Lords Sitting of 15 March 1983

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Rochester.

£1 Commemorative Coins
Lord Gainford: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many special commemorative £1 coins are to be minted to mark the introduction of the new metallic pound.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Trefgarne): My Lords, three types of commemorative £1 coins are to be minted to mark the introduction of the new metallic pound: there will be a silver proof piedforte with a limit of 10,000 pieces; there will be a sterling silver proof version of the same diameter and weight as the circulation piece with a limit of 50,000 pieces; and there will be a base metal proof version included in sets of other United Kindom coins with a limit of 125,000 sets.
Lord Gainford: My Lords, I thank my noble friend the Minister for that interesting Answer. Can he please tell me whether there is any estimation of what value will be placed on these coins by future coin collectors? Is there any risk of the coins being confused with other coins already in circulation? From the consideration of the value of money as it is at the moment, is there any danger now of the "quid" becoming a "bob"?
Lord Trefgarne: My Lords, I hope that the coins will appreciate in value on the collectors' market after they have been issued, but I am referring of course to these commemorative issues. As to the other point that my noble friend makes, I should tell your Lordships that I have a pound in my pocket. There it is, and I hope it will not be confused with anything.
Lord Leatherland: My Lords, would the Minister make it possible for these coins to be distributed to Members of this House on the basis of one of each specimen to every Member, so that we may pronounce our opinion upon them?
Lord Trefgarne: My Lords, if the noble Lord likes to send me his order with his cheque I shall be happy to see that he gets one.

Schools: Religious and Moral Education
2.38 p.m.
Lord Sandford: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many schools omit religious and moral education from the syllabus for some or all of the children attending them.
The Earl of Swinton: My Lords, the Government do not collect detailed information about the curriculum provided in individual schools, but we have made it clear that we expect local education authorities, governing bodies and schools to live up to their statutory responsibilities for the provision of religious education.
Lord Sandford: My Lords, I thank my noble friend for that reply. May I ask what is the purpose of having Her Majesty's Inspectorate of Schools if they are not able to keep his right honourable friend supplied with important information of this kind?
The Earl of Swinton: My Lords, Her Majesty's Inspectorate of Schools are extremely busy. I think that there are some 25,000 schools—or is it 250,000?—I shall have to write to my noble friend regarding that figure. The Inspectors gets round on average to each school about every 100 years, so it would take them an awful long time to find out what is happening.
The Lord Bishop of Rochester: My Lords, in the light of the requirement on every local authority to produce an agreed syllabus for religious education, may I ask the Minister what encouragement and what additional resources are the Government giving to the authorities to implement such syllabuses throughout the whole of the maintained sector of education?
The Earl of Swinton: My Lords, I can tell the right reverend Prelate that there is no such grant for producing a new syllabus, but many authorities are doing it at this very time, and I think a number of authorities are engaged in producing new agreed syllabuses.
Lord Blyton: My Lords, is the Minister aware that when I was chairman of an education committee my biggest difficulty was to get the various denominations to agree on an agreed syllabus for the schools on religion? It is very difficult for education committees with the different denominations to get agreement among them.
The Earl of Swinton: My Lords, I am delighted to say that I found myself in the same position as the noble Lord, Lord Blyton, in that I also was involved in getting an agreed syllabus when I was a member of an education committee. It was a long and complicated task. But I understand that things are a bit easier these days, and it is something which is not too difficult to obtain now.
Lord Alexander of Potterhill: My Lords, as every school in England and Wales provided religious instruction before the passing of the 1944 Education Act, is it possible that compulsion may be negative rather than positive?
The Earl of Swinton: My Lords, I suppose that that could be the case. I should like to say that every school in England and Wales does provide religious education. On the other hand, the Government very much hope that they will.
Lord Brockway: My Lords, have the Government considered the report of the Committee of Moral Education of which a Roman Catholic bishop is the chairman? Might not this be the solution in view of the many different religions now represented in schools, and even some who have no religion?
The Earl of Swinton: My Lords, the Government consider that moral education is an essential constituent of the school curriculum. Perhaps I might be permitted to quote from the school curriculum document which says:
"Moral education in schools seeks to promote integrity, considerate behaviour and the pupil's understanding of the relationship between action and beliefs … Awareness of moral values is encouraged by appropriate and well-planned assemblies, as well as by good pastoral care. The school needs to make explicit to parents, pupils and the school community its aims in moral education; and the head teacher and his staff need to keep curricular, pastoral and other provision under review so as to ensure that these aims are translated into effective practice."
I do not think there is too much difference between the Churches and others on what constitutes moral education.
Lord Nugent of Guildford: My Lords, is my noble friend aware that the value of religious education in the schools depends primarily on the individual teacher, that it is the spark of Christian love in the teacher which touches the children and makes the education worthwhile? Is he satisfied that the teacher training for religious education is adequate to meet the need?
The Earl of Swinton: I am grateful to my noble friend for making that point, my Lords. I think that perhaps we should be careful when using the word "Christian" in this context; it is not in the 1944 Act. "Religious education" is, but "Christian education" specifically is not. I would say that what my noble friend says is obviously very true: that the example of a teacher's behaviour, particularly applying to moral perhaps rather more than religious education, is most important. As for training, I understand that last October there were about 45 newly-trained religious education teachers without posts, which shows that if there are vacancies they can be filled by appropriately qualified teachers.
Lord Glenamara: My Lords, is the Minister aware that what he said about the 1944 Act may mislead a great many people? Is he aware that when the Act was passed it was certainly the intention of Parliament that it should refer to Christian teaching? While we are all in favour of moral teaching in the schools, may I ask whether he accepts that it surely is the birthright of children in this country to be taught about the Christian story? Does he agree that that is not being done in a great many schools, contrary to the law? What are the Government going to do about that?
The Earl of Swinton: I am no lawyer, my Lords, so I think it would be best if I read from the 1944 Act. Section 26 refers to religious instruction and says:
"religious instruction given to any pupils in attendance at a county school in conformity with the requirements of subsection (2) … shall be given in accordance with an agreed syllabus adopted for the school or for those pupils and shall not include any catechism or formulary which is distinctive of any particular religious denomination".
As I read that—I am a committed Christian and I am proud to stand up and be counted—I do not see the word "Christian". I think that is the whole balance of the argument; we have many ethnic minorities in this country now, many of whom are devout Moslems or have various other religions. That is one of the complications, and it is something that has to be faced up to.
Lord Glenamara: Of course there are ethnic minorities, my Lords, and provision must be made for them, and I agree that they are in large numbers, but may I ask the noble Earl whether he agrees that there should be Christian teaching in our schools? Would he further agree that that is not so in a great many schools? What do the Government propose to do about that?
Viscount Eccles: My Lords, further to that supplementary from the noble Lord, Lord Glenamara—and while I agree with him that when the Act was passed we all thought of Christian education—may I ask my noble friend to say what happens when there is no teacher on the staff who feels competent to teach Christian education? Is the law then allowed to lapse?
The Earl of Swinton: My Lords, I think we shall get very involved if I try to answer two questions at once. To answer my noble friend Lord Eccles, I was not here in 1944 and I was not responsible for the wording of the Act. Whatever the spirit of the Act—we have had this argument many times in relation to many measures in your Lordships' House when certain words are not included in an Act; the statute can be interpreted only in the way it is worded—I personally would love to see Christian education taught in every school in the country, but whether or not that is practicable I do not know. Of course, the choice is open to many parents to send their children to an aided school, where they can get the teaching of their particular denomination.
Lord Sandford: My Lords, does my noble friend think it is satisfactory for him to say that he hopes religious education will be taught in all our schools, but not to be in a position to tell the House the answer to my quite clear Question as to the number of schools in which religious education is not being taught? Does he agree that, whereas head teachers have a wide discretion as to what they teach and how they teach it in relation to all other subjects, in respect of religious education Parliament has expressed the will that it should be taught to all children in all schools for the whole of their school life, primarily according to agreed syllabuses which are certainly based on the Christian faith, but also in respect of other denominations and other faiths by withdrawal classes? Is it not really necessary for my noble friend, his right honour

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able friend and the local education authorities to bestir themselves and see that the will of Parliament is properly complied with?
The Earl of Swinton: My Lords, there seems to be an awful misunderstanding about what the Act actually says. It does not say that all children in every school should be taught religious education. It says that religious education shall be taught in every school, and it does not specify the amount of hours or number of children who will be taught it. It is easy to ask me why I cannot produce the figures. Somebody could get up next week and ask me how many schools in the country are teaching German, French, Spanish or whatever; we should need an army of civil servants going round every school finding out these very detailed facts.
Lord Nugent of Guildford: Nevertheless, my Lords, is my noble friend aware that it does just happen that religious education is the only specific item of education referred to in the Act?
The Earl of Swinton: That is a very fair question, my Lords.
Lord Alexander of Potterhill: My Lords, before the passing of the Education Act 1944 religious education was given in every school in England and Wales. If the names of the schools where religious education is not given were reported to the Minister, then quite clearly action could be taken; but in the absence of the names I think it would be unsound to assume that the facts were necessarily valid.
The Earl of Swinton: My Lords, I am very grateful to the noble Lord, Lord Alexander of Potterhill, for saying that, which is of course true. I think that what my noble friend Lord Sandford is saying is that not every child in every school is being given religious education, but that is really not the point. It is very difficult to prove or disprove whether religious education is playing some part in the curriculum. There may not even be a class for religious education, but it may come into the teaching of morals, English, or history. It would be very difficult to prove in a court case that religious education was not given. However, if any noble Lord wishes to bring forward examples of schools where it is not taking place, I should be delighted to take them up with my right honourable friend.

Apprenticeship Training Grants
2.51 p.m.
Lord Molloy: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what proposals they have in regard to the apprenticeship system in view of the present economic situation.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers): My Lords, a major
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target of the Government's new training initiative is to reform the existing apprenticeship arrangements by removing unnecessary restrictions and by substituting agreed standards of competence. The Government have made considerable funds available to support the training of first year and redundant apprentices, but it is primarily for employers to identify and to take action to meet their own long-term skill training needs.
Lord Molloy: My Lords, would not the noble Earl the Minister agree that it is a very grim situation where we have to refer to redundant apprentices? Would he not agree that we are approaching the most barren of balances? Skilled craftsmen and skilled technicians are losing their jobs, and, as the noble Earl said, would-be apprentices are redundant before they even start work. Have the Government any plans in mind to try to arrest such a situation in the future?
Earl Ferrers: My Lords, I quite agree with the noble Lord that it is a very depressing state of affairs where apprentices are made redundant; but in a recession many very unpleasant things happen, of which that is one. The noble Lord asked what are the Government going to do. We are providing training grants relating to young people of £1,850 for any employer who takes on an unemployed person and trains him. That same grant is available to employers who normally take on apprentices, provided that they take on three additional unemployed young people for every two people whom they have as apprentices. In that case both the additional three and the two whom they normally take on will be reckonable for payment of the grant.
Lord Molloy: My Lords, may I express my gratitude for the detailed information that the noble Earl has given the House? May I ask whether he would be prepared to consider that information of the kind that he has given to the House be made available as widely as possible, including to both sides of industry, so that on that basis regional councils might be established covering industries as they vary from one part of the country to another? If that were done, then when the Government bring into force what the noble Earl enunciated a moment ago, people will be ready to take full advantage of it.
Earl Ferrers: My Lords, it is certainly our intention to try to make certain that as many people as possible know the facts. However, as I am sure the noble Lord will be aware, the whole of the youth training scheme is designed to guarantee a full year's vocational training to every 16-year-old school-leaver who cannot find a job. The scheme also aims to provide—though it does not guarantee—12 months of foundation training for 16-year-olds who are already in employment, and for unemployed 17-year-olds. That is a very considerable step, and about £1,000 million is going towards it.
Lord Cledwyn of Penrhos: My Lords, can the noble Earl say whether any part of the figure that he mentioned is available to apprenticeship schemes as well as to youth training schemes? It is important to distinguish—is it not?—between the two. Would not

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the noble Earl agree that whereas it is no doubt important to have the youth training scheme for 12 months, an apprenticeship scheme for three or five years is infinitely more important in terms of the country's future?
Earl Ferrers: My Lords, there are arrangements for training which are carried out via the industrial training boards, and the Manpower Services Commission makes grants to them. But the point that I should like to make perfectly clear to the noble Lord, Lord Cledwyn of Penrhos, is that where those employers who normally take on apprentices take on three additional unemployed people, they will receive the £1,850 grant for the additional three, as well as for the existing two, who without the three would not have been reckonable for grant purposes.
Lord Cledwyn of Penrhos: My Lords, are they young people who undertake youth training schemes, or are they apprentices? In regard to the group of three and the group of two, can the noble Earl distinguish which are apprentices and which come under the youth training scheme?
Earl Ferrers: My Lords, the two will be apprentices, the three will be from the ranks of unemployed; but both groups will be reckonable for the same grant.
Lord Kilmarnock: My Lords, will the noble Earl agree that the four- and five-year fixed term time-served apprenticeships, to which the noble Lord, Lord Cledwyn of Penrhos, referred, do not necessarily form the right basis for the skill mixture that will be required in the future?
Earl Ferrers: My Lords, I am very grateful for that supplementary question, since the whole purpose of this particular aid is to try to blur the distinction between those who were unemployed and those who are apprentices. It is part of the Government's desire to try to help the training of young people, and I would only re-emphasise the fact that the particular grant to which I referred relates only to the first year of training.

International Monetary System: Role of Gold
2.56 p.m.
Lord Boothby: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what role, if any, they expect gold to play in the new international monetary system now under consideration by the International Monetary Fund and the central banks.
Lord Trefgarne: My Lords, I understand that neither the fund, nor central banks, have any plans to restore gold to a formal position in the international monetary system.
Lord Boothby: My Lords, arising from that Answer, may I ask the noble Lord whether he is aware that for a century prior to 1914—during which period the French Revolution and the Napoleonic Wars took place—there was no inflation and trade flowed freely across frontiers, entirely due to the fact that gold was the basis of every major currency in Europe? Do the Government realise that the whole world is now suffering from a desperate shortage of liquid reserves, and that gold bullion is one of those reserves and has been for over a thousand years? Are the Government also aware that when the Americans demonitised the dollar, and with it rendered every currency in the world intrinsically valueless, they plunged us all into a deep economic recession, from which we have not yet recovered, and do not look like doing so?
Finally, may I ask the noble Lord whether Her Majesty's Government will now persuade the Americans, and themselves, that the only hope of escape is by devising a viable international monetary system, with gold as the basis—a gold exchange standard, based on gold at the right price? Will the Government not realise that unless something is done to clear up the monetary situation we shall not get out of the present mess?
Lord Trefgarne: My Lords, I am not sure that I wholly agree with the noble Lord. Certainly there is some room for improvement within the international monetary system, but I fancy that a better way forward would be towards the development of the special drawing right system, perhaps tying the special drawing right to a basket of international currencies. There are real, genuine difficulties in the way of bringing gold back to the role that the noble Lord suggests, not least the difficulty of reaching agreement as to the price at which that should be, and not least the point that I am not certain that there is sufficient gold in the world for the purpose.
Lord Blyton: My Lords, is the Minister aware that when we were on the gold standard, having been put on it by the late Winston Churchill, we had nothing but unemployment and poverty, right from 1926 until 1931? I hope, for God's sake, that, as bad as our position is today, we are not going back to that situation.
Lord Trefgarne: My Lords, I am not sure that the noble Lord is right in his cause-and-effect analysis. The way forward, as we see it, is for the principal trading nations of the world to follow prudent and sound economic policies.
Lord O'Brien of Lothbury: My Lords, would the noble Lord not agree that whatever international monetary system may eventually replace the present régime of floating rates, it must be based on the universally accepted and highly liquid store of value? Furthermore, would he agree that no national currency is likely to fulfil that role satisfactorily? Would he further agree that at the moment there is no sign that the special drawing right is filling itself out to fulfil that role?
Lord Trefgarne: My Lords, I agree that the way forward is by the creation of a store of value, as the

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noble Lord said, but I am sorry to say that I also have to agree that the special drawing right is not yet in a position to fulfil that role. We would be happy for it to become stronger than it is, at least, and perhaps that is why the way forward is, as I described to the noble Lord, Lord Boothby, by tying the special drawing right to a basket of international currencies.
Lord Shinwell: My Lords, is the noble Lord aware that I regret very much that he failed to agree with my noble friend Lord Boothby? After long years of propaganda in the other place and in your Lordships' House, is it not time that there was agreement with him?
Lord Trefgarne: My Lords, I think that the noble Lord, Lord Boothby, certainly deserves an "A" for effort.
Lord Stewart of Fulham: My Lords, am I not right in supposing that among the chief suppliers of gold today are the Soviet Union and the Republic of South Africa? Would the noble Lord agree that an arrangement which increased the influence of those two countries in the world would not, on the whole, be beneficial?
Lord Trefgarne: My Lords, there is undoubtedly some strength in what the noble Lord says. South African gold supplies are already very much integrated into the world monetary system, but that is certainly not the case as far as the Soviet Union is concerned, who are, indeed, major gold producers.
Lord Bruce of Donington: My Lords, would the noble Lord agree that far more important than the role of gold in any future international monetary system is the role of the commercial and central banks, which needs to be more carefully examined in the future—bearing in mind that over the past few years many of them have behaved with the grossest irresponsibility?
Lord Trefgarne: My Lords, I do not think I agree with that. I think that if one looks at the difficulties in Latin America, for example, which have occurred recently—and I am thinking of Mexico and Brazil—certainly the international monetary community (if that is the right phrase) have done a splendid job in preventing what could have been very serious difficulties in that part of the world.
Lord Boothby: My Lords, is not the answer to the noble Lord, Lord Blyton, that the misery of the 1930s was caused simply because we went back to the gold standard at the wrong parity of exchange, as was admitted by the then Chancellor of the Exchequer, Mr. Winston Churchill?
Lord Trefgarne: My Lords, the observation of the noble Lord, Lord Boothby, if I may say so, is a lesson of how wrong it is to try to prepare our arrangements for this year based on the experiences of, perhaps, 50 years ago.

Business
Lord Denham: My Lords, it may be for the convenience of the House if I announce that dinners will be available at the usual time this evening. The Report stage of the Data Protection Bill will be adjourned at approximately 7.30 p.m. for approximately one hour, and during this adjournment the Second Reading of the British Fishing Boats Bill will be taken.

Copyright (Amendment) (No. 2)Bill [H.L.]
Lord Willis: My Lords, I beg leave to introduce a Bill to amend Section 1 of the Copyright Act 1956 so as to extend the definition of authorisation of infringement of copyright. I beg to move that this Bill be now read a first time.
On Question, Bill read a first time; and to be printed.

Dartford Tunnel Bill [H.L.]
3.7 p.m.
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read a second time.—(Lord Aberdare.)
On Question, Bill read a second time and committed to a Select Committee.
Lord Tordoff Lord Tordoff rose to move, That it be an Instruction to the Select Committee to whom the Bill is committed that they should carefully consider whether the power of the councils to charge tolls for the use of the tunnels should not cease on completion of the M.25 motorway of which they will be an integral part.
The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. In a Written Answer published yesterday from the noble Lord, Lord Lucas of Chilworth, to my noble friend Lord Evans of Claughton, the following words occur:
"Successive Governments have followed the principle that tolls should be charged on estuarial crossings which are exceptionally expensive to construct, and which offer exceptional advantages to their users, as compared with alternative routes.".
The Written Answer concludes with the words:
"The Government are not considering the abolition of tolls".
My Lords, I should like your Lordships to dwell on the words "offer exceptional advantages to their users, as compared with alternative routes", because I intend to return to them later. I make no secret that we on these Benches take a different view on the subject of estuarial crossings and tolls from that taken by the Government. In saying that, I want to make it clear that that is not what I am here to talk about today. The general matter of tolls on estuarial crossings is something which will have to wait for another day. I understand the position of respective Governments; I merely say that ours is different on the major principle.
Today's Motion refers specifically to an Instruction to be put to the Select Committee relating to the

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Dartford Tunnel, and specifically to the time when that tunnel becomes an integral part of the M.25 motorway. I do not have to tell your Lordships that the M.25 is an important strategic link in the movement of goods and people between the North of England and the Channel ports and vice versa and a means of reducing congestion on the roads of Greater London.
I should like to start with one or two general points on the financing of the Dartford Tunnel. In another part of the Written Answer which Lord Lucas was good enough to supply to my noble friend, he said:
"Tolls are limited by statute to levels which will cover the full costs of the structure, including operating costs and interest charges, over a specified period.".
I would suggest that experience tells us that the tolls are falling short of achieving that end. It is true that the Dartford Tunnel produces an operating surplus and that after the payment of operating costs and maintenance costs the operating surplus in 1977–78 was £1·7 million and that in the last year, 1980–81, it was £3·73 million. While it may be covering its operating costs, it is not reducing the capital debt charges. These are growing continuously. They have grown from £5·4 million in 1978, through the opening of the new part of the tunnel, to a level of £62·7 million in 1982. Interest charges are now running at an annual rate of around £8 million. The ratepayers of Kent and Essex are saddled with these charges, and there is no chance, in my submission, of these being paid off at any time in the foreseeable future.
It was against this background that the Essex County Council persuaded Kent County Council to join in a delegation to see Mrs. Lynda Chalker to invite the Department of Transport to take over the charges of the tunnel. This was turned down by the Department of Transport for the not surprising reason that the Treasury would not wear it. Kent then insisted on going ahead with this Bill—somewhat against the wishes of the Essex County Council, I understand—on the threat that, if it was not a joint Bill, Kent would promote it and would precept Essex, anyway.
One notable point about the Bill is that, unlike the earlier Bill, no time limit is written into it. It is true that in Clause 33, page 23, line 29, we have the following words:
"So soon as the excess sum and all moneys borrowed by the Councils … have been repaid together with interest thereon and the maintenance fund and the reserve fund … are fully funded the power to demand, take and recover tolls … shall cease".
But that will not happen at the present rate of tolls. It is true that doubling or trebling of tolls could perhaps begin to make inroads into these capital charges. That might be feasible were there no alternative routes for the users of the road. But in practice, as we know, there are several options open to users of the tunnel. They can go through the Blackwall Tunnel. They can use the Central London bridges, but neither of these is a sensible alternative if we really want to reduce the congestion on London's roads. Every time that I travel into London in the morning by car and listen to the local radio I hear that a lorry has broken down in the Blackwall Tunnel. Although I have never been through the Blackwall Tunnel myself I feel that I know it intimately. It is clearly a black spot in the London
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network of roads. The Dartford Tunnel is likely to offer considerable relief to that.
This would be bad enough without the advent of the M.25. What I am suggesting to your Lordships this afternoon is that the M.25 brings a new dimension to the problem. Its purpose, as we know, is to provide an efficient ring road round Greater London, to divert heavy traffic from the populated areas and, as I said earlier, to provide an easy route from the manufacturing heartlands of our country to the Channel ports and the return. It is also an integral part of the whole strategy of the development of East London. When it is functioning it is expected that about 10 per cent. to 15 per cent. of the traffic at present using the A.2/A.1/M.1 corridor will be diverted on to the M.25 and that as much as 25 per cent. of the heavy goods traffic on those routes will use the M.25.
I suggest that if these tolls continue, and particularly if they are increased, this will be a significant disencentive to people using that route. Instead of using that route, people will continue to drive through places like Newham, Greenwich, Tower Hamlets and the whole of the East End development will be inhibited. It is also possible that people who are inhibited from using the Dartford Tunnel because of the tolls will divert westwards. It is slightly ironic that the crossing of the Thames on the westward side between Egham and Staines has been paid for by the Government as part of the construction of the M.25.
The problem of diverting traffic westward is that it will get into the already saturated conditions—or the conditions which are expected to be saturated—round Heathrow, with the consequent knock-on effect of Heathrow traffic being diverted back on to the local roads again. There is a considerable amount of traffic already using this area and this will be increased when the M.25 is opened on its western sector, even if for no other reason than the traffic moving between Heathrow and Gatwick.
I return to the quotation from the Written Answer of the noble Lord, Lord Lucas of Chilworth, which said,
"tolls should be charged on estuarial crossings … which offer exceptional advantages to their users".—[Official Report, 10/3/83; col. 419.]
I am suggesting that the exceptional advantages in the case of the Dartford Tunnel do not exist in the way in which they do in some of the remoter estuarial crossings. The distances over which vehicles have to divert to avoid paying tunnel tolls are much smaller and the disadvantages of allowing that to happen are very great.
A further consideration is one of safety. Already the traffic will have to funnel down from three lanes into two lanes to go to the tunnel. The standing committee of the Royal Automobile Club, the Automobile Association and the Royal Scottish Automobile Club—an organisation with which the noble Lord the Minister has some sympathy and of which he has knowledge—believes that the presence of toll booths can cause delays with queues building up at the toll booths, additional costs to the users and serious road safety implications. I think we should bear that in mind.
I put it to your Lordships that there is a substantial prima facie case here for the removal of tolls from the Dartford Tunnel when it is intergrated with the M.25. The M.25 is part of the strategic plan, not only for the South-East of England, not only for our capital city, but for the whole country as a gateway to Europe. I believe it is a national responsibility. I am not asking your Lordships to make a hasty decision this afternoon, but I am merely asking that your Lordships support a Motion instructing the Select Committee to consider this matter with due care. I hope that at this stage the Government will not oppose this Motion. I beg to move.
Moved, That it be an Instruction to the Select Committee to whom the Bill is committed that they should carefully consider whether the power of the councils to charge tolls for the use of the tunnels should not cease on completion of the M.25 motorway of which they will be an intergral part.—[Lord Tordoff.]
3.16 p.m.
Lord Irving of Dartford: My Lords, in speaking to the Instruction I want to say that I have lived with the problems related to the Dartford Tunnel for 30 years. In 1952 I joined the Dartford Borough Council and, with the exception of one year, I have remained a member ever since and for the majority of that time I was the Member for the constituency. The first thing I did was to campaign with others for the first Dartford Tunnel. I have increasingly been dismayed at the anomalous position that has been created and is to go on into the future. When the Minister of Transport, then Mr. Ernest Marbles, announced the sanctioning of the tunnel he said that he was sorry it would be a toll tunnel but that in 20 years it would be free as the tolls would go.
Before the first tunnel was completed, people like Sir Peter Kirk, who was then the Member for Gravesend, and I were campaigning for the second tunnel. Right from that moment traffic has never stopped increasing, and it will go on increasing. But here we are 20 years on, and far from being a free tunnel the debt outstanding now is £66 million. There is no prospect of the debt being liquidated until well into the next century and only then if there is a massive increase in tolls. The increase has been steep already—180 per cent. since 1976.
The facts are, as the noble Lord, Lord Tordoff, mentioned, that there is an operating cost of £2 million, an operating surplus of £3½ million, and a debt interest repayment of £8 million, which shows one why there is so much anxiety about the continuance of the tolls and the danger that the tolls will get ever steeper. Incidentally, these figures are based on an inflation rate of 5 per cent. and an interest rate of 9 per cent.
Initially the tunnel was a means of linking Essex and Kent, although right from the beginning it took on a wider significance. This was acknowledged by the European Investment Bank, which made a very large loan for the second tunnel at very generous rates of interest to assist the communications in this part of the world. It was already seen as being a means of reducing the congestion in London. Parallel to the construction
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of the tunnel there was to be an orbital road around London. It was first proposed in 1905 and was then put in the Bressey Report of 1935. It then became part of Abercrombie's London plan in 1944 but nothing was done for 20 years. As one knows, in this country the mention in a report, however important, is no guarantee of progress.
The M.25 and the A.282 (which is the Dartford Tunnel itself) form a continuous link from the A.13 to the M.20 at Swanley. The M.20 will be opened from the A.13 to the A.1 by the end of January 1984 and this will complete—this is the essence of our case—the important link from the Midlands to the Channel ports, a purpose-built road relieving many parts of London. I should remind your Lordships that the annual load going through London is 250 million tonnes, 92 per cent. of which goes by road. Of the 8,000 miles in London we have only 56 miles of dual carriageway and 22 miles of motorway. We have the worst roads of any major city in Europe, which is all the more reason why we should use the investment we have to bring out of London the traffic which would otherwise go there. We know from Continental experience that a number of people will avoid using toll roads because of the cost. This is happening and will continue to happen as far as the Dartford Tunnel is concerned.
Here in Britain we have set our faces against tolls on motorways, and yet we continue to maintain tolls on an essential part of the most important motorway in the country which has been given maximum priority by all Governments in recent times. Of course, in addition to discouraging some traffic from using it, the significance is that at peak periods there is very considerable congestion. This causes long delays and considerable increases in industrial costs, and brings endless frustration to the people who have to use it. Also, as I think the RAC and the AA have pointed out, it is a matter which has road safety implications.
Rather than taking the logical step of freeing the tunnels from tolls, the committee is having to spend more money on the establishment next year of additional booths to deal with the traffic which is going to come as a further result of the completion of the M.25. As I say, this measure will be overtaken very quickly by events, and those booths will still not be able to handle the whole traffic and to give the maximum relief from traffic coming from London. Can planning or common sense be worse served? I appeal to the Government to free the tunnels and let the traffic flow. The new multi-billion poundsworth of roll-on roll-off installation which is being established adjacent on Stone Marshes near to the tunnels will again add very considerably to the traffic.
Clause 23 is giving a number of local authorities like my own considerable cause for concern because it is diminishing their opportunity to be consulted, and in some places is extinguishing it altogether. If the Thurrock and Dartford Borough Councils have not got an interest in this, I do not know who has, and I hope that the Committee will look very carefully at that when they are dealing with the Bill. There are two ways of dealing with the matter. It has been suggested that a time limit could be placed in the Bill so that when the M.25 has been completed the tunnel's tolls should cease. The alternative is that the Bill could be

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withdrawn altogether to allow time for this action to be taken and, in the meantime, the automatic repealing of the operation of the 1972 Act could be postponed by ministerial order.
I want to make one final observation. The worst possible thing that could happen would be for this burden of debt to be placed on local authorities. It would be inequitable and unacceptable, and I hope that the Committee will look very carefully at this matter. Let us allow the road, the estuarial crossing of the M.25, to go ahead properly in relation to the new development. Let us get the maximum cost benefit from what has been a massive investment. I hope the Government will understand that it is in everyone's interest to allow this debt to be properly and centrally funded and not to be borne by the local authorities. In that way we shall get the maximum use of a road which is probably one of the finest in the country and which ought to be used to the maximum to relieve the traffic in London.
3.24 p.m.
Baroness Platt of Writtle: My Lords, in speaking in favour of the Dartford Tunnel Bill, I must declare my interest as vice-chairman of the Essex County Council and an Essex ratepayer. You Lordships will know that the Bill is jointly promoted by Kent and Essex County Councils to replace the Dartford Tunnel Act 1967. However, I am not a member of the Tunnel Joint Committee.
The Dartford Tunnel Bill, like all local legislation, is caught by the provisions of Section 262 of the Local Government Act 1972 and therefore expires at the end of 1984 and requires renewal. The original legislation was passed by Parliament on the basis that no part of the cost of running the tunnels would fall on the ratepayers of Kent and Essex; and that remains today a very important principle, on which the need for this new Bill especially rests.
The noble Lord, Lord Tordoff, is moving an Instruction to the Select Committee:
"that they should carefully consider whether the power of the councils to charge tolls for the use of the tunnels should not cease on completion of the M.25 motorway of which they will be an integral part."
That point of view will, I understand, also be put by the petitioners to the Select Committee, and so I do not intend to divide the House on that Instruction, as the Select Committee will have to consider the matter in any case. For many years the county councils have been making representations to successive Governments for financial assistance, both individually and as part of the consortium of local authorities responsible for tolled estuarial crossings—the Mersey, Tyne and Dartford tunnels and the Humber bridge. I have letters here in 1976, in March 1979 and in 1980, where successive Governments have always firmly adhered to the principle, and I quote—
"that the costs of expensive new river crossings like the Dartford Tunnel should be paid for by tolls. The common feature of such crossings is that they offer exceptional saving in both time and cost to those who use them and are very expensive to provide and maintain. The Government think it is right that those who benefit from them should contribute to their cost through tolls".
The Government's principle is that the costs should be paid for by the user rather than by the taxpayer. If the councils were not allowed to levy tolls but still
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retained responsibility for the tunnels, the result would be even more iniquitous, as the ratepayers of Kent and Essex would have to foot the bill for the Dartford Tunnel—an important part of the national road system which will be completed later during this decade. At the present time the ratepayers of Kent and Essex do not pay the cost of the tunnel as the interest is capitalised.
When considering promoting this Bill, and before doing so, Essex County Council decided to make yet one more approach to the Department of Transport to persuade them to take over the tunnels as an integral part of the M.25 to be completed in the next few years. After consultation, Kent decided to accompany us on a joint deputation, of which I was a member. However, the Under-Secretary of State for Transport, Mrs. Lynda Chalker, said that there was no hope of persuading the Treasury to accept responsibility for the tunnels, and consequently there was no question of the Government taking over the tunnels at the present time; and that we must promote the present Bill to allow us to levy tolls and prevent the burden falling on our ratepayers. The councils have a common law liability to keep the tunnels open and the loan debt stands at £62 million; so the power to levy tolls is vital.
The Dartford Tunnel Committee, in accepting the Government's principle, however reluctantly, therefore plan to levy tolls so that the revenue should be sufficient to cover the servicing and the ultimate repayment of the capital debt as well as the maintenance costs of the crossings. It is anticipated that all outstanding capital and interest should be paid off by 1998. This, the promoters believe, can be achieved with reasonable increases in the tolls around the level of inflation, as the traffic is expected at least to double by the late 1980s. It is then intended to set up reserve and maintenance funds so that as soon as possible after that the tunnels should become toll-free. The aim of the councils is therefore the earliest possible removal of the tolls, but at no cost to their ratepayers.
If the Select Committee in coming to their decision were to accept the Instruction proposed then, in fairness to the ratepayers of Essex and Kent, it would be essential for them to recommend also that the Government take responsibility for the costs of the tunnels and make a national decision as to whether or not to charge tolls on a part of the M.25 motorway. The promoters would welcome the abolition of tolls if the costs of the tunnels were to become the responsibility of the Government. But if that is not to be the case, the Instruction leads to the worst of all possible worlds for the councils. If the councils were no longer able to charge tolls, but still retained responsibilities for the tunnels, they would be in an impossible situation, with the costs of an integral part of a national motorway falling on the local ratepayers. I hope that, after carefully considering the matter, the Select Committee will decide to support the Bill as it stands.
3.31 p.m.
Lord Underhill: My Lords, I am certain that the House will appreciate the speech which we have just heard from the noble Baroness, Lady Platt, speaking as she does as a member of the Essex County Council, while my noble friend Lord Irving, supporting a

