COMMONS AMENDMENT (Hansard, 10 July 1998)

§ Lord Williams of Mostyn
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8. I shall speak also to the other numerous amendments in the group. This Bill is technical in nature and inter-related in structure. We have introduced a number of relatively minor amendments with the aim of making sure that the technical effect of the Bill is as intended. That is the nature of the amendments in this group. Individually they do not make changes of any great substance.
Amendment No. 104 is part of the Gaskin grouping, which we have already discussed, but it covers a non-Gaskin point. The amendment adds three new provisions to those listed in Clause 69(2) of the Bill which will come into force on Royal Assent. Two of those provisions, new paragraphs (ef) and (eg), relate to the Gaskin group. New paragraph (ee) relates to the commissioner's powers. It is required to ensure, for example, that the registrar can exercise the commissioner's functions in relation to notification regulations in advance of Clause 6(1) coming into force. The preparation of those regulations will be an important part of the next phase of this legislation if, as it is hoped, the Bill progresses shortly to its enactment.
The Bill provides for a large amount of subordinate legislation—altogether some 40 instruments. Much of this will need to be in place before we can implement the regime required by the data protection directive. Work has begun on subordinate legislation but a good 1484 deal remains to be done including in some cases consultation with interested parties. We do not want to rush through the work to an over-tight schedule. Reluctantly, we have decided to accept that 24th October 1998 is no longer a realistic target date for implementation of the new regime. My honourable friend Mr. Howarth indicated as much recently in another place.
I cannot give the House a firm indication today of a revised implementation date. We intend to make all good speed. We want to bring the Bill into force at the earliest realistic opportunity. We shall indicate a date as soon as we can. I do not expect it to be before the end of this calendar year, but I hope it will not be long after that. I beg to move.

Viscount Astor
My Lords, I should like to put to the Minister a question relating to Clause 8(5) which deals with trade secrets. This matter was debated in your Lordships' House. The industry and the CBI were, and are still, concerned about the Government's view of what constitutes a trade secret. Can the Minister deal with that so that we have on the record of this House the view of the Government which will make it easier for industry when considering these issues?

§ Lord Williams of Mostyn
My Lords, I am grateful for the noble Viscount's question and his wholly co-operative attitude throughout all stages of the Bill. It has been very important to discuss these matters as fully as we can particularly with those organisations with legitimate trade and business concerns.
In Clause 8(5) "trade secret" carries its ordinary meaning. Whether particular material used in automated decision making—which I believe to be the purpose of this question—is covered depends on the circumstances of the particular case. Material that is commercially available and is used by more than one organisation is unlikely to be covered by the provision. It is probably wide enough to cover material prepared in confidence by a commercial organisation for the purpose of its business which is not in the public domain and which could, if disclosed, prejudice the organisation's business.
There was a particular concern which I know was expressed about algorithms which some organisations use to determine whether to meet individual's requests for a service of some kind; for instance, a credit scoring system used to determine whether or not to give people credit. The concern expressed—the noble Lord is right—is that if the detail of factors used to make those decisions were to be disclosed those seeking credit would be able to massage the information they provide and undermine the system. That is a legitimate concern in the Government's view. Therefore on 3rd June this year Home Office and DTI officials met CBI representatives to discuss that concern. Officials explained that reference to "trade secret" was wide enough to meet those concerns. I believe that the CBI 1485 accepted that, but indicated at that stage that it would like the Government's view put on public record, which is what I am happy to do.

Lord Renton
My Lords, I feel obliged to draw attention to another drafting point. It is on Amendment No. 8 which amends Clause 7(1)(d) which is a fairly long subsection. Paragraph (d) runs to more than four lines. Another three lines will be inserted in it. When one reads the paragraph, as amended, it is not easy to follow, and it becomes, I am sorry to have to say, a clumsy piece of drafting. At this stage, of course, with so many Commons amendments being considered, I realise there is nothing that the Government can do about this problem. If we find that there is an awkward piece of drafting, we should draw attention to it just to alert the parliamentary counsel to the fact that that sort of thing should be avoided in the future. This is a clumsy piece of drafting.

§ Lord Williams of Mostyn
My Lords, I am not sure that I accept the epithet "clumsy". It is certainly technical, but in the nature of the beast there is no alternative but to have technical definitions which are sometimes lengthy and need to be scrutinised.
Accessible records are themselves defined in the new clause which is added by Amendment No.87. They are essentially those records to which I made reference earlier: existing statutory access rights, outside the scope of the data protection regime. They include certain health records, accessible public records and educational records, as defined in the new schedules which are added by Amendments Nos. 131 and 132.
I agree that one needs to spend some time looking at the effect of what is technical legislation, but I have to protect the draftsman against charges of clumsiness. However, if he feels on reflection that he may have erred into clumsiness, I am sure that he will accept the noble Lord's reproof in the good-natured way in which it was tendered.