HL Deb 10 March 1983 vol 440 cc338-418

4.8 p.m.

Report received.

Clause 1 [Definition of "data" and related expressions]:

Lord Avebury moved Amendment No. 1: Page 1, line 10, leave out from ("by") to end of line 11 and insert ("computer").

The noble Lord said: My Lords, we start this Report stage as we did the Committee stage, with the important subject of how we define the word "data". I must begin, if I may, by taking issue with the assertion of the noble Lord, Lord Elton, in column 1337 that we now all know what data are. He said that they were "fugitive". The data user hopes that they are not; and while, if he is prudent, he takes a back-up of his disk, he does not normally expect the data to disappear off the disk overnight or in between runs. The noble Lord said that they were uninterpretable to the human eye. But three columns before he had himself agreed that the state of modern technology is such that a great deal of printed matter would fall within the definition of "data". He said that they were transferable at the speed of light to distance. They may be; but it is not a necessary requirement of the definition and we can think of types of data certainly not so transferable.

Finally, he asserted that they could be collated instantaneously with other unknown masses of information. Both parts of that statement are wrong. Firstly, they can only be collated with known masses of information specified by the programmer; and, secondly, if the noble Lord has ever seen a sort take place on a smaller machine, he certainly would not call it instantaneous—certainly not on the kind of micro that we find used frequently in the smaller businesses these days.

What I am concerned with in the definition of "data" is the fact that nowhere in the Bill is there to be found a direct statement of what a computer is. The data which are to be protected are: information recorded in a form in which it can be processed by equipment operating automatically in response to instructions given for that purpose". One can think of lots of types of data which are not to be processed on a computer at all. I believe that a pianola roll would come within the definition of "data" that we find in the Bill. So, too, would punched cards usable only on the electromechanical sorting machines that preceded the computer. There is no requirement in this definition in the Bill that the equipment should be electronic. It can equally be either mechanical or electromechanical. So without a definition of "computer" we are in some doubt about exactly what kind of equipment could be used to process the personal data that are the subject of this Bill.

In the Police and Criminal Evidence Bill, the word "computer" is defined as it is in this amendment. It is the word "data" which I believe is not defined in that Bill, so creating, I fear, endless possibilities of confusion where the two pieces of legislation intersect. The Police and Criminal Evidence Bill provides that where a circuit judge is satisfied that there are reasonable grounds for believing that an arrestable offence has been committed, that there is evidence which relates to that offence held in confidence by a person and that other methods of obtaining that evidence have been tried and failed (or that, if those methods had been tried, they were bound to fail), the judge may issue an order requiring the evidence to be produced, and that would include data held on a computer as defined in the amendment.

It is not for me to construct hypothetical examples showing where confusion could arise, but to indicate the way in which difficulties could be experienced. Suppose there was a device which did not satisfy the definition but which, nevertheless, could process information automatically in response to instructions given for that purpose. Then the information would be "data" within the meaning of Clause 1(2) of the Bill if it were to be unamended, but it would not be "data" within the implied meaning of Clause 14(8) of the Police and Criminal Evidence Bill.

Clause 28 of this Bill allows a data user to give personal data to a third party if the disclosure is for the apprehension or prosecution of offenders. So if a data user refuses to give that information to the police, as he is perfectly entitled to do, then the police can go to the circuit judge for a warrant and under Section 14(8) of the Police and Criminal Evidence Bill a constable who considers that a computer may contain data that can be used in evidence can require those data to be produced in a form which can be taken away. But then the data user might argue that his equipment is not a computer within the meaning of the Police and Criminal Evidence Bill. Even if the argument were entirely frivolous he might, thereby, secure a delay which would enable him to transfer the data elsewhere.

As I say, it is not for us at this stage to foresee all the difficulties that might arise from incompatibility in the treatment of the terms "data" and "computer" in these two Bills. It would save an enormous amount of trouble and the time of the courts if we get it right at this stage. I beg to move.

4.15 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Elton)

My Lords, I rise with hesitation because at Report stage I can rise only once and I trust that no noble Lords will put points to me after I have sat down to which I would be debarred from replying.

We are indebted to the noble Lord, Lord Avebury, both for his eloquent reprise of his criticism of amendments in the Committee stage and for his eloquent forecast of his objections to the Committee stage of a later Bill that we shall take in this House. My principal attention is directed to the amendment on the Marshalled List. I must say that I am hardly flattered by the noble Lord's description of my ability to describe "data" let alone to define them, and if I have left him with the impression that a pianola roll carries personal data, my ability of explanation has failed conspicuously.

Lord Avebury

My Lords, I meant data, not personal data.

Lord Elton

Indeed, my Lords, but we are dealing with personal data, are we not? Therefore we need not concern ourselves with that.

The purpose of the Police and Criminal Evidence Bill is different from that which we have before us. We are seeking to describe the activities to which the protection afforded by the Bill should extend by identifying where the main risk to personal privacy might lie. That is a very different task from describing the circumstances in which a document produced by a computer may safely be admitted as evidence in court, which is the concern of the Police and Criminal Evidence Bill. As the noble Lord said, we shall doubtless return to this juxtaposition when we have had the benefit of having seen both Bills in this House.

The first part of the noble Lord's amendment seeks to delete the existing description of the equipment doing the processing in subsection (2), which is cast in terms of what the equipment does—the equipment is, operating automatically in response to instructions given for that purpose"— and in its place puts a simple reference to computers, thus shifting the apparent emphasis in the definitions upon the activities being performed, towards the equipment being employed. Our approach, as noble Lords will have noticed, is to avoid reference to computers as such, except in the specialised context of computer bureaux.

What the noble Lord's amendment then does is to define a computer in terms of its storing, processing or retrieving functions, so that we end up with a definition of data in terms of "information recorded in a form in which it can be processed by a device capable of processing" as well as capable of performing various other functions—storage and retrieval—which are either contained already in the processing definition or are implicit in the definition of a data user. In other words, this part of the amendment makes no difference to the scope of the definitions, except that it substitutes the imprecise term "electronic device" for the tighter concept of automatic operation in response to instructions given for that purpose.

With great respect—because I am well aware of the noble Lord's familiarity with the technology of this field—I suggest that for all the difficulty which they have generated the definitions we have at the moment are at least as precise and clear as the change being proposed and that there is no merit in making this amendment. I am aware that the computer definition he has suggested in these amendments is based on that in the Police and Criminal Evidence Bill, but it is only rarely the case that definitions applicable in one context can be transferred happily to another.

May I deal also with the proposal in the final part of the noble Lord's amendment, to create a power for the Secretary of State to amend this provision to cover other kinds of device performing similar functions. I had expected a flicker to pass across the face of his noble friend, Lord Wigoder, as this rather large new order-making power should be added to the list which the noble Lord had already described as being grossly excessive, but he had his usual impassive control.

The noble Lord has indicated—or he has implied—that the purpose of this is to take account of changing technology so that when the day comes in which these functions are performed by other than electronic devices (I am informed that we may one day have biological, chemical or optical devices capable of doing all these things) the law may be amended to take account of such developments. His second amendment is of course only made necessary by the first. If the definition was left as drafted the function would be caught, regardless of what equipment performed it, by catching the equipment. The noble Lord is stuck in a technological rut from which he has to give the Secretary of State power by order to extract him. By the first amendment he tied himself specifically to electronic devices and the second amendment is made necessary by the thought that these devices may, one day, look decidedly old hat.

I would respectfully suggest that the best solution of all is not to embark on a description of the equipment, which is hound to change, but to rely, as the Bill does at present, upon the identification of the activities which it is desired to control and which are actually constituting a threat to the privacy of the individual. I hope, in the light of these comments, the noble Lord will agree that the approach we have adopted to this Bill, notwithstanding my inadequacies in explaining them, is preferable to what he has put before your Lordships.

Lord Avebury

My Lords, the noble Lord the Minister says that a pianola roll is not data—

Lord Elton

My Lords, I said it was not personal data; it certainly is data.

Lord Avebury

My Lords, not personal data. But we are talking here about data. We are talking about Clause 1(2) and we come on to the question of personal data later on. I would put it to the noble Lord the Minister that what is contained on a pianola roll could be personal data—for instance, if one were to write a code which linked musical notation with the ASCII code, which is used in a computer, it would not be a physical impossibility to make a pianola roll record personal data.

Regarding his criticisms of the definition which I advanced as an alternative, I would only say that those criticisms will come back to him with a vengeance when we start talking about the Police and Criminal Evidence Bill because as I pointed out, but I do not think he was listening, I copied the wording exactly from Clause 54 (12) of the Police and Criminal Evidence Bill. Therefore, all the criticisms he has levelled against my definition here must also be directed towards the draftsman who produced that other piece of legislation. I think we have had a case here where two different draftsmen were engaged on these different Bills and they did not consult very well with each other.

I am perfectly content to let my remarks stand on the record, with the Minister's reply. If there are no changes in the two Bills to bring them into a greater degree of conformity with each other as regards the definitions of "computer" and "data" and we subsequently find a flood of actions going to the courts, then be it on the noble Lord's head for ignoring the suggestions I have made this afternoon. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.24 p.m.

Viscount Bledisloe moved Amendment No. 2: Page 1, line 11, at end insert ("or referred to in information so recorded").

The noble Viscount said: My Lords, I think I can best explain the purpose of this amendment by giving an example. Let us take a data user who has a large file of personal data perhaps on all his employees, most of it very routine stuff and perfectly proper. But he also has, or wishes to gather, some highly controversial information on a relatively small number of his employees—perhaps his key employees—material which would contravene a large number of the principles. Let us say some of it is hearsay and scandalous gossip, some of which may not be accurate. It is excessive for his registered needs and indeed some of it may even have been illegally obtained.

If he puts that on his equipment he is going to be in serious trouble and so what he does is to store it manually in what I suspect might well become known in the works concerned as "the dirt book". It is, of course, very important for his purposes that anyone looking up a reference to that employee or data subject should know that he is in "the dirt book", so he puts on the computer a symbol which will come up whenever that entry is consulted and which just means "something about him in the dirt book". The person consulting the computer sees that symbol and either says, "We don't want him", or he goes on to look at the manually-kept record and finds out (having been told to do so by the computer) this information which is stored and which has been accumulated contrary to the principles, if the principles apply.

The data subject who wants to know what is on the file about him can only see what is on the computer and he will perhaps see against his name an asterisk. He may be told that the asterisk means that further information is held manually, but in no way will he be able to get to the information which is stored manually and see that this scandalous gossip about him is wholly untrue and may relate indeed to another chap of the same name, so that his own name is being blacked quite improperly.

I submit that that defeats the whole purpose of this Bill, because we have there on the computer a message which colloquially one can describe as meaning, "There is dirt on this chap"—but the chap is not able to see what it is and have it put right or to make a complaint about it. I fully accept that the Government do not want and do not intend to make this Bill deal with ordinary manually-recorded data. But to all intents and purposes this is not manually recorded; it is in the computer because the reference is there and the message is there; it is made quite clear to the person consulting the computer that there is some nastiness about this chap which can be gained by looking in the tiling cabinet. Therefore, I suggest that the definition of "data" should include information that is referred to in the data stored on the computer, so that the data subject may be able to see what is in the file and also the principles applied to it as well. I beg to move.

Lord Elton

My Lords, the noble Viscount has raised an important point and it is one on which he and I have already corresponded. But I am sure he will forgive me if, for the benefit of your Lordships, I go over much the same ground now. In many respects this amendment turns on whether manual records should or should not be controlled in the same way as automatically processed data. The arguments on both sides are by now well known and I shall not dwell on them unduly. Quite simply, it is the speed and ease with which computers can process and link information about individuals which poses the greatest potential threat to privacy.

We have thought long and hard to see how computerised indexes would fit into our scheme. What is their threat to privacy? Are manual files which are so indexed significantly more open to abuse than those which are not? What are the requirements of the Council of Europe Convention? We concluded that a computerised index could certainly point the way quickly to where manual information was kept—to "the dirt book", mentioned by the noble Viscount. However, that information still lacked the capacity to be processed in the same swift manner as computerised data; like all manual data, the processing would still be time-consuming and cumbersome. The potential threat was therefore not of the same kind as that which applies to data actually held in computerised form. These were the reasons underpinning our decision not to cover information held in manual form which was referred to in an automated index.

Let me give an example to show what I mean. A building society may have on computer the name and address of a mortgagee, details of the mortgage and the state of the account. This is the information to which they need ready access and which they may want immediately available to them. In addition they have further information on a manila file covering all the mortgagee's past dealings with the society and details of former mortgages. And on the computer file is an indication that the manual file exists. Now, anybody having access to the computer is simply told that the manual file exists. He is told nothing of its contents. Indeed, the contents are no different from other information in manual form not referred to by the computer. Only when recorded on the computer do the capacities of the computer to collate, retrieve, transfer and the rest become relevant. And then, of course, the information has become data and the processing of the data is caught by the Bill. But, as long as it is only in manual form, it is, as it were, safe from the capabilities of the computer. We do not, therefore, believe that it should be caught by the Bill, and that, for instance, a subject seeking access should have access to all the contents of the manual file, as well as to the computerised record.

Finally, I should note that the amendment as drafted does not, in fact, succeed in bringing manual information that is referred to in computerised data within the scope of the Bill as a whole. It brings such information within the meaning of "data" in Clause 1(2). But since the information is not processed automatically, it is not "held" by a "data user" in the terms of Clause 1(5). And since the Bill's obligations attach only to personal data that are held by data users, the amendment misses its target. However, that is a matter of mechanics, as it were, and I would rather address myself to the matter of principle.

I think it is common sense that nobody can stop people writing scandalous things about other people and keeping them in a drawer in their office. Subject to the correction of my noble and learned friend on the Woolsack, no offence is committed if the information remains there. If someone uses it slanderously or libellously, he is, of course, guilty of slander or libel and exposed to the penalties for so doing and, if he turns it into data, then it becomes a threat to the individual, then it is caught by this Bill and that is what we intend. We do not think that the Bill ought to be extended to have the scope which the noble Viscount proposes.

Viscount Bledisloe

My Lords, I am grateful to the noble Lord the Minister for that answer, albeit I confess that I find it unsatisfactory. I am sure that the amendment may not achieve the whole purpose, but, as he said, the whole purpose could be achieved if one wanted to do so. Of course, as regards the ordinary manila file which merely records the date of one's payment, it does not matter whether or not you can get to it. But my worry—and I suggest that it should be a worry of this House—is when the symbol on the file means, "This chap is in the dirt book and is, therefore, dirty. Do not touch him". Surely, if that is on a computer and can be flashed around the the world, it does not matter that what lies behind it cannot be flashed around the world. But if that can be flashed around the world and is available to anybody at the press of a button, then the subject in question ought to have the right to see it and it ought to be properly controlled. That is the whole purpose of the Bill.

I still feel that, without this amendment, there is scope for lawyers to drive a coach and horses through the purposes of this Bill. But, if the Government are resolutely determined that that shall remain the position, it is hardly for me as a lawyer to deprive my trade of scope for driving coaches and horses. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

[Amendment No. 3 not moved.]

4.33 p.m.

Lord Mottistone moved Amendment No. 4: Page 2, line 3, leave out from first ("data") to ("processed") in line 4 and insert ("are collected for the purpose of being").

The noble Lord said: My Lords, with the leave of the House—and I hope that the Government will agree—I should like to take Amendment No. 6 with this amendment. Both amendments seek to tackle the same point but from slightly different points of view and, in a sense, one can be seen to be an alternative to the other. It seems from col. 725 of the Official Report for 22nd February that my noble friend Lord Elton, in replying to my Amendment No. 153A, was saying that the wording of Clause 1 is such that word processors are not caught by the definitions. But it is possible that they are caught, if word processors enable information relating to individuals to be retrieved automatically, even possibly with difficulty, and even though that is not the object of the system.

The consequences of that, if it were to occur, would be mitigated by Clause 21(4), but I suggest that that is not going far enough. Indeed, I have the impression that the Government have indicated that they would like to narrow the definition so as to exclude word processors, but there is difficulty in this, given the intricacies of the interlocking provisions of Clause 1.

The purpose of my Amendment No. 4 is to provide just that sort of answer for the Government. The idea behind the amendment is to focus more clearly on the idea of purpose, and to exclude those cases where personal data simply happen to be recorded in a system and are retrievable from it, but whose collection is not the purpose of the system.

The purpose of Amendment No. 6 is rather more straight forward, in that it states specifically: Nothing in this subsection shall apply to automatic word processing and text editing". In considering that, what one is really saying—though this is, perhaps, something that should be the subject of a further amendment—is that a word processor processes words, whereas a data processor processes information and they are different in that respect.

Having put down both of these amendments, and having endeavoured to help to do what I believe the Government were seeking at Committee stage, I then found myself reading in today's copy of The Times on page 3, under the heading "Computer to do routine work for solicitors—and I quote the opening paragraph— Computers could undertake all routine work done by solicitors in domestic conveyancing, undefended divorce and probate, through a package of systems launched yesterday for use by word processors in solicitors' offices.". If word processors are to be used for purposes of that kind, one would have thought that that was just the sort of stuff which the data subjects would want to get at, within the terms of this Bill. So we really must tackle the problem of word processors.

I am not suggesting for one minute that either of my two amendments is the answer to the problem. They are an attempt to give a line for the Government to look at. But it is not something which can be left within the present definitions, which do not really cover this ground. I suggest to your Lordships that word processors have recently been developing extremely fast, and it is quite clear from the article, of which I quoted merely the opening paragraph, that they will go on developing even faster. The Government might like to take this away and see whether, at some stage in the passage of this Bill through Parliament as a whole, they can tidy up what I believe to be an important loose end. My Lords, I beg to move.

Lord Wigoder

My Lords, I am sorry that the noble Lord, Lord Mottistone, chose to couple Amendments Nos. 4 and 6 together, because I have certain reservations about Amendment No. 4 which I need not go into, but I think that Amendment No. 6 is one of importance and it is one which I am very happy to support. I support it on the basis that the definitions throughout Clause 1 are so vague and so sweeping that, unless there is some reservation of this kind, there will be unlimited argument as to whether or not it does in fact include automatic word processors.

The reason why I did not raise my eyebrows, as the noble Lord, Lord Elton, suggested I might have done, at the previous amendment of my noble friend Lord Avebury is that, although I recognise the force of the Minister's observation that my noble friend's Amendment No. 3 was a sweeping one, it did not seem to me to be any more sweeping than the extremely wide definitions which are already contained in the clause. If the Government agree—and I suspect that they will agree—that this clause is not intended to include automatic word processors, then I suggest that, for the sake of safety and clarity, it might be better specifically to exclude them and I hope that consideration will be given to Amendment No. 6.

Lord Elton

My Lords, I perfectly understand my noble friend's wish to achieve the objective, which we share, of including within the scope of the Bill only those activities which are rightly so included. I note his particular concern, and that of the noble Lord, Lord Wigoder, with word processors, and with other methods of storing data, whether using word processors or not, which may unwittingly and unnecessarily have been caught by the Bill's provisions. Perhaps I should begin by outlining how the Government see the definitions working out.

The key provisions, so far as this issue and this amendment are concerned, are the definitions of "processing" and "data user". "Processing" takes place when any of the activities referred to in Clause 1(7) are performed by automatic means—that is, whenever the data are amended, augmented, deleted or re-arranged whenever the information constituting the data is extracted. But for the definition of "processing" to apply in the case of personal data, those operations must be performed by reference to a particular data subject. If the equipment in question can only, for example, augment or delete the data as a whole and not by reference to individuals, then it falls outside the scope of the definition.

I may say that we constructed this aspect of the definitions with a view to excluding equipment which does not operate by reference to a particular data subject and which therefore cannot raise the threat to personal privacy to which this Bill is addressed. Equipment which can perform those tasks by reference to particular data subjects, on the other hand, would be caught—and quite rightly so—whether or not it is called a "word processor", since the potential threat it poses is the same, regardless of its name. The character of these instruments changes so fast that it is quite possible for a data processor to be innocuous one day and for Mark 2 of the same machine to be noxious the next.

However, the definitions contain an important further qualification, by requiring that a data user must be one who either processes data or intends so to process it. If the computer in question contains personal data but such data are distributed at random through the whole collection, and the responsible person has no intention of processing the data by reference to particular individuals (evidence of which might be the absence of an appropriate programme to carry out the task) then that person is not a data user within the terms of the Bill. It is to this test that my noble friend's amendment is addressed, by excluding from the data user definition not only those who lack a current intention to process but also those who had no such intention to process at the time that the data were collected.

I am sorry to have to say to my noble friend that I must resist his amendment, and on a number of grounds. I am speaking now of his first approach to the problem. In the first place, and on a technical point, I am far from clear when the collection of data, as opposed to information, may actually be said to take place. Is it when the substance of a telephone conversation is recorded on a magnetic tape, for example, thereby becoming data for the first time? Is it—bearing in mind the ability of equipment nowadays to read plain text—at the point when a manuscript is turned into a typescript? Is it when a body of data are collected together? I do not see that the amendment addresses itself to this point, but it is obviously crucial if we are to determine when the intention to process has to be present. The reference to data being collected for the purpose of being processed is also open to uncertainty. Except for those—if there are any—who engage in data processing for the sheer joy of the thing, most data users would claim to be assembling data for the purposes of their trade or profession, or whatever, rather than for the purpose of those data being processed.

But the overriding objection to this amendment is that it could seriously undermine the protection which the Bill affords, for it places the whole test of whether a person shall constitute a data user upon his intentions at the time of collection of the data, whenever that may be. It disregards entirely any change of intention he may subsequently have had. If a person could show that he had not intended to process at the time the data were collected, he would be entitled thereafter to make any use he chose of the data. He would not be subject to any of the controls of the legislation. It would clearly not be right to exempt him from the provisions of the Bill or to exempt any data which happened to have been collected with a purpose other than processing in mind. Given the difficulty which would be experienced in attempting to prove an original intention to process, the proposed amendment appears to pose a major loophole in the Bill's provisions.

I hope that what I have said regarding the definitions being directed towards activities potentially capable of causing harm (and away from those which do not) will satisfy my noble friend that the Bill already goes as far as possible towards meeting his concern and that it would not be practical, without risking the effectiveness of the protection provided, to go in the direction he has suggested in the first amendment to which he has drawn your Lordships' attention.

If I may turn to the second of my noble friend's amendments, his second approach is more open. My noble friend has explained his desire to ensure beyond doubt the exclusion from the provisions of the Bill of the operation of what he calls "word processors". The device of stating in plain terms in the Bill just what it is that we wish to exclude from it does, I am bound to say, have certain immediate attractions. They proved overwhelming to the noble Lord. Lord Wigoder. Our task in framing this legislation would have been substantially easier had we been able to follow that approach. But for better or worse, I am afraid that the advance of technology demands that one should be extremely cautious in describing what one intends to achieve by reference to the state of technical progress at any given time, and I suspect that the approach being suggested by my noble friend has already been overtaken—as he has hinted—by such developments.

In view of my noble friend's recognition of that point relating to his second amendment and the flutter of interest on the Opposition Front Bench when it was discovered how much of the work of the legal fraternity might soon be automatically performed, I hope that he will be prepared to let this matter rest where it is.