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contrary viewpoint, has local authority connections in Kent. I have a number of interests in this matter. First, there are my transport responsibilities; but, secondly, I happen to be one of the ratepayers of the noble Baroness, Lady Platt. I reside in Essex and I use the Dartford Tunnel whenever I go into Kent or to the Channel ports, and the new M.25 will be linking up with the M.11 not far from my home. Therefore, I know the benefit which the M.25 will bring to that side of the county and of London.
We are not just talking about a normal estuarial crossing. The M.25 is to be a major orbital motorway, and as has already been said when completed it will be a vital link with the Midlands and the North for traffic going through to the Channel ports. There is already a considerable amount of construction work taking place on the Essex side, and when the motorway is completed the tunnel will be part of it, as it goes right the way through.
Apart from this important link with the Midlands and the North, a major objective of the motorway is to divert traffic from London, especially the large number of heavy lorries which now go through the capital. Even lorries with business interests in London will find the M.25 of great benefit to them. As we know from the Armitage Report, the majority of vehicles going through London have business there. But the M.25 will still enable vehicles, particularly lorries, to use the orbital route until they have to come into London at whichever point is convenient to them. Tunnel usage is bound to increase and, obviously, delays due to toll collections must be avoided. It has been said that the Standing Committee representing the three private motorists' organisations and the freight haulage interests have opposed the provisions in the Bill.
I must make it clear that I can readily understand that Essex and Kent have to promote a Bill because there will otherwise be a vacuum unless the Government accept this as a national responsibility. We know that many people who use the Dartford Tunnel are not ratepayers of either Essex or Kent. The M.25 will greatly expand that number, and a considerable number of persons using the M.25 will have no interests, connections or associations with either Essex or Kent.
Your Lordships have already heard figures for the mounting debt and it may be argued by the Minister—I hope that it will not be argued—that the way out of this difficulty is to increase the toll charges. But one has to think of what will happen when freight haulage operators are faced with increased toll charges. There are other road developments under consideration, such as the Woodford-Barking relief road. I live in the next district to Woodford, so I know what will happen there. Also, the East London river crossing is under contemplation. If toll charges for the Dartford Tunnel are increased in order eventually to wipe out the debt—and it has been stressed that the debt is increasing each year—what will happen when these relief roads which are being contemplated in a very congested part of East London are completed? Instead of helping to relieve the traffic, motorists and lorries will tend to use those roads rather than use the Dartford Tunnel.
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This is an issue which can be helped by the Government. The Government could today assist the Select Committee. If not, I hope that this instruction will be given to the Select Committee. It is an Instruction to them to consider, and in considering the matter I am certain that they will bear in mind all the points that have been made in this debate. Then, if necessary, they can come forward with a proposal, which I hope will be that this should be a national responsibility—because the M.25 will be an important part of our national motorway system—and that the Government should take over the financial responsibility for the tunnel. That seems to be the logical conclusion. We can understand why the Bill has had to be promoted now, but the Government can greatly assist the Select Committee. If they do not, I hope that the Select Committee will tell the Government what should be the position.
I therefore support the Instruction.
3.37 p.m.
Baroness Phillips: My Lords, before the noble lord, Lord Aberdare, replies, may I just support my noble friends Lord Irving and Lord Underhill? Recently, I had the privilege of being driven over the beautiful Humber Bridge at six o'clock on a Wednesday evening, for which the toll charge was £1·50. I gather that the charge for freight traffic is £6·50. We were the only car passing either way over that vast bridge at six o'clock on a Wednesday evening. In other words, people were still using the long route rather than using this bridge which has been constructed for them. I suggest that this is exactly what will happen in the case of the tunnel which we are now discussing, if people can avoid paying the toll. Surely, the receipts were not even paying the wages of the people collecting the toll on the Humber Bridge. Our great roads, our great tunnels and our great bridges must be the responsibility of the nation.
3.38 p.m.
The Lord Bishop of Rochester: My Lords, I wonder whether I may be allowed to intervene very briefly before the Minister replies. Much has been said about the importance of the Dartford Tunnel to through traffic, and the noble Lord, Lord Tordoff, referred to the undesirability of such largely heavy traffic taking alternative routes through London. As a resident of Kent, I should like to say a brief word on behalf of those who live in Kent and Essex, because local traffic in this part of the world is also very heavy. There is a surprising number of people who live in Kent and work in Essex, and vice versa, and the daily toll which they are called upon to pay is a very heavy one for them to face.
Moreover, since the tunnel was opened, one alternative route from Kent to Essex—the ferry crossing at Gravesend—has been brought to an end for motor traffic. That is a loss not so much to the through traffic but certainly to much local traffic. Therefore, I hope very much that the Select Committee will be asked to look very carefully at this matter because I believe that it is of great importance to people in both counties as well as to the big firms that are sending traffic right across the country by this route.
3.40 p.m.
Lord Lucas of Chilworth: My lords, this is a Private Bill. All I can say to the noble Lord who suggested that the Government should postpone it is that it is not in the Government's remit to postpone the Bill. The noble Lord, Lord Underhill, recognised the necessity for the Bill. Without it, a vacuum will be caused in a year or two.
The Government are in favour of the Bill. In particular, we support Clause 22, which enables the two county councils to continue to levy tolls. The Government recognise that the question of tolls over estuarial crossings is one which keenly concerns your Lordships' House. Noble Lords have this afternoon given support to the arguments put forward by motoring and freight organisations for their version of tolls. It is a matter to which the Government have given thought over recent years. The question was examined most particularly in 1979. As a result of that review, the Government were quite convinced that the policy which had been adopted by successive Governments over many years was sound and should be maintained: the policy that expensive estuarial crossings which confer exceptional benefits on users should be financed by those who use them—not by the taxpayer or, necessarily, by the ratepayer.
The policy is reasonable. The provision and maintenance of this type of crossing over wide estuaries is certainly more costly than building roads on land or bridging narrow rivers. I went to Cardiff about three weeks ago and crossed the bridge at Cardiff. To be asked to pay 40 pence seemed to me to be a very small price for the tremendous savings in time and distance which that crossing achieves. All crossings offer savings in time and money. Surely the right reverend Prelate would agree that such a crossing, at 50 pence, will save an enormous amount of time for business people moving from Kent to Essex; and with the cost of motoring would certainly reflect a saving. The policy to which I have drawn attention has been repeatedly endorsed by Parliament in various enabling Acts under which crossings have been provided, and I can see no reason for change at this time.
May I turn to two points which have been made? The noble Lord, Lord Tordoff, referring to the rising debt. The debts were low in the early 1960s because the money to build the second tunnel had not then been borrowed. The bulk of the present interest charges relates to the second tunnel, which was built in 1967. The Kent and Essex county councils say that in a few years' time they will start to repay the debt and that they expect to repay it entirely by 1998, as my noble friend Lady Platt of Writtle reminded the House. There is no doubt that the present Government's financial policies, particularly with regard to the reduction in inflation and interest charges, will make that job a little easier.
The noble Lord, Lord Tordoff, mentioned the tunnel's capacity. Doubts have been raised as to whether the tunnel can cope with the traffic which will be brought by the M.25. It may be helpful at this stage if I outline what has been done and what is planned. The department have already agreed to provide a 100 per cent. grant to the Dartford Tunnel Joint Committee so that the approach roads which link the
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M.25 to the tunnel may be widened to three-lane carriageways in each direction. Work on the Essex side is nearing completion. Work on the Kent side, which is technically more difficult, will be started shortly. Together, this work will represent a Government investment of over £14 million. It may also be that the toll plaza will need to be enlarged, and that is being considered now. If there were a further grant towards this work, for which the joint committee have asked, it would add another £3 million to the amount which the department is paying towards this project.
Lord Somers: My Lords, I understand entirely the noble Lord's argument that expensive crossings such as this should be paid for by the user rather than by the ratepayer, but does that not also apply to motorways everywhere? They are not built for nothing. Should not a toll be charged for using motorways?
Lord Lucas of Chilworth: My Lords, whether or not a toll should be charged, the fact is that motorways have been thought to be part of the strategic network of roads and should therefore be provided by central Government and supported by local government. Where, however, an alternative is provided—either a tunnel or a bridge, which in every case has been asked for by the promoting companies—which would show an exceptional saving, albeit at an exceptional cost, it has been felt almost from the beginning by successive Governments that the taxpayer should not have to bear the cost, since he bears the cost of road construction, but that the bridge user should bear the cost. The money is taken from the road user by virtue of the toll. Therefore, if one tries to relate the two, the question which the noble Lord, Lord Somers, has asked is a little different.
I believe it was the noble Lord, Lord Irving of Dartford, who raised the question of congestion. I can say to him that in the event of congestion occurring there is already in the main building programme for 1986 onwards a major scheme to provide another river crossing in East London at Barking across to Plumstead and the A.2, or, alternatively, a major bridge fitting on to the south end of the extension through East London and the North Circular Road.
If I may turn to the Instruction moved by the noble Lord, Lord Tordoff, as he has clearly told the House that Instruction would require the Select Committee carefully to consider whether the power of the councils to charge tolls for the use of the tunnel should not cease on completion of the M.25. The noble Lord argues that the orbital road, the M.25, is part of the strategic network. I would certainly agree that the Dartford Tunnel provides the link in that orbital road. As the tunnel already existed when the orbital road was planned, it would have been foolish to provide another crossing. The Government, however, do not accept that the completion of the M.25 is a reason for discontinuing the present practice of charging tolls.
As I said yesterday afternoon in answer to the noble Lord, Lord Plant, the orbital road is due to be completed in 1986. The tunnel was promoted by the Kent and Essex county councils. The second one was built under powers conferred by Parliament under the 1967 Act. Since the need for a crossing and the form which it should take were proposed by the councils,

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the tunnel is and should remain the responsibility of the councils. It was promoted on the basis of charging tolls sufficient to cover the servicing and repayment of debt as well as the administration and upkeep of the tunnel. The cost of building the tunnel was freely incurred by the county councils, and it would be quite wrong for the Government to take over their debt of some £60 million, £6 million of which is owed to the Exchequer.
I referred to what my noble friend Lady Platt of Writtle said about the debt. There is no doubt in the mind of the Government and of the operating company that that repayment schedule can be met. I cannot accept the suggestion made by the noble Lord, Lord Underhill, that the tunnel should be part of the M.25. It is the link between two parts of that motorway—as is the Severn Bridge, which is owned and operated by the Secretary of State and for which tolls are made. Even were tolls to be abolished, the debt would remain and the provision would still have to be made for servicing and repaying it by both the county councils of Kent and Essex. I suppose that they in turn would have to turn to their ratepayers. I do not believe that your Lordships would wish to add to ratepayers' burdens. Nor do I believe, as I said earlier, that the debt could be at this time passed on to the taxpayers; that is what would happen were the Exchequer to assume responsibility.
I have outlined the Government's recognition of the effect which the M.25 will have on the tunnel, and I have told your Lordships of the grants which the Government are to provide. The Government would not wish to oppose the Instruction in the name of the noble Lord, Lord Tordoff. I may say that the relevance of the M.25 to the question of whether it is proper to charge tolls on the Dartford Tunnel is a point made in all three of the petitions which have been lodged against the Bill. Therefore, the Select Committee will not be able to avoid considering that point, and the Government are happy that they should do so; it is right that the Select Committee should take evidence on this point. The Select Committee is obviously the right forum in which this matter should be debated.
To sum up, the tolls provisions of this Bill are in accordance with longstanding Government policy that the major estuarial crossings should be paid for by those who use them. It makes no difference whether the crossing is part of a motorway, such as the M.4. by the way, the debts incurred in building a tunnel have to be serviced and repaid. As I have said, the Government are not prepared to allow that cost to fall on the taxpayer. The Government support the Bill, and in particular we support the provisions in Clauses 22 and 23.
Lord Aberdare: My Lords, perhaps it might be useful if I very briefly remind your Lordships of the procedures that will be followed in the case of this Bill, which, as has already been made clear in the course of the debate, is a Private Bill. It is promoted jointly by the Essex and Kent County Councils and there are three petitions against the Bill. One is in the name of the Standing Joint Committee of the Royal Automobile Club, the Automobile Association and the Royal Scottish Automobile Club; another in the
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name of the Road Haulage Association Limited; and the third in the name of Thurrock Borough Council. These three petitions relate to the same point, as does the Instruction in the name of the noble Lord, Lord Tordoff; that is, the question of charging tolls to those who use the Dartford Tunnel.
Therefore, in any case this Bill will go to a Select Committee. The Select Committee will hear evidence on behalf of the promoters and the three petitioners. If your Lordships pass this Instruction, then that Instruction too will be considered by the same Select Committee. I will ensure that the words that have been spoken this afternoon during the course of this short debate are made available to all members of the Select Committee, so that they will also be made aware of what has been said today. In due course, when the Select Committee has come to its conclusions, it will be making a report to the House.
3.54 p.m.
Lord Tordoff: My Lords, I am grateful to the noble Lords, Lord Aberdare and Lord Lucas of Chilworth, for what they have said—and to all noble Lords who have taken part in this debate. The fact that we have had such stimulating contributions from all parts of the House justifies my having put this Motion on the Order Paper today.
Perhaps I may just briefly just pick up two points. First, on the general question of other estuarial crossings, I would submit to your Lordships that the Humber crossing and the Severn crossing are of a different order, in that the diversions which have to be made if people do not use those crossings are considerably greater. As I tried to show in what I said at the beginning, in crossing the Thames there are options open to people other than the Dartford Tunnel, but greatly to the detriment of the environment.
If the noble Lord, Lord Lucas of Chilworth, reads Hansard tomorrow, he will see that I did not say I had doubts about the capacity of the tunnel, but rather that I was worried about the capacity of the toll booths and the congestion that would occur. Even if these booths were extended, I believe that congestion would still occur. I thought that the reply of the noble Lord, Lord Lucas of Chilworth, to the noble Lord, Lord Somers, rather gave the game away. If it is right and proper that motorways are part of the strategic network of the country, then the fact that there is a gap in one that has to be paid for by private users seems to me to be curious in the extreme. The slightly casuistic way in which the noble Lord explained how the Dartford Tunnel was not to form part of the M.25 did not seem to me to really hang together. In any event, the noble Lord has been good enough to say that the Government do not intend to oppose this Instruction and so I hope that your Lordships will support it.
On Question, Motion agreed to.

Mental Health Bill [H.L.]
Report received.

Data Protection Bill [H.L.]
3.57 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Elton.)
Lord Mishcon: My Lords, before we commence our deliberations, may I ask whether we can be protected against our own data? If your Lordships will look at the second Marshalled List, you will see that it is headed "Second Marshalled List of Amendments to be moved in Committee". They are, of course, to be moved at Report stage.
Lord Elton: My Lords, the noble Lord, Lord Mishcon, is quite right when he refers to the first page of the Marshalled List. However, if he will look at the back page, he will see that it refers to Report stage quite properly.
Lord Mishcon: My Lords, that only means that this Bill is back to front, and I have always said so.
On Question, Motion agreed to.
Clause 22 [Compensation for inaccuracy]:
Lord Mottistone Lord Mottistone moved Amendment No. 62:
Page 19, line 11, leave out ("indicating") and insert ("used or disclosed only with an indication").
The noble Lord said: My Lords, Amendment No. 62 is an improved version of my Amendment No. 126 which I moved at Committee stage, and to which my noble and learned friend pointed out some objections. I hope that the change in this amendment is acceptable to him as meeting the point that he made.
Clause 22(3) provides a defence for the data user who has used inaccurate data if the data used were an accurate reflection of the data supplied to him by the data subject or by a third party. This defence seems only to be available if the data carries with it an indication of its source. The intention in providing such a defence is presumably to encourage data users to qualify the data they hold by indicating its source and hence its implied validity.
This is a matter of interest to the data subject. As currently drafted, the subsection requires that the data themselves should indicate their source before the data user can claim the defence provided. But it is not common practice to include the source of data on a computer file, and the cost of rearranging existing files and rewriting the existing software to qualify for this defence could be very high.
It is very unlikely that many data users would be prepared to incur such costs. I believe it would be in the interests of both the data user and the data subject if the qualification for the defence were just slightly less stringent, that instead of having to reorganise his files the data user should be required only to ensure that the source of the data was clear whenever the data were used or issued to a third party. In many cases this could be achieved by the use of preprinted forms or headings on computer lists, at minimal cost.
If this amendment were adopted more data users would ensure that the source of the data was evident whenever they were used, and this would give better protection to the data subject. I hope that with that rather full explanation, and the fact that we have endeavoured to take advantage of the comments by my noble and learned friend at Committee stage, the new amendment will be acceptable to the Government. I beg to move.
Lord Avebury: My Lords, I do not think the noble Lord's amendment touches the point I raised the other day, on which the Minister has been good enough to write to me in the interval between Committee and Report. The question is: what is the rule applying to data which are transferred between a subsidiary and a parent company? This is a matter which has obvious practical implications for data users who are part of large groups of companies. I hope that the noble Lord the Minister may think it desirable at this stage to give a slightly fuller explanation along the lines of the one he has already given to me in correspondence.
To summarise that, the noble Lord has said to me that the question of whether or not a subsidiary company would be a third party for the purpose of Clause 22(3), which defines the term "inaccuracy", is a difficult matter to define; it is impossible to generalise, the noble Lord said. He said that where a parent company controlled the activities of the subsidiary company to the point where the subsidiary was acting on behalf of the parent company, it would seem that information passing from the subsidiary to the parent company would not be regarded as receipt from a third party; but where the subsidiary company operated independently of the parent company, then it would seem that the courts would regard the subsidiary as a third party.
I hope the Minister will offer some further clarification, or will think that this is a matter which should be dealt with more conclusively before the Bill leaves another place. What worries me is the use of the words "it would seem". The noble Lord is not really certain what the status of information passing between a subsidiary and a parent company would be. He is telling me, and your Lordships through me, that this depends on all the circumstances and the extent to which the parent company exercises day-to-day control over the activites of the subsidiary. Therefore, whenever anybody is thinking about whether this subsection provides him with a defence, he always has to ask himself the question: does the parent company control the activities of this particular subsidiary to the extent that would satisfy a court of law, or might the inaccuracy be a material one for this purpose? I think that businesses should not be left in the uncertainty that this clause as presently drafted may lead to. Between now and the stage when the Bill gets to another place perhaps the noble Lord will think of some way of setting this out more clearly for the benefit of those in industry who have to operate this provision.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I think it probable that the noble Lord, Lord Avebury, did not realise that in the division of labour which exists between my noble

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friend and myself I was saddled with this responsibility. But I can see my noble friend on the Front Bench, and I think probably the best way of handling the noble Lord's point would be for my noble friend to be in touch with him directly. In actual fact I do not think—although on this I may be wrong; I have just briefly glanced at the correspondence between them—it is particularly relevant to my noble friend Lord Mottistone's amendment. I am grateful to my noble friend for returning to this point because it is a real point. I am grateful to him for trying to improve upon the amendment which I ventured to criticise at Committee stage. I shall still ask him to withdraw this amendment. I realise that the point is one which I ought to try to deal with, but I am not happy with the improvement which he has made to his original amendment.
If I may explain both the point and the reason why I am not happy with the proposal of my noble friend as it stands, perhaps the House will bear with me. The point is this. As my noble friend explains, it is not always, and perhaps not usually, for some reason, the case that the data user will be recording his data in a form carrying the indication that it is received information. I will refer to that by a jargon phrase, received status. It is not always the case that it is recorded in such a way that the data will have or does have the indication required to give the defence its validity in the Bill as drafted. My noble friend seeks—and I think with some justification—to say that it is good enough, in order to attract the defence, that the indication that it is received information and not originating information should travel with it wherever it goes. In other words, it would be enough if the printout contains the indication rather than that the original data do.
I myself think that if a way can be found in which that object is achieved I would like to find that way. If my noble friend will withdraw his amendment in its present form, I will undertake to ask the draftsman if such a way can be found. I cannot undertake today that it will be found because I am not sure whether it is possible. But I hope the indication I have given is at least sympathetic to my noble friend.
With regard to the point raised by the noble Lord, Lord Avebury, I think I can say to him that so far as regards this amendment we take on board the point that if the information travels it has got to travel with the indication, so far as regards the subject matter with which this amendment is concerned. I hope with that explanation my noble friend Lord Mottistone will find it possible to withdraw his amendment in due course.
Lord Mishcon: My Lords, we on these Benches definitely support the principle behind this amendment and have listened with rapt attention and expectation to the remarks of the noble and learned Lord.
Lord Mottistone: My Lords, I am indeed grateful to my noble and learned friend for his very careful explanation, and indeed for his understanding of the point that I am seeking to make. I agree with him that it is extremely difficult to find the right wording. I hope very much that he will be able to do so at some stage
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before the Bill becomes an Act and leaves parliamentary hands altogether.
I think that it is sufficiently important to justify some way of meeting the peculiarities of data handling, which are different from the peculiarities—if one can call them that—of ordinary paper handling. Things that often appear to be very simple when we write documents and cross-reference them are for very good reasons dealt with in a totally different way by data processing machines. Therefore, I think that it is important and I am sure that my noble and learned friend appreciates that. I understand why my noble and learned friend cannot give me any sort of firm undertaking, but I hope that this point will be made.
I should like to say before I sit down that I understand and take well the point made by the noble Lord, Lord Avebury. I do not think is strictly relevant to my point, but it is important and I hope that the Government will take that on board as something which needs solving as well. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.10 p.m.
Lord Wigoder Lord Wigoder moved Amendment No 63:
Page 19, line 11, leave out ("indicating that it consists") and insert ("specifying precisely the source").
The noble Lord said: My Lords, under Clause 22(1), as your Lordships know, a data subject may be entitled to compensation where the personal data held by a data user are inaccurate, but subsection (3) provides that even if those data are inaccurate it is of no consequence provided that they are data which accurately record information, inter alia, received from a third party and provided that the data indicate that they do in fact consist of such data; namely, from a third party.
It would appear that the wording as it stands is, I suggest, inadequate to give proper protection to the data subject. If all that the data user needs to say in order to claim the protection of subsection (3) is. "These data come from a third party", the data subject, first, will not be able to check whether or not that is an honest claim and, secondly, assuming that it is an honest claim, it will frequently happen that the data come from another data user and the data subject will not be able to claim, as against the other data user, that there is inaccurate information being held about him or to seek its rectification.
Thirdly, unless the data subject can discover the precise source of the inaccurate information he may be deprived of certain other obvious legal remedies. Therefore, all this little amendment seeks to do is to strengthen the protection for the data subject by requiring the data user in these circumstances not to be able to rely on a vague expression—obtained from a third party—but to indicate precisely what the source of the apparently inaccurate information is. I beg to move.
The Lord Chancellor: My Lords, the noble Lord, Lord Wigoder, described this as a little amendment. I hope to persuade your Lordships that this is not quite to give it its full importance. It is rather a big one. If I may come back, for a purpose which will shortly

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become apparent, to the rather facetious quip that the noble Lord, Lord Mishcon, made on the Motion, That the Bill be now further considered on Report, he has always taken the view—which those who listened to my speech on Second Reading will realise I do not share—that the Bill is defective because it does not deal with manual data and that manual data are equally as important as computer-contained data. I have never agreed with that because, as I said on Second Reading, the problem of policing manual data would be totally different. The scale of the danger and the nature of the danger arising from manual data are quite different and it would require not merely that manual data be included in the Bill, but that a Bill of quite a different shape be introduced for the purpose of dealing with it.
Let me put this to the noble Lord, Lord Wigoder. We have sought, of course, to draw a balance between the interest of the data subject, whose interest we are here to protect by the Bill, and the burden which we are placing on the data user, whose interest has been very ably proclaimed and supported by my noble friend Lord Mottistone. We have sought to protect the data subject without inflicting on the data user a burden greater than was reasonable.
May I suppose for just an instant that one day, and it may be already the case for aught I know, the so-called "morgue" in an ordinary newspaper office—which, looking round me in the House, probably contains files on each one of us present in the Chamber at the moment—were fed into a computer. One of the most sacred objects of the journalists' profession is that they do not reveal their sources. This is precisely what the noble Lord, Lord Wigoder, is asking us to do by his allegedly little amendment. This would be not only to impose on the data user a burden by way of expense and methodology which might prove much more burdensome and expensive than one would suppose, but also to compel him to reveal his source in, I think, every case.
The newspaper is not the only type of person who wishes to keep information to some extent confidential. Almost every law-enforcement agency requires to keep its information confidential in certain cases. We know, of course, about professional legal privilege, which we have sought to retain, but every kind of file which contains information about individuals very often contains a great deal of confidential information. The police, not least, rely very heavily upon informants and both for the security of the informant and for other reasons they do not usually desire to reveal their sources. For this reason—because I want to protect the data subject but also because I feel bound to protect the data user-I have to say that we do not find this amendment acceptable and we do not regard it as a particularly little amendment.
Lord Swinfen: My Lords, I think that this particular amendment is impractical because if the computer is going to be used efficiently it must contain the information required for the business of the computer. If the sources of all those pieces of information are to be on the computer as well it would obviate the use of the computer and might lead to the data user needing a much larger and more expensive computer—and possibly two or even three computers—or an
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extremely comprehensive manual backup system which would not, in fact, be covered by this Bill.
Lord Perry of Walton: My Lords, while appreciating what the noble and learned Lord said, may I ask whether the Government would be prepared to differentiate between the third parties to whom he has referred and third parties where there is a transfer of information from one computer file to another? That is the danger that I see in the absence of an amendment of this sort. It does not seem very difficult to flag a computer with an indication that there is a particular part of the file which has been obtained from the computer file of another data user.
Lord Wigoder: My Lords, I have listened to the noble and learned Lord's argument with the greatest of interest and to the contributions made also from other parts of your Lordship's House. The difficulty that I see as to what the noble and learned Lord suggests is simply this: ought there to be protection for, let us say, newspapers who have totally inaccurate information on their computer? I can quite understand that, where there is information which is accurate, it may be undesirable in the interests of protecting sources that it should be revealed, but where the information is wildly inaccurate it seems to me on first reading at least that Clause 22 as it now stands will deprive the data subject of any remedy whatsoever. Indeed, taking the matter a stage further, again as I read the clause, any data user can avoid any liability under Clause 22 of any kind simply by saying, "Obtained from third party". The data subject will be powerless and the registrar will be powerless; a great big coach and horses will have been driven right through this clause.
I accept of course from what the noble and learned Lord said that this amendment may well be defective in its drafting in the sense that it may have resulted in some consequences that I certainly did not intend. I hope that the noble and learned Lord might agree that there is nevertheless the possibility of a widespread abuse of Clause 22 here and that it might be desirable that it should be looked at again before another stage. With those observations, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 [Jurisdiction]:
4.22 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 64:
Page 20, line 7, at end insert—
("( ) For the purpose of determining any question whether an applicant under subsection (8) of section 21 above is entitled to the information which he seeks (including any question whether any relevant data are exempt from that section by virtue of Part IV of this Act) a court may require the information constituting any data held by the data user to be made available for its own inspection but shall not, pending the determination of that question in the applicant's favour, require the information sought by the applicant to be disclosed to him or his representatives whether by discovery (or, in Scotland, recovery) or otherwise.").
The noble and learned Lord said: My Lords, Amendment No. 64 is a Government amendment and it has fallen to me to move it. If I may also speak on Amendments Nos. 76 and 78, which are bound up with Amendment No. 64 and consequential, I can

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explain them all rather simply. It is obvious that if we are to give access under Clause 21 to the data subject and there is a dispute as to whether all or any of the information is held or comes within the right, somebody has to decide that dispute. That somebody has to be, on the general principles of the Bill, the court. The question then arises: Is the court to have access to the information, and, if it has access to the information, has it got to give it to the other side to the dispute? The answer to that in the amendment which I propose is, yes, the court must have access to the information for the purpose of deciding whether the data subject's rights have been infringed or whether his claim is justified. It would defeat the object of the whole process if at the same time the court had to disclose to the data subject what he was asking to be disclosed if he won the case.
I am bound to say that I had thought when the Bill was originally under discussion that the inherent jurisdiction of the court, applying the ordinary rules relating to discovery, privilege and so on, which have been much under discussion in recent years, would enable the court to do exactly what this amendment proposes should be done; since when I have consulted the judiciary, who do not think so—or at any rate do not all think so. So in order to achieve an object which I believe to be from the start desirable, and even common sense, this amendment has been devised, and I beg to move.
On Question, amendment agreed to.
4.26 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 65:
After Clause 25, insert the following new clause:
("Findings of Registrar as evidence.
In any proceedings brought under sections 22, 23 or 24 above any findings by the Registrar shall be admissible in evidence.").
The noble Lord said: My Lords, your Lordships may have remembered that there was an amendment, No. 139, at the Committee stage which was not moved and which dealt with the question of the findings of the registrar, saying that those findings should be admissible in evidence, and so the amendment read at the Committee stage:
"should also be deemed to be true unless the contrary was proved".
We who were responsible for the amendment reflected upon that and felt that there were disavantages possibly about trying to make the certificate of the registrar in regard to his findings a matter which would come before the courts. There were disadvantages in making those findings binding, as it were, unless the contrary were proved by one party or the other. So the amendment comes before your Lordships' House on this occasion merely making it as a matter of sensible convenience, and in order to abridge proceedings, that in the proceedings under Clauses 22, 23 or 24 the findings of the registrar should be admissible in evidence. It struck us as being a sensible amendment and I hope that your Lordships will so think. I beg to move.
The Lord Chancellor: My Lords, I hope to persuade the noble Lord that this amendment is not as desirable
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as he thinks it or tends to think it at the moment. I hope to explain quite shortly why, although I am grateful to him for bringing the point to our attention.
The first observation that I would make is that the only formal findings of a registrar under the Bill are the reasons required to be given by him on refusing an application for registration under Clause 7 or in serving a notice—an endorsement notice or a de-registration notice—under Clauses 10 and 11 or a transfer prohibition notice under Clause 12. The new clause proposed in the amendment offers no other definition of "findings". It may for aught I know be extended beyond such reasons to something else but, if so, it does not say so and I think therefore that I am entitled to go on the basis that it must refer—at least at any rate as at present drafted—to the findings which I have sought to define in my first sentences.
If the registrar makes such findings, they are in themselves without validity until some sanction is taken under them. If the data user who is served with a refusal or with an enforcement or deregistration notice takes not notice of it and defies it without taking advantage of his right to appeal to the tribunal, he will of course be prosecuted to conviction and that conviction can already be cited under Section 11 of the Civil Evidence Act 1968, which was designed to reverse a case known to lawyers as Hollington v.Hewthorn, which decided that previous convictions were not evidence of guilt; but since 1968 previous convictions have been evidence of guilt. If therefore the notice were defied and the data user was prosecuted to conviction, the Civil Evidence Act 1968 could be invoked and the amendment would be unnecessary. But if, on the other hand, the data user is not served with any notice under the Act or if he ignores the notice and is not prosecuted by the registrar or, if prosecuted, is acquitted, there is nothing which could properly be used against him in subsequent proceedings. If that were the case the amendment is objectionable.
So although I fully appreciate that the object of this amendment is a laudable one, which would be to save the data subject in proceedings which he may take under this part of the Act trouble in adducing evidence in support of his claim, this is not, in my respectful submission, the way in which to do it. If the findings are such that he ought to be able to use them he can, and the amendment is unnecessary. If, on the other hand, the findings are such that he ought not to be able to use them, he ought not to be allowed to do so and the amendment would be objectionable. I hope that I have made my point plain and I hope that the noble Lord will take it into account in his reply.
Lord Mishcon: My Lords, reckless is the Member of your Lordships' House who did not take into account anything that fell from those learned lips! It may very well be that I am on a wrong tack but I should like merely to amplify what I said before. However, I shall do so very briefly in order that the noble and learned Lord may be quite sure that he has covered in his very explicit reply the point that I was really trying to make, however inadequately.
May I remind your Lordships that under Clause 22 the data user is entitled to go where appropriate for compensation for inaccuracy. Under Clause 23 he is

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entitled to claim compensation for loss where there is an unauthorised disclosure. Under Clause 24 he is entitled to go for rectification and erasure in certain cirumstances. What I was trying to do was to save the data user, as the noble and learned Lord most correctly and courteously pointed out—
Lord Mottistone: My Lords, I hope that the noble Lord will forgive me for interrupting, but does he mean the data user or the data subject?
Lord Mishcon: My Lords, in common with all of your Lordships, I am getting mixed up with data user and data subject. I am most grateful to the noble Lord, Lord Mottistone, for his correction. I of course mean the data subject, and I am most grateful to the noble Lord. What I was trying to do was to ensure that where—as in most cases—the registrar would have investigated a complaint in regard to inaccuracy, in regard to wrongful disclosure, then instead of having to go through all of the motions again when going to the court for compensation, I should have hoped that at least there was prima facie evidence before the court. I have in mind the findings of the registrar: that he had looked into the matter—as we know in practice that will be the first stage—and found the necessity for erasure or rectification, or that there was an unauthorised disclosure, or had found that there was, indeed, an inaccuracy. That was what I was trying to achieve.
If the noble and learned Lord tells the House that he is very well seized of that being the reasoning behind it, but still feels that the amendment is unnecessary or inadvisable for the same reasons that he gave just now, then quite obviously I shall be moved by those remarks. Indeed, I imagine that the noble and learned Lord would be kind enough, with the leave of the House (if that is necessary) so to indicate.
The Lord Chancellor: My Lords, I hope that I was not being disingenuous. I rather suspected that what the noble Lord might actually have had in mind was some kind of informal finding by the registrar. That certainly would not be covered by his existing amendment because the only meaning that I can attach to the word "finding" is the kind of finding which would be definitive under the Act. But I am seized of the point that there might be a short cut. My own feeling is that if the registrar were to give the data subject material which he could use as evidence in court proceedings, it might very well be that, with the assistance of the other provisions of the Civil Evidence Act, he might find his way much smoother than he would have done before the passing of the Civil Evidence Act.
But I should like to write to the noble Lord and obtain advice about this matter. I do not think that it is absolutely obvious that the data user himself ought to be at a disadvantage in court proceedings as a result of a finding which is of a purely informal character. This is after the registrar has found—or has thought he has found—some degree of inaccuracy in the data on the record or if he finds that there has been a loss within the meaning of the succeeding section giving rise to a right of compensation or an infringement of the rights under the following section—the third
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section—of rectification or erasure. I should like to consider the problem further without commitment. If the noble Lord will find it possible to withdraw the amendment, I shall communicate with him further on the matter.
Lord Mishcon: My Lords, I have not the slightest hesitation, in view of the courteous and helpful remarks of the noble and learned Lord, in begging leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27 [National security]:
4.37 p.m.
Lord Elton Lord Elton moved Amendment No. 66:
Page 20, line 32, leave out from beginning to end of line 9 on page 21 and insert—
("27.—(1) Personal data are exempt from the provisions of Part II of this Act and of sections 21 to 24 above if the exemption is required for the purpose of safeguarding national security.
(2) Any question whether the exemption mentioned in subsection (1) above is or at any time was required for the purpose there mentioned in respect of any personal data shall be determined by a Minister of the Crown; and a certificate signed by a Minister of the Crown certifying that the exemption is or at any time was so required shall be conclusive evidence of that fact.
(3) Personal data which are not exempt under subsection (1) above are exempt from the non-disclosure provisions in any case in which the disclosure of the data is for the purpose of safeguarding national security.
(4) For the purposes of subsection (3) above a certificate signed by a Minister of the Crown certifying that personal data are or have been disclosed for the purpose mentioned in that subsection shall be conclusive evidence of that fact.").
The noble Lord said: My Lords, we had a full debate on Clause 27 of the Bill in Committee when the noble and learned Lord, Lord Elwyn-Jones, spoke to a number of different amendments, and I replied in like vein—I fear at some length. Although it led to some confusion in Committee, I have no choice but to repeat that approach now for our Amendments Nos. 66 and 67 go together; and they consist of what I might call a re-presentation of the totality of Clause 27. In moving Amendment No. 66, therefore, I should also like, with permission, to speak to Amendment No. 67.
In Committee, it became clear that there was broad agreement on certain key points on both sides of the House. First, that the safeguarding of national security is of prime importance and that the Bill should not jeopardise that. Secondly, as a consequence, that special provisions were required in the Bill to exempt national security data. Thirdly, that some system of ministerial certificates was required to confirm that a claim to exemption was justified in the event of that claim being challenged. Fourthly, that any such certificates should be issued only at the highest level. Fifthly, that it was particularly important in an area such as this for the purport of the statutory provisions to be clear, as I hope they will be to the noble and learned Lord opposite.
In the light of the views expressed in Committee, we have looked again at Clause 27. I have to say that I think that we have found room for improvement—both in terms of clarification and in terms of the way in which ministerial certification will work. Let me first draw the attention of the noble and learned Lord

