Lords Sitting of 21 July 1983

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Lichfield): THE LORD CHANCELLOR on the Woolsack.
Several Lords— Took the Oath or Affirmed.

By-Pass Construction Programme
Lord Sandys: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many new by-passes have been completed round towns and villages since May 1979 and how many more will be started in the current year.
Lord Lucas of Chilworth: My Lords, since May 1979. 48 specific by-passes and diversions have been completed on trunk roads in Great Britain—34 in England, 9 in Scotland and 5 in Wales. A further 35 are either under construction now or will be by the end of this year—19 in England, 10 in Scotland and 6 in Wales. By-passes on other roads are the responsibility of local highway authorities.
Lord Sandys: My Lords, while thanking my noble friend for that very encouraging Answer, may I ask him whether there is any information about a particular by-pass in the West Midlands, namely the Bewdley by-pass? May I also ask him whether there are further bv-passes in the road programme intended beyond 1985?
Lord Lucas of Chilworth: My Lords, in response to my noble friend's last supplementary question, there are 160 by-passes and diversions in the current road programme, the planning for which takes us up to the mid-1990s. Regarding the particular by-pass which was mentioned by my noble friend, he will appreciate that I do not have information on every one, but thinking that he might ask about this one, I can say that it is a local authority scheme—a matter for the Hereford and Worcester County Council—and we still have to receive that county council's transport policies and programme document for 1984–85. Therefore I am not able to tell him yet exactly what that county's plans are.
Lord Underhill: My Lords, as the criterion for by-passes has been towns of at least 10,000 population, can the Minister say how many will not have been by-passed by the end of the 1980s? Can he also say whether any of the projected plans are likely to be affected by the proposed public expenditure cuts?
Lord Lucas of Chilworth: My Lords, about 161 or over 65 per cent, of historic towns situated on trunk roads will already have been by-passed. When the current construction programme is completed, all but
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a handful will have been relieved of most of their through traffic. As to the second question of the noble Lord, Lord Underhill, at this present time there is no plan to cut the road programme.
Lord Campbell of Alloway: My Lords, may I ask my noble friend whether the concept of the continuance of the M23 has now been abandoned, and if not, when would it be restarted?
Lord Lucas of Chilworth: My Lords, the M23 is not a by-pass and I very much regret that I am not able to give my noble friend that information; but I will certainly investigate and acquaint him with the answer.
Baroness Masham of Ilton: My Lords, may I ask the Minister whether the ancient City of Ripon is to have a by-pass? It has one of the oldest cathedrals in the country, the foundations of which are being shaken by the heavy traffic which comes thundering round Ripon, totally blocking it up and spoiling this lovely old city.
Lord Lucas of Chilworth: My Lords, there are so many instances that I think the noble Baroness will excuse me if I say that I am not able to remember; nor, in a great long list of some 160, can I turn my eye to it at the moment. However, I will certainly see that she is given information about that.
Lord Ferrier: My Lords, can the Minister say whether he knows whether the Secretary of State for Scotland has in mind the acceleration of the completion of the Edinburgh by-pass so that it can be finished before the Commonwealth Games in 1988?
Lord Lucas of Chilworth: My Lords, I very much regret to have to come to this Dispatch Box for the third time and say that I do not have the required information because it is just one of a great number; but I will certainly write to my noble friend.
Lord Jacques: My Lords, I notice that May 1979 is mentioned in the Question. I assume the noble Lord will agree that many of these by-passes were initiated by the previous Government?
Lord Lucas of Chilworth: My Lords, as the House will be well aware—and the noble Lord, Lord Jacques, perhaps even more so—road construction programmes are of a long duration and they embrace a number of administrations.
Viscount St. Davids: My Lords, is it not time that we by-passed all these by-passes with a few brand-new cargo waterways? Also, although this may be a different question, would the noble Lord not agree that it ought not to be a different question?
Lord Lucas of Chilworth: My Lords, indeed I do agree with the noble Viscount, Lord St. Davids, that it is a different question. Perhaps I may refer him to an Unstarred Question with regard to the waterways which is to be discussed on Monday. We may perhaps find that we can proceed further down those waterways that evening.

Driving Offences Causing Death: Penalties
3.9 p.m.
Lord Monson: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will ensure that anybody convicted of causing death by reckless or dangerous driving, particularly when under the influence of drink or drugs, will be disqualified from driving for at least five years.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, the courts must already impose a minimum of one year's disqualification on all those convicted of causing death by reckless driving or of driving while under the influence of drink or drugs, and the maximum penalty for causing death by reckless driving is five years' imprisonment. Her Majesty's Government are satisfied that these penalties are adequate, and we do not propose further to restrict the discretion of the courts to impose the appropriate sentence in each case.
Lord Monson: My Lords, I am grateful to the noble Lord, Lord Elton, for his reply, somewhat disappointing though it is. Will he agree that there is considerable public disquiet over a recent and perhaps not untypical case concerning a motorist, convicted of killing a motor cyclist as a result of dangerous driving and having twice the legal limit of alcohol in his bloodstream at the time, who not only had his prison sentence suspended for somewhat inconsistent reasons but was banned from driving for a mere 12 months —which, of course, is no longer a ban than that which is applicable to very much less serious offences? Would the Minister agree that such short periods of disqualification for killing people unlawfully not only have little deterrent value but are perhaps something of an insult to the families of the victims?
Lord Elton: My Lords, even if I had all the details of the case before me the noble Lord would not expect me to undertake the task of the court and come to a judgment. It is for the courts to decide when they have the material before them.

Electoral Reform
3.10 p.m.
Lord Mayhew: My Lords, I beg leave to ask the first Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have proposals for a referendum on electoral reform; or whether they propose to introduce legislation for this purpose.
Lord Elton: My Lords, I have nothing to add to the reply I gave to the noble Lord yesterday.
Lord Mayhew: My Lords, is the noble Lord aware that, even before the launching yesterday of the Campaign for Fair Votes, the opinion polls showed a
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large majority in favour of proportional representation and an even larger majority in favour of a referendum? Is he aware that, if the majority of MPs rejected both of these demands and insisted on deciding how they themselves were elected, and chose the electoral system most convenient to themselves and their parties, this would be an outrage and a kind of political curruption?
Lord Elton: My Lords, the elected representatives of the people are doing what they were elected to do. They are choosing how to run this country and the electoral system. Seventy per cent, of them voted against the parties which want proportional representation, and I see nothing unjust in that.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that to adhere to what is suggested in this Question would mean the Government abdicating their responsibilities? They won the election on the very clear understanding that they would preserve the tried and trusted system which has served this country successfully over very many years. A referendum gives an alibi to a Government and no Government—
Noble Lords: Speech!
Lord Harmar-Nicholls: My Lords, is my noble friend aware that to give a Government an alibi by referring to a referendum weakens the power which a Government can have? They have a responsibility for success or failure which should be clearly seen.
Lord Elton: My Lords, first, as to a referendum, a referendum works only if you can ask one straight, simple question to which the answer is yes or no. That cannot be the case with proportional representation, because there are so many different sorts. The Government believe that they are standing in the path of a hallowed national tradition, which is respected by all except those who feel that they could gain political advantage by changing it.
Lord Ingrow: My Lords, is my noble friend aware that the real outrage requiring electoral reform relates to those people who, because they are away on holiday, are not able or cannot afford to change their holiday, cannot vote in a general election? Can my noble friend give an assurance that all citizens will have a democratic right to vote at the next general election?
Lord Elton: My Lords, if my noble friend likes to ask me such a question, I shall answer it, but it is a different one from the one that I am answering now.

The General Election: Party Support
3.13 p.m.
Lord Mayhew: My Lords, I beg leave to ask the second Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government to what they attribute the decline in their support in the recent general election, and what changes in policy they are proposing in consequence.
The Lord President of the Council (Viscount Whitelaw): My Lords, I believe that the result of the recent general election represented a decisive vote of confidence in the policies being pursued by the Government. As we have made clear, we shall continue to pursue these policies, which we believe offer the best hope of ensuring continued security and economic recovery for this country.
Lord Mayhew: My Lords, is the noble Viscount aware that he won widespread respect in all parties for introducing proportional representation in Northern Ireland? Does he recall that the system which he chose, the single transferable vote—perhaps, for brevity, we might call it the Whitelaw system—meant that if a party had fewer votes it had fewer seats? Why has the noble Viscount now changed his mind, and why is he supporting a system which, as he saw at the election, enables a party to get three-quarters of a million fewer votes and yet many more seats?
Viscount Whitelaw: My Lords, I think it would be fair for me to reply to the noble Lord that things in Northern Ireland are not exactly the same as in other parts of the United Kingdom. In that respect it was for a local Assembly and not for a national Parliament, which I regard as being quite different.
Lord Wells-Pestell: My Lords, may I ask the noble Viscount how he can possibly use the word "decisive" and say that the party in power had the "decisive" support of the electorate in this country when only 31 per cent, of the electorate voted for that party?
Viscount Whitelaw: My Lords, having myself fought I think 11 general elections in my time, I have come to regard the number of people returned to the House of Commons as a decisive answer in a general election. On that basis, I should have thought that the result was very decisive.
Lord Gladwyn: My Lords, can the noble Viscount explain why it is that so many members of the Tory party are in favour of proportional representation?
Viscount Whitelaw: My Lords, I do not know that there are. If there are, it is their affair and not mine; and I am not in favour.
Lord Renton: My Lords, is my noble friend aware that there were a number of members of the Tory Party who were at one time misguidedly in favour of proportional representation, including myself, but who had good reason to change their minds when they saw that there was no longer a danger to this country from the election of a Marxist or near-Marxist party, which had the support of only about 29 per cent, of the people?
Viscount Whitelaw: My Lords, I recognise the point made by my noble friend. I still maintain that a system of proportional representation would not be in the best interests of this country. That is what I believe, and I am sticking to my belief.
Lord Ross of Marnock: My Lords, could the Minister tell us the reason for the completely
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disastrous decline in Tory support in Scotland, where they lost two Ministers and gained about one-third of the seats? What effective change will this mean in the policy of the Government towards Scotland?
Viscount Whitelaw: My Lords, I appreciate the position in Scotland, but I think that the noble Lord and others wish Scotland to be part of the United Kingdom and, therefore, it is the result for the whole of the United Kingdom that really matters.
Lord Mackie of Benshie: My Lords, does the noble Viscount's reply to his noble friend Lord Renton indicate that he approves of a position where the votes of the people should not represent the wishes of the people but should represent the wishes of another person? In other words, he said that he changed his mind when he found that there was no longer any danger. Does the noble Viscount believe that the votes of the people should not represent their wishes?
Viscount Whitelaw: My Lords, I do not think that that would be a construction to be placed on my remarks. My noble friend was giving his reasons for having changed his mind. I gave my reasons for not having changed my mind.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that the Question he is asked is: what changes of policy is he likely to recommend? Is he aware that the policy as announced has brought the credibility and the creditability of this country higher in the eyes of the world than they have been for a quarter of a century?
Viscount Whitelaw: My Lords, I am always grateful for such comments from my noble friend.
Lord Cledwyn of Penrhos: My Lords, with regard to that supplementary question by the noble Lord, Lord Harmar-Nicholls, would the noble Viscount agree that cuts in public expenditure of the magnitude which have been reported in the press and which the Cabinet are said to have discussed this morning will impose serious changes of policy which will affect the National Health Service, the education service and other aspects of the welfare state in this country?
Viscount Whitelaw: My Lords, I am surprised that the noble Lord, with his great experience of politics, should believe everything he reads in the press. I can assure him that the deductions he has reached are not accurate.

The Summer Recess
Lord Denham: My Lords, it may be for the convenience of your Lordships if I announce that it is hoped that the House will resume after the Summer Recess on Monday, 24th October. As I announced last week, the House will rise for the Summer Recess on Wednesday, 27th July.
Business
Lord Denham: Your Lordships may also wish to know that dinner will be available this evening at the usual time. The House will adjourn at approximately 7 p.m. for a short period, and during this adjournment the Local Government (Scotland) Act 1973 (Section 111) Amendment Order 1983 will be taken.
London Transport (Liverpool Street) Bill
Read a third time, and passed, and returned to the Commons with amendments.
Dartford Tunnel Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Procedure of the House
3.20 p.m.
The Chairman of Committees (Lord Aberdare)The Chairman of Committees (Lord Aberdare) rose to move, That the First Report of the Select Committee be agreed to.
The report read as follows:
1. LINKED AMENDMENTS
The Committee have considered the inconvenience that may arise from the fact that, where the first in a group of linked amendments (which is often simply a paving amendment) is disagreed to, the succeeding amendments in the group are not printed in the Official Report. The Committee recognise the existence of this problem but do not feel able to recommend a permanent solution at present. However, they propose that, for an experimental period until the end of this session, it should be open to a Lord, when moving the first in a group of linked amendments, to indicate any subsequent amendments of substance in that group that he wishes to be printed, by leave of the House, in the Official Report. This would be the authority for the Editor of Debates to insert those amendments at that point. When this course is adopted, the text of any of the subsequent linked amendments which are agreed to would not be reprinted at the point where they are actually moved. At that point they would be identified simply by their number in the Marshalled List and, where possible, by the column number of the Official Report where the text was printed.
2. PROCEDURE IN COMMITTEE: CLAUSE STAND PART
The Committee have considered the practice of the House whereby Lords who wish to give notice of their intention to oppose a clause of a bill in committee of the whole House indicate their intention by placing on the Marshalled List of Amendments an italic notice "to leave out Clause …".
The Committee consider that the present practice causes some misunderstanding by giving the impression that a motion is being moved. The Committee believe that this misunderstanding could be eliminated if the form of the notice was altered as follows:
Clause Z
The Lord X and the Lord Y have given notice of their intention to oppose the question that Clause Z stand part of the Bill.
The Committee recommend accordingly.
3. ATTENDANCE OF WITNESSES BEFORE THE HOUSE OF COMMONS
The Committee have considered a Standing Order recently made by the House of Commons enabling any member of that House, if he thinks fit. to attend as a witness before any Committee or Sub-Committee of this House without the necessity for an inter-change of messages between the two Houses.
The Committee recommend that a reciprocal Standing Order should be made by this House to enable any Lord, if he thinks fit, to attend as a witness before any Committee or Sub-Committee of the Commons without the need for a message.
The noble Lord said: My Lords, I beg to move that the First Report from the Select Committee on Procedure of the House be agreed to. In so doing, may I draw your Lordships' particular attention to the first two matters in the report. The first is to do with linked amendments. It has been found when one of your Lordships moves the first amendment in a group of amendments, which often is only a paving amendment for other more important amendments to follow, that if this is disagreed to or if it is withdrawn the succeeding amendments are not printed in the Official Report. Therefore the substantive part of the group of amendments may not appear in the official record.
In order to avoid this, it is suggested by the Procedure Committee that for an experimental period until the end of this Session it should be open to any of your Lordships when moving the first in a group of linked amendments to indicate any subsequent amendments of substance in the group that he wishes to be printed, by leave of the House, in the official record. This would be the authority for the Editor of Debates to include those amendments at that point. I would emphasise therefore that it is the responsibility of those of your Lordships who move the first in these groups of amendments to make it clear at that point that other amendments should be printed.
The second matter is one which has given rise to a good deal of confusion when there is a desire to leave out a clause at Committee stage and on the Marshalled List the words appear, in italics, "to leave out Clause" whatever it may be. This has led to people thinking that the Motion is to leave out the clause, whereas in fact the Motion is that the clause stand part of the Bill. This has also sometimes led to confusion in voting. The suggestion therefore of the Committee, to make it quite clear, is that the Marshalled List should read, "Clause" whatever it is, "The Lord X and the Lord Y have given notice of their intention to oppose the question that Clause Z stand part of the Bill". This would make it a good deal clearer to everybody what Motion the debate is actually on. I beg to move.
Moved, That the First Report from the Select Committee be agreed to.—(Lord Aberdare.)
Lord Drumalbyn: My Lords, I have one small reservation about this. Can the new amendment be treated with a certain amount of latitude? It is in my recollection that occasionally a paving amendment may lead even to a series of schedules. It would be rather ridiculous if whole schedules were to be printed immediately after the first amendment.
Lord Aberdare: My Lords, various difficulties were put to the Committee of that very kind. That is the reason why we suggest that it should be only for an experimental period to see how it works. In those kinds of circumstances, if the schedules are not important to the series of amendments being proposed I hope that the noble Lord in question who is moving the group of amendments will not ask for them to be printed.
On Question, Motion agreed to.

International Monetary Arrangements Bill
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur): My Lords, on behalf of my noble friend Lord Gowrie, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Lord Glenarthur.)
Lord Bruce of Donington: My Lords, in view of the convention which applies to this House, we on this side of the House cannot of course divide against the Bill. May I, however, inform Her Majesty's Government that in view of the fact that Argentina continues to re-arm and that there is no guarantee that the £100 million which is being advanced to Argentina will not be used for armaments purposes, we shall return to this question again and monitor progress very, very carefully indeed.
On Question, Bill read a third time, and passed.

Local Authorities (Expenditure Powers) Bill
3.26 p.m.
The Minister of State, Department of the Environment (Lord Bellwin): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Bellwin.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Lord ABERDARE in the Chair.]
Clause 1 [Expenditure powers of local authorities:]
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 1:
Page 1, line 15, at end insert—
(" () In exercising its powers under section 137 of the Local Government Act 1972 or under section 83 of the Local Government (Scotland) Act 1973, in so far as those powers exist only by reason of this Act, it shall not be lawful for a local authority to provide financial assistance (whether by grant, loan or guarantee) to any body whose composition is restricted by constitution or by practice to representatives of one or more political parties nor to assist organisations or activities calculated to promote a political cause.").
The noble Lord said: In moving this amendment I do not want to go back over what I said at Second Reading; but I should perhaps briefly explain why we think it is necessary that political expenditure should be excluded from the increased powers that the Bill would give authorities under Section 137 of the Local Government Act 1972 and why we propose this new subsection as the vehicle for achieving this.
The principal aim of the Government is to make it possible for local authorities to contribute to urban development schemes out of the so-called 2p rate which allows a council to spend up to 2p in the pound rate on anything which it thinks is in the interests of its area. But though this is a general power it is limited to purposes other than those for which the authority
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already has powers and cannot be used to top up expenditure under other powers. There has therefore been some doubt whether urban development expenditure out of Section 137 money is legal. The Bill seeks to clarify this point. The trouble is that the Government have devised a blanket formula which will create as many problems as it solves. It opens up the possibility—and indeed the likelihood—of abuses which are at present precluded but would be legalised by the Bill.
It is at present at the very least doubtful whether it is proper for local authorities to use the 2p rate to contribute to the support of such bodies as the London Labour Leaders' Group, a quasi-local authority association whose membership is restricted on a party basis. It is even more doubtful whether, as the law stands, it would be legal for the London Borough of Islington to make premises available out of public funds to the Islington News Co-operative for the purpose of publishing and distributing a free newspaper with a party political bias, or to make that co-operative a £20,000 grant to match an £80,000 loan from the Greater London Council. But the borough solicitor was in no doubt that they would be able to do precisely this, and much else besides, as soon as Parliament has passed the Bill we are now considering in Committee.
The argument was advanced in Standing Committee D in another place in the last Parliament that district auditors already have the responsibility of seeing that local authorities act reasonably and properly—I stress "reasonably and properly"—under Section 137. But there are considerable difficulties here. The Local Government Act 1972 requires that the district auditor must first be of the opinion that an expenditure is unlawful, and he is bound to be reluctant to take a case to court unless there is a provision in a statute or in the general principles of law that makes it expressly unlawful.
The anxiety which I am expressing is felt not only on these Benches. Some of the noble Lord's honourable friends felt exactly the same way in Standing Committee. One of them—and I paraphrase—applauded Mr. George Cunningham, the then Member for Islington South and Finsbury, who had moved the amendment, and said that an attempt should be made to tighten up the definition of permissible expenditure to exclude the support of political organisations with the use of ratepayer's money. Another of the noble Lord's honourable friends in another place said that over the past few years there had been a marked increase in the funding of political causes by local authorities, particularly in the London area, and that the district auditor was not on firm enough ground to act as an effective curb.
A line taken by some Members of the Standing Committee was that the remedy lay with the electorate; the "ballot box argument", if you like. I must apologise for repeating now what I said at Second Reading. We would accept that argument after—but only after—the introduction of proportional representation for local authority elections along the lines recently proposed in your Lordships' House by my noble friend Lord Harris of Greenwich. Pending this, we feel that some safeguard must be introduced into the current Bill.
A further objection was raised in the Standing Committee concerning interpretation of the words,
"promote a political cause".
which are the last words in the amendment now before the Committee. I am prepared to concede that we might improve on this at Report stage, particularly if the noble Lord the Minister will bring to the attempt the resources and ingenuity at his disposal. The essential point I wish to establish here is that there is a very great difference in the eyes of most normal people between support from the rates for campaigning and propagandist activities—and I would not distinguish here between a GLC campaign in favour of the CND and a Ministry of Defence campaign against it, if both were funded by public money—and schemes designed to promote employment and industry on a nonpartisan basis for the benefit of the community as a whole.
I would further suggest that it is not beyond the wit of man. and much less beyond the wit of your Lordships' Committee, to identify this difference in statute law. On these grounds, if the noble Lord, Lord Bellwin, is not disposed to accept this amendment as it stands, then I invite him to join with me and like-minded noble Lords in an attempt to improve the amendment before Report stage. He would be meeting not only our wishes but also those expressed by many members of his own party. If, on the other hand, the noble Lord the Minister is going to tell me and my noble friends that, while he sympathises with the principle, this is not the time or the place to give effect to it, then we shall expect to hear very positive proposals from him as to the time and place at which the Government propose to legislate against such abuses of ratepayers' money. I beg to move.
Lord Spens: I put my name to this amendment for slightly different reasons from those of the noble Lord, Lord Kilmarnock. I did so because I believe that Section 137 gives very important powers to local authorities—particularly in the fight against unemployment. The powers allow an authority to help local businesses to start up or expand, and they are handled by chief executives who have their ears to the ground and who know about businesses and about the need for them. I remember that two years ago, I was so enthusiastic about this power that I suggested that instead of a 2p rate there should be a 4p rate in this respect.
I believe that this power could usefully be confined to the lower level of councils, such as district, borough and parish councils. I understand the worries of the noble Baroness, Lady Gardner of Parkes, about the use of this power by the GLC, and I agree entirely with her. Anyway. I do not believe that that level of local government has its ear sufficiently to the ground to know how to use this particular power.
The point of this amendment, as I see it, is to protect that power from abuse by some local councils. I do not want such abuse to become so widespread that it will give the Government a chance to say that the whole power should be abolished. I believe I am right in saying that, when we discussed this particular section in the Local Government (Miscellaneous Provisions) Bill 1982. there was a moment when the noble Lord
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the Minister suggested that the total of the rate for this purpose should be reduced from 2p to 1p. That seems to be an indication of the fact that there is a danger of the Government trying to use this as an excuse for abolishing the power altogether. I should just like to quote an opposite indication which was given by the noble Lord, Lord Lucas of Chilworth, two days ago—and I see him sitting on the Front Bench. The noble Lord said:
"But that is no good reason for certain local authorities moving outside the general bounds of good management and it is the Government's job to set down those general bounds". [Official Report. 19/7/1983; col. 1043.]
I suggest that this amendment would help the Government to set down those general bounds.
Lord Bellwin: The noble Lord, Lord Kilmarnock, made a very good forecast of what he expected me to say, because I am going to say exactly what he anticipated—although I believe that I should explain why. Before doing so, I must say to the noble Lord, Lord Spens, that, as he knows, a 4p rate would place £77–6 million in the hands of the GLC; and £38·8 million under Section 137 is already a lot of money.
The noble Lord made a very important point when he spoke about the abuse of this power—as indeed of any other very important section of any legislation—leading in the end to pressures for action to be taken which is wider than perhaps a Government might wish. Surely the answer to that point is that the whole of local government itself has to say. "Enough is enough". I am one of those people who, being ever optimistic, hope that this is what we shall see happen in the future, because I believe that local government is not at all happy about some of the things which are taking place in its name. I hope that local government itself will do something about that.
I quite understand and agree with the feeling that lies behind this amendment—but having said that, I must ask the Committee to reject this addition to the Bill. The noble Lord's amendment is, quite properly, drafted simply to apply to the scope of the present Bill. It would apply to grants, loans and guarantees made under Section 137 in connection with land acquisition and building work. I ask your Lordships to note carefully that it would apply to land acquisition and building work. It would not affect the generality of use of Section 137, and I will deal with that factor in a moment.
This amendment is identical to that put down by the former member for Islington South and Finsbury when this Bill was being debated in another place prior to the general election. The arguments advanced by my honourable friend the Parliamentary Secretary still hold good and, in response, I must rehearse them today to the Committee. There can be no room for doubt about the Government's attitude to the way in which some authorities are using Section 137. I had strong words to say on that matter during Second Reading. Yet, as has been said, Section 137 is a most useful provision. It enables authorities up and down the country to carry out useful expenditure in circumstances where they have no specific powers. In particular, in some cases, it authorises the valuable social programmes of expenditure on urban programme and urban development grant schemes.

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But, as we have been told and as we know, there are cases where some local authorities have stretched the previously accepted conventions. I said during Second Reading that we are aware there is a problem here and are considering whether steps to deal with it are called for. But I have to say again that this Bill is not the place to take that action and I do not consider that the noble Lord's amendment represents a satisfactory way of dealing with this issue.
The Committee is invited to consider applying to the limited area of expenditure authorised by the Bill the restrictions contained in the amendment. We are also asked to approach this in a particular way. I fully appreciate why there is a wish to prohibit the use of Section 137 to assist party political organisations or political causes. But legislation has always adopted a careful approach in its references to political matters.
I should like to repeat a point made by my honourable friend the Parliamentary Under-Secretary. While we cannot give authoritative rulings on the interpretation of the statutes, it is our view that expenditure on purely party political purposes cannot satisfy the tests required by Section 137 as it is drafted at present, and it is open to a ratepayer or to the auditor, even now, to approach the court in respect of a particularly bad case of a politically-motivated grant.
To import into Section 137 a prohibition of grants and loans to politically-motivated bodies gets us into problems of definition, to which I have to say the noble Lord has not produced an answer. As it happens, I am far from sure that the amendment would prevent authorities from incurring many of the examples of expenditure which are rightly criticised. Few, in fact, are related to expenditure on the acquisition of land or the execution of building works for the benefit of an area. Let us be quite clear: this is the sole extent of the present Bill; and while more generally under Section 137 there are undoubtedly grants going to bodies of a political colour, it is likely to be extremely difficult to prove that their membership is restricted to representatives of political parties. How is "restricted in practice" to be interpreted? What are "representatives" of political parties? What are "activities calculated to promote a political cause"? These are very imprecise terms, and they illustrate the great difficulty of moving away from convention to specific legislation.
There is also the other effect of the amendment to which I have to draw the attention of the Committee. If the noble Lord's amendment were accepted, we would find ourselves in the position that one area of activity under Section 137 was qualified in the manner contained in the amendment while the rest of Section 137 would not be so qualified. The inference might well be taken that there was no prohibition of political expenditure other than in the limited context of the present Bill. Similarly, there would be the same inference to be drawn in relation to other discretionary powers of local authorities. The burden of proof placed on auditors or ratepayers in seeking to challenge a provocative case of expenditure, either under Section 137 or another power, would be heavier if Parliament had by implication seemed to suggest that politically-motivated expenditure was possible in those other circumstances.
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So, finally, let me say again that the Government are by no means happy with the uses to which some local authorities are putting the proceeds of their twopenny rate. We recognise indeed the mounting anger in the country against those mischievous authorities which are by their abuses putting an ever greater burden on their ratepayers. Nor are we complacent about these problems. The authorities involved should not assume—and I hope the noble Lord, Lord Kilmarnock, will note this—that the Government do not have the will or the ability to rectify the problem. I am bound to say that this Bill—essentially a technical measure—is not the right vehicle through which to tackle these problems. In view of that, I would invite the noble Lord to withdraw his amendment.
Lord Harris of Greenwich: I do not doubt, and I am sure many who are apprehensive about the situation disclosed by my noble friend will not doubt, that the Minister and his colleagues are seriously concerned about what has been happening in a number of London boroughs and elsewhere, where the activities of the extreme Left, which has taken control of those local authorities, have done grave damage to the reputation of English local government. I do not doubt, and I am sure nobody else does, the noble Lord's general condemnation of such behaviour. But the question he has to answer is a rather different one: what is he going to do about it?
The noble Lord and I had the opportunity to discuss a not dissimilar question some little time ago concerning the London Borough of Southwark. What the London Borough of Southwark had done, in order to demonstrate their disapproval of the military base at Greenham Common, was to say that any public works contractor who carried out work at Greenham Common and secured a Ministry of Defence contract there would be debarred from securing any contract with the London Borough of Southwark. A debate took place in this House. The Minister made a very forceful speech in which he indicated his deep disapproval of the behaviour of Southwark. He indicated that he would discuss the matter with the Office of Fair Trading, and he indicated that the Government were keeping a very close watch on these developments.
What has happened since? The Office of Fair Trading said it had nothing to do with them or that they could not take action, or something of that sort, and the situation remains as it was when this matter was discussed in your Lordships' House; namely, a statement by the Minister—wholly sincere, I do not doubt—condemning the local authority concerned for what, in my view, was clearly unlawful action, quite apart from any other considerations, but no action by the Government themselves to take account of this very serious development.
Now we come to what the London Borough of Islington is going to do with the noble Lord's Bill. Have no doubt: it is this Bill they are waiting to see put on the statute book so that they can spend up to £100,000 of public money on a Left-wing newspaper which is going to be created in the London Borough of Islington. I have in front of me a document giving the view of the Islington borough's solicitor which was submitted to the Employment Grants and Financial

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Assistance Sub-committee of that authority on 18th April this year. I propose to quote it, because I think it will indicate to the Committee the situation which we are in reality debating in terms of my noble friend's amendment. In paragraph 1 it says:
"These observations are written before a package of assistance has been worked out. but officers met on 7th April representatives of the Co-operative".
That is the Islington News Co-operative, the body that has been established in order to publish and distribute this give-away newspaper.
"They explained their financial requirements and other sources of funding, though without exact figures I believe the Co-operative's request to the council is comprised of four elements:

"(a) a loan towards the acquisition of 322 Upper Street;

(b) a loan towards the cost of the refurbishment works;

(c) a grant towards either the cost of acquisition or the cost of works or both; and

(d) a grant towards working capital required".