Lord Mottistone

My Lords, I thank my noble friend very much for his full reply to my amendments. I fully accept the arguments which he has put forward. Nevertheless, when he has occasion to look again at the matter I hope he will find that there is a faint loophole which needs to be covered. I am slightly unhappy that it is not properly dealt with, but I fully accept the shortcoming of Amendment No. 4 and beg leave to withdraw it.

Amendment, by leave, withdrawn.

4.48 p.m.

Lord Swinfen moved Amendment No. 5: Page 2, line 22, at end insert ("or subjects").

The noble Lord said: My Lords, under the Interpretation Act 1978 I understand that the singular includes the plural, except where otherwise stated. If your Lordships will look at Clause 1(3) it says: 'Personal data' means data consisting of information which relates to a living individual…". Subsection (4) says: 'Data subject' means an individual…". I am worried that where data is held on families or family groups or on other small groups of people not incorporated as one body they might not be protected by the Bill. Therefore I beg to move the amendment, in order to obtain the Government's views on this point.

Lord Elton

My Lords, I am most grateful to my noble friend for his explanation of the concern which led to the tabling of the amendment. Initially it escaped me. Having listened to my noble friend's explanation, I am bound to say that I do not think that the amendment is necessary. The second part of the processing definition contained in subsection (7) is there to limit the scope of the Bill to those activities capable of causing harm—to the situation, in other words, in which it is possible to interrogate the computer for information about a particular individual and then to perform tasks in relation to that data. If the equipment in question can only be used to perform tasks in relation to the collection of data as a whole, then the threat is not present and it would be wrong to subject that activity to the Bill's controls.

What my noble friend's amendment seeks to do is to add to the concept of performing these tasks in relation to a particular data subject that of doing so in relation to a subject or subjects. But I suggest, with respect, that this effect is already achieved. It is not so much a question of the male embracing the female as of the singular embracing the plural, as my noble friend has put it. If I go to the computer to seek data in regard to half a dozen specified data subjects, I am no less doing this in relation to a particular data subject, albeit six times over, than if I performed the task just once in relation to a single individual. Equally, if I ask the computer to serve me up with all the names of left-handed Viscounts, I am also processing data by reference to each individual data subject in that small but distinguished group. I hope that my noble friend is reassured that the Bill as drafted does what we intend and does not omit anything that it ought to do.

Lord Swinfen

My Lords, having heard my noble friend's explanation, I am not sure that I am satisfied. My noble friend referred throughout to individuals as though individual members of a family could always be regarded totally independently of the other members. Legally, children are represented by their parents. A family unit can be considered as a unit, and in certain circumstances would, I am sure, be a single data subject with the information being held on a family as a whole rather than on individual members of that family. However, I will read what my noble friend has said. I may discuss it with him later and I feel free to come back at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

Clause 2 [The data protection principles]:

Lord Swinfen moved Amendment No. 7:

Page 2, line 44, at end insert— ("(3A) The Secretary of State may by order list types of data user who must inform data subjects that they hold data on them.").

The noble Lord said: My Lords, this amendment is designed to give power to the Secretary of State to deal with particular types of data user who may in the future make a nuisance of themselves. When man first discovered the sharp edge and used it to skin a beast before cooking it, he had no idea that later a similar sharp edge could be used to produce the carvings in your Lordships' Chamber. At the same time, sharp edges in the form of knives have done considerable damage, even to the extent of killing people. I am not suggesting that computers can be used to kill but, in the wrong hands, I am sure that computers can do very considerable damage to people.

Although this may not be necessary today, a time may come in the not too distant future when a data subject should be informed that information about him is being collected and collated without him having to apply to the data user for that information, because he may have no idea that such data is being collected. The way in which I have framed the amendment, it does not affect the security of the nation or the use of computers by police, because it will be up to the Secretary of State to decide what type of data user is affected. I beg to move.

Lord Elton

My Lords, my noble friend Lord Swinfen was kind enough to give me notice of his intention to make this approach to the Bill. I am grateful to him for that and for his explanation to your Lordships as to why he has done it. I appreciate his desire to make sure that nobody is left unaware of the fact that possibly important data about him are held, but I wonder whether this amendment is not in fact an unnecessary duplication of the provisions already in the Bill. The job of the register, as well as providing a point of reference for the registrar, will be to inform the public of the data processing activities being undertaken, so that they will be able in a general way to decide whether data about them are likely to be held—and can then decide to make use of their rights under Clause 21 to be informed whether data are held about them, and to be supplied with a copy of the information therein.

The Bill provides a clear mechanism for determining whether data are held, and I can see no obvious advantage in providing for a parallel procedure in particular circumstances. Continental practice in this area appears to be either to require that data subjects are informed of the fact that data are held (as certain parts of the West German data protection system provide) or to have some sort of central public register. The latter appears generally to be the more common approach, and is of course the one which we have followed in our Bill. To have both a public register and a requirement to notify data subjects (even if only in regard to certain types of data) would, I fear, be an act of supererogation.

The proposal contains no obligation upon the Secretary of State to make use of the power that it gives to him, but I think it not right to place order-making powers in statutes—especially, as here, quite significant powers—raising expectations that they will in fact be used without some belief that, one day, they ought to be. We already have in the Bill a wide-ranging power for the Secretary of State in respect of data in the most sensitive areas that it is possible to imagine. I am referring to Clause 2(3), which provides a power for the Secretary of State to modify or supplement the data protection principles in order to provide additional safeguards in the areas there listed—race; political, religious or other beliefs; health; sexual life; and criminal convictions.

It is perfectly possible that a Secretary of State would decide that one way to provide such additional protection in one or more of these areas, would be to amend the data protection principles, so as to require notification in such cases—although I am bound to say that any Secretary of State would think very carefully before imposing a requirement of this kind on data users, which could prove onerous and costly. In other words, the power my noble friend seeks already exists in the Bill in regard to all the circumstances in which it is possible to believe that the exercise of such a requirement could be justified. I hope that my noble friend will be content with that.

Lord Swinfen

My Lords, I thank my noble friend for what he has said, which I will read carefully. I am not entirely convinced that it is an unnecessary power. None of us really knows yet what computers can do or will do. They are changing and are being improved very quickly. I still believe that it would be a useful power for the Secretary of State to have. However, in the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [The data protection principles]:

Lord Elton moved Amendment No. 8:

Page 28, leave out lines 21 to 23 and insert— ("7. An individual shall be entitled— (a) at reasonable intervals and without undue delay or expense—

  1. (i) to be informed by any data user whether he holds personal data of which that individual is the subject; and
  2. (ii) to access to any such data held by a data user; and").

The noble Lord said: This amendment, my Lords, is a response to those who have pointed out that the seventh principle contains no reference to an entitlement to confirmation of whether or not data are held by a user—only to access to the data. Of course, under Clause 21 the statutory entitlement covers confirmation as well as access. So any individual can, under Clause 21, be sure of knowing whether or not data are held about him. Nevertheless it was put to us by the noble Lords, Lord Mishcon and Lord Wigoder, that it was odd that the entitlement to confirmation appeared in the European Convention but not in the seventh principle.

I think that the practical effect of the absence of any entitlement to confirmation would have been slight. As I say, the statutory entitlement was there in Clause 21. But we accept that it would be preferable for the seventh principle to be wholly consistent with Clause 21. And it is true that a user who simply refused to respond to an individual who was not a data subject would be open to court action under Clause 21(8), but would not be breaching the seventh principle and therefore would not be liable to any action by the registrar.

We are happy to bring forward this amendment. I think that the noble Viscount, Lord Bledisloe, will take particular note that, under the amendment, the seventh principle is cast in terms of an "individual's" entitlement, not a "data subject's", because, if it were cast in terms of a data subject, then its effect would be nullified where the user held no data about the person applying; a point which the noble Viscount made at an earlier stage. He would not be a data subject and therefore would have no entitlement. I am grateful to the noble Viscount for picking up this point, and I would just add that that is one of the reasons why Amendment No. 9 tabled in the names of noble Lords opposite would not have done—because that amendment leaves the seventh principle cast in terms of a data subject. However, I hope that they are content, for our amendment does, I think, meet precisely the point that they made, and achieves precisely the same effect that their amendment is aimed at achieving. I beg to move.

Lord Elwyn-Jones

My Lords, noble Lords who referred to this matter at Committee stage will be grateful to the noble Lord, Lord Elton, for meeting their anxieties that the Bill as it stood did not comply with an important part of the Convention. I think it was my noble friend Lord Mishcon who initiated the debate on this in what, if he will not mind my saying so, was a record for him, in almost the shortest speech I think that has ever been made in the House—certainly the shortest ever made by my noble friend Lord Mishcon.

Lord Elton

My Lords, I merely wished to say that I hope the noble Lord took note of the result of his brevity.

Lord Elwyn-Jones

Indeed, my Lords, he has asked me to say how deeply grateful he is on that account. I hope that the noble Lord, Lord Elton, will not mind my reminding him that his first response to this was that he thought the Bill was as comprehensive as it should be; in this case second thoughts are better than the immediate first thoughts. We are most grateful to him for having met our wishes. Indeed, looking through some of the other matters that arise, there are one or two other instances where it will be a pleasure to say "thank you".

Viscount Bledisloe

My Lords, may I also express my gratitude to the noble Lord for dealing with this point, and indeed for the care he took in dealing with all the points I raised?

On Question, amendment agreed to.

[Amendment No. 9 not moved.]

Clause 3 [The Registrar and the Tribunal]:

5.2 p.m.

Lord Renton moved Amendment No. 9A: Page 3, line 15, leave out subsections (2) to (5).

The noble Lord said: My Lords, I beg to move Amendment No. 9A, which is to leave out subsections (2), (3), (4) and (5). May I first of all say that the draftsman had to break new ground in this Bill. He must have had a very difficult job, and for the most part I think he has succeeded in doing it very well indeed. Such points as I wish to make about the drafting are not intended to be critical in the ordinary way; they are just, I hope, constructive suggestions for one or two alternative ways of doing it.

So far as these subsections are concerned, it is not even a matter of drafting, but of arrangement. I suggest that these subsections could very well have been put into the second schedule. The second schedule deals with a number of administrative or it might be said quasi-administrative matters, and so do the subsections. They are not matters of law which the ordinary citizen is being required to obey. They are matters of administration within the establishment of the Government. For that reason, I think it would have been more consistent not to clutter up a clause in the Bill with these kinds of things but to have them in the second schedule. I should be interested to know what my noble and learned friend feels about this, if he is to comment on it.

Lord Elwyn-Jones

My Lords, all I wish to say is that on the face of it the subsections we are considering are certainly far from being merely administrative. Clause 3 goes to the very heart of a good deal of the Bill and it provides for matters that go outwith the field of administration, I would have thought. I may be wrong.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, I am sure that the draftsman, when he comes to read what my noble friend has said at the beginning of his speech, will be grateful for the compliment he has received. As a matter of fact, we have of course considered the very matter which my noble friend has raised, but, like the noble and learned Lord on the Opposition Bench, we think that the Government prefer to have these subsections in the main body of the Bill to putting them in the second schedule. They are the most important provisions relating to the registrar. Were we to accept my noble friend's amendment, it would mean that there would be no provision about the appointment of the registrar or the chairman, deputy-chairman or members of the tribunal, or about the constitution of the tribunal, in the body of the Bill. It is, as my noble friend said, a matter of arrangement, but we think that, as the noble and learned Lord indicated, these matters are so important that they are better in the body of the Bill than in the schedule. I think that was the main point with which my noble friend wished me to deal.

Lord Renton

My Lords, I am grateful to my noble and learned friend for that explanation. I feel that there is very little distinction in principle between the kind of things included in those subsections and the kind of things included in the second schedule. However, my noble and learned friend has spoken with the authority of his office. As I say, I am grateful for the explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2. [The Data Protection Registrar and the Data Protection Tribunal]:

Lord Elwyn-Jones had given notice of his intention to move Amendment No. 10: Page 30, line 23, leave out ("first").

The noble and learned Lord said: My Lords, this is yet another example of where I must express gratitude to the noble Lord, Lord Elton, for having listened to and then acted upon the views that we expressed, that it was desirable that the term of office of the registrar should be a five-year certain term. That has now been embodied in the provisions of Amendment No. 11, where, if I may say so, the drafting combines both effectiveness and brevity and deals with the matters that I had previously put down before we saw the Government amendment. In the light of good things to come, I do not move the amendment.

[Amendment No. 10 not moved.]

Lord Elton moved Amendment No 11: Page 30, line 23, leave out from second ("the") to ("five") in line 26 and insert ("Registrar shall hold office for").

The noble Lord said: My Lords, the noble and learned Lord, Lord Elwyn-Jones—who has just with such grace, courtesy, and brevity, withdrawn his own amendment—with the strong support of the noble Viscount, Lord Craigavon, proposed a period of office of five years, but was good enough to withdraw the amendment when I undertook to consider the matter further. We acknowledge the force of the arguments that have been advanced. We are anxious to demonstrate and to bolster the independence of the registrar. It is with pleasure therefore that I bring forward the amendment in my name. It was for reasons of drafting only that I preferred it to the noble and learned Lord's amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 12 not moved.]

Lord Elton moved Amendment No 13: Page 33, line 10, leave out ("5") and insert ("paragraph").

The noble Lord said: My Lords, this is a purely technical amendment to put right the reference to the words in Section 8(2) of the Tribunals and Inquiries Act 1971. Paragraph 13 of Schedule 2 to the Bill amends the Act so that the Tribunal will come within the purview of the Council of Tribunals. It is also intended that the Council shall enjoy oversight in respect of the registrar's non-executive functions. It has come to our attention that the insertion we wished to make in the 1971 Act would not have been properly achieved by paragraph 13 as drafted. This amendment is designed to give proper effect to our intentions. I beg to move.

On Question, amendment agreed to.

Lord Elwyn-Jones moved Amendment No. 14:

After Clause 3, insert the following new clause:

("Data Protection Advisory Committee.

.—(1) For the purposes of this Act there shall be a Data Protection Advisory Committee (in this Act referred to as "the Advisory Committee").

(2) The Advisory Committee shall consist of not less than five and not more than nine members appointed by the Secretary of State after consultation with the Registrar.

(3) The members of the Advisory Committee shall include persons appearing to the Secretary of State and the Registrar to have professional knowledge or experience of health care, research, statistics, the prevention and detection of crime, employment, public administration, the law, and the design, manufacture or use of data equipment.").

The noble and learned Lord said: My Lords, this is an important amendment covering some of the ground that we covered at the Committee stage, and therefore I need not address your Lordships at any great length upon it, but I do not want the brevity in any way to reflect any measure of lack of importance of the amendment. It proposes the setting up of a data protection advisory committee. There is one important change from the way in which it was originally presented in the Committee stage. In subsection (2) your Lordships will see: The Advisory Committee shall consist of not less than five and not more than nine members appointed by the Secretary of State after consultation with the Registrar". The purpose of that is to avoid any possibility of serious conflict between the registrar and the advisory committee.

If I may say so, the attitude of the Government in regard to the advisory committee has been somewhat flabby, if I may use a rather unattractive adjective to describe what I regard as an unattractive position that has been taken. But there was some hope of improvement on the Government's side when the noble Lord, Lord Elton, at the Committee stage said that he would consider very carefully what had been said in the debate.

It seems to be agreed on the Government side that there is much to be said for having an advisory committee, and indeed there is. The duties of the registrar cover a considerable range of expertise. Your Lordships will see from subsection (3) of the proposed new clause that in setting up the advisory committee it should include: persons appearing to the Secretary of State and the Registrar to have professional knowledge or experience of a number of specialised branches of activity, law and administration, most sensitive and in respect of which data protection will most carefully need to be established— of health care, research, statistics, the prevention and detection of crime, employment, public administration, the law, and the design, manufacture or use of data equipment". If a single registrar had all the knowledge of Solomon it would be doubtful whether he could embrace expertise in all those fields and a sufficient professional knowledge or experience of them. We therefore think that it would be helpful, and indeed very desirable, from the beginning—from the setting up of this machinery—that the advisory committee should be in existence and should be available.

There is nothing of course to prevent the composition of the advisory committee from being changed to reflect different or other expertise which may be required at different times, and we do not propose any limitation on the matters on which it will be able to advise. But we do attach importance to ensuring that the advisory committee should have a statutory standing. First of all, it will then exist and be in existence regardless of changing political character of Governments. It will have an element of permanence rather like that of the Law Commission which is respected. Then we feel that it would be helpful that both Parliament and the public should know where and to whom the registrar goes for advice, especially, as I have said, in the more difficult questions of data protection and in the sensitive fields that I have indicated. Accordingly we think that the time is now to make provision for the advisory committee in the Bill. I beg to move.

5.14 p.m.

Lord Elton

My Lords, I undertook in Committee, as the noble and learned Lord has reminded us, to reflect on the arguments that had been advanced for a provision in the Bill in regard to an advisory committee, although I was careful to do so without commitment. The noble and learned Lord in introducing his remarks hoped that I would not take it that brevity meant a lack of weight. I did not then feel that he was being in any way personal about my figure, but when he went on to say that my position was flabby, I began to wonder whether he had chosen the happiest means of illustrating his position. But I take it not amiss.

If my failure to put down an amendment on the point has disappointed the noble and learned Lord, I am afraid that I, too, must record a measure of disappointment that he has not been able to come up with sufficient refinements to make his scheme attractive. As I made clear in Committee, the Government need no convincing as to the value of expert advice in a field as complex as that of data protection and that we would of course consult as appropriate. I have also already said that the Government would establish a formal committee structure if that seemed the best way of conducting such consultation—before exercising the powers contained in the Bill or embarking upon legislative changes. But I argued that to establish such a structure in the present Bill, and to make the exercise of any of the Secretary of State's powers dependent upon consulting it, would be to run the risk of rigidity and of restricting the usefulness of the committee in question.

The noble Lord, Lord Mishcon, argued in Committee that the problems of inflexibility to which I had referred could be got round by an order-making power, enabling changes to be made in the constitution or functions of the committee, as circumstances changed. Such a power would obviously be useful up to a point, but it would not go all the way towards meeting my concern. To take an example, suppose the Secretary of State used all his powers at an early date, consulting the advisory committee as he would be required to do by virtue of the present amendments, if the ground had all been well covered so that there was little prospect of further substantive changes there might be little point in keeping in active being an advisory committee constituted just for advising on the exercise of those powers; but if a minor point arose, say, in regard to the tribunal rules, on which some technical change were necessary, the Secretary of State would then be obliged to reconvene a possibly moribund advisory committee before the change could be made.

I take it that the noble Lord's envisaged order-making power would not go so far as to dispense with a requirement on the Secretary of State to consult the committee, or we should in effect have lost the elements of a statutory advisory committee, which I had thought it the purpose of this amendment to achieve. It would be a sort of self-destruct mechanism in the amendment. I am not seeking hereby to score debating points but only to show that it might be far from easy to establish a statutory advisory committee on terms which did not involve the sort of rigidity which the example I have quoted demonstrates. Moreover, the amendment as drafted does not come near to producing the sort of committee which was being urged upon us at the Committee stage.

I was a little surprised that the noble and learned Lord did not speak to his Amendment No. 91 at the same time, because that is the only point later in the Bill where I can find a mechanism to bring the committee into mesh with the Bill. There your Lordships will see that it is to add to the requirements on the Secretary of State in Clause 36 of the things he must do before making an order that he should consult not only the registrar but also the advisory committee. It may be by oversight, but that appears to be the only point at which this amendment is tied into the function of the Bill beyond this point. Therefore, it seems to me that the amendment as drafted only provides a consultative function for the Secretary of State and not, as I thought was the intention, for the registrar.

If it remains the noble Lord's objective therefore that the committee should have the broader function of advising the registrar, I would respectfully suggest that rather more is needed before the present amendments were in a state to achieve it. I suspect indeed that the fact that the noble and learned Lord has come back on Report with an amendment so nearly identical to the one that he moved in Committee demonstrates how difficult it would be to find a suitable formula. I hope therefore that the assurance that I have given as to the Government's recognition of the value of outside advice, and our readiness to seek it in extra-statutory form, will persuade him not to press the amendment at this time, either.

Lord Mishcon

My Lords, I am afraid we are taking a very unrealistic view of the future in regard to computers and the provisions of the Bill if we really feel that we can leave it on the basis that a registrar will be appointed, independent as we know he will be, to carry out all the functions that could be envisaged. I have said before—and in saying it again I had better say it briefly, having earned a certain reputation with your Lordships this afternoon—that he is not to be, surely, the same type of registrar as the Registrar of Companies or the Registrar of Business names, as they used to be. The onus put upon this registrar and upon the Secretary of State in some matters is too heavy by far for any one individual. Lindop saw that, and the White Paper saw that. Therefore, in both documents there was a recommendation that there should be an advisory committee.

The Minister, with great respect, does not answer the point by saying, "Oh, yes, it is perfectly right that there was a contribution made last time"—it does not matter whether it was by me or by anybody else—"that you could bring this up to date by order or regulation". But the objection to that one is that the order or regulation presumably could not terminate the advisory committee, if ever it were intended to do so, because it was functus officio—it had carried out all the work that it could. There will be, we hope—and the Minister himself has said so—voluntary schemes put up by various bodies of computer users, so that there can be rules of conduct which will be looked at by the registrar and the advisory committee.

At Third Reading one could obviously set out what might be the purposes of the advisory committee. My noble friends and I were anxious to do two things: first, not to limit those powers and rights: and, secondly, not to walk into the trap that one finds something that the advisory committee is called upon to do but which the noble Lord the Minister thinks it is inappropriate for it to do, and you then lose your advisory committee. We wanted the principle of a statutory committee to be admitted.

We think that this is such a vital matter—

Lord Elton

My Lords, I think that the noble Lord is coming to a conclusion, and before he does so I wonder whether we are on the same wavelength as regards this matter. I am saying, inter alia, that the amendment which he has brought to the House appears to give the advisory committee only one function, and that is to advise the Secretary of State on his order-making powers under certain circumstances. The noble Lord was again addressing himself to the great need that the registrar would have for the support of such a committee. That is another matter, but it is not provided by his amendment, as I sought to make plain.

Therefore, I addressed myself to the proposition that what was needed was an advisory committee to advise the Secretary of State on powers, most of which would be used very infrequently after the first flush of activity, If, in fact, the noble Lord is seeking to do more than that, then all I have to add—and I am not sure he took this point on board—is that he does not do it by this amendment.

Lord Mishcon

My Lords, the point made by the noble Lord the Minister is a perfectly fair one. I meet it only in this way. It is perfectly open for the noble Lord the Minister, having promised to reconsider this matter without any commitment at Committee stage, to do what I believe your Lordships would want him to do; namely, if there is a case for the advisory committee not only to advise the Secretary of State on the limited matters which may be set out in the amendment and in Amendment No. 91 but also to advise the registrar on the many matters upon which expert advice is called for, then the noble Lord the Minister has only to say so and it will stop us having to divide on what we regard to be a principle. If the noble Lord cannot concede that point, then quite obviously we regard this advisory committee as being so important for the larger series of powers and objects that may be set down in this immediate amendment that we would want to test the views of the House upon it.

