishing is adequately defined. As the noble Earl indicated, and I am happy to say, publishing as defined by, make available to the public or any section of the public", includes any means of making available, including broadcasting, Internet and so forth. We believe that the value of using the general term "publishing" is that it is apt to accommodate in the future any further developments. I hope I am therefore able to give the assurance that the noble Earl looks for. The general use of "publication" in its wider sense, of which I spoke as being apt for our present purposes, is very well known in the law of defamation which periodically over the years has had to consider, for instance, whether a film was libel or slander—such as the well-known case known to every schoolboy of Yusopov and Metro-Goldwyn Meyer, which is now 50 years ago. I hope that that assurance is of assistance.

The Earl of Northesk

I am most grateful to the Minister, and am entirely happy with his reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Astor moved Amendment No. 95B: Page 18, line 32, leave out from ("having") to first ("of") in line 33 and insert ("balanced the individual's right to privacy against the principle").

The noble Viscount said: In moving this amendment I wish also to speak to Amendments Nos. 97B, 103B and 106. This is a large group which also includes other amendments from the noble Baronesses, Lady Nicholson and Lady Turner.

Lord Williams of Mostyn

Amendment No. 95B is in the next grouping.

Viscount Astor

I believe that I am moving Amendment No. 95B.

Lord Williams of Mostyn

Amendment No. 95B is in the next grouping. We have not finished the grouping which started with Amendment No. 95A.

Viscount Astor

I apologise to noble Lords. We have just finished Amendment No. 95A and I believe that we came to Amendment No. 95B. With respect I think I was right; but I stand to be corrected on the groupings.

However, my amendment is rather a scatter-gun approach to Clause 51. It should not necessarily be taken together. The attitude may be, "If one does not work, we will try another". Perhaps I may speak to the amendments in order.

On Amendment No. 95B, the provision attaches little importance to privacy, and emphasises the "special importance" of "freedom of expression". I was therefore concerned that as drafted it was somewhat lacking in balance. Perhaps the Minister will comment on that.

With regard to my Amendment No. 97B, as the clause stands, where the data controller reasonably believes that compliance with the processing safeguards mentioned is "incompatible" with the purposes of the press, arts or literature he can override those safeguards. It seems inappropriate that the safeguards should be automatically subordinated to the interests of the press or other media. I was concerned that the provision amounts to a carte blanche. Again perhaps the noble Lord will comment on it. These are both probing amendments.

My final amendment, Amendment No. 103B, ensures that data controllers have proper regard for the approved codes of conduct.

Amendment No. 106 is grouped with Amendment No. 95B. It concerns the broadcasting industry, the ITV companies, satellite, cable, and the BBC. As it stands the clause requires the data controller—in these instances they are the broadcasters—to take account of designated codes of practice for the purposes of subsection (1)(b): that is, exempting data processing for journalistic purposes when publication would be in the public interest.

It is important to ensure that codes which are designated for the purposes of this section are the existing industry regulatory codes under which broadcasters operate—for example the BBC guidelines, the BSC Code on Fairness and Privacy which applies both to commercial broadcasters and to the BBC, and the ITC Programme Code of Practice for commercial broadcasters, which has real regulatory force in terms not only of fines but also in the removal of the licence to broadcast.

Under the Bill as drafted, the commissioner could formulate her own code under powers in Clause 49(3), which covers the same areas that the broadcasters already observe under the ITC code and BBC guidelines. Therefore, there is a risk that there could be a multiplication of regulation, which is certainly not helpful in terms of practice.

I understand that the Government have given this some thought and are prepared to give an assurance that, in practice, the Secretary of State would not designate a commissioner code under Clause 31(3) unless it had been agreed with the industry. That goes some of the way. However, it is not as clear as saying that they would designate a code that was not one of the existing codes which regulate the industry, and that is really the purpose of my amendment. I beg to move.

The Deputy Chairman of Committees (Lord Brougham and Vaux)

It might be helpful to the Committee if the noble Baroness spoke now to her amendments which are grouped with this one. The ones which were grouped to Amendment No. 95A, which was withdrawn, will be dealt with as we come to them.

Baroness Nicholson of Winterbourne

I am most grateful. I understand that Amendment No. 100 can be referred to later.

I am happy to have an opportunity to speak on this important group of amendments. My amendment, Amendment No. 97, is one that I hope may be considered. I am concerned about the infringement of privacy of individuals. I do not concern myself about public individuals; I am concerned about private individuals. I have been aided in that concept by the reference of the Public Bill Office to the, "privacy of individuals who are neither elected nor appointed to public office". That is the key.

Given that the print media are not subject to the same codes as television and radio, which have a duty of accuracy, impartiality and of ensuring that the viewer and listener understand the difference between fact and opinion, the question of public information in print media has no restraints of any sort in law. This amendment, therefore, tasks the data controller, which in this case would be the editor of the newspaper or the journal, to take into account when considering public interests, the need to avoid unnecessary infringement of the privacy of [private] individuals". It is a simple amendment and clear in its meaning.

In terms of Amendment No. 105, this would ensure that the Press Complaints Commission code of practice would be on the face of the Bill, or would at least be placed in front of Parliament. The reason for that is the same as the purpose of the previous amendment—namely, to bring in line the print media with radio and television, whereby we have a legislative framework which ensures the excellence of our radio and television output. I believe it is the best in the world and its practices are enshrined in the contract with Parliament from which are derived the guidelines which the producers have to follow at the BBC, IBA and in local radio. All the television and radio networks have to follow a like code of practice which has been agreed by Parliament.

I find it difficult to see why the print media could not have the same kind of code of practice. There is the Press Complaints Commission, which has as governors some eminent Members of this Chamber but is largely composed of peer-group leading journalists. They are judging their own work in many instances because the number of owners is so small and the number of editors is relatively small. I put forward in Amendment No. 105 the proposal, which is fully aligned with television and radio legislation. that the PCC code of practice should also be laid in front of the House.

Baroness Turner of Camden

My Amendment No. 104 is in this grouping. I have listened to what the noble Baroness, Lady Nicholson, said on Amendment No. 97. I do not agree. I do not believe that because one has accepted perhaps quite minor public office, it renders one immediately "open season" as regards the press. The effect of the amendment might well be precisely that. I am simply not in favour of it.

I turn to Amendment No. 104. At Second Reading we had a discussion on Clause 31. I expressed my concern about the exemption in regard to journalists in relation to public interest. We have seen in the recent past that the media tend to define public interest very widely indeed. It often seems sufficient that there should be some curiosity about particular individuals who may not even be known to a wide public until a story is unearthed and duly written up.

Article 17 of the UN International Covenant on Civil and Political Rights states this. It is so important that I make no apology for repeating it. No one shall he subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence nor to unlawful attacks on his honour and reputation". I know, of course, that we have to balance against that Article 10 of the European Convention on Human Rights, which upholds the right to freedom of expression, subject to certain considerations which are spelled out in various places.

It seems to me that Clause 31 provides a let-out where public interest is involved. Individuals are entitled to a form of redress where their rights are violated, and it is redress that concerns me. We have the PCC, and reference has already been made to codes of practice. It seems to me that they are often breached. It is difficult to see how there can be an adequate form of redress if individuals are damaged—and they often are—if there is no means of compensating them except through the libel courts. As we know very well, those are often not available to people of moderate means.

I am not here concerned about the well off. They can look after themselves and are quite capable of taking action in the courts, and very often do so. I am concerned about people who do not have access to those resources, and who, perhaps only by accident, stray into the media searchlight from time to time. I am anxious to write into the Bill a means of redress that carries with it some form of compensation.

I raised the point at Second Reading. I believe that there is a certain amount of support for the amendment publicly because there has been a good deal of concern recently about damaged individuals. I beg to move.

5.45 p.m.

Lord Williams of Mostyn

I am responding to Amendments Nos. 95B, 97B, 103B, 97, 106, 105 and 104. A number of different amendments focus on Clause 31. I hope not to be repetitious.

Viscount Astor

I apologise for interrupting the Minister. I hope that he is addressing Amendment No. 97B; I think that he said Amendment No. 97.

Lord Williams of Mostyn

Yes, I am responding to Amendment No. 97B. Perhaps it is useful to set out the Government's stance in principle on the media generally. I do not limit it to print media but include broadcast media.

The directive speaks in quite wide terms about various activities. They are journalistic, literary and artistic. It is therefore an unwise, over-narrow focus to confine ourselves simply to newspapers or, more widely, even to the broadcast media.

Our stance is quite plain. Whatever the occasional inconveniences, and whatever sometimes the blemishes, we believe adamantly in the necessity for as free a press in the widest sense as can possibly be achieved.

There are occasions when those in public life, or those whose life is of genuine public interest, may suffer slings and arrows. We believe that in a civilized free community the press ought to have as abundant a range of freedoms—and I include journalistic, artistic and literary activity—as is possibly achievable. That relates to every remark I make about any amendment or any debate on clause stand part which relates to Clause 31. That is our general stance. Throughout the summer and autumn months we have been in close co-operative consultation with various representatives, not simply of the press, certainly the noble Lord, Lord Wakeham, from the PCC, but also representatives of the BBC, Channel 4, the independent television companies and, not to be forgotten at all because they are of great importance in our national life, regional newspapers.

The Act of 1984 offers no exemption to the media. Our new Bill offers the opportunity to provide one. I deal with them in the order, if I may, in which the amendments were spoken to, and my note indicates that the first was No. 95B, followed by No. 97B, followed by No. 103B, which were the first three the noble Viscount moved.