That gives a general indication of what the cooperative is trying to get from the London Borough of Islington.
We now turn to this particular Bill and its relevance to what the Islington News Co-operative is endeavouring to achieve. Under a subheading in paragraph 4 of the solicitor's note, the document reads as follows:
"Grant towards cost of acquisition or costs of work, or both:
"There is at present no statutory power to make such a grant. Section 137(1) of the Local Government Act 1972 does not apply because comparable power to make a loan exists in the shape of Section 3 of the Local Authorities (Land) Act 1963. As I have advised members previously, this legal difficulty is a recent one, accidentally engendered by the Local Government (Miscellaneous Provisions) Act 1982, which was intended to extend the ambit of Section 137, and is about to be remedied by the Local Authorities (Expenditure Powers) Bill currently in Parliament. If and when this Bill is passed, then, subject to what is said generally about Section 137 and local authorities' powers generally, there would be power under Section 137(1) to make such a grant, and it is fairly clear from the information provided by the Co-operative that some funding under this head would be required."
That is a substantial document, and if the Minister would like to see it I will gladly make it available to him.
So it is clear that Islington News Co-operative is to exist and will obtain its financial assistance from the London Borough of Islington entirely because of the passage of this Bill. That is the legal advice made available by the council's principal legal officer. Since the Bill did not proceed quite as briskly as the council had hoped, so far no public money has been made available to the co-operative.
Now we may ask a different question. There is no doubt that Islington is a left-wing local authority, as most of your Lordships know, and one could expect this of it. But is there any other reason why Islington local authority is keen to have this give-away newspaper? The answer is, Yes. The council has been having a feud with the Islington Gazette. The Islington Gazette, unlike this free newspaper which the council intend to publish at public expense, is a normal weekly newspaper relying on its income from sales and from advertising. I shall not go into the whole background of this dispute because it would take far too long. I know that the Minister is well aware of it. When the Labour Party again secured power in Islington in May of last year a decision was made by members of the
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authority to instruct its officers, and indeed the members of the authority itself, to have no contact whatever with representatives of the only newspaper circulating in the London Borough of Islington. The reason was that there had been an industrial dispute caused by the closure of a sister newspaper in the group owned by the Islington Gazette and as a result there had been a strike in a number of other newspapers in that group including the Islington Gazette.
The dispute came to an end, by and large, in May of last year; but, notwithstanding that, the instruction has continued. No officer of the London Borough of Islington has been allowed to answer any question from a journalist working for that newspaper; no committee chairman will speak to a representative of that newspaper; no council advertising has been allowed in that newspaper save for a few statutory notices where the council has been advised that it would be taking a considerable risk were it not to publish them in the columns of that newspaper.
I think that is an outrageous abuse of power by a local authority. That view is shared by the Press Council, I am glad to say, which has severely criticised the London Borough of Islington for its action. The council has also been severely criticised in a report by the local government ombudsman. There is some indication—but no certainty—that the council, as a result of the unremitting pressure it is getting from the local government ombudsman, may change its blacklist policy, at least to some degree, but there is no certainty.
That is the history of the row over the Islington Gazette and it is primarily for that reason that the council is now deciding to publish a newspaper at public expense. It has two aims in mind. The first is to serve a useful role in providing a propaganda arm for the majority party on the Islington borough council. The second is to try to put the weekly newspaper out of business. That is the objective and there is no doubt about that whatever. Moreover, by publishing a free newspaper it will be able to offer extremely competitive advertising rates compared with a commercially produced newspaper.
As I have made clear, it will only be able to do this because of the passage of this Bill through this House. Therefore, what I am hoping to hear from the Minister today—and if not today, on Report and if not on Report, on Third Reading—is not simply a wholly sincere statement condemning such abuses of power—I am sure we will hear that and will welcome it—but much more. We shall want a positive indication that firm action is to be taken.
When I was a Minister I did exactly what the noble Lord has also done on a number of occasions; that is, to explain how in fact an amendment is wholly inappropriate and unacceptable in the form in which it is drafted. But I hope that the Minister will agree that what is called for here is something quite different. What is needed is some indication that the Government are prepared to look at the language of this short Bill and consider whether action can be taken before the Bill finally leaves the House so that we prevent a further abuse of power taking place in Islington. If he does not I must make it quite clear that we will fight this Bill at every stage, otherwise we shall be permit-

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ting a local authority, which has won itself one of the worst reputations of any local authority in London, to continue its campaign of persecution against a newspaper that it does not like and to do it at public expense.
3.59 p.m.
Baroness Birk: May I intervene before the Minister replies? I listened very carefully to what the Minister said in reply to the amendment moved by the noble Lord, Lord Kilmarnock, and I must confess that I agree wth almost everything he said. We have to get right back to the beginning of what this small Bill is about. It is to clarify a doubt which arose on whether local authorities would be in legal difficulties if they used Section 137 of the Local Government Act 1972 for urban grant development. With that doubt remaining numbers of local authorities of all political complexions are concerned about continuing with work which is extremely important to the development of the economy and, indeed, to employment.
The noble Lord, Lord Harris of Greenwich, when promoting the amendment, largely concentrated his attack on what is happening in Islington. But he said that the pressures had resulted in a change in his attitude and, as he has probably seen in the Guardian this morning, the ban has now been lifted. Publicity, knowledge of what is going on, the right of ratepayers to make their voices heard and as the Minister said action that can be taken by auditors, are all ways in which in our democracy public opinion can make itself felt. I am not pretending that there are not abuses with which most of us would fundamentally disagree; but what I am certain about is that this Bill is not the right vehicle to deal with them.
The noble Lord said that if the Government did not like the amendment they could bring forward something else. It is clear that the Government have rightly taken the view that they cannot bring forward anything else which would fit properly into this piece of legislation. The situation remains as the Government say. How does one define political? Also how does one define what is and what is not an abuse? It is a matter of judgment. The Bill is concerned only with land transactions and economic development. It does not cover many of the alleged abuses to which the noble Lords have referred and to which reference was made on Second Reading.
If this amendment were approved, it would completely change the nature of the Bill from the technical and clarifying piece of legislation which it is at the moment to an ill-conceived attempt to deal with an ill-defined problem. We should not promote such legislation. Legislation is difficult enough anyway. But it is absolutely and entirely wrong to allow something like that to go through with one's eyes open. Had there been a way to meet the point, I am sure that it would have been done in an amendment, but there is no way to do it and it should not be done.
I support what the Minister has said in this area. Incidentally, very often a great deal is made of what are perhaps a small number of abuses by authorities. One should come down to earth and realise that of the £38 million budget under Section 137, to which the Minister referred, £24·9 million is devoted to industry
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and employment; £3·3 million to ethnic groups; voluntary community groups get £4·9 million (and this includes the citizens advice bureaux), and the grant to Gay organisations, about which much was made on Second Reading, totalled £23,000—which, to be realistic, considering the numbers in the population, is not terribly untoward. If we kept our eye on that point, and considered what is being given to industry and employment, and put things in their right perspective, it would be very much better. We on these Benches also feel that it would be much better if this Bill went through as it is and any other problems that arose were discussed in their proper context.
Lord Campbell of Alloway: Before my noble friend replies, may I briefly associate myself with the observations made by the noble Baroness, Lady Birk. I find myself in very substantial agreement with them. I agree that there is a serious question of abuse. But in the long run surely it is publicity, public opinion and the electors themselves who should if possible be left to seek to remedy this abuse. In the short term specific legislation along the lines of this amendment is unwelcome in so far as it is designed to restrict payments to political parties, because this involves a degree of overlap with the existing machinery by which such matters can come before the courts and be challenged.
As regards restricting payments to politically motivated bodies, surely that is inappropriate, as it gives rise to serious questions of definition and perhaps a veritable mare's nest of litigation. Lastly, this amendment, although a valuable vehicle for an informative and most interesting speech from the noble Lord, Lord Harris of Greenwich, is outside the intendment or the Short Title of this Bill.
4.4 p.m.
Lord Bellwin: I recognise absolutely the great depth of feeling with which the noble Lord, Lord Harris of Greenwich, spoke. One has to respect that. It is a great bitterness that is felt by many people. First, I am sure that the noble Lord will be pleased to know, with reference to the article in the Guardian, which I too had intended to mention, that we understand Islington has withdrawn its ban on the Islington Gazette. That must be a good thing if it is true. I hope that it is, as I am sure does the noble Lord.
This Bill truly is about the acquisition of land or the execution of building works for the benefit of the authority. Of course I shall ask the noble Lord to let me have a look at the document to which he refers. He knows that I will do that. But I do not offhand see quite how what this Bill is proposing would have the results to which he refers. Nevertheless, I would want to see the document. But at the end of the day I have to fall back on what I said before. The noble Lord says that it is all right our saying that we shall do something about it, but what will we do. If it was that easy, something would have been done long ago. There is a problem with the issues of definition.
This Government above all have so often been accused of trying to curtail the powers of local authorities, and so on. That is just not true. We are reluctant at all times to do that. The fact is that it is a question of the extent of the pressures that build up.

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My noble friend Lord Campbell of Alloway said what is needed is publicity, and so on. Yes, it is; but what is also needed is the condemnation by local government itself on every possible vocal and written occasion. Local government has to face up to what is happening. However, that is for another time and not for today.
I ask the noble Lord, Lord Kilmarnock, seriously to consider withdrawing his amendment. He knows what the feeling is. This Bill is about enabling local authorities to get on with things. I am sure that the noble Lords, Lord Kilmarnock and Lord Harris of Greenwich, must want to see that there is this facility for local authorities. Every day that we delay makes the matter more difficult. It is not what we should be doing.
Lord Kilmarnock: I am most grateful to all noble Lords who have spoken in this short debate on the amendment. The noble Lord, Lord Bellwin, suggested that my amendment was too narrow to be fully effective. From what he said, he appears to be contemplating a wider attack on local authority powers along the lines that were feared by the noble Lord, Lord Spens. I thought I heard him uttering rather threatening noises in that direction. That seems to me to be a very good reason for limiting the damage through the present Bill before your Lordships' Committee. The noble Baroness, Lady Birk, said that there is no way of doing it. I must say that I would not accept this. If the amendment is defective in the way suggested by the noble Lord, Lord Bellwin, before I decide whether or not to withdraw it I should like to ask him whether he is prepared to meet us after the Committee stage of this Bill in order to discuss the matter constructively on the lines suggested by the noble Lord, Lord Harris of Greenwich.
Lord Bellwin: So far as this Bill is concerned I think that the noble Lord knows that we would not be willing or able, (a) to accept the amendment or, (b) to try to put into it another amendment along the lines of what he is saying. The problem as a whole is there for discussion and for consideration. I shall gladly meet both the noble Lords, Lord Kilmarnock and Lord Harris of Greenwich, to talk about that outside in other contexts. But so far as this Bill is concerned there is in my view an imperative to get it on to the statute book. The longer we delay doing so, we are holding up work which everybody in the Committee wants to see take place. I think that we should get on with it.
Lord Harris of Greenwich: It was a most remarkable statement that the noble Lord has just made. The Bill arrived in this House only on Monday for Second Reading. Is the noble Lord saying that he will oppose any amendment to this Bill at any stage before he has read the terms of an amendment? Is that what he is saying?
Lord Bellwin: We are talking here about scope. The noble Lord will not draw me on that. The fact very simply is that we are talking about these amendments. I said that if there are any other amendments on similar lines the same thing will apply, and that is really where I stand.
Lord Kilmarnock: I think that I understood the noble Lord to say that he is prepared to meet us to discuss the whole matter in general terms, but not within the scope of this Bill. I do not wish to delay your Lordships' Committee, and there is another amendment to be considered. So on this occasion I beg leave to withdraw the present amendment.
Amendment, by leave, withdrawn.
4.10 p.m.
Lord Harris of Greenwich Lord Harris of Greenwich moved Amendment No. 2:
Page 2, line 17. at end insert—
("() The power conferred on a local authority by this section shall not apply to expenditure unless that expenditure has been approved by the local authority and by the Secretary of State.").
The noble Lord said: I beg to move this amendment standing in my name. It is a short amendment. Its terms are self-explanatory. I am particularly glad that at the moment we have the Leader of the House in the Chamber, because I am bound to say that the statement made by the noble Lord, Lord Bellwin, indicating that he was prepared to reject any amendment before he had considered its terms, was one of the most remarkable I have heard made by a Minister in this House or elsewhere—
Lord Bellwin: I really must ask the noble Lord to withdraw that. It is not what I said. It is not what I intended, and it is wrong of him to say that I did.
Lord Harris of Greenwich: Will the noble Lord then explain what he did intend? If I have inadvertently misrepresented him I will of course gladly withdraw, but, as I understood it, he was wanting to indicate to us, indeed he did indicate to us, that it was so vital to get the Bill on the statute book quickly, as fast as possible. Urgent work remained to be done. It was at the very least a quite clear implication that if he was not going to take objection in principle to any amendment put down, he would approach it in an extremely negative spirit. If I have got him wrong, I will gladly withdraw.
Lord Bellwin: I cannot keep getting up to repeat the same thing again and again. I think that what I have said was clear enough. I look around me and it seems that most of your Lordships appear to think that it was so. I do not think that I should expand on it.
Lord Harris of Greenwich: I shall now come to the terms of the amendment, because we will be coming back to this on Report stage—I should not leave the noble Lord in any doubt on that matter—and we will be coming back to it on Third Reading as well, in the form of amendments. What we have to say to him is that of course the Labour Party agrees with him on this matter because we are discussing the behaviour of a Left-wing local authority. So it is hardly surprising that when he looks for comfort from the Labour Benches he gets it. Of course he does. What we are concerned—
Lord Mishcon: If the noble Lord will give way for one moment, I should like to say that this Front Bench happens to stand for fairness. Therefore, it was in the

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interests of fairness that we made a protest to the noble Lord, Lord Harris, in regard to his version of what the noble Lord the Minister said. We were quite clear what he said. It had no politics in it at all. There were merely equity, justice and fairness in the protest that we made together with the noble Lord the Minister.
Lord Harris of Greenwich: I take note of what the noble Lord, Lord Mishcon, has said, but I shall look with interest tomorrow at the Official Report to see what the noble Lord, Lord Bellwin, said. If inadvertently I have done him an injustice, of course I withdraw what I said. I think that we know one another well enough to say that. But I wish to draw this matter to his attention, and I hope that the Whip on duty on the Government Front Bench will take note of it as well. I know of very few precedents for a Bill receiving a Second Reading on Monday, having its Committee stage on Thursday, with a suggestion that it is going to have to be, or should be, or deserves to be, on the statute book by the following Wednesday. That, as I understand it—again, I hope that I am not misrepresenting the noble Lord, Lord Bellwin—is what he seemed to be at least suggesting.
Noble Lords opposite should be aware that when this matter is eventually put to a vote, as of course at some stage it will be, the Government Whips will find the Labour Party going into the Lobbies in support of the Government's position on this question. But they should also have no doubt that what they will be doing—and I say this in particular to the noble Lord, Lord Campbell of Alloway, to whom, as always, I listened with close attention—will be allowing the London Borough of Islington to spend up to £100,000 of public money for purposes which I have described. That is not simply my view; it is the view of the chief legal adviser of the London Borough of Islington; and I shall gladly be making the document concerned available to the noble Lord, Lord Bellwin.
I hope that it be will possible for us to have a harmonious and agreeable meeting before the next stage of the Bill, by which time the noble Lord, Lord Bellwin, will have had the opportunity of reading the document. Then, no doubt, he will be in a position to advise the House at Report stage whether the extracts that I have read today are in accordance with the advice that he receives from his own department. But I repeat that noble Lords opposite should know quite definitely what they are doing. In this case in Islington this is the way in which £100,000 of public money is going to be spent if the Bill goes through in its present form. The amendment which I now propose—I do not intend to push it to a vote today because I hope we shall be meeting the noble Lord, Lord Bellwin, before the next stage of the Bill—would seek to restrict this.
I ask the noble Lord, Lord Campbell of Alloway, and other noble Lords opposite, as well as indeed noble Lords in other parts of the Chamber, if Islington gets away with this, what do they think will be going on in some of the other London boroughs? What do they think will be going on in the London Borough of Southwark. What will be going on in the London Borough of Greenwich? What will be going on in the London Borough of Camden? Once they have some statutory cover of this kind on the basis of the legal advice made available to the council in Islington by its
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principal legal adviser, there is a likelihood of large sums of public money being spent for these purposes.
The noble Lord, Lord Campbell of Alloway, says that there is a solution to that. The solution is that we will leave it to the electorate. But of course it will be years before there are any more local government elections in Islington, or Camden, or Greenwich, or elsewhere. Even then it does not necessarily do them much good, because most of the people in Southwark voted against the present majority party in Southwark and a lot of good it did them! They still have a local authority behaving in a wholly unreasonable fashion over the Greenham Common contracts.
So all I would say to the Government and their supporters is that, if this matter eventually comes to the vote—and I very much hope that it will not—they will undoubtedly have a number of members of the Labour Party supporting them in the Lobbies. But they should realise that the last time they had the Labour Party in their Lobbies was on 2nd August last year, when the Labour party was just as vigorously supporting the then Government spokesman, the noble Earl, Lord Ferrers, when he was telling the House that we should resist an amendment moved by the noble Lord, Lord Campbell of Alloway, himself (though eventually he sought to withdraw) which would in fact have made trade unionists contract in rather than contract out of the political levy. We know what developments there have been in Government thinking since then.
I would just repeat that I hope that we shall be able to discuss this matter with the noble Lord, Lord Bellwin. I recognise his problems. I know perfectly well that of course he wants to get the Bill through as quickly as possible. But I must say to him quite clearly that I very much hope that he will agree to talk to us if only on the basis that his mind is at least open to argument when we do in fact meet him.
Lord Campbell of Alloway: Before the noble Lord sits down, I should like to ask whether he accepts that I wholly share his concern. I wholly share it and in no way seek to denigrate it. Will he accept that where we differ is on the question of whether this Bill is an apt vehicle for the amendment which is proposed? But this in no way detracts from the concern which I think we both share.
Baroness Birk: I want to speak only very briefly to this land amendment, part of the upshot of which I think was not explained by the noble Lord, Lord Harris. It means in fact that every transaction regarding land which comes within the clause would have to go to the Secretary of State. It really is the most ludicrous and outrageous suggestion.
On grounds of efficiency alone, it is wrong and absolutely impossible. There would be a huge backlog of applications. For quite different reasons, we on these Benches would not go along with more legislation, and an amendment that gave the Secretary of State even greater power, when, in regard to so much previous legislation, noble Lords on all sides of your Lordships' House—including, from time to time, those in the noble Lord's party, when they are present—have argued against the erosion of local government power by central Government. This amendment should be thrown out immediately.
Viscount Ridley: I am sure that the whole local authority world will be delighted to see the end of this amendment, whether at this stage or any other stage. It means an enormous increase in bureacracy, and is bound to result in a great deal of diminution of freedom of local government. I hope that the Government will resist it. The amendment has not been explained by the noble Lord, Lord Harris, and I hope that it will not be. I do not think it will get him very far.
Lord Mcintosh of Haringey: Some of us had mixed feelings about the previous amendment. It was a badly drafted amendment to the wrong Bill. However, it represented the view, which many of us have held—my former colleagues in local authorities will confirm that I have always held it—that local authorities should not support party political activities. To that extent, there was some justification for the previous amendment. In contrast, the present amendment seems one of unalloyed wickedness. I am not surprised that it should be moved by Lord Harris. The noble Lord has been a centralist all his life, whether inside the Labour Party or outside it. I am, however, surprised that the noble Lord, Lord Kilmarnock, should have put his name to it, because I thought that he was a libertarian.
We have here a proposal from the Government in a simple Bill to remove an anomaly from the application of Section 137 of the Local Government Act. I remind the Committee that Section 137 and its predecessors in previous Local Government Acts have been some small sign of independence of local authorities from permitted expenditure and the ultra vires laws ever since local authorities started. They have been the occasion when local authorities have engaged in their most creative and worthwhile new ventures. Anything that seeks to diminish Section 137 and diminish the powers of local authorities to act totally independently of central Government under the section should be resisted.
This Bill is designed to remove an anomaly that was not expected when the last Local Government Act was enacted. It is designed to recognise the fact that support for local activities can just as well take the form of support for acquisition of land and for building on land as for giving grants in other ways. There is no difference in principle between them. To seek to have that power referred to central Government and to allow central Government into Section 137 of the Local Government Act seems to me, as I have already remarked, an act of unalloyed wickedness. I hope that the Government will resist it.
Lord Bellwin: The noble Lord, Lord Harris, said he hoped we would have a harmonious and agreeable meeting. He makes it harder for me to have a meeting that will be harmonious and agreeable by the way he always goes on at me. Nevertheless, as he well knows, I shall do my best with him when the time comes.
I am rather sad to see this amendment, which is totally out of touch with everything that one is seeking to do. By his remarks the noble Lord, Lord Harris, obscures to some extent some very real concern. I am sorry that even my noble friends and the noble Lord, Lord McIntosh, have felt it necessary—I understand why—to miss the point that the noble Lord, Lord
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Harris, is basically making. That is his considerable concern for what is going on.
All I can say in repeating why we cannot accept the amendment is to express my hope that no one in local government (I weigh my words carefully) will believe that for ever one can go on watching abuses of Section 137 of the kind that are taking place at the moment. It is not the Government that should be doing something about this—and something must be done. It is local government itself that must do something about it. I appeal to those in local government to make sure that something is done. There is no way in which we can accept the amendment.
Lord Kilmarnock: Will the noble Lord accept that the amendment under discussion was favoured by his honourable friend Sir George Young in Standing Committee in another place when the matter was last discussed?
Lord Bellwin: I cannot comment on that. I do not know. I hear what the noble Lord says.
Lord Harris of Greenwich: I was about to remind the noble Lord, Lord Bellwin, of that point. I can understand the speech of the noble Lord, Lord Mcintosh of Haringey; and I congratulate him upon the degree of indignation that he managed to get into his speech. I wish that a little part of that indignation had been directed at the anti-democratic behaviour of his political colleagues in Islington; but, as we noted, it was not.
Lord Mcintosh of Haringey: If the noble Lord will forgive me, I think I stated clearly that throughout my time in local government I have been against expenditure by local authorities for party political purposes, and I am now. I thought I had made that clear.
Lord Harris of Greenwich: Indeed. What I had hoped that the noble Lord would join me in doing was to condemn the examples I have given of what the Labour councillors at Islington have been doing. Of course, the noble Lord's position on the general abuse of power is well known. I have been indicating, like my noble friend Lord Kilmarnock, the disgraceful behaviour of the Labour Party in the London Borough of Islington. Further examples of this have been given. Indeed, the noble Lord, Lord Bellwin, has indicated his concern, not only this afternoon but on the last occasion that we had the opportunity to discuss the matter. At that time we were discussing what the Labour Party was going in Southwark. It was behaviour defended on that occasion by the Opposition spokesman in your Lordships' House.
I do not propose to press the amendment today. I find it a little surprising that the noble Lord, Lord Bellwin, was so antagonistic towards it, given the different words used by Sir George Young during discussion in Standing Committee in another place. One would normally assume that Ministers of the same Government in the same department would at least have a common approach to matters of this kind. Sir George Young indicated that he would look at the matter carefully, but the Bill then died and we did not

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get any further with it in the last Session of Parliament. I look forward to an early meeting with the noble Lord, Lord Bellwin, in the next day or so. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Remaining clause agreed to.
House resumed: Bill reported without amendment: Report received.

Data Protection Bill [H.L.]
4.30 p.m.
Baroness Trumpington: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee. (Baroness Trumpington.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Lord Cullen of Ashbourne in the Chair.]
Clause 27 [National security]:
Lord Avebury Lord Avebury moved Amendment No. 37:
Page 21. line 4, after ("Crown") insert ("after consultation with the Registrar")
The noble Lord said: This clause of the Bill is concerned with national security and, in the absence of an amendment such as we have tabled here, exemption from Part II of the Bill, and thus from registration or any kind of supervision on grounds of national security, would be decided by a Minister of the Crown and no other person, apart from the data user himself, need ever know about what has happened.
The Minister said during the last "innings" that data which are exempted from either subject access or non-disclosure under the provisions of this part of the Bill, would not be left without any protection at all, as critics sometimes implied. In general, of course, that is true. Data users who hold data for the prevention or detection of crime, for instance, still have to register and, as the Minister pointed out, the registrar still has the power to ensure that where appropriate the principles which are contained in Schedule 1 are still observed. But in the case of the systems that are covered by Clause 27, the registrar, as I understand it, is completely unaware of their very existence until he receives a certificate signed by the noble Lord, Lord Elton, or one of his colleagues, in the terms set out in Clause 27(2). Incidentally, it is not even clear to me that the certificate mentioned here would have to be lodged with the registrar. As I read the Bill, it is possible that the certificate could simply be filed within the department never to see the light of day until someone like Mr. Duncan Campbell discovers the existence of the system in question and then it will be wheeled out to frustrate any unwanted questions that Mr. Campbell might seek to put to the Press Office of the Home Office.
Your Lordships will remember that the Lindop Committee suggested that a member of the Committee or, as we now have it, the registrar's staff, should have a high enough security clearance to be able to look at files proposed to be exempted for reasons of national security. If any Government should try in future to use Clause 27 to extend the area of secret computer files under the pretence of national security, but in fact for some more sinister purposes, then at least the registrar would become aware of what was happening. He would, of course, have no power to stop the Minister from signing the certificate, but if that was done against his advice, the Minister would have to run the risk that his conduct would become known to the public. Of course we are not in this amendment getting at the noble Lord, Lord Elton, who is absolutely to be trusted with the enormous powers in this clause. But we do need, I suggest, to take precautions for the future against other Ministers who may occupy his post and who may see information technology as a weapon to be deployed unscrupulously against those who disagree with them, rather than as a resource for the people. I beg to move.
Lord Elton: When we considered last Session's Data Protection Bill, considerable attention was paid in Committee to Clause 27. Various comments, criticisms and suggestions were made and on Report I was able to bring forward a revised Clause 27 which, I was glad to discover, met most of the points that had been made in Committee. One of them was the importance of ensuring that an exemption on national security grounds was not available without the authority of a Government Minister at the highest level. We recognised the force in that argument. And we revised the provisions of Clause 27 accordingly. It now provides that any question of whether an exemption is required for the purpose of safeguarding national security must be determined by a Minister of the Crown. And a Minister of the Crown is defined in subsection (6) as a member of the Cabinet, the Attorney-General or the Lord Advocate. The noble Lord, Lord Avebury, does me too much honour in suggesting that I might be included among that number in the foreseeable future. We thus sought to ensure that decisions of this kind—of a sensitivity and seriousness that are perhaps unique—rest where they can only properly be taken—at the highest level of government.
The noble Lord is now suggesting that an extra dimension is given to the decision-taking process; that before a Minister decides whether or not an exemption is required for the purpose of national security, he shall consult the registrar. I have to say to the noble Lord that I am sorry, but it is not practicable, for two reasons: one of principle and one of practice. As I said in responding last Session to an amendment to Clause 27, national security data are in a field all of their own. They are of a particular sensitivity, and the number of people with access to them must be kept to the absolute minimum; that is in the interests of the nation as a whole. I know that in other countries some other intervention is provided, but as the noble Lord has not raised that matter, I will not go into it.
The noble Lord's purpose is that what the registrar shall be consulted about is not the needs implicit in the protection of data subjects, in which he is expert, but

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those arising from the protection of security, of which he knows almost nothing. Supposing the registrar were given a role and had to be consulted by the Minister before the requirement for an exemption was decided. How could he properly and constructively express a view?-—because the question he will be asked will be about the needs of national security, not of data protection. The Data Protection Registrar will undoubtedly be a person of eminence and wisdom. He will be a man of integrity, of absolute trustworthiness. But what he will not be is an expert on national security. He will have no qualification or basis or corpus of knowledge on which to express a view as to whether the needs of national security are such as to require action to be taken. Only a Minister can properly do that. It would be wholly wrong—as well as unfair—to give the registrar this really quite inappropriate role. And that is why I cannot advise your Lordships to accept the noble Lord's amendment.
Lord Mishcon: The Committee will appreciate the validity of much of what the noble Lord the Minister has said, but at the same time it will share some of the anxieties of the noble Lord, Lord Avebury. There is no doubt that this is a terrible power which quite innocently can be used in order, for example, to list individuals as security risks, and to do so quite mistakenly. It is not so much a question of the abuse of the power—although that was a very real point that was made by the Minister—as the fact that somebody has made a mistake and that it can go on being repeated, or continue to be on the record of some perfectly innocent citizen, and nobody will ever see it except the Minister who has had a report made to him by somebody.
I shall content myself with the following observation: if this amendment does not commend itself to the Minister and to the Committee for reasons that I think will become apparent, I would hope, if I may say so on behalf of my noble friends, that between now and the Report stage the Minister could give consideration to some other "safe" person, be it an ombudsman or someone else, who has the power to see whether or not records are erroneous and the Minister is, in fact, correctly carrying out the power given to him under the Bill. It is a very large power; it is a very dangerous power.
Lord Swinfen: If there is some other person who has to look into the question, who is actually going to do it? Is he not also going to have to rely upon the same security forces as produced the first report? If it is a question of national security you cannot get an outside agency to look into it because that would be breaking security. I am wondering who the noble Lord anticipates will do the investigation. Will this other person himself go round and do the investigation?
Lord Mishcon: I wanted to make my reply brief and I am going to try to do that in answer to the intervention. The situation is difficult. One does not know whether it will be some person with judicial authority who will have the power to investigate generally and to see, for example, how reliable is the information which is being given in order for certain
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classifications to be made. I appreciate that it may have to be a general investigation and not a particular one in all cases, but at least one would know that there was some periodical review of procedure so that the procedure looks as though it is right and safe.
Lord Avebury: I was not even going so far as the noble Lord, Lord Mishcon. I was not demanding that some other person should have the right periodically to scrutinise these records; but I was simply asking that when the Minister signed the certificate which is mentioned in Clause 27(2), he should at least notify the registrar that he proposes to do so and that the registrar, who would have a suitably qualified person on his staff, would give any advice within his power. It was part of my submission that, as the Lindop Committee recommended, the registrar must have a person with the highest possible security classification as a member of his staff to perform these duties, as indeed the Minister reminded us is the case in other countries. However I shall not press that.
I merely ask the Minister between now and the Report stage whether he would be good enough to deal with the point that I made, which is that the certificate which the Minister signs may be lodged within the department and not with the registrar, and therefore no other person besides the Minister and presumably those who gave him the advice that this particular data should be dealt with under Clause 27(1) will even be aware that the exemption has taken place. It was that danger with which I sought to deal in my amendment and which, in the absence of an amendment of this kind, could mean that very large blocks of data were excluded from any consideration whatever by the registrar or supervision of other kinds under Part II of this Bill.
As I said, although there is no suspicion in my mind that anything irregular would happen—not just under the noble Lord, Lord Elton, when he is a member of the Cabinet but under any of his colleagues—I thought it was necessary to take precautions against irregularities being committed by some future Government which would be of a less enlightened complexion than the present one.
Lord Elton: I am relieved to find that in his secret heart of hearts the noble Lord, Lord Avebury, regards this as an enlightened Government, because much of his correspondence has suggested the contrary. I can answer one specific point and one general point. On the specific point, the noble Lord is right—the certificates would not be lodged with the registrar. Certificates would be held by the Minister and produced where necessary to provide evidence that the exemption is required for the purpose of safeguarding national security. That is the general practice where certificates of this sort are concerned. So the noble Lord is right in that.
I am reluctant to give a very convincing undertaking at this stage because we have gone such a long way since the last time the Bill was before us to meet the anxiety of noble Lords that this power should not be misused. Having said that, of course we always take very careful note of what is said.
The noble Lord has addressed himself to a precise and I think probably marginally new area of

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concern—at least, he expressed it differently—and I shall certainly take it away, although I do not wish to hearten him with any indication of what I shall do thereafter. But it will be very carefully considered.
Lord Avebury: I certainly do not want to delay your Lordships when there are so many more important amendments to consider later on. Perhaps I may ask the noble Lord, Lord Elton, whether the certificates, which he has explained are maintained within the department, presumably in the Secretary of State's office, will be accessible to any scrutiny whatever, or whether they will only be wheeled out, as I put it, in a case where someone has sought to access the data and it is discovered that it is covered by a certificate under Clause 27(2). Will it only be when somebody asks for forbidden data that the existence of the certificate is discovered, or will there be a list which the registrar or the public may access in the department?
Lord Elton: No, they will not be available for display; but they will be produced as individually required.
Lord Avebury: I should like to give the matter some further thought and perhaps discuss this again on Report. In the meanwhile. I am grateful to the noble Lord for the information and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27 agreed to.
Clause 28 [Crime, taxation and immigration control]:
4.45 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 38:
Page 21, line 24, at end insert ("or").
The noble and learned Lord said: We now come to the most criticised, universally condemned provision in the Bill, namely, Clause 28. On this occasion and in Amendments Nos. 38 and 39 we seek to delete the part of the clause, and indeed of the Bill, which has come under most attack. As noble Lords will see, the clause provides that:
"Personal data held for any of the following purposes.…
(d) the control of immigration"—
a very wide concept indeed, greatly lacking in particularity—
"are exempt from the subject access 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".
They are listed:

"(a)the prevention of detection of crime;

(b) the apprehension or prosecution of offenders;

(c)the assessment or collection of any tax or duty; or

(d)the control of immigration".