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opposite to a provision that has not changed (apart from drafting changes consequential on other amendments to the clause to which I shall refer in a moment). That provision is the one conferring an exemption from the non-disclosure provisions on users who are willing to disclose data for the purpose of safeguarding national security. The guardians of national security must not be prevented from being given information to assist them in their work. As is recognised in the European Convention and elsewhere in Europe, the general needs of national security must override the particular demands of data protection here.
But now let me explain what is changed by our two amendments. First, we acknowledge that the distinction between data held by a Government department and data held by other users may have been an aid to confusion rather than precision. I accept what the noble and learned Lord said—that the purpose of subsection (2) of the Bill as originally drafted was not immediately obvious. So we have done away with that distinction. Now, we propose that all data, whether held by a Government department or by, for example, a defence contractor (or the police), should be treated in the same way and should be exempt where the exemption is required to safeguard national security.
We have also considered carefully what was said about the need to avoid exemptions being claimed regardless of whether Ministers charged with determining when national security needed to be safeguarded approved the exemption. Under the clause, as amended, the test for exemption of all data is the same: they will be exempt only if a Minister determines the exemption to be required to safeguard national security. Thus, there will be no opportunity for a user to make a personal decision that data are exempt under the Bill without reference to a Minister. Unless a Minister determines that the data require exemption, no exemption can be claimed. A user claiming exemption where a Minister does not so determine will be operating unregistered and liable to the sanctions provided for by the Bill. In this way we hope to have reassured the House that exemptions under Clause 27 will be under strict ministerial control.
We have now also amended the procedure for issuing certificates in the light of our Committee debates. We were impressed by the concern expressed on both sides of the House that officials or others not specified would be able to sign "on behalf of" a Minister. I indicated in Committee that there may be some practical difficulties on occasions in getting a personal ministerial signature. But we accept that we must not allow confidence in the system to be lost because of fears of delegation of the certificating process. The difficulties will have to be overcome. Therefore, under the clause, as amended, a personal signature of a Minister is required. No delegation is possible. That is our next concession.
And finally, we have thought further about making it explicit on the face of the Bill that the ministerial functions under this clause will be performed only at the highest level. I explained in Committee why we objected to the proposal of the noble Lords opposite
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that only a Secretary of State should be involved. Our objections remain. I also have to say that we are not overly attracted by the laborious task of specifying each Minister, as the noble Lords now propose in their new amendment. However, I think that we can meet the point by the approach that we have taken in our own Amendment No. 67. This ensures that the Ministers involved must be of Cabinet rank—or else the Attorney-General or Lord Advocate (for whom I am glad to hear cheers opposite) whose special responsibilities may give them cause to hold data requiring exemption, and yet they may not be in the Cabinet.
My Lords, I fear I have again spoken at length. But I think it is important to make clear what our aims are in amending Clause 27. I say frankly that we were impressed by the debate in Committee. I said then that we would consider what we had heard. And that consideration has led us to a revision of the approach to national security data: all data are to be treated in the same way, regardless of whether the data are held by a Government department or not; no data are exempt unless a Minister determines that that exemption is necessary; certificates can only be issued personally by a Minister; and the Minister involved must be of the highest rank only. I believe that we have returned to the House with proposals that meet the concerns in Committee. I beg to move.
4.45 p.m.
Lord Mishcon: My Lords, the noble Lord the Minister need not apologise in the slightest for the length of his address to your Lordships upon these two amendments now brought forward by the Government. Indeed, they deal with important points for which we on this side have the support of certain Members of your Lordships' House who do not have the privilege of sitting on our Benches. This was something for which we fought hard. It is a measure of the Minister's breadth of mind, if I may say so, that after the consideration which he promised he has taken these points on board and has brought forward these amendments.
The first one that we fought for was to see to it that a Minister himself took responsibility and that it was not somebody signing on his behalf. That has been dealt with. The second point we fought for was the place in the hierachy of the Minister who takes that responsibility. That has been dealt with too in this amendment, and we are grateful for both. I have only two queries. One is a real query and the other one, I hope, a query which contains within it a constructive suggestion.
The first query may arise as a result of my ignorance, for which, if that be so, I apologise to your Lordships in advance. I myself was not aware of any statutory definition of "Cabinet". It may well be that there is such a statutory definition, and therefore if you put the word "Cabinet" into an Act of Parliament you are doing something which can easily be defined in accordance with our constitutional law as laid down in statute and not certain traditional names which have been given to very select people, be they in fact real or be they shadow. In those circumstances, my first question really is one for clarification and in order to

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make sure that the Government have not gone wrong in this amendment.
The second one is a question which I hope will prove to be constructive and not pedantic. Throughout Amendment No. 66 the Government have used in their amendment the word "required". If your Lordships will look at the third line, for example, of newly suggested Clause 27(1) it says,
"if the exemption is required for the purpose of safeguarding national security".
That follows right the way through the amendment. One poses the question to oneself, "required by whom?" Should not the word in fact be "necessary"?
To try to illustrate the fact that this is not a bit of pedantry but has some meaning to it, it may be that an official comes before the Minister and says, "Minister, this is required for the purpose of national security". One wants to be sure that the Minister does not say, on looking at this subsection, "Oh, I see it is required for national security. In those circumstances, here is my signature". What he has to be satisfied about when that question is put to him is that indeed it is necessary for the purpose of national security. I think that in this context the word "necessary" is a far better one than the word "required".
The last point I make upon that is that if your Lordships would be good enough to look at subsection(3) of the suggested new Clause 27, the third line reads:
"any case in which the disclosure of the data is"—
and even the word "required" is left out—
"for the purpose of safeguarding national security."
Again the word "necessary", I would have suggested, ought rightly to go into that line.
This is something that I have no doubt the noble Lord the Minister would want to look at in regard to my second point, and it is purely a question of brushing the amendment up and making it what I believe the Government would want to make it. My first question is a very real one only in the sense that I think your Lordships too would be interested to know whether there is a statutory definition of "Cabinet" and in what statute it appears.
Lord Mottistone: My Lords, I should like briefly to thank my noble friend for incorporating the point which I raised in my Amendment No. 144A on leaving out the alternative of an official signing certificates. On a point of detail, I was impressed by the argument of the noble Lord, Lord Mishcon, about the need, in appropriate places, for "necessary" rather than "required". It would seem to me at first sight that that is a good argument, and I would support it in principle.
Lord Elton: My Lords, I am glad to embark on this stage with so much approval. Long may it last. I am not so confident about my ability to answer the questions noble Lords have asked. While there may not be a statutory definition of "Cabinet", there is a precedent for the use of the term in statute and therefore I think we shall find we are on good ground; but I will test the ground in the light of the noble Lord's query. Similarly with the word "requirement". It may
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be a matter of semantics. I suspect that to require something in the sense in which the noble Lord, Lord Mishcon, suggested it might be used, there would need to be in the Bill a power to require it, and, as that power is not there, I suspect that the word "required" would be used in the sense in which he intends using the word "necessary". But, again, I shall take care between now and the next stage to see that we have not inadvertently said something we did not mean to say. I am grateful to the noble Lord and my noble friend for their remarks.
Lord Diamond: Before the matter is disposed of, my Lords, I wish to refer once more to the question of a Member of the Cabinet, because the Minister said he would look into it. I think I am right in saying that when moving the amendment he used the term "Minister of Cabinet rank", and I think he will find that it is possible to be a Minister of that rank without being a Member of the Cabinet, which is the term used in the amendment. In looking into the matter in order to get it completely clear, the Minister will no doubt look into the wording of the amendment and not the wording of his speech in which he introduced it, which, if I am right, he quite understandably used that term.
Lord Elton: My Lords, my inquiries will be both more careful and more precise in view of the noble Lord's intervention.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 67:
Page 21, line 12, at end insert—
("( ) For the purposes of this section "Minister of the Crown" means a Minister who is a member of the Cabinet, the Attorney General or the Lord Advocate.").
The noble Lord said: This amendment is consequential, my Lords. I beg to move.
On Question, amendment agreed to.
[Amendment No. 68 not moved.]
4.53 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 69:
After Clause 27, insert the following new clause:
("Special investigation of exemptions
.—(1) If a person has reason to suspect that his name is recorded as a data subject contrary to one or more of the data principles (except the seventh principle) listed in Part I of Schedule 1 to this Act under the exempted circumstances described in section 27 above, he may apply to the Registrar for a special investigation.
(2) When a special investigation is requested, the Registrar must satisfy himself that the application is made for reasons which meet the requirements of Part III of this Act and that one or more of the data principles (except the seventh principle) have possibly been contravened.
(3) Subject to subsection (2) above, the Registrar is empowered to obtain such information as is necessary to satisfy himself either—

(a) that there is no relevant data held, or

(b) that the personal data held under the terms of section 27 of this Act conforms to the data principles (except the seventh principle).

(4) In the event that the Registrar is not satisfied that the terms of subsections (3)(a) or (3)(b) above are met, he may make representations to the Secretary of State.
(5) When the Registrar has completed the special investigation he shall inform the applicant for the special investigation that it has been completed.").
The noble Lord said: My Lords, this is a substantial recasting of an amendment I moved in Committee, and is designed to take note of the points which my noble friend made at that stage. I agree with him that the question of safeguarding national security is of the highest importance, and I have endeavoured to cast the amendment in such a way as not to infringe that. However, it seems that certain of the principles will potentially be broken within the security network. For instance, principle No. 3 is:
"Personal data held for any purpose … shall not be used or disclosed in any manner incompatible with that purpose".
One might find that happening in the dim world of national security. Principle No. 4 is:
"Personal data held for any purpose … shall be adequate, relevant and not excessive".
One can imagine that with the passage of time it might become both irrelevant and excessive, and therefore that one would be broken. Under No. 5,
"Personal data shall be accurate and … kept up to date".
That is always a worry when keeping any data, and it would not be peculiar if personal data held for national security purposes suffered from a fault in that area. Principle No. 6 is:
"Personal data … shall not be kept for longer than is necessary".
What I have described might occur—in a sense, it might be more likely to occur, or to occur more often—in the area of national security, which is totally exempt because, I am afraid, officials (whoever they are and however important and reliable they may be), if they do not have a curb on their behaviour, can perhaps be thought to keep more information than they should and perhaps to keep information which has become out of date with the passage of time.
The important point about the rest of the Bill is that whoever they are—and this applies to other people within this general exemption framework—there is the possibility that the registrar can question whether they are following the principles properly. But, as I see it, he cannot ask questions in respect of certain areas of national security, and it is that power which my amendment seeks to give him. It is limited to accepting that, under certain conditions, a special investigation may be necessary. It sets out what he should seek in subsection (3), and subsection (4) gives him power to make representations if he is not satisfied that the points made in the earlier part of the clause have been met. In subsection (5) he makes a totally bland comment to the inquirer which, I hope, gives nothing away; he just says the investigation has been completed.
The inquirer will have to rely on the fact that the registrar has taken the trouble to look into the matter and has come to some sort of conclusion. It might be the conclusion in subsection (3)(a) or (b). Either way, he must accept that. It might be that he is satisfied that the information is held for a perfectly good reason. If the registrar is not satisfied, he has power to make representations about the matter. I suggest there is not much danger of, if you like, people who do not deserve to do so (I shall not go further than that to describe them) making inquiries. If one does not have one's name in some computer for national security reasons and one makes an inquiry of the registrar in the terms
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of my amendment, that will at once bring one's name to the notice of the national security people, who will look at one with a very careful eye, and one would have to be careful not to do that if one was in any way concerned about not getting on to lists of that sort.
It is a reasonable amendment, it will not break or give cause for breaking any essential security purposes, but it will give that extra safeguard and, above all, will mean that even the officials within this cloaked world will be subject to some sort of inquiry and will not get slack and inefficient. I beg to move.
Lord Mishcon: I support this constructive and useful amendment, my Lords. It follows in many ways a recommendation considered carefully and made in the Lindop Report. Mothers have often learned from their children as well as children learning from their mothers. I think that the mother country could possibly learn from the child dominion of New Zealand in this connection. From an informant much more learned than I in these matters I learnt today that New Zealand has a privacy commissioner. The post was set up under an Act in New Zealand. If a person finds that every application that he makes for a job is failing, and he has an idea that some inaccurate information about him is being disseminated from a computer, or in some other way, he can go to the privacy commissioner. The commissioner will note the complaint, make his own inquiries, and then do exactly what the noble Lord, Lord Mottistone, said. He will come back to the person, and tell him, "I am not going to tell you what I have found, but in my view you have nothing to worry about". That is the end of the matter. I should have thought that that would be a very valuable piece of assistance that could be given in the context of the Bill before us. Therefore, we on these Benches support the amendment.
Lord Swinfen: My Lords, I, too, support the amendment. The only point that needs to be carefully watched is that the registrar, or his staff who have to make the relevant inquiries, have the necessary security clearance to look at the rather secret computer data that they will need to look at.
Lord Elton: My Lords, in Committee my noble friend Lord Mottistone indicated that he would seek to refine the amendment that he then moved and bring it back to your Lordships. That he has done, and the amendment now focuses solely on national security data, rather than on all data exempted in any way under Part IV, as it did previously. Under the amendment the registrar is empowered—no, he is obliged; and that is important—to conduct a special investigation whenever anybody complains that data are being held about them in breach of any of the seven principles. The registrar cannot go back to the data subject with his findings, but he can go to the Secretary of State.
I appreciate the motives for the amendment. In Committee my noble friend described it, I think, as his "most important personal amendment". But I cannot avoid pointing out the many difficulties that it raises. First, I have to ask whether we really want to place the registrar under a statutory duty to investigate every application that he receives, since that is the effect—the inescapable effect—of the amendment.

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With every one he must at the very least satisfy himself as to whether it meets the requirements of Part III, and whether one of the principles (other than that concerning subject access) has been breached. Clearly that cannot be done without going to the data user, if of course he can identify the data user. The subject may not have done this. His suspicions may rest simply on the belief that he is being followed everywhere, or that there is a funny noise on his telephone when he uses it, or that he has twice failed to get tickets for the Royal Tournament. It is surprising what circumstances will make some people believe that the security service has got something on them, and it is also surprising the number of abstruse reasons that are advanced in appeals to me as a Minister from people who have been refused jobs such as that of prison officer.
If however the registrar can identify the user, he must then investigate the data. Incidentally, it is difficult to see how the registrar can consider whether an application is made for reasons that meet the requirements of Part III. So far as I can discover, Part III contains no requirements that can be regarded as capable of being met in those terms. It deals purely with rights to subject access—surely inapplicable here; and to compensation in certain circumstances—again inapplicable, because the registrar cannot report back to the data subject.
So the new—
Lord Mishcon: My Lords, I wonder whether, with his usual courtesy, the noble Lord the Minister will allow me to intervene, since we are on a very important matter and I am unable to speak again, other than by jumping up in this way. As I see it, in the subsection of the amendment to which the noble Lord the Minister was referring there are two points which seem immediately to upset his arguments. Since I must be wrong in thinking that his arguments are upset, I should be delighted if he would deal with the matter. First, all that is stated in subsection (2) is that the registrar must be satisfied that there is a prima facie case. That will mean that the man who thinks that he has heard mumblings on his telephone or who believes that someone living opposite is persecuting him is immediately ruled out. The amendment refers to possible contravention, not actual contravention. Secondly, the contravention relates to the principles set out in one of the schedules. The contravention is deemed to relate to something in one of the schedules, not in Part III.
Lord Elton: My Lords, I must not be drawn too closely into the Committee format which, in his opening remarks this afternoon, the noble Lord drew to our attention is not the format for today. However, if I may respond to what the noble Lord has said, I would say that, as I read subsection (2) of the amendment, it states that,
"the Registrar must satisfy himself that the application is made for reasons which meet the requirements of part III of this Act"—
Lord Mishcon: Read on.
Lord Elton: And,
"that one or more of the data principles (except the seventh principle) have possibly been contravened".
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There are two requirements, one of which, without which the other is invalid, is that the application shall meet the requirements of Part III of the Bill. Let us not fence too long on subsidiary arguments.
If I can now recollect what I was saying earlier, I have dealt with two defects which I think are serious defects, though evidently I have failed to convince the noble Lord of their seriousness. Now I should like to address the purpose, rather than the effect, of the amendment. First, should the registrar be given a role in investigating national security data? I know that in certain countries there operates a not dissimilar system. I was going to quote Sweden as an example; the noble Lord has quoted New Zealand. But in rather more countries the data are wholly exempt, as they are in the Bill, and we are convinced that that is the only approach to suit this country.
The information used by those responsible for safeguarding national security is of the highest possible sensitivity, and the proper way to handle it is to keep it contained within the smallest possible circle. Nobody who does not absolutely need to know should know, and my noble friend Lord Swinfen gave eloquent testimony to the importance of the category of the people who know. It is very easy to sound melodramatic about it all, but it is a very serious business, played for high stakes. We do not think that the registrar should be brought into this circle; nor, frankly, do we believe that it is fair or sensible to ask him to be the judge of these matters. In all seriousness I have to ask my noble friend whether in an area where the registrar will have no experience—an area, which of necessity operates covertly—and on which he can obviously seek no outside advice, he could decide if data were relevant, or adequate, or kept longer than necessary, as certain of the principles require.
That brings me to my final point. Even if we could entertain the proposed arrangement, would it provide any real assurance to data subjects? All that the registrar would be able to do would be to make representations to the Secretary of State. But the subject of the representations would know nothing of this. He would not know even whether it had been confirmed that data about him were held or not held. He would get only the assurance that the noble Lord, Lord Mishcon, said was so valuable to people living in New Zealand: that the registrar had looked into it and he need not worry. Since the registrar can do no more than pass his views on to the Secretary of State, the subject would not even have the satisfaction of knowing that, if something was wrong, it had been put right.
I am sorry to say that I consider that national security data must be wholly exempt from the Bill. There can be no halfway house. My noble friend has sought one, but it would be of little help or reassurance to subjects, it would be counter to the interests of national security, and it would impose on the registrar a heavy burden which would serve little useful purpose. I am sorry to come down so heavily on something to which clearly my noble friend attaches great importance. I would meet him if I could, but I believe that the security of the nation is too weighty a matter for us to compromise, and I must ask him not to press the amendment.
Lord Mottistone: My Lords, first, I must thank the noble Lord, Lord Mishcon, for his support. I find the answer given by my noble friend the Minister most uncharacteristic and singularly unhelpful. I was not without personal experience of this whole area at one time in my life, and I know very well what he is talking about. It was disappointing to find that the majority of what he had to say to me was a detailed criticism of the detail of my amendment—which, when one produces it single-handedly, is almost bound to be open to criticism. I challenge any one of your Lordships by himself to produce an amendment of any complexity which does not in the end have to be corrected by the Government. If one thinks about my noble friend's speech, at least three-quarters of it was a sort of nit-picking criticism which is not really appropriate to an amendment of this sort.
However, to come to the main point of his argument, he did not answer my point, which is a matter that I find of great concern—and I repeat that I have had association with these matters personally in the past—that people who can do things in secret without proper discipline upon them can do things wrong. I think that what the New Zealanders have done, and, obviously, the Swedes, has got in it the germ of an excellent idea which I would hope that my noble friend could take very carefully to heart. Forget my amendment and its details! That is not the point. It is only an example of how something might be done. It may have been all right in the days of hand-written records because those sorts of records require quite a lot of hard manual labour to produce and to retain; and they are not as likely as is computer-held information to be in risk of breaching the very principles in Schedule 1 which I believe could be breached in this particular secret area where there are no critics.
I think that the principle of what I am seeking to have put in the Bill is a very important one which ought to be taken seriously by the Government. It is very disappointing that they concentrated on criticising the detail (which is quite irrelevant at this point) of my amendment. I hope that my noble friend will think again, will take the matter back and think in detail about what I said when I introduced my amendment. I appreciate that this text could be unsuitable for this Bill and, therefore, only for that reason I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 [Crime, taxation and immigration control]:
5.17 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 70:
Page 21, line 16, at end insert ("or").
The noble and learned Lord said: Amendments Nos. 70 and 71 go together. Together, they constitute what I venture to say is perhaps the most criticised part of the Bill. Your Lordships will see that Clause 28 includes in the wide concept of the words "control of immigration" the categories of personal data which are made exempt from the subject-access provisions in this Bill. It is this exemption which has caused considerable public concern and has been condemned by organisations concerned particularly with the
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immigrant population—the Joint Council for the Welfare of Immigrants and other bodies concerned with civil liberties.
The publication of the clause has caused much anxiety not only for those lawful immigrants who are already in this country but even for those who were born here and who have been settled here for years. It is creating uncertainty, a sense of unease, a sense of discrimination, which is most undesirable (putting it at its lowest) to promote at this time. The effect of the provision will be most hardly felt by the ethnic minority communities. Indeed, it clearly is principally directed against them.
An immigration officer, for instance, is very unlikely to have any reason to try to obtain information from doctors, employers, social workers and others about a white person, born or settled in this country. That would be a rare minority event. But a black person may well be singled out for suspicion as an over-stayer or illegal entrant, and inquiries may be made, even though he or she (as I have suggested) may have been settled in this country since childhood. It is a cause for anxiety for the reasons I have already indicated. In so far as the object is to prevent or detect crime, that is already provided for in Clause 28(1)(a) of the Bill. That remains. The amendment has no effect upon that. That covers adequately the people who have broken the law in the field of immigration. That is already covered. In our submission, this is a quite gratuitous extension of what is necessary in the field of the greatest possible sensitivity in our country at this time, that of race relations. We seriously implore the Minister and the Government to withdraw this highly disturbing provision of the Bill.
Lord Mishcon: In supporting the amendment which was so eloquently moved by my noble and learned friend, may I refer to something that the noble Lord the Minister said at Committee stage when this very matter was discussed? I am referring to column 702 of the Official Report of Tuesday, 22nd February.
"Article 9. 2. b."—
He was referring to the article of the convention—
"specifically provides for derogation from the convention's provisions where necessary in the interests of protecting the rights and freedoms of others. I submit to your Lordships that that applies to the right and freedoms of those of every colour, in every community in this country, who are already settled here, and it is in their interests that we should control immigration. An ineffective control arouses fears which can be played on by unscrupulous people".
I say this! The Minister may tell me I am wrong to say it; but I am going to say it just the same. For a Minister representing, with such distinction, the Home Office, it was a remarkable argument to say that immigration control exemption from subject access is within the meaning of a convention because it is "in the interests of protecting the rights and freedoms of others". If ever words were torn out of their context and turned upside down those are the words that were spoken by the noble Lord the Minister on that occasion.
It is interesting to find out where those words,
"the rights and freedoms of others".
came from. They came from the convention, but their deduction was from the European Convention on Human Rights. The convention on Human Rights, so

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much respected by this country and to which this country was a signatory, are rights about life, liberty, fair trial, freedom of expression and the rest of it. They were certainly never meant to be twisted—I use the word without any offensive connotation—into job protection in the labour market, which the noble Lord the Minister went on to talk about, against an influx of foreign immigrants or the question of raising fears among certain members of our community because of an influx of immigrants.
I ask this question, I think pertinently, of the noble Lord the Minister: has his department—has anybody to his knowledge—submitted this question of the exemption of immigration particulars of data,if I can put it that way, to the European Assembly in any one of its departments, to the Commission, to the Ministers or to anybody? Has he asked whether that is their interpretation of what is supposed to be a derogation of rights because it is in the interests, as he put it, of protecting the rights and freedom of others? If he has so submitted it, may we know the reply? If he has not so submitted it, is he prepared to do so? Because I think I know the answer. I feel that that is only right in the context of this Bill, dealing with prevention of crime and other allied matters which are well within the purview of proper exemptions, I hope that it will not be left to another place merely to echo its voice on this matter.
I hope that this House, before the Bill reaches another place, will have exercised its usual protection of those who lead it and whose good name is at stake—the whole convention's good name is at stake in this matter—by seeing that the amendment is carried. There is no party matter in regard to this because I believe that this is supported in all parts of your Lordships' House, but I hope that the House will exercise its proper rights and duties to see that this amendment is carried.
Lord Donaldson of Kingsbridge: My Lords, the noble and learned Lord moved this amendment with admirable clarity and admirable conciseness and from this Bench we are very happy to support it.
5.25 p.m.
Lord Elton: My Lords, I wish I could be as concise as the noble Lord, Lord Donaldson of Kingsbridge, and thus secure even greater support for what I am about to say than I otherwise would, but it is not possible. I should start by giving some background on the nature of our immigration control and the way in which it is operated. I hope that noble Lords will find that useful.
Immigration into the United Kingdom is controlled under the Immigration Act 1971, as amended, and the immigration rules. The primary task of those administering immigration control is to assess whether persons subject to control do or do not qualify for admission or continued stay under the relevant rules and if so on what conditions. Leave will be refused if a person does not qualify. The Act provides rights of appeal against a refusal to the immigration appeals system. In addition Members of either House of Parliament can make representations to the Home Secretary. There is also the possibility of judicial review by the courts.
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The Act provides for a number of criminal offences covering such matters as illegal entry, overstaying, breach of conditions of stay and assisting or harbouring immigration offenders. These are an essential backup to the control but the main sanction normally is not prosecution. It is refusal of leave to enter or remain and, in the last resort, deportation or removal from the United Kingdom. In administering the Act, the Immigration and Nationality Department naturally holds a great deal of information about individuals subject to control. Some of this is held on computer because it is important that there should be a ready access to this information, both at the headquarters of the department and at the ports; they are parts of the same system.
I must now make two important points at this stage. First, the application of the immigration rules is not a racist exercise as some noble Lords seem to be tempted to suggest, nor are they concerned solely with coloured immigration. The rules apply evenhandedly to all persons who are subject to control, and if there were more white people than other people seeking to come into this country your Lordships would have no more grounds for saying this was racist against white—
Lord Avebury: My Lords, how can the Minister make that qualified assertion when he knows perfectly well that cases have been brought against this country in the European Commission of Human Rights and that at least one of them is still under consideration there and has not yet been the subject of a ruling by the European Commission?
Lord Elton: My Lords, the noble Lord argues from the particular to the general that the entire system is racist because of a situation in which a person from the ethnic minorities has brought a case in the European courts. I do not think that the individual does support the general. The noble Lord cannot, I regret, argue from a sitting position and I must not constantly give way. He has made his point. I cannot accept it. The noble Lord will be able to speak again later and doubtless with much greater cogency than by this method.
In administering the Act, the Immigration and Nationality Department holds much information available both in London and at the ports of entry and it is necessary to have it available quickly, apart from anything else, for the convenience of travellers arriving at the ports. The rules state in Section 1 of the Immigration Act 1971 that immigration officers will carry out their duties,
"without regard to the race, colour or religion of people seeking to enter the United Kingdom",
and in Section 2 that,
"the powers conferred by the Act are to be exercised without regard to a person's race, colour or religion"
Secondly, in passing the Immigration Act and approving the Immigration Rules, Parliament has decided that immigration control should operate and that it should operate effectively. It is in the interests of all people who are lawfully in this country, including our ethnic minority communities, that others should not be able to get away with abusing or evading the controls. I say that without embarrasment. I believe we should be one nation and to suggest that the protection

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of employment is not a matter of equal concern to somebody who is unemployed from the ethnic minorities as to somebody from the majority communities is as disingenuous as the noble Lord, Lord Mishcon, suggested that I was being.
Information held about individuals is the raw material of the control and speedy access to certain parts of that information with the aid of computers is an important element in the efficiency with which that control is enforced. Many decisions are taken at the ports and they have to be taken speedily, as I said, in order to avoid holding up bona fide travellers unnecessarily. That is why there are indexes which help the immigration officer to identify which passengers should be given special attention for one reason or another. There is also a need to make speedy checks if a person comes to notice inside the United Kingdom who has breached the control and gone to ground.
I turn now to the need for this specific exemption in Clause 28(1)(d) of the Bill for data held for the purpose of immigration control. The paragraph is concerned only with instances where application of the normal provisions of the Bill are actually "likely to prejudice" the control of immigration. Most of the personal data held on computers by the immigration authorities will not be covered by this exception. They are factual and routine and will be accessible to the data subject in the normal way. There is also a limited amount of information on computer about people known or suspected of being involved in criminal offences. We are here not talking only of offences under the Immigration Act—overstaying, illegal entry, et cetera—but other, often serious, possibly related offences, such as drug smuggling.
In so far as the application of the provisions of this Bill may prejudice the prevention or detection of crime or the apprehension or prosecution of offenders, such data will, of course, be exempt under paragraphs (a) and (b) of this subsection. But there is also a limited amount of personal data on computer which would not qualify under the "crime" exemption but which justifies special treatment, and it is that with which this amendment is concerned. Essentially this is information about persons (many of whom are outside the United Kingdom) who do not, or may not, qualify to enter or remain here under the Immigration Rules. Such information is essential if the immigration authorities are to do their job properly. Thus we record, for example, the fact that a person has been refused an entry clearance or leave to remain here, or that a person who has been here before has fallen a charge on public funds. If such a person should present himself at a port of entry, it is right that the previous history should be readily and speedily available to the immigration officer who examines him since it will clearly be of important assistance in deciding what leave, if any, should properly be given to the person.
It is by no means always the case that the individual concerned should be denied access to such information, but on occasion this may be necessary. Some people make continuing, determined attempts to evade the control. I should like to illustrate that, if I might. We have on record, for instance, one Portuguese natioal has been removed nine times as an illegal entrant and has been refused leave to enter six
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times since 1979. One Mauritian national has been removed five times as an illegal entrant, deported five times and refused leave to enter four times since 1972. The noble Lord, Lord Avebury, probably knows him too, and will no doubt refer to him in the speech he is about to make. These may be untypical examples but there are a number of others which are known to the authorities, who go on and on trying to enter and we cannot tell how many more may seek to evade detection and establish themselves here unlawfully. I do not think it is right to give to them any indication of the "hallmarks" by which they may be recognised which could be on the computer.
During our Committee stage I gave the example of a person who might seek to use an alias in order to evade the controls. It would clearly be of great assistance to him to be able to find out what knowledge we have, if any, of his names and, perhaps more importantly, whether that information is readily available to the immigration officer who will see him.
This exception is also relevant in another area. This is where, for one reason or another, there is reason to suspect that a person is seeking either to abuse immigration control himself or to help others to abuse that control. For example, there may be reason to believe that a man here temporarily has married in order to achieve settlement; or that a student is not pursuing his studies but is taking advantage of his leave to study in order to take incidental employment, and sometimes the claim to be studying is in any case remarkably thin. In such cases the authorities have a duty to investigate the matter to establish the truth and, if appropriate, to refuse further leave to remain. I am not saying that it will always be the case but, as with criminal investigations, to allow subject access to recorded suspicions while the matter is actually being investigated may well prejudice the investigation and therefore the effective enforcement of the control. If there is injustice or if there is thought to be injustice, there are of course the safeguards concerning appeals and representations to the Minister that I have already mentioned.
I have spoken already longer than I would wish, but I hope that this fairly full account explains why we cannot accept this amendment. There is one important misconception which I must dispel before I sit down. It is an idea which, I believe, lurks at the back of the minds of a number of noble Lords and it colours their thinking. This provision does not create some new category of information. This information is already held at present and has been held for many years. It is used quite properly for the effective enforcement of immigration control. There is no right of subject access at present and information is not now disclosed where this would prejudice immigration control.
Far from creating any new secret data bank, this provision simply seeks to continue the status quo, for the reasons I have already given. The "newness" of what the noble Lords opposite propose is that it should be prised open, to the detriment of control. The data user is there to protect all of us from the ills of uncontrolled immigration and should be free to do so. I have already said whom I mean by "all". The subject is not unprotected; there is a right of appeal and there is the right of parliamentary representation which