We see Amendments Nos. 95B, 97B and 103B going in different directions to each other, and we believe they upset what we have tried to achieve, namely a careful reconciliation in Clause 31 with the privacy protections elsewhere in the Bill. We see as the key starting point that the Bill as a whole establishes a regime to protect the privacy of personal information, quite independently of Clause 31. Clause 31 exists to achieve a reconciliation between the general regime and the special freedom of expression needs which apply where media processing is at stake. We wish to temper the general regime to the extent necessary, no more and no less.

Amendments Nos. 95B and 103B would in effect weaken the media exemptions in ways which we believe to be inappropriate. Amendment No. 95B would introduce an unnecessary reference to privacy into the heart of a clause, which is intended, as I said earlier, to counterbalance the ample and detailed privacy protections elsewhere in the Bill. The basic regime is there without Clause 31. Amendment No. 103B would replace a provision which allows compliance with media codes to be introduced into the equation where it is relevant, with the requirement every time to run a standard test of compliance or otherwise; in other words the simple difference between "may" and "shall". We believe that would place excessive weight on codes which are intended to be a factor in the general balancing equation.

Amendment No. 97B goes in the opposite direction. If it removes Clause 31(1)(c), it would leave only two tests which would have to be met for a media data processor to qualify for the exemption. It would omit, therefore, the perfectly reasonable test of apparent incompatibility with the special purposes of compliance with a data protection mechanism. If the media controller can perfectly well do his job in conformity with the data protection regime, we intend that he should do so. He only needs to be protected in departing from the normal data protection law requirements where he reasonably believes he has no real option, and that is why Clause 31(1)(c) is there. That is what it is intended to provide.

We want to establish proper gateways for freedom of expression, and we believe that Clause 31 would become rather too wide for comfort in one sense and too narrow in another sense, and we suggest that Amendment No. 97B ought not to be accepted. Of course, this is quite a difficult and delicate balance. We are always open to suggestions, but we believe that these suggestions are not appropriate.

I revert to a general point which the noble Baroness, Lady Turner of Camden, made, which is that people vary in resource and indeed in resourcefulness. Without specifying any particular recent cases, it is notorious that some public figures—let us only think of the past five to 10 years—have used their financial ability to silence, to stifle at birth almost, legitimate media inquiries into their malpractice. The examples are too notorious for me to mention. Here, we are deliberately avoiding the opportunity for those whose activities are being legitimately scrutinised from stifling any proper journalistic investigative activity. Not every investigative story is perfect. Not all journalists are perfect, in my experience. But I believe that there is a strong principle for which we contend, namely that a free press—warts and all—is necessary to us.

I turn now to Amendment No. 97 in the name of the noble Baroness, Lady Nicholson of Winterbourne. This relates to the question of individuals who are neither elected nor appointed to public office. Already, in the serried throngs against us on Clause 31, there is a divergence of view. The noble Baroness, Lady Turner of Camden, robustly, as always, made plain her disagreement with the approach adopted by the noble Baroness, Lady Nicholson of Winterbourne.

I am paraphrasing fairly brutally, but we believe that defining the right to privacy with reference to election or appointment to public office simply does not work. If someone puts themselves forward for election to public office, does that make them a public figure for the purposes of the considerations of the noble Baroness, Lady Nicholson? Answer came there yes, sotto voce, but I picked it up—and that is not covered by her amendment, of course. The noble Baroness's amendment refers to individuals neither elected—and there must be many in the Liberal Party who are not elected, although they have stood for election—nor appointed to public office.

The definitions are extremely difficult. One asks the question whether, for instance, a particular police officer, who undoubtedly, in our view, is a public servant worthy of scrutiny, has been appointed to public office? Has a doctor, for instance, or a school teacher? I would suggest that the difficulties here are very great and they cannot be dealt with by what I suggest at the moment is a blunderbuss, because it does not even cover what the noble Baroness wishes to cover. However, I quite accept that she is raising the principle for the discussion to be developed.

We do not believe this amendment is right. We believe that considerations about the need to avoid unnecessary infringement of privacy should apply, whatever the public status of the subject.

I entirely accept the proposition from the noble Baroness, Lady Turner of Camden, that simply because the public is interested does not necessarily qualify a story, an article or a comment piece as being in the public interest. There are difficult lines to be drawn. and this is why we have given particular thought to the protections we believe the individual is entitled to—the general scheme of the Bill—and the protections that journalistic, artistic and literary activity must have (Clause 31).

Clause 31 requires a balanced judgment to be made between the importance of freedom of expression and whether the public interest is served by publication of personal data. The jurisprudence in Strasbourg is very well known indeed in putting a very high weight on freedom of expression, and this Government endorse that view.

Subsection (3) of the clause provides that, when considering whether the data controller's belief that the public interest was served was a reasonable one, regard may be had to the data controller's compliance with any relevant code of practice designated by the Secretary of State. Such a code of practice would itself need to provide guidance on the factors to be taken into account when determining how the public interest is served by publication. The most recent edition of the PCC code, which was published as recently as 26th November last year, deals with questions of public interest. In the code of practice—which no-one pretends is perfect but which is certainly a decided improvement on its predecessors—there are questions relating to the public interest. I give one or two examples only: detecting or exposing crime, or serious misdemeanour; protecting public health and safety. Those are the general propositions which are set down in the code. Again, I understand, those are more easily set down in general terms than defined in particular cases. However, that is their virtue, not their disadvantage.

Therefore, we would not be minded to accept Amendment No. 97.

Next in chronological order is Amendment No. 106, which relates to the designation of codes of practice. I say respectfully that the noble Viscount is quite right in pointing out that Clause 49 allows the data protection commissioner to produce her own code of practice on any aspect of the data protection regime. Such codes do not replace the law, but they will undoubtedly help in its practical interpretation. The commissioner would, I confirm, be free to produce a media data protection code, among others. The Government would not intend to designate it for Clause 31(3) purposes unless it was one that the industry themselves had collectively agreed; in other words, that they were joint owners of it. That would preserve our basic purpose of giving media defendants themselves the opportunity to run an additional freedom of expression argument where Clause 31(1)(b) was at stake.

We have designed Clause 31(3) to provide designation of any codes which have been prepared. In that we include such bodies as the Independent Television Commission, the Broadcasting Standards Commission, which are, of course, statutory bodies, and the Press Complaints Commission, a non-statutory regulatory body.

In respect of the PCC, the noble Lord, Lord Wakeham, made it plain in the late summer and autumn months that he thought that the existing code was not sufficient, and he certainly laboured manfully to produce an improved version. However, he has never said that the present version is entirely an immaculate conception, and he is perfectly open to reasoned propositions about how it might be improved.

6 p.m.

Viscount Astor

I am sorry to interrupt the Minister but, just before he leaves that subject, I wonder whether I could ask him one brief question. I quite understand what he said about codes of conduct, but in relation to statutory codes as opposed to non-statutory codes he said that there would not be a code with which the industry did not agree. Would it not be better to put something in this clause stating that the commissioner could not produce her own new code or any other code that was in any way in conflict with another statutory code?

Lord Williams of Mostyn

I do not think so. We do not want to hobble the commissioner in respect of her discretion. Clause 49 provides for her to produce a code should she wish. However, I respectfully doubt that she would wish to do so, if, for instance, a press code had already been, or was in the process of being, designated by the Secretary of State, because there would be no purpose in that. It is the Secretary of State's designation that is important in the context of Clause 31. It seems to me that it would be an idle exercise for the data protection commissioner to produce another code which plainly would not be designated if it differed substantially from that already designated. I am most grateful for the further intervention of the noble Viscount, Lord Astor.

I turn to Amendment No. 105. These are matters of great importance, which is why I am spending a little time on each distinct aspect. This is the amendment of the noble Baroness, Lady Nicholson of Winterbourne, relating to the order made by the Secretary of State designating the code of practice being obliged to contain the full text. I have set out the general regime of exemption in Clause 31 and therefore do not repeat my observations.

The amendment requires that the order designating would have to publish the full text. We do not believe it is necessary because a code of practice may be quite a detailed and lengthy document. Any code of practice designated as suitable will be a public document, open to scrutiny by interested parties. I do not see any benefit in requiring the designating order to contain on its face the full terms of the code.

Baroness Nicholson of Winterbourne

Will the noble Lord not agree that there is a difference between the other two branches of the media, radio and television, which have a contract with Parliament, and the code of practice to which the Minister refers now, which concerns the print media? The latter is merely a code of practice between the print media and the Secretary of State himself. There is no contract between the print media and Parliament at all. That is quite different from radio and television.

Lord Williams of Mostyn

I do not believe that to be a correct construction of the legal position. As has been indicated, the broadcast media are subject to statutory controls and they are subject to that for perfectly good historic and, indeed, technical reasons. One is not looking at contract or not contract; one is looking at designation or not designation. Even were the position contractual, it would not assist to have all the details of a code on the face of a designation order. It is a public document, it is freely available to everyone who wants to look at it and there is no virtue in it. I do not see these matters as contractual; they are matters of designation, yes or no.

Baroness Nicholson of Winterbourne

While I fully accept the point the Minister makes, that this a public document—it is fairly recent but readily available in any library—nonetheless it is not accountable to Parliament in the way that the broadcast media are to Acts of Parliament. Unless I am wrong, there is no similar legislation which refers to the print media, and it is the print media that I wish the Minister to look at in terms of my amendment. I accept that my amendment may be a "bad value" one, but I wonder whether I could ask him very seriously indeed to consider the point I am making about the difference between the broadcast media, which come under Parliament, and the print, which do not.