Under the umbrella of these provisions highly confidential and sensitive information could be secretly disclosed to the police, the immigration authorities and others without any indication on the data protection register that anything of the kind was even possible, and of course with no knowledge of what was taking place communicated to the person affected.
We have many objections of substance to this proposal. I can put the matter briefly because we have, to some extent, traversed this ground before. My first objection and that of noble Lords in many parts of the Committee will be that the provision runs contrary to the European convention. That convention simply does not permit derogation from its terms for the benefit of immigration control. There is no reference whatever to immigration control in the convention, and in my submission to endeavour to justify it under Article 9 has no foundation whatever.
Article 9 provides that:
"No exception to the provisions of Articles 5, 6 and 8"—
which provide the safeguards for the data subject—
"of this Convention shall be allowed except within the limits defined in this article. Derogation from the provisions of those articles shall be allowed when such derogation is provided for by the law of the party and constitutes a necessary' measure in a democratic society in the interests of:

(a) protecting state security, public safety, the monetary interests of the state or the suppression of criminal offences; and

(b) protecting the data subjects or the rights and freedoms of others".

The whole purpose of this convention and this machinery, as its terms show, was to extend the safeguards for everyone's rights and fundamental freedoms, and in particular the right to respect for privacy taking account of the increasing flow across frontiers of personal data undergoing automatic processing. Therefore, it is not surprising that the provisions for exceptions should be so carefully restricted.
In our submission, it is an abuse of language to suggest that this reservation of the control of immigration is for the saving of the rights and freedoms of others. On the contrary, it would, or could, impinge upon, and we submit infringe, the rights and freedoms of individuals and in particular the rights and freedoms of those who have come to live among us, who will be the particular objects and subjects of this provision regarding immigration.
It is, we submit, quite grotesque to suggest that restricting subject access to information held by immigration control outside the area of crime is justifiable. When matters of a criminal quality arise we already have included in Clause 28(1)(a):
"the prevention or detection of crime"
Therefore, it cannot fairly and honestly be said that this has to do with matters of prevention or detection of crime. One is forced to ask: what is the purpose of this provision of control of immigration being made the subject of exemption from the protective provisions of this Bill?
As I have said, we think that we shall be in grave danger, putting it moderately, of our being found to be in breach of the convention, thereby undermining the whole purpose of this exercise, which is to ensure that the terms of the convention are adequately and honestly provided for in our legislation. If we fail in that, the benefits we hope to derive from it for our own subjects and, above all, for those involved in the international, commercial, banking, insurance and other fields will be denied. We therefore, putting it briefly, submit that this provision is in danger of being oppressive, deeply worrying to the immigrant

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community living among us, and one which is in grave danger of infringing the provisions of the convention, therefore making our adhesion to it unacceptable.
4.52 p.m.
Lord Donaldson of Kingsbridge: Unlike most other noble Lords in the Committee I do not think that I have spoken on this clause before. I think everybody else has. However, the noble and learned Lord has said enough for me to be brief. From these Benches, and I think from all parts of the Committee, we are ashamed of the fact that this will almost certainly fail to satisfy the convention. We have had too many cases in the past where this has happened. We feel that it is important not to expose ourselves again, particularly in such a disagreeable way.
When the noble Lord, Lord Hatch, was discussing this. I think at Second Reading, he said that this was an insult to the black and immigrant population in this country. The noble Lord, Lord Elton, seized on the only possible excuse he could make, which was that the other day there was a Bulgarian who appeared in the newspapers in the same way. I shall not stretch this. The fact that one man is a dark but not coloured immigrant is nothing whatever to do with the argument.
The argument is absolutely clear. Of course this applies to all immigrants of whatever nationality, colour, or anything else, but the fact remains that of those immigrants I cannot give a figure but over 90 per cent, must be from the Caribbean, Africa, India, or South-East Asia and not from Europe. The noble Lord knows this perfectly well. I rub it in because I thought his was a rather feeble reply, and I do not think that he has a better one.
There is not any doubt that this is not—at least in my opinion—a Government intention secretly to annoy the immigrants. It is a purely bureaucratic attempt to avoid possible trouble in one or two rare instances. The instances that the Home Office have given of what possible use you could make of this exemption in relation to immigration to an action which was not criminal are too feeble to go into. They are unusual, unlikely to happen, and extremely unimportant if they do.
I do not think we want to go over the arguments again and again. They are simple. We believe this to be an unnecessary and, in its results, more or less disastrous contribution to the social life of this country, which is now a mixed community, and proud to be so. We have to be careful how we treat people who have not been here and were not bred here all their lives, and who are beginning in different parts of England to settle down extremely well, and in one or two parts are not settling down so well. This is extremely dangerous and entirely unnecessary. I am happy to support the noble and learned Lord.
Lord Hatch of Lusby: There are three points I should like to make to the noble Lord the Minister. He will remember that on Second Reading he made a statement contradicting an instance which I had given earlier. In that statement—and I do not think I am doing him an injustice in telescoping it—the burden of
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the statement was contained in these words:
"it does not abolish or diminish any shred of existing civil rights available to our citizens".—[Official Report. 5/7/1983: col. 543.]
I had already pointed out that in the present circumstances an immigrant who is asked for medical data for the purpose of immigration control is given a form which he signs so that the DHSS can obtain the information and pass it on to the Home Office. The question that I want to put to the noble Lord—he did not allow me to intervene in his speech, you will recall—is this. Is it not the case that this clause takes away from an immigrant the right to know that data concerning him, or her, is being obtained by the Home Office?
Is it not the case, as I pointed out in my Second Reading speech, that under this clause it is perfectly possible, and will happen, that medical data passed on by the the doctor in perfectly good faith to the computer, which the doctor does not control and does not own, can then be obtained by the Home Office without the knowledge of either the doctor or the patient? It is for this reason that the British Medical Association itself has expressed its concern. That is the second point I want to make, which naturally leads on from the first.
The BMA has informed me that according to its handbook of medical ethics it is stated:
"In all medical records information should be regarded as held for the specific purpose of the continuing care of the patient, and should not be used without appropriate authorisation by the responsible clinician, or the consent of the patient, for any other purpose".
Naturally the BMA and its members are deeply concerned that this clause can breach this first principle of medical ethics of the relationship between the doctor and the patient, and in many cases without the knowledge of either doctor or patient. Is this not, to return to my first point, a diminution of the existing rights of the immigrant population?
Thirdly, my noble and learned friend Lord Elwyn-Jones has stressed the importance of what we consider to be, and what many lawyers consider to be, a breach in the European Data Protection Convention, and he has quoted it. I would add to that that, to the best of my knowledge, no other European country has legislation which, for the purpose of immigration control, exempts the protection of individual privacy so far as computer data are concerned. Why is it necessary in this country? I would suggest that if it is not necessary in the rest of Europe, it would be wise for the Government to consider whether they should continue to thrust forward what, as my noble and learned friend Lord Elwyn-Jones has already pointed out, has been seen as a highly objectionable clause on all sides by those who have considered this issue since we started debating it early this year.
Lastly. I make an urgent and desperate plea to the Minister that as the issue of immigration control is not in any way connected with crime, with breach of the law or with fraud, he could tell the Committee this afternoon that he will reconsider this question between now and Report stage, and particularly consider whether he cannot remove this objectionable, insulting linking of the purposes of immigration control with criminal and fraudulent activities. If he thinks it is essential still to have some form of immigration control within the Bill then he should separate if from

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these, have a clearer definition of it and remove the objectionable aspect. Not only Members of your Lordships' House but members of many other organisations—who frequently support his own party—have found it just as objectionable as we have.
Otherwise it would seem as though the Government consider that there is a special kind of morality which is peculiar to immigrants. They do not have to break the law or be guilty of fraud, but they may do things that the Government do not like or which the Government do not think are right, but which the Government have covered here in a dangerously wide and loose phrase which can only bring pain and insecurity and, from these Benches, anger if they are persisted with.
Lord Swinfen: I do not think the noble Lord, Lord Hatch of Lusby, was in the Chamber when this Bill was before your Lordships previously when I asked the Minister whether each Ministry would have to register separately. I was told that they would and that computers were not all registered as one under one system by the Government.
On Tuesday of this week we were told, in answer to a question of mine, that if computers were interlinked in any way, that linkage would also have to be registered. I think, therefore, that the noble Lord will find that the Home Office is unable to ask its computers about details of medical records of immigrants or anyone else because it would have to have permission to ask the Department of Health and Social Security. If the two computers were connected that would be public knowledge because they would have to be registered.
Lord Avebury: To make one remark on the words of the noble Lord, Lord Swinfen, it is not necessary for computers to be linked for information to be transferred from one to another. It can be done by other means, as the noble Lord, Lord Swinfen, will be aware. We are talking here about the subject access provisions. We shall come on to the subject of transfer of data from one system to another when we discuss Clause 28(2). The noble and learned Lord, Lord Elwyn-Jones, has already said most eloquently everything that needs to be said about subject access. I need add very little to the remarks that he made because I am sure the Committee would like to reach a decision. It is about the fourth time that we have discussed the matter and it is unlikely that at this late stage I could produce any new points that the Minister has not yet considered.
I rose to my feet to give the noble and learned Lord my support and to say that when on the last amendment I was talking about the possibility that a less enlightened regime might at some future date take office, I can hardly imagine that, whatever its nature would be, it could pass a measure that was more horrific in its possible consequences than Clause 28. Therefore, I entirely support what the noble and learned Lord has said. I hope that your Lordships will take action to see that this provision is struck out of the Bill.
5.6 p.m.
Lord Elton: Although as the noble Lord, Lord Avebury, has made abundantly clear this is a very
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familiar issue, I have listened with the greatest of interest to the arguments put forward by noble Lords on matters that are both very complex and, I readily concede, highly sensitive.
Your Lordships will be aware from lengthy exchanges on this subject when we dealt with it under the earlier Bill of why computer records are a necessary part of immigration control. The immigration officials handle a very large flow of individuals through our entry ports. They also deal with a considerable number of applications from foreign nationals for an extension of stay and other matters. Ready access to records is clearly essential for this purpose and the need to call them up swiftly, efficiently and economically makes a computer a necessary instrument.
Most of this information is purely factual and routine. It will be of little but administrative interest, and it will be freely accessible to the data subject in the normal way. But some of it will be very different in character. It may relate, for instance, to smuggling or other criminal activities. Nobody in this House would want those activities to go unhindered. That is why the Bill carries exemptions for the apprehension and prosecution of offenders from both the subject access and the non-disclosure provisions. Their Lordships' amendment is not concerned with those. A very few computer entries include Revenue matters; a history, perhaps, of tax evasion. Those are similarly and properly exempted and, similarly, the amendment leaves the exemptions intact.
Between the very large number of entries that are perfectly uninteresting and routine and the much smaller number of which the criminal or fiscal content carries exemption, lies a third category, also a small one, upon which the present amendment bears. That category is made up of entries which contain information about the data subject which does not relate to the prevention or detection of crime, to the apprehension and prosecution of offenders or to the assessment or collection of any tax or duty, but which reveals that the person in question is not, or may not be, qualified to enter or remain here under the immigration rules. That category also carries exemption under the Bill and it is that exemption which the amendment seeks to remove.
No one looking at the size of these islands, and at the number of people who at present live somewhere else but who would like to live here, can doubt that control of immigration is not only desirable but essential. Our discussion is not about that. It is about how it should be done. At this stage I must ask your Lordships to consider immigration officials not only as keepers of the gates of this country, admitting those with a right to come here and remain, and turning others away; we have to see them also as the guardians of the principles of nationality and right to reside. Their duty is to discover those who have entered this country and settled here without the right to do so—stowaways in the ship of state. It is the success of both sorts of official activity together that serves not only to detect those who breach the regulations but also to deter attempts to do so by large numbers of others.
That deterrence is an essential part of the means by which the state protects its individual citizens from the encroachment upon their rights and freedoms that an

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ineffectively controlled flow of immigrants would undoubtedly produce. It is for this purpose that the Bill makes exemptions. The first is exemption from subject access by people concerned with illegal entry or residence in this country to personal data held by the authorities which would reveal to them the extent to which the authorities were aware of them and of the means of identifying them. The second is exemption from the non-disclosure provisions, so that people holding data necessary either for the officials I have called "the gate-keepers" or for those I called "the guardians" are free to pass it to them if they so wish.
At that point, may I remind the noble Lord, Lord Hatch, that there are no rights at present about the use of information; there are only certain voluntarily observed administrative arrangements by the Department of Health and Social Security, doctors, or whoever holds the information. The exemption in the Bill allows those arrangements to continue just as they do now, and I can assure the noble Lord that the Home Office will certainly continue to obtain the written consent of the person concerned before medical information is sought from his doctor.
The number of individual cases altogether will not be large but the public interest at stake is very large indeed. When I last addressed your Lordships on an amendment to the same effect, your Lordships made it clear that they well understood the reasons of Her Majesty's Government for making these exemptions. They did so on the basis of the arguments I put before your Lordships today, supported by others in more detail that I have not advanced. I hope that your Lordships will not forget that this issue was decided once before.
I have outlined the central arguments against the amendment and I have explained the case for the exemptions and why we believe they contribute to the protection of the rights and freedoms of our individual citizens. Without elaborating further on that side of the equation, let us look at the other. As I have said, I have listened to it with care. Many individual points have been made, some perhaps with a good deal of hidden complexity; but the overall impression I have got is of a deep anxiety that powers are being taken in the Bill which, though they may be little used, give a great many of our own citizens a feeling that records about them are being secretly kept, perhaps to their detriment, and that information about them is being secretly sought, perhaps to their very great harm. Noble Lords have been at pains to suggest that the whole weight of this anxiety and this part of the Bill is directed against black and coloured people. They have said that they would thus feel themselves to be discriminated against by the very state which, in another statute, declares such discrimination to be totally unacceptable.
I believe those fears to be entirely misplaced. The regulations, and therefore the exemptions, bear equally upon those who come to us from every corner of the globe and they bear also, incidentally, upon whites as well as blacks who may be involved in immigration rackets. But be that as it may, we recognise the anxiety expressed by noble Lords and we recognise that, ill-founded though it is, it may be reflected and shared (as the noble and learned Lord.
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Lord Elwyn-Jones, has suggested) in important parts of our own community outside this Chamber. That, as the noble Lord, Lord Donaldson, has said, is a matter of the gravest importance. I do not wish, therefore, to sweep aside everything that has been said in favour of this amendment, even though some of it has been very wide of the mark. We would rather take time to reflect further on everything that has been said on this issue by your Lordships and to consider, as we have been asked to do, whether this anxiety can be in some way allayed. I very much hope therefore that noble Lords opposite will forbear to press their amendment to a Division this afternoon.
Lord Donaldson of Kingsbridge: Before the noble Lord sits down, may I ask him to clarify one point? He said that, although there were a number of aspects which did not involve breaking the law, it was important for the immigration authorities to know them. I do not know what they would be. But if they do not break the law why should they not say so? Why must they conceal from the data subject that they want to know whether he had an aunt in Timbuktu or somewhere? To me, the noble Lord has made no case at all and I think that before we finally vote, whether now or on Report, we must have an explanation. It really has no meaning whatever. If the immigration authorities think that somebody may be trying to get here, or approach his cousin, or something of that sort, surely if it is not illegal they can say, "We are trying to find out because we thought you wanted to approach your cousin". I cannot understand it at all.
5.16 p.m.
Lord Hatch of Lusby: Can I perhaps save the noble Lord from getting up twice by adding to this before he sits down? Can he clarify absolutely crystal clearly whether I heard him aright when he said that the Home Office, before asking for medical information for the purpose of immigration control, would ask the permission of the doctor? Secondly, would he address himself for a moment to the question I asked him as to why it is necessary for the United Kingdom to include this exemption under the term of immigration control, when no other European country does so?
Lord Elton: I think the issue to which the noble Lord, Lord Donaldson, directed your Lordships' attention was the issue that criminal information was already covered by exemptions and that non-criminal information must be so innocuous that there is no harm in revealing to the person to whom it related that it was being sought. In fact, as I understand it, the regulations applying to those who are and who are not entitled to live in this country are complex and are not entirely a part of the criminal law. There are occasions when people in this country seek to foster the introduction or the concealment in this country of people not entitled to be here. It is not in the interests of controlling such activities to reveal at the outset of an inquiry that this information is being sought.
If the requirements were a part of the criminal law, the noble Lord would have no difficulty in following the argument, if he will forgive me. The fact that they are not does not make them any less important for the regulation of the people who come to live in this

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country and who are not entitled so to do. I suppose it would be possible to make them criminally enforceable. I do not put that forward as Government policy because it would be a draconian measure; all I am saying is that where immigration officials need to seek out operations—where there are spurious language schools, for instance—it does not make a lot of sense to announce the beginning of the inquiry by a loud knock on the door and to say, "We are asking questions about you".
As to the noble Lord, Lord Hatch, I can indeed repeat what I said: the Home Office will certainly continue to obtain the written consent of the person concerned before medical information is sought from his doctor. As to why other countries do not have exactly similar legislation, I can only say that they do not have exactly similar circumstances to cope with.
Having said all that, may I remind your Lordships that we are aware of the general anxiety which lies behind this amendment. We have taken serious note of it, afresh, as a result of your Lordships' concern. Your Lordships' earlier concern may have done something to heighten that anxiety; I know not. But we see this as a real issue. It would be quite wrong—and I hope that your Lordships will not put me in the position of having to do this—to try to slam the door on consideration of this by marching firmly into the Lobbies against it. But if that is what noble Lords opposite want us to do, then I shall have to advise my noble friends so to do. I think it would be wise that I should take this to my right honourable friend; that we should consider developments in this now familiar but no less sensitive and important field in the spirit we have been asked to do; and that is what I hope noble Lords opposite will decide.
Lord Mishcon: I am perfectly sure that the Committee will have heard with a great degree of pleasure and, if I may say so, with quite a degree of admiration what the noble Lord the Minister has said. I know he will have in mind that not only is this introduction of immigration control causing a great deal of concern, but it is a new measure in this Bill in the sense that when the Government's White Paper came out and the question of exemptions was thought of in regard to subject access and non-disclosure, immigration control was not mentioned at all. It is significant that that should be so, and that the White Paper went on to say, so far as I remember, that the exceptions to the rule must be made as small and as few as possible.
I wonder whether the noble Lord the Minister will bear with me for a moment, if I take the liberty on behalf of my noble friends of saying that we welcome what he has said. We are not anxious to have a Division for the sake of a Division. What we are most anxious about, bearing in mind especially that your Lordships will not further consider this Bill until next October at Report stage, is to know where we have got to.
In these circumstances, could the Minister help us by saying whether the further consideration which he will be giving with his right honourable friend will include the possibility of taking this immigration control out of the exemptions that we have been discussing? Obviously, I do not ask him for an undertaking in advance that that will be the result, but
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is he prepared to say that the matter that is being reconsidered will be the total exclusion from this clause, or indeed from any other similar clause, of immigration control records? I repeat that I am not asking him to say what will be the result of that reconsideration, but he would help us tremendously in coming to a decision if he could say that that will be the item that he will be reconsidering with his right honourable friend the Secretary of State.
Lord Elton: I shall be very careful in my reply to that quite understandable intervention, because I do not want in any way to inhibit what now takes place. I have said that we are aware of the anxiety to which the amendment is addressed and that we will seek to alleviate that anxiety, if that appears to us both proper and feasible. By what means that might be, I really could not say; and if I were to answer the noble Lord's question in terms I am afraid it could only be read outside this Chamber as making one solution or another more or less likely.
What I will try to do—and I am sufficiently green in matters of administration not even to be able to undertake it—is to see that our amendment, if there is an amendment, when formulated, goes down sufficiently early for the noble Lord to get together with his friends, because I think we shall be dealing with this very soon after we return. I would hope to give him enough time to consider with his friends before we return whether what we are offering is, in fact, what he is looking for. I have gone on for rather a long time. I hope that I have not been too precise.
Lord Elwyn-Jones: In view of the indication of the noble Lord on behalf of the Government that, at any rate, a fresh look is being given to this most difficult and very serious problem, we shall await impatiently the arrival of the Fall, and we hope it will include the fall of this proposal in the Bill. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 39 not moved.]
Lord Avebury Lord Avebury moved Amendment No. 40:
Page 21. line 31. leave out subsection (2).
The noble Lord said: I listened with great pleasure to what the noble Lord the Minister just said, and I certainly hope that when we come on to the next amendments on Clause 28 he will be able to confirm that what he has said applies equally to the nondisclosure provisions as to the subject access provisions of Clause 28. The amendment that I now move deals with the non-disclosure provisions in general, and not with the immigration aspects in particular; but we come on to the immigration aspects in a later amendment, and, of course, the remarks that I am about to make apply to them as they do to the other parts of Clause 28(2).
It seems to me that there is no point in going to the length of a Bill in establishing the machinery of the registrar for the protection of the data subject, and in particular for the enforcement of Principle No. 3 of Schedule 1, which states that,
"Personal data held for any purpose or purposes shall not be used or disclosed in any manner incompatible with that purpose or those purposes",

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and then, in this subsection, encouraging data users to violate that principle by telling them that, otherwise, certain completely different purposes are going to be prejudiced.
The Minister made it clear on Tuesday that, in the Government's opinion, the data user ought to have an unfettered discretion in this matter. He is not to be required to consider whether any of the matters mentioned in subsection (1) will actually be prejudiced. He is to give no thought whatsoever to the principles that he will apply until, for example, a police officer appears on his doorstep and asks for the data. The Minister said that the only sensible answer to the question of whether or not the user might wish to disclose under Clause 28(2) is, "I really have no way of knowing until the police, or whoever, come along and ask me." So the data user, having played his cards very close to his chest, in accordance with the Minister's advice, is then faced with the need to make an ad hoc decision on the spot.
I shall take the Minister's example, so that we have no unfair advantage in the argument, by constructing another argument which suits our case better. The Minister's example was of the data user who has a burglary at his premises, and the police come along and say to him that if they had a particular employee's address and they knew whether or not he was off work on a particular day, it might be helpful in pinpointing the identity of the burglar. In the case which the noble Lord was citing, failure to disclose was not likely to prejudice the apprehension of offenders. According to the Minister, the police say only that the information might be helpful, although subsection (2) does not read,
"Personal data are exempt from the non-disclosure provisions in any case in which …(b) the disclosure might be helpful for any purpose mentioned in that subsection."
The words used are "likely to prejudice", and they will not be easy for the employer to construe unless, as I said earlier, he takes the word of the officer for it.
Here I think that an interesting question arises, and the noble Lord might help me on this when he comes to reply. What remedy would the data subject have if the employer gave the information to the police officer in that manner, simply on the police officer's unsupported assertion that prejudice was likely to occur in relation to apprehension of offenders? Would he have reasonable grounds for believing that failure to make the disclosure in question would be likely to prejudice any of those matters simply because that was what the officer told him, or should he have taken further steps to satisfy himself that that was so? If he does not have the faintest idea whether or not his failure to disclose would prejudice the apprehension of offenders, is there anybody to whom he can go for advice? Would he be able to ask the registrar? Remember that, if he gets this wrong, he renders himself liable to proceedings for contravening a provision mentioned in Clause 28(3)(a). He will have no defence if the court finds that he did not have reasonable grounds for believing that failure to disclose would prejudice any of those matters. This is a complicated legal question which I should not like to be faced with as an employer, or as any other data user.
There is another question which a data user has to approach. It was the Minister who pointed it out. Does the public interest override the obligation of confidence? How on earth is the data user to make up his mind on that? If his policy is to disclose whenever he is requested to do so by a police officer, or an inspector of taxes, or an immigration officer, relying on their assertion that failure to do so would prejudice any of those matters, he runs the risk, I suggest to your Lordships, that the whole edifice of the Bill may be fatally undermined, because there would then be large-scale disclosure for all of the purposes mentioned in Clause 28. That would result, I suggest, in an evaporation of public confidence in the security of data throughout the whole of commerce and industry, and indeed in the public sector as well.
If, on the other hand, he decides that he is never going to disclose under Clause 28(2), would equally serious consequences follow? I understand that the Citizens' Advice Bureaux, for instance, have declared that they would not seek to rely on the protection of Clause 28(2). No doubt they will make this clear when they give particulars to the registrar. Although the Government were not enthusiastic about my earlier amendment, which would have required data users to say whether and, if so, in what circumstances they would disclose for each of the purposes mentioned in Clause 28(1), there is nothing, as I understand it—perhaps the Minister will correct me if I am wrong—to prevent a data user from voluntarily making such a declaration to the registrar.
I think that many, such as the National Association of Citizens' Advice Bureaux, would like to take advantage of that in order to reassure their clients. Inspectors of taxes may want to reassert the absolute confidentiality of taxpayers' affairs, except as already provided by statute, and to assist the police in the rare cases of murder and treason. For the rest, the Government are imposing on data users under this section the duty of making judgments which they cannot reasonably be expected to make and which they are ill-equipped to carry out.
So far as Government departments, which are data users also, are concerned, this subsection is inevitably going to deal a very heavy blow to public confidence. In spite of the noble Lord's undertaking that in the case of medical records the permission of the patient would always be sought before the records are accessed, that is only one small part of the anxiety which may be caused to the public if this subsection is not substantially altered. I beg to move.
5.34 p.m.
Lord Elystan-Morgan: I wonder whether the Committee would be so kind as to allow me to speak not only to this amendment but also to Amendment No. 41. The view that we take is that Amendment No. 41 seeks to bring about exactly the same result as that which is enshrined in the purpose of Amendment No. 40. The effect of Amendment No. 40, if carried, would be to delete completely the provisions of subsection (2) of Clause 28. It would still mean of course that although no reference was made in that part of the Bill to those conditions, disclosure would still be possible under compulsion of law. That is the very wording of Amendment No. 41.

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In the submission of those of us who sit on these Benches, the provisions of subsection (2) are quite as objectionable as the provisions of subsection (1). Subsection (1) deals with the right of a data subject. Subsection (2) deals with the authority of a data user to communicate some very volatile information to a third party who may be very hostile to the interests of the data subject—as, indeed, the noble Lord, Lord Avebury, has so clearly pointed out.
The area which this particular subsection covers is about as sensitive an area as one could ever have in our society. It is impossible, of course, to list the number of people or, indeed, the types of groups that would be prejudicially affected by this provision if it were allowed to go through unamended. Nevertheless, one can say that it is likely that the doctor-patient relationship will be more affected by this provision than possibly any provision that has ever been passed in any other Act of Parliament. It does not of course legislate to the effect that a doctor must disclose. What it says is that he can disclose. In our submission, it means in many cases that there will be active encouragement to disclose: that a climate will have been created in which it is more likely that disclosure will take place rather than less likely. Nevertheless, what is important is that whereas now millions of confidences are passed to doctors, in the confident knowledge and belief that they will never on any account be passed to anybody else, that confidence can no longer subsist once this provision becomes law.
It is therefore not unnatural that there has been very heavy objection to this provision. My noble and learned friend Lord Elwyn-Jones referred to it on a previous occasion. He spoke of the memorandum which was sent by Sir Norman Lindop's Committee to the Home Office on this matter. The phrase used was this—and this is not the phrase of people who are involved with this legislation in any political partisan way: it is the phrase of people who were involved with the Second Royal Commission Report on this particular matter:
"that it would be a palpable fraud upon the public if this subsection were allowed to become law".
Even stronger were the representations of Sir Douglas Black, the President of the Royal College of Physicians, in a letter which was sent to the Home Secretary in or about March of this year. He was speaking on behalf of a group of associations which included the British Medical Association, the British Association of Social Workers, the British Dental Association, the British Psychological Society, the Council for Professions Supplementary to Medicine, the Health Visitors' Association, the Royal College of Midwives and the Royal College of Nursing. These are the measured terms of Sir Douglas Black's letter:
"The group has asked me to express to you as a matter of urgency their grave concern about the effect of Clause 28(2) of the Bill on the confidentiality of health information and on public confidence in that confidentiality".
I do not think there is anything which anybody in this Committee, with great respect, could say which could possibly add to that very sincere expression of fear on the part of those most distinguished bodies associated with medicine.
As I say, the wording of Amendment No. 41 does not add anything, in effect, to the amendment which
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the Committee is now considering. Amendment No. 40. But it does perhaps spell out what the situation would be if subsection (2) were to be deleted completely. The compulsions of law would still remain. It would still be possible for this information to be ordered to be disclosed—for example, by a court making an order under the Bankers' Books Evidence Act or, indeed, by an order made by a court in respect of powers that are enshrined in very many of our fiscal Acts: in Acts relating to import duties and control. All those powers would still remain, as would the general power to issue a subpoena.
The compulsions of law in this realm are very considerable. It is our argument that they are sufficient. By the deletion of this subsection, one avoids driving what would otherwise be a massive salient into the whole structure of this legislation.
Lord Elton:I must begin with an apology because I am going to repeat myself. I explained the need for the exemption in Clause 28(2), and sought to dispel some of the misapprehensions about it, at some length in our Committee consideration of last Session's Bill. I did so again on Report, and I did so once more at Second Reading of the present Bill. I now find myself required to do so yet again. I do not believe that arguments gain strength from constant repetition. At least, that certainly goes for other people's arguments and therefore I accept that it must go for mine as well. But I have no choice, because noble Lords opposite have trod the same measure again and I must join in.
We have before us not one amendment but two. As the noble Lord, Lord Elystan-Morgan, has said, their effects are identical even if they differ in tone, and I must refer to both. Both discard from the Bill the general exemption of personal data from the nondisclosure rules for particular purposes. The amendment in the name of the noble Lord, Lord Avebury, and his ally does so with no gesture of apology for all the difficulties which would then arise, or for all the purposes which would no longer be served. The amendment in the names of the noble and learned Lord, Lord Elwyn-Jones, and his friends makes such a gesture. But as the noble Lord, Lord Elystan-Morgan, has pointed out, because of the operation of Clause 33(4) it is not so much an apology as a tautology.
The exemptions with which both amendments concern themselves are all those relating to the purposes of Clause 28(1). We are not now considering the particular merits of law enforcement, taxation or immigration control; we are discussing the general principle that there are certain ways in which the state protects the public interest which ought not to be obstructed by introducing a brand new prohibition against citizens willing to assist its agents in their duty. The movers of these amendments want to introduce what is in effect a brand new prohibition. Those who at present innocently hold information which, in the hands of Customs and Excise, could lead to the smashing of an infamous gang of heroin importers are at present at perfect liberty to give that information to the authorities. They can do so without let or hindrance; and they can do so without informing those to whom the information relates either that they are doing so or that they may do so in the future.