Lord Elton

My Lords, with the leave of the House, let me say that at Committee stage I advanced a number of reasons why I did not think that the statutory road was the right one to go down even though I accept that advice will be needed. I will not weary the House by repeating those reasons now, as I think the noble Lord is inviting me to do, and therefore I must tell the noble Lord that I cannot accommodate him, and he will doubtless now move his amendment.

Lord Drumalbyn

My Lords, I wonder whether I could intervene, because I have looked at Amendment No. 91 and it seems to me that the function of the advisory committee is misconceived. It should be an advisory committee for the registrar. I am not sure whether I am right about this, but it seems to me that the committee, as conceived in this particular amendment, could quite easily, with minimum drafting changes, be made an advisory committee to the registrar. When we come to Amendment No. 91 we could probably fill it out quite a bit.

However, I think that it is undoubtedly the case that there are all kinds of questions which are really for the registrar to settle under this Bill in the course of his normal duties—for example, how he is to determine whether he is going to allow registration at all; whether the purposes that are set for the data files, and so on, are right; whether they are compatible, and so on. I should have thought that if this were done it would be very much better, particularly as the registrar seems to be conceived, in the Bill as drafted, as being a totally independent person. Therefore, it would be inappropriate for it to advise the Secretary of State; it should be advising the registrar.

I do not know what the movers of this amendment think of what I have said, but it would be very interesting to hear their views. My noble friend the Minister reminds me that this is Report stage, but I thought that the person who moved the amendment was able to sum it up at the end. Anyway, I have said enough.

Lord Elwyn-Jones

My Lords, with the leave of the House, in view of the adamant and determined refusal of the noble Lord on the Government Front Bench to contemplate at this stage an advisory committee of a statutory character, and in view of the fact that we have a Third Reading stage yet to come when further amendments can be made to what is proposed, it is desirable that the House should have an opportunity to express its view upon this matter.

5.27 p.m.

On Question, Whether the said amendment (No. 14) shall be agreed to?

Their Lordships divided: Contents, 69; Not-Contents, 93.

DIVISION NO. 1
CONTENTS
Airedale, L. Fisher of Rednal, B.
Amulree, L. Gaitskell, B.
Avebury, L. Gardiner, L.
Aylestone, L. George-Brown, L.
Banks, L. Hampton, L
Beaumont of Whitley, L. Hanworth, V.
Beswick, L. Hatch of Lusby, L.
Birk, B. Houghton of Sowerby, L.
Bishopston, L. Hughes, L.
Boston of Faversham, L. Jeger, B.
Briginshaw, L. John-Mackie, L.
Brockway, L. Kilmarnock, L.
Bruce of Donington, L. Kirkhill, L.
Caradon, L. Llewelyn-Davies of Hastoe, B.
Collison, L. Lloyd of Kilgerran, L.
Craigavon, V. Lovell-Davis, L.
David, B. Mayhew, L.
Denington, B. Mishcon, L.
Diamond, L. Molloy, L.
Elwyn-Jones, L. Nicol, B.
Elystan-Morgan, L. Oram, L.
Ewart-Biggs, B. Peart, L.
Perry of Walton, L. Stewart of Alvechurch, B.
Phillips, B. Stewart of Fulham, L.
Pitt of Hampstead, L. Stone, L.
Ponsonby of Shulbrede, L. [Teller.] Strabolgi, L.
Tordoff, L.
Richardson, L. Underhill, L.
Robertson of Oakridge, L. Wallace of Coslany, L. [Teller.]
Rochester, L.
Ross of Marnock, L. Whaddon, L.
Sefton of Garston, L. White, B.
Segal, L. Wigoder, L.
Shackleton, L. Winchilsea and Nottingham, E.
Shaughnessy, L.
Shinwell, L. Wootton of Abinger, B.
NOT-CONTENTS
Ailesbury, M. Macleod of Borve, B.
Airey of Abingdon, B. Mancroft, L.
Avon, E. Margadale, L.
Belhaven and Stenton, L. Marley, L.
Beloff, L. Massereene and Ferrard, V.
Belstead, L. Merrivale, L.
Bledisloe, V. Mersey, V.
Campbell of Alloway, L. Monckton of Brenchley, V.
Carthcart, E. Mottistone, L.
Cork and Orrery, E. Mowbray and Stourton, L.
Cottesloe, L. Murton of Lindisfarne, L.
Daventry, V. Newall, L.
Davidson, V. Northchurch, B.
Denham, L. [Teller.] Nugent of Guildford, L.
Digby, L. O'Hagan, L.
Dilhorne, V. O'Neill of the Maine, L.
Drumalbyn, L. Onslow, E.
Ebbisham, L. Orkney, E.
Ellenborough, L. Pender, L.
Elliot of Harwood, B. Platt of Writtle, B.
Elton, L. Plummer of St. Marylebone, L.
Faithfull, B.
Ferrers, E. Portland, D.
Fortescue, E. Rankeillour, L.
Fraser of Kilmorack, L. Renton, L.
Gainford, L. St. Aldwyn, E.
Gisborough, L. St. John of Bletso, L.
Glanusk, L. Salisbury, M.
Glenarthur, L. Sandford, L.
Gray, L. Sempill, Ly.
Greenway, L. Skelmersdale, L.
Hailsham of Saint Marylebone, L. Stradbroke, E.
Strathcarron, L.
Harmar-Nicholls, L. Strathcona and Mount Royal, L.
Henley, L.
Hives, L. Sudeley, L.
Home of the Hirsel, L. Swinfen, L.
Hornsby-Smith, B. Swinton, E. [Teller.]
Hylton-Foster, B. Terrington, L.
Ilchester, E. Teynham, L.
Kinnaird, L. Thomas of Swynnerton, L.
Lane-Fox, B. Trefgarne, L.
Lawrence, L. Trumpington, B.
Leathers, V. Vaux of Harrowden, L.
Long, V. Vivian, L.
Lucas of Chilworth, L. Wakefield of Kendal, L.
Lyell, L. Westbury, L.
Mackay of Clashfern, L. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 4 [Registration of data users and computer bureaux]:

5.35 p.m.

Lord Glenarthur moved Amendment No. 15: Page 4, line 20, leave out from beginning to end of line 21 and insert ("(f) one or more addresses for the receipt by the data user of").

The noble Lord said: My Lords, the purpose of Clause 4(3)(f), to which this amendment relates, is to provide in the register entry of each data user the point in the user's organisation responsible for dealing with requests for access. The register will in this way assist both data subjects and data users by helping to ensure that requests for access are directed to the place where they can be dealt with most effectively.

However, I must here thank my noble friend Lord Mottistone for pointing out in Committee that it would be helpful to allow data users not to be restricted to a single access point. My noble friend argued convincingly then that offering a number of targets would enable data subjects to seek access from the most appropriate point in a user's organisation, and that this in turn would be helpful to data users. If I may say so, I believe that my noble friend was correct in this view. There are benefits to be gained all round from a degree of decentralisation in these matters. This amendment will therefore enable data users, if they so wish, to spread the burden of responding to data subjects over a number of offices, which may perhaps be geographically distributed, and to offer a choice to subjects.

In drafting this amendment we have also taken the opportunity to simplify the paragraph in one respect. We have removed the reference to individuals to make it absolutely clear, as my noble friend Lord Swinfen pointed out in Committee, that data users should be able to nominate a post, rather than name an individual. We did not feel, on reflection, that the words "description of an individual" gave quite the right flavour here. For these reasons we have chosen to recast subsection 4(3) (f) in terms of addresses. Thus users will be free to make their own choice: if they want to give a single access point, they may do so; but if they want to offer a choice, then that is open to them as well. If they would be helped by including in the address the name or post of an individual, they can do that too. I should of course say that subjects will not be restricted to applying to the address that deals with their data. An application to any address will suffice, since the subject cannot be expected to know to which to go. Indeed, many subjects will not inspect the register as a preliminary to access, and so, for example, may go to head office for access even though that is not listed at all on the register. And that too must be permissible.

I hope that by bringing forward this amendment we have responded positively to the demands of data users and made a minor improvement to the Bill. I am grateful to my noble friend and I beg to move.

Lord Mottistone

My Lords, briefly, I should like to say how grateful I am to my noble friend for picking up the point that I made in my Amendment No. 49, and indeed for improving upon it. I thank him very much.

On Question, amendment agreed to.

Lord Gardiner had given notice of his intention to move Amendment No. 16:

After Clause 6, insert the following new clause:

("Power of Registrar to give advice.

.—The Registrar may give advice to any data user or data subject who seeks it from him as to any matter concerned with the application of the data protection principles.").

The noble and learned Lord said: My Lords, this is another of those happy occasions when we can thank the Government for the consideration that they have been good enough to give to amendments that we advanced on Committee stage of the Bill. As the House may remember, I then moved an amendment to impose a duty on the registrar to advise data users and data subjects. I urged in the alternative that, even if there was no duty imposed on him, there should be a power in him to advise them because otherwise, being a merely statutory creature, he was liable to be told that he was acting ultra vires if he did something for which the Bill did not provide.

In answer to this and various other points which were advanced it was said first that there was another clause in the Bill which already provided for that. That turned out to be a clause requiring the registrar to disseminate information to the public, which is quite different from advising data users and data subjects. Then it was said that he could do it anyway because the Lord Chancellor often gave advice and there was no Act of Parliament which said that he could do so. It did not seem to us on this side of the House that that was a convincing analogy to take. However, since the Committee stage the Government have put down Amendments Nos. 88 and 89 which enable the registrar to give advice to data subjects and data users. I may have a small point to raise on the wording of those amendments when we come to them, but in these circumstances I thank the Government again for the consideration they have been good enough to give to the arguments advanced in the Committee stage of the Bill, and accordingly I do not move this amendment.

[Amendment No. 16 not moved.]

Clause 7 [Acceptance and refusal of applications]:

Lord Mottistone moved Amendment No. 17: Page 6, line 11, leave out ("two months") and insert ("seven days").

The noble Lord said: My Lords, in Committee I moved a somewhat similar amendment, No. 58, tackling the problem from a different point of view. My noble friend Lord Glenarthur undertook to look at the points I made at that stage. However, nothing seems to have come of that. It is still unsatisfactory that a data user may have to wait up to two months for notification of whether his application has been accepted or refused under Clause 7(1).

Today not only can systems be set up quickly, so that a delay of as much as two months could have serious commercial consequences for the potential data user, a point which I made at Committee stage, but perhaps more importantly service bureaux with existing systems will not want to wait two months before new customers can be registered. My noble friends on more than one occasion said at Committee stage that the registrar himself will use a computer, and so he really should be able to react more quickly than within the two months which is being provided in the Bill as it stands. I beg to move.

Lord Elton

My Lords, my noble friend indicated in Committee his intention of keeping the Government up to the mark on this issue, and he has now produced for our consideration an alternative approach to the problem which he identified at that time. It would be nice, in the light of that, if I were able to indicate Government acceptance of the line proposed, but I am afraid that I must, at least for the present, continue to resist. Let me explain how the Government see the situation. I argued in Committee that in our view the approach we proposed to registration would be unlikely to lead to difficulty for data users; changes in registered particulars were likely to be rare, because applicants were able to cast registration entries in general terms to cover any situation which might arise, and those undertaking the processing of personal data for the first time would be likely to know a substantial time in advance of the likelihood of their doing so. So that there would be adequate time to submit an application to the registrar. I referred also to the need to allow the registrar the opportunity to consider applications before the start of the activity in question, and I suggested that to undermine that principle would be to risk creating a serious loophole in the Bill's provisions.

Our view of this question remains that the registration scheme as drafted is unlikely to cause serious difficulties for data users, but my noble friend undertook to consider whether there might be ways of mitigating any difficulty which could arise in certain cases, just as the Government have undertaken to view favourably what I termed the hunt for the unicorn—some harmless exception to the rule of general registration in the Bill as it stands.

The two issues have certain links—both are concerned with the supposed burdens which the registration requirement might place upon users—and since Committee we have been giving some considerable thought to ways of meeting either, or both, of these issues. I am sorry, however, that the difficulty in coming up with a satisfactory scheme in the short time available has meant that we are still at the thinking stage, but we have very definitely not abandoned the search as impossible. I do not wish to give any sort of commitment to our finding any better approach than we have at present to the question of the registration procedure (or, indeed, in the hunt for the unicorn, which we shall be considering on a later amendment) but I want to assure the House that we have not abandoned the attempt.

It is, of course, always easier to see the flaws in other people's schemes than it is to come up with a workable alternative of one's own, but I must point out to my noble friend that the scheme which he has proposed is not practical. It would require the registrar, within seven days of the receipt of an application, to indicate whether it had been accepted or rejected or, if that were not possible in the time, to state that the special procedure in Clause 7(5) would apply. I fear, however, that this would mean that the registrar never exercised any discretion in regard to applications for registration, and would probably have to submit all applications to the "special" procedure of subsection (5), even if it were possible anyway to deal in a purely automatic fashion with all applications in the very tight time which is being suggested. And one has only to think of the effect of the Christmas period on any office environment to realise how unlikely it would be that the task in question could be performed within the time-scale allowed, and there are many other bank holidays as well.

I am forced to say to my noble friend, therefore, that his amendment as it stands simply would not be practicable even with the aid of the most sophisticated office technology. I would hope, however, in view of what I said about the seriousness with which the Government are examining the possibility of a change in this area, that my noble friend will not feel obliged to press for details at this present stage.

Lord Mottistone

My Lords, that is indeed a reassuring answer. I trust that the Government will keep up their enthusiasm to find a solution to this particular problem. I take the points he makes about seven days being perhaps on the short side. I hope that he may find himself having come up with a solution to this problem by the next stage of the Bill in this House. If not, perhaps it will have to wait for another place. At this stage, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

5.48 p.m.

Lord Mottistone moved Amendment No. 18: Page 6, line 36, after ("that") insert ("it is not reasonably practicable for the data user to supply more specific particulars or"),

The noble Lord said: My Lords, with the leave of the House, I should like to take with Amendment No. 18 Amendment No. 21. The noble Lord, Lord Wigoder, who has kindly added his name to my Amendment No. 21, has agreed that I might do that. Both these amendments tackle the problem which was raised under my Amendment No. 68, which sought to add further subsections to Clause 9. I went away at that stage and said that I would think further about how I might recast those. Frankly, our problem has been the same as the Government's on the last amendment; we see an answer, but we cannot find it. It is hidden somewhere in the undergrowth.

In Amendment No. 21, in order to keep the subject alive, I have sought to leave out subsection (2) as a sort of probing amendment and nothing more at this stage. There is no intention on my part to have subsection (2) swept away from the Bill. Under that heading it really poses a series of questions which I should like to put to the Government for their consideration. I would not expect an immediate answer to them at this stage. The first is why, in the Government's view, should the register be available to the public? What sorts of limits, if any, will there be to the registrar's powers to make copies available to the public? Would the registrar be able, if paid the requisite fees, to make the whole register available to anyone requesting it? That problem arose in Committee and, hopefully, we shall ultimately get the answer to it. Those are the sort of basic questions with which this probing part deals.

Amendment No. 18 is somewhat different in that it seeks to give an answer. It stems from the fact that my noble friend Lord Elton gave assurances on 17th February last, at column 375, in replying to my Amendment No. 68 in Committee, when he said that under Clause 4 data users would not have to make detailed entries in respect of the matters specified in Clause 4(3) and that general descriptions of the matters mentioned would be sufficient. In saying that, it would appear that my noble friend was relying on Clause 7(3), which requires the registrar to, accept particulars expressed in such terms in any case in which he is satisfied that more specific particulars would be likely to prejudice the purpose or purposes for which the data are to be held". That is welcome so far as it goes, but I do not think it goes far enough. It appears to be directed at protecting matters such as trade secrets, but the point is that in many cases it may be quite impracticable for the data user to specify in advance, for example, all the possible sources from which he or she may wish to obtain data or all the persons to whom they may need to disclose them. It is with that problem in mind that I have proposed amendment No. 18, which I beg to move.

Lord Elton

My Lords, I am afraid my noble friend has not resolved the doubts I expressed in Committee. As the Bill stands, the registrar is able to accept particulars in general terms whenever that is appropriate. If my noble friend looks at the earlier part of Clause 7(3) he will see that that is the interpretation: Subsection (2)(a) above shall not be construed as precluding the acceptance by the Registrar of particulars expressed in general terms in cases where that is appropriate", and it goes on to give the circumstances under which he, shall accept particulars expressed in such terms", more precisely; but the power is there.

We have deliberately sought to avoid burdening users with an unreasonable requirement for more details than are necessary, and in particular we have recognised that where a user's purpose might be prejudiced by the registration of specific particulars then, as I say, the registrar shall be obliged not to insist on them. It seems to us that the ability of the registrar to accept general particulars where appropriate, and the obligation on him to do so in the specific circumstances, are a well-balanced and adequate combination of safeguards for the data user, without placing the registrar in an impossible situation in deciding what the law demands from him. The Bill also provides that the user can go to the tribunal in the most unlikely event that he ever is refused registration because he cannot supply sufficiently specific particulars.

If the amendment were accepted, the registrar would find himself faced with a requirement that could make life very difficult for him. When would it be "reasonably impracticable" for a user to supply more specific particulars? The user could do so. After all, the particulars refer to the user's own operations and the data he himself holds. His capacity to supply more specific particulars would not be in doubt. So it would presumably depend on how burdensome it would be so to do. But is that either a right or a sensible test to apply in these circumstances? In practice, I doubt very much whether the registrar would come to any different decisions than he would if he exercised the powers presently afforded him in the Bill. But it would encourage much greater argument, and possibly litigation, which would not, unfortunately, be resolved by the test of "reasonable practicability" which the amendment offers, for that is a test of such subjectivity as to be of little meaning in this context.

I turn to the next stage. My noble friend having addressed himself to the particulars to be included on the register, then, on the Marshalled List, turns to the use which might be made of that information by members of the public consulting the registrar. The right of public access to the registrar is contained in Clause 9, which deals with the availability of the contents of the register to members of the public. It obviously must be available for public inspection. Its existence as a public document—if one can talk in those terms of a computerised record—will itself go some way towards increasing public knowledge and confidence in this area. In addition, the register will often be the starting point for data subjects wishing to exercise their rights under the Bill.

Clause 9(1) therefore obliges the register to make the information contained in the register available for inspection free of charge, and the registrar will arrange for that as he thinks fit. But however comprehensive the arrangements he makes, there will be some people who cannot physically inspect the register, and there will be other people who need copies of a particular entry or entries in the register, possibly for use in proceedings under Part III of the Bill. Clause 9(2) provides the essential back-up whereby the registrar is obliged to provide certified copies of registered entries. The amendment would delete that obligation to provide copies.

The worry was expressed in Committee that there might be an abuse of information about registered persons contained in the register, and we considered an amendment designed to make it an offence to use information obtained from the register for an improper purpose. I do not think I caught that note repeated in my noble friend's remarks today and therefore I shall not reply to it again.

It seems to me that the Bill makes adequate provision to ensure that public registration does not entail the disclosure of sensitive details about the operations of data users. My noble friend has suggested that the deletion of Clause 9(2), or something like it, might further safeguard data users. First, I see no need for users to fear anything from others seeing their particulars as they appear on the register. Secondly, even if there were something to fear, which I do not for a moment accept, abuse of the information would be just as possible by means of inspection of the register under Clause 9(1).

I hope I have explained why the register needs to be available to the public if it is to act as part of the safeguard of privacy, and the need for copies of parts thereof. As to the number of entries that should be copied at any one time, I shall need to take advantage of the notice my noble friend gave me and let him know that later, but I think the principles are clear.

Lord Avebury

My Lords, can the Minister give any indication of the circumstances in which he thinks the registrar is likely to be satisfied that more specific particulars would be likely to prejudice the purpose or purposes for which the data are to be held? Does he think that is likely to be confined to systems which are exempted from the subject access provisions under Clause 28(1), which talks about matters such as the apprehension or prosecution of offenders, where, clearly, the arrangement of the files might give criminals or potential criminals some clue as to police methods, which the police would want to withhold from public inspection when somebody asked the registrar for a copy of the entry? If the noble Lord can give some examples of the kinds of file which are covered by Clause 28(1), which would be likely to satisfy the registrar, I should be grateful.

Secondly, I wonder whether the noble Lord thinks that systems that are not exempt under Part IV of the Bill would ever be likely to satisfy the registrar that specific particulars would prejudice the purposes. When I looked at the clause I could not think of an example in the insurance field, in banking, or in building societies. There are many cases of personal data which are held by commerce or industry. I could not think of a single instance where a data user would have reasonable grounds for expressing his particulars in general form, or where he was likely to satisfy the registrar that he ought to be enabled to do so.

Lord Elton

My Lords, in answer to the noble Lord's first question, as to what kind of occasion there might be for requesting registration in terms more general than those required, I would say that the first example that comes to mind is that of a commercial organisation wishing to avoid a very detailed description in a case where that would reveal to its competitors information about its activities which it might be damaging to divulge. It is very difficult to speak in precise terms, but I think that it is easy to conceive that where an organisation was drawing information of a particular kind from particular sources, and putting it together in a particular way, that might reveal to competitors in the same field something which would unfairly be to the advantage of the competitors so far as the commercial organisation was concerned.

The second consideration is that police investigations of a particular offence or kind of offence might be prejudiced if the registered details referred in very specific terms to the sources from which data were being obtained for the purpose in question. I am not absolutely certain that I caught the beginning of the second leg of the noble Lord's question. I wonder whether he would be kind enough to direct me to it again.

Lord Avebury

The noble Lord has taken the matter the other way round, because first I was asking whether systems that are exempted under Clause 28(1) were the only kinds of systems that might satisfy the registrar. The noble Lord has in effect answered that question by saying that there could be commercial considerations of the type that he has outlined which would justify expressing the particulars in a more general form, as well as by mentioning the example relating to the police that he has just given.

Lord Mottistone

My Lords, I am most grateful to my noble friend for his reply. I am greatly heartened by his reply to the noble Lord, Lord Avebury, which shows that he has got the point of what we are trying to tackle. As I understand it, the Bill is all about safeguarding data subjects and making information available to them, but as a by-product commercial rivals could get at it, too. I am not altogether happy that we have solved this problem. I quite understand the answers that my noble friend has given, and I shall have to read them with great care. At this stage I should certainly not wish to press either of the amendments, and I beg leave to withdraw Amendment No. 18.

Amendment, by leave, withdrawn.

Clause 8 [Duration and renewal of registration]:

6.3 p.m.

Lord Elton moved Amendment No. 19: Page 7, line 33, after ("period") insert ("(not being less than three years)").

