HL Deb 24 October 1983 vol 444 cc12-9

3.11 p.m.

Report received.

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

Lord Elton moved Amendment No. 1: Page 2, line 24 leave out from ("performed") to end of line 26 and insert ("only for the purpose of preparing the text of documents.").

The noble Lord said: My Lords, with this amendment we return to a point raised by my noble friend Lord Mottistone during Committee stage. As your Lordships will recall, Clause 1(8) was introduced into last Session's Bill to exempt operations carried out on word processors solely for the purpose of text manipulation. The provision was generally welcomed, I think, when we discussed it in July, but my noble friend proposed an amendment to delete the reference to the actual equipment used in preparing the text of documents.

He argued that to speak of equipment designed for a particular purpose was too restrictive. Equipment never orginally intended to perform as a word processor might neverthless be used as one with suitable modifications to the software. He thought that a provision drafted solely in terms of the purpose behind the operations would adequately ensure that only word processing activities were excluded by the subsection.

I have to say that I gave my noble friend's suggestion a somewhat frosty reception last time. But we have nonethless given careful consideration to what was said at the Committee stage by my noble friend and by the noble Lords, Lord Donaldson of Kingsbridge and Lord McIntosh of Haringey. The more that we reflected, the more persuasive their arguments proved to be.

When the Government introduced Clause 1(8) we had in mind the purpose-built word processor which might or might not be capable of performing other functions. Clause 1(8) is therefore adequate to cover such equipment; but it is not, I now agree, entirely apt to cover equipment designed for entirely different purposes being used with the addition of new software for word processing activities. Yet, in data protection terms, the two situations are identical and ought to be dealt with in the same way.

The amendment therefore deletes the reference to equipment in Clause 1(8). As amended, the subsection will therefore exclude from the definition of processing any operation performed only for the purpose of preparing the text of documents. I ought to mention that when discussing my noble friend's amendment one argument used against it was that the deletion of the reference to particular equipment might encourage users to claim the exemption simply because the end purpose of their processing was to prepare documents even though the actual processing went beyond the manipulation of text. We have given careful consideration to this point and are now satisfied that the reference to an operation performed only for the purpose of preparing the text of documents should be sufficiently precise to avoid such abuse.

For these various reasons I commend this amendment to the House. I have had to start, upon the resumption after the Summer Recess, by eating a number of my words but the diet has not been entirely unpalatable. This only goes to show that the Government pay close attention to views expressed on all sides in your Lordships'House. I should like to express the Government's gratitude to my noble friend and to the noble Lords opposite for bringing this matter to our attention. I beg to move.

Lord McIntosh of Haringey

Those were sweet words to hear from the Minister at the outset of this debate. No one dislikes having his previously expressed opinions adopted by the Government. I am sure that the noble Lord, Lord Mottistone, will join me in that view. At the risk of seeming slightly sour after the sweet words, I have to say that in the opinion of my noble friends and myself this amendment is indeed necessary but it is not sufficient to rectify the difficulties that arise from subsection (8). In welcoming the amendment, it must be clear that we reserve our position on the second amendment that is down for consideration by your Lordships.

Lord Donaldson of Kingsbridge

My Lords, I am also grateful to the noble Lord for having listened to our arguments. I share the hesitation of the noble Lord, Lord McIntosh, in thinking that the amendment is sufficient, but it is certainly necessary.

Lord Avebury

My Lords, it seems to me, from a study of the discussions that took place as a result of Lord Mottistone's amendment, that he had a point. I am delighted that the Minister has accepted it as valid and taken action at this stage of the Bill. I should like to ask one question for the purpose of clarification. If one has a system that is not primarily designed for word processing but is used in the normal course of a business for accounting and so on, and one uses text processing software on it, then that is the situation intended to be covered by this subsection, as I see it. The most common application likely to occur under the subsection is where the data user has the names and addresses of recipients of letters on file and he calls up those names and addresses for use in conjunction with pre-prepared text for the purpose of sending out an identical or similar letter to all the persons on the list. If he uses the names and addresses for that purpose and for no other, it seems to me that he would not be processing in relation to that data. I should he grateful if the noble Lord would confirm that my understanding is correct.

Lord Mottistone

My Lords, I should like to apologise for not being in my place when my noble friend introduced the amendment. I thank him deeply for it. As my noble friend, I am sure, has told your Lordships, the amendment is similar to one that I advanced at Committee stage. I am most grateful to my noble friend.

Lord Mishcon

My Lords, there is one lesson to be learned from the opening words of the Minister. It is that one should not be put off by his frostiness and should realise that there is a sun that will melt the frost and that deep consideration will always be given in spite of a frosty reply.