Lord Williams of Mostyn

There is a difference between the print and the broadcast media, but that is a structural difference, because the broadcast media have a statutory basis for their existence, with the sanction as originally specified ultimately of removal of licence, and newspapers do not. They are all susceptible to be designated by order.

The basis of designation will be the Secretary of State saying, rather more elegantly than I, "This is the order which I propose to designate", but that will require parliamentary approval, and there is no suggestion that anything can be shuffled through under the carpet because these are public documents. The PCC code of November last year is not the only code there has ever been. There are other codes as well. There are the NUJ codes, for instance, which might or might not become relevant if application were made.

I take the point made by the noble Baroness, Lady Nicholson of Winterbourne, that there is a difference between the way the broadcast media are established and continue to be regulated (largely historical and technical) and the way that the press operates on a self-regulatory basis. The Government's policy is quite plain: we prefer self-regulation in this delicate area of press freedom, and the better the press regulates itself, as the Lord Chancellor has said on many occasions recently, the happier the Government would be.

Ultimately the sanction is here. The Secretary of State can designate or not designate. If the Secretary of State does not designate, the press would not, of course, have the protections that have been deliberately written, after a good deal of thought and consultation, into Clause 31.

Baroness Turner of Camden

Before the Minister sits down, I wonder whether he would accept that, as far as my amendment is concerned, it does not seek in any way to interfere with the freedom of the press. I am in the amendment simply seeking redress for individuals who in the course of the exercise of that freedom can claim that they have been damaged. This is a somewhat different issue from attempting to hamper the freedom of the press in any way.

Lord Williams of Mostyn

It is. This is why I have been careful—I was not going to sit down, I merely paused for breath! —in dealing with the amendments sequentially, and that of the noble Baroness, Lady Turner, is the last on the list. I shall say a word or two about that, if I may.

I understand that this is quite a different point—and I summarise again—because it is the requirement for a code to provide redress, including compensation for an individual claiming and establishing personal damage. I shall review briefly once more: in the present PCC code there is no provision for compensation. It should be made quite plain that there has never been a suggestion that the PCC should fine newspapers. We would be adamantly against that. The discussion, as the amendment of the noble Baroness, Lady Turner, quite rightly points out, is compensation.

Should the Press Complaints Commission wish to include a compensatory scheme on a voluntary basis, that would be a matter for that body. Clause 11 provides an entitlement to compensation for any individual who suffers as a result of any contravention by a data controller of any of the Bill's requirements. The statutory regime provided in Clause 11 is what should be done. I repeat: should the PCC wish to go further, it would be a matter for the PCC and in appropriate circumstances it might well be welcomed by the Government.

Within this group also, I am reminded, lies Government Amendment No. 96, which it might be convenient for me to deal with. This is to delete the words "as seen" and to insert further words. Clause 31, as I have now stated a number of times, provides the exemptions which we have deliberately considered. This amendment, suggested by the broadcast media, emphasises that the protection of freedom of expression is itself a matter of public interest. We believe that fundamentally to be so. It does not alter the intended effect of the Bill, but we have thought it appropriate to propose this amendment in response to particular concerns by the broadcast media.

That concludes my remarks upon the amendments presently being discussed.

Viscount Astor

I thank the Minister for dealing with a large and rather complex group of amendments. It was, however, an agreed grouping, with which we knew the Minister could cope.

Briefly, I should like to thank him for what he said on codes and broadcasters, which has explained the issues and deals ably with the concerns that some broadcasters have put to me on the subject. Again, on my two amendments, Nos. 97B and 103B, I accept what he has said: they had rather a scatter-gun approach and probably did not all link together.

There is one particular thing with which I shall come away from this brief debate. That is when the Minister said that Clause 11 could apply to an individual who suffers damage. Reading Clause 11, I see that it could apply to data controllers, which therefore includes broadcasters and journalists. We shall need to look at the issue quite closely. I must admit that I had not focused on how Clause 11 would apply to data controllers who might work in some part of the media.

With regard to the amendment that I moved, Amendment No. 95B, I accept what the noble Lord said. However, elsewhere in the Bill there is much mention of privacy and the rights of the individual. The problem is that journalists and the media have only read Clause 31; that is what they believe the Bill is all about. They have never got round to reading the rest of the Bill. They regard the rest of the Bill as verbiage for data controllers, insurance companies and such things. They look at Clause 31 and say, "Ah, this is what the media have to do!". I do not believe they have noticed Clause I I and I do not believe they have noticed anything else. That is why I wanted to put something in Clause 31, because so many editors and journalists to whom I have talked think that that is the only part that affects them. I shall have to consider carefully what the Minister said and I may. perhaps, return to the matter.

We seem to be having a debate merely on the merits of a privacy law, and I personally have always been somewhat in favour of one. However, the Government of whom I was a Member did not come forward with any proposals, and did not even accept the Calcutt recommendations: and the Government of whom the noble Lord is a Member do not seem to be very keen on it either.

I am delighted with what the noble Lord said about the freedom of the press. If I take his words literally, I find it impossible to understand why he and his Front Bench team did not support my amendment on predatory pricing during the recent proceedings on the Competition Bill. However, that is as may be. I am grateful for the Minister's comprehensive reply. There are serious issues that have been discussed today and no doubt we shall have to discuss them further on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 96: Page 18, line 33, after first ("or) insert ("the public interest in");

On Question, amendment agreed to.

[Amendments Nos. 97 to 97B not moved.]

Lord Williams of Mostyn moved Amendments Nos. 98 and 99: Page 18, line 36, leave out ("the provision in question") and insert ("that provision"). Page 18, leave out line 38 and insert ("Subsection (1) relates to the provisions of").

On Question, amendments agreed to.

6.15 p.m.

Baroness Nicholson of Winterbourne moved Amendment No. 100: Page 18, line 40, at end insert ("and, in relation to data processed for the purposes of journalism, the fourth data protection principle").

The noble Baroness said: I am grateful for the opportunity to speak to this amendment, although I missed my place in the original grouping. This is a simple amendment which seeks to bring accuracy back into journalism in terms of the Bill. Perhaps I may point to the Press Complaints Commission code of practice because it is inherent in that code; indeed, it is its first principle, if I may so describe it. That is natural, it is the first principle in the BBC Charter. The agreement specifies "accuracy and impartiality". That is the BBC.

I have here the PCC code which says much the same thing. In Item 1, which is "accuracy"—the very first one—it talks about the need to apologise for publishing if data are inaccurate. I accept that that will be a great surprise to many people, but it is in the PCC code of practice, albeit many times more in the breach than in the observance.

I therefore ask why, for the purposes of journalism, people's data protection principle should be ignored. It seems to be in conflict with the PCC code of conduct on which the present Government are placing so much reliance in terms of self-regulation. Would it not be practical and apposite, therefore, to respect that duty of accuracy that journalism has given itself through the PCC code of practice and bring it hack with regard only to the purpose of the Bill, which is to protect personal data? It is a narrow and small amendment which seems to be in line with the Minister's own arguments. I beg to move.

Lord Williams of Mostyn

I believe that the noble Baroness was speaking to Amendments Nos. 100. 101, 102 and 103, and I shall respond, if I may.

The reason that we retained the media's exemption from the fourth data protection principle is quite plain. The media codes make it clear that material which is to be published must be accurate. The noble Baroness rightly pointed to the injunctions in the PCC code about accuracy. I am told by the noble Lord, Lord Wakeham, that a significant majority of complaints to the PCC is to do with accuracy. The virtue that the noble Lord sees in his procedure is that inaccuracies can be put right. It is true, contrary to ignoble popular belief, that many people want accurate accounts about themselves rather than attempting to win the bingo, or the lottery, by going to the libel courts. One understands that.

The reason for the exemption here is that the media codes are speaking of material when published, and of course following publication. But data protection principles apply well before the publication of the story or a programme for the broadcast media. When journalists are pursuing a story—which, I repeat. I believe is a notable public duty even if uncomfortable for those set in authority above us—and making their investigations, they simply cannot know in many instances whether or not the personal data are accurate. Application of the fourth principle (and this is very important) would prevent them collecting the data in the first place. It would prevent any journalist doing his or her job. It would prevent the collection of information with a view to publication because processing includes collection. It would stop them holding the data. It would stop them continuing the investigation of the story in order to find out, ironically, whether the original material collected was in fact accurate. Therefore, to go along the route which is so enticingly and attractively set out by the noble Baroness would have this consequence. It would make investigative journalism infinitely more difficult; and we set our face against that.

Baroness Nicholson of Winterbourne

The Minister therefore puts forward a Morton's Fork approach. The duty of accuracy in the fourth data protection principle with regard to citizens and journalism cannot be applied. The PCC code of practice is a private matter in terms of the matter not being before Parliament. Therefore the citizen does not have the opportunity to have his legislators discuss it. It is a Morton's Fork principle. It impales the citizen in terms of accurate data protection. I remind the Minister that all too frequently press cuttings are merely recycled, and inaccuracies are extrapolated and continued almost ad infinitum. It is galling, as he has so properly said, for people to be inaccurately described, particularly on the most sensitive personal matters. We have already defined what sensitive data are—ethnic origin, and so on. These things matter deeply to people. There must be a way whereby the Minister can offer me some reassurance that accuracy on personal data can be taken into account with print journalism. I believe that it is already well established as a principle in the broadcast media. Indeed, they have few complaints on accuracy because of their high value legislation before the House.