The noble Lord said: My Lords, I rise under something approaching false pretences, because this is not properly the Government's amendment at all; it is the amendment of my noble friend Lord Mottistone. When in Committee he moved almost identical amendments—and with your Lordships' permission I now speak to Amendment No. 20, as well as No. 19—I wanted a little time to consider the full implications of committing ourselves to a minimum three-year registration period. But we have satisfied ourselves that no unacceptable problems would result. I was impressed by the case which my noble friend made in Committee in support of the amendments. I can see that it would be helpful to set out on the face of the Bill a minimum period for which long-term data users can be sure that they can register without the need for renewal. We are, therefore, happy to return to the House with them. I am very grateful to my noble friend. I only regret that I did not arrange things so that the present amendments could stand in his name on the Marshalled List. I beg to move.

Lord Mottistone

My Lords, I am indeed grateful to my noble friend for retabling these amendments, which are identical to those we had previously. I thank my noble friend for his kind remarks about my argument for them at the earlier stage.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 20: Page 7, line 37, leave out from beginning to ("the") in line 38.

On Question, amendment agreed to.

Clause 9 [Inspection etc. of registered particulars]:

[Amendment No. 21 not moved.]

Clause 10 [Enforcement notices]:

Lord Mottistone moved Amendment No. 22: Page 8, line 24, at end insert ("or a person holding data to which section 31(4) below applies").

The noble Lord said: My Lords, Amendment No. 22 is a paving amendment to Amendment No. 82. Both amendments are tabled in the name of the noble Lord, Lord Wigoder, and in my name, and with the permission of the House I shall speak to both amendments. They stem from a series of amendments, of which my initial one was No. 52 at the Committee stage and that of the noble Lord, Lord Wigoder, was Amendment No. 155. At that time we told your Lordships that we would try to solve the problem here, and (in the words of my noble friend Lord Elton) to hunt the unicorn and find it.

I wish to advance my views for putting forward, in particular, Amendment No. 82, and I shall leave it to the noble Lord, Lord Wigoder, to make his own case in due course. The amendment affects a more limited exemption than did my original Amendment No. 52, because the Government made it clear that they did not want to accept that amendment. It is important to note that the exemption is from only the registration requirements; all other safeguards afforded by the Bill would continue to apply. If exemption for such routine data as are contained in payroll files, invoices, sales ledgers, et cetera, could be secured, that would represent a considerable administrative saving for both industry and the registrar and his small staff. Such data present no threat to data subjects, and in any case our amendment exempts data from only the registration requirements and not from the remaining provisions of the Bill, such as those dealing with subject access.

I am not sure whether the Government are prepared to agree that there are considerable administrative difficulties which will face the registrar if all the users covered by the Bill are to be registered. It can legitimately be asked: how many applications for registration do the Government realistically expect the registrar to receive, and, in particular, in the light of European experience how can they be confident that the system will work? I should like to quote the experience of the Norwegians. I quoted the Norwegians in Committee, but they were not quoted by my noble friend in reply. The Norwegians, for example, have had to modify their legislation since it was first introduced. Originally there were three tiers: a minimal registration for common systems; complete registration for other systems; and licensing for systems with sensitive data. This scheme has been modified so that the second tier has in effect been removed and the definition of common systems expanded. Too many systems fell into the category of uncommon systems, thereby requiring full registration and demanding too much in the way of staff resources from the Norwegian authority.

I also previously mentioned the experience of the Swedes. They were mentioned by my noble friends, but it was not explained why they were worth mentioning and why, therefore, their experience was an argument for not agreeing to the earlier amendment. The Swedish Data Inspection Board quickly introduced a system of short licensing, not foreseen in the original legislation, under which 70 per cent. of all applications were in effect registered with the minimum of detail, due to pressure on the licensing system. Yet under our Bill the registrar is supposed to scrutinise applications and to satisfy himself about compliance with the data protection principles in respect of an undisclosed number of users.

I now wish to move on to the experience of the French—and they, too, were mentioned by my noble friends, but the reason for doing so was not explained. The French have found that only about 28,000 of the estimated 200,000 existing files have been declared by the private sector. Incidentally, France has pre- authorisation licensing for central and local government applications, but registration only for private sector applications. This is in spite of the simplified declarations now made available.

My noble friend Lord Glenarthur, at col. 1406 of Hansard for 10th February, said in Committee: …it is vital for the reassurance of public concern that there are not significant areas that are not registered and so brought directly and immediately within the ambit of the full complement of the registrar's supervisory powers. We believe that data subjects will want to be confident that the register is comprehensive and will not give a false impression of the scope of the processing of personal data by omitting significant numbers of users". These are splendid aims so far as they go. However, if the French experience is any guide, the register is likely to be very far from comprehensive in any case and the registrar and his staff will be so busy that they will not be in a position to carry out the scrutiny implied by the registration procedure. Acceptance by the Government of exemption from registration for routine data, such as my amendment involves, would go some way towards alleviating the situation. I trust that we may have found the unicorn. I beg to move.

Lord Wigoder

My Lords, the noble Lord, Lord Mottistone, is getting on so well with the noble Lord, Lord Elton, at the moment that I have the feeling that it can do nothing but harm to intervene from this side of the House in his support. I do so on these two amendments because they seem to me to be the most important ones that we are considering in relation to the particular topic of business efficiency. I accept that business efficiency is by no means the only objective to be secured by this Bill. I accept that the rights of data subjects at all times have to be borne in mind when we are considering to what extent we can assist business to carry out its work with that degree of efficiency which is obviously in the national interest.

I know from what has been said on previous stages in the Bill on Second Reading and in Committee that the noble Lord the Minister shares the objective. I know that he recognises that there is a very real risk that a large number of registrations will have to be entered in accordance with the Bill at the moment that might impose a very great burden on industry and might also impose a very great burden on the registrar. The real issue is how we can pick out those where we can exclude them from parts of the operation of this Bill and, at the same time, safeguard all the appropriate rights of data subjects.

What these amendments endeavour to do is to help industry, and particularly small businesses, which will inevitably find, as the Bill now stands, that they have a very large volume of routine files such as pay rolls, invoicing, sales accounting, and documents of that sort, the existence of which is perfectly well known to all the people about whom information is contained thereon. All data subjects know perfectly well all about it and the documents in themselves are of absolutely minimal sensitivity.

The Bill is confined—and we have been over this ground many times—to automatic data processing. So long as this situation exists, I am deeply anxious that many small firms are going to find themselves with a choice of two very undesirable alternatives. One undesirable alternative is to accept the necessity of filling in forms and going through all the (may I say?) bureaucratic mumbo-jumbo which is going to be quite inseparable from making entries on the register under the Bill. That is one alternative. The other is that small firms in particular are going to say that rather than do all that, they will not computerise these activities and will keep them only on manual records instead. That is not conducive to their efficiency.

I am sure that the noble Lord, Lord Elton, will agree that, if it is possible, we must find a way of removing that sector of activity from the need to be entered on the register, provided that we can do so and safeguard the rights of data subjects. The previous amendment, Amendment No. 155, moved at the last Committee stage, tried to do that by removing altogether such data from the operation of the Bill. That, of reflection, I think went very much too far and the noble Lord pointed it out forcefully in Committee.

The effect of Amendments Nos. 22 and 82 is that it will only exempt a limited type of data and will only exempt the holders from the need to register such data. Data subjects know of the existence of these computerised data. In any event, they will be perfectly free (under the operation of these amendments), knowing of that existence, to have their rights of access and their rights of correction of data under part III of the Bill. Those rights will be quite unabridged. The registrar will be empowered to make enforcement notices under Clause 10 of the Bill even in relation to all this class of data—and that is important because it means that the data user, even though he will not have to register these particular classes of data, will nevertheless have to ensure that he is complying with all the data principles in order to avoid the possibility of enforcement action being taken by the registrar. Therefore, I venture to think that the way that this amendment is now drafted gets round the proper and understandable objections which were raised by the Government on the last stage of the Bill.

The only difference now between when data will be exempt and when it will not be exempt, in practical terms, is that the registrar will be relying (if he wishes to make an enforcement notice) on complaints by aggrieved data subjects, who know all about the existence of the files, anyway, rather than having to refer to the register entry because the register entry itself in these limited categories will not exist. It is clear from the way that the amendment is drafted that, in practice, it will exclude from the registration part of the Bill ony those transactions which involve the data user and the data subject and about which the data subject is fully aware. It extends that to cover only such transactions as PAYE, national insurance, VAT and so forth, and the use of the elementary reference lists such as telephone directories and electoral registers. It is clear from the way the amendment is drafted, that with any form of sensitive information there will remain a necessity for their being registered.

I hope the noble Lord, Lord Elton, will be able to say that this is a substantial improvement on the amendments that were brought forward at an earlier stage. I do not know whether the noble Lord, Lord Mottistone, is breathing fire and slaughter and is about to lead us into the Division Lobbies on this amendment. I have not discussed that issue with him but, if I may say so, I hope that that is not what is proposed. This is essentially an area where a great many people are agreed on the objective that has to be achieved and that we all have to keep on chipping away stage by stage in this Bill until eventually we can reach the situation in which those of us who are seeking to put this point forward can be at one with the Government on the best means of doing it. I suspect that the noble Lord, Lord Elton, knows in his heart that before the Bill gets on to the statute book there will be an amendment of this nature dealing with the problem. I hope that between now and Third Reading he, the noble Lord, Lord Mottistone, and I myself might perhaps find a mutually acceptable way of dealing with the situation.

Lord Avebury

My Lords, may I congratulate my noble friend and the noble Lord, Lord Mottistone, most warmly for the conception of the amendment and for the careful thought that they have obviously put into its drafting, which is so clearly in the interests of not just the small businesses, to which my noble friend has referred, but also the voluntary sector and many individual users of computers who otherwise might have to register under the provisions of the Bill.

I am thinking of one class of user that we spoke about in Committee in a different connection; that is the Citizens' Advice Bureaux. I have not taken instruction from them on this matter but what I say may be likely to represent their view. They are in the process of considering the application of new technology to the work of the CABs up and down the country. It may be a very large application indeed if it were to be properly encouraged and facilitated. Clearly the kind of information given by the data subject is given with full knowledge and he knows that information will be put on to the computer.

An example I might give is the splendid work done by the Citizens' Advice Bureaux in Cardiff which led to its receiving one of the British Computer Society's awards last year for assisting the client to calculate his social security benefits. Many people find it difficult to argue with the offices of the DHSS because the calculation of benefit is an immensely complex subject. If such people can go to Citizens' Advice Bureaux where the whole of the benefit system is held on the computer, after taking personal details of the client—such as marital status, his rent and so on—they can work out for him how much benefit he should be receiving. He will be given a computer print-out which he can take to the DHSS office, as people do, and he can then argue with the officials on far more equal terms.

It may be surprising to your Lordships, but enormous numbers of mistakes are made in the DHSS in its calculations and the CABs, with the aid of the computer, have been able to correct them on some occasions. This is the kind of application no one wants to inhibit, but if the information is to be held on the computer, clearly the CABs will have to register unless an amendment of the type the noble Lord, Lord Mottistone, and my noble friend have down is approved. This is likely to inhibit the application of computers not only in Citizens' Advice Bureaux but in many other voluntary advisory agencies, such as neighbourhood law centres and so on, throughout the country. Surely that is not what we want.

The second area of concern for me is the personal computer user. I am sure the noble Lord, Lord Elton, will be aware that we are among the foremost countries in the world in the use of personal computers because we have a lead in technology. We have the Sinclair machine and we have the BBC machine which are selling in very large numbers and are creating new export markets for this country that obviously the Government would like to encourage. Among the uses to which the personal computer may be put is holding records of personal data on, for example, clubs; the membership of clubs, their subscription records, names and addresses of members and so on. This is obviously done with the full knowledge of the data subjects and with their approval. But under the Bill, as I understand it, all these holders of personal data of a quite innocuous character will have to go through the machinery of registration and many of them—if they were thinking of embarking on computerisation of personal records of this innocuous kind—might say it was really not worth the trouble and abandon the effort.

I very much hope that the Minister, even if he is not able to accept the precise wording of the noble Lord, Lord Mottistone, and my noble friend Lord Wigoder, will at least give an undertaking to your Lordships that now, or before the Bill gets on to the statute book, he will do something to help not only the small businessman but also the voluntary sector and the personal user whom we so much want to encourage.

Lord Swinfen

My Lords, briefly I support the amendment brought by my noble friend and urge my noble friend Lord Elton to consider the amount of work the small businessman has to do already in dealing with VAT. This will remove a potential burden from him and will also help to keep down the costs of the small businessmen, therefore reducing their costs and leading to increased exports.

6.26 p.m.

Lord Elton

My Lords, my noble friend addressed much of his force to explaining why he wanted to get as many users as possible off the register altogether. That is an aim which is shared by the noble Lord, Lord Wigoder; and the noble Lord, Lord Avebury, made it more explicit, and my noble friend Lord Swinfen wished to add the small businessman in some respects to that number. This is an objective which all of us share and which all of us have great difficulty in achieving. That is why I likened it last time to the hunting of the unicorn. What we are looking for is that sort of data which, in the hands in question, is totally innocuous, something quite harmless. It is a characteristic of the unicorn that it can only be caught by that which is quite harmless. If we come across one we shall certainly make use of it. We shall not allow it to escape. If there are data that can safely be exempted and satisfactorily defined and whose exemption will be of real benefit to users, we shall give every consideration to that exemption. But when my noble friend Lord Mottistone comes, leading a beast by the halter to the loud applause of the noble Lord, Lord Wigoder, the encouragement of the noble Lord, Lord Avebury, and the satisfaction of my noble friend Lord Swinfen, I fear that my noble and learned friend the Lord Chancellor feels that maybe the captors cannot always be harmless since they are virgins and much evil can be wrought by virgins—but I shall not be deflected from my theme. My noble friend comes in with this beast trotting at his heels, and I fear what I see looks to me not like a unicorn but more like an elephant, because it is capable of carrying so many passengers.

If we look at the amendment, there seems to be doubt as to the intended result. It is not clear whether the references to tax collection, national insurance and statutory sick pay qualify data obtained only from a Government department or apply also to data obtained from the data subjects and published reference material. But although the drafting suggests otherwise I imagine that it is intended only to refer to data obtained from Government departments, because if that were not so the scope of the data defined would be so limited as to be scarcely of any value to the data user. I further suppose that the intention is to build up a description of data used for payroll purposes enabling them to be exempt. However, given the way that payroll data are used—and certain such data are regularly disclosed other than by statutory requirements and other data are received from sources other than those listed—I fear that the intention is not achieved. Indeed, I have serious doubts as to how much use the category of data defined in the amendment would be to data users. I suspect that very few would hold data of a kind and in a way that would fit all the requirements laid down.

I also have to question the approach of the noble Lords in providing for partial exemption in the way that they do. They leave the allegedly harmless data open to supervision. By doing so the noble Lords rather suggest that they are, after all, not entirely convinced that the data need not be regulated because it is so harmless. Quite apart from that, the approach of requiring unregistered data to comply with the principles does not really work, for half the principles are cast in terms of the purposes for which data are held. It is only with the process of registration that those purposes are specified. Without registration, or at least some other specification of purposes by users, the registrar can scarcely make sense of the principles, even if he knows where the data are located, which is in doubt because of the exemption from the requirement to register.

I do not wish to sound too defeatist: unicorns are not found in a day. Let us continue the search, but we must not hurry it, for that way lies risk to data subjects and little benefit either to data users or to the registrar. I fear we shall not find our quarry in this House, but many promising covers can be drawn in another place and until then I fear we must confess to drawing a blank.

Lord Mottistone

My Lords, I accept the points made by my noble friend about the inadequacy of the drafting. It is extremely difficult to do, but I am heartened by the fact that he, too, feels it is necessary to search for this. Perhaps I might suggest to him something which I am sure has been done—although it is not clear from what has been said most recently by my noble friend or at Committee stage—and that is that a real study of the problems of our European colleagues should be made. I am sure that has been done but it seems to me they came across the same problem after they had put their legislation into effect and had to change. If we can avoid that I am sure it will be helpful. I am sure also that the Germans need a rather more thorough study because they seem to have tackled it differently. I am sure that it is the case that they have already ratified the appropriate convention and will shortly be signing it. Therefore it cannot be beyond the bounds of possibility to find some solution along the lines that we have sought.

I take the point made by the noble Lord, Lord Wigoder. I, too, would not dream of pressing this amendment. Apart from any faults it may have, it would be much too premature to do so. I therefore beg 'eave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elton moved Amendment No. 23: Page 9, line 34, at end insert ("and the Registrar shall not serve such a notice unless he is satisfied that compliance with the principles in question cannot be adequately secured by the service of an enforcement notice")

The noble Lord said: My Lords, it may be for the convenience of your Lordships if I speak also to Amendment No. 24, which is consequential upon this Amendment, No. 23. These amendments seek to meet the concern expressed in Committee and outside your Lordships' House that the registrar might be tempted to use the more severe powers contained in Clause 11, without first having considered whether the enforcement notice powers would be sufficient to meet the situation in question. As I made clear in Committee, it is the Government's view that there is a clear distinction, in the Bill as drafted, between the circumstances for which Clauses 10 and 11 provide. I talked, I recall, of a rising crescendo of seriousness between the two provisions, and I indicated that it would be difficult to spell out in the Bill the distinction between the two powers without tying the hands of the registrar in one direction or the other. On many occasions it will be appropriate for the registrar to proceed by means of the enforcement notice power first before contemplating the more serious step; but there could conceivably be situations in which immediate resort to a deregistration notice was the only realistic way of responding to the problem.

I made no commitment at that stage as to the possibility of our being able to find ways of distinguishing between the two powers without at the same time undesirably restricting the registrar's freedom of action. But I am pleased to say that we have found a formula contained in the amendments now before your Lordships, and I hope they will be seen to provide the appropriate pointer to the registrar which I believe underlay the concern of those who argued for some kind of distinction to be made between the powers.

What the amendments do is to require the registrar, before serving a deregistration notice, to consider whether the desired objective cannot be adequately secured by an enforcement notice; and, in giving his reasons for deciding upon deregistration (in those cases where he eventually does so decide), to require him to state his reasons for that decision. Such reasons would then be open to challenge before the appeal tribunal. I frankly do not believe that these amendments will make a significant difference to the way in which the registrar exercises his powers because I remain of the opinion that he would have done so sensibly, even as the Bill was originally drafted. But I hope that by formalising the requirement to ask himself this question, we shall have made clear in the Bill, as we were asked to do, the processes through which we expect the registrar to pass. I hope that this will reassure your Lordships that the registrar will be unlikely to behave in any arbitrary fashion. I beg to move.

Lord Elwyn-Jones

My Lords, we on this side of the House see the value and force of these amendments. The need for flexibility which is provided and the freedom of action which it responsibly gives seem to us to be a valuable change in the Bill.

Lord Mottistone

My Lords, I should also like very much to support these amendments.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 24: Page 9, line 39, before ("; and") insert ("and for deciding that compliance cannot be adequately secured by the service of an enforcement notice").

On Question, amendment agreed to.

Lord Elystan-Morgan moved Amendment No. 25:

After Clause 11, insert the following new clause:

("Notification by Registrar

. If the Registrar is satisfied that a registered person has materially contravened or is materially contravening any of the data protection principles he shall forthwith notify his findings to any data subjects who may, in his opinion, have suffered damage by reason of such contravention.").

The noble Lord said: My Lords, an amendment in very similar terms to the amendment now on the Marshalled List was put down at Committee stage but was not moved. I apprehend the reason is that at the time it was thought to have been consequential upon Amendment No. 82. But on reflection it is clear that it would in no way have been governed by that condition. There are in fact situations where the registrar himself would have discovered that there was information which it would be vital for the data subject to be aware of but which in many cases is information which the data subject may never even have suspected was in existence. May I once again quote what seems to me to be a central truism which occurs in paragraph 19 of the Data Protection Committee report, where it says: The data subject will often have neither the resources nor the expertise to find out for himself whether users comply with the rules. Sometimes he will not even be aware that a breach harmful to him has occurred".

The purpose of this amendment is to make it incumbent upon the registrar to relay to the data subject any information that he will come across in any way at all. Very often it will not be in consequence of any complaint at all but something that the registrar will have discovered when he is considering the question of registration. Therefore we say that it would be oppressive if such information were not to be relayed to the data subject and that it is something which goes to the very heart, core and kernel of the Bill itself. I beg to move.

Lord Wigoder

My Lords, before the noble Lord sits down—if that is the appropriate way to put it—would he be kind enough to indicate whether the notification by the registrar in the terms of this new clause is to take place before or after the data user has had the opportunity of appealing to the tribunal?

Lord Elystan-Morgan

My Lords, I think it would be appropriate that that information should be conveyed to the data subject as soon as reasonably possible. I agree that it is a difficult matter; but since the person who is primarily to be protected by this legislation is the data subject rather than the data user, I should have thought that logically it should be relayed as soon as possible.

Lord Elton

My Lords, it is not difficult to sympathise with the intention of the noble Lord in moving this amendment: to give full publicity to significant conclusions by the registrar and to draw those conclusions to the attention of those most affected by the use of the data to which his conclusion relates. I understand his wish to ensure that a data subject should know when those holding data about him had been taken to task by the registrar. But I do not believe that it is necessary, in order to achieve this aim, to go further than the Bill already provides, and I fear that the approach advocated by this amendment could place a substantial burden upon the resources of the registrar. Clause 33 (even without the amendment to it which I shall be moving later) already requires the registrar to disseminate such information and advice as he thinks expedient about the matters for which he is responsible, and where he thought it necessary to give publicity to a particular conclusion, or action promoted thereby—in the interests of data subjects, or for any other reason—it would, therefore, be open to him so to do.

Little might, in some cases, be necessary. For example, I cannot believe that the service of an enforcement notice on a prominent data user, perhaps on a matter affecting large numbers of data subjects, would not attract substantial press interest. Still more is that likely to be the case if the registrar were to take the more severe step of serving a deregistration notice. But if, in an extreme case, the registrar believed that it was necessary to go further, and to communicate individually with the data subjects involved, then again it would be within his power so to do.

I believe that this is a much more satisfactory approach than the somewhat cumbersome procedure for which this amendment provides. By virtue of the amendment the registrar would be required, whenever he concluded that a material contravention of the principles had occurred, to consider whether any data subjects may have suffered damage as a result, and then to notify that conclusion to them. The task of identifying who those data subjects were who might have suffered such damage, and then of sending each one of them a statement of the conclusions which had been reached, could be a very substantial exercise. We could be talking of hundreds or thousands or even millions of letters being sent out, notifying data subjects of a fact that might have been widely reported in the press, anyway.

The noble Lord has suggested, however, that his objective would be satisfied by a newspaper advertisement; or, if he has not, I wrongly anticipated it. But the amendment goes further than that by placing a much more particular requirement on the registrar. And the ability to publish an advertisement is clearly present already in Clause 33(2) and would, I think, answer the circumstances which he has in mind.

The amendment proposes placing a quite unnecessary and rather formidable burden on the registrar, in an area where it would be far more satisfactory to depend upon his discretion to provide whatever publicity or notification he may deem to be appropriate. In view of what I have said about the powers for which the Bill already provides, and the undesirability of clogging the mails on some occasions with myriad communications, I hope that the noble Lord will not press his amendment.

