COMMONS AMENDMENT (Hansard, 10 July 1998)

§ Lord Falconer of Thoroton
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 34. I shall also speak to Amendments Nos. 35 to 38 and Amendment No. 145.
Clause 17 in the Bill as it left this House deals with the arrangements for data controllers to notify the data protection commissioner of the processing which they do. It covers both mandatory and voluntary notification. Subsection (1) said that controllers "may" notify the commissioner. Amendment No. 34 changes "may" to "must". This makes clear that any controller who wants to go into the register, following mandatory or voluntary notification, must make a proper notification to the commissioner in the form required by the rest of the clause.
As to Amendments Nos. 35 and 36, what was Clause 18 requires the data protection commissioner to maintain a register of notifications given under Clause 17. The provision limited the content of the register to the details notified by the data controller in line with Clauses 15 and 17 together with any necessary updating amendment. But it could sometimes be appropriate to include further material in the register entry. Amendments Nos. 35 and 36 allow for this. An example of the additional material that might be included would be the content of an enforcement notice that was in force in respect of a particular data controller. Under the amendments, the notification regulations would be able to authorise or require the commissioner to include the particular types of material. The regulations themselves would need to be laid before Parliament. The amendments are intended, therefore, to allow limited, commonsense additions to notification entries.
Amendment No. 37 makes clear that the commissioner must not charge for making the register of notifications open for public inspection under what 1491 was Clause 18(6). Amendment No. 38 is a technical amendment which makes a small improvement to Clause 19.

§ Baroness O'Cathain
My Lords, I agree to Amendment No. 34. However, it does not use the word "must" but the word "shall", despite what the Minister said.

§ Lord Skelmersdale
My Lords, before the Minister responds to the noble Baroness, is he now advocating new drafting practice, that the word "must" shall appear generally in legislation?

§ Lord Falconer of Thoroton
My Lords, I stand entirely corrected by the noble Baroness, Lady O'Cathain, who has read the documents much more closely than I. She is absolutely right. Perhaps I may say in my own rather pitiful defence that I think the substance is the same.
As to the question of the noble Lord, Lord Skelmersdale, the answer is no. It is not now a practice that "must" shall always replace "may" but only when appropriate in the circumstances.

§ Lord Skelmersdale
My Lords, the noble and learned Lord has answered the wrong question. I was asking whether "must" shall now replace "shall".

§ Lord Falconer of Thoroton
My Lords, in the context of this particular Bill the word "shall" is obviously the most appropriate word to use. Whether that will be the case in every Bill I have no idea. I suspect not. It will depend on the circumstances.