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many noble Lords are already familiar with. I hope that your Lordships will resist this amendment, which seems to me to be damaging to the public interest.
Lord Pitt of Hampstead: My Lords, the Minister has failed to show in what way it is necessary for the information held by the immigration department to be exempt from this Bill. What we are talking about is allowing unregulated third party access to information collected for one purpose but which is designed for another. This is the serious matter.
The Minister accused the noble Lord, Lord Avebury, of using the particular to explain the general; and then he went on to do the same. He did in fact indicate that there were one or two cases where it would have been not so good if the information had been available to the data subject. As I see it, even if the point he made has substance, the truth is that the greater harm is the fact that there can be on these computers data which are in fact untrue and which the data subject will be unable to discover are untrue because they are not available to him.
It is that which is basic to the whole matter we are discussing. It is that which in fact I thought the whole Bill was about—that in effect data users should not be allowed to have data about people which may be untrue, which can affect them and about which they have no knowledge. What the Minister has just done in his speech is to defend the right of a Government department to do just that; and, as I see it, that is basically wrong. It puts a coach and horses right through the whole concept of this Bill.
Therefore, I hope that your Lordships will accept this amendment and reject the claim made by the Government to the right to keep this sort of information and to keep it without its being able to be challenged by the people who are the subject of it and when it can be used in a manner that may be detrimental to them. I believe it is at that level that we must look at it. If somebody uses an alias, the immigration authorities have ways of discovering what he is like and, therefore, are able to challenge him. It is the same principle.
I do not think we in this country have departed from the principle that it is better that one criminal should escape than that innocent people should be punished. I thought that that was the basic principle of the whole concept of British justice. I do not think we have ever departed from that, but we are departing from it here, because the Minister is telling us that it is possible that, without this provision, the odd person who was subject to immigration control could discover the means by which he was being identified and could use that to escape immigration control. Because that one person may misuse that data, all the other people about whom there are data will be deprived of the right to see them. That is contrary to the basic principle on which this country has existed, and I invite your Lordships to give plenty of thought to what you are being invited to do.
There is no more reason for keeping these data under wraps than there is for keeping under wraps any other data which Government departments may have. Other parts of the Bill state that data subjects should be free to examine the data which other Government
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departments have about them, and the same principle should hold in this case. I am repeating what I said at the beginning. The Minister has not shown us why this aspect is so exceptional that the basic principles underlying the whole concept of the Bill should be thrown aside.
5.42 p.m.
Lord Hatch of Lusby: My Lords, like my noble friend Lord Pitt, I waited to hear the speech of the noble Lord, Lord Elton, before intervening, to see whether he had any answers to the points that we put forward on this clause, both on Second Reading and at the Committee stage. I must say that his arguments were totally unconvincing. I appeal to all sections of the House to remember that we are here in order to uphold the principles of British justice, and certain principles are laid down in this Bill.
My noble friend Lord Pitt has mentioned one, which is completely breached by this clause, that information collected for one purpose should not be used for another purpose. Looking back at both the Lindop Report and the White Paper that preceded this Bill, there was no mention of immigration control. Where has it come from? The Government have never told us why they found it necessary to insert this clause at this stage, after previous thorough examination had not, apparently, made them even contemplate it.
What is more, as my noble friend Lord Mishcon has said, it is very probable that this clause breaches the European Convention on Data Protection. The first clause of Article 9 lists the exceptions as a necessary measure in a democratic society in the interests of protecting state security, public safety, the monetary interests of the state or the suppression of criminal offences. There is no mention of immigration. Why, if the control of immigration is so important in connection with the issue of data—it is not important to just this country—has it been excluded from the European Convention? I suggest very strongly that the inclusion of this clause in this Bill will be outwith the whole spirit and application of the European Convention on Data Protection.
In giving his instances of the use of this Bill in immigration control, the noble Lord was very unconvincing. Let me put a point to him. I mentioned this issue on Second Reading. Are we not, as a House, in danger of being grossly offensive to a considerable section of the British population, when we lump them together in this Bill with, first, criminals and, secondly, those accused of tax fraud? We are putting together in this clause, as exceptions, criminals, those accused of tax fraud and immigrants. However it is covered up, that will do a great deal of damage to the reputation of this House. This is not a party matter and I appeal to the House, as a House, to think about the damage that this could do to the reputation of this House of Parliament.
One of the issues, which is germane to the question of immigration in this country, is creditworthiness, as your Lordships know. Is it not very likely that, at least, a proportion of the data provided by credit companies about immigrants will be inaccurate? That is not unusual. But those data can be protected by the data users from the data subject. There is no way under this

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clause of checking whether or not the data that have been provided are accurate.
As my noble friend Lord Pitt has pointed out, it is a basic principle of the law and the whole ethos of this country, that the one or two cases that the noble Lord mentioned would be better to slip through the net, than that innocent people should have data provided which could lead to their expulsion from this country, or prevent them from coming into this country. That is the real issue and I should have hoped that, by the time we had reached this Report stage, the Government would have withdrawn this part of Clause 28, and, if they felt that it should be drafted in a different way, would have put it separately. Do not let us lump together the immigrant section of the British people with criminals and tax evaders. Even at this late stage let us strike one blow for the sanctity of the principles which are stated quite clearly in the Bill.
Lord Elwyn-Jones: My Lords, I venture to think that the House may well be of the opinion that on a day when the Government have made some sensible concessions to the opinion of this House the reply of the noble Lord the Minister has been totally negative and totally disappointing. He has failed completely to deal with the serious questions raised by my noble friend Lord Mishcon on the effect of the convention. It is our opinion that the proposed words dealing with immigration do not come within the terms of the derogations permitted by the European Convention. I must ask him again, as has my noble friend, whether the authorities concerned with the enforcement of the convention have been consulted about the matter. Has their advice been sought? What has their response been? That is the first important matter with which it is the duty of the Minister to deal.
Secondly, why is it that the provision relating to control of immigration was not mentioned in the White Paper which was prepared by the Home Office last year? On page 5 we read:
"It is proposed that the legislation should not apply to data that need to be safeguarded for the purposes of national security. The use of certain other data relating to the other matters referred to at (A) above"—
that is, protecting state security, public safety, monetary interests or the suppression of criminal offences—
"will be exempt from legislation. The exemption will include some data needed by the police and other law enforcement agencies for the prevention and detection of crime".
Those are still there. Why has immigration now been included? It would not have been regarded as a grave matter by the Home Office a year ago. What has happened since? This is the Government's White Paper. We submit that this is a serious derogation not only of the convention but of human rights and the privacy of the subject. If this goes through, the immigration authorities will have the power and the right to have secret access to all computerised personal information systems in this country. It is a grave encroachment not only on the liberty of the subject but on his privacy as well.
Lord Wigoder: My Lords, may I ask the noble Lord the Minister to help me about one matter? Immigration law is complicated and plentiful. It
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contains a wide variety of potential crimes and potential offences. Anybody who may be about to commit a crime, or who may have committed one or be suspected of committing one, or an offence of any sort, is caught quite clearly under Clause 28(1)(a) or (b). No-one in the course of this debate has disputed the value of those provisions. Could the noble Lord the Minister help the House by giving some clear instances of cases in which he says that, as a matter of elementary common sense, the control of immigration provision is such that a subject access provision ought not to apply that would not be equally caught under the first two paragraphs? As I understood his argument on the question of the use of an alias, and so forth, reliance could be placed quite easily on paragraph (a) or paragraph (b). There would be no need at all to incorporate this other provision around which this whole argument now revolves.
Lord Elton: My Lords, I was under the impression that the noble Lord, Lord Avebury, was going to contribute to this debate. I shall be unable to rise again. If the noble Lord wishes me to respond—I should be very happy not to respond—I would prefer him to speak now or, if I may say so not discourteously, not to speak at all.
Lord Avebury: My Lords, it is very good of the Minister to be so forthcoming and to allow me to speak on the amendment. I thought, however, that I would save my remarks until the next amendment.
Lord Elton: My Lords, I look forward to it with mixed feelings. Your Lordships, with leave, will permit me to reply to a number of the shafts which have been directed towards me. They were so numerous that I am not sure I can recall them all. May I start with the matter of the White Paper and the convention to which the noble and learned Lord, Lord Elwyn-Jones, directed me. The noble and learned Lord asked me particularly how the exemption for immigration control can be reconciled with the derogation provisions of the European Convention. I ought to explain that in this context we are relying on the provision in Article 9(2)(b) of the convention which provides for derogation where this is necessary in the interests of protecting the rights and freedoms of others. As I explained earlier, the proper enforcement of immigration control is clearly in the interests of people who are lawfully in this country. Immigration control is concerned not only with numbers, although we must not forget the pressures and strains on our multiracial society which would follow from unbridled immigration. It is also concerned with jobs, houses and the opportunities for our young people.
If we are to meet our responsibilities in protecting the rights and freedoms of those who are here—and noble Lords opposite are diligent enough in telling us that these are not already as much as they should be—we must ensure that immigration is properly enforced. It is clearly unfair on those who came here properly and lawfully that others should be able to circumvent the necessary controls. It is not helpful of noble Lords who have tried to suggest all the time that it is against those very people that these controls are directed. On the contrary, they are of more assistance

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to them than they are to others. We are not lumping them together with tax evaders and criminals. Your Lordships are lumped together with criminals and lunatics when it comes to voting matters. The juxtaposition in the Bill of people who seek to come here illegally and people who do things otherwise illegally has no racist overtones whatsoever. It is damaging to the reputation of this House, of which the noble Lord, Lord Hatch of Lusby, is rightly jealous, but no more jealous than I, to suggest that this is so. I see that the noble Lord, Lord Mishcon, wishes to intervene.
Lord Mishcon: My Lords, I am most grateful to the Minister for allowing me to intervene. He appears to be going on to another subject and leaving that of the European Convention and his interpretation of those words. I did very courteously ask certain questions, which my noble and learned friend repeated. The questions were as follows: has the question of immigration control related to the provisions of data protection been referred to the European Community in any one of its divisions to obtain its opinion? If so, what was that opinion? If not, why not? And is the Minister not prepared to put that question?
Lord Elton: My Lords, to answer the noble Lord, Lord Mishcon, no, we have not gone to the Council of Europe, or to the European Parliament, or to any other European institution to get clearance of our domestic legislation. It is not our practice to do so. It is for us to decide what is right. Then it is for us to defend that decision if it is thought to be in breach of the convention. That is the straight answer to the noble Lord's question. I am glad that he brought it before me again. May I remind all noble Lords, in answer specifically to the noble Lord, Lord Pitt of Hampstead, that this exemption does not apply to the whole of immigration information, which is very considerable. It applies only to information, the release of which would be prejudicial to the control of immigration into this country. In other words, it relates to those things which assist the immigration department and immigration officers to determine who ought and who ought not to be considered for lawful admission to this country, and which, if it were revealed, would assist in defeating that purpose. I do not believe that this House thinks that that is such an unimportant purpose that it ought to be set aside for an alleged conjunction with reasons of our relationships between different communities in this country which is entirely fictitious.
Lord Pitt of Hampstead: But, my Lords—
Lord Elton: My Lords, I think I ought not to give way any more; this is not Committee stage. I have said as much as I have to say. It is quite clear to me that this amendment seeks to take out of the Bill a provision that is not sinister and which relates only to the efficient conduct of a function that is necessary to the well-being of the whole community. It does not extend to other parts of the same mass of information which is not so related. Your Lordships are invited to take away an important provision for insubstantial and emotive reasons, and I hope that my noble friends at least will support me in the Division Lobby against it.
Lord Wigoder: Before the noble Lord sits down, my Lords, will he give me a clear instance of a case where he regards the power under (d) to be necessary which would not be equally well covered by (a) or (b)?
Lord Elton: My Lords, I have done so on numerous occasions in Committee. On any occasion where that which is under investigation is not a criminal act but involves the intention to enter this country on the part of someone not entitled here, then it is needed. There are many such cases. If the noble Lord wants more precision then I will write to him, but I cannot rise to my feet for a fourth time at Report stage.
Lord Wigoder: But, my Lords, it is a crime covered by (a).
Lord Elton: It is not, my Lords. It is not a crime under certain circumstances to attempt to enter this country; it is only a crime to be here when one is in the country unlawfully. With the Borg case, that has become another area which is extremely difficult to control because the criminal offence exists only on the first day of overstay, and the noble Lord will know very well the difficulties which result from this and the fact that there is no subsequent criminal offence. I do not want to delay your Lordships with minutiae because I have detained you long enough.
The Lord Chancellor: My Lords, the Question is, That Amendment No. 70 be agreed to?
Lord Elwyn-Jones: My Lords, can we take this amendment together with Amendment No. 71, which I move:
Page 21, line 17, leave out from ("duty") to end of line 18.
The Lord Chancellor: My Lords, is it the wish of the House that I should put the Question for the two amendments en bloc? Then the Question is, That Amendments Nos. 70 and 71 be agreed to?
6.3 p.m.
On Question, Whether the said amendments (Amendments Nos. 70 and 71) shall be agreed to?
Their Lordships divided: Contents, 85; Not-Contents, 114.

DIVISION NO. 1

CONTENTS

Airedale, L.

Cooper of Stockton Heath, L.

Amulree, L.

Crook, L.

Avebury, L.

David, B.

Aylestone, L.

Diamond, L.

Bacon, B.

Donaldson of Kingsbridge, L.

Beaumont of Whitley, L.

Elwyn-Jones, L.

Bernstein, L.

Fisher of Rednal, B.

Beswick, L.

Gaitskell, B.

Birk, B.

Gardiner, L.

Blease, L.

Glenamara, L.

Blyton, L.

Gormley, L.

Boston of Faversham, L.

Gregson, L.

Briginshaw, L.

Hale, L.

Brockway, L.

Hampton, L.

Brooks of Tremorfa, L.

Hanworth, V.

Bruce of Donington, L.

Hatch of Lusby, L.

Caradon, L.

Houghton of Sowerby, L.

Chitnis, L.

Irving of Dartford, L.

Cledwyn of Penrhos, L.

Jacques, L.

647

Jeger, B.

Ponsonby of Shulbrede, L. [Teller.]

Jenkins of Putney, L.

John-Mackie, L.

Ross of Marnock, L.

Kilmarnock, L.

Seear, B.

Kirkhill, L.

Serota, B.

Leatherland, L.

Shackleton, L.

Lee of Newton, L.

Shinwell, L.

Listowel, E.

Stedman, B.

Llewelyn-Davies of Hastoe, B.

Stewart of Fulham, L.

Longford, E.

Stone, L.

Lovell-Davis, L.

Strabolgi, L.

McIntosh of Haringey, L.

Taylor of Blackburn, L.

McNair, L.

Taylor of Gryfe, 1.

Mais, L.

Thurso, V.

Mar, C.

Underhill, L.

Mayhew, L.

Wallace of Coslany, L. [Teller.]

Mishcon, L.

Molloy, L.

Walston, L.

Nicol, B.

Wedderburn of Charlton, L.

Ogmore, L.

Whaddon, L.

Oram, L.

White, B.

Peart, L.

Wigoder, L.

Perry of Walton, L.

Willis, L.

Phillips, B.

Wootton of Abinger, B.

Pitt of Hampstead, L.

NOT-CONTENTS

Ailsa, M.

Kinloss, Ly.

Allerton, L.

Kinnaird, L.

Avon, E.

Kintore, E.

Baker, L.

Lane-Fox, B.

Bellwin, L.

Lauderdale, E.

Beloff, L.

Lawrence, L.

Belstead, L.

Lindsey and Abingdon, E.

Bessborough, E.

Long, V.

Bolton, L.

Loudoun, C.

Brougham and Vaux, L.

Lucas of Chilworth, L.

Caccia, L.

Luke, L.

Campbell of Alloway, L.

Lyell, L.

Campbell of Croy, L.

Mackay of Clashfern, L.

Cathcart, E.

MacLehose of Beoch, L.

Charteris of Amisfield, L.

Macleod of Borve, B.

Chelwood, L.

Marley, L.

Clifford of Chudleigh, L.

Massereene and Ferrard, V.

Coleraine, L.

Merrivale, L.

Cottesloe, L.

Molson, L.

Craigavon, V.

Monk Bretton, L.

Dacre of Glanton, L.

Montgomery of Alamein, V.

Davidson, V.

Mottistone, L.

De La Warr, E.

Mowbray and Stourton, L.

Denham, L. [Teller.]

Norfolk, D.

Dilhorne, V.

Northchurch, B.

Donoughmore, E.

Nugent of Guildford, L.

Drumalbyn, L.

Orkney, E.

Eccles, V.

Pender, L.

Ellenborough, L.

Portland, D.

Elton, L.

Quinton, L.

Ferrers, E.

Reigate, L.

Ferrier, L.

Renton, L.

Fortescue, E.

Rochdale, V.

Fraser of Kilmorack, L.

Romney, E.

Gainford, L.

Sandford, L.

Geoffrey-Lloyd, L.

Sandys, L.

Gibson-Watt, L.

Seebohm, L.

Gisborough, L.

Sempill, Ly.

Glanusk, L.

Shannon, E.

Glasgow, E.

Skelmersdale, L.

Glenarthur, L.

Somers, L.

Glenkinglas, L.

Spens, L.

Gridley, L.

Stamp, L.

Hailsham of Saint Marylebone, L.

Stodart of Leaston, L.

Stradbroke, E.

Hayter, L.

Strathcarron, L.

Henley, L.

Sudeley, L.

Hives, L.

Swinton, E. [Teller.]

Holderness, L.

Taylor of Hadfield, L.

Home of the Hirsel, L.

Terrington, L.

Hornsby-Smith, B.

Teynham, L.

Hunt of Tanworth, L.

Trefgarne, L.

Hylton-Foster, B.

Trumpington, B.

Inglewood, L.

Vaux of Harrowden, L.

Ingrow, L.

Vickers, B.

648

Vivian, L.

Wynford, L.

Windlesham, L.

Young, B.

Wise, L.

Resolved in the negative, and amendments disagreed to accordingly.
6.11 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 72:
Page 21, line 20, after ("which") insert ("the Registrar is satisfied that").
The noble Lord said: My Lords, this is a short amendment and I promise your Lordships a short speech. The provisions of Clause 28 at page 21 of the Bill, line 20, deal with the exemption of the matters we have just been talking about from the subject access provisions "in any case", says the Bill,
"in which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection".
Nobody mentions in the Bill who will decide whether or not they do in fact prejudice any of the matters so mentioned. Therefore, this amendment is inserted in order to see that it is clear that the registrar is the person who has to be satisfied that that prejudice in fact occurs; otherwise, as I said, the Bill is silent. I beg to move.
Lord Elton: My Lords, the effect of this apparently modest amendment would be considerable. What it does is to require any data user wishing to avail himself of the exemption from subject access in Clause 28(1) to seek the approval of the registrar first. Only when the user has been able to satisfy the registrar that giving access would be likely to prejudice the prevention of crime or one of the other Clause 28(1) matters could he then avail himself of the exemption. In practice that would mean that on each occasion a representation would have to be prepared for the registrar; and on each occasion the registrar would have to be satisfied that granting access would be likely to prejudice the purpose for which the data were held.
I know that the noble Lords opposite feel that the police and the other bodies concerned should have to go through such an exhaustive procedure before any exemption is claimed. But is that really what we want? Is it really right to place the police under such a heavy burden? The claim on police resources would be very considerable. Also, the claim on the registrar's resources would be, proportionately, even more substantial. There could well be quite a number of applications for exemption from subject access; and he would have to consider every one. For those reasons, we should hesitate at least before erecting a procedure with such significant implications in this area. And I would add that what the noble Lords opposite are suggesting goes considerably further than what, to my knowledge, our European partners have done in legislating in this field.
But now let me turn to an element of the scheme of exemptions in the Bill as drafted that already provides significant safeguards against abuse by users. The noble Lords opposite rather suggest that without their amendment it is entirely up to the user to decide whether or not data should be exempt under Clause 28(1) and that there is no check on that decision. That is not so. To suggest it arises probably from a misunderstanding.

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The entitlement to subject access is enshrined in the seventh principle as well as in Clause 21; and if that principle is breached, the registrar can act. So if the registrar comes to the view that a user is claiming exemption where the statutory requirements—such as the test of prejudicing the purpose—are not met, then he can conclude that data to which access has been requested are being improperly withheld, and the seventh principle is being contravened. He can thereupon issue a notice on the user, perhaps ordering him to grant access, either just in the case of the data subject concerned or in broader terms, by requiring an amendment to the user's general practice in giving access.
So we have there a mechanism whereby the registrar can involve himself in these matters where appropriate, a mechanism that seems to have escaped the notice of the noble Lord. And there is a further safeguard in the Bill—perhaps the best safeguard of all—the courts. Where a subject wishes to challenge a data user's withholding of data under Clause 28(1), he can avail himself of Clause 21(8) and seek a court order for access. The courts will then determine whether the data concerned are properly exempt or not: and my noble and learned friend the Lord Chancellor not so long ago moved an amendment to Clause 25 designed to clarify the procedure in such cases.
Not only have noble Lords opposite overlooked that safeguard, but their amendment cuts directly across it. That may well be unintentional, but the effect is certainly to prevent the courts from reaching an independent determination of whether a claim to exemption from subject access is justified or not. For once the exemption rests on whether or not the registrar is satisfied, the role of the courts is fundamentally diminished. All they can consider is whether or not the registrar was satisfied, rather than the substantive issue of the justification for exemption. In the Bill as drafted, therefore, we have an interlocking mechanism to safeguard subjects. We avoid the need for every single claim to exemption to receive prior approval from the registrar, with all the difficulties that that presents. But we allow dissatisfied subjects to seek the assistance of the registrar to check that an exemption is justified—or indeed the registrar to mount an investigation on his own initiative if his concern is aroused. And we also allow subjects the alternative route via Clause 21(8) to the courts. We believe that this is a sensible, practicable approach which allows the registrar and the courts jointly to look after subjects' interests, without the serious difficulties that arise from the proposals of the noble Lords opposite. I hope they will think better of them.
Lord Mishcon: My Lords, the noble Lord the Minister has suggested that certain things have escaped my notice. If they had done, that would not be an exception to a general rule; it would be the general rule, I am sure. But he is not justified in this particular instance. I am not going to press this amendment, but what I am going to do—since this Bill is going to another place, and I suppose there is an opportunity at Third Reading to reconsider—is to look briefly at what the noble Lord the Minister has said where one is trying to interpret rights under Clause 28(1). At
650
present the words are absolutely bald. The words say that personal data are exempt where there is likely to be a prejudice of any of the matters mentioned in this subsection. There is nothing to indicate who is the final arbiter of whether the prejudice takes place.
I suggest that if the learned registrar, when duly appointed, has grounds for suspicion and writes to the Commissioner of Police or the Home Office or whoever it may be, and says: "I have been asked to look into this matter", since the words are so bald, the answer could easily be, "The registrar is courteously referred to Section 28(1). We have taken the view that this is likely to prejudice matters mentioned in that subsection, and therefore, Mr. Registrar, we have no need to justify ourselves before you".
"Ah", says the noble Lord the Minister, telling me that things have escaped my notice, which they very likely could, "Have a look at Section 21(8), because under Section 21(8) the courts could indeed look into the matter". Therefore, if one refers to page 18 one finds that Section 21(8) reads:
"If a court is satisfied on the application of any person who has made a request under the foregoing provisions … that the data user … has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request".
So the court, on looking at its rights in that matter, looks at Clause 21(8) and sees that the data user has decided, in the case of the Ministry, that it is likely to prejudice matters mentioned in the subsection, and it says that in those circumstances presumably there has been no contravention of the provisions and, prima facie, therefore, it cannot look into this matter under Clause 21(8).
I may be absolutely wrong in regard to this submission, but I do not think I am. All I ask at this stage, instead of burdening your Lordships with a long debate and argument between the Minister and myself which will be interesting for us but possibly not to your Lordships, is for the Minister to consider my remarks and if, with his usual courtesy, he can write to me in the meantime and say with good reason that I have not been talking sense, then I shall know that I ought not to raise the matter again. However, if he does find that there is some sense in what I am saying, and it appears to me that there is and that at the present moment the clause leaves the position wide open and is certainly open to doubt, I have no doubt he will take suitable action and that we will see something before Third Reading.
Lord Elton: My Lords, with your Lordships' leave, I will merely say that there is, of course, always some sense in what the noble Lord says. I regret rashly assuming that on this rare occasion he had overlooked something in the Bill. I am also grateful to him for being charitable for my much lesser legal experience than his and for giving me time to marshal my arguments, if indeed there are arguments, against what he says.
Lord Mishcon: My Lords, in those circumstances I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.22 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 73:
Page 21, leave out lines 25 to 34 and insert ("the disclosure is made under compulsion of law")
The noble and learned Lord said: My Lords, this amendment arises from the same clause which has given concern to the House, as I think is clear from the last Division. I refer to the provisions of Clause 28. The effect of subsection (2) is to establish a blanket exemption from the non-disclosure provisions for all disclosures of information to third parties relating to all four categories: prevention and detection of crime; apprehension and prosecution of offenders; assessment of tax; and control of immigration. They are all blanket exemptions. There is no provision and no element in this part of the Bill of the judicial control which exists in the proposals of the Home Office relating to the Police and Criminal Evidence Bill which is now going through another place. That Bill adopts a totally different policy for dealing with the same problem.
Under Clause 10 of that Bill the police are also given power to obtain access to confidential records, but only on the order of a circuit judge and to be made only if he is satisfied,
"that a serious arrestable offence has been committed;"
and that evidence about it cannot be obtained in any other way. There is no such judicial control in this all-embracing blanket provision. In our submission it is essential that such control should exist.
The amendment we are discussing provides that the disclosure can be made only under compulsion of law; that is to say, by an order of a court. The question whether it should be on the authority of a circuit judge or some other judicial authority could be made the subject of further consideration.
The seriousness of this matter and the importance of this amendment is reflected in a letter, of which I have received a copy, which was sent to the Home Secretary by Sir Douglas Black, the president of the Royal College of Physicians, and doing so as chairman of an inter-professional working group which was convened to advise the Health Department on access to personal health information under the Bill. The professional bodies represented on the Group, on whose behalf the president of the Royal College was writing, include the British Medical Association, the British Association of Social Workers, the British Dental Association, the British Psychological Society, the Council for Professions Supplementary to Medicine, the Health Visitors Association, the Royal College of Midwives and the Royal College of Nursing. That is a formidable array of those concerned with health matters and, of course, with the protection of the privacy of patients and, indeed, the duties of the medical profession itself. The letter to the Home Secretary says:
"The Group has asked me to express to you, as a matter of urgency, their grave concern about the eflect of Clause 28(2) of the Bill on the confidentiality of health information, and on public confidence in that confidentiality. As drafted, this sub-clause would allow anyone who happens to have custody of health records to disclose them to a wide range of public authorities, without the consent or even the knowledge of the patient or client or of the health professional who has charge of his welfare, without any judicial control, and without any prior or subsequent notice of such disclosure, even in the most general terms, to the Data Protection
652
Registrar or the public. My Working Group have asked me to tell you that they find this proposal quite unacceptable."
Sir Douglas states:
"I understand that amendments have been put down for the Report stage."—
this is the relevant amendment—
"and I would urge you either to accept these, or to put forward appropriate Government amendments which will meet our objections."
If I may say so, that is the most formidable and serious support for the amendment, emanating, as I have said, from all the distinguished authorities in the field of health. Accordingly, I trust that on this amendment, at any rate, I shall receive the support of the House. I beg to move.
Lord Wigoder: My Lords, I spoke at considerable length on this same amendment in Committee and I know that what I said then is, of course, fresh in all your Lordships' minds. Therefore, it is not necessary for me to repeat the arguments this evening.
In supporting the noble and learned Lord, Lord Elwyn-Jones, I summarise what I said then in only two sentences. First, although under this clause as it stands there is no question of requiring medical men to divulge the confidences entrusted to them by their patients it will, in practice, operate as an encouragement to medical men to do so. Secondly, if that situation develops it will have an alarming effect on the patient-doctor relationship and on the trust which a patient should feel in his doctor and on the complete freedom which the patient should feel he has to disclose whatever he wishes to his doctor in the interests of the efficiency of his own medical treatment.
If the amendment is adopted it would mean that doctors would be able to disclose information only where they have been required to do so judicially. That would bring this Bill completely into line with the Police and Criminal Evidence Bill and, I suggest, would be a very desirable combination.
Lord Houghton of Sowerby: My Lords, unfortunately I was prevented from taking part in the debate on this clause during the Committee stage, but on carefully reading the debate that took place then on 22nd February I must say that I was left with a feeling of considerable confusion and unease as to precisely what powers were to be given and to whom under this subsection.
This Bill is a curious one in some ways. Part of it concerns data protection; to protect the citizen from information being accumulated which may damage him and to which he should be given access. Part of this Bill confers on the citizen a right that he does not have already. But the other part is a data disclosure Bill. We are dealing with that in subsection (2). We have finished with the rights of the citizen to access; the data access provisions and the data access exemption provisions. Now we come on to the data disclosure provisions and the exemption from them. Unless we take very great care indeed, we shall be stumbling into changes in existing practice and probably in existing statute law provisions regarding the custody of confidential information.

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This amendment does not wholly cover what I have in mind in my amendment a little later, Amendment No. 74B, which is quite specific and which deals with the particular type of confidential information—a particular area of it—which is governed at the present time by statute law. It is that that I want to see completely exempt from any disclosure provisions under this Bill.
I think that in some areas of information held by Government departments and agencies it would be far better to have the particular areas of possible disclosure discussed as separate matters rather than have them covered by what my noble and learned friend calls a blanket provision. In principle I take the view that a citizen who is required by law to disclose information about himself, with enforcement provisions supported by penalties, is entitled to be assured that the information that he gives under compulsion shall be used for the purpose for which the statute law says that it is required and under the provisions of which he is required to give it, and that the information should be used only for that purpose and for none other, except as provided by law. That is the principle of the matter and I think that it should be absolutely inviolable.
In particular cases the law does provide, and has been openly debated as providing, for an exchange of information between one agency and another. I give an example. The Inland Revenue and the Customs and Excise have freedom of exchange of information under the statute law for certain purposes which are approved by Parliament. That is all right, because then the citizen knows that, when he is giving the information to that particular agency, it may be used for another specified purpose which is clear under the law also, and he can be guided accordingly in giving his information, knowing what use may be made of it.
However, if that is to be abrogated or altered by this subsection, then I think that we are entering into a very serious quandary indeed, and that is whether we are really safeguarding the interests of the citizen under this Bill or exposing his person and his interests to a fresh risk, not specifically endorsed by law, not known to him in advance and not notified to him when it is being done. These are the dangers I think that lurk in the provisions of this particular clause. I may be confused. I make no apology for it. I was once described as a reasonably intelligent layman, and I apply my mind to these matters as best I can, but it is extremely difficult to know exactly what is afoot in these proposals. The assurances that I think we need need to be very clear and very specific.
I am not at the moment seeking to trespass upon the particular matters that I might have to refer to later; but again as an example I refer to the declaration which is made by members of the Board of Inland Revenue:
"I … do solemnly declare that I will not disclose any information received by me in the execution of my duties except for the purposes of those duties or for the purposes of any prosecution for an offence relating to inland revenue, or in such other cases as may be required by law".
If I do not ask it now I must ask it later on: is that declaration, modified, altered, abrogated, relaxed or mucked about with by this Bill? If it is, the Bill is wrong. I think that we have to take very great care that,
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if we are going to alter that, it has to be done by a Finance Bill, where previous departures from the strict code of confidentiality that I have already referred to were discussed and ultimately agreed to. But my noble and learned friend is dealing with a compulsion of law where an order of a court is made and that indeed can apply in particular cases also.
I hope that the noble Lord who handled this with great care—I thought with greater clarity towards the end of the proceedings than he began with—will be able to make some things clear. Certainly I think that he has a case to answer here as to whether information, mostly in the hands of official agencies, can be raided by other authorities under the cover of this Bill or whether they have to have something much more specific and with greater authority than appears to be provided by the system of the registrar.
6.37 p.m.
Baroness Seear: My Lords, may I follow the very serious letter from the BMA read by the noble and learned Lord, Lord Elwyn-Jones, and ask the Minister whether the implication is, for example, that the records of psychiatrists and psychoanalysts could be laid bare for the benefit of the courts? If so, it seems to me that it undermines the whole prospect of treatment of that kind. Can the Minister reassure us? I am sure that a great many people would be extremely concerned at the possibility. Can we get it on the record one way or the other?
Lord Hatch of Lusby: My Lords, I am not completely certain that this is the correct place to raise this point; it is a very short point. I think that at least obliquely it does arise here when we are discussing the collection of data. The noble Lord will recall that at the Committee stage I asked him whether his attention had been drawn to the Khera case, in which the judgment had only recently been given by the Law Lords. This clearly alters both the law relating to the control of immigration, the regulations and the practices. It has now become the law and it has removed what previously had been used within immigration regulations: the duty of candour.
I wonder whether, in replying to the points that have been raised by my noble friend Lord Houghton of Sowerby and from our Front Bench, the noble Lord the Minister would deal with that. He said in Committee that he would write to us about those points that he had not been able to cover. We are now at the Report stage and we need an answer as to whether he sees the relationship of the regulation of immigration to this Data Protection Bill as having been changed by the judgment that was published by the Law Lords.
Lord Mishcon: My Lords, very briefly I should like to bring to a head what in my submission is the essential matter before your Lordships. In the main there are two considerations. First, this is a question of voluntary disclosure and all that we have in the clause is that the person who discloses matters which are confidential has a complete defence if he has a reasonable belief in thinking that one of the matters mentioned in the clause would be prejudiced. I am thinking of prosecution, the prevention of crime and so on. The consideration of your Lordships is

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restricted to this one point. All right, let it be so, but for heaven's sake! let the data subject have notice on the register that such disclosures could be made to various authorities. If that is so, and if that is on the register, then of course a different situation applies. If it is not, it has to be under compulsion of law.
The second and last point is this. Surely it is wrong for this amendment not to be supported by your Lordships if every single one of the responsible health bodies in this country has begged of your Lordships quite openly to vote for an amendment such as this and not allow the existing words to stand.
Lord Elton: My Lords, the point from which the noble and learned Lord, Lord Elwyn-Jones, departed on his foray against the Bill on this occasion was its congruence with what we propose to provide in the Police and Criminal Evidence Bill at present in another place. Perhaps I can get that issue out of the way first by reminding your Lordships of what I said in Committee about the relationship between this clause and Clause 10 of that Bill.
The two Bills deal with different issues and it would be wholly unreasonable to apply the same provisions in respect of both sets of issues. Clause 28(2) of the Data Protection Bill applies when a user wishes to disclose information to the police in connection, say, with an investigation into crime. He is not obliged to disclose but if he wishes to then he can do so in circumstances of the kind I have described without fear of contravening the provisions of the Bill. Of course such disclosure may even assist a data subject by enabling the police to eliminate him as a suspect. With the Police and Criminal Evidence Bill we are dealing with very different matters. Clause 10 of that Bill enables the police to obtain evidence relating to the commission of a serious arrestable offence when they suspect that someone has evidence but will not make it available. In these circumstances the police cannot get the evidence without a power to do so, and that is what the Bill gives them. The Bills are therefore quite different in purpose and it is right that they should be different in construction.
Perhaps I may deal, as a preliminary, with the matter also raised by the noble Lord, Lord Houghton of Sowerby. I would just reassure him in the following terms. As I have explained both today and on other occasions, the effect of Clause 28(2) of the Bill is to disapply the non-disclosure provisions of the Bill where this application would be likely to prejudice any of the purposes specified in Clause 21(1). It does not, however, oblige the data user concerned to disclose any information in these circumstances; nor does it even authorise him so to do; nor does it affect in any way any obligation of confidence which may apply to a data user in relation to the information he holds about a data subject. This is something to which the noble Lord, Lord Mishcon, should listen carefully because it is directly relevant to what he was asking me. This clause does not affect in any way any obligation of confidence which may apply to a data user in relation to the information he holds about a data subject.
In particular, as I explained to the House during the Committee stage, Clause 28 does not override the
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Inland Revenue's strict rules of confidentiality which, with certain very limited exceptions, preclude the disclosure of information about a taxpayer to a third party without the taxpayer's consent. I had intended to say that to the noble Lord, Lord Houghton, at a later stage but from what he has said at this stage it occurred to me that he might not find it necessary to revert to that because I can give him that unqualified assurance.
I can also, as a preliminary—
Lord Mishcon: My Lords, will the noble Lord the Minister permit me to interrupt? I dealt with the voluntary nature of the disclosure and asked the noble Lord the Minister how he could possibly justify a voluntary disclosure when the register does not contain—and the data subject has been led into the belief that it is all all right if he gives the information—a warning that disclosure may in certain circumstances be made of that information. As he knows, this was called by the Lindop Committee a palpable fraud on the public. It is a responsible committee. How does the noble Lord answer that charge?
Lord Elton: My Lords, perfectly simply: if it is a palpable fraud it has been continued from time immemorial. This Bill gives no authorisation to disclose, no encouragement to disclose; it merely removes the prohibition on disclosure contained in the Bill itself. It is absolutely without effect on anything else. The noble Lord is straining at a non-existent gnat, if I may say so in that context.
I hope that the noble Lord, Lord Hatch, will also permit me to address myself to him as a preliminary—and I am sorry to have so many preliminaries. I can simply reassure him that the case of Khera has been drawn to my attention and I am advised that it does not affect this Bill at any point. I hope that the noble Lord will not ask me to explain why that should be so. I am prepared to do so at length on paper, but not now.
We have talked about balance a great deal in this Bill and we are talking now about a part of the Bill where it is important to get it right. We cannot be responsible for creating a situation in which personal data are protected to such an extent that society as a whole suffers in other respects. I do not need to remind your Lordships that the need to make special provisions in the interests of law enforcement has been recognised by all member states of the Council of Europe. Article 9 of the convention refers specifically to derogation from the convention's provisions where necessary in a democratic society in the interests, among other things, of the monetary interests of the state and the suppression of criminal offences.
I do not think that we have been leaning towards the forces of law enforcement in this respect. Unlike certain other European countries we have not allowed for a general or blanket exemption—as the noble Lord, Lord Mishcon, called it—from the Bill's requirements for what is often loosely referred to as "criminal intelligence" data. We have covered all such data by the Bill; we have required them to be registered; and we have generally made them subject to the registrar's powers.
I ought to revert to what I see as the general issue here, and perhaps I ought to illustrate by an example

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the situation that could result if this amendment were adopted. The police may often need to approach companies or organisations in the course of their inquiries into crime. For example, to check an alibi and find out whether a particular person was at work in a builder's yard on a particular day; or to find out who has bought a particular item of clothing or hired a particular vehicle in the past month. This is the kind of information that the police must seek in order to build up a picture in their investigation of a crime or a suspect. The papers constantly show how particularly dangerous people have been apprehended as a result of this type of information. But as computers are more widely used, more and more of the information will be held on them. Users will have to register their particulars. But the general run of user is not going to specify the police as a prospective recipient of data as the noble Lord suggests.
It means that all of us who are honest citizens would have to specify the police as possible recipients of data if we were to satisfy the noble Lord's desire to give warning. If the police were after a rapist, or a murderer, or any other sort of criminal, we would then feel that it was our duty as a citizen to inform the police. That is the duty of every citizen. If the police came to a user for information held on a computer, and if the user is ready to disclose the information, the user will be able to disclose it without falling foul of the provisions prohibiting disclosure that would otherwise apply, provided that the prevention or detection of crime, et cetera, would be likely to be prejudiced if such disclosure were not made.
I have written a great deal more, but it seems to me that I have addressed myself to the concern of the noble Lord and the noble and learned Lord, and indeed of Sir Douglas Black and his supporters, who read like a roll of battle honours of the Mental Health Bill, with which I am very familiar, and for which I have a high regard. I think that this must relieve the anxieties of patients, and indeed of the noble Baroness herself, because it does not produce a requirement or even a justification to disclose. It merely prevents the prohibition of disclosure elsewhere in the Bill from affecting the subject areas here described. I do not think I ought to speak longer. I cannot put it more clearly than that. It is at the end of my speech, and that is where the noble Lord, Lord Houghton of Sowerby, says that I am always best at making myself clear.
Lord Elwyn-Jones: My Lords, I regret that I do not think that that explanation will satisfy the eminent medical men who have written this letter. What is voluntary and occasional is now being given statutory significance. What is voluntary will quickly become what is obligatory, or what is sought to be obligatory. In my submission, the answer of the noble Lord is quite unsatisfactory, and I invite the views of the House upon this matter.
6.52 p.m.
On Question, Whether the said amendment (No. 73) shall be agreed to?
Their Lordships divided: Contents, 81; Not-Contents, 91.