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To my mind, that is as it should be. If a wholesaler of goods innocently holds information which could lead to the exposure of evasion of duty by the importers of those goods, he is at liberty, as the law now stands, to pass on that information. The same goes for us all. If a crime has been committed or a law evaded we are perfectly free to help put the matter right; whether we are giving the police information to test an alibi, or giving the Inland Revenue, Customs and Excise or immigration officials the jigsaw pieces they need to help them enforce the laws which we in Parliament have enacted for the greater good of the people. We are free to do so without preliminary notice and without advertisement. We are free also not to do so. That applies to all the information we have—whether it is in our heads, in our diaries, or in our filing cabinets—except in those cases where already the law tells us we must give the information.
The only difference now is that such information may not be in our heads, our diaries or our filing cabinets but may be on our computers. Once there, noble Lords who have spoken say it should be sacrosanct; that the computer should be to the user as the confessional is to the sinner—a safe repository of the most damning as well as the most trivial confidence. They say that only if such people are publicly warned that their fellow citizens may help to apprehend them with a vital clue to the identity of the fraudster who has cheated the Inland Revenue of millions or even hundreds of pounds, of the rapist who has ruined a dozen fives, or of the drug smuggler who has brought thousands in misery to their deaths, will they be at risk of justice and detection.
The same applies to the routine as it does to the exceptional. Information of assistance in investigating a burglary, a road traffic accident or a mugging consisting of no more perhaps than an address, a work record or physical description is equally important to the law enforcement agencies—yet would be equally impeded under the amendments.
Let me say again—as I hope I have made clear before—that there is no question of Clause 28(2) empowering the police or anyone else to require information. I am grateful to noble Lords who now accept this, but there is still such a belief in some quarters—encouraged perhaps by some of the more extravagant claims made at an earlier stage (and not only in your Lordships' House) that, under Clause 28(2), data users are compelled to disclose data.
Lord Avebury: Who said that?
Lord Elton: I always find it charming when the noble Lord, Lord Avebury, makes himself heard above my voice when he is seated. He will forgive me if I do not respond.
Lord Avebury: I wonder whether the noble Lord can tell us who said it, because nobody in this Committee has ever made such a claim.
Lord Elton: The reactions of people and comments which the noble Lord himself has made suggested that this must be the case, because otherwise there is no explanation of them. But it is a belief that has been
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more generally current among many people outside this Committee.
Lord Avebury: That is something quite different.
Lord Elton: I shall be obliged if the noble Lord will let me get on, or else stop me.
Nothing of the sort is the case. Clause 28(2) is 100 per cent, neutral. There is neither encouragement nor legitimisation of such disclosures. Some professional bodies with ethical codes of confidentiality do now recognise, as they have always recognised, that in certain circumstances the public interest will outweigh the obligation of confidence and that information can be given. It is so with Clause 28(2). In the same way, it acknowledges that holders of information can, if they themselves judge it right and proper so to do (and it is a decision entirely for them), disclose data where the interests of crime prevention, and so on, outweigh those of confidentiality. And they can refuse to do so when they do not.
To enable that to happen, the prohibitions on unregistered disclosures which the Bill erects elsewhere will not apply here, as the Bill is now drafted. That leaves the balance of consideration by the burgled data user, or the data user in any other way involved, exactly where it stands at present. It may be difficult for him to decide what to do, but it will be no more difficult than at present. I am really puzzled by the assertion made by the noble Lord, Lord Elystan-Morgan, that this will undermine confidence in the medical profession. They are free under the law to reveal all now; they are free under the law to reveal nothing now. Exactly the same will be the case if this Bill is passed in its present form.
My sorrow is that we have failed to get that across to all the bodies which noble Lords have mentioned and to which the noble Lord, Lord Elystan-Morgan, referred a moment ago. That is the central issue to which this amendment is addressed, and I believe that it is mistaken.
Before I sit down, may I say two things to the noble Lord, Lord Avebury? First, I gave an undertaking to the noble Lord, Lord Hatch of Lusby, about inquiries by the Home Office. Inadvertently or otherwise, the noble Lord imputed to me an undertaking that all inquiries about health records will be notified to the data subject. I would not at this notice be able to endorse so wide a policy statement; I have merely told the noble Lord what I am in a position to say.
Secondly, I have a note on the position of the data user in deciding whether or not to disclose information. At the end of the day. the user will be able to use as his defence against a prosecution for unauthorised disclosure the fact that he had reasonable grounds for believing that the disclosure would have been likely to cause prejudice: that is spelt out in Clause 28(2). But the key point is that the user is free to make his own decision, as he does now—but he will of course know that if he decides wrongly he may be open to prosecution. That is surely the kind of disincentive to disclosure which the noble Lord, Lord Avebury, himself would want.
5.50 p.m.
Lord Avebury: If that is all the noble Lord the Minister has to say then I am extremely disappointed.

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He has not answered my direct question at the beginning of my remarks as to whether or not the undertakings he had given the noble and learned Lord, Lord Elwyn-Jones, about subject access provisions also extended to the non-disclosure provisions, because in my opinion they are far more important.
Lord Elton: If the noble Lord will be kind enough to give way, I regret that I mislaid my note on that point. The answer is that indeed they do; the consideration extends to the whole of Clause 28 and therefore to both the subsections the noble Lord is interested in.
Lord Avebury: That is certainly a relief, because it will shorten the discussion on the next amendment when we come to consider the question of nondisclosure as it affects immigration records in particular. But, even so, the noble Lord has really not given any guidance to the data user, he has simply repeated the phraseology we find in the Bill, that the data user must have reasonable grounds for believing that any of the purposes mentioned in subsection (1) are prejudiced if he is to hand over the information.
The noble Lord did not answer the question I put, which is really of great importance for the mass of data users who will have to try to interpret this Bill: that is, whether when an individual police officer, customs officer, tax inspector or immigration officer comes to him and he makes the unsupported assertion that the purposes in question are going to be prejudiced, that will be a sufficient defence when the data user finds himself in court for a breach of confidentiality. If this is the way "reasonable grounds" are to be interpreted it makes the Bill quite simple from the point of view of the data user, but it could encourage such a mass of disclosures as to undermine public confidence in the Bill. That is why I asked the question and it is a very important one.
The second reason for my disappointment with the Minister's answer is that the examples he gave were all drawn from the private sector, whereas the anxiety felt in the minds of the public about the exemptions from non-disclosure provisions relate almost entirely to what may happen in the public sector, to the exchanges the noble Lord, Lord Swinfen, was talking about earlier between one Government Department and another, and whether or not, because of the permissive character of Clause 28(2), these are going to be widened beyond what is the practice at present. I have already mentioned what the Inland Revenue do, but there is a general principle operating here, which was outlined in the report of the Royal Commission on Standards of Conduct in Public Life, paragraph 94:
"A substantial conflict of public policy is involved in any proposal that information collected under compulsion by an official agency for a specific purpose should be released to any other agency for a different purpose. Although there are some exceptions, the philosophy behind most legislation for at least 50 years has been that when the State takes power to require an individual or firm to surrender a degree of personal or business privacy it gives in return an assurance that the information thus coming into the hands of an official agency will be safeguarded and used for no extraneous purpose. We are aware that there is public anxiety about the transfer of personal information between official agencies and modern methods of data storage have sharpened this anxiety".
That is the crux of the matter: whether or not the information contained in one department is going to be transferred to another under Clause 28(2) without
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the knowledge of the data subject and without any remedy being available to him.
Equally, there is the lesser case, which the noble Lord concentrated on, where the private sector data user is asked for information, generally not in the dramatic circumstances the noble Lord outlined where there is some mass conspiracy to smuggle heroin, but when some far lesser problem has arisen in connection with the apprehension of offenders, detection of crime and so on. It is in these smaller cases of a day-to-day nature, thefts and burglaries and so on, which are infinitely more common than the sort of serious crimes the noble Lord mentioned, that the data user will have an impossible task. This is why I believe subsection (2) of Clause 28 as it stands is unworkable and will bring the Bill into disrepute. If the noble Lord is not prepared to accept this amendment, or even to contemplate any amendment which gives the data user proper guidance, we shall have no alternative but to test the feeling of the Committee.
Lord Elton: I quite understand, but I think when the Committee comes to decide it should do so on the right facts. I must return to the first part of the remarks the noble Lord made, rueing the terrible dilemma which will face a data user when the bobby knocks on the door and wants to know whether Fred was at work last Tuesday. This is no more and no less than the terrible dilemma which now faces him if the records are manual; he still has to decide whether the bobby is legitimately after facts or whether he is being misled. He has to rely on his own judgment now and he will have to rely on his own judgment in the future.
It is fair enough to say that this Bill does nothing to resolve that time-honoured dilemma, which has faced people asked to assist the authorities in their inquiries since the authorities started asking them to do so. It may be that legislation for that is overdue; I rather doubt it, but it might be. But that is not what the noble Lord is suggesting; he is suggesting that because of this Bill there is a new difficulty. The only difference is that the information, as I said earlier in my perhaps over-lengthy speech, is not on paper or in a head or in a filing cabinet but on a floppy disc, and it will say whether Fred was there or not. If the noble Lord really thinks that a reason for not assisting the authorities in pursuit of even minor crimes, let alone rape, murder, drug smuggling and so on—I am prepared to leave those on one side because the argument so obviously does not need to be stated—is that people ought not to help the authorities without first telling Fred that they are going to help the authorities, and giving Fred a chance to do a flit, then I think the noble Lord is just wrong-headed and I hope we do divide and we defeat the amendment.
Lord Avebury: If the noble Lord will allow me, the difference is that when the data is on a floppy disc instead of in manual records a wrong decision by a data user renders him liable to proceedings for contravening the provision in Clause 26(3)(a). If it was in a manual form he would not be liable to proceedings. That is the difference which the noble Lord has ignored between the manual and the computer records. But in his second speech he has again ignored the major question of the public sector

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user, which is the question uppermost in my mind. The noble Lord has said nothing to make me change my view of these provisions.
Lord Donaldson of Kingsbridge: As a co-signatory to the amendment, I would prefer not to divide the Committee on this but to consider what the noble Lord has said, because it seems to me that the fact that the liability is exactly the same now as it was before the Bill is a relevant argument. I am not entirely happy. I hope my noble friend will withdraw the amendment and look at it again for Report, because it has been a long and difficult argument and it is rather a complicated situation.
Lord Avebury: Of course, I am perfectly happy to defer to the advice given by my noble friend, so particularly since I do not feel we have reached a satisfactory conclusion on this.
Lord Elton: May I just repeat, because the noble Lord invited me to repeat, the fact that the liabilities are exactly the same now; the informant is already under such a threat as there is in the Bill. That is the point the noble Lord, Lord Donaldson, has latched on to, and I would like to say that that is valid. I will not go into the other matters the noble Lord raised.
Lord Avebury: The noble Lord the Minister could have saved himself the trouble, because I was about to say to my noble friend Lord Donaldson that I felt there was weight in his advice; and particularly because I felt that we had not reached a conclusion on this argument, and it would be desirable to return to it on Report, I was going to ask your Lordships' permission to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 41:
Page 21. leave out lines 33 to 42. and insert ("the disclosure is made under compulsion of law.")
The noble Lord said: I have already spoken to the amendment. There is nothing that I wish to add. The arguments are strong but would not be added to by repetition. Therefore. I beg to move.
Lord Elton: I understand that the noble Lord is seeking to divide the Committee and I merely say that I stand by everything that I said.
6 p.m.
On Question, Whether the said amendment (No. 41) shall be agreed to?
Their Lordships divided: Contents, 78; Not-Contents, 92.

DIVISION NO. 1

CONTENTS

Amulree. L.

Boston of Faversham, L.

Ardwick. L.

Briginshaw, L.

Avebury. L.

Brockway, L.

Aylestone. L.

Bruce of Donington. L.

Balogh, L.

Byers, L.

Banks. L.

Cledwyn of Penrhos, L.

Barrington, V.

Collison, L.

Bernstein, L.

David, B. [Teller.]

Beswick. L.

Denington, B.

Birk. B.

Diamond. L.

Bishopston, L.

Donaldson of KJngsbridge. L

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Elwyn-Jones, L.

Mishcon, L.

Elystan-Morgan, L.

Nicol, B.

Ewart-Biggs, B.

Ogmore, L.

Fisher of Rednal, B.

Oran, L.

Gaitskell. B.

Peart, L.

Gallacher, L.

Pitt of Hampstead, L.

Galpern, L.

Ponsonbv of Shulbrede, L.

Gladwyn, L.

[Teller.]

Harris of Greenwich, L.

Prys-Davies, L.

Hatch of Lusby, L.

Rochester, L.

Hirshfield, L.

Ross of Marnock, L.

Houghton of Sowerby, L.

Scanlon, L.

Hughes, L.

Seear, B.

Jacques, L.

Sefton of Garston, L.

Jeger, B.

Serota, B.

Jenkins of Putney, L.

Shackleton, L.

John-Mackie, L.

Shinwell, L.

Kagan, L.

Stewart of Alvechurch, B.

Kaldor, L.

Stewart of Fulham, L.

Kennett, L.

Stone, L.

Kilmarnock. L.

Strabolgi, L.

Kirkhill, L.

Underhill. L.

Leatherland, L.

Wallace of Coslany, L.

Listowel, E.

Walston, L.

Llewelyn-Davies of Hastoe, B.

White, B.

Lovell-Davis, L.

Wigoder. L.

Mackie of Benshie, L.

Winstanley, L.

Mais, L.

Wootton of Abinger, B.

Milner of Leeds, L.

NOT-CONTENTS

Abinger, L.

Kinnaird, L.

Airey of Abingdon, B.

Kitchener, E.

Alexander of Tunis, E.

Lauderdale, E.

Ampthill, L.

Lawrence, L.

Auckland, L.

Long, V.

Avon, E.

Lucas of Chilworth, L.

Bauer, L.

Lyell, L.

Belhaven and Stenton, L.

McFadzean, L.

Bellwin, L.

Mackay of Clashfern, L.

Beloff, L.

Macleod of Borve, B.

Belstead, L.

Mancroft, L.

Brabazon of Tara, L.

Margadale, L.

Caccia, L.

Marley, L.

Campbell of Alloway, L.

Massereene and Ferrard, V.

Campbell of Croy, L.

Merrivale, L.

Cathcart, E.

Molson, L.

Chelwood, L.

Morris, L.

Cockfield, L.

Mottistone, L.

Coleraine, L.

Mowbray and Stourton, L.

Cork and Orrery, E.

Murton of Lindisfame. L.

Craigavon. V.

Newall, L.

Craigmyle, L.

Norfolk, D.

Cromartie, E.

Orkney, E.

Dacre of Glanton. L.

Rankeillour, L.

Daventry. V.

Rawlinson of Ewell, L.

Denham, L. [Teller]

Reay, L.

Drumalbvn, L.

Renton, L.

Eccles, v

Richardson, L.

Elliot of Harwood, B.

Rochdale, V.

Elton, L.

St. Aldwyn, E.

Enniskillen, E.

St. Davids, V.

Erroll, E.

Sandford, L.

Fortescue, E.

Shannon, E.

Fraser of Kilmorack, L.

Skelmersdale. L.

Gainford, L.

Somers, L.

Gardner of Parkes, B.

Stamp, L.

Glanusk, L.

Strathcarron, L.

Glenarthur, L.

Swinfen, L.

Gray of Contin, L.

Swinton, E. [Teller.]

Hailsham of Saint

Taylor, L.

Marylebone, L.

Trenchard, V.

Henlev. L.

Trumpington, B.

Hives, L.

Tryon, L.

Holderness, L.

Vaux of Harrowden, L.

Hornsby-Smith, B.

Whitelaw, V.

Hunt of Fawlev, L.

Windlesham, L.

Kemsley, V.

Resolved in the negative, and amendment disagreed to accordingly.
6.8 p.m.
Lord Avebury Lord Avebury moved Amendment No. 42:
Page 21, line 34, after ("(1)") insert ("(a), (b) or (c)").
The noble Lord said: I can be brief because of the encouraging remarks that the noble Lord, Lord Elton, made in dealing with the subject access provisions in Clause 28 and his assurance at the end of the last discussion that what the Government intend to do on this clause would extend to subsection (1) and to subsection (2); that the aspects of this clause which deal with the control of immigration are to be dealt with as a whole and that the proposals which the Government will come up with before we resume in the autumn will cover both aspects of the clause. Therefore, I do not propose to rehearse again what has been said regarding the convention and its non-applicability to immigration control.
The only point I add to what was said earlier on this matter by the noble and learned Lord is that if the Minister looks at German legislation he will find that it is similar to our own. In Germany they have a system of immigration control which depends upon parallel systems of criminal and administrative procedures. The Germans did not find that it was necessary to incorporate immigration control in their data protection Bill. After some little time of operation, they do not consider that a mistake was made and that it ought to have been introduced.
I think the Minister will agree that the Germans have quite an immigration problem. They have to deal with similar questions of a non-criminal nature. They have one problem in particular that does not affect us. Because there is unrestricted entry to West Berlin from the East, it is possible for immigrants to come to Berlin Schonefeld, the airport in East Berlin, to cross from the East to the West, and then to move from West Berlin to the Federal Republic. They may then for several years work in the Federal Republic before the authorities catch up with them and declare that they are not entitled to be there or, at any rate, to take employment. There are large numbers of persons whose presence in the Federal Republic is not entirely lawful but who, as I understand it, may not be subject to criminal proceedings. These would be the equivalent of the Borg-type cases that the Minister will remember we talked about on an earlier occasion.
During the Summer Recess I hope it will be possible for the noble Lord to take some advice from the Germans. When he does so, I think he will discover that data protection experts in that country are simply horrified by what is proposed in this Bill and will strongly encourage him to take the steps which have been recommended from this side of the Committee to delete immigration control altogether from the Bill.
Perhaps I might also say just a few words in response to what the Minister said a few minutes ago about the fears that people entertain, as he says unreasonably, that information is being sought, and records kept, secretly, and that regulations bear disproportionately on people belonging to ethnic minorities, when in fact, as he says, in immigration control we are dealing with people who come from all quarters of the globe. Anybody who has had the slightest experience of
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dealing with immigration control knows that the whole effort of the immigration and entry certificate officers is concentrated on people who belong to the ethnic minorities. The amount of work which is done on people who come from, say, the United States or Australia is absolutely minimal. If the noble Lord has any doubt about that, I shall send him a print-out from my computer which contains 850-odd cases which I have dealt with. As he knows, when his colleagues in the Home Office are absent he sometimes replies to my letters. The overwhelming majority of those cases concern people from the Indian sub-continent, the Caribbean and Africa—black people and people of ethnic minorities. People of European extraction attract very little attention.
The fear is that the transfers of information into computers concerned with immigration control will overwhelmingly refer to people belonging to the ethnic minorities; but, further than that, that they will not be confined simply to people who are in any way connected with breaches of the law. We know that, because otherwise they would be dealt with under sub-paragraph (a). A great many people on the fringes, as it were, of immigration control will be swept up into the net and will find themselves on the Home Office computers, with consequent harmful effects to themselves which we can only dimly perceive.
One example, which I gave on an earlier occasion, could be that the person concerned applies to become a British citizen and he is refused by the Secretary of State. No reason has to be given to him. Your Lordships will remember the argument that we had on this point on the British Nationality Bill, when on this side of the House we sought to introduce a right of appeal and objective tests for the determination of an application for nationality. But the Government insisted on retaining the complete ministerial discretion. When this ministerial discretion is exercised, one of the facts that may be taken into consideration is the presence or absence of the applicant on the immigration control computer system in Harmondsworth. A person who may be on that system quite innocently, because he is suspected of having been involved in some breach of the immigration law, although no evidence sufficient to take him to a court of law has been found, may be excluded from British citizenship simply by reason of his presence on the computer. He will never even know that this is the reason why he has been refused citizenship.
The consequences are not just to persons who have recently arrived in this country and who are suspected of a breach of the immigration law; they may affect those who have been here for a very long time. Because they belong to ethnic minorities, they may be more likely to be prejudiced than white people. This is why we on this side of the Committee believe that the exemptions on non-disclosure are more harmful than the exemptions on subject access.
We are grateful to the Minister for the assurances that he has given. We look forward to the results of his deliberations during the course of the Summer Recess. I move this amendment now only in the hope that the noble Lord may say a little more about the nature of the consultations that he intends to undertake. To give

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him an opportunity of speaking to the Committe on those, I beg to move.
Lord Elton: The noble Lord is right in thinking that the considerations he is concerned with will be swept up in the considerations on the earlier amendment which he and his noble friends were good enough to withdraw. Therefore, I do not think there is much point in my referring at length again to the anxieties to which he has referred. My acknowledgment of them was genuine, as was my undertaking to review. I hope it will stand on the record of our consideration of both provisions that this is so, and I shall not return to it.
As to the way in which our considerations will be conducted, I shall of course consider the advice that the noble Lord has given us about looking at the situation in Germany. The noble Lord revealed in his remarks that he knows not only the ropes but the routes, as I always suspected he did. If there is something useful to be learned therefrom, I do not doubt that we shall be able to glean it.
Lord Avebury: I am grateful to the noble Lord the Minister for his further assurance on that point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.18 p.m.
Lord Avebury Lord Avebury had given notice of his intention to move Amendment No. 43:
Page 21. line 37, after ("in") insert ("sub-paragraphs (a), (b) or (c) of)
The noble Lord said: This amendment is similar to the one which was moved by my noble friend Lord Wigoder at Report stage in the previous innings. It is in column 683 on 15th March. On that occasion the noble Lord the Minister said that it was the Government's intention further to examine the approach that my noble friend had suggested.
Lord Elton: Is the noble Lord by any chance referring to Amendment No. 44? I think that Amendment No. 43 goes with Amendment No. 42.
Lord Avebury: I am so sorry. I do apologise. Amendment No. 43 goes with Amendment No. 42, and I withdraw it.
The Deputy Chairman of Committees (Lord Renton): I presume that the noble Lord does not intend to move Amendment No. 43, so Amendment No. 43 is not moved.
[Amendment No. 43 not moved.]
Lord Avebury Lord Avebury moved Amendment No. 44:
Page 21. line 37, at end insert—
("and
(c) the data user notifies the Registrar within twenty-eight days of the date of the disclosure and provides a copy of the data disclosed, specifying to whom it was disclosed and for what purpose;")
The noble Lord said: As the noble Lord the Minister guessed, I was speaking a moment ago to Amendment No. 44.
The arguments were thoroughly rehearsed by my noble friend Lord Wigoder on the previous occasion. I want only to add to what he said then that several of us have received a letter from the National Association of Health Authorities of England and Wales supporting an amendment on these lines. With the powerful addition of that support to what my noble friend said on the last occasion, we very much hope that the Minister will have decided that the advice he then gave was right. I beg to move.
Lord Elton: I fear that I cannot match the noble Lord's admirable brevity. I well recall that at various stages on last Session's Bill the noble Lord and his noble friend moved amendments to the effect that disclosures made under Clause 28(2) should be notified to the registrar, who might then be required to take action of one kind or another. The idea is not without attractions, and they have put it forward in various forms. The data user had to publish details of the disclosures and provide data subjects with a copy of the data about the subject that had been disclosed. At Report stage the provision was reduced to a requirement to notify the registrar, but then there was nothing further that anybody had to do, and on Third Reading the noble Lord was suggesting that the registrar should publish the facts and details of disclosures within 10 years.
The proposition now before us is closest to the second of the three earlier ones. It is suggested that it should be a condition of the Clause 28(2) exemption that the fact of any disclosure, a copy of the data disclosed, and details of the recipient and the purpose of the disclosure, should be notified to the registrar. But no duties are placed on the registrar in respect of any action that he should then take.
I did two things in response to the amendments last time. First, I undertook to look carefully at the proposition of notifying what we came to refer to as "exempt disclosures" to the registrar. When first put to us it was a novel idea. We felt that it deserved close attention. But, secondly, I also laid emphasis on the many difficulties that it raised, and I hope that I was careful enough not to give any false indications. I say that because we spent some considerable time examining the possibility of requiring notifications to be made to the registrar, and as a result we feel, rather regretfully, that the advantages are outweighed by the difficulties.
Under the amendment before us the registrar would receive a notification every time a data user made a disclosure to the police or some other body under Clause 28(2). It would consist of the fact that the disclosure had been made, and would presumably include the name and address of the data user and the date as a minimum, together with a copy of all the data disclosed, a note of the person to whom it was disclosed, and a statement showing for which of the Clause 28(1) purposes it was disclosed. What have been brought home to us in our consideration of the proposition are the bureaucratic procedures that would have to be gone through to sustain the notification mechanism. The user would have to make a note of all the necessary details, copying out the precise information that is disclosed. I do not suppose that he would often have thought it worthwhile to

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design computer systems to cope with irregular occurrences such as these. He would then have to file it all, since if the procedure is to have a purpose it is to check at some later date on disclosures. If he does not have a precise record, the user making the disclosure will be unable to confirm just what were the circumstances and details.
But of course it is not only the person making the disclosures who is involved. The recipient of the data will have to go through precisely the same procedure, for he, too, will need to be able to check back at some later date on precisely what occurred. The burden will be greater on him because while most of the data users concerned will be concerned only once or twice, or intermittently, it will be the recipients who will be involved regularly.
Finally there is the registrar. He will have to take receipt of the notifications and in some way process them and scrutinise them. The bureaucratic implications of all that are considerable, and of course the principal victims—those required to devote most manpower and time and effort to this new bureaucratic task—will be, first, the registrar and, secondly, the police, who will be the most frequent recipients of exempt disclosures. We had to consider whether this would be a desirable use of their time.
A further effect arising from all this, and an important one, would be this. The necessity for these procedures would place on users an annoying burden which could act as a disincentive to them. At present they can make disclosures as and when they think fit, without trouble, and this proposal would mean some difficulty and could hamper police work by making the acquisition of even routine information such a form-filling exercise that the holders of the information might be reluctant to help.
These are practical, down-to-earth factors, but none the less real for that. As for the advantages of the amendment, I cannot help feeling that they are a little limited, for it is not at all clear what the registrar is to do with these notifications when he has got them. Since no duties to publish them are imposed, they will presumably act as a basis on which he can monitor and check exempt disclosure. But the notifications will give him very limited information to go on. The fact that user X disclosed to the police on such and such a date Mr. Jones's address for the purposes of the detection of crime will not of itself tell the registrar very much; or the fact that user Y disclosed the names of 10,000 customers who had bought rat poison in the past year —and of course there would have to be a list of 10,000 names together with the report—will not tell him much.
So the prospect, I regret, would seem to be that we would put a lot of work on quite a number of people and dissipate some of the resources of the data protection registrar without producing any very tangible benefits to show for it. Therefore, I cannot help feeling that the gains offered by the amendment, attractive as they are at first blush, are outweighed by the losses. I know that the noble Lord has already thought very often about this point, and therefore I much regret having to ask him whether he would be kind enough to think yet again.
Lord Donaldson of Kingsbridge: I do not want to say a lot about this matter, but I think that the noble Lord's advice about how difficult this would be to operate in the computer world is absolutely remote from the facts. All of these things, including stamping the envelope, could be done at the beginning of each entry. This is what computers do. There are a series of functions that have to be carried out. They could all be done by way of a single, though rather complex, order to the computer. The idea that it is labour intensive shows no appreciation at all of what we are talking about. However, I do not wish to encourage my noble friend to press the amendment. I just think that the noble Lord's evasion of it was inadequate.
Lord Elton: I do not know whether "evasion" is the right word; it was meant to be a response. I may be out of date with my mechanics, but we are still left with the registrar (are we not?) opening this vast pile of envelopes and deciding what they tell him. It is very difficult to know what they will tell him, and it is even more difficult from the amendment to know what he would then do about it.
Lord Avebury: The noble Lord the Minister is very skilled at producing far-fetched examples. I think that in referring to 10,000 customers buying rat poison he has excelled himself, since one could hardly imagine that the police would be capable of dealing with such a vast amount of information. But it is a useful illustration from one point of view, in that the data user who had such a large number of customers would presumably print out that information from his computer, or he would transfer to the police a disc or a tape which contained that information. If he did that, it would be very simple for him to provide a copy of it. Just as he had printed out the 10,000 names, he could print out two copies of the 10,000 names. I admit that it would involve him in a minor additional expense, but I do not think that the administrative burdens that it would impose on the data user would be all that great.
The noble Lord also very skilfully twisted around what the amendment says. It would not be the recipient of the data who would have to notify the registrar; it would be the data user who made the disclosure. Therefore although, as the noble Lord says, the police will probably be the largest recipients of data disclosed under Clause 28(2), they will not necessarily be the data user who made the largest number of reports to the registrar under this amendment, if it were passed.
However, I certainly do not want to press the matter here. Since the noble Lord has the whole of the Summer Recess in front of him, and obviously he is going to use this very productively in the way that he has already explained, I should like to make a suggestion to him. As he says, the principal anxiety which people have in this matter is about the number of disclosures and their nature. It would perhaps be possible, without going to the extent of requiring data users to make individual reports of this kind, to enable the registrar somehow to provide a statistical picture of the disclosures under Clause 28(2). That would probably be accomplished by a much simpler form of report than the submission of copies as envisaged here.