Lord Williams of Mostyn

I have to respond to that. I have said that there is a distinction between pre-publication activity and what happens when the inaccuracy is published to the world. If the amendment of the noble Baroness were accepted, investigative journalism would become if not impossibly impeded, seriously and significantly impeded. There is the mechanism at the moment in the scheme of the noble Lord, Lord Wakeham, whereby inaccuracies can be put right. Most people, I repeat respectfully, wish the inaccuracy to be put right, corrected appropriately, and not necessarily to have compensation.

I take the noble Baroness's point: the BBC has a code which requires inaccuracies to be put right, and she says that works. The press has a code which requires inaccuracies to be put right and, by and large, that works. It is wrong to suggest that the PCC code will not be capable of being discussed, scrutinised or debated in Parliament. One is simply coming back to the structural difference between the broadcast media and the print media, but that structural difference has no effect in practice in relation to inaccuracy and the need for investigative journalism. I am bound to say that there was no difference of approach between the broadcast media and the print media when they stressed, separately and together, to us in the Home Office their very real concerns which I believed to be properly justified concerns that investigative journalism would be hobbled if not wholly stifled.

Baroness Nicholson of Winterbourne

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 101 to 106C not moved.]

Clause 31, as amended, agreed to.

Clause 32 [Research, history and statistics]:

Lord Teviot moved Amendment No. 107: Page 20, line 7, after ("behalf) insert— ("() to a person not the data subject where paragraph 3(a) of Schedule 3 applies,").

The noble Lord said: I am speaking from personal experience. I am concerned that the definition of research purposes in Clause 31(1) would not allow a searcher who is not the data subject to have access to records to support measures or decisions with respect to particular individuals. While most genealogical research relates to individuals who are no longer living and is thus outside the scope of this Bill, there are occasions when a third party is acting in the interests of a data subject but is unable to gain the prior consent of that subject—for example, a solicitor or his agent trying to trace the beneficiary of a will. To quote another example, the Salvation Army might be trying to contact missing persons. This amendment attempts to ensure that such research may continue. I hope I am worrying unnecessarily and that the Minister will immediately put me at ease. I beg to move.

Lord Falconer of Thoroton

I hope I will put the noble Lord at ease, but not in the way he expects. I think! I have listened carefully to what he said and I have some sympathy for the case he makes. I am not in a position to reach a firm view this afternoon because we have to check whether the points he makes can be dealt with in a way which is consistent with the data protection directive to which we are trying to give effect. We do not necessarily see all of the examples he gave in his effective speech moving the amendment, but there may be cases where one would want to do something along the lines he suggested. I give him absolutely no assurances whatsoever, but there seems to be some validity in the points he makes. I hope we can return to this at a later stage. In the light of that assurance, I would ask the noble Lord to withdraw his amendment.

Lord Teviot

I am slightly reassured, and I hope I shall be reassured even further at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 agreed to.

Clause 33 agreed to.

Clause 34 [Disclosures required by law or made in connection with legal proceedings etc.]:

6.30 p.m.

Lord Falconer of Thoroton moved Amendment No. 108: Page 20, line 19, leave out from beginning to ("is") in line 20 and insert ("Personal data are exempt from the non-disclosure provisions where the disclosure").

The noble and learned Lord said: This is a technical amendment. It improves the expression of the exemption provided in Clause 34 for disclosures of data which are required by law. As it stands at present the exemption states that, The data protection principles shall not be regarded as restricting or preventing any disclosure", that the law otherwise requires. We do not intend that reference to be understood as permitting exemption from the seventh data protection principle which requires technical and organisational security measures. The amendment that we propose removes that doubt and in the interests of consistency brings this exemption into line with other provisions of the Bill by reference to the idea of the non-disclosure provisions as defined in Clause 26(3). In those circumstances, I beg to move this amendment.

On Question, amendment agreed to.

Clause 34, as amended, agreed to.

Clauses 35 and 36 agreed to.

Schedule 7 [Miscellaneous exemptions]:

Viscount Astor moved Amendment No. 109: Page 49, line 19, after ("by") insert ("or to").

The noble Viscount said: I beg to move Amendment No. 109 and speak to a whole raft of other amendments that, although not necessarily on the same subject, all relate to Schedule 7. The first one, No. 109, is a simple amendment which I hope that the Government will look at because it locates the point in the right place and avoids the rather tortuous reliances that are placed on Clauses 7(5) and (6), as the references it deals with would normally be held by the recipient and not the provider of the reference. Therefore this is a simple amendment that makes this clear.

Amendment No. 110A is again a simple one that I hope will improve the transparency of decision-making. Amendment No. 110B—for the life of me I cannot remember why I put it down so I will just say "better drafting"! Amendment No. 110C was designed to improve the definition of such data to prevent avoidance of the subject information provisions. Those are the simple ones.

Slightly more complicated is Amendment No. 112. This is about the definition of intentions. The personal data held in relation to negotiations are likely to be wider in scope than simply the intentions of the data controller and may include opinions and other data. The real example of this is a company which is, for example, negotiating with an employee. It must be right that that employee should not during those negotiations be able to demand the right to see perhaps informal opinions on his or her merits which then could affect the outcome of the negotiations if it is in regard to employment, a pay rise or something like that. It seems to me that should be narrowed somewhat.

In the same way with my Amendment No. 113, there may be situations where negotiations concerning the data subject are conducted with third parties, and this amendment covers those situations. I am thinking, for example, of conversations with head hunters or with other companies because there is a merger, or indeed a disinvestment, in the offing.

The final amendment that I am speaking to is No. 119. This is of a slightly different nature, but I believe is an important issue. Industry is concerned that the definition of processing will catch any automated processing of personal data whether or not by reference to the data subject. Making an obligation to inform and to provide subject access could be unnecessarily onerous.

I am thinking about a specific example where there is processing of orders or invoices in bulk between corporate bodies which contain contact names. Although it is not really relevant to the invoice, it would be printed on the piece of paper and that would automatically bring it in. I have tried to produce an amendment that could ease the burden on the data controllers without arousing the concern of the data subjects involved. Of course, if you are a company dealing with another company, you might write or print on the invoice who you are dealing with but you do not necessarily tell them. They might be rather alarmed if suddenly they have to be notified of the facts.

This is trying to reduce a burden without in any way affecting anybody's rights or anything like that. It is purely looking at the mechanical process of the way industry operates. I beg to move.

Viscount Chelmsford

I should like briefly to talk to the last amendment discussed by my noble friend Lord Astor. I am part of the parliamentary organisation which is concerned about whether it will in the future be able to publish telephone directories globally containing contact names. Presumably employees joined our organisation in order to have such information published. Indeed, I cannot see that an employee who has joined the company which my noble friend Lord Astor was talking about could possibly object to having his name put on the invoice as a contact name. Indeed, it should help rather than hinder him.

What worries me about the amendment is that it says, for a purpose or purposes which do not include processing by reference to the data subject", whereas the point I would like to make is that the member of my association holds data, and therefore it includes processing as defined here. The amendment would have been far stronger if it did not have the exclusion at the end of it.

Baroness Turner of Camden

I have two amendments, Nos. 117 and 118, which are included in this group which deal with a slightly different point. Schedule 7 deals with "Miscellaneous exemptions" and paragraph 9 would appear to give special exemption in respect of personal data if they, consist of information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality as between client and professional legal adviser, could he maintained in legal proceedings". My very simple amendments take out the word "legal" in both those lines. As your Lordships will know, on Second Reading I and several other Lords raised issues that had been mentioned to us by the Chartered Institute of Loss Adjusters, which is concerned about its own professional status in respect of the Bill. The amendments seek to give cover to professional advisers who are not necessarily lawyers. I know it is a bit difficult, but this amendment is one way of flagging up the concerns of professional people who may very well be involved in claims of one sort or another but cannot claim the kind of privilege which appears to be conferred by particular provision because they are not lawyers. I wonder whether the Minister would be good enough to respond to that quite small point.

The Earl of Northesk

I wish to make a brief contribution on Amendment No. 119 moved by my noble friend Lord Astor. It seems to me that this highlights some of the problems that I attempted to tease out on Monday in respect to my Amendment No. 12. One of the problems we have is that much of the Data Protection Bill is concerned with the outward face of processing rather than the mechanics of it.

Lord Falconer of Thoroton

Let me deal, I hope quite briefly, with all these somewhat disparate points. The first point raised by the first amendment of the noble Viscount, Lord Astor, is in effect to say that references given not only by the data controller but also to the data controller should be the subject of some sort of exemption. He suggests it should be done by including them in paragraph I of Schedule 7 to the Bill. We are broadly in agreement with the approach he takes, but feel that it is already adequately dealt with by Clause 7(4) of the Bill: Where a data controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless", and then various exceptions are given, including primarily, consent, or where, it is reasonable in all the circumstances to comply with the request without the consent of the other individual". In considering whether it is reasonable, regard under Clause 7(6) has to be had to any duty of confidentiality owed to the other individual. We believe that normally, unless there is a special situation, that would mean that references from another person to the data controller would not have to be disclosed, which would seem to be adequate protection under the circumstances.

The noble Viscount, Lord Astor, did not speak to Amendment No. 110A about judicial appointments, for some reason.

Viscount Astor

I thought I did. I think I said that this amendment was designed to improve the transparency of decision-making—

6.45 p.m.