DIVISION NO. 2

CONTENTS

Avebury, L.

Listowel, E.

Bacon, B.

Llewelyn-Davies of Hastoe, B.

Beaumont of Whitley, L.

Lockwood, B.

Beswick, L.

Longford, E.

Birk, B.

Lovell-Davis, L.

Bishopston, L.

McCarthy, L.

Blease, L.

McIntosh of Haringey, L.

Boston of Faversham, L.

McNair, L.

Briginshaw, L.

Mar, C.

Brooks of Tremorfa, L.

Mishcon, L.

Bruce of Donington, L.

Nicol, B.

Byers, L.

Ogmore, L.

Chitnis, L.

Oram, L.

Cledwyn of Penrhos, L.

Peart, L.

David, B.

Perry of Walton, L.

Diamond, L.

Phillips, B.

Elwyn-Jones, L.

Pitt of Hampstead, L.

Evans of Claughton, L.

Ponsonby of Shulbrede, L. [Teller.]

Ewart-Biggs, B.

Fisher of Rednal, B.

Portsmouth, Bp.

Gardiner, L.

Rea, L.

Glenamara, L.

Ross of Marnock, L.

Gormley, L.

Sear, B.

Gregson, L.

Serota, B.

Hale, L.

Shackleton, L.

Hampton, L.

Stedman, B.

Harris of Greenwich, L.

Stewart of Fulham, L.

Hatch of Lusby, L.

Stone, L.

Hayter, L.

Strabolgi, L.

Hooson, L.

Taylor of Blackburn, L.

Houghton of Sowerby, L.

Taylor of Gryfe, L.

Irving of Dartford, L.

Taylor of Mansfield, L.

Jacques, L.

Thurso, V.

Jeger, B.

Tordoff, L.

Jenkins of Putney, L.

Underhill, L.

John-Mackie, L.

Wallace of Coslany, L.

Kilmarnock, L.

Walston, L.

Kirkhill, L.

Wedderburn of Charlton, L.

Lawrence, L.

Whaddon, L.

Leatherland, L.

White, B.

Lee of Newton, L.

Wigoder, L. [Teller.]

NOT-CONTENTS

Ailsa, M.

Glasgow, E.

Allen of Abbeydale, L.

Glenarthur, L.

Alerton, L.

Gridley, L.

Avon, E.

Hailsham of Saint Marylebone, L.

Bellwin, L.

Belstead, L.

Henley, L.

Bessborough, E.

Hives, L.

Bolton, L.

Holderness, L.

Broadbridge, L.

Home of the Hirsel, L.

Brougham and Vaux, L.

Hornsby-Smith, B.

Caccia, L.

Hylton-Foster, B.

Campbell of Alloway, L.

Inglewood, L.

Campbell of Croy, L.

Ingrow, L.

Cathcart, E.

Kimberley, E.

Chelwood, L.

Kintore, E.

Clifford of Chudleigh, L.

Lane-Fox, B.

Coleraine, L.

Lauderdale, E.

Colville of Culross, V.

Lindsey and Abingdon, E.

Cottesloe, L.

Long, V.

Craigavon, V.

Lucas of Chilworth, L.

Dacre of Glanton, L.

Lyell, L.

Davidson, V.

Mackay of Clashfern, L.

De La Warr, E.

MacLehose of Beoch, L.

Denham, L. [Teller.]

Macloed of Borve, B.

Drumalbyn, L.

Massereene and Ferrard, V.

Elton, L.

Molson, L.

Fairfax of Cameron, L.

Monk Bretton, L.

Ferrers, E.

Montgomery of Alamein, V.

Ferrier, L.

Mottistone, L.

Forbes, L.

Mowbray and Stourton, L.

Fortescue, E.

Napier and Ettrick, L.

Fraser of Kilmorack, L.

Norfolk, D.

Gibson-Watt, L.

Nugent of Guildford, D.

Gisborough, L.

Orkney, E.

Glanusk, L.

Quinton, L.

659

Rochdale, V.

Swinfen, L.

Romney, E.

Swinton, E. [Teller.]

St. Davids, V.

Thomas of Swynnerton, L.

Saint Oswald, L.

Trefgarne, L.

Sandys, L.

Vaux of Harrowden, L.

Sempill, Ly.

Vickers, B.

Skelmersdale, L.

Vivian, L.

Spens, L.

Windlesham, L.

Stodart of Leaston, L.

Wise, L.

Stradbroke, E.

Wynford, L.

Sudeley, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
7 p.m.
Lord Avebury Lord Avebury moved Amendment No. 74:
Page 21, line 26, after ("(1)") insert ("(a) to (c)").
The noble Lord said: The noble and learned Lord, Lord Elwyn-Jones, moved an amendment a short while ago which dealt with the subject access provisions applying to immigration control, and this amendment deals with the non-disclosure provisions. The noble Lord, Lord Houghton, was right when he said that parts of the measure should be called the Data Disclosure Bill, because the effect of the subsection with which we are dealing is that people who have personal data under their control are given authority (that they would not otherwise have had under the Bill) to transfer it to another person if it is required for the purposes of immigration control.
The Minister has explained several times—I concede this—that nobody is obliged to give this information under the Bill. However, I believe that the effect of a provision of this kind, appearing on the face of the Bill, is that people will be more inclined to give it than they otherwise would have been, and that confidential information will be transferred from one computer to another where it would not formerly have been transferred when the systems were in manual form.
The noble Lord had addressed to him by the noble Lord, Lord Houghton, when we were debating the last amendment, a perfectly fair question, which the Minister did not answer. That was whether there would be any change in the practice of Government departments, other than the Inland Revenue, in the way in which they passed information between themselves, other than was already provided for by statute. Lord Houghton will remember that when we were looking at this matter in the Royal Commission on the Standard of Conduct in Public Life we did an examination of the legislation and found there were seven Acts of Parliament which specifically authorised the transfer of information between one agency of the Government and another and that no information was transferred other than under those statutes. Now, with this provision in the Bill, we want to know—and I hope the Minister will answer the question—whether exactly the same prohibition on transfer will apply in future as was the case in the past. That question has been addressed to the noble Lord several times.
Even if the answer is that the Government will not so transfer information, the private data user will be under enormous pressure to do so. The Minister said that this provision did not create a new category of information in the sense that there was no right of subject access at present to information required for
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the purposes of immigration control. But I suggest that we are creating a new class of information; that is, the class of information held by private data users which will be more liable to disclosure for the purposes of immigration control than it would have been in the absence of a provision of this kind.
I wish to raise a few other points which the Minister raised on the previous amendment but to which I did not reply at the time, although I thought they were rather misleading. He mentioned—and it was very amusing—the case of the Portuguese citizen who had been removed nine times from this country but who still kept returning. I think I happen to know the case because it is one that is still under consideration by the Minister's colleague in the department. The person concerned maintained he was a patrial and had been trying to establish his patriality all this time, but because he did not have the date of birth of his grandfather—he had been looking in the wrong place in the records—he was unable to do so. But I understand that he now has his grandfather's birth certificate and is in a position to establish his patriality to the satisfaction of the Minister. Therefore, on the previous nine occasions when he was detected and removed, he ought to have been allowed to remain on the basis that he was entitled to be here under our law.
Another point the Minister emphasised in debating the previous amendment was the right of parliamentary representation to a Minister where anything was done which was irregular or improper under Clause 28. But everybody has the right to make representations through their Member of Parliament to any Minister; it is not something specifically given to the potential victims of the immigration control network in case they may be subject to some infringement of their rights.
There was considerable discussion, both in Committee and earlier today, of the way in which the immigration control provisions of the Bill could be treated as coming within the exemptions from the general principles laid down in the convention and which the convention, of course, permits. The Minister had said—and he repeated it today—that Article 9.2.b specifically provided for the derogation of the convention's prohibition provisions where necessary, in the interests of protecting the rights and freedoms of others. He said it was in the interests—that was the word he used—of the people settled here that immigration control should be effective.
However, I respectfully suggest that it does not mean that anybody's rights or freedoms are violated at present by reason of the fact that immigration officers may not be able to access personal data held by some private user or by another Government department. I do not think any person could bring a case under the European Convention—looking at it the other way round—alleging that there had been some violation of his rights by reason of the fact that the number of illegal entrants was marginally higher than it would otherwise have been because Home Office snoopers were able to pry into bank accounts, employment records, social service reports or medical files, as they might be able to do under Clause 28(2). But the rights and privileges of people who are, as has been said,

661
largely from ethnic minorities are likely to be violated as a result of the clause, as I shall attempt to show.
As I said, the Minister pointed out that no data user was obliged to disclose personal data in consequence of Clause 28(2), and that what the provision did, strictly speaking, was only to relieve the data user from an obligation not to disclose which he would otherwise have had under the principles of Schedule 1. If it were never the intention that the data user should disclose—if there would not be cases where he will do so voluntarily as a result of the provisions of the clause—then the Minister would have had no difficulty in agreeing to the amendment. So we must work on the hypothesis that people will disclose data as a result of the provisions of Clause 28(2). The essence of the clause is that otherwise confidential information will be given to immigration officers on demand.
We are not talking about people who have committed criminal offences. The Minister kept returning to this subject and he kept talking about people who had come here illegally, being juxtaposed, quite properly, with those dealt with under (a) and (b). But as we have said time and again, for the purposes of the detection and prosecution of offenders, we do not object to those provisions; what we are concerned with is the extension of the exemption provisions to people who have not committed any criminal offence. As the noble Lord told me in reply to a Question for Written Answer, the Home Office's computer, containing 300,000 names of individuals, will cover other categories of people, such as overstayers and people who in the past have been refused leave to enter or to remain. Those were the two classes that the Minister mentioned when we were discussing the subject on 22nd February.
If someone tries to enter under another name—which was the example that the Minister gave—he is committing a criminal offence, and he will be covered by subsection (1)(a) and (b). So that leaves only the overstayers as people whom the Minister considers ought not to be entitled to the protection of non-disclosure, even though they are not suspected of having committed any criminal offence. If there are other kinds of data subject whose particulars the Government consider ought to be disclosed in furtherance of immigration control, it would be useful if in the course of the discussion on the amendment the Minister could tell us who they are. Either they can be enumerated, in which case a more limited exemption than is now to be found in the Bill could be drafted, or they cannot be enumerated, which means that virtually anybody could be the subject of a request by an immigration officer for disclosure of his personal data.
I should like to give some examples of what may be thought likely to happen. A close relative of someone who is suspected of infringing the law on immigration might be the subject of inquiries, as indeed such a person frequently is, because the Home Office works on the principle of guilt by association in the immigration rules, and it frequently suspects, for instance, the brother or a cousin of someone who has been caught for an infringement of the immigration law of wishing to do the same himself. Alternatively, there might be someone with a name similar to that of an overstayer or a suspected illegal entrant. There
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might be involved, for instance, all the tenants of a local authority who have the surname of Shah, or all the patients with Asian names who attended an antenatal clinic between certain dates.
It is the danger of fishing expeditions of the kind that I am describing that I believe most people find quite frightening when they look at this legislation. We already know that the police and the immigration authorities conduct joint raids on work places from time to time, and that many innocent people, who have settled here, and who may even be citizens of this country, are swept up in the net. Quite apart from the trauma which they must undergo as a result of the experience of being taken into a police station and interrogated, they might also suffer long-term disadvantages in consequence of being recorded, as in this case, on the police national computer.
The clause will mean that thousands, if not tens of thousands, will have their particulars entered on the illegal immigration intelligence unit computer, through having some remote connection with immigration control. Let us for a moment think about what would be the consequences for the individual who, quite unknown to himself, is one of the 300,000 persons whose names are on the computer. For instance, his personal data could be disclosed under Clause 27, if he were a civil servant being vetted for promotion, and the fact that his name had appeared on the illegal immigration intelligence unit computer at all might tip the scales against his promotion, even though his character was completely without stain. If he applied for citizenship, then again it could be held that access to the Harmondsworth computer was justified in the interests of national security, and the very fact that his name was on that computer would jeopardise his application. If he invites a relative from his country of origin to stay with him and any doubt arises about the relative's intentions to stay here only for a visit, the immigration officer dealing with the case will do a search on that person as the sponsor. If the result is positive, it might lead to the relative being refused.
The police rely heavily on informants, as the noble Lord the Minister stated in the context of a discussion on the defence against a charge of inaccuracy. It was stated that the data came from a third party, and the assumption then was that inaccurate information might frequently get into police records. Equally, I fear, it is possible that inaccurate information will get into immigration records by coming from third parties in the way that I have described.
One saw the harmful results of wrong information in their most glaring form in some of the recent police operations that have taken place. For example, the police recently burst into the bedroom of an old-age pensioner couple, as reported in the Guardian on 1st March. They went in at gunpoint, smashed their way into the flat where the old people lived, and terrorised them, when they were perfectly innocent of any offence. The whole thing had been a ghastly mistake. In the case of names held on immigration computers and information coming from other sources which may be inaccurate, the consequences might not be quite so extreme as that, but they have the additional characteristic that the victim will probably never know

663
what information about him has been accessed, or how it has been used.
It is not only the organisations that are specifically concerned with civil liberties and which one would expect to be concerned about this matter—such as the National Council for Civil Liberties, or the Joint Council for the Welfare of Immigrants—that are against the proposals. The British Medical Association has pointed out the objections as it sees them. In a memorandum which it published on the clause the BMA stated:
"If, in exceptional cases, a transfer of information is made to a computer system which is classified as exempt, the BMA believes that each transfer of personal medical examination should be recorded, together with a description of the type of information released. Such transfers and descriptions should be published within a specified period of time in order that the decision to disclose may be open to scrutiny and challenge".
So the British Medical Association itself can see the dangers of this type of transfer of information that is dealt with in Clause 28(2).
The National Association of Citizens' Advice Bureaux produced what I thought was an extremely effective argument when it pointed out the problem of selectivity in confidentiality. It states that in dealing with the public, as it does, in connection with a broad mass of problems that are brought to it, it cannot say that in exceptional cases the information would be released to another agency, because then it is a question of where one draws the line. So it is either all or nothing, and the National Association of Citizens' Advice Bureaux obviously will have to decline to give information to immigration control agencies when it is asked for it, but it will be under constant pressure to do so as a result of the provisions of the clause.
I really hope that, whatever the Government ultimately decide about subject access—and I view that as equally important—they will address their minds very seriously to the transfer of data to the immigration control computers which will occur as a result of the clause, that they will think about the objections that have been raised to it not only by noble Lords in this House but also by very many organisations outside, and that they will take away the clause and remove it entirely from the Bill. I beg to move.
Lord Elton: My Lords, on Amendments Nos. 70 and 71 we considered whether immigration control was a matter which should benefit from the exemption contained in Clause 29(1), and your Lordships agreed that it should. On the last amendment, No. 73, we discussed the general question of whether there should be exemptions from the non-disclosure provisions, and again your Lordships gave the view that there should be. Now we are moved from that general area to one that is more particular and are asked to consider whether data used for the purposes of immigration control should benefit from the non-disclosure exemption.
The Government are firmly committed to the enactment of data protection legislation, but we do not believe that that commitment should offer assistance to wrongdoers. For that reason we proposed some limited exemptions which disapply certain of the provisions of the Bill where this is necessary in the
664
interests of effective law enforcement. When the police are investigating crime not only should they be able, as now, to seek information from whoever can give them useful assistance, but those able to help the police should not face the threat of a criminal sanction for disclosure, where to withhold disclosure would prejudice the effective prevention or detection of crime. Similarly, if the immigration authorities need to make inquiries in a particular case involving immigration abuse, the person concerned should not be able to avoid detection just because the holder of the vital information has not registered the disclosure which is sought and, although only too ready to make the disclosure, is therefore precluded from doing so by the non-disclosure provisions.
My Lords, there are many disclosures for the purposes of immigration control that will be fully registered. The provisions of Clause 28(2) will not cast a total veil of secrecy over all such disclosures. The exemption can only apply where necessary to avoid prejudice to immigration control. Let me offer an example where the exemption will be necessary and where the exemptions for purposes such as crime prevention will not apply. A person may be convicted of a criminal offence, not necessarily an immigration offence, and the courts may fine him or give a suspended prison sentence and recommend him for deportation, as they are empowered to do. If a deportation order is made but he then goes to ground, steps have to be taken to find him so that the deportation order can be enforced. The only means of tracing him may be through the computer record of a one-time employer, or an educational establishment where he was a student, who will not have registered any possible disclosures to those responsible for immigration control. Where they do not wish to disclose the information, there will be no way of requiring them to do so. In other words, the Bill alters existing rights as to that by not so much as a hair's breadth. But where they decide that they would wish to do so, the Bill should surely not prevent them.
My Lords, deportation action is entirely administrative and the holders of the records cannot rely on paragraphs (a) and (b) of subsection (1) in order to enable them to divulge the necessary information. Without the immigration exemption in Clause 28(2) they would have no choice but to remain silent. The effect of the noble Lord's amendment might therefore be that we would be unable to give effect to the court's recommendation. The effective enforcement of immigration control does require us to seek exemption from certain of the provisions of this Bill in particular circumstances and the disclosure of information, about which we are here concerned, is an important aspect of the enforcement of immigration control.
Those are the principal considerations that I leave before your Lordships. I would pick up (because the noble Lord would otherwise tax me with not having done so) the question of any change in the Government practice as to the exchange of information between Government computers. May I remind the noble Lord that, by virtue of Clause 35(1), each Government department will be a separate user and, therefore, a transfer from one department's computer to another's will be a disclosure under the Bill and Clause 28(2) will not lead to more such disclosures

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than there now are. The noble Lord also referred to "fishing raids", as I think he called them, and suggested that exemption from the non-disclosure provisions for the purposes of immigration control could be used as the basis for what he so described.
I have to tell him that this is not the case. In the first place, no one will be under any obligation as a result of this provision to provide any information whatsoever to the immigration authorities. Where they decide to disclose data, they must have reasonable grounds for believing that failure to do so would prejudice immigration control; otherwise they lay themselves open to prosecution. I am unable to imagine circumstances in which the failure to disclose personal data which is sought on a purely speculative basis could reasonably be thought to be prejudicial to immigration control.
Secondly, random fishing operations of this sort do not take place. Any investigations that are made are made only on the basis of firm evidence against particular subjects; although I suppose that mistakes may happen. This Bill imposes constraints which do not exist at the moment and there is no reason, therefore, to suggest that this provision gives any basis for starting any such random inquiry.
The final point which I ought to pick up within the context of what I have already said is the noble Lord's reference to the immigration service intelligence unit computer. There are a large number of names of people on it, as he said. They fall into certain clearly defined categories: for instance, those who have been refused leave to enter or refused entry clearance or who, in certain cases, have been deported from the United Kingdom or who are considered to be involved in abuse or attempted abuse of immigration laws. The only other thing that I would add to that piece of information is that the vast majority of the records relate to people who are outside the United Kingdom but may seek to come here. Only some 10 per cent. of the records relate to persons thought to be in the United Kingdom. I perhaps regret having put that at the end of what I had to say. The principal consideration was that to which I first addressed myself. I hope that the noble Lord will not press his amendment. But, if he does, it is on that basis that I shall ask your Lordships to resist it.
7.25 p.m.
Lord Avebury: My Lords, the Minister said nothing to lessen my alarm about the way in which data can be transferred under this provision. For instance, if I start at the end of his remarks, he said that only 10 per cent. of the people on the illegal immigration intelligence unit were actually physically present in this country—which means that, at the moment, you have got 30,000 names there of people who are resident here, most of whom, as the noble Lord has said, are lawfully present.
Lord Elton: My Lords, my intention was to say that there were 30,000 not resident here. I am sorry; I have moved the decimal point, my Lords. The approach of
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dinner has made me over-excited. The noble Lord is quite right.
Lord Avebury: My Lords, I thought the noble Lord said that 10 per cent. of the people on the immigration intelligence unit computer were resident in this country, which means 30,000 people.
What we are talking about is not the situation that we find today but what may happen as a result of the Bill and the numbers of persons whose particulars will be transferred from other data users to the intelligence service unit under this provision. The noble Lord said that data users are not going to give information without being satisfied that they are required to do so for the purposes of immigration control. But on an earlier amendment it was said that the word of the immigration officer will be conclusive here.
If an immigration officer comes to an employer or to an educational establishment—to take the other example the Minister gave—and says that he wants all the persons in the establishment with certain names, then, if he says that that is required for the purposes of immigration control, in many cases presumably the education establishment or the employer will give the information and a large number of names will finish up in the immigration intelligence unit computer, being names of people who do not have anything at all to do with the commission of offences.
The Minister may say that there are no raids except on good evidence and it may be a fact that, for example, in the Safeways supermarket raid there were certain people apprehended who were either illegal immigrants or overstayers. What I was saying was that into that net was swept a large number of people who had no connection whatsoever with the infringement of immigration control. If those persons had their names fed into the computer, it could be very disadvantageous for them in the long run.
The Minister gave only one example to show how information of this kind could be of material importance in a case where there was no actual criminal offence being committed. That was of a person who had been given by a court of law a suspended sentence with a recommendation for deportation and who subsequently went to ground. That was a spurious example. As the Minister will find if he makes inquiries, those persons are nearly always detained under Schedule 2 to the Immigration Act 1971 pending their deportation—as are those people who come to the end of their sentence and who have been recommended for deportation by a court of law. If the Minister has not already decided whether to accept the recommendation, they will be detained following the end of their sentence under Schedule 2 to the Immigration Act 1971. Those people are not physically in a position to abscond and would never do so.
If that is the best example that the Minister can produce for the reasons why persons who have not committed a criminal offence ought to be on this computer and inquiries ought to be made about them, for example from employers or educational establishments, I am afraid that I cannot accept his argument and must ask the House to join me in the Lobby and to throw out this proposal.
7.30 p.m.
On Question, Whether the said amendment (No. 74) shall be agreed to?
Their Lordships divided: Contents, 64; Not-Contents, 78.

DIVISION NO. 3

CONTENTS

Avebury, L.

Lockwood, B.

Bacon, B.

Longford, E.

Beaumont of Whitley, L.

Lovell-Davis, L.

Bernstein, L.

McCarthy, L.

Beswick, L.

McIntosh of Haringey, L.

Birk, B.

Mackie of Benshie, L.

Bishopston, L.

McNair, L.

Blease, L.

Milner of Leeds, L.

Bringinshaw, L.

Mishcon, L.

Bruce of Donington, L.

Nicol, B.

Byers, L.

Ogmore, L.

Chitnis, L.

Oram, L.

Cledwyn of Penrhos, L.

Peart, L.

Collison, L.

Perry of Walton, L.

David, B.

Pitt of Hampstead, L.

Elwyn-Jones, L.

Ponsonby of Shulbrede, L. [Teller.]

Evans of Claughton, L.

Ewart-Biggs, B.

Rea, L.

Foot, L.

Ross of Marnock, L.

Gardiner, L.

Seear, B.

George-Brown, L.

Serota, B.

Hampton, L.

Stewart of Fulham, L.

Harris of Greenwich, L.

Stone, L.

Hooson, L.

Strabolgi, L.

Hylton, L.

Taylor of Blackburn, L.

Irving of Dartford, L.

Taylor of Mansfield, L.

Jeger, B.

Tordoff, L.

Jenkins of Putney, L.

Underhill, L.

John-Mackie, L.

Wallace of Coslany, L.

Kaldor, L.

Whaddon, L.

Kirkhill, L.

White, B.

Kissin, L.

Wigoder, L. [Teller.]

Llewelyn-Davies of Hastoe, B.

NOT-CONTENTS

Ailsa, M.

Hailsham of Saint Marylebone, L.

Allerton, L.

Avon, E.

Hayter, L.

Bellwin, L.

Hives, L.

Belstead, L.

Holderness, L.

Birdwood, L.

Home of the Hirsel, L.

Boyd-Carpenter, L.

Hornsby-Smith, B.

Brougham and Vaux, L.

Ingrow, L.

Caccia, L.

Kimberley, E.

Campbell of Alloway, L.

Kintore, E.

Campbell of Croy, L.

Lane-Fox, B.

Cathcart, E.

Lauderdale, E.

Chelwood, L.

Lawrence, L.

Coleraine, L.

Long, V.

Colville of Culross, V.

Lyell, L.

Cottesloe, L.

Mackay of Clashfern, L.

Dacre of Glanton, L.

Macleod of Borve, B.

Davidson, V.

Marshall of Leeds, L.

Denham, L. [Teller.]

Massereene and Ferrard, V.

Drumalbyn, L.

Molson, L.

Eccles, V.

Monk Bretton, L.

Elton, L.

Montgomery of Alamein, V.

Fairfax of Cameron, L.

Mottistone, L.

Ferrers, E.

Norfolk, D.

Ferrier, L.

Orkney, E.

Forbes, L.

Rochdale, V.

Fortescue, E.

Romney, E.

Fraser of Kilmorack, L.

Saint Oswald, L.

Gibson-Watt, L.

Sandys, L.

Gisborough, L.

Sempill, Ly.

Glanusk, L,

Skelmersdale, L.

Glasgow, E.

Spens, L.

Glenarthur, L.

Stodart of Leaston, L.

Gridley, L.

Stradbroke, E.

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Sudeley, L.

Vivian, L.

Swinfen, L.

Windlesham, L.

Swinton, E. [Teller.]

Wise, L.

Trefgarne, L.

Wynford, L.

Vaux of Harrowden, L.

Young, B.

Vickers, B.

Resolved in the negative, and amendment disagreed to accordingly.
7.37 p.m.
Lord Glenarthur: My Lords, this may be a convenient moment to break for dinner, and I beg to move that further consideration on Report be now adjourned until twenty minutes to nine.
Lord Ponsonby of Shulbrede: My Lords, did I understand the noble Lord to say that we would not return to the Report stage of the Data Protection Bill before 8.40 p.m.?
Lord Glenarthur: My Lords, not before twenty to nine.
Moved accordingly, and, on Question, Motion agreed to.

