Data Protection Bill [H.L.] (Hansard, 29 June 1984)

§ The Parliamentary Under-Secretary of State, Home Office (Lord Elton)
My Lords, I beg to move that the Commons amendments be now considered.

§ Lord Mishcon
My Lords, I wonder whether upon that Motion I may be permitted to raise one point against the background of which we shall be considering amendments generally and this Bill, in so far as we can on this occasion. The Secretary of State for the Home Department in the other place and the noble and learned Lord the Lord Chancellor in this House both intimated—I am sure they had complete belief in what they said—that it was not possible to ratify the convention until legislation had been passed by Parliament and the machinery of that legislation had been put into force. For that reason there was a period of two years' delay, apart from anything else, as we understood it, for the convention to be signed.
I have intimated to the noble Lord the Minister that at a recent international convention, at which the Home Office was represented, the Governments of Spain and Portugal had taken it for granted, on the advice they received, that they could sign the convention provided only that they intimated an intention to legislate, and that the Act itself had not to be on their statute books—if that is the proper way to describe the manner in which they deal with their legislation. In view of the authoritative view that was given in both this House and another place, I wonder whether the noble Lord the Minister can offer any up-to-date guidance. If it were possible to sign the convention even now—and that is the practical point—and to do so immediately, it would obviously be right to do so.

§ Lord Simon of Glaisdale
My Lords, I hesitate to intervene when I played no part in the discussions on this Bill, but I have always understood that the British constitutional position was that we ratify intending to legislate. Having ratified, we are under a duty to legislate, but we are not bound to postpone ratification until after legislation.

§ Lord Elton
My Lords, I am most grateful to the noble Lord, Lord Mishcon, for his thoughtful warning of this question, which would otherwise have left me in some difficulty. As the noble Lord has said, the convention has been ratified by Spain before legislation is actually in place in that country. But like any other member of the Council of Europe, Spain must do what it thinks right. That applies to Portugal as well. Spain has certain provisions in its constitution which it regards as relevant in this matter. For our part we take the view that we cannot ratify the convention without data protection legislation in force. That is due to the particular circumstances of the case.
Article 4.1 provides that a party to the convention, shall take the necessary measures in its domestic law to give effect to the basic principles for data protection". Article 4.2 provides that, 1156 those measures shall be taken at the latest at the time of entry into force of this convention in respect of that party". In the United Kingdom context that quite clearly means to us that we must have legislation in force before we ratify. There are not, I think, two ways about it. It is in the provisions of the convention itself. Of course it is not for me to judge what is required in the Spanish or any other European context.

§ Lord Mishcon
My Lords. I am most grateful to the noble Lord the Minister and I am very glad that his observations are now on record.