Lord Falconer of Thoroton

I see. I missed that. It was so quick. Many congratulations for that! The amendment relates to judicial appointments. In the case of judicial appointments, the exemption is necessary to safeguard the integrity of the arrangements for appointing, and, where necessary, removing from office, judges and senior members of the legal profession. The integrity of the judiciary is an essential pillar of our democracy. It could too readily be undermined where individuals who might either be considered for appointment or be serving as judges or Queen's Counsel might be able to gain access to the confidential information about their suitability held by the Lord Chancellor's Department.

The same argument applies to the system of Crown honours: systems of this kind need to be capable of being operated on a basis of full confidence and discretion. That is the reason for it and, speaking as a Queen's Counsel myself, I can quite see the overwhelming, but inappropriate, curiosity one would have.

The next amendments of the noble Viscount are Nos. 110B and 110C. He wanted to restrict the exemption in relation to business planning. We understand the spirit in which they were offered, but, in effect, they rather ruin the exemptions that are there.

The first one is to insert the word "solely" before "processed". The point of the exemption is to allow businesses to plan certain of their future management activities such as staff allocation, where necessary, on a fully confidential and discretionary basis. In such planning exercises data processed for other purposes will necessarily and inevitably be used—typically, for example, personnel data. The amendment of the noble Viscount would effectively prevent this; it seems to be running wholly counter to the purpose of the exemption. This exemption can only be relied on, as the paragraph he has amended says, in any case, to the extent, in which the application of those provisions would be likely to prejudice the conduct of that business or other activity". That is to say, on a case-by-case basis only to the required extent and subject to a harm test. That seems to us to be the appropriate limitation of the use of this exemption. Restriction on the type of data is not appropriate.

The next point relates, in effect, to negotiations—Amendments Nos. 112 and 113. I have listened carefully to the explanation of the need for these amendments and have some sympathy. As I said before, in considering exemptions from the subject information provisions we need to have regard for the restrictions which the directive imposes. It permits exemptions to be made only in a limited range of circumstances and where they are "necessary". It must also be remembered that subject access is an important right for data subjects and we must not remove or dilute that right, except where there is a clear need to do so. Therefore subject to those caveats, and with no absolute commitment of any sort to make the changes that the noble Viscount seeks, I am willing to consider whether we can find a way of meeting his concerns.

I now come to the point raised by the noble Baroness, Lady Turner of Camden. The proposal she makes to take out the word "legal" for legal reasons gets us nowhere. If you take out the word "legal", all you are left with is an exemption for "professional privilege", and it only the lawyers who have managed to establish for themselves this particular privilege. So, as a matter of law, it would not get us anywhere.

Beyond the points that were referred to when we were talking about Clause 28, I am not quite sure what the noble Baroness's concerns are in relation to that and whether she feels that they have been adequately met by what we said in relation to that clause of the Bill. I am not sure that I can give much more help than we have given before, save the rather negative indication that the amendment, as proposed, does not achieve anything and is, therefore, not worth pursuing. I am sorry not to be more helpful in that respect.

The noble Earl, Lord Northesk, spoke to the final amendment. As I understand it, underlying this there is a genuine and considerable concern among the business community about the application of the Bill in particular to such things as contact names. It is suggested that, in this respect, the Bill will have a broader application than the Data Protection Act 1984, as that Act applies to processing by reference, "to the data subject".

If it is correct that the processing of contact names is not done by reference to the data subject, which it will not be on many occasions, then I agree that the Bill will have the wider effect about which both noble Lords have expressed concern. In that respect, the position is that we have no choice: the directive does not allow us to limit our new law to processing done by reference to the data subject, which is what would meet the concern about contact lists. Nor, I am afraid, does the directive allow us to follow the creative approach proposed by the noble Viscount and provide an exemption from the subject information provisions for contact names, which is what in effect this amendment proposes.

The exemptions provided for in the Bill must be permitted by the directive. Article 13 of the directive provides for exemptions from what the Bill calls the "subject information provisions" in a limited set of circumstances. I have looked carefully at the scope of Article 13, and I cannot find a provision which would justify our providing for this exemption—although, if anyone could indicate one to me, then we would think again. I am sure that the Committee will understand that the Government cannot agree to this Bill making provisions which would put us in breach of the directive. In the light of all the remarks I have made, I would ask noble Lords to withdraw their amendments.

Viscount Astor

I am extremely grateful to the Minister for what he said with regard to my amendments. I am grateful that he is prepared to look again to see whether there is a possibility of dealing with the points concerning negotiations under Amendments Nos. 112 and 113.

I move on to the last amendment that the Minister mentioned. Amendment No. 119, about which there is concern in the industry. I understand his point about the directive. The answer is that we must have discussions with industry in the light of the directive and see whether there is some way in which we can jointly come up with a solution that might deal with the problem. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 110: Page 49, line 24, leave out ("in which") and insert ("to the extent to which").

On Question, amendment agreed to.

[Amendments Nos. 110A to 110C not moved.]

Lord Williams of Mostyn moved Amendment No. 111: Page 49, line 36, leave out ("in which") and insert ("to the extent to which").

On Question, amendment agreed to.

[Amendments Nos. 112 and 113 not moved.]

Lord Williams of Mostyn moved Amendment No. 114: Page 49, line 42, leave out ("in which") and insert ("to the extent to which").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 115: Page 50, line 27, at end insert— (""the prescribed period" means forty clays or such other period as is for the time being prescribed under section 7 in relation to the personal data in question;").

The noble and learned Lord said: With the Committee's leave, I shall speak not only to Amendment No. 115 but also to Amendment No. 116. This is a highly technical amendment, the principal effect of which is to remove any doubt there may be about the meaning of the words "prescribed period" in paragraph 6 of Schedule 7. This paragraph provides for an extension of the time within which a data controller is obliged to comply with a subject access request where the data in question consists of examination marks. The purpose of this extension is to avoid the obvious mischief of people using their subject access rights to obtain exam results before those results have been published.

The computation of the time limits involved relies on the concept of the "prescribed period". This concept is first encountered in Clause 7 where it is defined as meaning 40 days, or such other period as may be prescribed by the Secretary of State in regulations. The intention is that the "prescribed period" in Schedule 7 should be a period of the same length as that in Clause 7—that is to say 40 days, or whatever is currently prescribed for the purposes of Clause 7 in the regulations. It is not intended that there should be any scope for a different period to be separately prescribed for the purposes of Schedule 7. That would amount to the taking of a separate power. That is not what is intended. These amendments remove any doubt about the matter. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 116: Page 50, line 28, leave out ("and "prescribed period" have") and insert ("has").

The noble and learned Lord said: I have just spoken to the amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 117 to 119 not moved.]

Schedule 7, as amended, agreed to.

Clause 37 [Powers to make further exemptions by order]:

Lord Williams of Mostyn moved Amendment No. 120: Page 20, line 37, after ("if') insert ("and to the extent that").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 37, as amended, agreed to.

Clause 38 [Enforcement notices]:

Viscount Astor moved Amendment No. 120A: Page 21, line 20, at end insert ("or, in Scotland, personal injury").

The noble Viscount said: This is a simple drafting amendment. I am more than nervous about saying to two such distinguished practitioners of the craft that this is better legal wording. However, the reason I put this amendment before the Committee is that I am advised by the Scottish Law Society that it is better wording. I beg to move.

Lord Williams of Mostyn

These are not dissimilar amendments to those which were moved by the noble Viscount, Lord Astor—Amendments Nos. 51 and 55—on Monday. I had to plead guilty to ignorance of the law of Scotland, but that was Monday and this is Wednesday.

Our officials have been in touch with their opposite numbers in Scotland and are informed that, as to Amendment No. 128, the word "damage" covers personal injury and therefore, that research having been done and that assurance having been given, I ask the noble Viscount, Lord Astor, to withdraw his amendment.

Viscount Astor

I am grateful to the Minister for his explanation and I am sure that the Scottish Law Society will read his words carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 121: Page 21, line 34, at beginning insert ("Where— (a)")

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 122: Page 21, line 35, leave out ("which").

The noble and learned Lord said: This was spoken to on the previous Committee day. I formally beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 123: Page 21, line 36, leave out ("(3)") and insert ("(3)(a)").

The noble and learned Lord said: This amendment was spoken to previously, but not moved.

Lord Williams of Mostyn

It was grouped but it was not spoken to. I can say that this is a purely technical amendment. The reference at present in the Bill is wrong. It should be to subsection (3)(a), not to subsection (3), and the amendment makes the necessary correction. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 124: Page 21, line 36, leave out ("may also") and insert ("or (b) the Commissioner is satisfied that personal data which have been rectified, blocked, erased or destroyed were inaccurate, an enforcement notice may").

The noble Lord said: This has already been spoken to. I beg to move.

On Question, amendment agreed to.

Clause 38, as amended, agreed to.

Clause 39 agreed to.

Clause 40 [Request for assessment]:

Viscount Astor moved Amendment No. 124A: Page 23, line 4, at beginning insert ("if not, of his reasons, and if so,").

The noble Viscount said: This is a simple amendment on request for assessment in Clause 40. The amendment simply seeks to encourage openness in decision making. The effect of the amendment will require the commissioner to explain to an applicant for an assessment the reasons for refusal where an assessment is refused. I beg to move.

Lord Williams of Mostyn

I understand the effect of the amendment but we do not believe that it is necessary. The effect of Clause 40(4)(b) requires the commissioner to tell a person who has made a request for an assessment of "any view formed or action taken as a result of the request". We believe that means that the commissioner must tell the person concerned of any view formed on the merits of the request in respect of which the commissioner has decided not to make an assessment.