British Fishing Boats Bill
7.38 p.m.
Earl Ferrers: My Lords, I beg to move that the British Fishing Boats Bill be now read a second time. This Bill is introduced in order to tackle a growing problem for the United Kingdom fishing industry—that of a large influx of foreign, mainly Spanish, fishing vessels which have re-registered as British. Their motive in re-registering has been in order to circumvent the European Community licensing restrictions. A by-product of their action has been, though, a substantial and adverse effect on the interests of our catchers.
The Bill passed through all its stages in another place quite quickly during the night of 7th/8th March, and this reflected, I think, a common desire to tackle what is an urgent problem. While I would not wish in any way to circumscribe your Lordships' proceedings, I would hope that it might be possible for us to pass the Bill through all its stages this month.
In brief, the problem is that since May 1980 some 67 ex-Spanish vessels—or British vessels with a Spanish association—have become registered in this country. There are 63 registered at the present time and there are rumours of further potential applicants for registration who are trying to take advantage of the loophole which is provided by the liberal arrangements for registering vessels which, for broader international shipping reasons, we operate.
Their objective is to evade the restrictions on fishing opportunities which are provided for in the Community bilateral agreements between Spain and the Community; and the main activity of these vessels at present is vigorous fishing of the British quota for hake. Valuable non-quota species, such as the angler fish and West Coast sole, are also caught but hake is their main target and the ex-Spanish vessels are fishing

669
against a British national quota which was set up by the efforts of our own catchers. I am sure that your Lordships will agree that this is quite unacceptable. The activities of these vessels not only compete with genuine British catchers, but they make no significant contribution to the fishing economy of this country because most of the catch is landed in Spain, and the bulk of that which is landed here is immediately transported to Spain by lorries direct as soon as it is landed in our ports.
There is the further disagreeable reality that, because of the way in which this is done, catches by these vessels, even when they are landed in the United Kingdom, avoid the levy which is imposed by the Sea Fish Industry Authority, because the fish are not sold here. And not only that but, because of the Spanish connection, the fish so caught benefit from import duty relief and sometimes even access, which is not available to British vessels which wish to land catches in Spain. It is, therefore, to use a colloquialism, a proper mare's nest.
I hope that I have said enough to apprise your Lordships of the nature of the problem and of the reasons for the hostility in many parts of our industry towards the growth of this new "Spanish armada". Your Lordships may wonder why we did not decide to tackle the problem through the registration system. Well, we did consider such a course, but we concluded that the solution to what we regard as a short-term problem would not lend itself to this approach because of the need for consistency with our long-term approach to international shipping questions.
I thought that your Lordships might prefer me not to take the House through this somewhat complicated-looking Bill clause by clause. The heart of the matter in fact lies in Clause 1. This empowers the fisheries Ministers to make, by order, conditions governing the qualification of British fishing vessels to fish in our waters. The key to this is the crewing of the vessels concerned. At present, apart from the skipper and the first hand (who must, in acordance with other legislation, be British nationals) the crews of the vessels in question are mainly Spanish; and the success of their present operations in fact depends on this. In order to close this loophole, we propose to use the order-making power to ensure that the crew of British fishing vessels must, in future, consist mainly of nationals of the Community.
We have in mind, therefore, to specify in the order a qualification that at least 75 per cent. of the crew of a British fishing boat which is fishing in British waters shall be Community nationals. It is possible, of course, that some of the vessels which will be affected by this change will seek to comply with the new rule by employing more British crew. If that is so, then so be it.
The remainder of the Bill deals with questions of enforcement and various other what one might call housekeeping questions, and I do not propose to weary your Lordships with a recital of them this evening, although I am, of course, willing to expand on them if any noble Lord wishes me to do so. With that explanation, I commend the Bill to the House as a significant move to tackle the problem which I have
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described. I beg to move that the Bill be now read a second time.
Moved, That the Bill be now read a second time.—(Earl Ferrers.)
7.45 p.m.
Lord John-Mackie: My Lords, the noble Earl, Lord Ferrers, with his usual clarity and breeziness, has put the matter to us very well indeed. The Government have asked for this Bill to be got through as quickly as possible and we have no objections to that, but in the time that we have been given—that is, tonight and next week during the Committee stage and so on—we must look at it critically.
The noble Earl has given the overall picture very well. He used the expresion "Spanish armada", which is worrying our fishermen. However, I should like to point out that these boats have been operating since 1980 and they have in that time established themselves in various ports, mainly in the South-West of England and of Wales. I understand that the Government wish to have the order laid before Easter—that is the order which the Minister of State has said will stipulate that 75 per cent. of the crew must be British, which is not in the Bill—and that it will come into effect at the beginning of April.
However much it is considered that these companies are "quota-jumping", or whatever the expression may be, they are not breaking the letter of the law. They are acting perfectly legally in using the British flag of convenience, as it is called, in the various ports they are working in. I feel that a sudden cessation of those activities might do a tremendous lot of harm in some areas. During the debate in another place it was pointed out—I do not know how accurate the figure is—that the area could be affected to the tune of five million, and a tremendous number of jobs lost. Of course, it could be short term: I would not disagree about that. The longer-term benefit might cancel it out: we do not know. After all, when we think that Spain is due to enter the Common Market in less than three years' time—and, of course, there will be a transitional period—in that period the long-term benefit might not cancel out the short-term one at the present moment.
In the same debate speakers from all the areas concerned took part, except South Wales. I know that the Secretary of State for Wales sits for that area and naturally he is inhibited from taking part in debates. But I have had representations from a company running eight of these boats from Milford Haven. A partner in the company which runs this operation is a long-established member of the fishing industry in that port. He maintains that his operations, along with those of five other boats, are the lifeblood of the fishing industry in Milford Haven. He maintains that they only fish about 50 per cent. of their time in the traditional fishing waters of Milford Haven boats. He provided me with a chart showing the areas in which they fish. The rest of the time they fish in the Bay of Biscay, which is, of course, international waters; and they land most of their fish direct into Spain.
He also maintains (and I understand it to be correct) that all the areas fished and all the fish caught are registered with MAFF, so there is no lack of informa

671
tion about how much is caught and where they are caught. They are poviding a lot of business at this port: the ice factory, the local co-operative society, plus, of course, port dues et cetera. They employ—and I have checked this—three handicapped people in repairing fish boxes on the quay.
As regards the crews, they are willing to employ British fishermen but there is none available there, except older men who are unfortunately past their best. They have brought men from Grimsby and other East coast ports, who were unemployed, but naturally those people do not stay there. Some stay for up to six months, but others stay for less than a fortnight. They have started training young men and they have four young "deckie-learners" employed on their boats. At present, they have 12 young men aged from 16 to 18 at the fishery training section of Grimsby Technical College, and another 16 are ready to start again in May. So, as the noble Earl, Lord Ferrers, said, they are doing a lot to try to crew-up with British people, but it takes time. I was surprised to be told that unemployment in the area is 30 per cent. It seems an extraordinarily high figure, but I have checked it. If these boats are stopped as suddenly as they are likely to be, it will not help that situation.
Your Lordships may think that I have just lapped-up the story of an interested party. Quite frankly, I am a little too long on the tooth for that. I have checked on the partner in this company, and have found that he is a very respected member of the fishing industry in Milford Haven. He has been in the job for the past 25 years, and his father and grandfather were in it before him. I have also checked with the various local fishermen's associations and have found that the picture which I have described is basically correct. I had a word with the chief executive of the council. When I asked for the chief executive, I was slightly amused to be told that he was just called the town clerk. Names like chief executive have not yet reached Milford Haven. But he confirmed the situation regarding unemployment in the area, and the fact that those eight boats had made a considerable difference.
It can be said that you can legislate only for a majority. I have discussed with Members in the other House and various other people the situation in Cornwall and around that area where there is a problem. I agree about the difficulty of legislating for a majority, but I should like to suggest two courses. Can some time be given to crew-up with EEC fishermen, or is it possible to legislate on a regional basis? I wonder whether the noble Earl would care to comment on that. I do not know, but we may have to look at this in Committee next week.
I have raised these points simply because there is another side to the story, and because in hurried legislation like this, although it may be very necessary, there can be mistakes and this House is here to see that mistakes do not occur. Considerable injustice could arise if we did not look at the position very carefully. I look forward to hearing the Government's view on what I have said; but we shall see that the Bill gets through in the time that we are given, provided that these points are looked at carefully.
7.53 p.m.
Lord Mackie of Benshie: My Lords, I entirely agree with my noble kinsman that we must look at this carefully. But if 63 Spanish boats have taken the trouble to register as British boats and employ people who I understand do very little but give them an excuse to work the fishing grounds, after which the fish goes to Spain, there is something very wrong. The Bill must bristle with difficulties. It may well create a lawyers' paradise. The noble Earl, Lord Ferrers, talked about 75 per cent. of the crew; but I do not think he said that they must be British. I believe he said that they must be citizens of the Community. This raises a lot of other questions. What about Community boats, for example, in waters within the 12-mile limit? Are they to be allowed to fish there?
We all hope that in a certain length of time Spain will be a member of the Community and what will happen then? Will we have a renewal of the traffic? What real harm are these boats doing? I think the noble Earl said that they fish mainly for hake. Is there no market for hake here? Is there a far better market in Spain? Are our fishermen allowed to land in Spain? These are all questions that we need to look at because it might be said that the Spaniards are very enterprising. I should like to know more about the rules governing landing in Spain. I should also like to know whether they get a higher price there, and, if so, why our own fishermen cannot take advantage of the position.
I think that the lawyers will have to look at the other questions which will arise, and when we reach the Committee stage I shall certainly ask some of my noble friends who are lawyers to take them up. It is a little curious to lay down rules and make orders, so that unless a boat has 75 per cent. British employees it cannot do certain things which other British registered boats can do. It raises questions about what happens to foreign-owned companies in this country, which may well have British employees and which take advantage of British markets, British subsidies and other things. It appears to be making a very strong exception of fishing boats, if these registered boats are not allowed to take advantage of British conditions. In other words, while I admit that the Bill must be necessary if 63 foreign vessels have gone to the trouble of registering as British vessels, it appears to me that the difficulties are immense. I should like the noble Earl to answer those questions about Community nationals and about the profitability of this traffic. I should also like to know why our own fishermen cannot take advantage of this traffic, if it is profitable.
7.57 p.m.
Lord Campbell of Croy: My Lords, I congratulate my noble friend on introducing this Bill and I thank him for his explanation of it. As he and, I think, other noble Lords who have spoken will know, I have on several occasions in recent months been pressing for a measure of this kind to be introduced by the Government. I believe that action is now essential. There are over 60 of these ex-Spanish vessels now registered at different ports in the United Kingdom, including some ports in Scotland. By masquerading as British, they have been making absolute nonsense of the European Community's fishing agreements. Not only have they

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been fishing in the European pond, as if they were British, but they have also been enjoying United Kingdom privileges which have been hard-won during nearly 10 years of negotiations within the EEC. It would have been intolerable and totally unacceptable, after the EEC agreements were reached in January, only a few weeks ago, if some measure of this kind had not been introduced.
These Spanish vessels have added to the numbers of the genuine United Kingdom fishing fleet, which is allotted quotas. Indeed, if this measure were not going forward, how many more such boats from Spain or, indeed, other countries outside the European Community would have gone through the process of getting themselves registered in United Kingdom ports?
The main problem in recent years, where our fishing industry and our neighbour countries' fishing industries are concerned, is that too many fishing boats have been chasing limited stocks of fish in European waters. As my noble friend has said, the Spanish vessels have been fishing for one species in particular, which is a quota species—one for which within the EEC quotas are allotted—and that is hake. I know that hake is a fish for which British fishermen have been fishing for many years. In port fish markets over the last 30 years I have seen quantities of hake which have been landed.
These 60 foreign vessels have been making use of the red ensign as a flag of great convenience for substantial fishing operations. Until Spain joins the Community, her fishing boats should be working within any bilateral agreements which are concluded, if they wish to operate within the EEC pond. That is the correct way. What would mostly be available under such agreements would be the species of fish which are not in danger of being over-fished—that is, fish which would not be under quota. That is the kind of agreement under which Spanish fishing vessels registered in Spain should be fishing if they are within the Community's fishing limits.
In this debate we should not consider what happens when Spain becomes a member of the EEC. That would take us all night. We have touched on this matter before, in particular during our debate on the enlargement report of the Select Committee. It is clear—the Government have said so—that a vital part of the negotiations for Spain's entry will be agreement upon changing the fishing policy of the Community. The Spanish fleet as a whole is now larger than the fleet of any member of the Community, including our own. That is indeed an armada which we shall have to consider and deal with later. The Bill deals with the immediate situation, and rightly so. I do not criticise the Spanish fishermen who have been doing this; nor do I criticise the Spanish Government. I must make that absolutely clear. What is being done is entirely legal. But what it does is to upset and distort the purposes of international agreements. Indeed, it drives a coach and horses through the European Economic Community's fishing policy.
If I may turn to the Bill, it is an enabling measure. Clause 1 simply gives to the Government the power to lay orders. I understand that the Government propose to lay the first order in April, which is only a few weeks
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away. I was very glad to hear this, and I hope that my noble friend will be able to confirm it when he speaks at the end of the debate. It is not in the Bill, but we have heard, as the noble Lord, Lord John-Mackie, has said, that the intention is to prescribe a percentage—75 per cent. is being mentioned—of the crew who must be, and we understand that it is to be, nationals of the Community. That is rather different from the similar idea which was used when we were considering in a debate here a few weeks ago the question of whether ex-Spanish boats registered in the United Kingdom should be eligible for the grants which the Government were then about to make. The main provision was that 75 per cent. of the crews should be United Kingdom nationals. Like the noble Lord, Lord John-Mackie, I should like some explanation of the difference and to know whether the Government believe that 75 per cent. of EEC nationals would not vitiate the agreement about our own coastal strips of 12 miles and 6 miles. It would have been outrageous if by the interplay of technicalities these ex-Spanish fishing boats were to be receiving the special interim subsidies which were issued by the Government, and therefore coming from the British taxpayer, during the period when the EEC agreement was being negotiated.
The area to be specified, in which the Bill when it is enacted is to be valid, is, we understand, to be the United Kingdom 200-mile limit, not the whole of the EEC pond. This could be changed in future by later orders under Clause 1. I approve of that system. The advantage of Clause 1 is that the Government should be able to lay further orders if it seems that loopholes have been found—that is, ways of circumventing the provisions of an earlier order.
It is clear that some British people have been providing the brass plates and helping over the required British skipper and mate in order that such vessels should be able to qualify for United Kingdom registration. I am sure that sometimes this has been done with the best of intentions. The suggestion that this has been making some contribution on a modest scale to certain areas, on the lines mentioned by the noble lord, Lord John-Mackie, must be set against the overriding needs of the existing United Kingdom fishing industry and the potential, from British sources, to fill any gaps. Over the last two years the Government have had to grant substantial sums to the United Kingdom fishing industry because many of the boats have been tied up. Although, therefore, some local contributions may have been made, because this situation has been allowed to develop over the last three years or so, that cannot be allowed to override the much more important factors. These ex-Spanish fishing boats enjoy certain advantages. My noble friend mentioned the levy and the duties. This is known to our fishermen who consider they are having to operate on an unequal basis.
Under the Bill, the boats will remain registered as British. Accordingly, I have two further questions to which I should be grateful for answers this evening, if possible. First, I understand that the British shipping industry does not feel that problems will be raised by the Bill. I wonder whether my noble friend could confirm that point. The way in which the Bill is drafted means that the vessels remain registered as United

675
Kingdom vessels. But the Bill applies only to fishing vessels. Therefore, the rest of British shipping should not be affected.
My second question is a little more complicated, but I believe it is important and I hope your Lordships will be prepared to bear with me. It concerns the cooperation which may be necessary with other member countries of the Community. I have Ireland particularly in mind. Let us suppose that some of these ex-Spanish vessels, still registered in the United Kingdom, were, after the Bill has been enacted, fishing within Ireland's fishing limits—that is, beyond the 200-mile limit of the United Kingdom or beyond the median line between the United Kingdom and Ireland. Whether those vessels were fishing for quota species or other species, there could well be complaints from the Irish Government, and those complaints would presumably be directed to the United Kingdom Government. Technically they would be United Kingdom vessels which, as both the Irish Government and Irish fishermen would think, would be making use of the British flag in order to fish in their waters as if they were Community vessels. How are such situations to be dealt with? Have the Government in mind that it would perhaps be possible to extend the area to the whole of the EEC pond rather than simply to the 200-mile United Kingdom fishing limit? Or are there further problems if we try to do that?
The last point I wish to raise is one of speed. I will remind your Lordships that the other place passed this Bill through all its stages from Second Reading to Third Reading and with a Committee stage including amendments, in one day. In fact, it was during a night but it was within four hours. That was because the other place recognised the urgency of this Bill. I hope that we in this House will do the same. I will also point out that there must have been 20 or more speakers, but not a single voice was raised in opposition to this Bill from any part of the other place. Several speakers pointed out that there was quite a bit of lobbying in this country against the Bill, which is understandable. But they also pointed out that the lobbying was done by people who betrayed that they knew very little about the British fishing industry and that many of the arguments were not very significant.
It will be seen that having urged the Government to do something about this problem, because it could have become much greater with more and more vessels being registered in this way, I welcome what the Government are doing and hope that your Lordships will give a passage to this Bill without delay.
8.11 p.m.
Baroness Hornsby-Smith: My Lords, it will not surprise your Lordships how warmly I welcome this Bill. Indeed, I can certainly assure your Lordships' House how well this Bill has been received by the inshore fishermen and the leaders of the Trawlermen's Protection Society in Sutton Harbour and, I am given to understand, by the protection societies in other ports. I have been informed that there was a BBC programme in which the point of view put forward by the noble Lord, Lord John-Mackie, had a very fair run. What I find deplorable is that the Secretary of the Joint Trawlermen's Protection Societies for the South
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Coast fishing ports, Mr. Cooper, has never been contacted, and nor has Mr. Williams, the representative in our port with a view of the genuine inshore fishermen.
I believe there has been some misunderstanding over the fact that this has mainly affected the 12-mile inshore limit. There are certain variations, and for traditional historic reasons it is six miles, but basically it is a 12-mile limit. Within that limit the French cannot fish and the Danes cannot fish. Those are our inshore limits. The main objection is that these boats, through the device of declaring themselves as being British registered, are not only counting against the quantity of fish which is listed against the United Kingdom, but are also taking advantage over their EEC colleagues who are not allowed to fish in that area. This Bill is of enormous importance to our inshore fishermen, who have had a very rough 10 years.
I should like to congratulate my noble friend and his right honourable friend the Minister for the speed with which they have dealt with this flagrant abuse —however feeble it may appear on the face of it—of the regulations covering the registration of British trawlers. I should also like to thank my noble friend and his colleagues for their tolerance towards my persistence on this issue.
Down in the South-West, the inshore fishermen, by and large, have comparatively small boats. They are competing against trawlers worth anything from ¼ million to £1 million, undoubtedly owned and operated from Madrid and registered under the shell of £100 companies, some of which were investigated in Lloyd's List and found to have only £5 paid up capital. They are operating as British owned. Further, their operative skipper and crew are all Spanish with a second English skipper merely preparing and presenting the paperwork at the ports and registering the vessel as British. By this ruse, they fish within our 12-mile limit. If they are allowed to continue pursuing this course, how long before the Italians, the Portuguese, the Danes and others all think that this is a happy and easy ruse by which to enter Britain's 12-mile limit? I guarantee that if a British trawler went within the Spanish 12-mile limit, it would have a gunboat after it.
The trawlermen were heartened by the quota arrangements arranged by the right honourable gentleman the Minister of Agriculture, Fisheries and Food, and we were looking forward to a modest increase in the number of trawlers being recommissioned due to the fact that we had an assured quota under the EEC regulations. We felt that the Government had dealt with the Klondikers and the Russian boats, and had dealt with the Danish one-man invasion into our inshore waters. Now, they suddenly have on the horizon 67 trawlers. There were 67 trawlers in southern waters in one day when I went out there, and how many there are in the North my noble friend will know better than I. Many of those vessels had very substantial catches; far better than those which the boats of our inshore fishermen could carry. They went off with their catches to their own real home ports. Not only did they purloin chunks of the United Kingdom fishing quota, for which we fought so hard, but from the point of view of the ports, they deprived them of

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their legitimate landing charges, which provide the major part of fishing harbour income.
We welcome the increased surveillance by the fisheries patrol and in particular their inspection of nets. Infringements apply to many nationalities, and not exclusively to the Spanish, with the use of much smaller meshes than those which have been agreed by the EEC. This is disastrous for all the attempts to maintain quotas and to ensure that we do not catch immature fish and so reduce the stocks for which we have agreed quotas, and have ordered the mesh size of fishing nets. By catching these smaller, immature fish, all the efforts of the European Community to conserve fishing stocks are being jeopardised. The fishing authorities have already found that some of these Spanish operated boats do not conform to the safety regulations that we enforce. Indeed, they have been challenged on the too small number of life rafts which they carry.
British trawlermen have a long and proud record of fishing skills and seamanship. To the inshore fishermen, the 12-mile limit is their home territory. They welcome this legislation, which will ensure that a trawler flying a British flag or bearing British registration will be truly owned by a British company capable of paying for the type of vessel that is employed, and that it shall be substantially manned by British or, occasionally EEC crews; and that inshore fishing within prescribed limits agreed by the EEC shall be applied nationally and not become international through such ruses as those I have mentioned. I heartily welcome this Bill and hope that your Lordships will see it quickly on its way.
8.20 p.m.
Lord Saint Oswald: My Lords, what has drawn me into this debate is the impression that there is more in this than flashed before the eyes and passed the ears of another place within the last few weeks. We have been told with satisfaction how quickly it went through. The Members of both Houses are busy men and women, and Governments of all complexions like to bring through with expedition legislation to be enacted. This admirable energy can lead to occasional injustice, and I believe it has led to some measure of injustice in this case and up to this point.
In particular—and this is something to which I shall have to return before the end of a suitably brief speech—the promoters of an enterprising and potentially profitable scheme have not been given, so I understand, the opportunity to discuss its merits with a Minister. They have been kept at arm's length, or at least, they feel that they have been kept at arm's length, and should this be so it would seem to me uncivil and a dubious policy in my book. They consider that their enterprising and potentially profitable scheme is being emasculated as one result of this Bill, and certain speeches have made it clear that this is the intention, to emasculate. They seek a normal opportunity to discuss their views with a Minister and officials.
What is concerned is the fishing by some 60 British registered middle-water trawlers, purchased in Spain, the catches being sold by Britain to Spain. As a European I have to see in this a sensible and at least potentially a valuable joint venture to the benefit of
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our country and Spain. The principal species of fish involved is hake, and I have heard convincing denials that the fishing for hake in the South-Western approaches to our country does disturb the activities of our local inshore fishermen who mostly fish for inshore species. My noble friend and neighbour who is sitting along the Bench contradicted this just now, and she knows the territory better than I do, she knows the coastline better than I do. I find it a pity that she found it necessary to introduce the word "abuse"; and some of the fairly inflammatory language which followed explaining why she considered it an abuse distressed me.
Whatever hake may be caught, whether by the middle-water boats or the local fishermen—and the latter's amount is very limited—it is landed in the Welsh and South-Western ports. This is where my information comes from. It is landed in the Welsh and South-Western ports and exported to the European Community and Spanish markets. The resultant harbour and handling dues from the middle water boats, and other administrative expenditure, accrues to the benefit of our country. Yet, if the Bill is passed in its present form the activity and the benefits of these middle water trawlers must cease overnight; that is to say, it has been suggested that it would probably be in April. The operators cannot recruit the necessary 75 per cent. of European Community crew that they need to recruit over a phased period of time, although they have told me they would be perfectly willing to seek such crews given reasonable time. This modification was in fact tactfully and pleasantly put forward by the noble Lord, Lord John-Mackie.
Given this span of time—and it could be a variable span of time up to two years—a minimum of 600 to 1,000 jobs could become available to British nationals. There is of course the realistic factor that if and when Spain enters the European Community, Spanish fishermen will become automatically eligible to crew these trawlers. We have been told that this does not matter, that we should not be talking about this. The fact is, if action of the kind contemplated in this Bill is taken as rapidly as proposed it will hardly make for good inter-Community relations when that day comes.
Lord Cambell of Croy: My Lords, I wonder if my noble friend would allow me to intervene. I am most grateful to him. I think I was the only speaker who spoke about Spain joining the Community. I certainly did not say that it did not matter. What I said was that we could not discuss this now because it was such a major matter. Some of us have been discussing this in Select Committee and in debates in this House for a long time, and we have been assured that that will be one of the main subjects in the negotiations for Spain's entry. That is a separate matter, although it is connected, which we really could not discuss this evening.
Lord Saint Oswald: My Lords, I was only responding, I hope, as gently as my noble friend has gently intervened. I was saying that it is pertinent to this Bill and to this debate.
For these reasons, and others, I am persuaded that we need to examine the various issues involved in this Bill with the greatest care during its Committee stage

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to ensure that injustice is not done and distrust created, through hasty judgment, solely to achieve the speedy enactment of this proposed legislation. I repeat, I am not speaking to criticise the legislation itself, only to note certain details which appear to have been ignored or lightly treated. My information is that local British fishermen concentrate on the inshore species. What limited hake is caught by them is mainly transported by lorry from British ports in Wales and the South-West to the Continent, principally to the North of Spain. The operation of what is called the joint venture fleet, described in a rather excited way as a Spanish armada, offers a means of expanding and rendering more efficient this trade, thereby providing additional employment and export earnings to this country.
Such potential involving, as it does, a friendly country, now an aspirant to Common Market membership, should, I affirm, be given encouragement rather than a cold shoulder. It should be measured encouragement, not wholesale encouragement and not unquestioning encouragement. It should be a measure of encouragement. In the past few days I have spoken to serious, thoughful men who have sought interviews with Ministers to expound their plans. I seriously hope that this can be done. A spokesman might come from the Welsh fish producers' organisation. There are other bodies involved. They have not so far been received and this distresses me. It would be far better from every point of view if a Minister involved in these matters should receive a deputation and so, in all probability, obviate the need for the setting down and debate of amendments during the latter stages of this Bill.
8.28 p.m.
Earl Ferrers: My Lords, I am grateful to those of your Lordships who have taken part in this debate and for the views which have been expressed. It is not surprising that in a debate of this nature the views of the two kinsmen, the noble Lord, Lord Mackie of Benshie, and the noble Lord, Lord John-Mackie, characteristically do not agree. That is something to which we have become used, and charming it is and very helpful. It is also not surprising when there is a degree of urgency that certain views of apprehension have been expressed. I should like to deal with that, if I may, because it is important.
I think that we ought to consider, first of all, exactly what the situation is. As my noble friend Lord Campbell of Croy and my noble friend Lady Hornsby-Smith have said, the situation is that for 10 years we have been trying to get a European Communities fisheries policy. It has been very difficult, as anyone who has been involved in the negotiations knows. The business of quotas was one which took a tremendous amount of work, effort and negotiation. Throughout all this our own British fishing industry was going through a very difficult time, and as my noble friend Lord Campbell rightly said, was given very substantial grants in order to help it through this difficult time.
The quotas which were achieved were quotas caught by our own fishermen. It is not surprising that during that time the fishing and the access to our own waters by Spanish vesels has in fact decreased because, under
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the terms of the European Community's bilateral fisheries agreement with Spain, fishing opportunities for vessels from Spain in Community waters were restricted. Licences to fish have been reduced in line with the agreement with the result that in 1982 only 130 vessels were eligible compared with 240 in 1978. Some of the unsuccessful applicants for licences acted quickly and they simply became British.
The noble Lord, Lord John-Mackie, said that there was nothing unlawful about that. That is right. There was nothing unlawful about it, but it so happens, as my noble friend Lord Campbell of Croy said, that it drove a coach and horses through what we are trying to achieve in the common fisheries policy. Of course, it is perfectly all right for them to do what they did within the meaning of the law as it stood, but we considered that this required redress and, indeed, the fishing industry wished for it.
The noble Lord, Lord John-Mackie, and others have asked what will happen when Spain joins the Community in about three years' time. That is a longer view. This problem is an imminent one. My noble friend Lord Saint Oswald says that he is a good European and what is done must be done for the benefit of the United Kingdom and Spain, but I ask him to consider whether it is right for Spanish vessels to re-register as British vessels and, crewed by people from countries which are not members of the Community, thereby be permitted to fish in our waters for fish which are quotas of Great Britain. They then possibly enter British ports and unload those fish straight into lorries, thereby ensuring that they are not sold in Great Britain and ensuring that they do not pay a levy. The fish are then transported from the United Kingdom by lorry to Spain where they receive import duty free access, and where they also get access, and yet where our own fishermen who catch the same fish do not sometimes have access and do have quotas imposed upon them. That is not fair and nor is it right.
The noble Lord, Lord Mackie of Benshie, asked what harm is being done by these boats. I hope that I have explained to him that where they take fish out of our waters which are not sold in the United Kingdom those fish are not accounted for by the quota. The fish go to Spain, are sold there, and whether or not that sale is notified depends on the circumstances. If it is not notified it does not count against our quota, but it does mean that our waters are over-fished. If those landings are notified then, of course, they go against our quota and, therefore, it is against the interests of the British fishermen.
Lord Mackie of Benshie: My Lords, I am grateful for that explanation. Does this mean that if a pukka British vessel exported fish to Spain it would pay a tariff or it would not be allowed in? In other words, do the Spanish authorities make an exception and, in fact, they know there is a fiddle and let in these fish free of quota, levy and duty?
Earl Ferrers: My Lords, I would not know whether the Spanish Government consider it a fiddle or not. What I can tell the noble Lord is that on occasions fishermen from these re-registered vessels can land their fish in Spain without the import quotas which are presented when our fishermen land the same fish in Spain.

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The noble Lord, Lord Mackie of Benshie, also asked whether there is no market for hake here. It is true that the greater market is in Spain. I think that about 3,800 tonnes were landed in 1982, and possibly more than that. These vessels landed a tonnage somewhere in that region, which is a considerable amount and accounted for the majority of our quota of hake.
The noble Lord, Lord John-Mackie, said that this would create difficulties with employment. I do not deny that there will be some difficulties in some circumstances. Obviously that is the point of changing the law. When one changes the law one does so in order to correct something which is wrong. If that is so there are bound to be at least some short-term difficulties. However, I hope that the noble Lord will see that in the long term it is not right that advantage should be taken of the particular circumstances in which we find ourselves and for other vessels to come from other countries to be registered in Britain and thus operate against the interests of the European Community's fisheries policy and against the interests of our own fishermen under it.
Lord John-Mackie: My Lords, I hope that the noble Earl did not think that I was condoning what went on. I simply said that they were working within the letter of the law. I believe that was the expression I used. I was pointing out, as he rightly said, the effect that that might have because it has been going on since 1980. That was all I said. I am not condoning it by any means.
Earl Ferrers: My Lords, I am so glad that the noble Lord was not condoning it, although I think he was getting a little close to it. He is quite right in saying that they were operating within the law. I merely come back to what I said earlier, that they were doing so and that is the reason why we wish to change the law.
The noble Lord, Lord John-Mackie, and one or two others referred to the business of Community nationals crewing the boats and asked why they were not British. It would have been contrary to Articles 7 and 48 of the Treaty of Rome to discriminate and say that vessels in the Community should be crewed by British fishermen. They can, of course, be crewed by nationals of Community member states and that is the reason why that is made in that particular form.
Lord Mackie of Benshie: My Lords, I am sorry to keep bothering the noble Minister but why, then, do the present regulations say that the captain and one other must be British?
Earl Ferrers: My Lords, because that is so under a different form of legislation which goes back, I believe, if I remember correctly, to the 1947 Aliens Act, but I may need to be corrected on that. I may have that wrong, but that comes under a different form of legislation.
My noble friend Lord Campbell of Croy referred to how far we intended to limit the scope. The scope of the order will apply to British fisheries limits in the first instance, partly because of the difficulty of enforcement by British sea fisheries officers outside those limits and partly because we believe it is for the European Commission to introduce legislation on the
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Community front and for other member states such as France and Ireland to apply measures directly in their waters. Therefore, there should be harmony of effort and that is what we seek to achieve.
The noble Lord asked when the order was expected to be laid. I expect this will be done, probably, at the beginning of April.
My noble friend Lord Campbell of Croy also asked whether the British shipping industry thinks that any problems will be raised. There has been unanimous support for the Bill. No adverse view has been expressed by the shipping and fishing industries. It is unlikely that the rest of the fishing industry will be affected. He also asked about whether there would be co-operation with other European members. I have explained that that is the idea and that we hope that there will be a harmony of effort.
Lord Campbell of Croy: My Lords, I do not necessarily need a reply this evening, because this is complicated, but in replying to my point about Ireland, which is the best example, my noble friend said that the Irish Government would probably be introducing an equivalent measure. But that will be concerned with Irish registered boats. We will still have a situation where a Spanish vessel, which appears to be, and is theoretically registered as, a United Kingdom vessel (because it still will be a United Kingdom registered vessel), is doing things within Irish fishing limits which the Irish Government think that it ought not to be doing. Presumably the complaint will then come to us.
Earl Ferrers: My Lords, that is the reason why we hope to have, and indeed are having, consultations with both Ireland and France as to how mutually these problems can be overcome.
Perhaps I could correct one thing which I said to the noble Lord, Lord Mackie of Benshie. The law concerned under which the captain and the first hand must be British is the Aliens (Restriction) Act 1919. I think that I said it was 1947.
My noble friend Lord Saint Oswald referred to the consultations with the joint venture companies. Our decision to legislate against the re-registered foreign vessels in order to prevent them getting round the Community agreements and fishing our quotas, was taken in the full knowledge of the nature of their operations and their place in our fishing industry. If they adapt themselves to the new arrangements in a way which would qualify them to fish, then of course that would be fine, but we have got an urgent problem. It is all very fine for my noble friends to say, "Let us have two years in order to put this right", but we have an urgent problem and our proposed solution takes account of all the relevant factors, including the express views of those who organise the re-registered vessels.
My Lords, my noble friend would be quite wrong if he felt that the views which the people to whom he has spoken have not been taken on board. They have been. They have been considered very carefully, but, for the reasons which I have given, we consider this an urgent problem. We consider that it is not the correct way at present to deal with either the common fisheries policy or with our own fishermen. The conditions are

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not correct, and that is the reason why the Government have thought fit to produce this Bill in order to rectify what is, frankly, an evasion and a using of a loophole. I hope therefore that I have managed to persuade your Lordships that this Bill is reasonable and that your Lordships will give it a Second Reading. I beg to move that the Bill be now read a second time.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Data Protection Bill [H.L.]
Report stage resumed on Clause 28.
8.44 p.m.
Lord Wigoder Lord Wigoder moved Amendment No. 74A:
Page 21, line 34, at end insert—
("Provided that in the event of personal data having been disclosed under this subsection for any of the purposes mentioned in subsection (1) above the person disclosing such information shall within four weeks of such disclosure notify the Registrar in a prescribed form of the extent and nature of such disclosure and the purpose thereof.").
The noble Lord said: My Lords, the vast majority of your Lordships now present will recognise this amendment as being the first half of an amendment that was tabled at Committee stage. The second half was shot down in flames by the noble Lord, Lord Swinfen, among others, and I think, on reflection, quite rightly so. But the first half obviously had some appeal and was of some interest to the Government.
The noble Lord, Lord Elton, at the end of the discussion on this part of the amendment, said:
"I should like to give further thought to the possibility of the registrar being alerted to exempt disclosures of a potentially sensitive nature, so that he can ensure that subjects' rights are being protected so far as is consistent with effective law enforcement. This is an area that bristles with practical difficulties."
That is not, I think, the first time that the noble Lord has used that expression. He went on to say:
"I certainly cannot give a commitment at this stage. But I can go so far as to say that, although we cannot accept the amendment, we will think further about the points that have been made in this discussion."—[Official Report, 22/2/83; col. 713.].
The object of the amendment is to ensure that exempt disclosures are registered. This would then enable the registrar in the course of his annual report to Parliament, or in any other reports that he thought appropriate, to draw attention to the extent of such disclosures if he thought it appropriate to do so. This would then enable the various professional bodies in particular that are concerned about the extent to which there might be disclosures of confidential information, to see to what extent the process is extending. This monitoring might, I think, be in the interests of the general public and particularly of data subjects.
In those circumstances, I have tabled this amendment at a late stage, waiting to see whether the Government tabled one of their own, in order to see what the noble Lord, Lord Elton, has to say about his further thinking that he indicated on Committee stage. My Lords, I beg to move.
Lord Elton: My Lords, I am indebted to the noble Lord, Lord Wigoder, for the care he has taken to
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remove those elements in the amendment that he moved in Committee to which I (and indeed my noble friend Lord Swinfen) took exception. I have to say that, to my eyes, the amendment he has just moved raises far fewer difficulties. Gone are the references in particular to the registrar giving subject access to data disclosed for crime prevention purposes under Clause 28(2), which was a particular failing of the earlier version. Now, my Lords, we have a proposal simply that what we can call for convenience "exempt disclosures" should be notified to the registrar in a prescribed form.
Under the Bill as it is presently cast, of course, the registrar is already fully empowered to check up on any disclosures and consider whether they are covered by the user's registered particulars. If they are not so covered, and a claim to exemption is made by the user, the registrar may investigate whether that claim is well founded. If not, he can of course take action against the user. However, I see the point that the noble Lord is making, although I think it is necessary—and I referred to this in Committee—to look very carefully at any mechanism that submits every exempt disclosure to a new notification procedure.
In Committee I undertook to think further about the approach that the noble Lord—on behalf, as he said, of the BMA—had put forward. He has now presented it in a refined version—and certainly a version that avoids some of the more prominent problems. I am grateful for that. I hope that he will understand that I do not think that we are yet at the point where we can clearly see where we should go. We shall certainly examine further the approach that the noble Lord has urged upon us. But we do want to consider with some care the implications of what he proposes both for the registrar and for the police. Let there be no mistake: we are determined not to compromise effective law enforcement; we must never lose sight of that. We also want to pay particular attention to detail here, to ensure that if any new procedures are introduced they are properly designed to achieve the desired aim.
I appreciate that I have not given the noble Lord a firm "yes" on this amendment, but he will appreciate that I have not given him a firm "no". I hope he will be patient. This is something on which it would be foolish to rush our fences. We want to look at it further, and therefore I hope that he will not press it now, because he could, I think, be satisfied with the clear understanding that we have expressed of what is being aimed at, and our readiness to continue our examination of his proposal that we have already started.
Lord Swinfen: I am delighted to see that the noble Lord had a parachute.
Lord Wigoder: My Lords, I regard the observations of the noble Lord, Lord Elton, as a constructive reply to this amendment. I am pleased to learn that the Government will continue to consider the merits of what I appreciate is a problem that has many difficult edges. In the knowledge that they are going to continue to consider it, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.50 p.m.
Lord Houghton of Sowerby Lord Houghton of Sowerby had given notice of his intention to move Amendment No. 74B:
Page 21, line 42, at end insert—
("(5) Nothing in this section shall override, abrogate or alter the form of the declarations of secrecy required respectively by section 58 of the Finance Act 1969 (relating to disclosure for statistical purposes by the Board of Inland Revenue) and by Parts I, II and III of Schedule 1 to the Taxes Management Act 1970 from General and Special Commissioners of Taxes, the Commissioners of Inland Revenue, Inspectors and Collectors of Taxes, and other officers.").
The noble Lord said: My Lords, in view of the fully satisfactory reply that the noble Lord gave to my comments on Amendment No. 73, there is no need for me to move Amendment No. 74B.
[Amendment No. 74B not moved.]
Clause 29 [Health and social work]:
Lord Avebury Lord Avebury moved Amendment No. 75:
Page 22, line 1, leave out subsection (1).
The noble Lord said: My Lords, this is a probing amendment designed to see where the Government have reached in their consultations with the bodies concerned on the appropriate restrictions to be imposed on subject access to health and social work records. I should like to remind your Lordships of what the noble Lord the Minister said on Second Reading. At column 1581 of the Official Report for 20th January 1983, he said:
"We have not reached a final view on the appropriate restrictions upon subject access to health and social work records. In these areas it is essential that there should be full consultation with the medical and other professions involved. Those consultations are going on now".
He went on to say:
"Clearly the restrictions on the right of access must be kept to a minimum, consistent with protecting the subject himself from coming up against information which could be seriously harmful to him. I am sure noble Lords would agree that we ought only to decide where that frontier of discretion lies in the light of the fullest discussion".
As I understand it, consultations are still in progress with medical and other related professions. But I am also informed by Dame Elizabeth Ackroyd, the Chairman of the Patients' Association, that that association has not yet been consulted. I do not think that any other organisations serving the interests of patients have been brought into the discussions either. But I am informed that the view of the Patients' Association is that people should have access to their records, if they wish; that that is on record with the Home Office in the reply that it made to the White Paper on Data Protection; and that it believes that there is nothing in law to prevent access now, although in practice doctors very rarely agree to it.
At the Consumer Congress in 1982, where there was representation of a very wide range of consumer bodies, a resolution was passed including, inter alia the thought:
"that patients be given fundamental rights regarding access to information, including case records".
Turning from the general to the particular, the Patients' Association knows from its own files of cases put to it by individuals, that many people are worried by the refusal of access to their records and they may
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well suspect, rightly or wrongly, that comments are made about their characters and circumstances which prejudice the attitude of doctors towards them so that their medical treatment is also affected; or they should like to have a truthful diagnosis of the disease and they worry because they believe that the doctor has not been prepared to divulge it to them.
Unfortunately this matter was not dealt with by the Lindop Committee which said that the climate of opinion was moving in the direction of greater openness, but it would be a mistake to embody in the legislation itself an exception to the general rule that a data subject should be able to see his records. However, in a number of other countries including Sweden, Norway, France, West Germany and Austria, the legislation has been passed in a form which gives patients access to their individual medical records. There could be safeguards against access which would be likely seriously to damage the patient's health or that of another person. The example might be where there was a note in the record that a child was not the husband's, but the husband did not know that. I believe that in some psychiatric cases there would be justification for non-disclosure. Also there could be an appeal procedure as in Sweden where there have been only a handful of cases of refusal of access to records. The Patients' Association itself agrees that access could be refused in certain circumstances but it also holds that the onus should be on the data user to prove the case for refusal and that there should be such an appeal procedure.
In their evidence to the Lindop Committee the association declared that there should be an appeal to the data protection authority, which was then proposed, against a doctor's refusal of access, because it said at the time that doctors were often unnecessarily secretive and possessive about their records. In the present circumstances what is suggested by the association is that a general appeal procedure should be provided in the Bill, although in other circumstances it might have preferred the health ombudsman.
So to summarise: its is submitted that most patients worry about access to their notes and it is the refusal of access to case records which causes anxiety. Secondly, the vast majority of medical records at present are manual and therefore are not directly affected by the Bill. But if the Bill were amended so as to allow access in principle to computerised records, then the practice is bound to extend sooner or later to the manual records and this would be in accordance with what the Lindop Committee said about movements in the climate of opinion. I beg to move.
Lord Drumalbyn: My Lords, I should like to ask my noble friend what really is the status of this particular subsection. It is perhaps a little surprising to find the subsection in this form in a Bill of this kind. I have no doubt that consultations have been taking place, and I take it that perhaps those consultations have not yet been completed. But to find a subsection subject to affirmative procedure order is at least surprising. I wonder whether the Government intended that it should be rather consultative at present, with perhaps the possibility of reaching a decision as regards the final form before Parliament passes this measure. What do the Government really intend here? Is it