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I would be grateful if the noble Lord can consider that suggestion and so enable us to discuss it, no doubt, before we return to the matter on Report. I am delighted to see that the noble Lord wants to intervene.
Lord Elton: I was about to say that the noble Lord's plans for my summer holiday are beginning to diverge a little from my own. However, I always like to take advice in good heart. I do not want to impose too much work on others. Most of the ground has been gone over previously. If it seems to us that there is ground that has not been gone over and that has been revealed by what the noble Lord suggests and by what the noble Lord. Lord Donaldson, has remarked, we shall certainly look at it. I shall perhaps be writing to the noble Lord if he will give me his holiday address, preferably in the United Kingdom.
Lord Avebury: I assure the Minister that I shall be at my desk throughout the whole of this summer. I shall be delighted to hear from him and to enter into discussions about how the principle behind this amendment can most readily be achieved. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 45:
Page 21, line 42, at end insert (", but this subsection does not apply to persons carrying on computer bureaux who provide services in respect of personal data.").
The noble and learned Lord said: I think that this amendment can be taken briefly. It is to avoid the situation where confidential personal data are passed from the data user to computer bureaux and then via the bureaux released to the police and the immigration and tax authorities. As the computer bureaux will have no direct responsibility to the data subject and often will not be aware of the importance of the data that are being handled by them, it seems totally contrary to the data protection principles that they would be able to reveal any information without the knowledge of the data user or of the data subject. It seems to us that it is desirable to avoid the situation which I have indicated could well arise without the amendment. I beg to move.
Lord Elton: I hope that what I am about to say will address the noble and learned Lord's concern. If it does not, he will have to put me right and I shall return. As Clause 26(3) indicates, the non-disclosure provisions include Clause 5(2)(d), which prohibits unregistered disclosures of personal data by data users; Clause 15, which prohibits disclosures of personal data by computer bureaux without the authority of the data user who holds the data; and, speaking in general terms, any of the principles inconsistent with a disclosure. Thus, where the Bill exempts personal data from the non-disclosure provisions it allows a data user to make an unregistered disclosure and allows a computer bureau to make a disclosure without the authority of the data user. This amendment seeks to disapply the exemption from the non-disclosure provisions in Clause 28(2) in the case of computer bureaux. The effect would be that where the police or some other law enforcement agency approached a computer bureau seeking information in connection
1300
with, say, the prevention or detection of crime, the bureau would be prohibited by law from giving them information without first having sought the authority of the data user.
The argument that seems to underlie the amendment is that only the data user who holds personal data is in a position to judge whether personal data should be disclosed to the police and so on under Clause 28(2). On this argument, a person carrying on a computer bureau cannot be trusted to make a sensible decision on whether data should be disclosed. I fear that in answering this amendment I shall be returning to familar argument.
The Bill before the Committee includes a number of prohibitions and restrictions on the disclosure of personal data which will, in general, regulate access to personal data by third parties. This is obviously an essential part of any legislation designed to give effect to the principles set out in the Council of Europe Convention. But the convention accepts that some interests must override those enshrined in it and the Government are also determined that the legislation should not prejudice the essential work of the various law enforcement agencies, such as the police.
The police and other similar bodies often have to request information from numerous unexpected sources and, if I can hark back to the last exchanges, other people do. too. If a market is suddenly flooded by suspect tinned salmon, for instance, there are large numbers of inquiries to be made. The Government therefore take the view that it is necessary to make exceptions to the various new prohibitions on disclosure. Thus, Clause 28(2) disapplies these prohibitions in specified circumstances. The effect is not to produce some new threat to confidentiality. It is simply to ensure that the position as it exists now, before enactment of the Bill, remains exactly as it is and has been for many years, without difficulty or complaint. This means that when the police ask for information the person concerned will have to judge in the light of any professional or other constraints whether to disclose the data or not.
I do not see sufficient reason to depart from this argument and the policy already embodied in the Bill in the case of computer bureaux. I should like to ask the noble and learned Lord to consider a number of points. Before doing so, I should perhaps find out whether I have said enough to address his principal concern.
Lord Elwyn-Jones: I think that it might be convenient for me to give careful consideration to what the noble Lord has said. If he would care to amplify his remarks with any further material that would be helpful to determine the matter between now and October, I shall be happy to listen, if it does not put too much burden on him.
Lord Elton: The burden is nothing to me. I fear that it might be too much for the House. Would the noble and learned Lord prefer me to do this now, or by letter?
Lord Elwyn-Jones: By letter.
Lord Elton: With pleasure.
Lord Elwyn-Jones: In the light of that, and in the expectation that there will be leisure in which to examine a highly technical point within the long period of time when the noble Lord is working every day in the Houses of Parliament, I shall undertake to look at this question again and return to it in due course. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 agreed to.
Clause 29 [Health and social work:]
6.38 p.m.
Lord Avebury Lord Avebury moved Amendment No. 45A:
Leave out Clause 29 and insert the following new clause:
("Health Records.
If a court is satisfied on the application of any person who has made a request under section 21 above that:

(a) the request relates to personal information as to the physical or mental health of the data subject; and

(b) the supply of the information requested is likely to result in physical or mental harm to the data subject or another individual.

the court shall not make an order for the information to be given.").
The noble Lord said: We come to the important question of medical and social work records. Since we last discussed the matter, a number of important recommendations have been made to your Lordships by the Patients' Association, by the Royal Association for Disability and Rehabilitation and by the Children's Legal Centre. All are very concerned about the width of the exemptions from subject access provisions and the discretion of the Secretary of State provided under Clause 29. This concern relates particularly to medical files under Clause 29(1) and the fact that Clause 29(2) allows Government departments, local authorities, voluntary organisations or "other bodies" to keep automated files of personal information without allowing any access for subjects if the files contain social work information and the Secretary of State makes the appropriate order.
At first sight, that would appear to contradict the European Convention, especially Article 8 which provides that:
"Any person shall be enabled: (a) to establish the existence of an automated personal data file, its main purposes … (b)to obtain at reasonable intervals … confirmation of whether personal data relating to him are stored in the automated data file as well as communication of such data in an intelligible form; (c) to obtain … rectification or erasure of such data; (d) to have a remedy if a request for confirmation or … communication, rectification or erasure … is not complied with".
and so on.
While there are professional bodies, particularly in the medical field, which argue that patients or clients should not have access to their files, I think that the noble Lord will confirm that consumer bodies argue unanimously for access. They cite not only the human rights argument but also the practical advantages of open files, which are greater accuracy, objectivity, and trust between clients and the professionals.
Also, I think the noble Lord will confirm that there have been substantial shifts in professional opinion on this matter over the last few years. For example, the British Association of Social Workers recently made available a copy of their draft report on the Case
1302
Recording Project Group. In the introduction to Chapter 5, entitled "Access to Case Records", the association writes:
"Part of the reason for promoting client access to records is to ensure that clients can check that their privacy is not being invaded by social work records. But that is not the only reason: as a matter of principle, a client who is to be part of social work processes should know what is going on, and involvement in recording is an integral part of that.".
I think the Government themselves have changed their attitude on this matter significantly. The White Paper entitled Special Needs in Education, which preceded the Education Act 1981, said:
"The government agreed with the widely-held view that it would be wrong to require full disclosure to parents of the professional reports lying behind the 'record'."
But when the Education (Special Needs) Regulations 1983 came into force in April, they indicated that the Government had changed their attitude: parents of children with "statements of special educational needs" are given access to all the professional reports on the basis of which local education authorities have made their decisions, as these must, according to the regulations, form part of the statement which is sent to parents.
The Government have also shown some commitment to freedom of information in education by making HMI reports on schools available to parents. So while the majority of social work and medical records are, at present, not held in automated files but are kept manually, there is a trend towards the use of computers and the Government should take the opportunity which is presented by the Bill to extend subject access as far as possible to automated files.
At the time I tabled this amendment I had not seen the discussion documents on client access to social services records which were issued by the Department of Health and Social Security on 14th July. The first major point I should like to put to the Minister is that the timetable set out in these documents is quite impossibly short. I believe that many of your Lordships may not even have been aware of the existence of the documents, let alone have had a chance to read and digest them thoroughly. Moreover, your Lordships could not take proper advice on them at this stage because I understand that the voluntary organisations principally concerned with these records are to meet on Monday week—the end of July—and that leaves only two weeks before the closing date for observations on Paper I, which have to be in by 15th August.
For the benefit of your Lordships who may not have seen these papers, Paper I concerns the general principles on which information might be disclosed to clients from their social services records. Paper II (as regards which more time is available, but still not enough) concerns the procedures whereby clients might be granted access to computerised social services records. The observations on that paper have to be in by 30th September.
The reason given in the document for the timescale on Paper I is that the Liverpool City Council has decided to adopt a policy of wide disclosure with effect from 1st September. I do not really understand this reasoning, because it seems to me that it could be that the Liverpool City Council would adopt wider disclo-

1303
sure than is ultimately provided for in the order and then, of course, it would have to fall in line with whatever decisions were made. In the meanwhile, no great damage is done if the Liverpool City Council wishes to adopt this policy of very wide disclosure. Indeed, it might be a very useful experiment to see whether any damage is done by it before the Government come to make the orders under this clause.
I am certainly not going to argue that all these records should be divulged to clients. The discussion documents set out some important considerations which must be borne in mind. First, there is the question of the protection of the client. It is pointed out quite properly that:
"Some clients would be harmed by reading facts in their case records which may be disturbing to them".
The example is given of elderly persons who may learn that they are not welcome to their own families, or a child who may learn that his parents have a criminal record. There is also the question of the protection of third parties. It points out that a client's case record may include material about third parties, such as members of his immediate family, which would damage reputations or relationships if it became known to the client.
As regards protecting sources of information, the paper points out that social services departments receive information sometimes on the understanding that it will be kept in confidence, or that at least the source will not be revealed to the client. There is also reference to the protection of social workers' confidential judgments. I must admit that I am rather more doubtful about this aspect. However, it is said in the discussion document that:
"It has always been regarded as professional good practice to record provisional views that might in time lead to firm judgments—sometimes warranting statutory action".
Let me point out as an aside that this seems to follow the discussion we had of opinions and intentions at an earlier stage in your Lordships' proceedings, where it was agreed that, if a managing director expressed the opinion that his sales manager drank too much, then that information was accessible to the sales manager. Your Lordships will remember that the CBI was advising that these opinions of a sensitive nature should be expressed as intentions so that they did not have to be divulged. No one said that an employer should be exempt from non-disclosure because some of the opinions he expressed about members of his staff might cause friction or difficulties if the subject access provisions were complied with. I think that that should also be the case as regards social work records. If social workers want to make confidential judgments about their clients and express them in a computerised form, then, just as an employer would expect that to be known to the member of his staff, so the social worker could perhaps expect that this would become known to his client.
Finally, the question of children and parents is dealt with, and it is said that if parents had an absolute right of access to records about their children that would sometimes ignore the fact that the interests of the child and the parents may be separate, and may conflict with one another.
I agree that all these tremendously important considerations have to be borne in mind in deciding in what manner the Secretary of State will exercise his powers under Clause 29. However, I venture to say that it is rather a pity that we could not have had this discussion as part of the proceedings on the Bill instead of leaving it to the order which is to be made later on. I fully accept what the noble Lord the Minister said at an earlier stage; namely, that such an order will be debatable in both Houses and it can be rejected if your Lordships or another place see fit to do so. However, what we cannot do is to amend the order or vary any of its details; we simply have the alternative of accepting it as it stands or rejecting it in its entirety.
Therefore, I take this opportunity to say that I rather wish we had been able to specify more closely how the Secretary of State would exercise his powers under Clause 29; and at the very least we should know, before we reach any finality on this, more about what is in the Minister's mind. That may seem to conflict with what I said about the tightness of the schedule for consultations. I do not expect—and I say this to the Minister now—that we shall reach any conclusions on this matter while the Bill is in your Lordships' House. However, if he would take the opportunity to say a little more about what is in the Government's mind and how they see the restrictions on the use of the powers in Clause 29, it would be very useful in promoting that discussion outside your Lordships' House which is absolutely essential if we are to reach the right decisions on this matter. I beg to move.
Lord Donaldson of Kingsbridge: I know that the Committee is very hungry and I shall be brief. I was about to speak on this matter on the Question that the clause stand part of the Bill, but my noble friend has tabled an amendment so I shall say just a few words about the amendment. For a good many years I was chairman of the National Committee of the Family Service Units. They are social work units which take the most difficult families in the area and try to sort out their problems. In the days when I was connected with them—which was 10 years or more ago—the reports used to be extremely frank and very often quite unrepeatable, and with very good reason.
Therefore, I rang up the Director-General of the FSUs today, Tim Cook, who is a very experienced social worker in many ways. He said that there will be difficulties about this matter but that the general feeling in his organisation is that social workers are changing their minds. He said that increasingly they feel that as a general rule they should not write down opinions but should write down facts and let the next social worker who takes over form his own conclusion from the facts. I do not think that you can do that entirely, and I think there will always be cases—as this document to which my noble friend has referred makes perfectly clear. I wish I had had time to read it more thoroughly, for I just glanced at it this afternoon. There will be a number of cases which you cannot allow to be passed on.
What worries me is that both my noble friend's amendment and Clause 29 have a very distant approach to what happens to this information. You cannot ask the Secretary of State each time a social worker wants to say "This will be bad for the child".

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Nor will the matter necessarily reach the stage of going to court. Both the Bill on the one hand and the amendment on the other seem to leave the way in which the decision is made far too high up the hierarchy to make sense at all. So I do not think it will do as it is. It being so near dinner time, I shall say no more than that, because it seems to me that, if the noble Lord will agree at all, we shall have time to study this document, and the Government will have received the response to it by the Report stage. I think it is likely that the noble Lord would like to change Clause 29 in a way which would suit my noble friend Lord Avebury, myself, and various other people. So adding to the noble Lord's vocational pleasure, I propose to say no more.
6.53 p.m.
Lord Elton: As I explained when we discussed amendments on Clause 29 of last Session's Bill, these order-making powers have been included in order to allow us to undertake full consultations before deciding what, if any, restrictions upon the right of subject access shall be imposed in this area. As your Lordships obviously appreciate, difficult and sensitive issues are involved, issues that were also obvious to the authors of the convention. That is one of the reasons why Article 9(b) permits derogations in the interests of protecting the data subject.
I was to have enlarged on the kind of difficulties that there might be, but that has been done very capably by the noble Lord, Lord Avebury, and with great close knowledge by the noble Lord, Lord Donaldson. So I can say that the Government are convinced that there are difficult issues here that should only be resolved after the fullest consultation. On the health side the Government have had the benefit of advice from an Interprofessional Working Group on Access to Personal Health Information, with membership from the medical, nursing, social work and other health professions. The group has welcomed the general principle that individuals should have access to their health records; but it has suggested that unrestricted access could on occasions be harmful. It has proposed therefore that health professionals should have discretion to prepare subjects to receive the information; and that they may sometimes need to be able to withhold information altogether.
The group is of the view however that in those circumstances some avenue of appeal should be available to the individual deprived of his normal entitlement to subject access. The next step will be for the Government to issue a consultative document setting out proposals for the content of an order under Clause 29(1), and work on this is now underway. Obviously these consultations will include representatives of patients as well as those of the health professions. It is also worth noting that the proposals of the interprofessional group are arguably less restrictive than the amendment proposed by the noble Lord. Its approach provides for filtered access in some cases rather than an absolute refusal.
As to social work records, the Department of Health and Social Security has already, as the noble Lord, Lord Avebury, has said, issued a consultative document discussing the content of the order to be made under Clause 29(2). I must say that I listened to
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the noble lord's strictures about the shortage of time in which to consider it with a certain amount of wry amusement as we received his amendment only about 55 hours ago, and our consideration of that has been somewhat restricted. The document has been sent to representatives of clients as well as to the relevant professional bodies. I ought to tell the noble Lord that Paper I, to which he referred and about which he said the time was so short, in fact has nothing to do with data protection as such at all. Although the timescale may be of concern to him, it is not of proper concern to the Committee.
Paper II is to do with orders under Clause 29(2) of the Bill and the timescale there is until the end of September. As I said, it has been sent to representatives of clients as well as to the professions. The two options discussed in the document would involve a right to seek the opinion of an independent social worker where access was refused. The second would involve a further right to contest refusal through the registrar or the courts. Comments on the document have been requested by 30th September, and I think it would be proper if I were to bring to the attention of my honourable friends in another department the comments made by the noble Lord. Lord Donaldson, about the changing style of work in the social work services, although I do not doubt that they may well be aware of it already. It is a very necessary consideration.
In conclusion, we are approaching the issue of subject access to health and social work records with very great caution. There are difficult issues here which cannot be swept aside simply by regarding the right of access as sacrosanct. The order-making powers in Clause 29 are subject to full parliamentary control within the limits rightly described by the noble Lord, Lord Avebury. But I hope that the timing of the consultations and the noble Lord's continual presence at his own desk will ensure that he at least is very well armed when we come to discuss this, as I presume we will, at the Report stage.
Lord Donaldson of Kingsbridge: I should like to add one point. It is very important to remember that records of this kind will be referred to from years ago, so that there must be a retrospective cut. The Bill must not apply to records made before the Bill becomes law.
Lord Elton: I am seized of the point and I am sure that my honourable and right honourable friends will be.
Lord Avebury: I am most grateful to the noble Lord for his reply and for mentioning the rights of appeal, which I ought to have dealt with in my opening remarks and which I think are very generally to be welcomed. Where a person is denied access to his medical or social works record obviously there ought to be some procedure for him to go to the registrar or indeed to a court of law. That sounds like a very useful provision.
I am also grateful to the noble Lord for his assurance that there will be full consultation with bodies representing the interests of patients and clients, and that they have received the two discussion documents to which I have referred. The first document is of as much concern to the Committee as is the second—the

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one for which the timeseale for reply is so short—because if the noble Lord would care to look at the contra-indications to disclosure in Paper I, he will find that they are almost identical to those which are given in the second paper dealing with the Data Protection Bill.
Therefore, if some firm decisions were taken on non-disclosure under the circumstances outlined in Paper I, they would inevitably have repercussions on the order which the Secretary of State is ultimately to make. Maybe that is a small quibble. I was grateful to the noble Lord for the general information he gave the Committee and for the approach he is adopting to the consultations. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 29 agreed to.
Clause 30 [Judicial Appointments and legal professional privilege]:
7 p.m.
Lord Winstanley Lord Winstanley moved Amendment No. 46:
Page 22, line 38, at end insert—
("(3) Personal data are exempt from the subject access provisions if the data consist of information which is confidential to journalists' sources.").
The noble Lord said: I beg leave to move Amendment No. 46 which stands in my name and that of my noble friend. We come now to a matter which, so far as this Committee is concerned, we can deal with fairly rapidly, though I have no doubt that the subject of the amendment, the confidentiality of journalists' sources, is one to which not only this Committee but your Lordships' House may return on many occasions. It seems to me at the moment in this particular Bill that there is a potential anomaly in that the Bill now appears to grant exemption for data where legal professional privilege is concerned; but there is as yet no protection for the confidentiality of journalists' sources.
This confidentiality of journalists' notes is already recognised by the courts. It may well be that as and when the Police and Criminal Evidence Bill re-emerges that there might be statutory recognition of that. If that be the case then we will have an anomaly in that this Bill will create an artificial distinction between journalists' notes which are manually recorded and notes which are electronically recorded, although neither journalists nor the organisations employing them exchange confidential information with their competitors.
I am aware that this whole question of the confidentiality of journalists' sources is a complex one in which neither logic nor perhaps right lie wholly on one side or the other. I am also aware that there is some anxiety among journalists about the whole matter of providing a legal definition of what is, or what is not, a journalist. Therefore, I understand that this is not an easy matter. Nevertheless, it is right to draw the Committee's attention to the fact that there is a potential anomaly here in that manual notes might very well be regarded as, as it were, protected whereas notes electronically recorded, and journalists' sources therefore that are electronically recorded and
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potentially could be disclosed electronically, are treated rather differently. I beg to move.
Baroness Trumpington: I cannot help thinking that this amendment contains something of a contradiction in terms. It speaks of exempting from subject access data consisting of information which is "confidential to journalists' sources". That of course means that if a journalist's source holds data and attaches a label of confidentiality to the data, he can refuse subject access at will. Now, both I and the noble Lord, Lord Winstanley, qualify as journalists' sources—we have both provided material for stories at one time or another. But surely the noble Lord is not suggesting that for that reason we as data users—and all the thousands of others in the same category—should be able to refuse subject access to data we hold. So we must assume that this is not the purpose of the amendment but merely the product of loose drafting, and that the real purpose is to protect the journalists who may hold data.
Here is the contradiction. If a journalist holds information that is confidential to his source, how has he come by it? It cannot properly be confidential to one person yet given by that person to another. So again we have to translate. Perhaps I might describe briefly what I think the noble Lord is aiming at in this amendment: that is, information that is held by a journalist and was given to him by a source that wishes not to be disclosed.
So let us examine the merits of that amendment. The suggested scenario is that a source goes to a journalist with information about, let us say, one of your Lordships, saying that it must not be revealed who the information comes from. The journalist is a thoroughly modern one who transcribes the information onto a computer and "processes" the resultant data in the terms of Clause 1 of the Bill: that is, builds up a computer file on the noble Lord concerned, using it perhaps to extract information at the press of a button in order to compose a story—saying either what a fine person the noble Lord is or, much less likely, what a villain he is. That is the picture before us. Now. the first thing I have to ask is whether the noble Lord concerned should not have access to the data to check whether the information is accurate, and the rest. I am not aware of the journalistic profession —who are generally in favour of data protection—arguing that they should be excused from one of its principal elements. Indeed, they might fear that they would be accused of double standards if they did. So where is the reason that the subject of journalists' data should have a lesser degree of protection than the subjects of others' data?
It is presumably that the knowledge that subjects will have access will discourage sources from coming forward and giving personal information about people to journalists, because they fear that they will be revealed as the source, and that this will be generally detrimental to the fifth estate. But we have special provision in the Bill to cover that point. In the subject access provisions, Clauses 21(4)(a) and (5) taken together have the effect that users, in giving subject access, do not have to reveal who has given them the information about the subject that they hold. It may be argued that some subjects may be able to deduce

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that only so-and-so could have possibly furnished the user with the information he holds. But surely that will apply at the end of the day anyway when the story is published. I do not see how it can be convincingly argued that the fear of a deduction of sources warrants exemption from subject access, when the whole point of the journalist holding the information must be to publish it eventually, when the fear of deduction must be even greater.
A parallel with last Session's Police and Criminal Evidence Bill has been drawn which I must challenge. The Government did amend that Bill to apply a special procedure to material held by journalists when it came to police powers of search and seizure. But this is not a true analogy. The question of the powers of the police to require the production of evidence in the form of material held by journalists is one thing. It is quite another to try to apply the same arguments to whether an individual should be able to have subject access to data about him that a journalist holds on a computer. I applaud the disinterested concern of the noble Lord in seeking to ensure maximum protection for journalists. But I am not sure that they themselves would seek it, particularly since subject access will not oblige them in any case to reveal their sources. I would therefore ask him to think again about this amendment.
Viscount Massereene and Ferrard: May I ask the noble Lord, Lord Winstanley, how he would define a journalist for this amendment? Would that include freelance journalists or only salaried journalists —journalists working for a certain paper?
Lord Winstanley: I referred to the difficulty of denning a journalist, and I accepted in my earlier remarks that that was one of the problems. I accepted that there were journalists, or perhaps non-journalists, who are a little uneasy about a statutory definition of what is, or is not, a journalist. I can think of a number of ways of doing it. One could have a member of the National Union of Journalists. One could perhaps have a member of the Institute of Journalists. There are many other ways of doing it. But I doubt whether I am the person qualified to give advice to the Committee on a definition of that kind.
May I return to the words of the noble Baroness. I was grateful for that part of her reply which came later in her speech which appeared to give me some reassurance and suggested that the points about which I was anxious—namely, the confidentiality of journalists' sources—was covered elsewhere in the Bill, and she drew my attention to certain clauses of the Bill which I shall look at closely later. However, in the earlier part of her remarks the noble Baroness gave me a somewhat inadequate reply to a later amendment which I have not yet moved. In other words, about people who are perhaps defamed by things which are published and which have previously been stored electronically. That is a matter for later and I do not want to go into that here and now. The noble Baroness referred to people being defamed. The defamation of course would occur on publication. There would then be a remedy through the courts in the ordinary way. That is an entirely separate matter.
In so far as the noble Baroness has given me some reassurance with regard to the confidentiality of
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journalists' sources, I had better look at that carefully and consult with those who advise me. With regard to the fact that the amendment is said to have been drafted defectively, I have to plead that it was drafted by somebody who worked for some years in the Public Bill Office but now is employed otherwise. Perhaps your Lordships may think that is wise! I shall nevertheless go back to my sources and seek further advice and consider further what the noble Baroness has said.
Lord Mishcon: Before the noble Lord takes the course that I think he wishes to take, I wonder if one thing could be clarified by the noble Baroness, whose participation in the Committee's proceedings we all very much welcome. I am not clear about whether there is a specific exemption in the Bill which covers the situation where the source clearly appears on the record that has been made and if there is something in the Bill which enables the data user in this case to tell the data subject that the data subject is entitled to a copy of everything, but not the source which is on the computer. I am not clear about that. If it is not in the Bill a different consideration arises.
Baroness Trumpington: I thank the noble Lord, Lord Mishcon, for his kind words. Words of kindness in a hungry House are welcome indeed. If he reads what I was saying and considers Clause 21(4)(a) and Clause 21 (5) he will find the exemption for which he is looking.
If the noble Lord, Lord Winstanley, will return to his point on a further amendment, as he has suggested, perhaps we might have what is known as a natural break.
Lord Winstanley: Once again I am deeply grateful to the noble Lord, Lord Mishcon, for his brief intervention making the substance of my point rather clearer than I made it earlier. That was precisely the anxiety that I had in mind when I moved the amendment. I have listened to what the noble Baroness said and, as I have said, I will have further thought about it. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lyell: I understand that through the usual channels it has been agreed that this might be a convenient moment for the main protagonists in the business of the Committee to break for dinner.
I beg to move that the House be now resumed.
Moved, accordingly, and, on Question, Motion agreed to.
House resumed.
Lord Ponsonby of Shulbrede: My Lords, before the next business is taken, I wonder whether the noble Lord will indicate at what time we shall return to the business on the Data Protection Bill?
Lord Lyell: My Lords, I must apologise to the noble Lord and indeed to many hungry and vociferous noble Members of your Lordships' House. I understand the usual channels agreed that the period should be three-quarters of an hour, 45 minutes. I believe that your

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Lordships would wish that we should give the protagonists an extra minute so perhaps we should re-commence further business on the Bill at eight o'clock.

Local Government (Scotland) Act 1973 (Section 111) Amendment Order 1983
7.13 p.m.
The Minister of State, Scottish Office (Lord Gray of Contin): My Lords, I beg to move that the Local Government (Scotland) Act 1973 (Section 111) Amendment Order 1983 be approved. One of the difficulties about becoming a Member of your Lordships' House while a Government Minister is that one does not have the opportunity of selecting one's own occasion to make one's first remarks at your Dispatch Box. Devoted as I am to the cause of restraint where the spending of taxpayers' or ratepayers' money is concerned, I have to admit that the Local Government (Scotland) Act 1973 (Section 111) Amendment Order 1983 would not have been among the front runners were I to have chosen my own subject on this occasion. Nevertheless, I realise that it is an essential order and I am privileged to have the opportunity of asking your Lordships to approve it.
For the past 13 years I was in another place where I had the honour of representing the old constituency of Ross and Cromarty. That was terminated at the last election and I am now deeply aware of the privilege which has made it possible for me to continue to serve in your Lordships' House.
The title of this order describes its purpose, which is to amend Section 111 of the Local Government (Scotland) Act 1973. This section enables the Secretary of State to make regulations with respect to rates. I shall come to these powers presently. But your Lordships may find it helpful if I first of all describe briefly the powers under which the order itself is made. These are contained in Section 5(6) of the Local Government (Scotland) Act 1966. Subsection (6) is part of the measures introduced last year into Section 5 of the Local Government (Scotland) Act 1966 by Section 1 of Local Government and Planning (Scotland) Act 1982, and it provides that the Secretary of State may, by order, repeal or amend any enactment relating to the determination, levy or payment of a rate and where such is affected by a determination (or deemed determination) under section 5(4) (b)
An order made under subsection (6) has no effect until approved by resolution of each House of Parliament. If approved this order will amend primary legislation. The statute in question is Section 111(1) of the Local Government (Scotland) Act 1973 which enables the Secretary of State to make regulations with respect to rates. Under Section 108 of that Act rates are to be determined by local authorities only once a year in advance of each financial year. The Local Government (Miscellaneous Provisions) (Scotland) Act 1981 introduced a new provision into the 1973 Act (Section 108A(1)) which allowed a local authority to determine a lower rate than that determined under
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Section 108. The 1981 Act also amended the 1973 Act to allow the Secretary of State to make regulations as regards a lower rate determined under Section 108A(1) for the repayment of sums paid in respect of a rate determined under Section 108 and for the cost of levying and collecting the lower rate to be borne by the authority. This new provision became paragraph (f)of subsection (1) of Section 111.
No such provision was made by the Local Government and Planning (Scotland) Act 1982 with regard to a rate determined by an authority under Section 5 of the 1966 Act as amended by the 1982 Act and the purpose of this order is to make it clear and beyond doubt that the Secretary of State may with regard to a rate determined under Section 5(4)(b) make a regulation, under the new provision in Section 111 (f) with regard to the repayment of sums paid under Section 108 and to the cost of levying and collection to be borne by the authority concerned. This order is a minor technical paving step which will allow measures to be put into effect which Parliament have already approved in principle and to which specific approval will be sought in another place. I commend the order to the House.
Moved, That the Order laid before the House on 23rd June be approved.—(Lord Gray of Contin.)
7.19 p.m.
Lord Ross of Marnock: My Lords, it falls to me to greet the noble Lord after his maiden speech—a maiden speech at the Dispatch Box. I think it is the longest speech I have heard him make. I have known him for 13 years, and for a long time I remember him in the Scottish Grand Committee, when the 1973 Act to which he refers so dramatically and so tellingly, was going through the House. I remember how I used to look across and see him, and as soon as I saw the eyes glisten and him edging on his seat, I knew that he was about to get up and make his usual speech—
"I beg to move that the Question be now put."
He was a Whip at that time; and now here he is, a living symbol of the defeat of his Government in Scotland. He was not the only Minister who was defeated in Scotland; and may I remind this crowded House that of the 72 seats in Scotland, Labour won 41, the Tories won—was it 21?—the Alliance won, I think, eight and the SDP two. So wherever the Government have a mandate, it is not in Scotland.
The noble Lord has become the successor of not one of the oldest offices in Scotland—in fact it has been in existence just over 32 years, the office of Minister of State for Scotland. But I should warn him that nine of the 10 holders are still in the House; and when you add to that four ex-Secretaries of State for Scotland and at least two former Under-Secretaries of State for Scotland, the noble Lord will realise just exactly what he has to put up with in terms of the experience that is around. He is not the first defeated Tory Minister who has found a comfortable and secure refuge in this House, so he has not broken any records. Nor yet is he the first to receive the consolation prize of being Minister of State for Scotland. I could name two who, having been defeated at a general election, suddenly appeared here as Ministers of State for Scotland; so he is following a tradition.