I wish to make a last plea that the Government should realise where they are going. Word processing, by this amendment, has now been removed, for all practicable purposes from the need to register. This means only, of course, when word processing is being carried out purely for that purpose. The Law Society has tried to point out the limitations in a memorandum, issued subsequent, I believe, to its knowing of this amendment. The Law Society points out that "essentially word processing operations" are really word processing operations that sometimes mention names. The names will then be interpreted as being a data subject. It gives an example, which is very much within the experience of solicitors, of where, a legal precedent is retrievable from the storage system by reference to the name of the client for whom it was prepared, although the purpose of the operation is pure word processing in the sense that the text is required for adaptation to the needs of another client". Because it is being retrieved by reference to the name of a client for whom it was originally prepared, it will be caught, in spite of the Government amendment now before the House.

Before sitting down I should like again, with your Lordships' permission, to remind the House of precisely where we are going by these all-pervasive registration requirements under the Bill. From these Benches we tried to relieve the duties of the registrar and the urgencies of registration for one category as against the non-urgency of others, by endeavouring to ask for a phasing. That was refused by the Government.

However, I wonder whether your Lordships realise that we are now in the position that we are about to go through the final stages of a Bill under which, for example, if some industrious cricket-loving schoolboy cares to put upon the school computer the names of the first and second eleven teams and against them the number of runs that they have scored in the course of a summer, then the school will have to register that computer. This is not just a reductio ad absurdum: it is legislation ad absurdum.

Lord Elton

My Lords, I should like to begin by thanking noble Lords for their kind reception of what was intended as a kind gesture, and to confim to the noble Lord. Lord Avebury, that the interpretation of the effect of the amendment is as he said. I am grateful to my noble friend for his reception of the amendment and for relieving me, I hope for the rest of this sitting, from the crick in the neck which I got looking for him at the beginning of the proceedings.

The noble Lord, Lord Mishcon, has addressed himself to a wider issue, perhaps, than that touched on by the amendment itself. However, I understand that what the Law Society would want to exclude is the use of word processors to retrieve information about individuals. The noble Lord is making it clear that I have misunderstood him. I can only say that if that was what he meant it was not, of course, what we intended to exclude. Where a word processor is used as a word processor only for the preparation of text, then I think we are all agreed that it should be excluded from the Bill. That is the intention of the amendment, and as far as I can see it goes no further.

On Question, amendment agreed to.

3.23 p.m.

Lord McIntosh of Haringey moved Amendment No. 2: Page 2, line 26, at end insert ("otherwise than by reference to data subjects")

The noble Lord said: My Lords, this amendment deals with the sour part of the clause, and I am afraid I cannot apologise to the House for bringing forward in slightly different wording an amendment which reflects a pervasive defect in the Bill. Indeed, that applies not only to this amendment but to other amendments that we shall be considering this afternoon, because we have here the first example of the inadequacy of the Bill to protect the data subject from unknown, unauthorised or unwanted onward transmission of information about himself.

We have to talk about the matter first of all in respect of word processors, because, as has been made clear by the earlier discussion on the previous clause and as was also made clear in Committee and when the Bill was before your Lordships on the last occasion, the difficulties of defining and restricting the definition of a word processor are virtually insoluble. Indeed, in moving this amendment in the way in which we are putting it forward we are in effect accepting that there is not really going to be any way of defining word processors and distinguishing text preparation from the communication of data, which is what, on the whole, the Bill is about. Therefore, we are looking for protection for the data subject in a different way.

I should not have thought that this amendment would be too difficult for the Government to accept since the way in which we are looking to protect the data subject arises from subsection (7) of the same clause, where, in the definition of "Processing", there is used in line 21 the following phrase: performing any of those operations by reference to the data subject". That is the intention of bringing the processing of data into the scope of this Bill and of removing it from statistical manipulation, calculation or whatever numerical work is done by data processors.

However, if it is true that this is the right way in which to bring processing into the scope of the Bill, and if it is true that the role of the data subject in relation to processing is best defined in those terms, then surely is it not even more true when we come to subsection (8), which is concerned with word processing? The difficulty that we have with word processing is that the very act of manipulating text can in fact also be used to communicate confidential information and to transmit onwards confidential information as the use of data. Therefore, if the word processing applications, which cannot he distinguished from other applications, are to be brought effectively into the Bill, then the phrase: otherwise than by reference to data subjects ought to be brought into it. In that way the registrar and the public are protected from the indiscriminate coverage of word processing, which none of us would want, and yet the data subjects—those who are in fact going to be concerned by the use of manipulated text—are still protected.

The point is not new, and I apologise for repeating it. Indeed, it has been made many times before. However, it has not lessened in efficacy and it has not been answered in any way by the Government spokesmen at any of the stages of the Bill. I would urge the Government, in the spirit in which they recognised the justice of the point made by the noble Lord, Lord Mottistone, in reference to the last amendment, to consider again whether it is not entirely logical to have the same protection in this subsection, the same restriction, as they themselves have put into the previous subsection. I beg to move.

Lord Donaldson of Kingsbridge

My Lords, I am inclined to support this amendment although it is a little difficult to visualise exactly the conditions in which it would be necessary. I suppose that if one were using a word processor to prepare a report on the Maze Prison escape, for example, one would describe the type of things we shall doubtless hear this afternoon in a great deal of detail, and one could alter it as one went along and further information came in. and one would not mention names. That, I suppose, is really the point that is being made. If I have understood it correctly, I think it is right.