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intended to get further experience of the working of this, and if so what does the noble Lord hope to achieve, and how long does he think it will take to achieve it?
Lord Elton: My Lords, the noble Lord, Lord Avebury, will be aware that this amendment would have diametrically the opposite effect to one moved in Committee by his noble friend Lord Wigoder. That amendment sought to require the Secretary of State to introduce orders providing exemption from subject access to health data. This amendment, on the other hand, seeks to make all health data available to subjects by preventing the Secretary of State from having such powers. But as this is a probing amendment I think that is merely a matter of elegant tactics.
The application of this legislation in the health field raises, as your Lordships realise, very sensitive questions particularly when it comes to subject access. We need to consider very carefully whether it is right in all circumstances for a data subject to have untrammelled access to all the health information which may be held about him. Is it right, for example, that a doctor should be obliged to tell a subject that he has an incurable or terminal illness? Some, I suppose, may be secretive by nature, as the noble Lord suggests, but what about when the doctor sincerely and rightly believes that doing so would cause unnecessasry suffering or distress? Would it be right to provide subject access if so doing would disturb the patient and prejudice his successful treatment in a non-terminal disease?
These are fundamental questions and we cannot brush them aside just because they prejudice a right of access which in other respects we value so highly. We therefore provided in Clause 29(1) a mechanism by which constraints can be placed on access should we consider constraints necessary. Obviously we shall take account of the advice of the medical profession in coming to a conclusion about making the order, and we are indeed aware of the Patients' Association's views and they will form part of the matter which we shall then consider.
It does not mean that an order will mean that there will be necessarily total exemption for all health data. What Clause 29(1) does is to keep our options open by allowing constraints to be applied should we need them. I think that is probably the answer to my noble friend who asked why this was in the Bill in this form. It is a power available should it be needed, and because it touches a sensitive and important area it is subject to the affirmative procedure in Parliament so that it cannot be slipped through as an administrative démarche.
In following this path we are fully in line with Article 9.2.B of the Convention which provides for derogation from the general principles in the interests of protecting the data subject. We are currently consulting with health professional groups to determine what arrangements might need to be made. I do not wish to prejudge the outcome of these discussions, but your Lordships will be aware that any orders which are made under this provision will need the approval of both Houses of Parliament. By using
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this method we have preserved flexibility, what is more, to meet changes of practice within the professions from which we take the advice.
Lord Avebury: My Lords, I was rather hoping that the Minister could tell us a little more about the nature of this consultative process. Although I entirely appreciate what he said about the sensitivity of the questions we are now dealing with, it would be right that Parliament should have some idea in mind of the nature of the likely regulations that are going to be made by the Government while there is still an opportunity of discussing them in the proceedings on the Bill, rather than wait until the affirmative orders are made at some subsequent time.
It would be much more convenient for the professions themselves if there could be the fullest possible discussion between us during the proceedings on the Bill, and particularly in another place, rather than wait until some time afterwards to know precisely what kind of orders the Minister is going to make. I said that this is a probing amendment and I meant it. I am not going to push it any further at this stage. Having laid down the marker, I think it will probably have to be left for our colleagues in another place to take this a stage further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 [Domestic or other limited purposes]:
9.4 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 76:
Page 22, line 30, leave out ("Parts II and III of this Act") and insert ("Part II of this Act and of sections 21 to 24 above").
The noble and learned Lord said: My Lords, I spoke to this with Amendment No. 64, which was accepted. I therefore beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 77:
Page 22, line 35, after ("held") insert ("by a data user").
The noble Lord said: My Lords, with permission, in speaking to Amendment No. 77 I shall speak to Amendment No. 80 as well. When I do so I shall probably also refer to Amendments Nos. 79 and 81. Those are amendments tabled in the names of noble Lords opposite. It would be wrong to claim that these are Government amendments. Noble Lords opposite had a large hand in the genesis of what I now propose. The noble and learned Lord, Lord Elwyn-Jones, has been helpful in drawing our attention to the fact that subsections (2) and (3) of Clause 31 are cast in such a way that the exemption can be claimed when subjects have consented only to the data being held. This has the effect that once a subject's consent has been received, the exemption can be claimed. And if the data are then disclosed to another user, even though the subject may not know of it, the new user can also claim the exemption.
That was not our intention. And we have looked again at the provision in the light of what the noble and learned Lord said. He and the noble Lord, Lord Mishcon, have tabled their own amendments to Clause 31. I have to say that they do not quite do the trick. Subsection (2) is drafted in terms of data being

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exempt in certain circumstances. Any disapplication of the subsection also has to be in terms of data—one cannot do it by drafting in terms of disclosures as the noble Lords have sought to do. However, to try to achieve the desired effect by drafting in terms of data the disclosure of which has been consented to, leads, we found, to a quite extraordinarily complicated and convoluted provision. And that is why we have taken the approach in Amendments Nos. 77 and 80 which allows for very neat drafting and overcomes the problem by a somewhat different means. What we have done is to insert the words "by a data user" in line 35 so that the data to which both paragraphs (a) and (b) of subsection (2) refer are held by identified persons. That enables us then, with the second amendment, to tie the exemption in subsection (3) down to the specific user to whose holding of the data the subject has consented.
Thus, if a user benefiting from the exemption passes the data on to another user, that user will not inherit the exemption, and that is what the noble Lord sought to achieve. In order to benefit from it himself, he will have to give the subjects the opportunity to object to his holding it. By taking this approach, we have avoided a cumbersome new provision and have achieved, we believe, the result which noble Lords opposite desired. I am grateful to them for having drawn our attention to the point and hope they will accept my assurance that it is herein met. I beg to move.
Lord Elwyn-Jones: My Lords, I am grateful that the Minister has taken up the point that was raised in earlier amendments. He then accepted the case for the principle we referred to and undertook to try to remedy the mischief. It would seem that the mischief has now been remedied, but we shall look a little more closely at this group of amendments before the final stage of the Bill. In the meantime, we are grateful to him for having taken up the point and for so generously acknowledging the fons et origo of it.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 78:
Page 22, line 39, leave out ("Parts II and III of this Act") and insert ("Part II of this Act and of sections 21 to 24 above").
The noble and learned Lord said: My Lords, I spoke to this with Amendments Nos. 64 and 76, and it is consequential on them. I beg to move.
On Question, amendment agreed to.
9.11 p.m.
Lord Drumalbyn Lord Drumalbyn moved Amendment No. 78A:
Page 22, line 39, at end insert—
("( Personal data comprising only names and addresses available to any person from published sources are exempt from the provisions of Part II of this Act and of sections 21 to 24 above.").
The noble Lord said: My Lords, I feel rather more than usually diffident in intervening in the discussions at this stage, when nearly everyone here has borne not only today but several days on the Bill. This amendment reflects a matter that has been put to me, a matter of which I have perhaps a little more knowledge than I have of most of the rest of the Bill.
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Its effect is intended to exempt from the provisions of Part II and Sections 21 to 24 of the Bill personal data held by a data user and comprising only names and addresses, which are available to anyone who cares to cull them from published sources such as electoral rolls and telephone or street directories or to acquire them from someone else who has taken the trouble to do so. The sources, in other words, are the data subjects themselves who supply the information to those who compile those publications.
The provision would cover exemption from Part II, which deals with registration; from Clause 21, which deals with the rights of data subjects to access and the obligations of data users to accord access; from compensation for unauthorised disclosure; and from the obligation to rectify or erase. If anybody wonders what would be the good of holding a list in the form of personal data consisting only of names and addresses, the answer is that it is important to thousands of people in business, not to mention charities and other organisations, to have such lists. But the data must be such that they are as accurate and up-to-date as possible.
I can see no need at all to impose a duty to rectify the list where the name is misspelt or the individual has changed his or her address. I say that because it is very much in the interest of the data user to get and keep his data—consisting only, as I say, of names and addresses—right. If anyone receives a communication from the data user which is wrong in any respect, that recipient, if he is interested, will be quick to point out the error to the data user, and the data user will be equally quick to rectify the error. It is in his interest to do so. It follows that the courts should never be involved. Principle No. 5, so far as I can see, is safeguarded by common interest, at least to the extent that it can ever be safeguarded, and I am a little doubtful whether it is possible to safeguard it completely.
In response to an amendment moved by my noble friend Lord Mottistone, my noble friend the Minister said:
… many of those people who have studied this subject over the years have been forced to conclude that there is no such thing as wholly harmless data".—[Official Report, 22/2/83; col. 721.]
Certainly I have not spent years studying real-life cases, and I doubt whether he has either, (though he must have studied quite a lot recently), and apparently some who have did not reach the same conclusion—assuming, if I may say so, his quote is wholly accurate. As to the many who were forced to reach it, perhaps my noble friend could tell your Lordships what forced them to do so? Was it facts, or was it fears? Can he give any examples?
It is difficult to see what possible harm lists of names and addresses of themselves could do. Even if they are not wholly accurate or up to date on any given day, all the harm that I can see that could be done would be in expenditure wasted on the part of the data user, to the extent that some of his communications would not reach their destination. I can see no other harm being done. I suggest that nobody can reasonably doubt that such lists are necessary, whether or not the information that they contain is translated into data. What is certain is that it is sensible to take advantage of modem technology and to translate the lists into data

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because it is more efficient and more economical, especially when larger lists are concerned. I venture to suggest that it is also sensible to avoid the cost of registration, if registration is demonstrably not essential and no harm can result to the data subject.
The Government have gone a long way in Clause 31 to ease the burden on the registrar. There is a very real danger that that poor gentleman, or lady (as it may be), and his or her score of staff will be literally smothered by applications for registration and subsequent complaints. I am given to understand that that actually happened in Norway. There, it seems, the data commissioner had to implore the Government to restrict the scope of the Act. I am also told that in other countries where data protection legislation has been in force for some time distinctions between harmless and potentially harmful data have worked quite satisfactorily, even though they go rather further than does this amendment.
What practical use is made of lists of names and addresses? I am told that they are used for the purposes of address verification; that is, keeping the names and addresses accurate. Among the users are companies, charities, political parties, and even private individuals.
Some of your Lordships may feel that the amendment is unnecessary; you may feel that it is inconceivable that the registrar would rule that such purposes were incompatible with the measure. In any case the burden of registration in each instance would be very light. But can we be sure about that argument? Take, for example, the electoral register. Let us suppose that an electoral registration officer failed to register as one of his purposes the making available of the electoral register to data users who wish to bring their own names and addresses up to date in the register. The electoral register is, I believe, the only countrywide list that records in every year the names and addresses of electors, including new addresses, new households forming, others disappearing, entire streets being pulled down, and new houses being erected. Surely it is self-evident that to deny business, not to mention again charities, and everyone else, who wish the use of the electoral register for verification of their lists of names and addresses would work to the detriment of data users and data subjects alike. Indeed, it would bring data users into conflict with principle five, which lays a duty upon them to keep their lists up to date.
The main difference between the amendment and subsections (2) and (3) is that under the amendment there is no obligation on the data user to consult each prospective data subject on whether he may hold data about him, even though it is limited to name and address. I feel that the scale of some of the lists involved would make that quite impracticable on grounds of costs alone. Moreover, such consultation would itself constitute unauthorised use of personal data in some cases.
As I did not have an opportunity of introducing this amendment at an earlier stage, perhaps your Lordships will bear with me a minute or so longer. I wonder how a businessman could set about availing himself of the exemptions in subsections (2) and(3) unless he first compiled a list of potential customers
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and clients whom he could ask whether they objected to his holding data relating to them. I have no doubt that it could be done, but only by antiquated methods and at much greater cost. My case for this amendment is that the personal data which it seeks to exempt are finite in quantity, definite in character, inexorably public and, so far from being harmful, are of considerable benefit to both data users and data subjects.
I very much hope that my noble friend will see fit to accept it, at least in principle, even if its drafting is imperfect. There is, after all, another stage of the Bill in this House, not to mention the stages in another place. I beg to move.
Lord Mishcon: My Lords, the noble Lord, Lord Drumalbyn, always puts a case very effectively. If I may say so on this occasion, I wonder whether he realises (unless I am wrong) that there is a door that he has left open. We are dealing with personal data here. Let us take it for granted that you merely have names and addresses of people—and they could include the name of the noble Lord, Lord Elton, the name of the noble Lord, Lord Drumalbyn, or my own—who were accustomed to play truant at school. I am giving an amusing example, I hope, but, of course, the examples could be such that they are not amusing.
You have the heading: "Those who played truant at school and who are Members of the House of Lords", and you have, say, three names and three addresses underneath. The heading is not within the definition of "personal data". That may be the fault of the noble Lord the Minister for not listening in a more receptive way to the speeches that we made from these Benches when we were trying to define terms. At all events, the heading would not be "personal data". What was underneath would be the name and address. But what would be the result of that would be something that I am sure that the noble Lord, Lord Drumalbyn, had not got in his mind when he was moving this amendment. For those reasons, unless the noble Lord the Minister or the noble Lord, Lord Drumalbyn, feel that my reasoning is wrong, I should have thought that we should accept this amendment with great hesitation.
9.23 p.m.
Lord Elton: My Lords, My noble friend Lord Drumalbyn is in effect offering with this amendment a slightly less restrictive version of the exemption already in Clause 31(2)(b). Where we have limited the purpose for which names and addresses should be held to the distribution of articles, my noble friend suggests that there should be no limitation as to purpose. I am not sure whether there is anyone who can envisage what sort of data user would hold only names and addresses—and it is only names and addresses; any other information and the exemption is lost—for a purpose other than distributing articles. My noble friend may have suggested some.
My first impression is that it is difficult to see any objection to the broadening of Clause 31(2)(b) in the way my noble friend suggests. I shall read with care what the noble Lord, Lord Mishcon, has said—not all of which will be as misleading as his representations of my school attendance record appear to be. However, I would prefer not to accept the amendment at this

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stage. First, because on its own it duplicates the existing Clause 31(2)(b). We ought to have either one or the other in the Bill. Secondly, we have to decide whether the qualifications in Clause 31(3) should apply to these data. Placing the provision as he does in the clause my noble friend does not make his intentions altogether clear in that respect.
Finally, I should not like to give the impression that this is the end of the hunt. The noble Lord said that we were looking for wholly harmless data. My noble friend has perhaps found a unicorn, but it is a remarkably small one. Indeed, I have a feeling that it would in practice be of value to very few data users. None the less, I am most obliged to my noble friend and I hope he will accept this treatment of his amendment.
Lord Drumalbyn: My Lords, I am grateful to the noble Lord opposite and to my noble friend beside me here for their courteous rejoinders. May I just say again, before withdrawing my amendment, that there is a great difference between my amendment and subsections (2) and (3), in that my amendment does not give an opportunity to the data subjects to object—not that they will necessarily take their opportunity. But this is a very big one and it is essential to the purpose that I have in mind in proposing my amendment. I ask my noble friend to bear that in mind. Again, I think him for the way in which he has responded, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 79 not moved.]
The Lord Chancellor: My Lords, Amendment No. 80 may be consequential on Amendment No. 77.
Lord Elton: It is indeed, my Lords.
Lord Elton Lord Elton moved Amendment No. 80:
Page 22, line 42, after ("asked") insert ("by the club or data user").
On Question, amendment agreed to.
[Amendments Nos. 81 and 82 not moved.]
[Amendment No. 82A not moved.]
Clause 32 [Other exemptions]:
Lord Mishcon Lord Mishcon moved Amendment No. 83:
Page 23, line 17, after ("out") insert ("bona fide academic").
The noble Lord said: My Lords, I wonder if I may shortly remind your Lordships of an interesting discussion which took place and is recorded at col. 734 of the proceedings on 22nd February, at the Committee stage. I then attempted to argue that there should be some definition of "research" because indeed some statistical research might be the sort of research that one would want to catch under the Bill, whereas other types of research would be such as we would not want to catch. After, the noble Lord, Lord Elton, had courteously driven his unicorn in this direction and caused it to utter certain words of wisdom, such as that he felt that there were types of research which would fall into one definition and not into another and that
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one should be very careful that one was not including or excluding types of research that ought to be excluded or included.
I then ventured to say that possibly it might be suitable if the noble Lord the Minister and I could correspond between the Committee and the Report stages to see whether an agreed definition of "research" could come out. I know that the noble Lord the Minister has been engaged upon activities that are much more important than corresponding with me on a description of "research". That is obvious from the fact that I have not received a letter from him. Thus I was left with no alternative, together with my noble friends, but to answer his challenge and to try to do the best I could by way of a definition. If, as a result of the Minister's cogitations he is now able to give a better definition, or to argue why there should be no definition at all, I should be delighted to hear from him. In the meantime, I beg to move.
Lord Mottistone: My Lords, for once, I have to make an unqualified objection to this amendment. To put "bona fide academic" in the clause cuts out all sorts of other research—commercial research—which it would be very important to have exempt, except of course when the results were in a form which identified the data subjects, or any of them, which is in the rest of this subsection. So I would hope very much that my noble friends will resist this and not accept the qualification.
Lord Swinfen: My Lords, my noble friend has literally taken the words out of my mouth!
Lord Elton: My Lords, I think I ought to start with the words: "Mea culpa, mea maxima culpa". I apologise both to the noble Lord for the discourtesy to him in not having written to him and to your Lordships for necessitating my rehearsal now of the points he wishes to hear.
Clause 32(3) provides an exemption from subject access for personal data held only for the purpose of preparing statistics or carrying out research. The Government believe that personal data held in these circumstances pose no great threat to the privacy of data subjects since they are rarely published in a form that identifies data subjects—and your Lordships will note that it is a condition of the exemption which is set out in Clause 32(3) that the results of such statistical and research work should not be published in a form which identifies data subjects. Indeed, we believe that data used in these ways are not held for a purpose which is "personal" to the data subject at all. The fact that they are personal data is incidental to the primary statistical or research use of the data. We also recognise that it would be quite unduly burdensome on users of these data to grant subject access to them. We have concluded that an exemption from the requirement to grant access is justified and will not detract from our scheme's protection of data subjects.
I should stress that the exemption is available only when the data concerned are used for statistical and research purposes, and no other. Once data are also used for some other purpose, the exemption is lost and subject access has to be given. And, secondly, the exemption is dependent on the data not being made

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available to anybody else in a form that identifies the data subject. I think that those two conditions go a long way to ensure that the research will be, as the noble Lord requires, "bona fide". Certainly I would have strong doubts about using such a phrase in this context: it seems to add nothing of worth to the provision.
Perhaps I should turn to the other leg of the noble Lord's definition, which is "academic". The effect of that qualification is far from clear to me. We discussed a similar amendment at the earlier stage. That would have limited the exemption to historical or scientific research, and my objection then was that this would be over-restrictive.
I do not think that this reply is actually answering the noble Lord's principal point, to which I have already addressed myself. It is not the kind of research that is the main factor in allowing exemption; it is the fact that it is research and therefore the use of personal data in a particular way that places the privacy of the subject at only minimal risk. That, and the requirement that the results shall not be served up in a way which identifies the subject of the research, renders them immune from harm. I hope that what I have said does somewhat reduce the noble Lord's anxiety in this field.
Lord Mishcon: My Lords, I acquit the noble Lord the Minister of any discourtesy: that would be the last thing he could ever be accused of. But I confess that I am still unhappy that the word "research" has no definition because we can all imagine types of research which all of us would wish to be caught by this Bill. I could do no more than put down the amendment with words that I realised, even when putting them down, would not satisfy your Lordshps or the noble Lord the Minister. But I do beg of him to consider the principle involved and to see whether, with the expert guidance that he has and which is not available to me, he can think of some way of dealing with the problem which I think still exists. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.35 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 84:
Page 23, line 20, leave out ("identifies") and insert ("enables").
The noble Lord said: My Lords, if it is your Lordships' wish, I can speak to Amendments Nos. 84 and 85 together. The purpose of these amendments is to remove what I think learned statisticians call the "small cell". In other words, what you do in a published research study is so to describe a situation that, although you do not name somebody, you quite clearly identify him. To give an example of that, if there is in a very small village one gentleman who has the privilege to be coloured, and you therefore talk about a coloured person in that village, quite obviously, although his name has not been mentioned, everyone can clearly identify him. It is that which we are trying to get at by the use of the words in the amendments.
The Lindop Committee, which I understand included a professor of statistics and, indeed, a distinguished epidemiologist, dealt with this problem in paragraphs 26.6 and 26.7 of its report, and I understand that there is no reason to anticipate any objection to these amendments from those of the community of statistics and research. In view of the desirability of getting over the problem to which I have ventured to address myself to your Lordships, I beg to move.
Lord Elton: My Lords, the noble Lord's amendments would alter the circumstances in which statistical and research data qualified for the exemption from subject access which Clause 32(3) provides. As drafted, the exemption could be claimed, provided the results of the work in question were made available in a form which did not identify any of the data subjects—that is to say, the results did not in themselves identify the individuals in question. The apparently minor modification which the noble Lord's amendments would introduce, of allowing the exemption only where the result did not enable the data subject to be identified, would, in fact, be a substantial change, as a result of which, I suspect, this exemption would become worthless to the majority of those engaged in work in this area.
In the Bill as drafted, the test is whether the results themselves identify individuals, without any further information having been brought to bear. It need not be a matter of a data subject being identified by name, but it would rely upon the possibility of identifying an individual from the research results alone. To accept the noble Lord's amendments, on the other hand, would entail depriving researchers of this exemption, if the results simply enabled individuals to be identified—whether as a result of further research, or as a result of some further knowledge, which anyone having access to those data might, quite accidentally, happen to possess.
It might, for example, be that a prison governor, by reason of the specialised knowledge he possessed of the inmates of his establishment, was able to identify certain of the anonymised individuals in regard to whom a piece of penal research had been undertaken. The result of the noble Lord's amendments as I read them is that, in latter instance, the research would not qualify for exemption, even though to anyone else reading the results there would be no possibility of identifying anyone. And the problem is that those preparing the statistics or carrying out the research would very seldom be able to know in advance whether there might be some individual possessed of this specialised knowledge and thus capable, for himself, of identifying an individual data subject. In other words, we would have provided an exemption, but effectively have ensured that it was unlikely ever to be of any practical value to those whom it was designed to help, because they could not know what other knowledge those looking at their published results would have. I see the force of what the noble Lord has said. We have looked at the area with some care, but we seem to have come as close as we can to the edge of what he wants he wants without dissipating altogether the usefulness of the exemption. I am sorry we cannot do better.
Lord Mishcon: My Lords, I thought I detected—and colleagues in the law will recognise what I am saying—a Hulton v. Jones point in the answer which the noble Lord the Minister gave. If, after the consideration which has undoubtedly been given to the matter, the noble Lord has been advised that it is impossible to go further without going over a boundary that neither he nor I would want to do, I must be content, certainly for the time being, with his answer. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 85 not moved.]
9.42 p.m.
Lord Avebury Lord Avebury moved Amendment No. 86:
After Clause 32, insert the following new clause:
("Regulation of exempted data.
The Secretary of State may make regulations requiring data users holding data exempted by this Part of this Act from any provision of Part II or III of this Act to conform to provisions specified in those regulations with respect to those data.").
The noble Lord said: My Lords, this is another approach to the problem of the potential harm which may be caused as a result of the exemptions in the Bill. Here, instead of removing from the area the exemptions which we discussed earlier, the notion I had in mind was to build in safeguards where personal data is under the control of an exempted user, and power is given to the Secretary of State to require such a user to conform to regulations. Although I appreciate my noble friend's reluctance to add to the number of ministerial discretions allowed in the Bill, I am afraid I am not capable of formulating precisely what kinds of restriction would be most effective in minimising the damage which is otherwise likely to be caused.
For purposes of illustration only, I mention again the British Medical Association's suggestion that each transfer of personal medical information should be recorded, together with a description of the type of information released. The association propose further that such transfers and descriptions should be published within a specified period of time in order that the decisions to disclose may be open to scrutiny and challenge.
If I were the Secretary of State I would wish to have such a power and I would execise it in order to see that at the very minimum regulations were made on the lines which the BMA have suggested. I would go further and say: why do we not provide that all transfers to exempt systems should be treated in the same manner? It is better not to try to draft across the Floor of the House the kinds of regulations which the Secretary of State would bring in if he had such a power. I believe that such a power is necessary, and I hope the Minister will agree to accept the amendment. I beg to move.
Lord Elton: My Lords, my starting point in dealing with the amendment, as I indicated to my noble friend Lord Swinfen in reply to one of the amendments which he moved earlier during the Report stage, is that an order-making power is not necessarily unobjectionable because there is no obligation to use it. Any such power on the face of the statute raises the expectation that it will one day be used and generates
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pressure to use it, regardless of whether it is justified to do so. I am bound to say I do not envisage a circumstance in which it would be appropriate to make use of this sort of power. For one thing, as I also indicated in Committee, the Secretary of State already enjoys the power under the Bill to provide increased protection in the especially sensitive areas for which Clause 2(3) provides.
I argued to the noble Lord, Lord Mishcon, and I do so again here, that there is no reason why such safeguards might not extend to the function of making good protection lost by exemption, say, from the subject access or non-disclosure provisions. If it were ever right to use the power being proposed in the present amendment, then surely those are the very areas in which a Secretary of State might choose to use it.
Moreover, except in regard to data totally exempted from the provisions of the Bill, the registrar will still retain substantial influence in the case of other data. Apart from the area of national security and the limited exemptions for which Clause 31 provides, the registrar will always retain some powers wherever the other exemptions are claimed. There will be nothing to prevent him looking with particular care at data in respect of which, say, subject access exemption has been claimed, in order to ensure that such other principles as still apply in the circumstances of the case are being complied with. He might, for example, decide to examine with particular care a question such as the accuracy of the data or the security procedures being provided. Yet, this amendment would in some way double up that on aspect of registrar oversight. The registrar would pursue his course while the Secretary of State, albeit after consultation with him, would follow what might prove to be quite a different approach to the protection of the data in question.
I do not see from this amendment how that potential conflict can be resolved. Nor do I see how the Secretary of State would see to it that his own regulations were carried into effect. Would he be required to order the registrar to take certain action, which I believe would be a dangerous departure, given the care that we have taken to distance the registrar from the influence of the Secretary of State? Or is there to be some direct sanction applying to data users who fail to comply with the Secretary of State's regulations? The power given to the Secretary of State under Clause 2(3) is to augment the data protection principles, thereby automatically affecting the scope of the registrar's jurisdiction. There is nothing like that in this amendment, so that there is provision neither for the policing of these regulations nor for any sanctions.
I hope that I have said enough to make it clear why I believe such a power to be unnecessary and why I do not believe in any case that it would work. I hope that in so doing I have cast light on the areas of concern which the noble Lord wanted to be further illuminated.
Lord Avebury: My Lords, I shall have to study that reply and come back to the noble Lord the Minister at a later stage. At first sight, I am not happy that the provisions of Clause 2(3) entirely meet the point, because there the Secretary of State is given power to

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modify or supplement the data protection principles in relation to personal data of a very limited kind—if the noble Lord will look at subsection (3)(a) to (d). There could be personal data of many other kinds exempted under Parts II and III of the Bill which the Secretary of State's powers would not touch at all.
The point made by the noble Lord about the registrar also does not satisfy me because the registrar will have no power to order that data exempted under
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Parts II and III will be treated in a particular way. He would not, for example, be able to satisfy the suggestion of the British Medical Association that transfer to exempt systems should be recorded and that after a period of time they should be released. I would prefer to study the Minister's arguments in detail before deciding whether to take this matter any further. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.49 p.m.
Lord Avebury Lord Avebury moved Amendment No. 87:
After Clause 32, insert the following new clause:
("Removal of exemptions
. The Secretary of State may by order remove exemption from personal data exempted by Parts II and III of this Act, or any personal data exempted by an order under section 32(1) above.")
The noble Lord said: Again, my Lords, I agree with my noble friend that one does not want to add needlessly to the powers of the Secretary of State; but here we have a case where the Secretary of State already possesses the power in Section 32(1) to exempt subject access provisions from personal data of certain kinds. This is a reciprocal power to allow the Secretary of State to remove exemptions from personal data under certain circumstances.
For example, if one takes the immigrant intelligence unit computer that we were discussing earlier, the noble Lord the Minister has assured us on several occasions that much of the personal data that is contained there will not be denied personal access, because it will not relate to persons who commit criminal offences and so on. So there may be parts of the files held by data users which would be properly exempted which the Minister would think fit to remove from exemption. I think therefore this is a power that he would like to have. I beg to move.
Lord Elton: My Lords, we are becoming familiar with the suggestion by the noble Lord that the Secretary of State should be given new powers, and on this occasion it appears to be even more far-reaching than on the last. For what is being suggested is that the Secretary of State should by order be able to reverse significant areas of the Bill as decided by Parliament. Those who have been most critical of the exemption provisions in Part IV of the Bill have asserted that these are issues of fundamental importance; we have spent some considerable time on them in your Lordships' House and I have no doubt that they will attract a lot of attention elsewhere in another place. Believing though I do that these provisions are right and necessary, I would be the last to deny the need for Parliament to give them the greatest possible scrutiny. But having said that, it seems to me inappropriate to suggest that those decisions should be made capable of reversal after a less thorough scrutiny than Parliament has given to their original formulation. I acknowledge that the noble Lord's consequential amendments to Clause 36 would subject any attempt to use this order-making power to the most rigorous of the forms of scrutiny available in the case of subordinate legislation—to resolution by both Houses of Parliament—but we do not need to go far back in Hansard to find the noble Lord himself saying that these are far inferior to the scrutiny given in the passage of the Bill.
Governments are the first to be criticised if they attempt to avoid the full rigours of parliamentary examination of proposals by tucking substantial powers away in subordinate legislation, yet here we are being asked to allow that to happen in respect of some very important and sensitive issues—national security and crime prevention to name but two obvious examples. Clause 28(1), for example, permits
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exemption from the subject access provisions where the application of those provisions would be likely to prejudice the prevention or detection of crime. Are we suggesting that it would be right in subordinate legislation to decide that those provisions should apply even though the prevention or detection of crime would thereby be prejudiced?
There is another side to all this, the opposite end of the spectrum, as it were, from the crime and security side. Clause 31 exempts from the provisions of Parts II and III of the Bill in the case of data held for domestic or other limited purposes. I wonder whether it would be right to provide for an order-making power subjecting to the provisions of the Bill data which Parliament after full deliberation had decided should be exempt. Or to take another example—and here I look in the direction of the noble and learned Lord, Lord Elwyn-Jones—to provide an order-making power enabling the exemption from subject access to be removed in the case of data to which a claim of legal professional privilege could be maintained. I think I have said enough to show my concern that what is being proposed here is beyond the limits of what is permissible in subordinate legislation. I do not believe that it would be right to allow for so radical a reversal of what Parliament has decided in these provisions, and I think that is the overriding consideration. I recognise that this is a probing amendment, but those are the reasons for which anything of this sort ought to be resisted.
Lord Avebury: My Lords, I think the noble Lord the Minister is perfectly well aware that I was not envisaging that any future Secretary of State would use this power to remove exemption from the systems that are covered by paragraphs (a), (b) and (c) of Clause 28(1). Coming back again to what has been said on several occasions about the system of immigration control, the Minister is well aware that this has been the subject of widespread criticism, not only within this House but from many organisations of a highly respectable character outside. So it is not beyond the bounds of possibility that some future Secretary of State would very much welcome the power to bring before the House proposals to remove from exemption some of the systems at present covered. But I know that this is not a point that I shall get across to the Minister this evening, so I might as well withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 [Reports, information and advice]:
Lord Glenarthur Lord Glenarthur moved Amendments Nos. 88 and 89:
Page 24, line 10, leave out ("and advice")
Page 24, line 12, at end insert ("and may give advice to any person as to any of those matters.")
The noble Lord said: It might be for the convenience of your Lordships if we take Amendments Nos. 88 and 89 together.
Concern was expressed in Committee by a number of noble Lords as to whether the registrar possessed the power, if he wished to use it, to provide advice to any individuals who sought it from him. I argued that the requirement in Clause 33 to disseminate information and advice gave him all he needed, but there were