Lord Elystan-Morgan

My Lords, as I understand it, I have a right of reply since I moved the amendment. I well appreciate the argument put forward by the noble Lord the Minister, and I also appreciate that there could well be difficulties if the registrar were to be expected to communicate with thousands, or perhaps hundreds of thousands, of people. However, I am sure that the Minister will readily concede the force in the argument put forward from these Benches, that there will be many cases where the only way in which the data subject can find that his name is included in a situation highly prejudicial to him will be through the medium of the registrar himself. If the registrar sets his face against communicating to individuals, then one of the main purposes of this legislation will have been totally frustrated.

With great respect to the Minister, Clause 33(2) does not cover the point. It states: The Registrar shall arrange for the dissemination in such form and manner as he considers appropriate of such information and advice as it may appear to him expedient", and then there follow the words: to give to the public". The very last thing that the data subject will want is that the public should be informed, for example, that his name appears in the book of shame, which was described in rather different terms by a noble Lord on an earlier amendment.

I wonder whether the Minister could come this far in assisting those who have doubts about this matter. Will he give an undertaking that, wherever there is information which the registrar would regard as being likely to damage the data subject, and where it would be unlikely that the data subject would himself be aware of it, he will be prepared to communicate? If the Minister goes that far, then it may well be reasonable not to press this amendment.

Lord Elton

My Lords, with the leave of the House, if the noble Lord is inviting me to put down an amendment to require the registrar to do certain things, that I could not undertake to do. If the noble Lord is asking whether the registrar will use the powers already in the Bill in a reasonable manner, then obviously that I can endorse. I cannot go into particular cases, because I cannot foresee particular circumstances. But the noble Lord will have seen Clause 33. He will have seen the amendment which I am putting in about advice, which he has, I think, himself elicited from me. It seems to me that within this, and given the fact that the central function of the registrar is to protect the data subject, he need not be unduly worried about the registrar then deliberately leaving data users who are subject to abuse in the dark as to what is happening. I do not think I can go further than that without advice.

Lord Elystan-Morgan

My Lords, with the leave of the House, in the light of that assurance, at this stage, most certainly, the matter will not be pressed to a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.47 p.m.

Lord Gardiner moved Amendment No. 26:

After Clause 11, insert the following new clause:

("Registrar to investigate complaints.

.—If any person shall complain to the Registrar that any registered person has materially contravened or is materially contravening any of the data protection principles the Registrar shall, unless he is satisfied that the complaint is trivial or manifestly ill-founded, investigate the complaint and notify both the person who has made it and the registered person of the outcome of his investigation.").

The noble and learned Lord said: My Lords, this is an amendment to provide for the investigation of complaints by the registrar. I think that this has always been regarded by all parties as an important function of the registrar. The Data Protection Committee made that clear, and the Government, in their White Paper, apparently accepted it and, indeed, gave as one of the principal functions of the registrar the pursuit of complaints.

When we discussed this at the Committee stage the noble Lord, Lord Elton, spoke of the, importance which we attach to the investigative function of the registrar". [Official Report, 17/2/83; col. 401.] The only objection then made to an all-embracing amendment on investigating every complaint was that the registrar would be swamped by this. After all, it was said, he is only one man. This has, of course, been the answer to some other problems raised about the Bill, and, if I may say so, it has always surprised me a little because, after all, the Government had the great advantage of a two-year examination of the whole subject by the Data Protection Committee—people with great experience in this field going into the whole matter in detail.

They obviously took the view that one man could not possibly do everything. They recommended that the Data Protection Authority should be made up of eight to 12 members of a board, with a chief executive. The Government said, "No, we are not going to have any of that nonsense. One man can do the whole thing perfectly well". Now we are told, time after time, that he cannot do it all and will be overloaded. The only objection raised to the amendment before was that he would be overloaded with trivial complaints.

The noble Lord, Lord Elton, said: This will place on the registrar the most onerous burden…the registrar would be unable to distinguish between the genuine complainant and those who were vexatious or unbalanced." [col. 402.] Then he said: …in order to see that every single complaint was pursued, no matter how factious or trivial," [col. 403.] and continued, however trivial, laughable or irrelevant". I thought that that was exaggerating the difficulties a good deal. But in consequence of what he said, we have now incorporated in this amendment the words, the Registrar shall, unless he is satisfied that the complaint is trivial or manifestly ill-founded, investigate the complaint". We have not included the word "laughable", but with those changes I hope that the Government may now feel able to accept Amendment No. 26. I beg to move.

Lord Elton

My Lords, in responding to this amendment I should like to say a word of appreciation for the close attention which the noble and learned Lord who moved the amendment clearly paid to the concern I expressed in Committee and for the efforts he has made to satisfy my earlier objections. In responding to the predecessor of this amendment I laid great stress on the danger of the registrar being placed at the mercy of every complainant with a grievance against data users. The noble and learned Lord has sought to meet my fears with the saving provision in this amendment in regard to complaints which the registrar considers trivial or manifestly ill-founded. The noble and learned Lord took the word "trivial" from my lips.

I wish I could therefore respond with equal generosity and say that I am now content with the form of the amendment being proposed, but I fear that, useful though this saving provision would undoubtedly be, it would still leave open the prospect of the registrar being open to challenge over the use he had or had not made of his powers. Your Lordships may think it excellent that he should be made accountable for inaction, but I would invite your Lordships to reflect on the implications. It would mean in regard to every single complaint which the registrar declined to investigate that he would have to consider whether a defence for not having investigated could be sustained under the heading of triviality or of being manifestly ill-founded. That could take as long as proceeding with the investigation itself.

There are other grounds, moreover, on which the registrar might quite legitimately conclude that no useful purpose would be served by a special investigation—if, say, he had already looked in general terms at the activity of the user in question and had served a notice upon him requiring compliance with the principles. The investigation of individual complaints is likely to be the most commonly used device for enabling the registrar to discover what is happening as well as for protecting the interests of individual data subjects, but that does not mean that he should follow up every such complaint, especially not in the detail necessary to produce the statement of the outcome of his conclusions which this amendment requires. On occasion it may be that the interests of data subjects would be better served by tackling the root cause of a particular grievance, of which the registrar may be fully aware from previous complaints, than going over the details of each individual case. Let us suppose that he has scores of complaints, all very similar, against the same user. To follow each of them up in detail would seem to me to be a waste of time and resources. We should beware of so directing him to the details that he has no time to take the broader view.

I genuinely wish that I could accept the amendment without running the risk that it might hamper the cause of data protection more than it would help. The powers which the Bill gives to the registrar make quite clear our expectation that he will go out and investigate. A registrar who sat in his office in the way postulated by the noble Lord, Lord Elystan-Morgan, in Committee and resolutely refused to look at any complaint put to him would very soon find parliamentary moves afoot to remove him in favour of a registrar who was prepared to do his job. But it is still a far cry from that kind of role, in which the registrar will be free to plan the use of his resources in the fashion most appropriate to the needs of the situation, and tying the registrar to a response to every individual complaint, except the trivial and ill-founded, which he may happen to receive.

I hope that the further expression which I have given to the Government's commitment to the principle of an actively investigative registrar will persuade the noble and learned Lord that he can quite safely withdraw his amendment.

Lord Avebury

My Lords, if a person complains to the registrar and the registrar declines to investigate, would that person have the right of access to the Parliamentary Commissioner for Administration?

Lord Elton

My Lords, I understand that he would not.

Lord Elwyn-Jones

My Lords, we have endeavoured to identify in the amendment a situation where a complaint to the registrar shall be investigated. The circumstance which we have postulated is that a registered person has materially contravened or is alleged to have materially contravened, or is materially contravening, any of the data protection principles. The investigation of complaints of that character is, I imagine it will be agreed, an important part of the function of the registrar. It seems to those who sit on this side of the House that that process of investigation is not really completed until the person who has made the complaint is informed, and the registered person is informed, of the outcome of the investigation. We believe that this is a very important part of the registrar's functions and that on this issue the opinion of the House should be sought.

6.56 p.m.

On Question, Whether the said amendment (No. 26) shall be agreed to?

Their Lordships divided: Contents, 52; Not-Contents, 63.

DIVISION NO. 2
CONTENTS
Airedale, L. Aylestone, L.
Ardwick, L. Beaumont of Whitley, L.
Avebury, L. Beswick, L.
Bishopston, L. Lloyd of Kilgerran, L.
Bledisloe, V. Molloy, L.
Briginshaw, L. Napier and Ettrick, L.
Caccia, L. Nicol, B.
Collison, L. Peart, L.
Craigavon, V. Perry of Walton, L.
David, B. [Teller.] Pitt of Hampstead, L.
Elwyn-Jones, L. Ponsonby of Shulbrede, L. [Teller.]
Elystan-Morgan, L.
Ewart-Biggs, B. Ross of Marnock, L.
Fisher of Rednal, B. Seear, B.
Gaitskell, B. Shackleton, L.
Gardiner, L. Shannon, E.
George-Brown, L. Stewart of Alvechurch, B.
Hampton, L. Stewart of Fulham, L.
Hatch of Lusby, L. Stone, L.
Hughes, L. Strabolgi, L.
Hylton-Foster, B. Tordoff, L.
Irving of Dartford, L. Underhill, L.
Jeger, B. Wallace of Coslany, L.
John-Mackie, L. Whaddon, L.
Kennet, L. White, B.
Kirkhill, L. Wigoder, L.
Llewelyn-Davies of Hastoe, B.
NOT-CONTENTS
Airey of Abingdon, B. Merrivale, L.
Auckland, L. Mersey, V.
Avon, E. Molson, L.
Beloff, L. Mottistone, L.
Belstead, L. Mowbray and Stourton, L.
Boardman, L. Murton of Lindisfarne, L.
Boyd-Carpenter, L. Newall, L.
Broadbridge, L. Norfolk, D.
Brougham and Vaux, L. Nugent of Guildford, L.
Campbell of Alloway, L. O'Hagan, L.
Cork and Orrery, E. Onslow, E.
Cottesloe, L. Orkney, E.
Denham, L. [Teller.] Plummer of St. Marylebone, L.
Drumalbyn, L.
Elton, L. Portland, D.
Ferrers, E. Renton, L.
Fraser of Kilmorack, L. St. Aldwyn, E.
Glanusk, L. St. John of Bletso, L.
Glenarthur, L. Salisbury, M.
Gray, L. Skelmersdale, L.
Hailsham of Saint Marylebone, L. Strathcona and Mount Royal, L.
Hives, L. Sudeley, L.
Home of the Hirsel, L. Swansea, L.
Hornsby-Smith, B. Swinfen L.
Lane-Fox, B. Swinton, E. [Teller.]
Lindsey and Abingdon, E. Taylor of Hadfield, L.
Long, V. Thomas of Swynnerton, L.
Lucas of Chilworth, L. Trefgarne, L.
Lyell, L. Trumpington, B.
Macleod of Borve, B. Vaux of Harrowden, L.
Marley, L. Wakefield of Kendal, L.
Massereene and Ferrard, V. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Glenarthur

My Lords, this may be an appropriate moment at which to break for dinner, and I beg to move that the House do now adjourn until 7.50 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.4 until 7.50 p.m.]

Schedule 3 [Appeal proceedings.]:

The Lord Chancellor moved Amendment No. 27:

Page 33, leave out lines 38 to 40 and insert— ("(b) of the members other than the presiding member half are persons appointed as having such knowledge or experience as is mentioned in section 3(5) of this Act and the other half include at least one person who is neither a deputy chairman nor a person appointed as aforesaid.")

The noble and learned Lord said: My Lords, it has fallen to me to move this amendment, which is in fulfilment of a commitment I gave to the Committee in response to an amendment moved by my noble friend Lord Mottistone. He raised a point in connection with the make-up of the appeal tribunal. As the House will remember, the Bill, as drafted, provides that the tribunal will consist of three classes of person: there are the lawyers who are appointed by the Lord Chancellor; there are the computer experts on data equipment; and there are the great and the good, whom we have agreed to call the common man, the lay members who form the third class. I had to admit, on my noble friend's amendments, that I had failed in the drafting of the Bill to make it certain that one of the third and last class would always form a part of the panel which actually sat. There is no doubt that it would be possible, at least theoretically, for the tribunal to consist entirely of members of one or both of the first two classes. So I agreed to propose an amendment and this is the result. I hope it will be agreeable to the House. I beg to move.

Lord Mottistone

My Lords, I am indeed grateful to my noble and learned friend for realising the undertakings that he gave at Committee stage, and this is indeed satisfactory.

Lord Elwyn-Jones

My Lords, I should like to associate myself—I am happy to do so for once—with the noble Lord, Lord Mottistone, in acknowledging the willingness and appreciating the willingness of the noble and learned Lord to meet us on this matter. It is a helpful amendment, and I entirely support it.

On Question, amendment agreed to.

Lord Elwyn-Jones moved Amendment No. 28: Page 34, line 17, leave out ("Secretary of State") and insert ("Lord Chancellor")

The noble and learned Lord said: My Lords, we covered this ground at an earlier stage, but it is important enough to traverse it again. It deals with what we regard as a very important question. We have the unique situation, as the Bill now stands, that the Minister, the Secretary of State who is most liable to be pursued in proceedings arising from data protection—namely, the Secretary of State for the Home Office—is not only to be the person who appoints the lay members of the tribunal, but it is also he who is to determine the procedures of the tribunal, which, among other things, might well have the responsibility of dealing with proceedings in which the Secretary of State himself is a party. Although there are abundant precedents for heads of departments of Secretaries of State drafting rules of procedure for tribunals functioning under the aegis of the department, I venture to think there can be no precedent for what is now proposed in the Bill.

The answer, in our respectful submission, is that the matter should be put outside the embrace of the person most likely to be in the firing line, namely the Secretary of State, and put in the detached hands of the Lord Chancellor, whoever he may be. We attach great importance to this. It will give the appearance of independence and impartiality and will have the reality of independence and impartiality. We greatly hope that the noble and learned Lord the Lord Chancellor will accept this.

When we discussed it before, the noble and learned Lord said that he did not particularly want to die in the ditch over it. I hasten to say we do not want the noble and learned Lord to die in any ditch, least of all do we want him to die in this particular ditch. Therefore, I greatly hope that, having had the opportunity during the leisure time that has elapsed that sometimes occurs in the life of a noble and learned Lord the Lord Chancellor, he may have had the opportunity to reflect, and has decided that it is really quite intolerable that the Minister most liable to be impugned should be the very man not only to appoint the bulk of the tribunal but also to devise its rules of procedure. I beg to move.

The Lord Chancellor

My Lords, in the absence of anybody else I suppose it now falls to me to respond to the noble and learned Lord. I have reflected on this. I think there is a genuine difference of opinion between us. I recognise the compliment to the successive holders of my office which is implied in the amendment; it is that we do, despite our party loyalties and party affiliations, attempt to discharge our duties without party considerations, and we do it over quite a wide range of responsibilities. I think that no holder of my office, for a very long time at any rate, has departed from that tradition. So I appreciate the compliment to the office which is being paid, and I hope that in what I do while I hold it—before I die in the ditch—I shall be worthy of the tradition.

I explained the difficulty which genuinely affects me in approaching this problem. I do not like to be a cloak for somebody else. I am a cloak for somebody else in a quite large range of subjects—and I see two of my predecessors here—and I frankly do not like it, and I do not suppose they did when they held my position. It means that you cannot be as candid as a totally impartial person ought to be. Of course, every Minister has his normal responsibilities for the expenditure of money, and the Lord Chancellor is no exception, in regard to which everybody knows—although nobody is allowed to admit—that there has been a lot of argument between him and the Treasury, whose function it is to preserve the public purse. I think that is acceptable in the main because everybody knows it happens, and it fixes the Minister with the responsibility of loyalty to his colleagues which he ought to accept, and a discipline to which he ought to subject himself. But I am not sure that this is at all in the same field.

There has, as I was driven to admit in Committee, been no consistent policy over the years about the constitutional problem involved in the making of rules on tribunals. Sometimes Parliament has veered in one direction and sometimes it has veered in another. I think that it would depend upon the date at which the rule-making power was conferred on the Minister to discover exactly what direction Parliament will have taken. But as I pointed out in my Committee speech, for about 15 years we have achieved consistency and we have achieved a rational distribution of responsibility. It has been more or less the position which is accepted by the drafter of the Bill.

Obviously where the Lord Chancellor is in truth responsible for the drafting of the rules he ought to assume responsibility for the drafting of the rules. I think that we would all agree about that. The problem arises where in practice—and this is such a case—the tribunal comes very largely under the aegis of an executive Minister other than the Lord Chancellor and his officials do in fact draft the rules with the very limited power of the Lord Chancellor to intervene at the stage of draftsmanship.

I am very anxious indeed for the preservation of the high standing in which my office has stood for many years now, and not to be a cloak for something which is a bit of a sham. The constitutional status quo over the last 15 years was good enough for the noble and learned Lord, Lord Elwyn-Jones, when he was Lord Chancellor and it was good enough for the noble and learned Lord, Lord Gardiner, at any rate during part of the time when he was Lord Chancellor; and it was good enough for me during my first term of office when I was Lord Chancellor. Now we are being asked to depart from it and I frankly do not like it very much.

The constitutional position does not deprive the Lord Chancellor of a certain responsibility in the matter. The Council on Tribunals exists and the executive Minister is statutorily bound to consult the Council on Tribunals. The Lord Chancellor within the Government machine is rightly considered to be the champion of the Council on Tribunals. The Franks Committee proposed a solution which was not adopted in the outcome. It was that rules of this kind should be formulated by the Council on Tribunals. That is not what has been done by either Conservative or Labour Administrations and it is not what is proposed in this amendment.

The Council on Tribunals has to be consulted and has to report annually to the Lord Chancellor and to the Secretary of State for Scotland, to whom I apologise for not referring before in this connection. The Secretary of State and I are then required to lay the annual report before Parliament with comments, if any, as we think fit. These are not mere formalities. Behind them lies the plain implication that the Secretary of State for Scotland and I will answer to Parliament for matters which are the subject of comment in the report of the Council on Tribunals.

Experience over the last 25 years, I am told—although I can speak for only part of it personally—appears to demonstrate that the Lord Chancellor can make his most effective contribution in this field if he is called in when there is a particular question to be resolved about the fairness of the proposed procedures of a tribunal. I think it is arguable, and it is certainly my view, that the existing checks and balances are appropriate to the procedure of the new tribunal created by this Bill. I should myself be sorry to see a status quo, although it is of comparatively recent origin—15 years in our history is a comparatively short period—disturbed by this particular amendment.

I understand the reasons which underlie it. Indeed, I very largely sympathise with them, but it is very important if we are going to retain the position of Lord Chancellor in the position in which I hope he still is that he should not become a cloak for the activities of other departments unless he has to. I would rather stand back from this myself and leave it to the Minister in the department who is in fact drafting the rules to take responsibility for what he is doing and to stand behind the Council on Tribunals if it finds that those rules do not match up to the requirements of justice and impartiality. I realise from the distinction of those now occupying the Opposition Front Bench that I may not be unanimously supported by my predecessors in this, but this is the best judgment that I can bring to bear on it.

Lord Gardiner

My Lords, there is a question here to which we simply cannot get an answer. We tried to do so in the Committee stage; we did not succeed then and we have not done so now. It is a question the answer to which the Government must know. It is a fairly simple question. It is this. Allowing for the fact that in this field there has been a great variety of practice as to whether the regulations for a tribunal should be made by the Lord Chancellor or by the Minister, is there anywhere in our history a case in which there has ever been a tribunal before which the Minister may be a party and yet it is to be the Minister who has everything to do with the tribunal? Is there any possible precedent for this?

Look at his powers. Who is to decide: rules for … the exercise of the rights of appeal conferred by…this Act"? Answer: it is to be one of the parties—the Minister. Without prejudice to the generality of sub-paragraph … above, rules … may in particular make provision— (a) with respect to the period within which an appeal can be brought and the burden of proof on an appeal.". This is a tribunal of which the Minister himself, for the first time in our history as far as I know, will be one of the parties. He will decide: the period within which an appeal can be brought …; for the summoning of witnesses and the administration of oaths; for securing the production of documents and data material". Who will decide in these proceedings before the tribunal what documents the Minister of State will have to produce? Answer: the Minister of State will decide what documents he is to produce. Who will decide what documents his opponent is to produce? The Minister of State will decide what documents his opponent will produce. The provision continues: for the hearing of an appeal wholly or partly in camera". It is one of the parties who is to decide that. Then: for hearing an appeal in the absence of the appellant or for determining an appeal without a hearing". It will be one of the parties who is to decide that—whether his opponent is to have any hearing at all or whether there is to be a decision in his absence. It continues: for enabling any matter preliminary or incidental to an appeal to be dealt with by the chairman or a deputy chairman; for the awarding of costs; for the publication of reports"— and so on.

The question that we have asked and to which we should still like an answer—I entirely accept the fact that we have never had any very logical system—is as to whether in the case of tribunals the rules should be made by the Lord Chancellor or by the Minister. Ordinarily it does not matter that much, but unless I am wrong this is the first time in our history when there has ever been a tribunal before which the Minister himself is one of the parties. He may very well be the man in the dock. It really is intolerable to any sense of justice that this should be allowed, particularly if it is something that has never happened before. Therefore, what I would ask the Government is what they must know: has there ever been any kind of tribunal—we have all kinds of tribunals—in which everything to do with the appeal and the rights of the parties is to be decided by one of the two parties?

8.10 p.m.

The Lord Chancellor

My Lords, I can only reply by leave of the House and I hope that I may have that leave. First, I do not agree that in the majority—or even in a small minority—of cases it will be the Minister who is one of the parties to the tribunal. I should have thought that there were thousands of data users and although the Minister will be a data user and therefore can in principle be classed as that, I should have thought that it was totally unrealistic to describe him as the man who will normally be "in the dock". He will not be "in the dock" and he will not be a party.

The noble and learned Lord, Lord Gardiner, asked me a question. I am a litle surprised that he should have done so because I was under the impression that I had answered it in Committee. If I am wrong I shall apologise to him in advance, because I am quite likely to be wrong about things. There have been so many of these tribunals in the past 15 years and previously. Let us take as an example the social security tribunals. I do not make the rules for those and yet I should have thought that the Minister was much more directly or more constantly a party to what is being done in them than in what is envisaged here. Let us take the even more sensitive Immigration Appeal Tribunal. The Minister—the same Minister in this case—makes the rules but I have the longstop responsibility (which I sought to describe) in conjunction with the Council on Tribunals, to see that the rules play fair. However, it is the Secretary of State who makes the rules of the Immigration Appeal Tribunal. I should have thought that there was a case where not merely was the Minister normally a party, but he was quite frequently—the noble Lord, Lord Avebury, is fixing me with a basilisk stare—"in the dock". I really think that the noble and learned Lord, Lord Gardiner, whose opinion on almost everything I deeply respect, has got hold of a bad point here. It is not a point for which there is no precedent. It is a point which I answered previously.