I accept that the requirement applies only to the extent that the commissioner considers appropriate, but we believe that one needs flexibility here to allow the commissioner to manage her business efficiently. It will not always be appropriate to explain her views and actions, particularly when issues of confidentiality may be involved. If it is appropriate the duty is there.

I hope that that explanation finds approval with the noble Viscount.

Viscount Astor

I am grateful to the Minister for his explanation. I am not 100 per cent. convinced. I am a little concerned that there is an element of doubt. Because the commissioner has the flexibility, she cannot accede to the request. However, I shall read closely what the Minister said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 40 agreed to.

Clause 41 [Information notices]:

7 p.m.

Viscount Astor moved Amendment No. 125: Page 23, line 10, after ("data") insert ("and has first made an informal approach which has failed to resolve the issue,").

The noble Viscount said: The current system of informal approaches from the commissioner has worked well under the existing Act. My amendment seeks to strengthen that system, because from my reading of Clause 41 it looks as though the commissioner may have too speedy a recourse to the rather onerous information notices. We believe that the commissioner should be obliged to make an informal approach before issuing such a notice, and it is that obligation, as it were, that is the purpose of my amendment. That happens now and is the working practice. Informal approaches work well, and I am told that when that happens, in the vast majority of cases, there is no need to go any further. It seemed to me that it was important that the Committee should consider whether that should be included in the Bill, because for the commissioner's sake, and indeed for everyone else's sake, we do not want it automatically going to information notices. I beg to move.

The Earl of Northesk

The three amendments in my name in the grouping attempt to deal with the problem that my noble friend Lord Astor has spoken of, although maybe in a slightly different way. Their purpose is to require the commissioner to have received a request for assessment and to have reasonable grounds for suspicion of contravention of any of the data protection principles before an information notice may be served. The reason for the amendment is that there is concern from business that the commissioner may think it appropriate to publish, inter alia, a specimen letter of request for assessment, which may then form the sole basis for the issue of an information notice without the commissioner having made any determination on the request for assessment or having reasonable grounds for suspecting contravention of any of the data protection principles.

Lord Williams of Mostyn

I shall respond to all these amendments if I may. This power given to the commissioner to serve an information notice is a new power, so the effect of the first amendment in this grouping would be to require the commissioner, when seeking information on the basis of having received a request for assessment as to compliance with the provisions of the Act, to seek first to resolve the issue informally with the controller, as the noble Viscount, Lord Astor, indicated. Only where the informal approach failed would the commissioner then be able to serve the information notice.

We do not see the necessity for this amendment. The information notice itself is in the nature of a preliminary step. We have listened with care to the representations of the registrar, but to weigh this down with mandatory formalities would deprive it of much of its utility. It is for the commissioner to exercise her powers reasonably and for the purposes provided, and it is gratifying indeed to hear the complimentary remarks addressed to the registrar and her staff on various occasions, and certainly this afternoon, about the way in which she has approached her difficult duties.

The registrar's present procedure for dealing with complaints is that in the great majority of cases—I echo what was said a moment or two ago—complaints are resolved through negotiation. When formal action is subsequently taken by the registrar it is normally only as a last resort, and we expect that approach to continue. I have to say specifically that the commissioner would not be at liberty to use information notice powers oppressively or unnecessarily, because that would not be a reasonable exercise of her discretion. I hope that assurance meets the concern that was mentioned by the noble Earl. Lord Northesk. If there were an unreasonable exercise of discretion that would be open to challenge.

The remaining amendments address the same point generally, because they would link the requirement for the commissioner having received a request for an assessment to her also having reasonable suspicion of breach. We believe that would limit her powers substantially and unnecessarily. The two limbs are important; each is important in its own right. A request for an assessment under Clause 40 could extend beyond considering compliance with the principles, and indeed potential breaches of the principles may well he brought to the commissioner's attention other than by a request for an assessment. We believe that the independently based grounds of suspicion of the commissioner and the entitlement of individuals to engage her investigative powers in their own cause are important, separate, free-standing bases for investigation. We believe that that is what the directive suggests, as one sees in the detailed provisions of Article 28. I hope that my remarks have proved of assistance.

Viscount Astor

I am grateful for the assurance that the Minister has given today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 126 to 128 not moved.]

On Question, Whether Clause 41 shall stand part of the Bill?

Lord Norton

The Bill deserves a better inquiry clause than this. The clause is purporting to give the commissioner powers to serve an information notice to a data controller, requiring the data controller, within the time as may be specified, to provide such information as may be required in order to establish whether or not a data principle has been contravened.

The information notice can be issued on two grounds: if the commissioner has had a complaint from a data subject, or if the commissioner has reasonable grounds for suspecting that a data controller has contravened a data principle; and I emphasise "reasonable grounds".

So far, so good. However, there are two major weaknesses to this clause. The first is that the information notice can be appealed. Under Clause 46(1) the information notice can be appealed on any ground. Appeals to the tribunal at present take months. So here is an inquiry clause that can be frustrated on any ground by an unscrupulous data controller for months, despite the concerns of the noble Viscount, Lord Astor. A data controller with something to hide will probably want to frustrate the inquiry for months, perhaps, so that data can be lost or otherwise rearranged.

An unscrupulous data processor will certainly wish to appeal in order to establish a privilege—the second weakness of this clause. The privilege that the unscrupulous processor will get will be the fact that, when an information notice is issued under Clause 41(5), a warrant under paragraph 1 of Schedule 8 cannot be issued. Thus the searching, seizing or testing of any of the unscrupulous data processor's equipment is not allowed. The issuing of the information notice will effectively ring-fence the premises from any further inquiry.

As drafted, this clause is of very little value and I have been advised that it is very unlikely that it would be used by the commissioner. The notice can be easily appealed and, if there is any likelihood of the commissioner wishing to obtain a warrant to enter the premises of a rogue data controller, the issue of an information notice would be the last course of action because, by issuing the notice, the commissioner would in effect, as I have said, be ring-fencing the unscrupulous processor from the powers of entry of the commissioner. But in order to obtain a warrant, the commissioner must have reasonable grounds. So an information notice is of vital importance and must be defined and operate in the correct manner. That is a very important part of the enforcement regime.

There are plenty of precedents in legislation drafted by the DTI or the DoE that could provide the correct mechanism. One such clause is Clause 93 of the Control of Pollution Act 1974. That clause allows the obtaining of reasonable information and would also control the commissioner from overstepping the mark by virtue of powers conferred to the Secretary of State.

Lord Williams of Mostyn

I am grateful to the noble Lord, Lord Norton, for raising his concerns. Perhaps it is worth revisiting Clause 41 in a little detail for a moment or two.

Clause 41 introduces a power, which is not contained in the 1984 Act, for the commissioner to serve a notice requiring information from a data controller in two circumstances which have already been identified. The notices must specify the grounds on which they are made and the rights of appeal they attract, pending which they need not take effect.

There are two matters here which ought reasonably to attend to the noble Lord's concerns. First, by virtue of Clause 41(6), if there are special circumstances which require urgency, the commissioner can herself include a statement to that effect—a statement of reasons—and in that event subsection (4) does not apply: therefore, the long drawn-out appeal process would not be available. The notice takes effect within seven days.

I take the noble Lord's point that someone who wants to play the appeal system in this context, or indeed any other, is quite likely to be able to be properly advised and properly funded to do that. That is why in paragraph 7(2)(g) of Schedule 6 we have provided for the possibility for appeals to be heard by the tribunal chairman or deputy chairman sitting alone. One intended consequence of that will be to speed up things. We are very conscious that it would be an absurdity for us to have produced this Bill to meet our directive obligations and yet let people manipulate the system.

Those two aspects may be of assistance to the noble Lord. I hope they are. I have not met the Data Protection Registrar on this matter, but have said that we are perfectly willing to look at any appropriate ways of narrowing the grounds of appeal. I am happy to be able to give those assurances.

Clause 41 agreed to.

Clause 42 [Special information notices]:

[Amendment No. 128A to 129A not moved.]

Clause 42 agreed to.

Clause 43 [Determination by Commissioner as to the special purposes]:

[Amendment No. 129B not moved.]

Clause 43 agreed to.

Clauses 44 and 45 agreed to.

Clause 46 [Rights of appeal]:

Viscount Chelmsford moved Amendment No. 130: Page 26, line 41, at end insert— ("() In any dispute concerning the fairness of processing personal data, as required by Schedule 1(1), subject to the appeal procedures in Schedule 6, the decision of the Commissioner shall he final.").

The noble Viscount said: It seems to me that many more people will be affected by the new Bill than by the 1984 Act by virtue of the change in the exemption of manual processing. I was concerned as to whether there would be increased numbers of arguments over what is fair.

Clearly we cannot define fairness; it is a matter of judgment. It did not therefore seem appropriate to try to introduce this provision earlier. I am not sure that the suggested amendment is necessarily in the right place now, but it seemed better than including it under the definitions.

It would reduce time and effort if there were some sort of procedure for dealing with arguments about fairness. That is why I have simply suggested that, subject to the standard appeal procedures that exist in the Bill, the data protection commissioner's decision should be final.

I was interested when earlier, in another context, the noble and learned Lord, Lord Falconer, said that the term "fairness" can lead to a considerable amount of information being released. It may be that we have here another part of the processing which might be reduced if there were some sort of process along the lines that I have suggested. I beg to move.