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But let him not think that this is a dead-end job that he has. It is not the end of the political road—far from it. I remember Lady Tweedsmuir, who is the only one of the 10 who is no longer with us. She went on to shine at the Foreign and Commonwealth Office. Then there was the first of them all; he became Prime Minister. He was known in those days as Sir Alec Douglas Home. He was the first Minister of State for Scotland, and I am sorry that my old friend, the noble Lord, Lord Strathclyde, is not in his place, because he was one of the longest serving Ministers of State. Then there is the last man who has followed: he has been promoted to Northern Ireland. I refer to the noble Earl, Lord Mansfield. So let the noble Lord think of all these glittering prizes that are ahead of him. He has been the victim of his own Party's failure in Scotland. There may have been an element of redistribution in this, but I can assure him that the Member who formerly had Skye did not want to lose it. He regarded it as a good fall-back position for Liberals. I remember of course the man that he defeated, Alasdair Mackenzie—a very nice good Scotsman—and how he must have felt. There was no consolation prize for him in the shape of a seat in the House of Lords.
The new Minister brings to Scottish Affairs some Ministerial experience, and we are glad of that. He has some insight into the wayward ways and the mysterious ways of the Scottish Office, because he was a Scottish Whip for quite a time. There is no doubt that he has first-hand knowledge of Scotland's problems. No-one knows better than he the mood of Scotland at the present time. I sincerely hope that he will bring a sense of purpose to the Scottish Office, as we have known it over the years. I, too, have an advantage: he knows me and he knows what a reasonable man I am. He knows that I may sometimes be wrong (but I am always right!) and I look forward very, very much to seeing him handling Scottish affairs in this House. He will have a couple of tea boys occasionally. He will have the noble Lord, Lord Lyell; and, when he can free himself from the responsibilities of the Crown Office, the noble and learned Lord, Lord Mackay, will probably come in too to lend a hand. So the noble Lord need not worry. I think he will find this a very much friendlier place that the other Chamber and I hope that he does well.
I am very glad to welcome my noble friend Lord Strathclyde who is now in his seat. He will be glad to know that I gave him an honourable mention in his absence, but he can read about that in Hansard. I ask him, please do not write to me about it. The noble Lord, Lord Gray, said that this order is not the kind of thing he would have picked and that he might have picked something more important. But there cannot be anything more important than this. He finished by saying that this was just a little technical amendment. It is not, you know. I objected to the Government taking the power that it took in the 1981 Act, which it repeated in the 1982 Act—that Section 5(6) which gives the Secretary of State this power, which it is not to make regulations; it is the power to amend primary legislation. Those were the words that were used by Lord Ancram in another place when he mentioned this particular order.
Instead of bringing in primary legislation, the Government took the unusual power of amending by
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order. I objected to it at the time and I object now. I object even more, because he certainly wandered through all these statutes, though I am not absolutely sure that he is entirely familiar with all of them because he had pre-occupations elsewhere. But they all deal with the important business of local authorities and rates. There was a time under the 1966 Act when the local authority had a fair amount of freedom, and it is a freedom that is pretty basic to local authorities—the right to determine their own expenditure and to raise money to meet that expenditure. Take away that power, take that power to the central government, and local authority becomes meaningless from a democratic point of view.
What we have had since 1979 is decision after decision backed up by new Acts of Parliament which went through this House and which have extended the power of the Secretary of State in respect of local authorities. There was a power—I think it went back to 1929 and was consolidated within the 1969 Act, having been carried through all the various Acts—which gave the Government the right to reduce a grant if the expenditure of a local authority proved unreasonable and excessive. But he could not do that until he had proved it was unreasonable, after they had spent the money. Nobody ever applied that sanction to local authorities in all that time. Then the Government said that they were going to do it and they discovered of course that this was not good enough; so they decided to reduce the grant or any element of a grant purely and simply on the basis of what their estimated expenditure was going to be. Once you take a Government into the realm of determining the estimated expenditure and reducing a grant because they think it is excessive, that is a very serious matter. But the ratepayers were still penalised and the Treasury was that bit better off by the grant that was withheld.
So they started thinking again and said, "We will make them give the money back". They decided that they would take powers in the 1981 Act so that a local authority could reduce its rates in the middle of a year, after the usual time for fixing rates. Some of the local authorities did, and some of them did not. But then they discovered that they required still more power, which they took in the 1982 Act, under which the Secretary of State could determine exactly the amount of the reduction of the rate.
The report has to go through the House of Commons—it does not come to this House—and it is being dealt with here at the present time. There are four orders in respect of Glasgow, Stirling, Kirkcaldy and Lothian, and if they do not do what the Secretary of State wants within 26 days then it is deemed to have been done. I do not know what happens thereafter, but I suppose that if they do not put it into operation they are in default and can be charged by any individual ratepayer with illegally withholding a reduction of rates from him.
This is a serious matter, and it is what this order is about. Until this order is passed—it is an affirmative order, and it has already been passed by another place, but it has to be passed here—the Government cannot proceed with the regulations. Although they have certain power, they do not have power to make the regulations. My first question is: why on earth did the

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far-seeing Scottish Office civil servants and Ministers not see what had to be done? I cannot blame the noble Lord because he was not there, and if he had been there he would probably have seen it like a shot. The noble and learned Lord the Lord Advocate is a bit to blame here, too. He is the legal giant among them. They were his draftsmen who were drawing up this Bill. Why did they not see that what had to be done in 1981 would also have to be done in 1982 to cover the regulations, if they had to apply for a report and make a local authority reduce its rate poundage? It is a very serious matter.
Now this House is in a position where, if we vote against this order, it will be very difficult for the Secretary of State to proceed with his punitive expedition against Lothian, Stirling, Kirkcaldy and Glasgow. So the question is: is he justified in doing what he is doing? I do not suppose that the Government have finished yet. We shall probably have another local government Bill later this year. They will discover some further flaw, some noose that they have not tightened, and will make a further attempt to strangle local authorities.
We have a very intricate web which has been spun around local authorities and which is denying them the democratic freedom that people expect. They are forcing Glasgow to reduce their rates by 3p in the pound; in the case of Stirling it is 2p., as it is for Kirkcaldy; and in the case of Lothian it is 6p. I think that, in Glasgow, it is 19p per week which the average householder will get back. What they lose for that is something that will be determined. Libraries will probably not open on certain days of the week; there will be a slowing-up in dealing with planning applications; and other departments, such as recreation, will be affected—all because the Secretary of State has decided that, in his opinion, their expenditure is unreasonable and excessive.
Just before the general election there was a meeting with Glasgow Corporation and the Secretary of State discovered that he had made a mistake of £4 million out of £10 million. So instead of reducing the rates by 5p, he said that 3p would do. But what about all the other things that are there? We shall be opening in Glasgow—and I daresay that the noble Baroness, Lady Elliot, will be delighted because of her connection and her husband's connection—the Burrell Collection and the new art gallery. It is one of the finest in Britain. The Government want it open, and they paid half the cost of it. I was Secretary of State at the time when we came to the formula. Glasgow has an additional £1 million, and we can understand it, because they have to staff the gallery, heat it and maintain it. That is expenditure which is additional to last year's. Is that excessive and unreasonable? Or are they to open the museum on one day and close it the next because the Government say, "You are spending more than last year"? As a matter of fact, they are not spending very much more than last year, when this £4 million is extracted.
The Minister mentioned only Section 1 of the 1982 Act, which was an amendment of Section 5 of the 1966 Act, but the rest of that Act transferred responsibilities from regions to districts. Tourism now comes under Glasgow, which it did not last year. Recreation also comes under Glasgow, which it did
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not last year. Having transferred the functions, are the Government now to deny them the opportunity to raise the additional monies? This is crazy. In the last Session of Parliament we had a Mental Health Act. I remember the feeling of triumph in your Lordships' House when we got the Government to agree that there should be mandatory after-care attention for mental health patients. What is the use of loading new functions on to local authorities if the Government say, "If you are going to spend money on that, it is excessive and unreasonable"? This is the reality of life in local authorities today.
Of course, the rates are going up, but why are they going up? I ask your Lordships to ask the Chamber of Commerce in Glasgow why the rates are going up. They are going up because the Government are cutting their share of the cost. The noble Lord. Lord Lyell, is shaking his head. I will gladly sit down. We have three quarters of an hour.
Lord Lyell: It is less.
Lord Ross of Marnock: We have three-quarters of an hour. If the noble Lord wants to intervene and make a telling point, I shall be delighted to handle him and manhandle him after he has sat down again.
Lord Lyell: Order!
Lord Ross of Marnock: Five years ago the Government's share of reckonable expenditure—and it is the Government who fix that expenditure—was 68½ per cent, for the whole of Scotland. What is it today? It is 61 per cent. The local authorities meet the rest. How do they do that? Even though they are spending the same amount of money, if the Government cut down their share the rates automatically and inevitably go up. That is happening all over Scotland. The Government put out guidelines. There are 65 local authorities, and 62 of them are above the guidelines. But there are only four who are singled out for this penal attack by the Government.
There was another one—Shetlands. It was going to spend far more than Glasgow, Lothian or anywhere else, and then the Government met and said, "We will not take any action against the Shetlands". I think they were afraid that action might have been taken against oil in the Shetlands. Oil is a very big weapon indeed. Without giving any reason, certainly without making any comparison with other local authorities, the Government let Shetland off the hook. The rates will still go up in Shetland. But what about Glasgow? Glasgow's increased expenditure this year is lower than the average in Scotland. Its increased expenditure per head of population is lower than the average in Scotland.
A Question was asked on 30th June in the other place. The answer is illuminating. One of the things that the Secretary of State is concerned about is Glasgow's record. He was asked exactly how expenditure in Glasgow compares with expenditure five years ago. His answer was that expenditure on services in Glasgow, in constant terms, at November 1982 prices from 1979–80 to 1983–84 was as follows: in 1979–80 the amount spent by Glasgow on services was £82·27 million, while in 1983–84 this excessively

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extravagant local authority spent not £82·27 million but £82·92 million. Is this runaway expenditure? Of course it is not. There is a mistake in that figure of £4 million, which the Secretary of State admitted. This means that Glasgow is spending less.
The reason why the rates are going up is the Government's cut in rate support grant. This is crazy. Four reports have been published in respect of which these regulations will eventually be made. Shall we see those regulations when they are made? According to Section 111 the Government will have to consult the local authority associations. During the same period, Scottish Office expenditure went up by 12 per cent, while Glasgow's and Scottish local government expenditure went down. So the last people to come here and ask for regulations in order further to strangle these four local authorities are the Scottish Office.
In support of their case the Government are supposed by statute to pick out other local authorities with which to make comparisons. When one looks at the comparisons one finds that for the third time they are trying to hammer Stirling. The Government usually take four different local authorities for the purpose of comparison. They are on their tenth one with Stirling. They change their comparisons every year. It is the old rate support grant argument. You start at the end; then you find your comparisons afterwards so that you get the result you want. If I asked the noble Baroness, Lady Elliot of Harwood, to compare similar local authorities with the district of Glasgow, which is the biggest local authority district in the whole of Scotland, would she say that it is right to compare Glasgow with Falkirk, Glasgow with Cumbernauld, Glasgow with Clydebank? Is there any just comparison relating to population, expenditure per head and services? It is crazy. We have moved away from rational thought in respect of local authority expenditure into the realms of fantasy, which arises purely from the whim of the Secretary of State.
I hope that the noble Lord, Lord Gray of Contin, realises the kind of morass he has stumbled into. This is not the last of our arguments; it is only the beginning of our arguments. The noble Lord knows how reasonable I am. If he were convinced that I am right—and I am sure he is—he would get up and say, "In view of the speech of the noble Lord, I shall withdraw this motion and consult the Secretary of State". A 2p reduction in Stirling, a 2p reduction in Kirkcaldy and then in Glasgow—all this is undermining the spirit of local government democracy in Scotland. That is what is at stake. If we go much further down this road, I do not know whom we shall get to serve local government. No self-respecting person will serve local government if he knows that every decision he makes will be supplanted by a direction from the Scottish Office.
How many people in the Scottish Office are now looking after local government in Scotland? I know how many people in local government have to go into the question of estimates, finance and the rest, but how many people are doing this in the Scottish Office? Or is it being done very crudely, with guidelines then being produced as holy writ? They are more like guile lines than guidelines because they do not mean anything in relation to the reality of local government. I hope that the House will not pass this order.
7.47 p.m.
Lord Mackie of Benshie: My Lords, I, too, would very much like to welcome the arrival of the noble Lord, Lord Gray of Contin, in this House. He may regard it as somewhat of a caesarean operation in that he was put in here perhaps prematurely. Nonetheless, he is extremely welcome. I am sure that the noble Lord will agree with me that he could not have been put out of the other place by a better party. In spite of all the "cracks" which have been made, the welcome is indeed sincere. We are sure that the noble Lord will do as good a job as his party will allow him to do.
I wholly agree with the noble Lord, Lord Ross of Marnock, though I shall take a little less time in which to do so. It is an unfortunate subject for the noble Lord to have to deal with first in this House. The way that the Secretary of State is going on about this matter is quite extraordinary. Local government in Scotland needed a great deal of reform. There is no question whatsoever about that. The party of the noble Lord, Lord Ross of Marnock, had done a great deal of harm to the reputation of local government. There were many anomalies. In the much quoted district of Glasgow, for example, the ratepayers were soaked at the expense of householders in municipal housing who had low rents and low rates and who, of course, continued to vote for the party which put them in this position.
The reforms have now been made. No longer are parties able to return to power by soaking one section of the community, which is what the Labour Party did for many years. Those reforms were right and proper. I do not know who is prompting the Scottish Office, or the Government. I do not know whether Scotland is being made an example, perhaps to be followed by England. However, the Government are now going to quite ridiculous lengths. Lothian is a case in point. Having got the conditions right and having made it quite clear that the locally elected councillors would have to sting their constituents if they wanted to carry on with excessive spending, the electorate got the message and removed the offending party from control of Lothian. That, I should have thought, was a right and proper thing to happen in a democracy, and the Government should have been quite pleased that it did happen.
It is much easier to keep one's expenditure down and much more difficult to reduce excessive expenditure, but nevertheless Lothian succeeded in cutting £53 million. They fixed a rate at 92p—not excessively above the average in view of Lothian's problems. One would have thought that democracy had been at work and that this was a reasonable thing for the Government to achieve.
Now the Government are actually listening to the local Tory Party, so far as I can gather—to the minority group—and are fixing the reduction at the level at which the local minority group Tory Party fixed it. They are not allowing any compromise. This is appalling. This is a complete negation of democracy. Here is a case where the Government appear to be acting—I do not know what. Is it out of spite? Is it out of offended pride? In Scotland we would say that the Government are being "bairnly"—and I will explain that word to the Hansard reporter afterwards, although I believe the noble Lords the Ministers on the Front Bench know exactly what I mean.

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That is quite the wrong way for the Secretary of State to go about this. When one imposes arbitrary cuts on a local authority (and this has been proven time and again) and imposes them very quickly—and one does it in Government—that which is cut is the most easily-cut expenditure. They first take capital expenditure and cut that back. Then they take the sharp end. They do not try to cut administration. What they have done in Lothian is to cut the teachers and the home helps, and then try to save money on transport.
They have been reasonably successful in cutting expenditure, but expenditure has not been cut from those places where everyone wants it to be cut—from the excessive costs of administration. The noble Lord, Lord Ross of Marnock, was probably absolutely right when he said that the administration costs had been forced up by the Government's action. As a result, the Government are surely spoiling their own case: they are making it quite obvious to any decent, respectable and respected man that there is no point in going into local government.
If Central Office and the Treasury are going to check through every item of expenditure—which is obviously what is going to happen—what the devil is the point of having local democracy? It would be far better for the Secretary of State to appoint his commissar and let him run matters according to the rules of the Scottish Office. All this is really going too far. It is negating the good work which the Government have done up to now. I must say that I had hoped for better things from the Ministers of the Scottish Office.
If we continue in this manner, efficiency will fall lower and the best people will not be returning. One is far more likely to have a return to the kind of body which the Government are so much against. Think what a really "smart cookie" member of the sort of Government we might have if the Left-wing of the Labour party were elected to power could do with the powers now being handed to him on a plate. He could order the councils, conceivably, to double their rates and spread them about his favoured customers. It is a very bad order. The Government are going along a very dangerous road, and I must say that this order cannot meet with my approval.
7.54 p.m.
Lord Hughes: My Lords, having given way to the noble Lord, Lord Mackie of Benshie, who has made what was for him a long speech—because he does not usually speak for seven minutes—I shall have to cut short my remarks. Until my noble friend Lord Ross of Marnock had done his research, I had not realised how densely populated this House was by former Ministers of State for Scotland. In fact, if one looks at the attendance one might say that it is as some of our English colleagues would say, almost infested by former Scottish Ministers of State. But there are now two of us present—the noble Lord, Lord Strathclyde, and myself. I believe it would be appropriate for me also to extend a word of welcome to the noble Lord, Lord Gray of Contin.
If the noble Lord, Lord Gray of Contin, has a grievance against the electors of Ross and Cromarty, it
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has been added to tonight because he now knows the kind of thing which he has to face in this House. Every time he gets up to speak as Minister of State for Scotland he will be left in no doubt at all by my noble friend about the shortcomings of the Government in Scotland. Although my noble friend perhaps spoke longer than the noble Lord, Lord Mackie of Benshie, wanted him to speak, and probably spoke longer than I would have done, every word he said was absolutely true.
The noble Lord the Minister started by saying that this was not the subject that he would have chosen for his maiden speech. I can understand why he said that. He is a good Scot—we know that. It cannot come naturally for a good Scot that his first speech should need to make yet a further attack on local government in Scotland.
I have been long enough in public life to remember the election in Scotland when the Tories' slogan—a slogan with which they tried to gain seats in Scotland—was
"Town Hall knows better than Whitehall".
That sentiment has been abandoned with a vengeance during the past few years. However well he may put the case forward—and the noble Lord will have this kind of thing to do yet again—I cannot believe that the heart of the new Minister of State for Scotland will endorse this kind of order. He has my sympathy; but I also welcome him to this House because in this Chamber we need all the Scots that we can lay our hands on.
Lord Gray of Contin: My Lords, might I first thank the noble Lords, Lord Ross of Marnock, Lord Mackie of Benshie and Lord Hughes, for their generous comments and their welcome. I can assure them that if they care to indulge in party political knockabout, I shall try not to be tempted to follow their example. But where they make criticisms of the Government then I shall certainly defend my Government in the knowledge that the steps which the Government are taking, and have taken over the last four years, are the only realistic steps which could have been taken in order to try to recreate in this country the kind of success which we have almost forgotten.
The noble Lord, Lord Ross of Marnock, asked why it was that this order was not made some time ago. The answer to that question is quite simple. It is that the Government, like any thinking Government, are reluctant to bring legislation before the House which is not absolutely necessary. Indeed, this order would not have been necessary had some local authorities in Scotland not obliged my right honourable friend to take action because he was satisfied that they planned to incur excessive and unreasonable expenditure.
I agree with the noble Lord that the circumstances which made this order necessary are regrettable. The Secretary of State, however, acted reasonably in not making the order until it was seen to be necessary. If local authorities had been as reasonable, then very likely the order would not have been required at all. That I give as my answer also to the noble Lord, Lord Hughes, who raised the same issue.
The noble Lord, Lord Ross of Marnock—and I congratulate him on having lost none of his powers of

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oratory since he came to this House from another place—said that I knew him and that I know him. That is very true, I do know him; and I can never forget him for his performances in another place. I know that his skills in debate reveal his technique for quoting and for giving reference to support his own arguments very skilfully indeed. We would almost have been misled by some of his remarks had we not done a little bit of research. He was suggesting that this Government was extremely ruthless with local government, insisting on defying local democracy and unnecessarily cutting back the amount local authorities had to spend. But of course the largest reduction in the rate support grant percentage was 4 per cent., and that was made during the period of government 1977–78 when the noble Lord, Lord Ross, was a member of the Cabinet.
Lord Ross of Marnock: No, the noble Lord had better get his facts right if he is going to continue without interruption from me. I left the Cabinet in 1976.
Lord Gray of Contin: My Lords, I apologise to the noble Lord; I of course was mistaken in that; but what I was not mistaken in was that the party of which he was a very loyal supporter formed the Government at that time. Indeed, the abatement in 1976–77 leading to a reduction in local authority expenditure was also associated with the party of which he was a loyal member. So we must get these things in perspective.
The noble Lord, Lord Ross, referred to the situation in Glasgow, and there was one comment which he made which I must put right. He referred to the alleged error, I want to clear up any misunderstanding which there may have been over errors which have been described in newspaper articles. All local authorities, as the noble Lord knows well, have to submit by the middle of March each year a form giving information about their budget for the following financial year. This form has to be certified as correct by the authority. Glasgow's form as submitted was, to put it at its best, confusing. It included a sum of £8 million for unallocated contingencies without any explanation.
In view of the size of the sum, the Scottish Office made inquiries of Glasgow. These revealed that the sum was an unallocated contingency which should have been shown elsewhere, and none of it taken into account as part of Glasgow's relevant expenditure for comparison against guidelines. Once the Scottish Office had established this, the £8 million was removed from Glasgow's figures for the purposes of guideline comparison and their guideline excess adjusted accordingly. The £8 million played no part in our consideration of Glasgow's expenditure for selective action. If there was any mistake, it was Glasgow's mistake for failing to present their figures properly.
The second error was over the £4 million included by Glasgow in its certified return on the line for housing improvement grants. This line is used by all other authorities and up to this year had been used by Glasgow itself only for the expenditure involved in administering housing improvement grants and loan charges, but not for the grants themselves. This year Glasgow decided to enter in this line expenditure on the grants themselves. It was bound to cause confusion
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if Glasgow chose without explanation to change its practice in providing information. The first time it was drawn to the attention of my right honourable friend was at a meeting which he held with representatives of the Convention of Scottish Local Authorities. The purpose of such meetings is of course to discuss local authority financial matters in general, not detailed points of this kind. Once again the term "error" is quite inappropriate.
Lord Ross of Marnock: My Lords, it is really not worth while giving way, I never mentioned the £8 million that the noble Lord spoke about. I do not know where he got his reply, but it was not related to my speech. I never mentioned it.
Lord Gray of Contin: My Lords, the noble Lord will be none the worse for the information even if he did not mention it. The noble Lord also asked me about the regulations and I have to tell him that the regulations are subject to negative resolution of either House.
The noble Lord, Lord Mackie of Benshie, also expressed some reservations about the order and particularly the question of local government democracy. But of course I have to remind him that national government and local government is a partnership, and national government obviously has the right to determine expenditure at the top of that partnership, because in each partnership there will be a senior and a junior partner. The local authorities are absolutely democratically elected—the noble Lord is perfectly correct—but the guidelines are laid down by the Government. If local authorities overspend and appear to be going to overspend, and that excessive expenditure, in the opinion of the Secretary of State, is endangering the whole policy which is being followed in an effort to try to recreate what we would all wish to see in this country, then of course the Secretary of State is absolutely right to take what powers he can. The powers we are discussing tonight are a development, as the noble Lord discussed of earlier Acts. We go back I think to the 1929 Act, and the 1966 Act in particular, and this order tonight is a development from powers taken in those Acts.
Lord Mackie of Benshie: My Lords, I am very glad to hear the noble Lord say that it is a partnership. The point I am trying to make is that when you treat a partner as an employee you stifle any further development and he becomes an employee. I was trying to say that that is the point at which the Government are.
Lord Gray of Contin: My Lords, I accept the point that the noble Lord has made; I obviously would not agree with him; but I realise the point he is making. I think we have had a useful debate this evening. We have discussed this order in some detail and I am grateful to noble Lords who have participated in our debate. I hope that we shall have the opportunity of many more debates in which we can exchange our views and ensure that the Scottish people know full well that in the House of Lords their interests are always well considered, and that the right decisions are ultimately taken.
On Question, Motion agreed to.

Data Protection Bill [H.L.]
8.10 p.m.
House again in Committee.
Clause 31 [Payrolls and accounts]:
Lord Mishcon Lord Mishcon moved Amendment No. 47:
Page 22, line 39, leave out ("subsection (2)") and insert ("subsections (2) and (7)")
The noble Lord said: With the Committee's permission, may I take with this amendment Amendment No. 51, and I hope introduce a long line of brief speeches in order that we may make some rapid progress.
Amendment No. 51: Page 23. line 30, at end insert—("(7) The Secretary of State may by order withdraw the exemption of data under this section, and an order under this section may make different provision in relation to data consisting of information of different descriptions, or held for different purposes.")
The object of this exercise is really to give legislative power first of all to redress something which proves to be wrong, and also—if I may put it this way—to move with the times.
Lord Swinfen: May I be so rude and so bold as to interrupt the noble Lord? Is he proposing to make use of the new procedure, introduced earlier this afternoon, to have a note of the second amendment to which he is speaking put into the Official Report at the same time?
Lord Mishcon: I am extremely grateful to the noble Lord, because it gives me quite pompously the opportunity of saying that it is a procedure which I had the honour of suggesting in the Procedure Committee and which was subsequently adopted. Therefore, I should love to take advantage of the new rule, as it were, to ask that this be done and that the linkage takes place in the report of our proceedings that subsequently appears. I cannot sufficiently express my gratitude to the noble Lord.
In speaking to both these amendments I should say that the real purpose of the exercise is to do two things. First, it is to give a necessary legislative power if one finds one has given an exemption which is wrong; and, secondly, it is to be able to move with the times because one imagines that the Bill, if enacted, will be on the statute book for some time and one does not want to have amending Acts every five minutes.
Under the present provisions it literally would be the case that one would be exempting at one stroke under Clause 31 about 80 per cent, of all the automatic processing of personal data that takes place. Therefore, to give power, as Amendment No. 51 does, to the Secretary of State to withdraw an exemption of data if he thinks it expedient to do so and to make an order under this clause which can make different provision in relation to data consisting of information of different descriptions, or held for different purposes, seems to me to be very sensible. I beg to move.
Lord Mottistone: In principle I support the noble Lord, Lord Mishcon, on the thinking behind what he is advancing, which is also reflected in amendments I have yet to move. I shall speak to them when I move
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them; otherwise, they will not get recorded as the new procedure does not go that far. I merely say that the principle of the idea that we can move with the times and adjust the extra things that can be included is a good one.
Lord Elton: In Clause 31 we bring home our unicorns—those elusive beasts, the completely harmless categories of data that can be exempted from the Bill without danger to anyone. Clause 31 has been carefully constructed at the urging of noble Lords on both sides of the Chamber and of bodies outside it. It reflects suggestions put to us from a number of quarters, among them the Opposition Members of the Committee on last Session's Bill in another place who put their names to an amendment exempting payroll and accounting data. We have been particularly careful to limit both the purposes for which the data are held and the disclosures that are permissible in order to ensure that no harm is likely to befall data subjects as a result of the exemption of data. I see no prospect of that expectation being disappointed. If we were not confident of that we would not have amended last Session's Bill in the way that we have. Nor, I suggest, would the Opposition parties have joined together to urge us to amend it.
That being so, I think there is only a slender chance of the order-making power proposed by noble Lords opposite in fact being needed. It is so slender that I find the prospect of legislating to provide that power awakens all those instincts which flourished in my bosom when in opposition, and which the holding of office tends to smother. I am not over-keen on voting a Government powers which I do not expect them to use. That is a healthy instinct which noble Lords opposite will understand very well. In this case it is supported by the reflection that as long as it exists small users who hold data for no other purposes than those covered by Clause 31 would not be finally free from potential application of the Bill, and the legislation would hang over them like the sword over the head of Damocles.
At one point last session we were urged to provide for an order-making power under which the Secretary of State could exempt certain data to be defined in the order. At that time we took the view, and I think it was supported by the noble Lords opposite, that if there were to be any exemptions they should appear on the face of the Bill. I think that the reverse equally applies, inasmuch as if an exemption is made on the face of the Bill, as it is under Clause 31, it should not be capable of being rescinded or withdrawn by subordinate legislation. I hope I am not splitting hairs and that, on reflection, the noble Lord will agree with me.
Lord Mishcon: I love to follow the noble Lord the Minister when he reminisces in the humorous way that he does about previous metaphors that he has used, especially when they relate to the animal kingdom. I am tempted to tell him that possibly the answer to his speech is: when is a unicorn not a unicorn? With the passage of time I suppose it is possible for the species to develop so that it is not recognisable as a unicorn. That is exactly what I am endeavouring to provide for. When one is legislating, is it not sensible to try to provide for all contingencies? The noble Lord said that

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there was only a slender chance that the cancellation of the exemption might be required. That may well be his forecast now. If so, should he not give himself the power in this legislation to deal with it?
May I say with great respect that I feel this is a debating argument. In order to defeat something it cannot be regarded as a very reasonable argument against it merely to say that the sword of Damocles would be hanging over many thousands of users who would wonder whether an order might appear one day and that Parliament might agree it. I do not regard that as a very practical prophecy.
I believe this is a sensible amendment. However, it is not the sort of amendment for which I am prepared to put my head on the block. I merely throw it out as a sensible suggestion. If the Minister will agree to consider, between now and Report, whether there is rather more merit in it than he thought, I, for my part, will be perfectly happy to withdraw the amendment. I hope the Minister will give that assurance.
Lord Elton: The noble Lord is as courteously persuasive as ever. I thought I had a unicorn with one horn, and he has presented me with a dilemma which has two. Therefore, if he will bear with me, although I am not enormously attracted by what he said I think there is some force in his argument and I should like to look at it before the next stage.
Lord Mishcon: In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 48:
Page 23, line 6, at end insert ("; or
(c) for the purpose of administering a data subject in respect of service by the data subject in any employment or office with the data user,")
The noble Lord said: I should like to bracket Amendment No. 50 with this amendment and, in accordance with the new rules of procedure, have both amendments recorded, because the first amendment does not mean anything without the second.
Amendment No. 50: Page 23. line 24, at end insert—
(" () Personal data as referred to in subsection (1)(c) above shall only be exempt as specified in the said subsection (c) if such data have been supplied to the data user by or with the consent of the data subject (or a person acting on his behalf).")
This amendment is on the same theme. It seeks to widen the extent to which Clause 31 can include information about which there is no doubt. It seeks to add all the types of information which are supplied by an employee, such as address, telephone number, children, next-of-kin, qualifications and courses attended. This will be the kind of information he will probably have entered on his application form for the job.
Amendment No. 50 is drafted in a rather strange way because the friend who proposed it to me was advised by a lawyer, but the important part of Amendment No. 50 is that which says that Amendment No. 48 only takes effect if it is information which is,
"supplied to the data user by or with the consent of the data subject".
Therefore it is information which he already knows and which might usefully be added to his payroll
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information. The justification is similar because he knows what is there as he gets the money. I suggest to my noble friend that this would be something which could usefully be added at this stage in order to reduce the amount of excessive causes for data users having to register with the registrar so as not to overwork those inadequate 20 people whom the registrar has to work for him. I beg to move.
Lord Swinfen: I approve of the principle of this amendment, but I should like to ask my noble friend one small point. If someone, having completed his original application form, goes on to get more qualifications, attends courses or gains various bits of experience that are worked up within the firm's own time, which the employer may also wish to record in a similar manner, what is the position? It strikes me that information on the original application would be covered by the amendment but the other information would not be. It would be in a totally different position. It seems to me illogical.
Lord Mottistone: I think I can answer that. I used the application form only as an example of the sort of information that would be there. Amendment No. 50 speaks of data which has been supplied to the data user:
"by or with the consent of the data subject (or a person acting on his behalf)".
He could allow the personnel officer who organised his course to provide that sort of information on his behalf within the terms of my amendments.
Lord Elton: The Government were persuaded as a result of exchanges on the earlier Bill that there was a case for exempting two sorts of data used in specific and very carefully defined circumstances. They are described in Clause 31 as data held only for payroll and accounting purposes. The clause exempts them provided that the limitations on their disclosure are met. My noble friend Lord Mottistone is now asking us to add a third category—data provided by an employee to his employer and used for "administering" the employee. My noble friend has indicated the kind of information that he has in mind here. It is the basic information about staff that managers are increasingly holding on desk-top micro-computers: name, address, qualifications, employment history, and the like. But I have grave doubts as to whether this ought to become a third category of exemption.
First, I have to say that, from the viewpoint of the data user, an exemption as proposed would, I think, be of limited value. Almost any user with managers holding this kind of data on desk-top micros will also hold similar data, as part of their general and much more wide-ranging employment records, on some central system. Those central records will not be exempt. I do not think my noble friend would suggest that they should be. The registration of the central system will sweep up the desk-top files, since the description of the central data will embrace the data on the managers' files, the purposes for which the data are held will cover both sets of data, and so on. To the extent that the limited exemption proposed will not relieve the user from any significant responsibility—and nor will it keep unnecessary particulars off the register—I find it unappealing. I