Lord Wigoder

My Lords, I wonder whether I may briefly intervene as one whose name is down in support of the amendment but who, I must confess, has some reservations about his position in that capacity. I am probably the only Member of your Lordships' House, certainly the only Member present at the moment, who is a member of the Council on Tribunals. The noble and learned Lord is of course quite right in saying that in that capacity we are consulted about the rules of procedure. Not only are we consulted, but almost invariably our recommendations are complied with. The rules having been formulated, we then invariably, as a council, send somebody as a representative to visit the tribunal on a regular basis to ensure that everything is operating fairly in the interests of the ordinary members of the public. If it is not, we report directly to the Secretary of State who is involved, and if that is unsatisfactory we then include a reference in our annual report, and the matter is of course then taken up from there.

I must confess that there is a little weight in the argument of the noble and learned Lord which he put forward in Committee, to the effect that he felt that his department was rather freer to intervene if there was a criticism by the council of a Secretary of State—where it was a departmental Secretary of State—rather than if the council had made a criticism of some rules that had been drafted by the noble and learned Lord the Lord Chancellor himself. I see the weight of that.

The problem that arises on this Bill is that perhaps the drafting of rules for tribunals is more of a judicial operation than an administrative operation. I can see that from that point of view there is something to be said for asking the noble and learned Lord the Lord Chancellor to do so, rather than the head of a department of state. In that situation one has a borderline decision to make on the amendment as to whether in fact the Secretary of State is in practice going to find himself very frequently a party to major disputes before the very tribunal whose rules he has himself prescribed. If that be so, and if the Secretary of State is to appear in one form or another before that tribunal, then I should think that the arguments were overwhelmingly in favour of asking the Lord Chancellor to make the rules of the tribunal so that it would appear to the members of the public to be equitable. In practice the rules would be identical probably in either eventuality.

I am not sure, having heard the argument and even though my name appears in support of the amendment, whether in fact the Secretary of State is going to be an active party to applications before this tribunal to such an extent as to make it necessary that it should be the Lord Chanmcellor who drafts the rules. If I may say so, even though I have supported this amendment in the past, it might be that there is something to be said for letting the Secretary of State make the rules and for letting the disputes about them be ruled upon in the first place by the Council on Tribunals and then adjudicated thereon by the Lord Chancellor. It is a very borderline decision and by no means a black and white one.

Lord Elwyn-Jones

My Lords, these constitutional issues are—to coin an unattractive phrase in contemporary conditions—not a black and white issue. But what are we considering? We are considering a provision in Schedule 3 where it says: The Secretary of State may make rules for regulating the exercise of the rights of appeal conferred by section 13 of this Act and the practice and procedure of the Tribunal". Those are essentially and entirely judicial matters going to the heart of the procedure of the Bill, the purpose of which is to protect the data subjects.

There is no doubt that the Secretary of State for the Home Office—and it is no use avoiding a direct reference to the fact—is likely to be, in at any rate a number of cases, himself a respondent and in many of the Home Office cases the respondent is so named and so described. Therefore, the situation is not comparable, if I may say so with great respect, to the rights of appeal of, for example, supplementary benefit appeal tribunals. In such cases the Secretary of State for Health and Social Security is rarely involved as a party directly, at any rate, in appeals, but I am liable to correction as regards that. At any rate that is a different sphere from what we are speaking of in this debate: the protection of the privacy of the individual. It is a very intimate and very important matter as has been made clear throughout our debates.

While of course my noble and learned friend Lord Gardiner and I appreciate the value of the Council on Tribunals, it operates in individual cases when the horse has left the stable. They have the task of examining the proceedings afterwards and, if possible, of avoiding a repetition of any error that there may have been before by improving the procedures.

Therefore, with great respect, valuable as the Council on Tribunals is, it does not meet the point with which we are concerned in this case. Our jurisprudence, our arrangements, are not so hidebound that Parliament cannot intervene in them in the interests of the subject, in the interests of what we deem, on this side of the House on this issue, to be in the interests of justice itself, so that justice, to coin that much-worn phrase, is not only done but seen to be done. Although I respect the anxious feelings the other way on the part of the noble and learned Lord the Lord Chancellor, I venture to think that this particular case, in which the circumstances are so unique, is a classic case where, in the interests of justice, that which is sought for should come to pass, and that we shall not be at the risk of the person accused being the person who is to arrange the composition of the appellate body and the regulation of the rights of appeal.

The Lord Chancellor

My Lords, I ought to put the Question, but I have just received a short missive which perhaps I ought to communicate to the House.

Lord Elwyn-Jones

My Lords, certainly I have no objection.

The Lord Chancellor

My Lords, I have been told that in every supplementary benefit appeal an officer of the Department of Health and Social Security responds for that department.

Lord Elwyn-Jones

My Lords, with respect, that was the point which I was endeavouring to make; that is, that there is communication between the officer of the department and the Secretary of State. However, if I may say so, the issue is now fairly clear.

8.22 p.m.

On Question, Whether the said amendment (No. 28) shall be agreed to?

Their Lordships divided: Contents, 26; Not-Contents, 47.

DIVISION NO. 3
CONTENTS
Bishopston, L. Llewelyn-Davies of Hastoe, B.
Briginshaw, L.
Collison, L. Molloy, L.
Craigavon, V. Nicol, B.
David, B. [Teller.] Perry of Walton, L.
Elwyn-Jones, L. Pitt of Hampstead, L.
Elystan-Morgan, L. Ponsonby of Shulbrede, L. [Teller.]
Gaitskell, B.
Gardiner, L. Ross of Marnock, L.
George-Brown, L. Stewart of Alvechurch, B.
Hatch of Lusby, L. Stewart of Fulham, L.
Jeger, B. Stone, L.
John-Mackie, L. Strabolgi, L.
Kinnoull, E. Underhill, L.
NOT-CONTENTS
Airey of Abingdon, B. Keith of Catleacre, L.
Ampthill, L. Lane-Fox, B.
Avon, E. Lawrence, L.
Bellwin, L. Long, V.
Beloff, L. Lucas of Chilworth, L.
Belstead, L. Lyell, L.
Boardman, L. Massereene and Ferrard, V.
Boyd-Carpenter, L. Molson, L.
Caccia, L. Mottistone, L.
Campbell of Alloway, L. Murton of Lindisfarne, L.
Colwyn, L. Onslow, E.
Cork and Orrery, E. Orkney, E.
Davidson, V. Portland, D.
Denham, L. [Teller.] Renton, L.
Drumalbyn, L. St. Aldwyn, E.
Elton, L. Shannon, E.
Ferrers, E. Skelmersdale, L.
Glanusk, L. Swinfen, L.
Glenarthur, L. Swinton, E. [Teller.]
Gray, L. Taylor of Hadfield, L.
Hailsham of Saint Marylebone, L. Thomas of Swynnerton, L.
Trumpington, B.
Hives, L. Vaux of Harrowden, L.
Hornsby-Smith, B. Wakefield of Kendal, L.

Resolved in the negative, and amendment disagreed to accordingly.

8.29 p.m.

The Lord Chancellor moved Amendment No. 29: Page 34, line 27, leave out from ("testing") to end of line 28 and insert ("of data equipment and the testing of data material;").

The noble and learned Lord said: My Lords, this is a Government amendment, and it is inspired by points which were made usefully in Committee by the noble Lord, Lord Wigoder, by the noble Viscount, Lord Craigavon, from the Cross-Benches, and by my noble friend Lord Swinfen. It was suggested then that data material as well as data equipment should be referred to in paragraph 4(2)(d) of Schedule 3 as being capable of being inspected, examined, operated and tested. In fact, one cannot sensibly speak of operating data material. Since it can be produced under paragraph 4(2)(c) it can already be inspected and examined, but we accept that some testing may be necessary on occasions which might not be covered by the Bill as drafted, and the amendment takes care of this particular possibility.

It also takes care of another small point raised on Committee by my noble friend Lord Swinfen. He pointed out that the provision as drafted might suggest that only tribunal members themselves, and not their staff or agents, could do the testing, and so on. To avoid any doubt we have removed the reference to tribunal members. Any necessary detailed provision can be made in the rules. I am indebted to the noble Lords and the noble Viscount for enabling us to make these, I suppose I should call them, minor improvements in the Bill. I beg to move.

Lord Wigoder

My Lords, I am grateful to the noble and learned Lord for the consideration that was given to what was said in Committee, and speaking personally I find this amendment entirely acceptable.

Viscount Craigavon

My Lords, as one of the parties to the amendment at the previous stage, may I thank the noble and learned Lord for his acceptance of the amendment.

Lord Swinfen

My Lords, may I thank my noble and learned friend for his kind remarks.

On Question, amendment agreed to.

Clause 16 [Power of entry etc.]:

Lord Glenarthur moved Amendment No. 30: Page 13, line 29, leave out ("justice of the peace") and insert ("circuit judge").

The noble Lord said: My Lords, I am happy to move this amendment and to be able to speak to 11 amendments together. They are Amendments Nos. 32, 33, 34, 36, 39, 40, 41, 42, 43 and 44. In Committee there was a strong feeling that the issuing of warrants under Clause 16 of the Bill required the most careful consideration. The view was, I think, that here was a very special case. First, the registrar would not necessarily be presenting to the warrant-issuing authority suspicions of a criminal offence; quite possibly he would be seeking evidence of a breach of the data protection principles. That in itself increases the burden of responsibility on the person issuing the warrant. Secondly, and as a consequence of the first point, the questions to be resolved before a warrant is issued may not only be complex and subtle, they will probably be unfamilar and novel. Again, the burden is increased. Moreover, the occasions on which warrants may be sought will hopefully be very few and far between.

In these circumstances it has been argued that to go to magistrates for a warrant is not only insufficient but also places an undue burden on magistrates who would, in all probability, not face an application from one year to the next and then suddenly be expected to deal responsibly with an application in what would be, for them, an unprecedented and possibly uniquely obscure area. My noble friend Lord Mottistone moved amendments in Committee to require the registrar to go for a warrant to a circuit judge rather than a magistrate. He received eloquent support from the noble Lord, Lord Mishcon; and there was a telling contribution, I remember, from the noble Lord, Lord Wigoder. Finally, my noble friend Lord Swinfen lent his support. We could scarcely resist such an alliance—particularly since we have to concede the force of the argument.

Warrants under Clause 16 are very much a special case. The complexity of the subject, the possible need to consider the data protection principles, the very few occasions when they will be sought—all these considerations combine to persuade us that we should in these unique circumstances depart from the normal, well-tried procedure of going to a magistrate, and place the responsibility in the hands of a circuit judge. What I have said about the exceptional nature of the circumstances will, I hope, make it abundantly clear that the provision we now propose—that of recourse to a circuit judge—is equally exceptional, and your Lordships should not think that we are in any way establishing a precedent for the treatment of applications for warrants under the circumstances.

We are indebted to those of your Lordships who argued so persuasively on this point earlier, and I hope that these amendments will be seen for what they are; that is, a significant increase in the safeguards built into Clause 16. I beg to move Amendment No. 30.

Lord Elwyn-Jones

My Lords, I hope that the noble Lord, Lord Mottistone, does not mind my speaking first, because he had a bigger hand in this than I had. We deal here with issues of law of high complexity and importance. The fact that all who are concerned in the debate have formed the view that it should be a matter more appropriate for a circuit judge than for justices of the peace in no way reflects any lack of confidence in the magisterial benches, in whom I and, I know, the noble and learned Lord have the greatest confidence. But in the exceptional circumstances that we are discussing and which the noble Lord has mentioned, I think that this is the right answer.

Lord Mottistone

My Lords, I should like to thank my noble friend Lord Glenarthur, and also my noble and learned friend on the Woolsack, for taking the point of the amendments I put down earlier.

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 31: Page 13, line 35, at end insert ("in such a way as to cause damage or distress to any data subject").

The noble Lord said: My Lords, this succeeds amendments which I had down in Committee which went a bit too far and took out the whole of Clause 16(1)(b). I took the argument then advanced by my noble friend, and have modified the amendment. In this way, we seek not only to try to make sure that there is no power of entry normally available for a contravention consisting merely of a failure to keep some trivial item of information up to date, but also to bring this clause into line with Clause 10(2), under which, in deciding whether to serve an enforcement order, the registrar must consider whether the contravention has caused or is likely to cause damage or distress to any person. I trust that the modification of my amendments, which reflects the views expressed by my noble friends on the Front Bench, will mean that this amendment is acceptable to them. I beg to move.

Lord Elystan-Morgan

My Lords, we on these Benches consider that this is an amendment which would, to a large extent, undermine one of the main purposes of the Bill itself. The situation under Clause 16 as it now stands is that the power of entry can be exercised if information on oath is supplied by the registrar that there are reasonable grounds for suspecting—

  1. "(a) that an offence under this Part of this Act has been or is being committed; or
  2. (b) that any of the data protection principles have been or are being contravened by a registered person".
We object to this amendment, first, because it would mean narrowing considerably the grounds upon which effective enforcement could take place, because more often than not effective enforcement will have to be preceded by the exercise of a power of entry. We object, in the second place, because the question of whether or not a person has been harmed, or is likely to be harmed or injured, by such data will often involve a value judgment; whereas the question whether or not any of the data protection principles have been or are being contravened by a registered person is a much simpler issue of fact. The eight principles set out in Schedule 1 make no reference to any person being harmed or injured. Therefore, on the issue of principle and the issue of practicality, we invite the House to reject the amendment.

Lord Wigoder

My Lords, I am sorry to disagree openly, I think for the first time during the passage of the Bill, with the noble Lord, Lord Elystan-Morgan, because I think the noble Lord, Lord Mottistone, is on to something here. After all, if one looks at the powers of entry one sees that they are very extensive, and I believe they should in principle always be limited so far as possible. The results of the entry and seizure of data or computerised material could be quite catastrophic to the person carrying on business, and, again, it should be limited to those occasions when it can be justified beyond any question.

All that Lord Mottistone is asking for in the amendment, which I consider to be a very modest one indeed, is that the warrant should be granted only where there is information to the effect that there might be damage or distress to any data subject as a result of a breach of the data principles. To say that these powers of entry and all that follows therefrom should follow on the most technical of breaches seems to be quite wrong and an infringement of the liberty of the subject, which I am surprised to find the spokesman for the official Opposition apparently seeking to support.

Lord Elwyn-Jones

Now that we have amended the first part of Clause 16, my Lords, to make it the function of a judge to be, satisfied by information on oath supplied by the Registrar that there are reasonable grounds for suspecting … that an offence under this Part of this Act has been or is being committed; or … that any of the data protection principles have been or are being contravened"— I suggest that those should be sufficient and conclusive grounds without further addition.

Lord Swinfen

My Lords, I support the amendment, despite the fact that a justice of the peace has been replaced by a judge, because, as the noble Lord, Lord Wigoder, said, it may have been only a technical infringement of the law which has done no damage to anyone in terms of the data protection principles. We should make certain, as the amendment says, that damage or distress is being caused, and is genuinely being caused, to a data subject, before entry is forced into someone's premises, something which could have a very serious effect on the business, causing considerable damage for many years following.

Lord Avebury

My Lords, I should have thought that the use of the word "may" in this provision is of crucial importance because the circuit judge, as we now have in the clause, does not have to allow a warrant to be issued if one of the data protection principles has been breached in a purely technical manner. He will look at all the circumstances, and if the registrar was foolish enough to bring a trivial case before a circuit judge, it would be thrown out. So I think there is sufficient safeguard against completely trivial cases being brought before the court. While I entirely accept the reasoning of the noble Lord, Lord Mottistone, behind the amendment, I think the point has already been taken care of by the amendment we have made.

Lord Glenarthur

My Lords, as my noble friend indicated, the amendment is based on the worthy desire to ensure that the registrar's entry powers are subject to the strictest possible control and are not used except where absolutely necessary. His concern, among other things, appears to be that the registrar might seek an entry warrant in a case where he suspected a purely technical breach of one of the principles in circumstances likely to lead to no conceivable harm to anyone. That appears a very reasonable point of view at first sight, but I am sorry to have to say that, on closer examination, the Government cannot go along with this proposal, and I will explain why.

The notice powers contained in Clauses 10 and 11 of the Bill certainly require that once he has satisfied himself that a contravention of the principles has taken place, the registrar should consider whether that contravention has caused, or is likely to cause, any person damage or distress. In most cases in which the registrar decides to use his notice powers, he is likely to have concluded that damage or distress were likely, but he is not restricted in the use of his powers to those cases where this factor is present. He may on occasion decide that it would be right to use his powers, notwithstanding the absence of any suggestion of harm, an obvious example being where it had come to his notice that data subjects were being denied access to the data held about them, in contravention of the seventh data protection principle. Denial of access to one's data might cause distress in some circumstances, but there is no reason why one should be distressed by that denial in order to qualify for the benefits of the seventh principle. Access to one's data is a cardinal point in the data protection scheme and it would be quite wrong to limit that right to those who might, for whatever reason, be distressed by being denied it.

It follows that there might be some situations in which to deny the registrar an entry warrant on the grounds that, though there was clear evidence of a contravention of the principles, there was no evidence as to damage or distress, could be to exclude him from circumstances in which he should rightly be involved. To restrict the right of entry to contraventions of the principles likely to cause harm would effectively enable users to exclude the registrar from any access to their operations, unless such harm could be demonstrated. The amendment could effectively tie the registrar's enforcement and deregistration powers to the prospect of damage or distress in a way which the Bill does not do at present and which, as I have indicated, could in certain circumstances limit the ability of the registrar to defend the interests of data subjects.

As for the fear, certainly implied by my noble friend, that the registrar might be tempted to use his entry powers in pursuit of purely technical contraventions of the principles, I would simply point out that there is nothing in Clause 16 to compel the circuit judge, as he now is, to issue a warrant even though the requirements of the clause were satisfied. If the registrar were attempting to use his powers in an irresponsible fashion—which I do not for one moment believe likely—the issuing authority would be perfectly at liberty to refuse him the warrant for which he was asking. I hope that this consideration, coupled with what I have said about the relationship between the registrar's powers and the prospect of damage or distress, will persuade my noble friend not to press the amendment.

Lord Mottistone

My Lords, I find my noble friend's argument most persuasive, particularly as he made cross-reference to Clause 10(2), which seemed to be a very good argument for my amendment. I was not quite so impressed by the argument of the noble Lord, Lord Elystan-Morgan, whose objection rather surprised me. In view of what my noble friend Lord Glenarthur said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Glenarthur moved Amendments Nos. 32, 33 and 34:

Page 14, line 4, leave out ("justice") and insert ("judge").

Page 14, line 12, leave out ("justice") and insert ("judge").

Page 14, line 20, leave out ("justice") and insert ("judge").

The noble Lord said: My Lords, these amendments are consequential. I beg to move.

On Question, amendments agreed to.

8.49 p.m.

Lord Mottistone moved Amendment No. 35: Page 14, line 29, at end insert ("or whether any data equipment was inspected, examined, operated or tested").

The noble Lord said: My Lords, this is an exact repetition of Amendment No. 105 which I moved in Committee and for which my noble friend Lord Glenarthur expressed considerable sympathy. I was, therefore, hoping to see a similar amendment down at this stage on his behalf. I beg to move.

Lord Elystan-Morgan

My Lords, it is not merely in the hope that I may be readmitted to the good will of the noble Lord, Lord Mottistone, that I find great pleasure in saying that we on these Benches totally support the amendment. Any invasion of privacy, in particular one which involves entry onto private premises, is a very serious matter; but there are circumstances, such as in the Bill, where there is complete and total justification for such entries. However, we say it is right that when there is such an entry there should be the most detailed and specific documentation as to exactly what has occurred in relation to it, and that, we believe, is an ample justification for the amendment.

Lord Glenarthur

My Lords, as my noble friend Lord Mottistone said, I indicated in Committee that the Government were prepared to look again at the requirement in Clause 16(6) of the Bill to see whether it would be appropriate to require those executing warrants to provide more information to the issuing authority. This we have now done, and I am pleased to be able to tell my noble friend that the Government are persuaded that more information should be included on returned warrants. Endorsing warrants is the means by which issuing authorities are able to check that the grounds advanced for the issue of a warrant have been justified in the event, and we agree that the issuing authority should be told more than as is provided in the Bill at present. Indeed, we believe that there is a case for going further and for requiring also that those who execute warrants should be obliged to indicate whether the power to inspect any documents or other material was exercised in pursuance of the warrant.

We would have come forward with an amendment to this effect by this Report stage had the result of our attention being drawn to the detail of Clause 16(6) not been an awareness that that provision may not achieve its objective as directly as may be wished. The policy is that all executed warrants should be endorsed, and that all warrants, executed or not, should be returned to the issuing authority; but we need to look again at Clause 16(6) to ensure that that is what it achieves. We intend, therefore, to come back with an amendment at a later stage in the progress of the Bill, designed to require all uses made of the warrant to be endorsed on it, and attending, if necessary, to any technical changes that may have been identified. I hope that with that assurance my noble friend will decide not to press his amendment.

Lord Mottistone

My Lords, I am indeed grateful to my noble friend, and I trust that if possible the further amendment can be brought forward before the Bill leaves this House, so that I can be personally assured. I look forward to the amendment being presented in due course. I beg leave to withdraw the present amendment.

Amendment, by leave, withdrawn.

Lord Glenarthur moved Amendment No. 36: Page 14, line 32, leave out from first ("the") to end of line 34 and insert ("court from which it was issued").

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 37: Page 14, line 37, leave out ("for so long as is necessary in all the circumstances") and insert ("up to a maximum of two working days and thereafter only so long as a circuit judge may direct on an application specifying the documents or other material to be retained, setting out the grounds why it is reasonably necessary to retain them and stating the period for which they are required. The reasonableness of the grounds must take account of any adverse effect caused to the owner or any user.").

The noble Lord said: My Lords, this amendment relates to the power of seizure. As the Bill is currently drafted, it follows automatically that there is an unfettered discretion in the registrar or his officers for any length of time—I repeat, for any length of time. Thus computer files may be seized and retained for long periods of time because of alleged, but unproven, breaches which could be minor in nature or number; yet the same computer files may be essential to the day-to-day operation of the business. Since computerisation is currently developing, the absence of computer files because of seizure could well be crippling and/or disastrous, whatever kind of activity the business is engaged in. The amendment seeks to protect the data user from such interference, and I hope that in its wording it is satisfactory to the Government. I beg to move.

Lord Elystan-Morgan

My Lords, we are in the fullest sympathy with the amendment, and we agree with its principle. However, it may be that the period of two days is rather short. After all, circuit judges are not really geared, as are magistates, to discharging substantial administrative functions. I can well imagine a circuit judge viewing with great disfavour the fact that he has to determine one of these issues on a day when he has a very full list of pleas; or, alternatively, when he is due to carry on with a part-heard trial at 10.30, with a jury waiting. It may be that much time would be taken up by these matters. I should have thought that in the circumstances perhaps a period of five days would be more appropriate.