7.15 p.m.

Lord Falconer of Thoroton

I fully understand the reasoning behind the amendment of the noble Viscount, Lord Chelmsford. However, I believe that it is unnecessary because it describes what will happen under the Bill in any case where the commissioner takes enforcement action against a data controller for breach of one of the principles in Schedule 1. That enforcement action will be final, with failure to comply being a criminal offence, unless the data controller appeals to the Data Protection Tribunal. The tribunal's decision to support, modify or quash the commissioner's action is also final, unless either party appeals to a higher court on a point of law, which is obviously different from the prime factor question of fairness.

The only other forum for considering infringements of the first data protection principle is a court hearing an action under the provisions of Clause 11, which is where someone has suffered damage as the result of an infringement. We cannot make the commissioner's decision final on that point because that would be to oust the jurisdiction of the court to consider actions for a remedy. The directive does not allow us to do so. In principle, however, what the noble Lord says reflects what we hope will be the position in any event, and we believe that we have achieved that end. With that reassurance, I hope that the noble Viscount will consider withdrawing his amendment.

Viscount Chelmsford

I am grateful to the noble and learned Lord, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 agreed to.

Schedule 6 [Appeal proceedings]

Lord Falconer of Thoroton moved Amendment No. 131: Page 48, line 40, at end insert— ("(ff) for enabling an appeal under section 46(1) against an information notice to be determined by the chairman or a deputy chairman,").

The noble and learned Lord said: This is a technical amendment. If one looks at Schedule 6, paragraph 7(2)(g), which was referred to in my noble friend, Lord Williams of Mostyn's response to Clause 41, one will see that there is power in the Secretary of State to make rules for enabling certain matters to be dealt with by the chairman or deputy chairman. The aim of the amendment is to make it clear that, when it says "to be dealt with", it means not just to make particular rulings but to be determined as a whole. We would like that to be included between (f) and (g) of paragraph 7(2). It is a purely technical amendment which will give effect to what we had already intended. In those circumstances, I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 132: Page 48, leave out line 42.

On Question, amendment agreed to.

Schedule 6, as amended, agreed to.

Clause 47 [Determination of Appeals]:

Viscount Astor moved Amendment No. 133: Page 27, line 25, leave out ("address") and insert ("residence").

The noble Viscount said: Clause 47 deals with the determination of appeals. Subsection (6) says: Any party to an appeal to the Tribunal under section 46 may appeal from the decision of the Tribunal on a point of law to the appropriate court: and that court shall be— (a) the High Court of Justice in England if the address of the person who was the appellant before the Tribunal is in England or Wales". It seems to me that "address" is not a good word here. You can certainly have two addresses: one in England and one in Wales; and, indeed, one in Scotland as well. It seems to me that the test of residence would be rather better to determine that fact. I would be interested to hear what the noble and learned Lord has to say as to whether "residence" is a clearer and better term to use. I beg to move.

Lord Falconer of Thoroton

There is no doubt about what your address is. You can see it on the printed page. We are talking about appellants. They choose what their address is. As the noble Viscount must be aware, the word "residence" can give rise to enormous arguments. The word "address" was used in the 1984 Act. It has proved perfectly workable. His suggestion simply leads to confusion and doubt. I respectfully suggest that we stick with "address".

Viscount Astor

I certainly would not wish to extend legal arguments in courts. With that explanation I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments No. 134 and 135 not moved.]

Clause 47 agreed to.

Clause 48 agreed to.

Schedule 8 agreed to.

Clause 49 [General duties of Commissioner]:

Viscount Astor moved Amendment No. 136: Page 27, line 34, leave out subsection (1) and insert—

("() It shall be the duty of the Commissioner—

  1. (a) so to perform his functions under this Act as to promote the observance of the requirements of this Act by data controllers, and
  2. (b) after consultation with the parties affected, to promote good practice by data controllers.").

The noble Viscount said: I was concerned about the drafting of Clause 49 on the general duties of the commissioner. There is no clear distinction between the commissioner's two-fold duty. My amendment attempts to make this distinction clear, and to give primacy to promoting the observance of the requirements of the Bill. At the moment as far as I read it, it is the wrong way round. It seems to me that you cannot promote good practice if it is not within the legislation.

My second amendment relates to the development and promotion of good practice beyond the specific requirements of the Bill. Prior consultation should be considered in the case of good practice which goes beyond the legislation. That is why I have put forward the amendment. I beg to move.

Lord Craig of Radley

I speak to Amendment No. 138, which is also in the names of my noble friends Lord Flowers and Lord Phillips.

The purpose of this probing amendment is to establish whether there is an intention to tighten the existing voluntary codes of practice for the way in which data, captured by CCTV or other surveillance systems, are handled, stored and disposed of. I am not sure whether this is the right place in the Bill to address this topic. However, Clause 49(3) lays on the commissioner the task, where he deems it appropriate, to prepare and disseminate codes of practice for guidance as to good practice. It seemed therefore an opportune point to raise the need or otherwise for more than voluntary codes.

Perhaps I may refer again to the Science and Technology Select Committee Inquiry into the Use of Digital images as Evidence, which I chaired. We gave particular consideration to the current voluntary code which the Local Government Information Unit (LGIU) issued for CCTV. It was called 'A Watching Brief. I have a copy with me here.

It was in general regarded as an excellent document, which had been widely discussed and well researched. It seems to command wide acceptance. But it is without teeth; it is voluntary. It is, I understand, Home Office policy to require that those bodies which are given grants or other help with public space surveillance systems should adopt the LGIU Code of Practice. In our inquiry we found that there was a tendency, by no means necessarily with evil intent, for surveillance operators and owners to pick and choose within the details of the code. In other words, the code, without teeth, was not invariably followed, and there was no way to enforce the requirements of this or any other similar code.

The LGIU in the introduction to its code foresees the possible need in future for a statutory form of control for CCTV. The Select Committee itself concluded, after a very careful discussion of the subject and in the light of the evidence we received, that to maintain public confidence in the use of CCTV and similar surveillance technology for the prevention of crime and public disorder greater control of its use was needed.

We recommended that the Government give urgent consideration to introducing tighter control over any system, either publicly or privately owned, covering sites to which the public had free access. To meet the requirement for continued public support, we would expect this to cover the need for some form of licensing; for statutory or other enforceable codes of practice; and for powers to inspect and audit the use and handling of surveillance systems, including the images, their storage and disposal—tasks which would seem to lie within the remit of this Bill's commissioner.

We recognise that this is not as simple or straightforward as just stating it; and further complications may arise because of overlap with other regulatory codes, for example the broadcasting one, which were mentioned earlier by the noble Viscount, Lord Astor, and the noble Baroness, Lady Nicholson of Winterbourne, when speaking to Clause 31.

However, we were encouraged by the Home Office evidence we received which told us that the Government recognised that there were concerns about accountability and control, particularly of CCTV schemes, both public and private. Individually developed codes of practice may lead to lack of consistency and not all schemes are obliged to adopt them. Mrs France (DPR) in her oral evidence referred to the possibility of introducing (through the Bill) codes of conduct which can be used as a baseline for using the powers of enforcement that Parliament then gave.

The Home Office evidence also said that the Government had stated that they would consider the principle and practicability of underpinning the existing codes with legislation. I was further heartened to hear the Home Office Minister, Mr. Alun Michael, say on radio last Sunday that the Government were now intent on introducing enforceable codes of practice for CCTV.

While I recognise that there must be considerable difficulty in drafting the appropriate legislation to give statutory life to these intentions, I look forward to the Minister's comments on my remarks. Whether here is the appropriate clause in the Bill I am quite unsure. I am no lawyer, but I know that the Minister is supremely better qualified than I am to provide the right answers. I ask him and the Committee to bear in mind that the essential purpose of all this is to act in ways which will sustain and enhance the public's confidence in surveillance systems.

Lord Falconer of Thoroton

Let me deal first with Amendments Nos. 136 and 137, and then Amendment No. 138 to which the noble and gallant Lord, Lord Craig of Radley, has just spoken.

First, the amendment of the noble Viscount, Lord Astor: Amendment No. 136 seeks to reverse Clause 49, which places a duty upon the commissioner to promote good practice and to procure compliance with the law. The noble Viscount would like to reverse the order, but with the greatest respect to him we feel that that is wrong. The clause places good practice first; it is the broader concept encompassing compliance with the relevant legislation, a more specific requirement. As presently drafted, the clause quite clearly focuses attention on that aspect of good practice which consists in observing the requirements of the Act. That is unmistakably emphasised. I am not convinced that the amendment of the noble Viscount, Lord Astor, is an improvement at all. It is right that the general principle of good practice is stated first and that the most important aspect of that principle—compliance with the law—is properly emphasised. I believe that the clause as drafted gets that right.

The second element of the noble Viscount's amendment would place the commissioner under a new duty to consult with the parties affected before seeking to promote good practice. I wonder whether a statutory requirement of this kind on the commissioner is necessary. It raises the question with whom the commissioner is to consult. That would be difficult to prescribe. I believe that that is something that should be left to the commissioner's discretion. In exercising that discretion, the commissioner will always be under a duty to take into account all relevant considerations and it would seem to be a matter for her as to whom she wishes to consult in relation to good practice.