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would also add that I wonder how many managers with desk-top micros will in fact restrict their records on employees to the data covered by the amendments. I suspect that very few would qualify for the exemption. But that is not my main anxiety. We must look at the proposal from the data subjects' point of view.
As your Lordships are aware, one of the main purposes of this Bill is to reassure data subjects about the use of personal data; and I have to say that I think there could be some concern among data subjects at being "administered" by exempt data. Incidentally, I am not at all clear what the term "administer" means in this context. But what does seem indisputable is that it goes very wide. It could cover discipline, promotion, pay and a host of such matters. Data may be provided by the data subject, but when combined with other data he has supplied, or indeed that he has not, the net result may be an administrative use that he had never considered.
In exempting payroll and accounting data we have accepted that here are certain kinds of personal information that virtually every company in the country—large and small—holds as part of everyday business activity. The data subject knows it is held, and, more important, knows of what it consists and precisely what it is used for. Indeed, generally it can only be used in a way that is of direct benefit to the subject: paying his wage, salary or pension, or recording and regularising the business transaction which subject and user have both voluntarily entered into. This is all so innocuous that it really does not warrant statutory protective machinery. Finally, through regular pay slips and the normal process of invoicing, there is a means by which the subject himself can keep a check on the end result of the use of the exempt data. The data covered by these amendments are of a rather different nature.
I am afraid that the amendment leaves us with a rather imprecise idea of what will constitute the data, and we are even less certain of the uses to which it may be put. These two uncertainties make it difficult to assess the benefits which their exemption would bestow on users. They also leave us less than confident that they cannot combine to the detriment of the data subject. As the protection of the data subject is in fact a central purpose of the Bill, regretfully I am afraid that I cannot commend my noble friend's proposal to your Lordships. I am sorry I cannot be more encouraging.
Lord Mottistone: I am most grateful to my noble friend for having given the reasons at such length why he is not entirely happy with my amendments. Some of the general information that he gave us contained a few nuggets—which we talked about earlier. I shall look carefully to see the nuggets in print and will hope that they will satisfy me and my friends. If not, perhaps I might come back with an even more carefully contrived solution to the problem the next time we take this point. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.26 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 49:
Page 23, line 7, leave out from ("Act") to end of line 8.
The noble Lord said: This is an amendment which refers to Clause 31 of the Bill, as the Committee appreciates. That clause exempts from the registration provisions of the Bill certain payroll accounts. I have no doubt at all but that this is a very desirable and wholly understandable provision. It follows therefore that in so far as those accounts are concerned, there will not be supervision by the registrar under the requisite provisions of the Bill. What we on this side of the Committee however quarrel with is the next stage. Why should data subjects, whose names and data appear in respect of such payroll accounts, be deprived of the right of access under Clause 21; rectification and erasure where there are mistakes, under Clause 24; or compensation for inaccuracy under Clause 22; where it is shown that the data published is wrongfully disclosed? We say that such data is capable of causing as much harm as any other data. The exclusion of such data from the provisions of Clauses 21, 22 and 24 is a complete non sequitur, we say. The effect of this utterly reasonable amendment would be to remedy that defect. I beg to move.
Lord Elton: As I have already said, we thought very carefully about the way in which exemptions such as those to which the noble Lord has referred should be described so as to ensure that they applied only to those strictly limited circumstances in which exemption would cause no harm. We did this not simply by the manner in which the activity was described, but by specifying that the exemption could be claimed only where disclosure took place in strictly limited circumstances. We believe that by specifying both use and disclosure in this way we have ensured that such data cannot be misused to the detriment of the subjects. Had we not believed this, we should not have come forward with the proposals.
It follows from this that the application of Part III of the Bill to such data must be superfluous. If we believed that there remained a need for a statutory right of subject access to such data, it would be because we believed that there was a possibility that they might contain material likely to do harm to data subjects. But if we had believed that, we should not have proposed this as a category of exemption. The noble Lord may well come back and say that perhaps the clause should be struck out of the Bill, but I think that that would be a mistake.
Had we conceived the possibility of damage arising from the misuse of such data, or that there might be a necessity for rectification or erasure to be ordered by the courts, we should not have exempted these activities. If there are threats to data subjects arising from the use of data for these tightly defined purposes, then the answer is to apply the whole range of the Bill's provisions to them, and not to embark upon selective controls; but as I have made clear, I do not believe that such a threat exists.
I think that I might have said enough, at least to expose my central position. If the noble Lord wishes to press me further, there is more that I can say.
Lord Mcintosh of Haringey: That was a very high-minded reply, if I may say so, and it removed from the Government's argument for exempting payroll and accounting data the issue of practicality. I should have thought that the prime argument for exempting payroll and accounting data from Part II of the Bill was primarily one of practicality; that these are universal types of data, and that the inclusion of these data in the Bill would have made the task of the registrar very much more onerous, and would have made it much more difficult for the remainder of automatically processed data to be dealt with adequately by the registrar and his very limited staff, as the noble Lord, Lord Mottistone, said. I would go along with that practical argument for exempting payroll and accounting data.
However, I do not think that that necessarily proves that harm could not arise to the data subject from these forms of data and from the way in which these data are held by employers. To me, as someone involved with payroll and accounting data, it seems self-evident that there are inaccuracies, that there are things which in the short term affect the employee's next pay packet, and in the longer term could affect his whole employment history, and could affect his chance of continued employment either at his existing place of employment or somewhere else. Without being a lawyer, I should have thought that there must be some legal redress for such an employee, and that it could very well be obtained through the courts in the ordinary way without going to the trouble of having the data subject to the registrar and the whole paraphernalia of Part II of the Bill.
Therefore on strictly practical grounds I agree with the application of Part II to these data; but there is no logical reason why there should not be redress in the courts in the ordinary way, and there is no particular good reason why the Bill should be used to deny the data subject access in this way.
The second argument that I would adduce on the amendment is that I seriously doubt whether such an exemption is in accordance with the European Convention. The principles on this matter are quite clear. Not even any of the interpretations laid down in Schedule 2 to the Bill allow for the possibility of such a wide-ranging series of exemptions from the erasure and disclosure conditions, and I seriously wonder whether in this particular case the Government have been adequately advised about conformity with the convention.
Lord Elton: I am very grateful to the noble Lord for raising the issue of the convention and for pressing this matter further, because in fact it is Article 3.2.a of the convention which enables us to justify the exemption which we propose. A further obstacle to what the noble Lord, Lord Elystan-Morgan, and his noble friends propose is that it would not be possible to adopt the proposal contained in his amendment and remain consistent with the Council of Europe Convention in that respect. This may sound surprising, but the fact is that the article to which I have referred entitles a state to give notice that it will not apply the Convention to,
"certain categories of automated personal data files".
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The provision goes on to say that among these categories there shall not be included,
"categories of automated data files subject under its domestic law to data protection provisions".
The result of that provision—a somewhat ironic one, some noble Lords may think—is that, with the exception of the derogation permitted under Article 9, data must either be wholly bound by the provisions set out in the convention, or wholly outside the scope of those provisions. The convention does not allow a state to pick and choose between the provisions that it will apply. Although some of the other requirements of the convention could without undue difficulty be applied to the data that we are discussing, there would, I fear, be considerable problems where unregistered data are concerned, in meeting the full obligations of Article 8, which, as I shall remind your Lordships,
"entitles any person …to establish the existence of an automated personal data file".
The position is therefore that we are forced to choose: either data as described in Clause 31 are wholly harmless and appropriate for total exemption from the provisions of the Bill, or we remain concerned about them and allow no exemption at all. It was with this in mind that we were so rigorous in deciding which categories we could safely exempt, and that is why there are so few. The result is I think that we have chosen what is genuinely and entirely innocuous. I hope that noble Lords will be content to leave it wholly outside the Bill, because the only alternative under this Article is to have it entirely within it.
Lord Elystan-Morgan: I have listened with very great interest to what the noble Lord has said, and I must say that on a superficial reading of Article 3 it seems that it is neck or nothing; that it must be either wholly inside, or wholy excluded from the data provisions. However, I am not quite sure that I understand the interaction between Article 9 and Article 3, and it seems to me that Article 9 refers specifically to exemptions under Articles 5, 6, and 8.
Be that as it may, we shall take full advantage of the next three months to reflect much more deeply upon this matter and to cogitate in very great depth upon what the Minister has said. I am sure that likewise he too will reflect upon the argument that has been put forward by my noble friend Lord Mcintosh of Haringey. That is, that if it has to be total inclusion or total exclusion, whether on a balance of fairness and convenience it might not be better to include altogether. So over the next three months we shall consider this matter and we shall return reinvigorated and we hope inspired in relation to what course ultimately to take with regard to the Government's attitude, knowing that they too will have given the matter their fullest thought. On that basis I most certainly beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 50 and 51 not moved. ]
8.39 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 52:
Leave out Clause 31 and insert the following new Clause—
("31.—(1) Notwithstanding the preceding provisions of this Act. where a data user holds personal data for one or more purposes specified in subsection (2) of this section, and for no

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other purpose, sections 5, 6, 7, 8 and 11 of this Act will not apply in respect of that data user.
(2) This section applies if the data user has with the data subject a contractual, trading, business or professional relationship to which the personal data relates and the purposes referred to in subsection (1) above are to administer (in a manner and to an extent that the data subject would reasonably expect) that relationship and/or the internal management of the data user's trading, business or professional activities.
(3) Any data user who is exempt under the provisions of subsection (1) of this section shall nevertheless take all necessary steps to ensure that any personal data which he holds are held in accordance with the principles contained in Part I of Schedule 1 of this Act and in interpreting the second, third, fourth and sixth principles the purpose or purposes for which data are held will be deemed to be the appropriate purpose or purposes described in subsection (2) above.").
The noble Lord said; On this amendment I have been advised by the CBI, and its great concern was that of the noble Lords opposite in the amendment that we have just debated; namely, that the Government were moving outside the terms of the convention. My noble friend has answered the points of which the CBI was fearful, and it asks in particular that this should be clarified. The CBI very much welcomes Clause 31 as it stands because it is moving in the direction in which it has always sought to move of having exemption for registration for data held for routine business purposes. The CBI presumes to recast in the amendments that we are now discussing the whole clause partly in order, as it sees it, to get over this problem of possibly going against the convention for the very reason with which my noble friend has dealt, but also in order to expand the scope somewhat to cover other routine business matters which it felt it could reasonably fit within its recast clause. I accept what my noble friend says so far as it goes. I cannot comment upon it but I will ask my advisers to study it carefully. I hope that he might see whether Clause 31 as re-proposed on the lines of Amendment No. 52 might not be a better way of tackling the problem in order to make sure about the convention and in order to give the scope that is possible.
I would have also thought that we are on a slightly dangerous point, both noble Lords opposite and myself, insofar as the Government have taken immense trouble to include this to satisfy what we were asking for when the Bill came before us last time. If we push too hard the Government may find some terrible weakness and take it away. We must try to preserve Clause 31, albeit in its present form, if the Government can live with it. I do not know whether my noble friend will be able to say that he will look at my amendment which genuinely tries to help him. It is only in any case a probing amendment.
Lord Elton: I hope your Lordships will forgive me as I pause. I was reflecting whether I could not curtail what I was going to say. I have so decided. If, therefore, there is a certain incoherence, I hope that my attention will be drawn to it and I shall try to put it right. It is perhaps proper if I start by explaining why I believe that a reduction in the scope of the register as drastic as that which I believe to be implied in the amendment would fundamentally change its character.
In our view, the register will fulfil two functions in relation to domestic considerations. The first is that it
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will provide the registrar with an insight into the range of circumstances in which personal data are used. It will tell him the scale of the activity and the range of purposes, disclosures and so on, that currently take place. Although Clause 31 as drafted may remove a number of entries from the register there would always be entries of a similar type. They would relate either to payroll or accounting systems.
The amendment we are now considering would. I believe, not only remove a substantially larger number from the register. It would also remove a wide range of activities of different types. It would lose its role as the registrar's essential point of reference and he would have no precise means of judging whether data were being used or disclosed in accordance with a clearly defined purpose. I appreciate the attempt made in subsection (3) of the amendment to interpret what the principles mean by specified purposes and disclosures, but I fear that the overall effect would still remain extremely vague. Indeed, I cannot believe that users would really welcome so uncertain a provision as that now before us, since it would leave the registrar with total discretion to decide, subject only to appeal, whether a particular disclosure by a data user was compatible or not with the trading relationship in question. The effect of the amendment could thus be to rob the registrar of an essential tool in general oversight while leaving him wide-ranging discretion in individual cases to interpret what I am bound to say are some highly subjective tests. I do not think that it would be right to do that.
Nor should we forget the implications for data subjects if we were to go down the road that is proposed here. The result, I suspect, in a wide variety of cases would be to deprive them of the ability to discover from the register what were the legitimate activities of a particular data user. Although they would still be entitled to seek subject access to data held about them, they would apparently have no means of knowing the purposes for which those data were held or to whom it was the user's practice to disclose. They, like the registrar, would be deprived of any general idea of the range of activities undertaken with personal data.
I suspect that we would find ourselves in considerable difficulty with the Council of Europe Convention. It is the unexpected difficulty that noble Lords opposite came up against in the last amendment, so I will not elaborate. I hope that I have said enough to satisfy my noble friend that I am afraid I cannot meet this proposal with the enthusiasm that he would like.
Lord Mottistone: I am deeply grateful to my noble friend for what he said in answer to Amendment No. 49 and in answer to this Amendment No. 52. It will give us great food for thought. I said that it was a probing amendment. We shall have a good look and if we can think of anything better we might come back on Report. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 agreed to.
Clause 32 [Domestic or other limited purposes]:
8.46 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 53:
Page 23, line 43. at end insert ("but it shall be a condition of that exemption that the data are not disclosed to any other person").
The noble Lord said: The Committee, or what is left of the Committee, may well remember that on this clause dealing with some sensible exemptions from Part II and Clauses 21 to 24 of the Bill, we dealt in the last Session with certain difficulties. Some amendments were generously conceded by the Government. However, I do not think that they have gone far enough. I can put the point shortly. If your Lordships will look at Clause 32, and particularly subsection (2), you will see that, understandably, the exemption I have mentioned is given to personal data held by an unincorporated members' club relating only to members of the club and personal data held by a data user only for the purpose of distributing or recording the distribution of articles to the data subjects and consisting only of their names and addresses. The first example, obviously, is that of a club, which will be readily appreciated. The second, I suppose, is of a departmental store or mail order business.
If your Lordships turn over the page you will see in subsection (3) that the condition for the exemption is that there has been a request by the club or the other data user of the person concerned to see whether or not he objects. If he does not object, the exemption applies. All that is sensible.
But the amendment catches, I think, the omission from the clause. It is this. If the members' club, the departmental store or the mail order business decides to pass on to a third party the information that they have with the permission of the data subject, and does so without the data subject's permission—it is most likely, in some cases, and certainly for a mail order business or departmental store, that may be for money or money's worth—it is obviously completely unjust that the data subject is then robbed of his rights in respect of that matter by virtue of the exemption that is granted by Clause 32. It is a simple point that I can put in one sentence. Non-objection to holding should result in exemptions for holding but not in exemptions for unauthorised disclosure. I beg to move.
Baroness Trumpington: With this amendment to Clause 32(2) we return to an issue which was, as the noble Lord, Lord Mishcon has indicated, the subject of some debate last Session. Noble Lords and others well know the contents of the clause, so I shall not weary the Committee by going through them again.
As indicated last Session, the first part of the exemption is aimed at specialised clubs and societies who may well use micro-computers to hold membership lists and to circulate news-letters et. cetera. The second is aimed primarily at similar noncommercial bodies who may not be able to claim the examption for clubs—such as a local church which may use a micro-computer to circulate a parish magazine. The requirement that only names and addresses are held and that subjects be consulted means that this exemption is unlikely to be of great
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significance in the commercial direct marketing industry. Thus we are dealing with two categories of personal data held in very limited circumstances which can be exempted without leaving the data subject unprotected.
The amendment proposed by the noble Lord opposite would impose a further condition of exemption under Clause 32(2), that the data are not disclosed to any person. As a result of a Government amendment last Session—prompted by the comments of the noble and learned Lord, Lord Elwyn-Jones—we have already ensured that where these personal data are diclosed the recipient of the data, before being able to claim the exemption under Clause 32(2), will himself have to go to the subjects and make sure that they do not object to his holding the data. He can no longer rely on the subjects' consent to the original user holding the data. Moreover, the requirement under Clause 32(3) to consult the data subject gives him a very considerable power to safeguard his own interests. Thus, when asked by a data user whether he objected to personal data about him being held, the subject could indicate that he did not object provided the data were not disclosed to particular persons, or indeed to any third party.
I have to say that to go as far as is suggested in the current amendment and to ban all disclosures would in large part render the exemption worthless. Few would wish or be able to claim the exemption if all disclosures were prohibited. Thus a fishing club might wish to inform another club of members who might be interested in taking part in a competition; and, back at the church, even a vicar is likely to need to disclose personal data to his churchwardens and voluntary helpers who circulate the parish magazine.
In conclusion, I would suggest that Clause 32(2) already places sensible limits on these exemptions, and that Clause 32(3) allows the subject to place limits on disclosures. It therefore appears something of an over-reaction to impose additional restrictions on disclosure, and to go as far as this amendment would render the clause a nullity. Having said that, we recognise that in the new Clause 31 we have limitations (though not an absolute prohibition) on disclosure as a condition of exemption, and those limitations permit of disclosures where, for example, the subject himself agrees. In view of that, we will undertake to have another look at this point, though at the present time we are not convinced that the safeguards for the subject here are in need of further enhancement.
Lord Mcintosh of Haringey: I am sure that my noble friends will be grateful to the noble Baroness for what she has said. I only want to point her in one direction in her reconsiderations and to say that I believe that she has made out a reasonable case for paragraph (a) dealing with clubs, and that there should not be this further restriction. However, I would ask her to continue to look very carefully at the case as regards direct mail houses recording the distribution of articles to data subjects.
The fact that this is a serious matter was shown by the intervention of the noble Lord, Lord Redesdale, in the debate in Committee last Session, when he pointed out that the British Direct Mail Advertising Association had found it necessary to have a voluntary code

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to allow people who are on mailing lists under some circumstances to say that they do not want to have their names passed to a third party. It has been a matter of considerable public controversy. The direct mail industry is conscious that this is something which has caused a great deal of trouble and resentment. I personally have always avoided joining the Automobile Association or subscribing to Reader's Digest very much for that reason. I do not want my name sold to other people for totally different purposes. I certainly believe that this part of the clause requires further consideration.
Lord Swinfen: I should like to back up what the noble Lord, Lord Mcintosh, has just said. Direct mail houses and list-builders of one sort or another are always looking for additions to their lists. Lists of club members or people who shop in one place or another are very important to them. I should perhaps declare an interest in this particular point as a member of the Direct Mail Services Standards Board.
Lord Mishcon: I wonder whether I can abbreviate the proceedings by saying that the two noble Lords who have just spoken have said everything that I would have said in reply to the noble Baroness. All I want to do is to thank her for her promise to reconsider in the light of what has been said today. In those circumstances. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.55 p.m.
Lord Avebury Lord Avebury moved Amendment No. 54:
Page 24. line 5, at end inserted—
("()Data processed solely for the purpose of publication shall be exempt from the registration and subject access provisions."')
The noble Lord said: Amendment No. 54 is concerned with electronic newsrooms, and your Lordships will be aware that when material is processed for the purpose of publishing the damage which may arise to the data subject arising from inaccuracy would obviously be the result of publication. It is, from that point of view, irrelevant whether the processing was carried out manually or electronically.
Publishers who use electronic means, such as the BBC, make use of systems which process data and are closedly connected with the purpose of publication. Many of these operate on a timescale which is far too short to offer the data subject any practicable opportunity for intervention. We would suggest that there is very little point in giving the data subject an ostensible right of access which he would have no conceivable opportunity of exercising. Registration of most of the capacities of an electronic newsroom would, therefore, we suggest, be an empty and bureaucratic gesture.
Information is received by the BBC and other publishing organisations of that kind, and then immediately published. If there is anything wrong with it an effective remedy would follow the publication. The appropriate remedy for the data subject in respect of this material is already provided in the law of defamation. The provisions of the Bill could not, for
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the most part offer any practical remedy for inaccuracy, and registration of such systems would have no merit beyond the achievement of bureaucratic completeness. I beg to move.
Baroness Trumpington: When I first saw the amendment, placed as it is in Part IV of the Bill, I assumed that its purpose was to ensure that any data held only for the purpose of publication should not need to be registered, nor should subject access apply. This would allow the exemption to be enjoyed, I suppose, by newspapers, broadcasting companies and publishers. I had not been conscious that the newspaper and publishing industry feared that compliance with the Bill would make life impossible for them.
Further, as has been said before, we must be very careful about making special cases. Is it really desirable to provide that newspapers and publishers should not have to register under the Bill, and that the subjects of any data that they hold should not have the benefit of subject access? Indeed, many data subjects would argue that the prospect of the whole country being made privy to information about them increases rather than reduces the case for them to be able to check that the holder of the information has got it right. There is a certain irony in a situation in which a data subject could be refused access on the grounds that there is no need to worry, all the information will be emblazoned across the front pages of tomorrow's newspaper and he can see whether it is accurate then.
But the noble Lord has indicated that in fact his purpose was a much more limited one—and that was, in effect, simply to ensure that the use of computer type-setting techniques should not be caught by the Bill. In other words, he is seeking to restrict the definition of "processing", and to that extent Clause 1 might have been a more natural place for the amendment. But in fact there is no need for it, because Clause 1 as cast already deals with the point.
When computer type-setting techniques are used, personal data may of course be involved. Most newspaper stories, for example, include some personal data about somebody. But it is scarcely likely that those personal data will be processed by reference to the data subject in terms of Clause 1 (7). If that does not happen, the activity is not caught by the Bill. Moreover, even if it were to happen. Clause 1(8) provides that processing shall not be construed as applying to operations performed only for the purpose of preparing the text of documents—which of course computer type-setting is. Therefore, I hope that, on reflection, the noble Lord will accept that there is no need for further amendment to the Bill to exclude computer type-setting from its scope.
Lord Avebury: I am afraid that that takes care only of newspapers; it does not seem to take care of broadcasting. Obviously, we shall have to look at the technicalities of it and see whether what the noble Baroness has said about the interpretation of Clause 1 would apply to broadcasting and to tapes as it would apply to documents. As I understand it, the subsection to which she referred me in Clause 1 concerns only the preparation of texts and it would not apply, for example, to the use of tapes which are subsequently to

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be broadcast. This would seem to mean from what the noble Baroness was saying, that newspapers would be exempted from registration in respect of computer type-setting systems but that broadcasting authorities would be subject to them in respect of the electronic processing of news items which were held on tape arid which were never subsequently turned into texts. This would seem to be an anomaly which would require further examination and perhaps we could add this to the list of holiday tasks for the Government, although in this matter I am delighted to urge that it be considered by the noble Baroness and not be added to the duties which have already been laid on the noble Lord, Lord Elton. If the noble Baroness would like to consider that and has nothing further to add, I am perfectly happy to leave her the next three months to mull it over, and we shall return to it in October. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.4 p.m.
Lord Avebury Lord Avebury moved Amendment No. 55:
Page 24, line 13. at end insert—
("(5) Personal data which have been published, including data written or otherwise published by the data user about the data subject, are exempt from the subject access provisions if they are held by organisations whose primary function is publishing whether in print, broadcasting or by other means, and the data are held to facilitate publication.").
The noble Lord said: This amendment also concerns publishers of ephemera, the newspapers and the broadcasting organisations. I would point out—because the noble Baroness will do so if I do not—that there is a mistake on the second line of the amendment as printed in the Marshalled List, where the word "subject" appears instead of the word "user". I disclaim any responsibility for that error because I did not actually draft this amendment.
The amendment seeks to exempt from the subject access provisions the personal data which have already been published by the data user in the course of his operations and which are held by organisations, the primary function of which is publishing, and I emphasise that that means broadcasting as well as print. Obviously, if the material in question has been published, then any inaccuracies in it will have been noticed by the data subject and he has the ordinary remedies to which I have already referred. He can seek a remedy in the courts for defamation if a newspaper publishes material which is false and damaging to him; he can do the same thing if an item is broadcast which has the same effect. Therefore, there would be no purpose for the protection of the data subject in extending the provisions of this Bill to material of that kind which is held for the limited functions referred to. I beg to move.
Baroness Trumpington: While congratulating the noble Lord, Lord Avebury, on the assiduousness of his efforts to look after the interests of those engaged in publishing, I must however disappoint him by not being able to accept the amendment that he proposes. I fail to see that there is a pressing need to make special exemption from the rights that the Bill bestows on data subjects. I also cannot perceive the justification for special treatment of the data that the noble Lord has identified.
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The noble Lord proposes that where data have already been published (including in an autobiographical context) and they are then held by a person '"whose primary function is publishing", then provided that they are held to "facilitate publication" they should be exempt from subject access. It has not been altogether easy to see what the precise effect of the amendment is. However, the overall aim of the amendment seems clear—to eliminate data subject's entitlement to subject access to data with a view to further publication of information about the subject.
The fact that information has been published in the past is not a consideration that has led us elsewhere in the Bill to reduce the safeguards for data subject. And, frankly, I do not see why we should start now. Publication can take place in all kinds of guises—over long periods of years. That does not remove all possible threat to privacy. Indeed, the collection of published tit-bits about an individual can result in a meaty dish when collated together. And, of course, it may well be that published information is inaccurate: should not the data subject have an opportunity to check what is being compiled on a computer from sources that may be fallible?
The amendment would apply to a variety of users, such as the BBC and publishers of regularly revised reference works such as Who's Who, or the compilers of the various profiles of parliamentarians with which we will all be familiar. But here, too. I find it difficult to be persuaded that if the information about the subjects of such works is held on computer and processed, and if those subjects want to check on what is held about them, they should not be able to do so. I cannot think that this will be an area in which the traffic in subject access requests will be great. But where access is sought I suggest that there is no overwhelming reason why it should not be given. Certainly I cannot believe that the data users concerned would face intolerable problems from meeting such requests. If subjects feel in need of the assurance that access will give them, they should be able to have it. In considering exemptions we have always tried not to grant them except when there is very good reason. I have to say that this is a case where I do not see that good reason.
Lord Avebury: I am not sure that this is a point of fundamental importance, but perhaps I can illustrate what I mean so that the noble Baroness can understand it slightly better than I did on the first occasion. If you have an article which has appeared in The Times about you, you can of course obtain a printed copy and, as I understand it. The Times has a service whereby it will sell extracts from back numbers at a price to anybody who wishes to see them, including the person who may be the data subject in question. Therefore, one is not saying that a person is not entitled to have access to material which has appeared in published form. It is simply whether or not the data subject will have a special right of access to it under this Bill if the material is subsequently held in electronic form.
If The Times in future—and it may already have done this for all I know—transfers the whole of the text of every issue on to a computer, we are now conferring a special right on the data subject in respect of whom

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an article has appeared in that newspaper beyond the commercial right which he has now to see that information in print on payment of a certain fee. This could be vexatious to the publisher if a large number of persons wish to access computer records in respect of their own entries, and it would interfere with the smooth working of the Bill where subject access is more important. However, I shall consider carefully what the noble Baroness has said and take advice from those concerned with publishing interests. No doubt we shall return to this again in October. I have pleasure in asking leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 32 agreed to.
Clause 33 [Other exemptions]:
Lord Mishcon Lord Mishcon moved Amendment No. 56:
Page 24. leave out lines 24 and 25.
The noble Lord said: As the Committee well knows, my noble friends and I have adopted a completely moderate tone in moving all our amendments. I hope that I am not going to depart from that worthy habit if I say that if this amendment, or something like it, is not passed then the whole of ths Bill becomes a mockery. It is doubtful indeed whether indeed by this exemption about which I am going to remind your Lordships the convention itself is not breached.
May I just go through the terms of the Bill which I am criticising. It is Clause 33(2). It contains there:
"The Secretary of State may by order exempt from the subject access provisions personal data consisting of information—
(a) the disclosure of which is prohibited or restricted by or under any enactment;"
That is any enactment that has existed from the past and is at present an enactment, and obviously any enactment of the future. It goes on:
"(b) which appears to him to be of such a nature that its confidentiality ought to be preserved".
That means literally that in regard to any Government record which is restricted under the Official Secrets Act as a matter of course the Home Secretary has the right to exempt without any restriction any and every Government file from subject access simply because he thinks it ought to be kept confidential. That would include computerised Inland Revenue, DHSS. and Home Office parole index files. All of them could be kept secret from the people they concern under this Bill, not because they are covered by a specific exemption under the Bill, such as prosecution of offenders, but because the Home Secretary thinks that confidentiality is desirable.
If the hour were earlier and if the Committee were fuller, I would have ventured to test the opinion of it upon such a vital matter if the answer that is going to be given either graciously by the noble Baroness, or eloquently by the noble Lord. Lord Elton, is not a satisfactory reply. That will not be the course adopted tonight; but I hope that in essence the Government Front Bench can indicate that they can see the worthiness of this amendment and do something about it between now and Report stage.
Baroness Trumpington: I hope that I shall be charming and eloquent. I was rather surprised to hear
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the tone of Lord Mishcon's speech. I was also surprised to see an amendment which seems to widen the Secretary of State's powers rather than restrict them. If we accept it the Secretary of State would not be constrained to making orders only in respect of data to which statutory restrictions on disclosure already apply. This power of exemption would be almost limitless. If your Lordships will bear with me, I will explain how this clause works.
Above all else, I must emphasise that this is not a catch-all provision enabling the Secretary of State to exempt from subject access anything he feels like exempting. Its scope is in fact very narrow, and that is very much our intention. Data to be covered by an order under Clause 33(2) will have to satisfy two tests—both the test in paragraph (a) and the test in paragraph (b). So, in the first instance, there must already be in existence a statutory prohibition or restriction on disclosure of the data in question. Parliament must have decided that there was good reason for information not to be disclosed or only to be disclosed in a certain way. In the second instance, the Secretary of State will have to be convinced, for one reason or another, that the confidentiality afforded by those statutes ought to take precedence over the subject access provisions provided by this Bill. The amendment loses the first leg. so allowing data to be exempted by order only because the Secretary of State believed that confidentiality should be preserved. That is not our wish and it is clearly not the wish of the noble Lord either. So let me disregard the actual effect of this amendment and explain instead the effect of Clause 33(2).
In general the right of subject access under the Bill will override existing legal restrictions on the disclosure of information. That is the effect of Clause 26(4). We are sure that is, broadly speaking, the right approach, because such restrictions normally have been imposed in order to protect the privacy of the person to whom the information relates.
Since under subject access it is only that person who sees the data, the problem does not arise. It would be wrong to allow these restrictions to defeat the subject's own right of access to personal data about himself. However, there are a few instances where, for one reason or another. Parliament has decided that a person should not see information about himself. To take one example, there are restrictions on the right of an adopted person to obtain access to information which would allow him to obtain a copy of his original birth certificate. While the adopted person is below a certain age there is no right of access; thereafter access is conditional upon either the offer of counselling to the person concerned or in some circumstances his acceptance of counselling. It is to meet such cases that Clause 33(2) appears in the Bill empowering the Secretary of State to preserve statutory restrictions where necessary.
But, as I have said, not all statutory restrictions need to be preserved. Since most seek to prevent third parties seeing an individual's information—and a third party cannot benefit from subject access—the mass of restrictions can and should be overriden. That is why the order-making power in Clause 33(2) is qualified by paragraph (b). It has been suggested that Clause 33(2) could be used to exempt from subject