Lord Glenarthur

My Lords, my noble friend has suggested a limitation on the circumstances in which any documents or other material seized through the exercise of a search warrant under Clause 16 may be retained. Under the Bill as cast such material, may be retained for so long as is necessary in all the circumstances". My noble friend's amendment would provide that seized material could be retained for only two days, or until such time as a circuit judge may direct on application being made to him. An application would have to specify the material concerned, the grounds why it was reasonably necessary to retain it, and the period for which it was required. Presumably, the reference to the reasonableness of the grounds taking into account any adverse effect caused to the owner is intended to suggest that in the event of some adverse effect more substantial grounds for retention would be required. I ought to say, however, that it is difficult to envisage how these entirely different considerations could be balanced one against the other. As always, when considering this clause we must bear in mind that seizure will normally be a last resort and will be avoidable by a user who is willing to volunteer documents or other material, having first taken a copy with which to continue his operations.

However, the Government appreciate the concern behind the amendment that the seizure of evidence under Clause 16 shall not interfere to an unwarranted degree with the activities of data users and computer bureaux which have not yet, as it were, had their innocence disproved. At this stage we are dealing with persons who have not been convicted of the offence in question, or who have not had the opportunity to contest before the tribunal the question of whether a notice should have been issued. The problem is that where evidence is seized and the registrar needs to retain it for the purposes of an investigation, or perhaps the bringing of a prosecution, the purposes of Clause 16 would be defeated if he had to return that evidence before his investigation had been completed or the prosecution had been undertaken. Both the current Clause 16(7) and the amendment therefore recognise that in some circumstances it will be necessary to retain evidence.

One effect of the amendment would be to particularise the factors to be taken into account when deciding whether documents or other material seized may be retained. There may, for instance, be cases where it could suffice for the registrar to retain a copy of the material, thus enabling him rapidly to return the original, but this may not be entirely straightforward. I understand that it is not always easy to arrange for copies of discs or tapes to be taken, especially where the equipment involved is not of a standard type. However, having indicated that this aspect of the amendment is not free from difficulties, I ought to say that the Government are not altogether unsympathetic with some of the concerns which have been expressed by my noble friend, and that in this connection we are willing to look again at the circumstances in which seized material may be retained. If it appears that the Bill could usefully be more explicit on this question without impeding the registrar, we shall bring forward the necessary amendments in another place.

However, there is contained in my noble friend's amendment another proposal; namely, that a court order or direction should be necessary before seized material may be retained for longer than two days; and this is a point that the noble lord, Lord Elystan-Morgan, raised. I should make clear that the Government's sympathy does not extend to this proposal. Where documents or any other material are seized or retained unlawfully, the person concerned would have a remedy in civil law for any damage caused as a result. It does not, however, seem necessary to impose an additional requirement to apply to a circuit judge for a direction authorising the retention of documents or other material seized in the execution of a warrant issued by such a judge. But with that proviso I have given an undertaking to consider further, and I hope that that will satisfy my noble friend.

Lord Mottistone

My Lords, I thank my noble friend and also the noble Lord, Lord Elystan-Morgan. I should have thanked him for his support on Amendment No. 35 as well. In the case of No. 37, I quite take it that two days would be too short a time for a circuit judge. I understand part of the argument presented by my noble friend on that score. Be that as it may, the main thing is that my noble friend Lord Glenarthur has said that the Government see the main point behind this and that they will do their best to get something appropriate into the Bill before it finally leaves Parliament. With that, I am very satisfied and beg leave to withdraw the mendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 38:

Page 14, line 38, at end insert— ("( ) A person executing a warrant under this section shall not prevent the occupier of the premises from carrying on his lawful business by the seizure of any documents or other material or by the inspection, examination, operation or testing of any data equipment and shall be liable to make full and adequate compensation for any destruction of or damage to any data equipment, documents or other material to the owner of that data equipment, documents or material.").

The noble Lord said: My Lords, this amendment stems from Amendments Nos. 106 and 107, the latter having been moved by the noble Lord, Lord Wigoder, at the Committee stage, and is really on the same basic theme that we have just been discussing but from a slightly different point of view. Here we are asking that any damage done in execution of a warrant should lead to full and adequate compensation. I had occasion to write to my noble friend Lord Elton about this and it so happens that in The Times of 1st March we had a report of police smashing into a flat and holding a couple at gunpoint in a raid error. That may seem a little far from computers, but the last paragraph of that report in The Times was significant. It said: The West Midlands police said yesterday that no internal inquiry had been held into the raid because the officers were acting under the terms of a search warrant". This is what we are talking about, a search warrant; and, although it may sound slightly harsh to say so, in some respects data equipment is even more delicate than humans. It can be totally destroyed in a sense by clumsy people who have done some sort of a search in the wrong place. That is what happened in the case of the police in the West Midlands. They went to the wrong house; they might go to the wrong business; they might go to the wrong data user. So it is quite important to have some means of getting compensation if a mistake has been made and damage has been done which is unjustified. Hence, I hope that this amendment, which is a change from my earlier amendment on the same subject, is acceptable to my noble friend. I beg to move.

Lord Wigoder

My Lords, in the last line of this amendment the word "documents" is in the plural and it should, I think, be in the singular. I hope that that is the only objection that the noble Lord, Lord Glenarthur, will take to this amendment; because it seeks to deal with a very real problem which could arise where warrants are executed. There are two situations: first, that police officers may execute such a warrant without proper regard to the interests of the occupant and may take possession of material that is totally irrelevant and has nothing to do with any alleged contravention of the law. I would not want for a moment to suggest that this is likely to happen on a large number of occasions, but I think that one would be closing one's eyes to the obvious if one pretended that it was never likely to happen on a single occasion. Secondly, and more serious, is the danger that in executing a warrant police officers may take possession of files, programs or computer material which contains not only a single disputed item but, it may well be, hundreds of thousands of other items which have absolutely nothing to do with any alleged contravention of the law and the seizure of which will bring the occupiers' lawful business to a total standstill.

I know that it is not very much of a safeguard in Clause 16(7) which requires that a receipt should be given and that the material can be retained for as long as it is necessary in normal circumstances. That is not very much help in that situation. There is no provision (as the noble Lord mentioned a moment ago) for a copy to be made; although that is in most circumstances practicable and I think is provided for under a number of EEC directives which the Government might perhaps care to have a look at before a further stage in this matter. There is a real danger, unless an amendment of this sort is found to be acceptable, that a person will be impaired from carrying out his lawful business by the fact that a warrant is being executed to deal with a specific isolated incident which would not in any circumstances justify the amount of material of which possession is taken. I hope that, as with the previous amendment, the noble Lord will look at this one, too, to see whether, in some way, an amendment can be drafted to meet this danger.

Lord Elystan-Morgan

My Lords, I am afraid that the time has once again come when the noble Lord, Lord Mottistone, and those who sit on these Benches must part company, albeit temporarily. If there was no such thing as the bundle of remedies which lie at common law to a person who suffers an abuse of powers such as this amendment deals with, then, no doubt, there would be irresistible force in the argument put forward by the noble Lord, Lord Mottistone. However, those powers in civil law exist and, in the submission of those of us on these Benches, are adequate.

The real objection to the amendment is that if it were to be incorporated in the Bill, then, despite the total genuineness of the noble Lord in moving the amendment, the effect would be to frustrate the whole purpose of the Bill. It would really be a trip wire that would make it virtually impossible for enforcement to take place. We have not the slightest doubt that the registrar, whoever he or she may be, will use the powers given by this legislation with very great circumspection. There will be no question of a power of entry until all the exhortations to the corporation have been rejected by the data user. There will be no question of entry until a circuit judge has stated that he is satisfied, on information given on oath, even though there is a breach of law or a contravention of the data principles. In those circumstances we say that the price that would have to be paid for this amendment would be a very high one indeed. It is a price that is not necessary because of the massive protection which common law would afford any person who suffered an abuse of powers.

9.9 p.m.

Lord Glenarthur

My Lords, I am afraid I, too, must part company from my noble friend on this occasion, though I hope not for long, because of the arguments he advocates on this occasion.

There are two distinct elements to the amendment proposed by my noble friend, which it might be helpful to deal with separately. Both aspects were foreshadowed by amendments during the Committee stage and the Government's views were set out fully then.

We considered in some detail the various safeguards which have been incorporated in Clause 16 in order to ensure that the powers of entry and search are suitably circumscribed. And those powers have been further increased by our acceptance that warrants should be issued by circuit judges rather than by justices of the peace. In addition, there is a requirement, in normal circumstances, that before a warrant is issued access at a reasonable hour must be previously sought on seven days' written notice and that access must have been unreasonably refused. Where a warrant has been issued there are other provisions in Clause 16 which will ensure that it will be executed so as to cause the minimum possible disruption to the occupier. I suggest that the clause already includes sufficient safeguards to ensure that the power of entry will only be available where it is justified, and that where a warrant is executed, it must be done in a way that causes the minimum disruption.

The first part of my noble friend's amendment seeks to go beyond these safeguards and to provide that the person executing a warrant shall not prevent the occupier carrying on his lawful business by the seizure of any documents or other material, or by the inspection, examination, operation or testing of any data equipment. Thus where the seizure or inspection did prevent the occupier carrying on his lawful business its execution would be unlawful. As I have already explained, Clause 16 will usually only come into play where previous requests for co-operation have failed. Much as the Government agree with the need to provide appropriate safeguards, the amendment would go so far that it could make the warrant almost impossible to execute lawfully. We are dealing here with extreme cases, and in such circumstances it may be that it proves necessary to execute a warrant in a way which does require the data user to interrupt what he is doing—thus preventing some aspect of the occupier's lawful business being carried out, however temporarily. The amendment would therefore risk defeating the purpose of the clause, and I do not believe that my noble friend would really wish to see that happen. The essential argument is that Clause 16 already provides appropriate safeguards for the occupier of premises, and that to restrict further the exercise of the powers which may be authorised by the grant of a warrant, which this amendment proposes, would risk rendering them useless.

The second aspect of the amendment concerns compensation for damage. I should emphasise that the Bill follows established procedures here. I have already explained the various provisions which ensure that the power of entry can only be properly exercised in limited, defined, circumstances. Any purported exercise of the power outside these limits would be unlawful. In such case any person suffering damage by reason of the unlawful entry and search would have a remedy for compensation in civil law against the person executing the warrant.

"But what", my noble friend Lord Mottistone might ask, "of the lawful search?" The important point here is that the safeguards in Clause 16 are such that, barring the most exceptional circumstances, damage will only be a possibility where the occupier has failed in his duties under the Bill. In the vast majority of cases Clause 16 will never come into play. Where it does the power is hedged about by the safeguard to which I have already referred. In addition, the effect of Clause 16(8) is to make it an offence to obstruct the registrar or, when it is required, to fail to provide him with reasonable assistance. The latter means that where the registrar needs to operate or test equipment he will be able to require the occupier to operate it on his behalf. This would be to the advantage of both parties and would avoid the possibility of the registrar causing damage as a result of unfamiliarity with the equipment in question. Thus, as was explained during the Committee stage, it would seem that even where, as a last resort, the powers authorised by the grant of a warrant are exercised they should be exercised in such a way that no damage will result. I do hope that my noble friend will be satisfied with this explanation, and not press for what amounts to established procedures on this point.

Lord Mottistone

My Lords, I note with interest what my noble friend has said and indeed what the noble Lord, Lord Elystan-Morgan, had to say. I respect those opinions and will look with care at the details. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Glenarthur moved Amendments Nos. 39 to 44 en bloc:

Page 15, line 5, leave out from ("Scotland,") to second ("a") in line 6 and insert ("for any reference to a circuit judge there shall be substituted").

Page 15, line 8, leave out from second ("the") to second ("the") in line 13 and insert ("court from which the warrant was issued there shall be substituted a reference to").

Page 15, line 15, leave out ("justice of the peace") and insert ("circuit judge").

Page 15, line 16, leave out ("resident magistrate") and insert ("county court judge and").

Page 15, line 18, leave out from ("oath") to end of line 22.

Page 15, line 23, leave out subsection (11).

The noble Lord said: My Lords, Amendments Nos. 39 to 44 inclusive are consequential amendments and I beg to move them en bloc.

On Question, amendments agreed to.

Lord Elystan-Morgan moved Amendment No. 45:

Page 15, line 24, at end insert— ("(12) Nothing in this section authorises the inspection or seizure of any document or other material in respect of which, or the data contained in which, a claim to legal professional privilege could be maintained.").

The noble Lord said: My Lords, it may well be rashness on my part if I say that I move this amendment on behalf of my noble and learned friend and others on these Benches with a feeling of some confidence. I ask the House to accept that this is an amendment of the utmost importance, dealing as it does with the whole question of excluding from these provisions the case of data in respect of which a claim to legal professional privilege could be maintained.

As the House well appreciates, this is an area that for many, many centuries in both our civil and criminal law has been regarded as worthy of total exclusion. Indeed, that principle has already been incorporated in part in the Bill we are now considering, for in Clause 32(2) of the Bill there is an exemption regarding the relaying of any data information that has passed between a data subject and his legal adviser to a third party about whom that data is concerned.

That is a very important area of exclusion and, in my submission, it would be nothing more than logical to allow this amendment on the basis of that principle alone. Furthermore, referring to the Police and Criminal Evidence Bill, which is now before another place, despite the fact that according to the fears of very many people it is an authoritarian piece of legislation, nevertheless I understand that it recoils from invading this area of privilege in legal circumstances. The amendment is one which has already been fully canvassed at Committee stage and, as the House will be aware, it is one that is put forward with great confidence and with great feeling by the Law Society.

The area of professional privacy (for that is what it is) which exists between a professional legal adviser and his client is one of the most intimate and best protected areas of privacy known to our law. This whole legislation is brought forward in the name of privacy. It would be—would it not?—a massive and crushing irony if in this legislation that last bastion, that sanctum sanctorum, of privacy were to be invaded. Therefore we say that we have the fullest confidence that when the noble Lord comes to reply he will say that this is a matter which should never have been included in the Bill in the first instance, and that the Government are now resolved to put the situation right. I beg to move.

Lord Swinfen

My Lords, I have one small point to raise on this and I wonder whether the noble Lord who has just spoken will deal with it when he makes his decision at the end. I understand that computer discs or tapes can hold several hundred thousand bits of information. What would be the position regarding a disc which holds privileged information that does not have to be disclosed, at the same time as it holds information that legally would have to be disclosed? Surely the whole disc would have to be taken for examination—or is the whole disc going to be retained because part of it has privileged information on it? If that is the case, a dishonest solicitor—and I regret to say that there are a few in the profession—would be able to put privileged information on to every single disc so that the rest of it could be filled up with information which he did not wish to be seized.

9.20 p.m.

Lord Elystan-Morgan

My Lords, if I may with the leave of the House deal with that point at this stage, that is a complicated technical matter. But in my understanding it is a matter which crops up regularly in relation to the issue of privilege and the courts will allow severance where severance is possible.

Lord Denham

My Lords, if the noble Lord will forgive me, only a Minister may speak twice on Report with the leave of the House. But the noble Lord can of course deal with this point when he replies to this amendment. That is according to the Rules of Order of the House.

Lord Elystan-Morgan

Yes, my Lords. I appreciate that my rights are limited in relation to reply. Therefore, I shall deal with the matter when I come to reply to the amendment. But the answer, in short, is that the courts will sever whenever they can.

Lord Elwyn-Jones

My Lords, if the Chief Whip will allow me to intervene, my noble friend's response was in reply to a specific question put to him by a noble Lord on the other side of the House.

Lord Denham

Yes, my Lords. I fully understand that. That is why it was with diffidence that I rose. But under the Rules of Order of the House, not even with the leave of the House may noble Lords speak twice on Report, although, of course, a noble Lord has a right of reply.

Lord Avebury

My Lords, I enter into this argument with the greatest diffidence, seeing the legal force behind the amendment. But I just wonder whether one might take the point made by the noble Lord, Lord Swinfen, a little further and look back to the purposes of the clause. We are saying that an offence under this part of this Act has been or is being committed; or that any of the data protection principles have been or are being contravened by the person whose records are to be the subject of examination. So that the crooked solicitor, mentioned by the noble Lord, Lord Swinfen, has been the subject of investigation by the registrar, and, as he said, he has been through all the procedures attempting to get at records voluntarily, which may be mixed up with legally privileged material. I think that he made a very valid point there, that it will not be possible to separate out those parts of the data which are legally privileged from those which are not.

So one has to ask oneself: Why should the legal profession ask for this special immunity in the Bill, when what we are trying to do is to look after the interests of the data subject? I hope that in this Bill we are not trying to look after the interests of the lawyers. If the data subjects are being damaged by the crooked solicitors, whom the noble Lord, Lord Swinfen, has postulated, why should they be immune from the provisions of Clause 16 any more than any other data user should be? Why are the lawyers asking for some special privilege here, which is not to be extended to any other class of data user? The good lawyer has nothing to fear from the provisions of Clause 16, because he is never going to be examined. So why should the vast majority of lawyers, who are honest and above board, object to the few rotten ones being the subject of examination under Clause 16?

They are not asking for the same privilege to be extended to doctors. After all, much the same argument would apply to them, because the historical basis of confidentiality between a doctor and his patient is at least as great as that between the lawyer and his client. Therefore, if the amendment in the name of the noble and learned Lord, Lord Elwyn-Jones, were accepted, there would be an irresistible demand from the British Medical Association to have the same kind of concession made to their members. But why should we make it for anybody? It really would be best if lawyers did not demand the special privileges which, sometimes, they are inclined to do, and if they treated themselves as the ordinary human beings and part of the community that in fact they are.

Lord Elwyn-Jones

My Lords, I am sorry that the noble Lord, Lord Avebury, has not understood the whole object of professional privilege. The rule is established for the protection of the client, not for the protection of the lawyer. The privilege can be waived by the client but not by his legal adviser. This is entirely a rule for the protection of the client. The lawyer's interest in it is confined to the interest of his client—nothing further.

Lord Glenarthur

My Lords, it was my noble friend Lord Mottistone in Committee who ran the first leg of what I suppose could be considered a bit of a relay race on this amendment, and now he has handed it on—I hope not unwillingly—to the noble Lord, Lord Elystan-Morgan. In Committee I indicated that we recognised the importance of the principle which lies at the heart of legal professional privilege and I asked for time to reflect on what I think I called the dilemma that my noble friend Lord Mottistone had revealed to us. That time was graciously given to us, but I have to say that I need to ask for more.

This is a far from simple matter. That has been brought out in the discussion we have had this evening. The essence of legal professional privilege is the principle that an individual can speak with absolute frankness to his legal adviser without fear of his confidences being used against him. So in the Police and Criminal Evidence Bill, for example, currently being considered in another place, it is necessary to ensure that the police cannot seize as evidence articles consisting of privileged communications. But it is much more difficult to translate the considerations applying there to the context in which the registrar will be exercising his powers of search under the Data Protection Bill. The parallel, unfortunately, is not exact.

For example, if the noble Lord, Lord Elysian-Morgan, is a data user in his professional legal role, as he might well be, he might hold various kinds of personal data. Some may concern the staff he employs, factual details of clients, or information about suppliers of materials. Some may concern cases on which he is advising his clients—covered, perhaps, by legal professional privilege but not capable in any way of being used against the client by the registrar. Indeed, if anything, they might be used in the interests of the client as data subject against the noble Lord as data user. It would be hard to provide that data subjects were to be denied the general protection of the Bill in the case of any data about themselves which they may have passed to their solicitor in circumstances to which legal privilege would attach, thereby leaving the solicitor concerned (although I am sure this would not apply in the case of the noble Lord) free from any of the Bill's controls over, say, to whom he disclosed data or the security provided to protect the data. That clearly would not be right. But there is a third category: data given to the noble Lord by a data user and concerning possible proceedings brought against the user by the registrar under the Bill. There we are getting closer to a real parallel with situations in other fields where legal professional privilege is protected.

I think it is far from self-evident that we should deal with this matter by the simple amendment proposed by the noble Lord. There are the very real difficulties to which I have referred. We must think carefully of the possible consequences for data subjects of the proposed exclusion, and we must not lose sight of the provisions both in the Police and Criminal Evidence Bill and in Clause 32(2) of the Bill with which we are dealing. For the time being I am pointing to the difficulties and warning against moving hastily before all the implications are fully thought through. In the circumstances, I hope that the noble Lord will not press the amendment but will give us time to continue our consideration. I hope he will be satisfied that we have taken the point fully on board.

Lord Elystan-Morgan

My Lords, to some extent we are relieved by the assurances which have been given by the noble Lord the Minister, but we are far from satisfied. I beg the Minister, in considering this situation, as I know he will over the next few weeks, to consider that there is something utterly inconsistent between, on the one hand, the provision with which we are now dealing, which allows a search to be made and an invasion of an area of total privilege and privacy, as it is in every other context, and, on the other hand, under Clause 32(2) of this Bill, saying that a person who is himself the subject of certain data comments which have passed between a data subject and, let us say, his solicitor is not entitled to intervene in that area. It would be strange, would it not, if this Bill were to become law in its present form in relation to that provision, which would allow that search to be made and to invade that most private of territories? In our criminal law, no matter how serious the case—even if it were a case that involved the very security of the state itself—there is no judge who would allow trespass even to an inch upon that area. It is on that basis that we urge the noble Lord to reconsider the situation.

The Lord Chancellor

My Lords, I am not sure whether the noble Lord, Lord Elystan-Morgan, is withdrawing his amendment.

Lord Elystan-Morgan

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 [Prosecutions and penalties]:

9.30 p.m.

Lord Mottistone moved Amendment No. 46:

Page 17, line 5, at end insert— ("( ) The court shall not order destruction or erasure to be undertaken under subsection (4) above unless it has given twenty-eight days notice of its intention to do so, either directly to the data subjects concerned or by publication in two national newspapers.").

The noble Lord said: My Lords, this amendment stems from my Amendment No. 109ZA, which my noble friend Lord Glenarthur was somewhat firm in rejecting at Committee stage. This amendment, therefore, takes a rather different form but the underlying principle is the same. It is to ensure that the data subject can find out that personal data is about to be destroyed or erased. He may wish to have a copy of the information contained in that data because the continued availability of that information might be of considerable importance to him. One example that has been suggested is that it might be information concerning the data subject's training or education, which could reflect on his suitability for a job. One can imagine all kinds of other circumstances in which it would be useful for the data subject to know that destruction or erasure was about to take place and to be given warning of any such destruction ordered. I beg to move.

Lord Glenarthur

My Lords, I am afraid that I must tell my noble friend that I still have to remain firm on this point. As my noble friend has indicated, this amendment is similar to one that we discussed in Committee, modified to take account of certain of the difficulties that we identified then as being raised by the amendment. As well as identifying particular difficulties, I argued generally that there was no need to make provision along the lines proposed by the amendment because of the way that the courts would in any event approach these matters. I had hoped that I might have satisfied my noble friend. But, sadly, that was not to be.

Clause 19(4) empowers the court convicting a person of an offence under Clauses 5, 10, 12 or 15 to order the forfeiture, destruction or erasure of any data material appearing to the court to be connected with the commission of the offence. The unmistakable intention behind this provision is to allow the court to remove the opportunity for subsequent abuse of the personal data concerned. Thus, when considering whether to issue an order under this clause, the court will necessarily have in mind the interests of the various subjects of the personal data contained in the data material. As we said in Committee, it seems inconceivable that the court would fail to consider whether data subjects had an interest in seeing that the data material in question was retained.

