§ 72 After Clause 54, insert the following new clause—
§ Records obtained under data subject's right of access
§ PROHIBITION OF REQUIREMENT AS TO PRODUCTION OF CERTAIN
§ .—(1) A person must not, in connection with—
- (a) the recruitment of another person as an employee,
- (b) the continued employment of another person, or
- (c) any contract for the provision of services to him by another person,
§ (2) A person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public must not, as a condition of providing or offering to provide any goods, facilities or services to another person, require that other person or a third party to supply him with a relevant record or to produce a relevant record to him.
§ (3) Subsections (1) and (2) do not apply to a person who shows—
- (a) that the imposition of the requirement was required or authorised by or under any enactment, by any rule of law or by the order of a court, or
- (b) that in the particular circumstances the imposition of the requirement was justified as being in the public interest.
§ (4) Having regard to the provisions of Part V of the Police Act 1997 (certificates of criminal records etc.), the imposition of the requirement referred to in subsection (1) or (2) is not to be regarded as being justified as being in the public interest on the ground that it would assist in the prevention or detection of crime.
§ (5) A person who contravenes subsection (1) or (2) is guilty of an offence.
§ (6) In this section "a relevant record" means any record which—
- (a) has been or is to be obtained by a data subject from any data controller specified in the first column of the Table below in the exercise of the right conferred by section 7, and
- (b) contains information relating to any matter specified in relation to that data controller in the second column,
|1. Any of the following persons—||(a) Convictions.|
|(a) a chief officer of police of a police force in England and Wales.|
|(b) a chief constable of a police force in Scotland.|
|(c) the Chief Constable of the Royal Ulster Constabulary.|
|(d) the Director General of the National Criminal Intelligence Service.|
|(e) the Director General of the National Crime Squad.|
|2. The Secretary of State.||(a) Convictions.|
|(c) His functions under section 53 of the Children and Young Persons Act 1933, section 205(2) or 208 of the Criminal Procedure (Scotland) Act 1995 or section 73 of the Children and Young Persons Act (Northern Ireland) 1968 in relation to any person sentenced to detention.|
|(d) His functions under the Prison Act 1952, the Prisons (Scotland) Act 1989 or the Prison Act (Northern Ireland) 1953 in relation to any person imprisoned or detained.|
|(e) His functions under the Social Security Contributions and Benefits Act 1992, the Social Security Administration Act 1992 or the Jobseekers Act 1995.|
|(f) His functions under Part V of the Police Act 1997.|
|3. The Department of Health and Social Services for Northern Ireland||Its functions under the Social Security Contributions and Benefits (Northern Ireland) Act 1992, the Social Security Administration (Northern Ireland) Act 1992 or the Jobseekers (Northern Ireland) Order 1995.|
(7) In the Table in subsection (6)—
caution" means a caution given to any person in England and Wales or Northern Ireland in respect of an offence which, at the time when the caution is given, is admitted;
conviction" has the same meaning as in the Rehabilitation of Offenders Act 1974 or the Rehabilitation of Offenders (Northern Ireland) Order 1978.
§ (8) The Secretary of State may by order amend—
- (a) the Table in subsection (6), and
- (b) subsection (7).
§ (9) For the purposes of this section a record which states that a data controller is not processing any personal data relating to a particular matter shall be taken to be a record containing information relating to that matter.
§ (10) In this section "employee" means an individual who—
- (a) works under a contract of employment, as defined by section 230(2) of the Employment Rights Act 1996, or
- (b) holds any office,
§ Lord Williams of Mostyn
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 72. I shall speak also to Amendments Nos. 75, 78 and 105.
We gave an undertaking to deal with the problem of enforced subject access. The issues are complex and we were not able to complete all the necessary work before the Bill left this House. These amendments give effect to the Government's undertaking.
Amendment No. 72 makes enforced subject access an offence in certain circumstances. We do not propose an offence lightly. Criminalising behaviour places a special duty on the Government and Parliament to focus very carefully on significant social problems. Therefore, we have put the offence in that context. It is limited to certain types of records—criminal records, prison records and DSS records.
Therefore, we are focusing on the types of records with which there is currently a problem or those to which the present problem might be displaced. The present problem is mainly with records which give information about criminal history; namely, police records or DSS contribution records where significant gaps might indicate periods in custody.
However, we are not ruling out applying the offence to other records. Under Amendment No. 78 the list is extendable by order subject to affirmative resolution in case the practice is diverted elsewhere. The offence is committed only where the data subject is required to provide the specified data. We do not wish to criminalise straight requests for information. It is perfectly legitimate for a potential employer to ask a job applicant for details of any criminal record. It should be a crime only if he requires provision of that information through the applicant's subject access right.
We are confining the offence to the types of situation in which systematic use is most likely to occur and where people are least likely to be acting in their private as distinct from their professional capacity. Those are employment and appointments which would include recruitment, continued employment, preferment or promotion; placing contracts; and providing goods, facilities or services to the public.
1503 We propose defences where it can be shown that the requirement was authorised by law or court order or was justified as being in the public interest. But bearing in mind the planned dedicated channel for the supply of criminal records under the Police Act 1997, the public interest defence will explicitly exclude crime prevention or detection. Anyone who has that as a genuine motive will have an alternative route to obtain appropriate information.
Because of the close link that we see with the introduction of criminal record certificates, Amendment No. 105 provides that the new clause added by Amendment No. 72 cannot be brought into force before they are available.
As with other offences under the Bill, by virtue of Clause 57, only the data protection commissioner or the Director of Public Prosecutions can prosecute. The punishment would be a fine and Amendment No. 72 also allows the court to order forfeiture, erasure or destruction of documents or other material. I commend the amendment to the House.
§ Moved, That the House do agree with the Commons in their Amendment No. 72.—(Lord Williams of Mostyn.)
My Lords, on Amendment No. 72, which is very necessary, there is just one point on which we need clarification. Subsection (6) on page 8 refers to "a relevant record" which means a record which,has been or is to be obtained by a data subject from any data controller specified in the first column of the Table".We are then told what subject matter can be provided.
We have various laws, and I am sorry that I do not carry them in my head and I have not had time to look them up, which have the effect that some convictions can no longer be used by the courts or in any other way after a period of time. It does not apply to all offences but it is a rather important provision. I remember it being passed many years ago in another place.
I very much hope that the information that can be given under that new clause and in the proposed "Table" will exclude anything which has, by the passage of time, been forbidden for use by the courts, or in any other way. If the Minster can give that undertaking, I am sure that we would all be very much happier.
§ Lord Williams of Mostyn
My Lords, the legislation that the noble Lord had in mind is the Rehabilitation of Offenders Act 1974. As the noble Lord quite rightly says, for a longer period of time, some convictions—and I shall not irritate the House by going into detail—are regarded as spent and, therefore, cannot be used in certain circumstances. As I understand the construction of the new clause, nothing in it will affect the protections provided by the Rehabilitation of Offenders Act. If I am wrong in that respect, I shall immediately correct myself in writing to the noble Lord.
§ On Question, Motion agreed to.