Lord Elton

My Lords, I have tried very carefully to follow what the noble Lord, Lord McIntosh of Haringey, has been saying and what the noble Lord, Lord Donaldson of Kingsbridge, has been supporting in amplification of this amendment. I hope that I am in a better position now than perhaps I was during the Committee stage to explain why I believe his fears to be unfounded. I then sought to reassure your Lordships that there was not anything in Clause 1(8) which would reduce the safeguards afforded by the Bill to data subjects, and I should like to reaffirm that view perhaps more precisely today.

What this subsection does is to exclude from the provisions of the Bill those staightforward word processing activities which are quite incapable of causing anybody any harm. There has been widespread agreement that it would be unnecessarily bureaucratic to apply the registration and other requirements of the Bill to such activities, and I believe that the wording as now cast, following the previous amendment, is the best way of achieving the necessary exemption.

Your Lordships will recall that users of word processors were concerned that even the preparation of a series of standard letters to different addressees could be regarded as processing by reference to the data subject. It would therefore be caught by the definition of "processing" in Clause 1(7), since there was nothing to distinguish between the activity involved in such an operation and the search for names in a computer's data banks. It is the latter activity which the Bill is more obviously intended to cover, but, because word processors can perform a wide range of tasks, we found that we could not exclude them as such. Instead we had to describe the particular activities which we wanted to exempt. I think that the noble Lord, Lord McIntosh of Haringey, is at one with us there. Thus, to qualify for the exemption, the activity must be performed only for the purpose of preparing the text of documents.

If we were to add the words suggested by the amendment, the whole point of subsection (8) would be lost. What the amendment does is to allow the word-processing exemption to apply only where the text of documents is prepared otherwise than by reference to data subjects. But, if a user did not prepare the text of documents by reference to data subjects, he would not be covered by the definition of processing in relation to personal data anyway. So, if I may use a favourite technical word, the amendment is "otiose". If he did prepare the text of documents by reference to data subjects—in the way that I have described by my example of standard letters—then he would not be satisfying the additional condition placed on the application of subsection (8) by the amendment; and so word processors used simply for text preparation would be back within the scope of the Bill. However, where I can offer reassurance is in saying that, the moment a word processor is used for a purpose other than text preparation, then the benefit of the exemption is lost. I believe that this is the safeguard against the kind of abuse feared by noble Lords, and it is achieved without amendment to the clause.

I hope that I have said enough to persuade the noble Lord—and the definition within the definition is a very difficult concept—that subsection (8) does not require the protection that he has suggested and that he will not think it necessary to press his amendment. He is perhaps at the moment debating whether to consider what I have said at leisure by perusing Hansard to see whether it is satisfactory. I think that that is what I shall do with what he has said.

Lord Mishcon

My Lords, I wonder whether the noble Lord the Minister would mind a short intervention which may lead him to write to my noble friend, myself and any other noble Lord interested on the subject. Having listened very carefully to what the noble Lord the Minister has said, again I wonder whether the House realises (as I understand to be the case, but I may he wrong) that, if the Government Chief Whip decides on a word processor to send out a circular letter—and I assure the noble Lord the Minister that the same would apply to the Opposition Chief Whip—and that letter is to be worded in one way to Members of the Front Bench and in another way to Back-Benchers (and, therefore, on the word processor there is the indication that this goes out to the Front Bench and this goes out to the Back-Benchers), this would be caught by the Bill and the Opposition Chief Whip as well as the Government Chief Whip would presumably have to register. I ask this as a question and quite obviously I know that it will interest noble Lords administratively, logically and legalistically. Therefore, as I have said, if the noble Lord is not able to reply at the moment, I shall be grateful if he can do so between now and Third Reading.

Lord Elton

My Lords, if the House will give me leave, I shall reply straight away. This is exactly the situation that we wish to avoid and that is why we have amended the subsection. Perhaps if the noble Lord himself would be kind enough to write to me exemplifying the way in which we have failed to do this I should be better able—I hope—to dispose of his misconceptions or, alternatively, to correct my own. However, the present state of play is that the amendment achieves what I have described without the subsequent amendment offered to your Lordships by the noble Lord, Lord McIntosh of Haringey, and I hope that he will not pursue it at this stage.

Lord McIntosh of Haringey

My Lords, I am struggling to comprehend the meaning of a definition within a definition. I am sure that there is something very subtle and searching in the words used by the noble Lord and, as he invited me to, I shall indeed study his words in Hansard rather than pursue this amendment now. But, in seeking leave to withdraw the amendment, I still remain to be convinced that the distinction he is making, the safeguard which he is offering us, is not in fact still dependent on a distinction between the processing of text and the processing of data. I believe that such a distinction cannot be maintained without there being some difficulty at the boundaries. That is why it may appear to the noble Lord and to the Government that we are attempting to say the same thing twice in protection of the data subject. As Senator Goldwater nearly said: Duplication in defence of liberty is no vice". Leaving it out in defence of moderation is no virtue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.