The amendment proposed during Committee carried the defect of requiring each and every data subject to be consulted before an order under Clause 19(4) was made. The amendment has now been refined and the proposal currently before your Lordships seeks to avoid that difficulty by providing the alternative of the publication in the press of the court's decision to make an order under the Bill. Surprisingly, perhaps, the amendment does not go on to make express provision for the court to hear anyone wishing to make representations. I imagine that the intention is to allow Clause 19(5) to take over at this stage so that data subjects, alerted by an advertisment in The Times or whatever, could claim to be a person interested in the material under Clause 19(5) and thus have an automatic right to a hearing. I have to warn, however, that it is doubtful that a court would construe Clause 19(5) as having that effect. But this does illustrate the practical difficulties. If individual data subjects are to have a right to a hearing—when there may be thousands of them—the court would face quite an impossible situation. That is the case whatever means is taken to provide subjects with the right.

We are in no doubt that it is more sensible—and just as safe—to leave the courts to look after subjects' interests without the kind of statutory provision that my noble friend suggests. The courts are well capable of doing so, and will have the assistance and advice of the registrar to hand whenever they face a situation of this kind. I hope that my noble friend will accept that his amendment would raise more problems than it would solve, and that subjects' interests are already adequately protected by the Bill as drafted.

Lord Renton

My Lords, in listening to this discussion it seemed to me that perhaps my noble friend Lord Mottistone had it in mind that in the event of an appeal there should not be destruction. But of course the court has always power to order a stay of execution with regard to any part of the order it makes, and in suitable circumstances would no doubt do so.

Lord Mottistone

My Lords, I appreciate the explanation given by my noble friend, and I shall not delay the House further, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 [Liability of directors etc.]:

Lord Mottistone moved Amendment No. 47: Page 17, line 12, after ("corporate") insert ("including a body corporate which is a member of a corporate group in respect of which an entry has been made in the register").

The noble Lord said: My Lords, with the leave of the House, I should like to bracket with this amendment Amendments Nos. 48 and 50. These three amendments I had down on the list of amendments at Committee stage as Nos. 109ZB, ZC and ZD. My noble friend at the time said that they were late in going down and he had not had time to consider them but he thought they looked fairly good. I have since talked with the office of one of my noble friends about this, and I understand they are still thought very good. It was a moot point whether I should put them down at this stage, but I have done so merely to indicate to my noble friends on the Front Bench that I am still interested, and I hope they are. I beg to move.

Lord Glenarthur

My Lords, of course we are still interested, and I hope I can be a little more forthcoming to my noble friend. As your Lordships recall, these amendments reproduce a group of amendments which, as my noble friend said, were discussed in Committee. Because they were only available rather late in the day we agreed to take them away for consideration. We have had the opportunity to give some thought to the issues involved, but I have to tell him that we have not yet reached a final view.

Ignoring for the moment the situation of persons carrying on computer bureaux, the person who is obliged to register under the Bill is the data user. The data user is defined in clause 1(5) as a person who holds data, and a person holds data if the data form part of a collection of data processed or intended to be processed as set out in that clause and—and this is particularly important—that person controls the contents and use of the data. The Government have not therefore sought to impose a particular level of authority within a company, or indeed within a group of companies. Instead we have simply said that the person to be held responsible under the Bill is the person who actually controls what is to be done with the data. The amendment proposed by my noble friend Lord Mottistone seeks to provide that where a number of companies form a corporate group—that is, as I understand it, a group of companies where the holding company has a controlling interest in all the subsidiaries—the group could register on behalf of the constituent companies. In fact, applying the definition of data user set out in Clause 1(5) it can be seen that where a holding company controls the contents and use of all the data in the hands of the group, including the subsidiaries, it could register as the data user. However, where a subsidiary held data independently it would have to register separately.

If it is the intention behind the amendment that in this second case the group should be able to register on behalf of the various data users within it, we must cast a critical eye over the justification for departing from the principle of registering the person who controls the data.

There is, I think, clear benefit in including on the register the person actually controlling the data concerned. Indeed, the right to establish the identity of the controller of a file is explicitly stated in Article 8 of the Council of Europe Convention. In addition, it should be remembered that the process of registration is the means for enforcing the principles for data protection set out in Schedule 1 to the Bill. If only notional responsibility for compliance rested with the registered person he would surely often say to the registrar, "I am sorry we have breached the principles but it was not our fault; it was the fault of a subsidiary company whose data we do not control".

I think I can sum up our present position, therefore, as being unconvinced of the case for departing from the principle of registering the person in control of and responsible for the personal data in question. But we continue to have an open ear to those who might wish to persuade us, and indeed are continuing to discuss the matter with interested parties. I hope that that will satisfy my noble friend.

Lord Mottistone

My Lords, I am grateful to my noble friend and I am so pleased that he is continuing to discuss the matter with interested parties. I hope that there will be a reasonable fruition at some stage before the Bill leaves Parliament. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 48 not moved.]

Lord Mottistone moved Amendment No. 49:

After Clause 20, insert the following new clause:

("Defences.

.—(1) In any proceedings for an offence under section 10 or 12 above, it shall be a defence for a person charged to prove—

  1. (a) that the commission of the offence was due to a mistake or to reliance on information supplied to him or the act or default of another person, an accident or some other cause beyond his control; and
  2. (b) that he took all reasonable precautions necesary to comply with the requirements of the relevant notice and exercised all due diligence to avoid the commission of such an offence by himself or by any person under his control.

(2) If in any case the defence provided by the last foregoing subsection involves the allegation that the commission of the offence was due to the act or default of another person or to reliance on information supplied by another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless, within a period ending seven clear days before the hearing, he has served on the prosecutor a notice in writing, giving such information identifying or assisting in the identification of that other person as was then in his possession.").

The noble Lord said: My Lords, this is a recast of Committee Amendment No. 109ZE, which was not liked in its previous form by my noble friend Lord Elton but to which we have added a bit to take account of my noble friend's objections at an earlier stage. I trust that in its new form this amendment will be acceptable to my noble friends on the Front Bench. I beg to move.

Lord Elton

My Lords, under Clause 13 the recipient of either an enforcement or a prohibition notice would have a right of appeal to the tribunal, but, where a prosecution followed, the only question before the courts would be whether the recipient had complied with the notice or not. In the case of an enforcement notice, and many transfer prohibition notices as well, this will be a simple matter of whether the specified steps have been taken. This is designed to ensure that the reasonableness of the original notice cannot be questioned before the criminal courts and to place the recipient under a positive duty to ensure compliance with the notice. Having set up an elaborate appeals mechanism under the Bill, it would be wrong to cast the offences involved in a way which permitted the issues to be reopened all over again before the criminal courts. This would render the appeals mechanism redundant.

Having said this, we have reflected further on the arguments put by my noble friend that in some cases unforeseen difficulties may arise after the hearing of an appeal or after the time during which an appeal may be brought. There may be situations in which it would he appropriate to provide a defence in proceedings under Clauses 10 and 12 provided that this can be done without allowing the defendant to reopen issues that have already been determined before the tribunal. We do not think that, if there is to be additional provision on this matter, it would be quite in the form of the amendment proposed by my noble friend. But if he will agree not to press this amendment, we will happily look further at ways of achieving the result and see whether a suitable amendment might be made in another place.

Lord Mottistone

My Lords, I am indeed grateful to my noble friend and I look forward to further progress in this area at a later stage as the Bill passes through Parliament. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 50 not moved.]

Clause 21 [Right of access to personal data]:

9.43 p.m.

Lord Elystan-Morgan moved Amendment No. 51: Page 17, line 31, leave out ("constituting") and insert ("recorded by").

The noble Lord said: My Lords, the additional change of words here would ensure that the data subject gets all the data to which he is entitled and that there should be no editing of that data before he receives it. I do not think that there is anything more which can usefully be said about the amendment, and I commend it to the House as something that is eminently reasonable. I beg to move.

The Lord Chancellor

My Lords, I have heard with interest the admirably brief account of the amendment moved by the noble Lord, Lord Elystan-Morgan. The distinction between "information", which bears its ordinary meaning, and the expression "data", is an idea central to the Bill and one which we have discussed on a number of occasions during the Bill's passage through your Lordships' House. However, I must say that I find it extraordinarily difficult to see the difference between the phrases "constituting the data" and "recorded by the data". I cannot see the sense of a distinction between them. It seems to me that either formulation provides the data subject with all the information of which the data are made up, which the data represent and which the data comprise, and the rest appears to me to be a question of semantics.

I think that we are agreed about the policy. If, as I have suggested, the amendment makes no difference at all to the Bill's ability to supply what is needed, I would respectfully suggest that the case for a change has not been made out because I am advised that the notion of information constituting or contained in the data, and conversely, data consisting of information, is one which runs through the warp and woof of the Bill. I hope, therefore, that in the light of this view, which represents not only my own opinion but the opinions of those advising me, the noble Lord will not press the amendment.

Lord Elwyn-Jones

My Lords, in view of what the noble and learned Lord has said we shall certainly look at the matter again. But in the circumstances my noble friend and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 52: Page 17, line 32, at end insert ("or of such information constituting any such personal data held by him for any purpose or purposes as may be specifically requested by that individual.")

The noble Lord said: My Lords, this amendment derives from the discussion that took place on my Amendments Nos. 110 and 112 in Committee. It attempts to give the data subject some choice in the information that he obtains. This allows him to take advantage at his discretion—and I stress, "at his discretion"—of the cost options that are available in Clause 21(3), where the charges for obtaining information are in relation to the information obtained. The object of the exercise is to allow flexibility to the individual where this would be appropriate. I beg to move.

The Lord Chancellor

My Lords, I am not altogether unsympathetic to my noble friend on this point. Of course, I recognise the good intention underlying the amendment—to allow users to respond accordingly when the subjects do not want to see all their data, but only some of the data. But we are still not altogether convinced about how much benefit it will be to users and how much benefit it will be to subjects. We would at present hesitate to add this complicating factor into the subject access provisions unless it would be of some real use to someone. I would ask my noble friend to agree to give us time to take further soundings on this point, because at the moment we are not convinced that it is not a useless complication of the Bill.

Lord Mottistone

My Lords, I fully understand what my noble and learned friend has said. As I see it, the beneficiary from this will be the data subject, which, as has been said by many, including most recently the noble Lord, Lord Avebury, is really the raison d'être for the Bill. It is the data subject who perhaps would be able to save himself a bit of cash, if nothing else, in being able to select what he got, which was what he actually needed. I leave that thought with my noble and learned friend, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.50 p.m.

The Lord Chancellor moved Amendment No. 53:

Page 17, line 32, at end insert— ("and where any of the information referred to in paragraph (b) above is expressed in terms which are not intelligible without explanation the information shall be accompanied by an explanation of those terms").

The noble and learned Lord said: My Lords, this is a Government amendment which I rise to move. It arises out of a discussion in Committee in which the noble Viscount, Lord Craigavon, took part. He moved an amendment to Clause 21 which would have required data users to supply information: in plain English where the meaning or significance of the information was not by itself apparent". I think it was the noble Lord, Lord Mishcon, who made a rather similar point on one of his own amendments.

At the time we felt that the clause as drafted achieved the necessary effect by attaching the subject's right to the information constituting the data. In any case, I seem to recall that there were certain other difficulties one way or another against both the amendments. But since then, as we have promised, we have considered the matter.

It seems to us that there was some strength in what the noble Viscount and the noble Lord said. The entitlement to access under Clause 21 is at the heart of the scheme established by the Bill. We must ensure that there can be no possibility that data users could supply information either in encoded form or in a form which only means something to the user himself and not, therefore, to the subject. Therefore, we do see some merit in making that clear beyond all possible doubt.

This amendment requires a data user to provide an explanation where the information he supplies is not, without that explanation, intelligible. We have used the word "intelligible" deliberately. We cannot go as far as the noble Viscount, Lord Craigavon, suggested and require people to translate jargon, because jargon—alas!—to one person is plain English to another. What matters is that the information is intelligible. At the moment this is the best we can do to meet the point made by the noble Lord, Lord Mishcon, and the noble Viscount, Lord Craigavon. I hope that the House will feel disposed to accept it. I beg to move.

Lord Elwyn-Jones

My Lords, we are quite happy to accept the amendment and we are grateful for the thought that has gone into following up the suggestion of my noble friend and the noble Viscount to whom the noble and learned Lord has referred.

Viscount Craigavon

My Lords, I should also like to thank the noble and learned Lord for his acceptance of the basic principle of this amendment. Perhaps I may press him slightly further because I discovered in the guidelines to the European Convention that under Point 13 there is something called "the individual participation principle", which covers this point. It says that an individual: … should have the right to"— and one of those rights is to have communicated to him data relating to him. Then it says: … in a form that is readily intelligible to him". I am not sure what the persuasive power of guidelines is, but I should have thought that the presumption would be that, unless there was some objection, it would be reasonable to include the word "readily" in this form of amendment. Perhaps the noble and learned Lord can give his opinion on that.

Lord Renton

My Lords, very strangely some words have crept into this amendment which should not be there. They are the words in paragraph (b) above". In effect, the amendment is an extension of paragraph (b) and, therefore, with respect, I say that those words should not be there.

The Lord Chancellor

My Lords, first, may I take on board what my noble friend Lord Renton has said and consider it in due course? I think that on my feet and at this hour I would be unwise to commit myself.

I am not sure that the word "readily" really adds much to "intelligible". It sounds a phrase which is capable of rather wide interpretations which might lead to inconsistencies in different cases. But I take note of what the noble Viscount says and will pass it on to those responsible for the draftsmanship. At present I am not very attracted by it; but for the present at any rate I hope that the amendment will be accepted in its existing form.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 54: Page 17, line 34, leave out ("as aforesaid") and insert ("under subsection (1) above").

The noble and learned Lord said: My Lords, I would take this, if I may, with Amendment No. 55. We have already approved one amendment aimed at clarifying exactly the information that a data subject is entitled to receive under Clause 21. These two amendments seek to make further minor improvements to these provisions. Clause 21(1) entitles an individual both to know whether data are held about him, under subsection (1)(a), and to a copy of the information constituting the data held about him, under subsection (1) (b). Subsection (2) then goes on to provide that a user need not give any information except in response to a request in writing and on payment of a fee. The first amendment eliminates all possible doubt that subsection (2) refers to any information, whether under (a) or (b). It avoids all possible argument that the entitlement under (a) existed regardless of whether a request was submitted in writing and a fee paid. I rather doubt whether that argument could have been sustained, but it seemed right to eliminate any doubt about it.

The second amendment addresses a more substantive point. It was brought home to us, as we looked at Clause 21 in the light of the Committee debate, that subsections (1) and (2), as drafted, offered a loophole. A data subject, in seeking access to data, might well phrase his request in such terms as, "Do you hold any data about me?". If that were the request, an unscrupulous user might interpret it as a request to be informed merely of whether data were held about a subject under subsection (1)(a) and not for any information under (1)(b). He might therefore reply, "Yes, I do hold data on you", pocket the fee, and insist on another fee if the data subject subsequently asked for access to that data.

The amendment therefore makes it clear that a single request, and therefore a single fee, is sufficient to obtain information under (a) and (b) of subsection (1); and it also makes sure that whether a data subject asks, "What data do you hold on me?", or, "Do you hold any data on me?", in either case he will be entitled to a copy of the information constituting the data. We therefore present these amendments as a further clarification, and I commend them to the House. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 55: Page 17, line 36, at end insert ("; but a request for information under both paragraphs of that subsection shall be treated as a single request and a request for information under paragraph (a) shall, in the absence of any indication to the contrary, be treated as extending also to information under paragraph (b).").

The noble and learned Lord said: My Lords, this amendment is consequential. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 56 and 57 not moved.]

The Lord Chancellor moved Amendment No. 58: Page 18, line 22, leave out ("twenty-eight") and insert ("forty").

The noble and learned Lord said: My Lords, the House will remember our little discussion in Committee when the drafted phrase "twenty-eight days" came under criticism from my noble friend Lord Mottistone. He suggested 60, and I thought 60 was too long but agreed that 28 might be too short. We think that 40 is about right. Therefore, I beg to move.

Lord Mottistone

My Lords, I should like to thank my noble and learned friend for accommodating us in this respect and, indeed, for arriving at exactly the same figure as we did eventually.

On Question, amendment agreed to.

Lord Elystan-Morgan moved Amendment No. 59: Page 18, line 28, leave out ("except that it may take account") and insert ("together with an indication").

The noble Lord said: I think it would be convenient, my Lords, to discuss Amendment No. 60 at the same time. The effect of these amendments is to make sure—if the certainty does not already exist in the Bill as drafted—that the data subject gets all the relevant data and that there could be no attempt to launder or sanitise any of the transcriptions of the hieroglyphic content of the data which would exist at that stage in hieroglyphic form. If the Minister can show that that would not be possible under the Bill as drafted, we should certainly not seek to press the amendment.

The Lord Chancellor

My Lords, the amendment is aimed at a provision in the Bill that is designed to take account of the special circumstances in which computers are used for processing personal data, and we had some explanation of that from my noble friend Lord Mottistone in Committee. We must be careful here. The object of these provisions is to give access to the data subject, but we must not disregard the needs of the computer user and legislate in a way which places unrealistic burdens on him.

When a data user receives a request for data access, he is required to supply the information he holds at the time he receives that request, but there is one caveat to that. The user cannot be expected to deal with the request absolutely immediately because of the process by which data users deal with their material. They deal with requests according to a method of operation, and we must therefore provide a mechanism whereby the data user, on receiving an access request, does not have to drop everything at once to deal with it but can go on with his normal operations until a convenient point is reached for processing the request.

In doing that we must also make sure—and this is where the noble Lord, Lord Elystan-Morgan, is on to a good point—that the user cannot abuse the access arrangement by changing the data supplied to the subject in such a way that any embarrassing or incriminating contents of the files are deleted. That is what Clause 21(7) is about; it allows a subject access request to be received and dealt with at a convenient point, while in the period between receipt and processing normal data processing by the user continues. In those circumstances, the user can provide the data subject with the data about him which takes account of changes made in the interests of keeping the data accurate and up-to-date in accordance with the user's normal operations.

The changes proposed in the amendment would alter that. They would require the user to supply the subject with the data held at the time when the request is received, together with changes to the data made in the period between receipt and supplying the information. For a moment we must consider the implications for the user of doing that. He would be faced with Hobson's choice; he would either have to stop all other operations immediately on receipt of a request for access and deal with it immediately, before any changes could be made, or, alternatively, he would have to keep a record of every change he made so that when he came to process the access request he could, as it were, subtract the changes made since the request was received from the data as he now found it, and so supply it as it was, together with the changes subsequently made. In practice either of those courses would place an intolerable burden on users.

What is suggested does little I feel to enhance the protection for a data subject. Under the Bill as drafted, only changes made in the normal course of the user's operations can be made between the receipt of the request and supply of the information; so the subject will not suffer from that. Clause 21(7) has therefore been very carefully designed to steer a course that ensures that subjects will get what they are after in terms of access, but will not involve the user in highly expensive interference in his normal operations.

I cannot say that I have said everything which would satisfy noble Lords opposite, but I hope that I have explained the policy in such a way as to give them reasonable satisfaction.

Lord Elwyn-Jones

My Lords, we are most grateful to the noble and learned Lord for that highly complex statement, which we shall consider in due course, perhaps at an earlier hour of the day. It is likely that we shall approve of it. But in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 60 not moved.]

10.7 p.m.

The Lord Chancellor moved Amendment No. 61: Page 18, line 40, at end insert ("whether because of the frequency with which the applicant has made requests to the data user under those provisions or for any other reason").

The noble and learned Lord said: My Lords, this amendment arises from an amendment moved in Committee by my noble friend Lord Mottistone, which would have removed from a data user the requirement to comply with a request for access to the information held about him if that request, by reason of its frequency or nature, was frivolous, abusive, vexatious, or malicious. I resisted that proposal on the ground that the terms employed were not easy for the courts to construe, and on the basis that Clause 21(8) provided the court with an adequate opportunity to consider more broadly whether access was reasonable in the case in point. But there arose in debate some discussion as to the possibility of frequency and vexatiousness being dealt with separately in the context of applications for subject access, and I agreed to consider further whether the provision in Clause 21(8) was adequate to allow the court to consider this aspect.

There does not appear to be any way in which the subject access right could reasonably be limited by the consideration of vexatiousness. The mere fact that an applicant for access may be ill-disposed towards the user is not necessarily relevant to the question of whether access should be granted, and it would certainly be wrong to attempt to restrict access merely because an applicant was ill-disposed. If one tried to do that, it would seriously undermine the rights conveyed by Part III of the Bill.

But vexatiousness can be made apparent by the very frequency with which requests for access are made. Those of us who have had to deal with vexatious litigants in one form or another will, I believe, recognise the truth of that. Clause 21(8) already absolves the court from granting access if it considers in the circumstances that it would be unreasonable. The amendment serves to remind the court that among the factors which might render such a request unreasonable is that of very frequent requests for access.

In determining reasonableness in this context therefore the court will be likely to consider, as the registrar is invited to consider in the interpretation of the seventh principle—see for instance, paragraph 5(2) of Part II of Schedule 1—whether the data are of a kind likely to alter frequently, and whether the information of which they consist is likely to be of such significance to the data user concerned that very regular access might be desirable.

This amendment is a marker put down for the courts to consider this aspect. It in no way requires the courts to decide against very frequent access, nor inhibits them from considering other factors. I think that I have said enough to explain my purpose, which is to make to my noble friend such concessions as I think it is proper to do in relation to the rights of the data subject. Therefore I beg to move.

Lord Mottistone

My Lords, I am once again grateful to my noble and learned friend. It was because of this amendment that I withdrew Amendments Nos. 56 and 57. Amendment No. 56 may pop up again for consideration in another place but that need not bother your Lordships now. I am grateful and very satisfied with what my noble and learned friend has done.

Lord Renton

My Lords, I hope that I shall not be considered frivolous at this late hour but, strictly speaking, if we use the words "for any other reason", we do not need to state reasons at all. It really means "for any reason". But one accepts the intention of my noble and learned friend's amendment.

Lord Elwyn-Jones

My Lords, for what it may be worth, I notice that in Section 1(1) of the Supreme Court of Judicature (Amendment) Act 1959 there is added to the words, satisfied that any person has habitually and persistently the words and without any reasonable ground instituted vexatiously legal proceedings". I do not know whether the addition of those words would be of any further assistance in this matter.

The Lord Chancellor

My Lords, I am grateful to the noble and learned Lord and to my noble friend for pointing out possible matters which will both be considered. The real point is that subsection (8) of Clause 21 already gives the courts a fairly broad discretion. In Committee, I was quite well satisfied with the discretion they are given. We thought that as frequency was a factor which recurs again and again in frivolous or vexatious applications, we could draw the attention of the court to frequency as a special consideration that they might care to take into account. I do not think I can take it further than that this evening.

On Question, amendment agreed to.

Lord Denham

My Lords, I think that this is probably a convenient moment to break for the night. I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at thirteen minutes past ten o'clock.