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those who remained anxious lest he might be precluded from giving advice on an individual basis. I undertook to look again at this point. Having done so, I remain convinced that Clause 33(2) is adequate for the point in question, but I do recognise the force of the concern which has been expressed, and accept that it is desirable to state on the face of the Bill that the registrar can give advice to individuals.
We have repeated on a number of occasions the view that the registrar will, in general, proceed by means of consultation and advice, rather than through the exercise of his formal powers, except as a last resort. But I agree that that advisory role should be spelt out. This is what the proposed amendments to Clause 33(2) are designed to achieve. I beg to move.
Lord Gardiner: My Lords, we are deeply grateful to the Government for the consideration they have given to amendments moved in Committee. We are naturally a little sorry that they have not applied the same arguments to the question whether in the Bill there is any power for the registrar to investigate complaints. Perhaps they would be good enough to look at that before the next stage of the Bill. Meanwhile, we are very grateful for the amendments.
On Question, amendments agreed to.
Clause 35 [Application to government departments and policies]:
Lord Gardiner Lord Gardiner moved Amendment No. 90:
Page 25, line 12, at end insert—
("(6) Subsection (1) above shall not be treated as affecting in any manner the responsibility of any Minister of the Crown for the acts or omissions of any government department.")
The noble and learned Lord said: My Lords, the sole object of this amendment is to obtain information. Your Lordships may or may not remember that at about 3.48 p.m. on the afternoon of 17th February, at col. 346, I rose to ask a question for the simple reason that I wondered what was the answer. The question which I asked, because no one had asked it before, was: in the case of a Government computer like the immigration computer, who is the data user? Would it be the Home Secretary, the Home Office, the Secretary of State, the man in charge of the actual machine or someone I hadn't thought of?
It is right that I should at once make it plain that I asked this question on Clause Stand Part, but the Minister had received no notice of it and, understandably therefore, he was not immediately prepared with the answer. We waited for the usual help to arrive from a known quarter and he then said that he was told his bet should be on the Home Secretary. A little after nine o'clock that evening, at col. 417, the noble Lord, Lord Elton, rose and said that he had now been told that he had lost his money and that the answer was the Home Office.
One or two further questions, I am afraid, arise from that. The first question, of which I have given notice because I thought it might need a little research, is: what are the precedents, if any, for making a Government department a person within the meaning of an
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Act of Parliament? Secondly, does the noble Lord, or do the Government, take the view, or do they not, that, who is the registered data user in the case of a Government computer, is really a question of construction for the courts to decide? One could perhaps take out a construction summons for a declaration, " That on the true construction of the Data Protection Act 1983 the data user in the case of a Government computer is …", because of course it must depend primarily on Clause 1(5) which defines a data user.
The next question that I should like to ask is whether the Government do or do not agree with the view. This is not really a question for the Government to decide at all; it is probably simply a question of construction for the court. But, my Lords, so long as the answer is, " the Home Office ", I think that one or two other questions arise also. The first is: what has happened to the doctrine of ministerial responsibility? I shall be corrected, I am sure, if I am wrong; but, as I have always understood it, it is part of our constitutional doctrine that the Minister who is in charge of a Government department is always responsible for what that department does. If it has done something wrong—he may be not to blame in any way at all; he may know nothing about it—then he has to resign. That is what we call the doctrine of ministerial responsibility. If the answer is that it is the Home Office and not the Home Secretary, then I do respectfully ask: what has happened to the doctrine of ministerial responsibility?
Then I think there is another question, and it is this. If it is the Home Office, what has happened to the doctrine that one cannot criticise civil servants because they cannot answer back? Is this some subtle ploy to make sure that nobody can criticise whatever anybody does about the immigration computer, because it is only the Home Office which is responsible and they are civil servants and they cannot answer back so one cannot criticise them? Therefore, I would also ask: what has happened to the doctrine that one cannot criticise civil servants?
Then, as it seems to me, there is one more question, and it is this. Suppose that in the working of the Act in relation to the immigration computer the Home Secretary is of the opinion that his officials have not been applying the Act rightly and he says to them, "You have been doing A. I have come to the conclusion that you ought to have been doing B, so in future you will have to do B ". Will they be entitled to say—as apparently they frequently do on television but not I think outside television—"No, Minister. We should always regard anything you say with the utmost reverence but you really must get it into your head that this is a matter for us, the Home Office; it is not a matter for you, the Home Secretary. Do you not remember Lord Elton telling the House of Lords? First, he said that it was the Home Secretary but then that was changed and he said that it was the Home Office, and that is us. So without talking about anybody taking a running jump, we must make it plain that this is a matter for us to decide and you have to go away and leave it to us to decide it". Is that right?
10.3 p.m.
Lord Renton: My Lords, I have listened to the noble and learned Lord, Lord Gardiner, with very great interest, as one always does, but especially on this question of ministerial responsibility, a matter about which in our constitution I have had grave doubts for a long time. The doctrine contains, when one tries to think it through, various absurdities.
As the noble and learned Lord has mentioned the Home Office, may I mention the remarkable example of the Home Secretary in relation to the Metropolitan Police. He is responsible to Parliament for everything that the Metropolitan Police do. That is the theory of the matter. But also under our legislation he has no power to tell them how to do it except in certain very wide circumstances which are defined by statute. There is but one example.
This is a huge subject and, with deep respect to the noble and learned Lord, I would very much doubt whether we should attempt to make an exception to it in this particular way. In our constitution, and by its evolution, we have a type of natural instinct for ironing out the absurdities by the way in which we apply it in practice in Parliament. I would have thought that here we are in a considerable difficulty because, if the noble and learned Lord is right, the Government department which is given this obligation would have to be sued as a Government department. Instead of suing the Home Secretary one would have to sue the department. That would be a new constitutional departure as well which, by a sidewind, the noble and learned Lord would be making. I must confess that these thoughts of mine are entirely improvised and inspired only by what I have heard the noble and learned Lord just say.
Lord Glenarthur: My Lords, I feel somewhat self-conscious in view of a barrage of legal expertise such as that both behind me and in front of me. But the noble and learned Lord, Lord Gardiner, raised a number of questions, the first of which was the question of precedents. The noble and learned Lord asked whether there were any precedents for treating a Government department as a person for the purposes of a statute. I have to say that I know of no direct precedent. But that is because we have not hitherto needed to legislate for Government departments in the way that has been required in this Bill. Obviously it was necessary to provide that the personal data held by Government departments and similar bodies should be subject to the Bill. And we were determined to achieve this in the most effective way open to us.
One approach would have been to apply the Bill to the Crown as a whole. That would, of course, have been well-precedented. But the effect would have been that the Crown might have been able to register as a single data user. And transfers of information within Government would not have been revealed on the register because they would not have been between separate entities in the terms of the Bill, but within the one, all-embracing entity—the Crown. That is why Clause 35(1) treats Government departments (as defined in Clause 37) as private persons, requiring them to register separately and to treat exchanges of information between each other as exchanges between separate entities, thus revealing them on the public register and allowing them to be brought within the controls on disclosures in the Bill.
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Our whole approach, therefore, is aimed at treating Government departments so far as possible in the same way as other data users in the private sector are treated. As I have said, the Government are not aware of any precedents for this particular approach, nor are we aware of any direct precedent for the situation we have sought to deal with. There are, however, precedents for not treating the Crown as a seamless whole. For example, under Section 17 of the Crown Proceedings Act, civil proceedings against the Crown are to be instituted against the appropriate Government department, drawn from an authorised list, rather than the Crown, which I think deals with the point raised by my noble friend Lord Renton.
The assumption behind Clause 35(1) is that Government departments will register under the Bill. Indeed, the noble and learned Lord, Lord Gardiner, did, as he said, elicit that information during the Committee stage. If the intention of his amendment is to ensure that Clause 35(1) does not affect the general position as regards the responsibilities and liabilities of Ministers, then the amendment is unnecessary. Clause 35(1) simply makes provision as to how the data protection scheme will apply to departments on the assumption that departments will register. It does not affect the political responsibility of the Ministers in charge of those departments; nor does it reduce their public accountability.
I should also like to allay any doubts about the principle of registering Government departments rather than the Ministers who control them. This does not conflict with the concept of ministerial responsibility. In practical terms the consequences of drafting the Bill so that Ministers rather than departments registered would be minimal. As is the case with Government departments, it would be contrary to constitutional practice to make a Minister criminally liable; criminal proceedings would, therefore, still be a nonsense, and at the end of the day the Bill would still have to rest on the assumption that the Crown will not act in breach of the Crown's own laws. In relation to civil remedies, too, it would seem to make little difference whether the Minister or the department is to be sued, as the cost of any compensation would in any case fall on public funds where the act complained of was done in a public capacity.
Clause 35(1) will in no way affect a Minister's responsibility before Parliament to answer for the actions of his department. Nor will it relieve him of any other personal responsibilities that he may have either in political or legal terms. There is therefore nothing to fear from Clause 35(1). It does not represent an inroad into the responsibility of Ministers. Rather, it is an effective and sensible way of applying the provisions of the Data Protection Bill to Government in a way that treats Government for all practical purposes in the same way as non-governmental data users. I hope that with that explanation the noble and learned Lord will be content and feel able to withdraw his amendment.
Lord Hylton: My Lords, we have seen in the past separate Government departments merged into one as, for instance, in the case of the Department of the Environment from which, I may say, later the Department of Transport was extricated and became

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separate again. Can the noble Lord say what the position is likely to be in the future—I am asking this without any warning at all, I know—if what are now separate entities become merged into a single department? Would the data remain in some way separate or not?
Lord Swinfen: My Lords, what would be the position of companies merging and dividing? A similar point arises.
Lord Glenarthur: My Lords, so far as Lord Hylton's point is concerned, I understand that they would both have to change their registered particulars in the case of a splitting of the departments. My noble friend Lord Swinfen's point I think may also be covered by that answer. I hope it satisfies him.
Lord Gardiner: My Lords, I am grateful to the noble Lord for what he has said. I am not clear from what he said whether or not he is taking the view that the question: who is the registered data user in relation to a Government computer? " is a matter for the construction of the court. Secondly, what happens if there is a difference of opinion between the Minister and the Home Office in the practical working of the Act? Are the Home Office entitled to say to the Minister, " No, Minister, this really is for us. It is not for you." If they cannot say that, what does it mean by saying that it is the Home Office and not the Home Secretary?
Lord Elton: My Lords, if it was me who lost my money, perhaps I ought to reply to the noble and learned Lord. The user is, we envisage under Clause 35, the department. The responsibility and answerability of the Minister shelters civil servants from criticism for all the reasons that the noble and learned Lord gave; but he can direct the whiplash of his tongue, as he is accustomed to, to the Home Secretary or to the other Secretaries of State in other departments. As to differences of opinion between permanent Secretaries and Secretaries of State, to some extent they probably revolve around personalities. But the noble and learned Lord will know from his own experience of Government what the responsibilities are; and they are not changed by this Bill, as I see it, at all.
Lord Gardiner: My Lords. 1 shall consider most carefully what has been said and, if necessary, return to it at Third Reading. I am grateful to the noble Lord and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 36 [Regulations, rules and orders]:
Lord Elwyn-Jones Lord Elwyn-Jones had given notice of his intention to move Amendment No. 91:
Page 25, line 21, after (" Registrar ") insert (" and the Advisory Committee ")
The noble and learned Lord said: My Lords, by a grave misfortune the proposal for an advisory
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committee was not accepted. It has been a kind of Banquo's Ghost, unlike the unicorn, and we have not come to grips with either. But in the circumstances, I shall not move this amendment.
[Amendment No. 91 not moved.]
[Amendments Nos. 92 to 94 not moved.]
10.15 p.m.
Lord Renton Lord Renton moved Amendment No. 94A:
Page 25, line 29, leave out subsections (6) and (7).
The noble Lord said: My Lords, I can deal with this very briefly. Although most of the Bill is well drafted, I hope the Government and draftsman will look again at the drafting of Clause 36(6) and (7). It seems strange to put together two such different matters as,
"Regulations prescribing fees for the purposes of any provision of this Act",
and regulations for the period mentioned in Clause 8(2), which is,
"the period for which an entry is to be retained in pursuance of a renewal application ('the renewal period')".
We find in Clause 36(7) this same juxtaposition. I think it would be more helpful to the ultimate users of the statute, when it becomes one, if those matters could be separated.
I have a further point—it is one which could be made on a number of occasions—which the noble and learned Lord, Lord Simon of Glaisdale, made with great effect recently when it occurred often in another Bill. I refer to the habit, which has descended from the 19th century, of referring to the need for the approval of the Treasury. The Treasury, anyway, have a finger in every pie, and consulting the Treasury is part of the routine process of consultation within Government. It seems otiose to be stating it here and in many other places. I beg to move.
Lord Glenarthur: My Lords, I have listened carefully to my noble friend's explanation of the amendment. It is one of a series in which he is drawing to our attention certain points as to the way the Bill has been drafted or structured. I am only too ready to undertake that we will study carefully what he said and consider the implications. But many of your Lordships will accept, I know, that too much subordinate detail in a Bill tends to obscure its main principles. For this reason, therefore, we have been careful to place such matters in the schedules, or to leave them out of the Bill altogether where they are not needed at all. But when it came to the requirement that statutory instruments concerned with access fees, registration fees and the period of registration should be laid before Parliament after being made, it seemed to us reasonable to place this requirement in the body of the Bill. It is, of course, the frequency of the renewal period which will affect the level of the fee, and hence the link to which my noble friend referred.
As regards subsection (7), again it is important that the main body of the Bill should make it clear that the

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Secretary of State shall be able to make regulations prescribing registration fees only after consultation with the Treasury and the registrar. The Treasury has the responsibility for ensuring that no unnecessary strains are placed on the public purse, and the registrar is the person charged with running the data protection ship, so to speak. As I said at the outset, we will certainly look carefully at what my noble friend said, without giving any cast-iron guarantee that we can necessarily take it all in; and in the light of what I have said I hope he will feel reassured and accept that at least the point he has raised is being looked at.
Lord Renton: My Lords, I am grateful to my noble friend for that explanation and for saying he will look at the matter again. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 [General Interpretation]:
Lord Glenarthur Lord Glenarthur moved Amendment No. 95:
Page 26, line 7, at end insert—
(" "enactment" includes an enactment passed after this Act;")
The noble Lord said: My Lords, there are a number of provisions in the Bill which deal with the relation between the Data Protection Bill and other enactments. This amendment will eliminate any possible doubt that these references to enactments include future Acts. Obviously it will be open to Parliament to make explicit provision to the contrary in any future Act if that is appropriate; but in the absence of such provision, the courts will have a useful rule of construction when considering the relationship between this Bill once enacted, and any future Act. If this were left in doubt, it might be necessary to make specific provision in any future Act which overlapped with the Bill. Bearing in mind that no conflict would arise unless the information concerned was to be held as personal data in the terms of Clause 1, the need for such provision might not be obvious at the time of enactment, and this would lead to confusion. Obviously it is better that such confusion should be avoided, and all doubt eliminated. I therefore beg to move.
On Question, amendment agreed to.
Clause 38 [commencement and transitional provisions]:
Lord Mishcon Lord Mishcon moved Amendment No. 96:
Page 26, line 36, at end insert—
("( ) After the end of the period mentioned in subsection (1) above, no application for registration shall be made by data users of any category holding personal data for any purpose until the end of a further period of six months after the Secretary of State shall by order have specified that category or that purpose (or both) as requiring registration.")
The noble Lord said: My Lords, at precisely 11.15 p.m. one evening during the Committee stage I moved an amendment in which I asked for mercy for the registrar, and at nearly half-past ten at Report stage I am not at all sure that I ought not to couple your Lordships with the plea for mercy, if you have to listen
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to a long speech from me. The reason for seeking mercy for the registrar on the last occasion arose because it was thought that on Day 1, with his little department, he will be confronted with a whole mass of applications, and it was suggested that for the purpose of administrative sense the registrar ought to be enabled to phase the applications, dealing with the most sensitive ones first. Obviously one realises that, for example, a payroll system which has to be registered might not be of the most essential and immediate character. So the amendment was moved on the basis that the registrar would be able to phase.
The noble Lord, Lord Glenarthur, most courteously dealt with the amendment, and he had two objections to it. The first was that the registrar should not have put on him the onus of fixing priorities. Secondly, if one looked at Clause 7(5) of the Bill, one would find that in any event he had the power to defer applications. We have concentrated upon those two objections, and we have met the first one by imposing the duty upon, or giving the power to, the Secretary of State, and we think that in terms of common sense in administration it ought to be the Secretary of State, not the registrar.
I have looked at Clause 7(5). If your Lordships look at it, you will find the following words:
"If in any case it appears to the Registrar that an application needs more consideration than can be given to it in the period mentioned in subsection (1) … he shall as soon as practicable and in any case before the end of that period notify the applicant in writing to that effect".
I do not think that we ought to invite the registrar to cheat—especially on the very first day when he comes into office—by saying, "Well, I am going to use the powers in Clause 7(5). I haven't even looked at your application. I don't know whether it requires one minute's consideration or 10 months' consideration. But because I can't reach it within the period I am going to use Clause 7(5)". That would not be at all an honest use of Clause 7(5). It is there because if there is a complicated application that will take a considerable time, the registrar is given leave to take a certain period of time over and above the period stipulated in the Bill in order to deal with it.
Bearing in mind that in our view Clause 7(5) is not applicable in these circumstances, we have tried to cover the real burden that will rest on the registrar's department. In order that there should not be chaos something must be done about the phasing provisions. There is nothing in the Bill to deal with the situation, and, as I say, the Secretary of State has now been invited to carry out the duty of phasing. So the registrar will not be deemed to be subjective in dealing with applications. It will be the objective view of the Secretary of State as to which ones he ought to deal with in order of priority. I beg to move.
Lord Glenarthur: My Lords, I have listened carefully to what the noble Lord has said, but I have to say that I have grave doubts as to whether the amendment that he proposes would in fact achieve its purpose. There are two points which I can put briefly. First, there are significant advantages in achieving comprehensive registration at an early stage; and secondly, there is no need for elaborate phasing-in provisions for registration.

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The early establishment of the register will have advantages both domestically and internationally. One of the aims of public registration set out in the White Paper was to increase public awareness of the existence and purpose of computerised personal information systems, and it is obviously desirable that this be achieved quickly. Secondly, the establishment of the register will go a long way towards persuading the United Kingdom's trading partners that we take seriously the need for data protection, and are moving quickly towards the implementation of legislation.
Thus the transitional scheme in Clause 38 has been designed to achieve the early establishment of a comprehensive register while giving data users and computer bureaux a longer period under Clause 38(2) in which to come into compliance with the principles. As we explained in Committee, the Government do not believe that elaborate phasing in arrangements is required for registration. Of course it is accepted that there will be a mass of applications during the initial six months' period and at times it may be impossible for the registrar to give full consideration to all applications within two months of receiving them. Yet Clause 7(5) makes the necessary provision here, by allowing the registrar to indicate to the applicant that he may undertake operations pending full consideration of his application.
Subsection (5) of Clause 7 is not a cheat. It is designed specifically for this purpose as well as for particularly complex applications which could come forward. We believe therefore that what is proposed in Clause 38 is a practical means of achieving comprehensive registration with all the attendant advantages at the earliest possible stage. The amendment, I think, would be nothing but a recipe for delay, certainly for some confusion and, also, I think, for some hardship.
Lord Mishcon: My Lords, I have listened with respect to what the noble Lord the Minister has said. As often is the case, time will see whether he is right or the forecast of some chaos is right. He is one who must accept responsibility at this stage for the administrative sense of the Bill. Therefore, there is no point in my continuing that fight. I have said my little piece and that must be that.
On the point of Clause 7(5), may I remind the noble Lord that I certainly did not say that the clasue was a cheat. The clause is perfectly clear. What I said was that one should not ask the registrar (as the noble Lord the Minister on the last occasion asked him) to use this clause for the purpose merely of deferring an application which he has not even looked at, because his department is swamped.
I am saying, and I said with all sincerity, that if I sent the noble Lord a letter and he told me that he wanted further time in which to consider my letter because of its contents, and, in fact, he had not even looked at it because he was too busy, I would say that that was not a proper way to deal with the matter. In truth, what he ought to say is that he needs further time to look at it, but not that he needs further time for consideration of it because of its complexity—which is what Clause 7(5) goes to.
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If the noble Lord the Minister wants to give that power instead of adopting my amendment, then I respectively suggest that he looks again at Clause 7(5). If he wants to give the registrar that power, let him do it in sheer honesty on the basis that further time is required because of administrative difficulties in dealing with it, not that it requires further consideration; because, in my view, that is a dishonest use of the power contained in Clause 7(5). Having said that, I leave the matter there and ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.29 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 97:
Page 26, line 37, leave out ("two years") and insert ("six months")
The noble Lord said: I think that again I can deal quite shortly with this amendment. At Committee stage, I made a point; and, if I may say so with respect to the noble Lord the Minister, he did not then answer it at all and I do not think that he was seized of it. It may be my fault that I did not make myself clear, although I think, on reading again what I said, that the language was fairly lucid, even if one takes into account the time of the day or night at which I made it.
What it means is this: as the Bill at present stands, even if the registrar finds the most scandalous contraventions of all the data principles in an application that he gets for registration, he can do absolutely nothing about it for two whole years. That is what the Bill says. That is what the clause says and that is what we are faced with. That is the real mischief—but I must not repeat what I said on the last amendment—of insisting that all applications to register must come up on Day 1. If the registration can be phased by categories then the time for users to put their houses in order would be the period before they are called in for registration and, in that case, another period of six months would be ample before the registrar can begin to exercise his powers.
So to some extent what I said on the last amendment is linked to this one; but in view of the Minister's answer to me, with no phasing we are left with the situation that the registrar, as I said, can see the most patent contraventions of principles on an application for registration and, as we have now left the Bill if we do not amend it, we cannot do anything about it for two years. On the person can go, having put in his application for registration, and he can carry on for two whole years without the registrar being able to do anything about it. I beg to move.
Lord Glenarthur: My Lords, I thought I had convinced the noble Lord at Committee with the arguments that I advocated then. However I see I did not quite succeed, so I shall have to repeat them.
I argued then that the two-year transitional period before the registrar's powers became fully effective was absolutely essential if we were not to place substantial cost burdens on the shoulders of data users, both public and private. Users will not know, before the Bill has completed its parliamentary passage, just what is going to be expected of them—particularly so far as

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the provision of subject access is concerned, but also in regard to other data protection principles. Only when the final obligation is clear can they be expected to start making the necessary detailed alterations to their systems and procedures, and the Government have recognised from the start that this may take considerable time in some cases. To allow only six months from the appointed day—and we do not intend to delay the latter any longer than necessary to complete the practical functions that will have to be performed after Royal Assent and before the registrar begins operation—would be to place users under very great difficulties. In some instances that might mean replacing existing equipment early, or making expensive alterations to computer systems, whereas allowing a little more time might enable those changes to be incorporated into the planned replacement of equipment. But this does not mean that the registrar will be without influence during this interim period.
The need to achieve "balance" is something we have mentioned continually during the passage of this Bill: the need to balance the demand for effective data protection at as early a date as possible, against the legitimate demand from users that they should not be placed under undue constraints in achieving this objective. In this matter of the speed of implementation we believe we have the balance just about right, and I hope that, on further reflection, the noble Lord will agree.
Lord Mishcon: My Lords, before the noble Lord sits down, to save the House from being wearied by another speech from me, would he kindly answer the direct question which I put to him? It is this: is it correct or not that under the provisions of the Bill as they now are the registrar can find on an application contravention of every one of the principles set out in the schedule? Is it right that if he finds that he can do nothing as against the user—nothing at all—for a period of two years? If that is right, I ask the Minister to say so, because then we have to revert to this matter on Third Reading. I think many Members of your Lordships' House would be horrified to know it.
Lord Glenarthur: My Lords, with the leave of the House, I can tell the noble Lord that he is correct: that is the case.
Lord Mishcon: My Lords, with a heavy heart and a somewhat light head at this hour, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Renton Lord Renton moved Amendment No. 97A:
Page 27, line 7, leave out subsections (4) and (5).
The noble Lord said: My Lords, I shall not detain your Lordships for long. As we have heard from the discussion on the last two amendments, this is a very, very complicated commencement clause. To my mind, the complexity reaches its climax when we come to consider subsections (4) and (5) and try to find out exactly when it is that the provisions to which they refer will come into operation.
We find that the contravention of data protection principles, which are very important and are
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mentioned in Clause 16(1)(b), will not come into operation until the end of the period mentioned in subsection (2) and that period will not come into operation until the end of two years from the day appointed under subsection (1). So that we have an indeterminate, unspecified period waiting for the Secretary of State to make his appointed order. Then we have to wait for six months and then we have to wait for some time after a further period of two years before we find when the right of access by data subjects to their personal data can be made.
I am not just complaining, as I have done, as my noble and learned friend the Lord Chancellor knows, about the complexity of commencement provisions which parliamentary counsel, on instructions from departments, seem unable to avoid. I am referring to a specific complexity, an indeterminate period, resulting from the way that this is drafted; and what I have said about the right of access by data subject to personal data applies also of course to the contravention of data protection principles. They are both referred to in subsection (4).
As regards subsection (5), I must confess there is not such a strong case for alteration, but I should be grateful if it could be further considered because here we find we are back to the end of the period mentioned in subsection (1). It is not until the end of that period that compensation for inaccuracy can be paid under Section 22. So without more ado, I hope I have drawn attention to this matter, which will cause confusion in the minds of the ultimate readers or users of the statute, so that my noble friend on the Front Bench will say that he will have it further considered.
Lord Glenarthur: My Lords, I rise with some trepidation to deal with this amendment, not only because I am well aware of my noble friend's formidable reputation in matters of this kind but also because, as he rightly says, the matter is complicated. As we have stated on a number of occasions, the Government wish to ensure that the Bill does not impose an undue burden on resources. It is therefore essential that it should make provision to give an adequate time period for data users and computer bureaux to come into compliance with the scheme. This involves the postponement of the application of certain of the obligations imposed and powers conferred by the Bill, and that is what Clause 38 is primarily all about. It would appear right, therefore, that these matters be spelt out on the face of the Bill. The question of when statutory rights and duties apply in this way is, on this occasion at least, surely too fundamental to the effect of the Bill to be left to a schedule.
My noble friend asked particularly about subsections (4) and (5) of Clause 38. Subsection (4) disapplies two provisions of the Bill for a period of two years after the day to be appointed by the Secretary of State under Clause 38(1). First, it disapplies Clause 16(1) (b), which now empowers a circuit judge to issue an entry warrant where he is satisfied that evidence of a contravention of the data protection principle is to be found. Given that the registrar's powers to require compliance with the principles will not apply during the two-year period, it would be wrong for this aspect of the power of entry to apply. Secondly, Clause 38(4)

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disapplies Clause 21 during the two-year period. Clause 21 deals with the right of subject access alongside the seventh data protection priciple. It may take some time for certain users to establish procedures for giving subject access, and to require them to do so unreasonably soon would place an excessive burden on users' resources.
As for Clause 38(5), I think that we will probably discuss this further with Amendment No. 98, so I will, if I may, merely deal with the matter briefly now. Clause 22(3) of the Bill defines the term "accuracy" in such a way that opinions or information received from the subject or a third party are not to be regarded as inaccurate, provided that their status is made clear. The problem for data users is that it would be very expensive, and in some cases impossible, to search through existing records differentiating opinions and received information. Clause 38(5) therefore disapplies the accuracy-related provisions of the Bill during the first six months, to allow users time to make arrangements for data coming to them to be recorded in such a way that their status is indicated. It also disapplies these provisions thereafter, in respect of data shown to have been held by the data user in question since before the end of the initial six-month
When I started. I said that this is a complicated matter. I have it set out in tabular form and I should be delighted to show my noble friend afterwards. That might make more sense. But we will, of course, study carefully my noble friend's remarks when we can read them in the Official Report, and I hope that with that assurance he will be satisfied.
Lord Renton: My Lords, I am grateful to my noble friend. I think that I had better read my own remarks in the Official Report before my noble friend does. But I am not suggesting that important provisions of this kind, which affect the application of the whole of the Bill, should be in a schedule, although, as my noble friend had the temerity to say that he has a schedule, it is very tempting to suggest that the effect of the clause could very well be repeated in the schedule, and that is for consideration. I think it is quite clear from what my noble friend has said that he would like to have further thoughts about the whole of this clause, and, on the assumption that he will do so, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.44 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 98:
Page 27, line 10, leave out from ("above") to end of line 17.
The noble Lord said: My Lords, in the same spirit to which the noble Lord, Lord Renton, gave expression. I hope that, at the very least, the noble Lord the Minister, when my voice fades after this final amendment on Report stage, will do me the courtesy of giving his rapt attention to this amendment and to the words with which I move it. The extraordinary situation, as I see it—and I believe that your Lordships may agree—of Clause 38(5) is that all false or misleading data which are held by the data user before Clause 22 comes into force—that is, six months before
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the appointed day—will enjoy complete immunity in perpetuity from correction. I can think of no conceivable argument for this. Once the Act comes into force, surely data users should bring all their records up to the standard of accuracy which is required. It would be perfectly proper to give them generous time within which to do so; but to say that in perpetuity the records of, say, every single one of your Lordships, including myself, however inaccurate they may be, are not subject to the provisions of the Bill—for correction, or whatever—merely because they are inaccurate at the date when Clause 22 comes into effect, cannot be right.
I have already said that at this late hour there is no point in my plaintively calling for a Division if the noble Lord the Minister does not accept my amendment. All I can possibly do, in sheer common sense, is to ask him to be good enough between now and Third Reading to consider this point very carefully indeed and either accept the amendment or put down an amendment which satisfies him more than this one does. I beg to move.
Lord Mottistone: My Lords. I too, have the same misgivings as the noble Lord, Lord Mishcon, on this point. I hope my noble friend will give careful thought to it with a view to putting it right before the Bill is passed.
Lord Glenarthur: My Lords, we have arrived at another point in the Bill where the balance between the need to protect the data subject and the desire not to impede the sensible use of personal data by data users is particularly difficult. During an earlier amendment we touched on Clause 38(5), and I ought to go into it a little more. It is complex. The effect of Clause 38(5) is to disapply those provisions of the Bill that have the effect of requiring data to be accurate during the initial six-month period after the day to be appointed by the Secretary of State and to disapply them thereafter in respect of data that the user can show have been held since before the end of that period. Clause 38(5) first disapplies Clause 22 which entitles a data subject to apply to the courts for compensation where damaged by the inaccuracy of personal data (and thereby disapplies the similar right in respect of rectification under Clause 24(1)(a), which depends on Clause 22). Secondly, Clause 38(5) provides that the registrar shall treat the provision about accuracy in the fifth principle as inapplicable when exercising his powers—again where what we might call "old" data are concerned.
The need for Clause 38(5) follows from the approach adopted to accuracy under Clause 22(3). That clause recognises that data users cannot be expected to vouch for the substance of personal data which consist of opinions, or of information received from a third party. I may believe that the noble Lord opposite has a brilliant intellect; but if I commit that belief to a computer it cannot be tested for accuracy. Beliefs, opinions, suspicions and the rest are not susceptible to such tests. Equally, if the noble Lord were to tell me that he attended a particular school, or indulges in a particular hobby, I take that on trust. If it turns out he misled me, it is scarcely my fault. Thus. Clause 22(3) provides that the test of accuracy does not

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apply to such data, provided the status of the personal data is indicated. This however creates a difficulty in the case of existing records. I am sure that noble Lords with experience in the use of computers will appreciate the vast resource implications of having to comb through all existing records in order to differentiate opinions and received information so that they can benefit from the provisions of Clause 22(3). And that is why Clause 38(5) in effect disapplies the requirement for accuracy during the initial six-month period, and thereafter in respect of old data; that is, personal data that the data user can demonstrate he already held prior to the end of the initial six-month period.
In the light of this explanation of the function of Clause 38(5), your Lordships will realise that the amendment proposed by the noble Lord, Lord Mishcon, would defeat its main purpose. The amendment would require data users to conduct detailed scrutiny of all existing personal data in order to differentiate opinions and received information, so that they would be in a position to take advantage of the interpretation in Clause 22(3). I have listened carefully and with considerable interest to the arguments put by the noble Lord, Lord Mishcon, and those in support of him put by my noble friend Lord Mottistone. In view of those arguments I am willing to consider this matter further, and with that assurance I hope that the noble Lord will withdraw his amendment.
Lord Mishcon: My Lords, those words were very generous and I want to take advantage of them. In view of the noble Lord's reply, I will merely add that it is an odd situation when such inaccuracies remain in perpetuity. I repeat that, of course, if a generous time were given to the data user, I am sure we would all agree that that was the proper balance. It is an odd situation when something gives a data subject a right if it happens to have been recorded against him and is inaccurate in July 1984 or whenever the date may be; but if by some extraordinary circumstance it happens to have been recorded a few months before that date, he can do nothing about it. It is an extraordinary situation and one that cannot be right.
I am grateful to the noble Lord, Lord Glenarthur, for his undertaking to look at this point again. I am sure that, in view of the seriousness of this matter, his will not be an empty undertaking and that it will have, as he has promised, his very concentrated attention. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Greater London Council (General Powers) (No. 2) Bill
Returned from the Commons with the amendments agreed to.

Lloyds Bowmaker Bill [H.L.]
Reported from the Unopposed Bill Committee with amendments.
House adjourned at seven minutes before eleven o'clock.