The second amendment of the noble Viscount, Lord Astor, Amendment No. 137, would carry forward this requirement to consult those parties affected to subsection (3)(a) of the clause, which empowers the commissioner to prepare and disseminate codes of practice for guidance as to good practice. Again, and for the same reasons, I wonder whether this is necessary. There might be some advantage in requiring the commissioner to consult before issuing definitive codes of practice, and I shall certainly have another look at this. However, in the light of the other comments I have made, I hope the noble Viscount, Lord Astor, will consider withdrawing his amendment.

Amendment No. 138, moved by the noble and gallant Lord, Lord Craig of Radley, appears to seek to create stronger regulatory powers for the commissioner. It requires that, where she considers it appropriate to issue a good practice code of conduct, that code should be legally enforceable. The commissioner already has the necessary regulatory powers and this amendment will, in fact, give him or her less flexibility. Under the Bill, if the commissioner considers it appropriate to issue a code, it will be enforceable to the extent that it is based on the Bill's regime.

In particular, the first principle in Schedule 1, requires that, Personal data shall be processed fairly and lawfully", so that if any code of practice that she may choose to issue reflects that obligation, it will be enforceable. This principle also has detailed interpretation in the first three schedules. The Bill also gives the commissioner the option of including guidance in a code which, although not enforceable, is recognised good practice.

The effect of the amendment will be to prevent her from doing this because in any code of practice that she issues she will have to stick to matters that can be enforced. There is a clear role to be played by enforcement and a clear role to be played by general, non-regulatory guidance. We need both. The effect of this amendment is to restrict the codes of practice that she would issue to enforceable matters. This is not appropriate; the balance struck in the legislation as presently drafted is about right.

I hope, in those circumstances, that the noble and gallant Lord, Lord Craig of Radley, will feel able to withdraw his amendment.

7.30 p.m.

Viscount Astor

I do not know whether the noble and gallant Lord wishes to respond, before I withdraw the amendment?

Lord Craig of Radley

No. I much appreciate what the noble and learned Lord, Lord Falconer of Thoroton, has just said. What is important is the knowledge that closed circuit television is in a regime which ensures and maintains public confidence. I shall obviously read with great care what has been said, but I have nothing further to add to what I have said at this stage.

Viscount Astor

I am grateful to the noble and learned Lord for his response. I am sorry that he does not consider my drafting to be an improvement, but I have to say that it is not the first time and those who draft bills do not often like improvements. I accept that mine may well not be an improvement, but I shall certainly study his comments carefully and I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 137 to 140 not moved.]

Clause 49 agreed to.

Clause 50 [Assistance by Commissioner in cases involving processing for the special purposes]:

Viscount Astor moved Amendment No. 141: Page 29, line 2, leave out ("the case involves a matter of substantial public importance") and insert ("there is an arguable case").

The noble Viscount said: At Second Reading I brought forward the issue about legal aid. In effect it is created in relation to this area for the first time under the Bill. I am grateful to the Minister for writing to me about the costs to the commissioner of helping individuals in cases involving the media. He said that costs will be met from the normal funding arrangements, principally the commission's grant in aid, and that costs in such cases are to be a first charge on any costs awarded by a court, or sums received in an out of court settlement by those the commissioner assists.

The amendment inserts the words "there is an arguable case". As I understand it—I have probably the least expertise on legal aid here—in order to obtain legal aid someone has to take the decision that there is an arguable case. My intention in moving the amendment is to elucidate from the Minister exactly how this will work. Who will advise the commissioner that it is a case which should be granted legal aid? What factors will be taken into account? Will there be guidelines for the commissioner? How will it work? Also what happens if the costs suddenly become greater than her grant in aid? This is a new area in relation to this subject. It is important for all noble Lords to be aware how the Government intend the provision to work. I beg to move.

Lord Williams of Mostyn

As the noble Viscount pointed out, Clause 50 provides a power for the commissioner to assist individuals to bring court proceedings to protect their rights in respect of processing for journalistic, artistic and literary purposes. However, it is not every individual's claim that will fall within the category of a case involving a matter of substantial public importance, because there may be cases of significant individual importance and consequence which would not be within the phrase which I specified. That is why we have made it plain that the commissioner may not grant assistance unless, in her opinion, the case indeed involves a matter of substantial public importance.

The formula, "there is an arguable case", embodied in the amendment, is similar to that which sets out one of the conditions for the grant of civil legal aid in the legal aid legislation.

The amendment may have the always laudable purpose of ensuring that public money is not spent on cases with little chance of success. But we have not given this power to the commissioner as a legal aid provision to help those who simply cannot afford to bring their cases to court. What we have wanted to do is to entrust someone, who after all has enormous experience and expertise and is held in high regard, with the power to ensure that important matters of principle are brought before the courts and considered by them. We do not expect the power to be used freely or without sensible consideration of the likelihood of success; and in the normal course of events within her discretion the commissioner might well wish to take legal advice as and when appropriate. Sometimes it will be appropriate. Sometimes on the basis of her experience and expertise the commissioner, exercising her mind reasonably, may well not wish to have outside legal advice. That is the purpose of this scheme. It is limited deliberately to those cases of substantial public importance.

Viscount Astor

I am most grateful to the Minister for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 50 agreed to.

Schedule 9 [Further provisions relating to assistance under section 50]:

7.45 p.m.

Lord Williams of Mostyn moved Amendments Nos. 142 and 143: Page 54, line 21, leave out from ("bring") to end of line 22 and insert ("to an end any proceedings"). Page 54, line 30, leave out from ("bring") to end of line 31 and insert ("to an end any proceedings").

The noble Lord said: I am speaking to and moving en bloc Amendments Nos. 142 and 143. These are small technical amendments. They have two virtues: they make the grammar better and they make it clearer. I beg to move.

On Question, amendments agreed to.

Schedule 9, as amended, agreed to.

Clause 51 [International co-operation]

Baroness Turner of Camden moved Amendment No. 144: Page 30, line 5, at end insert—

("() Before granting—

  1. (a) an approval for the purposes of paragraph 8 of Schedule 4, or
  2. (b) an authorisation for the purposes of paragraph 9 of that Schedule,
the Commissioner shall satisfy himself as to the legal protection provided in the country to which a transfer of data is proposed.").

The noble Baroness said: It is with some trepidation that I move this amendment because we went over this ground in the previous Committee sitting; but, on the other hand, I would like to give it a bit of a run this evening because I am not entirely satisfied that the point has been covered. As I said at Second Reading, information in the investigation of a fraudulent claim cannot under the Bill be sent from any European member state to a country which does not have a data protection Act or something similar. As a result, it is feared that reports will not be able to be sent to a number of countries, including, most importantly, the USA.

It has been difficult to come up with a form of wording which will deal with the problem, and I am indebted to the Minister for the statement in his letter to me that it will be for data controllers to take the initial view on the adequacy of protection in the third country to which they wish to make a particular transfer. If they take the view that protection is inadequate in a particular case, they may be able to rely on one of the exemptions in Schedule 4". That is a quotation from the letter he very kindly sent me. I am seeking to spell this out in the Bill. Of course I may very well be told that the provision is unnecessary because it exists anyway.

It would be unreasonable, it seems to me, for a transfer not to be permitted to, say, the USA, since much insurance and other business also is global and there are considerable links with the United States. I cannot imagine that a data controller would rule that a transfer to the USA was prevented by the Bill, but my amendment is designed to put a clear obligation upon the commissioner. There may well be countries where there is some form of protection available which may not necessarily be a formal data protection Act.

This is a bit of a problem, and I am not quite certain that we entirely ventilated it when we discussed it at the first Committee day on Monday. I would be grateful for the Minister's response. He knows quite well what we are talking about. I beg to move.

Lord Williams of Mostyn

My noble friend's amendment, as she said, relates to Schedule 4, setting out the grounds on which transfers can be made to countries where adequacy of protection is not assured. Paragraphs 8 and 9 of the schedule allow those transfers where adequate safeguards are provided in the context of the actual transfer itself, so in terms of mechanical working, as it were, that offers a benefit to the sort of organisational users to which the noble Baroness referred.

Paragraph 8 allows transfers on terms of a kind approved by the commissioner to ensure safeguards. That is what one could call the model contract-type of approach—again something which could easily be used by business organisations, which do have legitimate questions, I readily recognise, of the sort outlined by my noble friend.

Paragraph 9 permits transfers to be made in a manner authorised by the commissioner. Those allow the commissioner flexibility so that there might be one-off authorisations or there might be authorisations of categories of transfer. It is unnecessary, of course, for any controller to seek to rely on either of those provisions if the receiving country indeed provides adequate protection.

If there is no adequate level of protection in third countries, a number of exemptions are offered. I am not sure whether my noble friend's purpose is to ensure that there is an adequate level of protection in the third countries in question before the commissioner exercises her powers under paragraphs 8 and 9; that would be rather circular because the exemptions would not be needed. I hope I have identified correctly the noble Baroness's concerns and I hope I have been able to address them sensibly in those brief remarks about the way that paragraphs 8 and 9 can be made to work.

Baroness Turner of Camden

I thank the Minister for his explanation, which is very useful. I agree with him. When I drafted the amendment I wondered whether I had achieved the purpose I was after. The Minister has put his finger on that in referring to the last sentence in the amendment. However, I am grateful to him that I now have on record his view about what the commissioner may do and the way in which the concerns that have already been voiced could adequately be dealt with. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 agreed to.

Clauses 52 and 53 agreed to.

Clause 54 [Confidentiality of information]

Baroness Nicholson of Winterbourne moved Amendment No. 145: Leave out Clause 54 and insert the following new clause—

  2. cc126-34GC
  3. DATA MATCHING 3,724 words