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access any data held by Government to which the Official Secrets Act could apply. That is an ingenious suggestion. But it had certainly not occurred to us in drafting the clause and it is certainly not intended to use the clause in that way. Indeed, it would be an astonishingly unusual use of the power, clearly at odds with the thrust of the provisions of the rest of the Bill. Of course, it will not be used for that purpose. Indeed Parliament would have something to say if we tried. As evidence of our good faith we accepted an amendment during the Committee stage of the previous Bill to make orders under Clause 33 subject to the affirmative procedure to enable Parliament to have full control over them.
I am sorry to have taken so long, but I hope that by spelling out the circumstances in which we envisage the order making power being used I have allayed the concern of the noble Lord.
Lord Mishcon: I appealed to the graciousness of the noble Baroness and it would be singularly ungracious of me if I did not at once acknowledge that she has a technical point which is absolutely correct, quite obviously I have seen that there is some error, but whether it is a typographical error that has occurred I do not know. The intention of the amendment was to remove subsection (2) from the Bill on the ground that the Secretary of State's power was unlimited except that the affirmative resolution procedure would have to go before both Houses of Parliament. Clearly that is not a sufficient safeguard in all circumstances, as we well know.
The main burden that I want the noble Baroness to take with her, as it will save so much time at Report stage, is that this is an overriding power given to the Secretary of State, even to recommend to Parliament that merely because there is some restricting enactment—such as the Official Secrets Act which covers all Government records—and the Secretary of State thinks that confidentiality ought to be preserved or that there are overriding interests more serious than that of the data subject, there ought to be these powers, even if it is to be sanctioned by the affirmative procedure of the House. I think the proper thing for me to do in the circumstances is to ask your Lordships' leave to withdraw the amendment. I have put on record the intention behind the amendment so that it can be considered. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.20 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 57:
Page 25, line 20, at end insert—
(" () A person shall be temporarily exempt from the provision of section 5(1) above in any case in which data processed by him is urgently required to be processed as if it were personal data for preventing injury or other damage to the health of any person or persons; and in an appeal under section 13(1) (b) above it shall be a defence to prove that he had reasonable grounds for believing that the processing was urgently required to be done for that purpose.").
The noble Lord said: This is a small point to deal with emergencies. If your Lordships would look at subsection (6) of Clause 33, you will see that there are exemptions for non-disclosure provisions in cases where injury and health are involved in an emergency
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situation. There are circumstances in which the emergency situation might not directly and only apply to health. There is also no provision for by-passing the registration provisions, and that is the burden of my amendment.
If I may give your Lordships an example, the situation might occur in which there was a dam which developed a crack on Christmas Eve. It might be necessary to finds out about the designer of the dam, and the computer file that you had on the dam would be a technical one—all about its construction and who built it and, of course, the designer would be within that. There would be particulars of the designer within in it but, as a technical file, it would not have been registered. So you would have a problem, because if you extracted the data on the designer so that he might come and give advice on how the dam might be put right, you would be in breach of the Bill as it stands.
There is a very useful provision, in particular in Clause 7(6), to allow you, once you have communicated with the registrar—and you get special rules under Clause 7(9) to say how you can do it by post—to assume that you have got permission to go ahead with your registration, even if it is only in the post. But in this case it would not work because one can imagine that the registrar's office has shut down on Christmas Eve, there is no post anyway, and you want to ring him up and say. "Look, old boy, is it all right?" But he would not be there and he might not be coming back until the 3rd or 4th of January, so you could not deal with that. And it would not necessarily be a health situation. It could be that, because you have got the crack in the dam on Christmas Eve and you were busy trying to find out about the designer, you have evacuated the population of the town down river from the dam so that there would no question of the people being harmed. On the other hand, if the dam broke it would destroy the town; and that sort of emergency would need to be taken care of.
Therefore, the purpose of this amendment is to deal with such an emergency and to build upon subsection (6) to deal with any sort of emergency. I have written in that it is only temporary because, of course, as soon as the registrar comes back from holiday you put the whole thing right. I beg to move.
Baroness Trumpington: As my noble friend Lord Mottistone has indicated, the Bill already recognises in Clause 33(6) that a data user may need to disclose personal data unexpectedly in an emergency. The emergency services might need access, for example, to a list of residents in a given area when dealing with a natural disaster such as a flood. In such circumstances, Clause 33(6) would allow the data to be disclosed without risk of an offence under Clause 5(2)(d), or of any action by the registrar in respect of any breach of the principles. In addition, Clause 33(6) would provide the data user with a defence in a prosecution under Clause 5(2)(d) where he had made an unregistered disclosure in the mistaken but reasonable belief that the Clause 33(6) exemption applied.
The amendment proposed by my noble friend Lord Mottistone is designed to provide for an analogous situation in the case of unregistered persons. Only personal data "held" in the terms of Clause 1 of the Bill must be registered. Thus a person might keep a

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collection of data which happens to include some personal data but he need not register the data so long as he neither processes nor intends to process the personal data by reference to the data subject; in other words, if he has no intention of using the data to find out information about any particular person. He does not, in those circumstances, "hold" the personal data. Under the scenario envisaged by the amendment, however, such a person might, in an emergency, want information about an individual which he happens to know is stored amid the non-personal data but is not registered since he never previously thought of extracting the information. If he did extract it, he would be a data user holding personal data, and, if he had not registered, he would commit an offence.
I have to say that the situation that is envisaged here sorely stretches my credulity. Is it really feasible that somebody, with no previous intention of processing the personal data hidden away among non-personal data that he has, will not only know that the precise personal data exist but will not have the necessary information about the person or people in question in a more readily available form, and will also be able immediately to instruct the computer to process the personal data? I cannot help feeling that such a combination of events is so unlikely as not to require specific amendment of the Bill to meet it.
But even if this most improbable scenario were to arise—and this is perhaps the crunch—the scheme under the Bill as drafted could cope. If the existence of personal data needed in an emergency did come to light, and it was necessary to process the personal data to find out information about a data subject, it would be quite possible to do so without committing an offence under Clause 5(1), as my noble friend fears. What the user would do would be immediately to apply for registration and, under Clause 7, the requirements of the Bill in that respect would be satisfied. But I think that the improbability of the whole situation should be enough to persuade my noble friend that he is concerning himself unnecessarily.
Lord Mottistone: I appreciate the argument that it is a rare occasion, but it really comes down to the point that my noble friend the Minister is saying that the situation is so rare that we do not need to enact for it. I should have thought that that was an invitation for fate to intervene; and when this Bill becomes an Act it will not be my situation—it will be something else, and we shall be caught out. I am not sure that I am wholly convinced by the answer, but I will certainly look at what my noble friend has said.
I do not believe that the situation is fully covered, and I also do not believe that my example is as farfetched as has been suggested. I hope that my noble friend will also have another look, because each time I have discussed this with my other noble friend, the Minister, or his advisers, we have thought of added reasons why this is necessary. It might be worth another look by both of us. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 agreed to.
Clause 34 [General ditties of Registrar]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 58:
Page 25, line 30, leave out ("promote") and insert ("ensure").
The noble and learned Lord said: Now we come to an exciting part of the Bill, and with this amendment I should like to speak to Amendment No. 59.
Amendment No. 59: Page 25, line 32, at end insert ("and to facilitate the exercise by data subjects of their rights under this Act").
This is a change in the Bill, because the poor registrar was previously a man with massive powers but no duties. It brings to mind many a famous quotation, which it would no doubt be indelicate to remind the Committee about at this late hour. I think the press was the subject of one great observation, but I cannot remember how it went. Your Lordships will remember that there was a certain prerogative which had existed through the ages. The registrar has now been clothed not only with powers but with duties. He is no longer Hamlet without the Prince of Denmark. But the difficulty is that the duties are so nebulous and so ineffective, as stated in new Clause 34:
"It shall be the duty of the Registrar so to perform his functions under this Act as to promote the observance of the data protection principles".
What does the word "promote" conjure up in your Lordships' minds? Does it conjure up advertising or possibly winning a general election? Is it promotion of that kind? Or is it sponsorship? Surely the function of this great public official, the registrar, is more significant than that. Therefore we propose, as a modest amendment, to leave out "promote" and to insert "ensure the observance of the data protection principles".
It has been argued and urged more than once as to Amendment No. 59 that the registrar should have a specific duty to help data subjects who will almost always be in a weaker position than the data users who will hold the personal data about them. Therefore it is proposed in Amendment No. 59 that the following words should be inserted at the end of line 32:
"and to facilitate the exercise by data subjects of their rights under this Act".
These are modest proposals to clothe the Hamlet in the case, the registrar, with specified duties which happily he will have powers to enforce. I beg to move.
Lord Elton: I am a little saddened and surprised that the noble Lords opposite were not entirely enchanted by the word "promote" because it was taken from a proposed amendment of their own at Third Reading last time round when they asked us to place upon the registrar the general duty to promote and facilitate compliance by data users with the data protection principles. We did not like the rest of the amendment but we rather liked "promote", and I am sorry that the noble and learned Lord now finds it nebulous.
If I may paraphrase my brief, the clause places an obligation on the data protection registrar to do whatever is described in line 30, which at present is called "to promote". If the registrar is asked to promote something, he can decide for himself how he sets about doing it. This is what we like about it. The amendment substitutes for the word "promote", which to some extent does have the virtues of

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nebulosity, the precise word "ensure", which means that at every opportunity he has got to make certain that the data protection principles are observed by the data users. That gives him absolutely no discretion. On each occasion, if there is any hint of a deviation he must deploy his full forces to see that it is corrected or prevented. Consequently, he cannot concentrate his forces on the major issues which are, apparently to him, those matters which most deserve his attention.
I see that the noble and learned Lord is now being advised as to the category of argument which I am putting forward. I am always disturbed when what I say is so familiar as to fall into a category, because I fear that the answers to it must have been thought out many generations ago. It seems to me to have force that the data protection registrar should have some discretion as to how he pursues his duties. To ask him to promote does preserve that discretion. To ask him to ensure does not.
Turning to Amendment No. 59, to which the noble and learned Lord also spoke, I have just spoken about the question of precision in definition, but in the case of the second amendment the duty is not so clearly defined. I imagine that the data protection registrar could often be in a quandry in deciding where his duty lay. Would it be enough for him to tell data subjects of their rights under the Bill and to advise them on, say, how to seek compensation? Or would this fall short of the subjects' expectations? Should the registrar actually assist them in bringing proceedings before the court?
If that were the case, everybody might seek to enlist his help, no matter what their case. He would then be placed in the invidious position of having to prejudge the merits of cases and I suppose to prejudge the courts' decisions on them when choosing whom to sponsor. All the time of course the registrar would be vulnerable to litigation brought by disappointed complainants, who might claim that he failed in his statutory duty by not taking up their cases. That is leading the registrar into difficult and expensive country.
That expresses the nub of our objection to both amendments. Clause 34 already has plenty of signposts to the registrar; that he is to promote observance of the principles. One of the principles with which he is directly concerned is subject access. Clause 34 (1) says that the registrar is to promote observance of the principles, and one of the principles is directly concerned with subject access. Clause 34 specifically empowers him to give advice to individuals; and it is also quite clear that he can intervene where there has been a breach of the principles. Thus, he can certainly take up the cudgels on behalf of any data subject who has been refused access or who is the subject of inaccurate data.
To go further would involve the registrar in inescapable and trivial duties, or in the expense and unnecessary frittering away of energies which I described earlier. I hope that I have said enough to persuade the noble and learned Lord at least to hesitate before he goes further with this amendment.
Lord Elwyn-Jones: I confess that the logic that has been applied to the meaning of these words by the
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noble Lord is attractive. I am sorry to be hoist upon the petard of my own promotion, but I had forgotten that it was a responsibility of mine. But with legislation of high technicality and much complexity, such an oversight may be forgotten and forgiven.
Speaking seriously, it is obviously an important point not to impose intolerable duties upon the registrar which could be the subject of litigation and breaches of duty. I will certainly look again at the noble Lord's comments. In the light of this observation and in the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 59 not moved. ]
9.38 p.m.
Lord Avebury Lord Avebury moved Amendment No. 60:
Page 25, line 43, at end insert—
("(4) The Registrar shall investigate complaints by data subjects of infringement of their rights under Part III of this Act.").
The noble Lord said: This amendment would oblige the registrar to investigate complaints by data subjects of infringements of their rights under Part III of the Act. I seem to remember that we have discussed this proposition also on a previous occasion. Now we do so in the light of the Government's introduction of Clause 34 which, as the noble and learned Lord has pointed out, does at least lay down some general duties which the registrar has to perform. This is an advance upon what was not in the Bill before.
We rather believe that a degree of precision in the matter of complaints would be advantageous. We would not agree with that which the noble Lord said in reply to the previous amendment—that this means the registrar would be bogged down in a large number of trivial complaints which he is obliged to investigate and that it is better to leave him with the unfettered discretion he has under Clause 34(1).
I do not believe this would be so, because there are other statutory officials who are obliged to investigate complaints and they have no difficulty in disposing of the ones that are manifestly unfounded in a very short space of time and with practically no expenditure of resources. So I think if we laid this duty on the registrar not only would it import a degree of precision into the duty set out in Clause 34(1), but it would say plainly on the face of the wording of the Bill, for the benefit of the data subject, that if he goes along to the registrar and claims that a particular violation of his rights under Part III has occurred then definite steps will be taken to investigate.
For instance, if he claims that he has written to the data user and asked whether the data user holds any personal data of which he is the subject, and a period of six weeks elapses and the data user has not answered, clearly he could claim violation of principle No. 7, that an individual should be entitled "without undue delay" to be informed by any data user whether he holds personal data of which that individual is the subject. The registrar will then take steps to find out why the data user has not replied to the letter, and I presumably compel him to do so with all the force at

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his command, in a way which the poor data subject would not be able to do. A large data user might well ignore a letter he receives from one humble individual, but he is not going to ignore a request from the registrar to explain why he has failed to answer the letter. Therefore, investigation of the complaint by the registrar will in nine cases out of 10 remedy the infringement of the individual's rights which is complained of. That perhaps is not a particularly weighty example.
The registrar of course has enormous powers set out in part II of the Bill: Section 10, "If the Registrar is satisfied…"; Section 11, "If the Registrar is satisfied…"; Section 12, "If it appears to the Registrar…". In each of these cases he obviously has to be presented with facts which indicate to him that certain things have happened, and in many of those cases the facts will be presented in the form of a complaint from the data subject, which we believe the registrar ought to be obliged to investigate so as to set in motion the powers that he can exercise under Part II. I am sure the noble Lord will say that the registrar can and will do these things. We simply ask, why not write it into the Bill? I beg to move.
Lord Elton: I have already tried to make clear the dangers of placing precise duties on the registrar, and I am afraid this amendment does attract those difficulties. Before I deal with them, I think I should point out another. While it would be in order for the registrar to investigate any complaints that subject access had been refused under Clause 21, the remainder of Part III conveys various rights exercisable through the courts. The amendment, as it is drafted at present, requires the registrar to investigate them also. Clearly it would be wrong for the registrar to oversee the work of the courts.
But I do not suppose that is what the noble Lord intends. I would rather address myself to his intention. That is that the registrar should investigate all complaints properly brought before him. Thereby he would, of course, lose his discretion in dealing with complaints made to him in distinguishing between those which were worth following up and those which were entirely trivial. But it is not just a question of eliminating the frivolous or vexatious, which could, I agree, be remedied by a further amendment. There will also be occasions when the registrar must be free not to investigate certain complaints, even though they may not be classified as ill-founded, frivolous or vexatious.
I hope the noble Lord will not take that out of context because I am thinking here that although he may have been alerted to a problem by a number of complaints, individual investigation of each one may not seem to him to be the most effective way of dealing with and resolving the issue. A single exemplary case might suffice at very much less cost and at rather greater speed. It is I am afraid the same old argument. Specific duties tie the registrar's hands in advance and we tie them, if we tie them now, when we cannot yet see how he would most successfully approach the matters that will concern him. A formal complaints procedure would require a good deal more provision than the amendment offers and we should not impose
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it on him regardless of his own views on the merits of such action when the time comes.
If a data subject believes that his right to compensation, correction or erasure under Clauses 22 to 24 have been infringed that is a matter for the courts and not for the registrar. If the subject feels that his right to access has been infringed he can already go to the registrar for action in respect of a breach of the seventh principle and the registrar is already under a duty to act to promote observance of the principles. By that means the Bill as cast makes clear where the registrar's duty lies without depriving him of all discretion where he believes that investigation would serve no useful purpose or where he could be better served another way. That, I must repeat, is far preferable to tying the registrar's hands as, regrettably, this amendment would.
I hope that I have explained to the noble Lord why we feel that the Bill is competent to do what he wants in the way that it is drafted and that it would not be advisable to be more precise.
Lord Avebury: I do not feel that it would be undesirable, as the noble Lord said, but I shall not prolong the argument at this hour. I intend to pursue the matter on Report; but now I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 34 and 35 agreed to.
Clause 36 [Application to government departments and police]:
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 61:
Page 26, line 43. at end insert—
(" (6) For the purposes of subsection (1) of this section a chief officer of police or chief constable shall not be treated as a servant of the Government department to which his responsibilities or duties relate").
The noble Lord said: The effect of this amendment is to add a sixth subsection which reads:
"For the purposes of subsection (1) of this section a chief officer of police or chief constable shall not be treated as a servant of the Government department to which his responsibilties or duties relate."
The purpose of the amendment therefore is to ensure that a chief constable must register police computers separately from the rest of the Home Office functions. We submit that the amendment is made necessary by the fact that the Bill in its re-drafted form allows disclosure to servants or agents by a data user or person carrying on a computer bureau. Therefore, persons in the public service of the Crown have to be identified as servants or agents of a particular department. It is clear from the interpretation in Clause 39 that organisations such as the Health and Safety Executive and the Commission for Racial Equality which were set up as,
"a body or authority exercising statutory functions"
are a "government department" for the purposes of the Bill and that they will have to register separately.
However, the position of a chief constable, in our submission, is anomalous. A chief constable is a

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person in the public service of the Crown, and particularly outside London his responsibilities or duties relate to the Home Office. Therefore chief constables are included, perhaps unintentionally, as people who relate to the Home Office as data users. So it is possible for police computers to be registered by the Home Office as data users.
The amendment is put forward purely for clarification; but I trust that the Minister will be able to say that if we are correct in our reasoning then there is no earthly reason why the amendment, or one very similar to it, should not be incorporated in the Bill. I beg to move.
Lord Elton: I am sure that the noble Lord will understand if I try to reply very briefly to an amendment which has required a great deal of research. This is a tortuous area to which we are addressing ourselves. The concern behind this amendment is that Clause 36(1) could have the unintended effect of making chief constables servants of a Government department—or more particularly of the Home Office—rather than separate data users. This is certainly not the Government's intention, nor, I am advised, is there any question that this could possibly be the effect of Clause 36(1) as drafted.
First, a chief constable would not be regarded as a person in the public service of the Crown. This would be contrary to the constitutional position of chief constables who have the sole operational responsibility for the policing of their area. Secondly, the responsibilities and duties of a chief constable would not, on any normal interpretion of the phrase, be said to relate to any Government department, including the Home Office. Again this would be contrary to the traditional independence of the office of chief constable. I should emphasise from experience that there is a great sensitivity about explaining that this link does not exist. Thirdly, an interpretation of Clause 36(1) which resulted in chief constables being treated as servants of a department rather than data users would make a nonsense of Clause 36 subsections (3) to (5), because these are drafted, and would only be necessary, on the assumption that chief constables will be data users.
The Government have looked carefully at the effect of Clause 36(1). I quite understand why on the face of it it would appear that the amendment is necessary, but I hope that, by explaining to the noble Lord the conventions, which are well established, about the relationships of these people, he will see that there is no danger for his amendment to avoid.
Lord Elystan-Morgan: We certainly welcome that assurance from the Minister. I am sure that his statement of the constitutional position is well understood on this side of the Committee and certainly by me as a former junior Minister in the Home Office dealing with police matters. Upon that very full assurance by the Minister, we are pleased to ask the leave of the Committee to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 36 agreed to.
Clause 37 [Data held, and services provided, outside the United Kingdom]:
Lord Mottistone Lord Mottistone moved Amendment No.62:
Page 27, line 31. leave out subsection (5).
The noble Lord said: This is entirely a probing amendment to seek clarification of the meaning of Clause 37(5). This is another amendment on which I have had advice from the CBI. It seems to us that if data are processed wholly outside the United Kingdom but used in the United Kingdom, they fall outside the legislation by virtue of no longer being data within the meaning of Clause 1. It is also difficult to see to whom in the United Kingdom the subsection applies, since, if the data are processed wholly outside the United Kingdom, control is also outside the United Kingdom. I should be most grateful if my noble friend could clarify this for me. I beg to move.
Lord Elton: Clause 37(1) provides that the Bill does not apply to a data user in respect of data held outside the United Kingdom. But if one looks at Clause 37(2) it can be seen that we use these terms in a rather special sense, so that data are to be regarded as "held" where control over the contents and use of the data is exercised, irrespective of where the data are processed. Broadly speaking then, the Bill will apply where the person in charge within a data user bureau is within the United Kingdom.
This is, I would submit, the sensible approach, because it is these people who can ensure that the operations comply with the Bill. Given the international nature of the information technology industry and the capabilities of the equipment, a data user might utilise processing facilities belonging to bureaux or himself in a number of countries. Thus it would be arbitrary, and very difficult in practice, to make the whereabouts of the processing of personal data the sole criterion for the territorial effect of the Bill. This is why Clause 37 concentrates on the person in charge who may or may not be in the same country as the processing facilities used.
There are, however, two exceptions to this. First, Clause 37(3) provides that where aperson outside the United Kingdom controls the contents and use of data as mentioned in Clause 1(5), through a servant or agent within the United Kingdom, the servant or agent shall be treated as doing these things on his own behalf. This is to ensure that where a person such as a branch manager is effectively in charge of operations within the United Kingdom he cannot escape the obligations under the Bill simply by pointing to the ultimate foreign control, so claiming not himself to be the data user, and therefore depriving the registrar of anybody to whom to look in order to require compliance.
The second exception is set out in Clause 37(5). As is clear from what I have said, the whereabouts of the processing of personal data is in general irrelevant for the purposes of the territorial effect of the Bill. But where data are processed and used wholly outside the United Kingdom it would be wrong in principle to attempt to take jurisdiction simply because the person in charge happened to be in the United Kingdom directing operations that had effect in another country, where quite different data protection law and practices might apply.

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This is a complex clause, but I am afraid that the international nature of the industry and the capabilities of the technology force this upon us. Given this complexity, my noble friend may wish to reflect on what I have said before committing himself; but I hope that when he has studied it he will agree that, on the whole. Clause 37 represents a sensible and practical approach.
Lord Mcintosh of Haringey: Before the noble Lord responds to that reply, I should like to add a single sentence in support of the Minister by saying that it is not just a matter of who controls and uses the data; and he is quite right in saying that the place where the data are processed is not the valid consideration. The fact is that with the networking of computers many data users do not even know where their data are being processed. The data could be going on to a network which operates in London, in Frankfurt and in San Jose, California, and one really has no idea where it is being processed. Where it is actually being processed is simply a matter of availability.
Lord Mottistone: I was ready to accept my noble friend's remarks without qualification until the noble Lord, Lord McIntosh, supported him. My suspicions are now aroused, and I shall have to look carefully at what my noble friend has said. It seemed to me that what he said made a lot of sense, but there might still be a loophole, and we shall have to have a look. I quite understand that the matter is complex, and strangely enough, I agree with what the noble Lord, Lord McIntosh, said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 agreed to.
Clauses 38 and 39 agreed to.
Clause 40 agreed to. [Commencement and transitional provisions]:
[Amendment No. 63 not moved.]
9.58 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 64:
Page 29. line 28, leave out from ("above") to end of line 15 on page 30.
The noble and learned Lord said: Now we reach the omega of the Committee stage. The point that arises under this amendment is the old one about the fact that the registrar's powers to serve enforcement notices imposing requirements to be complied with are put in a state of suspense for a period of two years. The basis of this proposal was the fear that the registrar might be overwhelmed for that period of time by the duties and tasks being imposed upon him. It was considered that the two-year period of emasculation, or whatever is the appropriate word, was sensible in the circumstances.
In the meantime there have been removed from the registrar's purview both the payroll and the accounting systems, which were expected to account for much of the burden of work that he would have to face; so that now his initial burden, at any rate, will be rather lighter, and there is even less reason why he should not
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have the power to remedy even major scandals which become manifest from his own register. If the clause remains as it stands, he will be powerless to act.
As that is so, subject to anything that the noble Lord the Minister may say, it raises a serious problem under the convention. If the registrar—he is after all the executive and the supervising officer—has no powers to ensure compliance with the principles of the convention, it could indeed raise serious doubts as to whether we could properly ratify the convention in good faith. Even if that is not a binding, technical, legal problem that would face him, it could mean, were it to become widely known, that we could hardly expect the other convention parties to treat us as having conformed with the terms of the convention. It raises a serious matter. It is not merely the effect of his being left powerless to deal with what could well have become a major scandal manifest from his own register but our being exposed as having a dog that had a bark but no bite—a registrar with no powers effectively for a period of two years to intervene. I beg to move.
Lord Elton: We have come to the end of a second long, hot afternoon and evening. It is late and I shall detain the Committee but a moment. I hope however that your Lordships will allow me to cast my eye a little wider than this amendment. The exchanges that take place in this Chamber, the results reflected on the statute book, often have a profound effect on a great number of people for a very long time. That gives an importance to such exchanges of which we are never unaware. Compared with their results, the exchanges themselves are pretty brief; but they represent only a fraction of the effort that the Members of your Lordships' House put into legislation. It is only the tip of the iceberg that those outside the House are ever likely to see.
Legislation is an enormously complex process involving all the critical faculties and much consultation. For those in Government, it is just a part—if an onerous one—of the job. For those not in Government, it is a labour almost of love. It is enormously to the credit of this House that it is so thoroughly done. Those who bear the heaviest part of the burden tend to be the spokesmen of the Opposition parties who, without a Civil Service to support them, manage to give as good as they get, month after month and year after year, and do it with precious little thanks in prospect. This is a service that noble Lords who are not in office render to the country. It is voluntarily and tirelessly given.
Much that comes forward is of course hostile to the Government and Ministers reject it. But they do so after a searching consideration both of what is proposed and what they, the Government, intend. That is just as beneficial to the whole community as are those improvements that are actually incorporated in legislation. Beneficial as all these objections may be, the repeated process can become lengthy and try the patience of your Lordships, particularly if the responses are over solemn or over long. The reason that I say all this now is that in trying to avoid being ponderous, it is all too easy to appear merely dismissive of proposals that deserve careful consideration and which have, indeed, received it.

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I fear that I seem to have fallen into that trap myself in dealing with a serious, carefully considered proposal put forward by the noble and learned Lord, Lord Elwyn-Jones, and his friends for statutory codes of practice when last we were in Committee. I may have done it unwittingly at other times and to other noble Lords. I therefore thought it right to explain that both I and the Government have a proper regard for their work and that of all your Lordships. I am only sorry if, at any time, this should not have been apparent. I could find no more suitable place to put that grace note except on the last amendment. I have caused my remarks on the last amendment to be somewhat eviscerated in order to leave room for that grace note. I hope that I do not fall instantly into the trap that I have just described.
Turning to what the noble and learned Lord has put before your Lordships, it is clear to all of us that time will be needed to bring the scheme in the Bill fully into effect. The White Paper indicated that registration would take a considerable time—perhaps two years. To require immediate compliance would quite unreasonably increase the cost burden on both public and private sector uses. Thus, broadly speaking the Bill provides for a transitional period of some two years during which data users and computer bureaux can come gradually into compliance with the principles.
One has only to consider the practical problems facing data users to realise that such arrangements are necessary. There will be the need to scrutinise the security precautions they take to protect their data. It will be necessary to consider the means by which data are collected. Steps will have to be taken to check that the personal data held are adequate, relevant and not excessive. I really think that the noble Lord, who has taken great care to try to resolve the difficulties of the first onslaught of work, has provided something which would not in fact be successful.
Obviously if the Bill left the registrar to determine when compliance will be required, we would expect him to adopt a sensible approach. But most users would, if they knew that they could be ordered by the registrar to comply with the principles at any moment, want so to comply from the start. That is how responsible users work. So the whole point of the transitional arrangements would be lost. And then, of course, there is the question of the civil remedies. The registrar can obviously have no role in dispensing with those in particular cases and therefore the Bill must make appropriate provision in that respect.
Lastly I should deal with the point raised about delay in ratifying the convention. The Government have been criticised for delaying ratification by allowing for a two-year transitional period. But some delay, as I have explained, is inevitable before the scheme is fully operational. The important thing is for the United Kingdom to establish a workable scheme as soon as possible while not imposing unreasonable burdens on data users by setting unrealistic deadlines. I would reiterate that the Government regard Clause 40 as making sensible provision for the implementation of the scheme on a reasonable timescale. I would urge noble Lords opposite to accept that this is preferable to the approach which they have, with great diligence and goodwill, put forward in the last amendment to this Bill.
Lord Elwyn-Jones: Let me say first of all that we note and are grateful for the generous tribute that the noble Lord has paid to the Opposition both below the Gangway (if that is the right phrase) and—if there was somebody there—on the mountain heights: to those who would have been behind me had they known what compliments were coming. I regard the duty of Opposition as being not merely to oppose but, indeed, largely to expose—to expose shortcomings and limitations in Government. I have always endeavoured to conduct my opposition politically on that basis and to provide such practical assistance as can be given, short of out and out rejection and opposition.
Here we deal with a difficult, very technical field where a matter of great importance, which I am bound to say has not been sought to be tackled before legislatively—namely, the protection of the privacy of the subject and consideration of the new menaces of computerisation—obviously raises, and has raised, serious and difficult problems. We have endeavoured, to the best of our ability, to play our part.
We still regard the Bill as inadequate. Nevertheless, we have done our best to contribute to its improvement. I am sorry that my noble friend Lord Mishcon had to leave before hearing the conclusion of our proceedings. But I should like in my turn to express our gratitude—and I think I speak for the whole Committee in doing so—to the noble Lord, Lord Elton, who has borne the heat and burden of the day, nobly assisted by colleagues from time to time, in a way which was patient and, at the end of the day, most generous.
So far as the immediate matter under consideration —the final amendment—is concerned, I will certainly consider what has been said. Whether the extent of the pressures on the registrar's time is still so severe, as is suggested, can perhaps be the subject of further thought. One of the gratifying features that has emerged today has been the willingness of the Government to present an open mind about the matter which has given rise to very grave concern in this House: the immigration question. I feel that we shall be parting with hope of better things to come and also the hope of a good Recess for the noble Lord and his colleagues.
Lord Avebury: Before we take leave of this amendment, may I say how very much we appreciated the kind and generous words of the Minister about the work of the Opposition. Encouraged by these completely unmerited encomiums, we shall quadruple our efforts at the Report stage.
However, sometimes it would be easier for the Opposition to do their job in the Chamber if they were provided with such facilities as one would expect in a normal office. Not to have a single square millimetre in the Palace of Westminster makes life just a little bit difficult. To have to buy one's own copy paper and carbon paper, and such things of that kind as one uses in a normal office, makes one believe that although the Government always say on the Floor of the House or in your Lordships' Committee that they want to see an efficient working Chamber, they are not really prepared to provide your Lordships with the means of

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carrying out their duties. But perhaps that would be an ungracious note on which to end.
I am hoping that attention will be given to this matter by the noble Viscount, Lord Whitelaw, who has always been such a champion of Back-Benchers. I am hoping that he may see his way to doing something to improve the conditions under which we labour and make the contribution that we make as an Opposition more efficient than it has been in the past.
This amendment in particular requires further examination. I should just like to make this suggestion to the noble Lord, Lord Elton. If we look at the procedures that have been adopted in other countries and we find that the timescale can be shortened, that is the route that we ought to take. The longer it takes to bring the full powers of the registrar into operation, the more data users will be encouraged to stray into undesirable practices knowing that the registrar will not catch up with them for a very long time.
Therefore, I believe that if we want the Bill to work then we want the data protection principles to be thoroughly in operation and to enter into the convention in spirit as well as in letter, we should try to shorten the time-scale. I suggest that it could be something like a year before the powers of enforcement are brought into practice. If we look overseas and we find that this has been done without causing any difficulty to the enforcement agencies in other European countries which have signed the convention, we ought to be able to do it with our great skill in these matters in administration generally in Great Britain.
We look forward to discussing this again in the autumn, with the noble Lord, Lord Elton. We hope that he has a restful time during the Recess but that he does his homework and comes back full of good answers, as he has been this afternoon. We too are most grateful to him in particular for the undertaking that he has given on Clause 28. If we can have the correct result as we see it from out deliberations on that matter, then all the time we have spent on this Chamber will be fully worthwhile.
Lord Elwyn-Jones: May I thank the noble Lord, Lord Avebury, for his support on this amendment. May I also thank him for his tremendous contribution to our discussions. He has shown very great conscientiousness, energy and thoroughness, and has obviously been willing to receive and to react to cries for help from all quarters—as most generously he always does. He plays a great part in the proceedings of the House. Although we would have liked some kind of indication, even of a 12-month substitution for the two-year period, in the light of what has been said, and with the opportunity of a long period of further consideration of the matter, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 40 agreed to.
Remaining clause and schedules agreed to.
House resumed: Bill reported without amendment.
House adjourned at quarter past ten o'clock.