Data Protection Bill [H.L.]

HL Deb 24 March 1998 vol 587 cc1094-136

3.6 p.m.

Lord Carter

My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Data Protection Bill [H.L.], have consented to place their prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament, for the purposes of the Bill.

Bill read a third time.

Clause 7 [Right of access to personal data]:

The Solicitor-General (Lord Falconer of Thoroton) moved Amendment No. 1:

Page 6, line 8, at beginning insert ("Subject to subsection (4),").

The noble and learned Lord said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 2 and 5. This is a technical amendment. Clause 7(8) requires data controllers to respond promptly to subject access requests. Clause 7(4), read with Clause 7(5), makes provision for the postponement of that duty, at least in part, in some circumstances. Where some of the information sought by the data subject is withheld on the grounds that it would identify a third party who has not consented, the obligation to disclose promptly applies only to the rest of the information. This amendment makes it clear that Clause 7(8) has to be read subject to that special provision.

Amendment No. 2 is also in the name of my noble friend Lord Williams of Mostyn. This government amendment comes before your Lordships' House with the unusual recommendation of being designed to reverse an amendment which we brought forward at Committee stage and which was agreed by the House at that time. The issue is whether or not companies should benefit from the right to claim compensation for breach of the Bill's provisions. It is an area in which the directive has set us a difficult puzzle, and we are trying hard to get it as right as we can.

Article 23 of the directive requires us to provide that "any person" who has suffered damage as a result of contraventions of the data protection regime shall be entitled to compensation from the data controller in question. As your Lordships are aware, we had originally reflected that requirement, in Clause 11, with a reference to an entitlement for "individuals". It seemed to us at the time that that was a fair interpretation of the effect we were required to achieve. It was subsequently drawn to our attention, however, that that could lead to some perhaps surprising results. So we reflected with some care on that reference in the directive to "any person" and concluded, on balance, that the right thing to do was to use the same word in Clause 11. That had the effect of admitting companies into the class of persons who would be entitled to claim damages. That appeared to us at the time to be a more generally consistent approach, and one which was recommended to your Lordships at Committee stage.

However, subsequent reaction to the amendment of the Bill has not, on balance, been favourable. It has now been represented to us with some force that the result it produces may in fact be disproportionate. It can create an open-ended liability for data controllers of a potential range which we think, on reflection, may not be the best answer to the question of risk allocation in this area. We do not think that such a result is required or intended by the directive; nor, we have concluded, do arguments for consistency outweigh these disadvantages.

It seems to us, on reflection, that to restrict the availability of compensation to natural persons—"individuals"—is entirely consonant with the stated objectives and the language of the directive taken as a whole, and is in general the better solution. It does sometimes happen that first thoughts are the best after all. The Government have now said to your Lordships' House on many occasions already during the passage of this Bill that we are trying to make the best fist of it that we can. We have listened carefully and open-mindedly to what has been said to us on this matter, and we have come to a revised view. It is on that basis that the present amendment comes before your Lordships today, on which I invite the House to accept the merits, on balance, of making the return journey to the original wording proposed by the Government for Clause 11.

The third amendment in the group is in the name of the noble Lord, Lord Coleraine. I shall wait for the noble Lord to speak to it before I respond to it. I beg to move.

3.15 p.m.

Lord Coleraine

My Lords, I am sure that there is good reason why the amendment has been grouped with the two amendments to which the noble and learned Lord has spoken. I cannot think of the reason, but I am happy to speak to my amendment.

I tabled the amendment to reflect concerns expressed to me last week by the Law Society. Clause 30 of the Bill, in so far as affected by the amendment, provides exemptions from the subject information provisions of the Bill for bodies exercising regulatory functions designed to protect the public against, as stated in Clause 30(2)(a)(iv), dishonesty, malpractice or other seriously improper conduct by, or the unfitness or incompetence of, persons authorised to carry on any profession or other activity". It is clear to the Law Society that it will be protected by the exemption provisions when it processes data about the alleged improprieties of admitted solicitors. What is less clear is whether the exemption extends to data processed in respect of trainee solicitors. Those are persons preparing for admission as solicitors. The Law Society regulates and sets standards for them. A trainee solicitor, under the supervision of an admitted solicitor, provides valuable legal services to the public. Trainee solicitors are a valuable legal resource. It would be both anomalous and to be regretted, and not at all in the public interest or in the interests of trainee solicitors, if the Law Society were not to have the same protection from the subject information provisions of the Bill in respect of trainee solicitors as it has in regard to admitted solicitors.

It is unclear to me whether trainee solicitors are, persons authorised to carry on any profession or any other activity", within the meaning of the Bill. Is a trainee solicitor carrying on a profession? The expression "carry on any profession" is susceptible to various meanings. The amendment would put the question beyond doubt. It would also operate for the benefit of other professions which may be similarly affected.

Having heard what I have said, I hope that the noble and learned Lord will either accept my amendment or be prepared to say that he will bring forward a suitable amendment in another place in due course.

Lord Lester of Herne Hill

My Lords, perhaps I may clarify the position as regards the amendment to Clause 11. I understand the reasons given by the Minister for seeking to substitute an individual for a person, a corporation—a body of that kind—in seeking compensation. But what troubles me is how one links this to the European Convention on Human Rights. Article 8 of the convention guarantees the right to personal privacy against unnecessary interference. Case law makes it clear that it protects companies as well as individuals. If through data processing there is then a breach of the corporate rights of an organisation and it suffers direct damage as a result, it is also clear under the human rights convention that it is entitled to an effective remedy in domestic law under Article 13 of the convention.

I appreciate that when the Human Rights Bill comes into force it will require this Bill to be read in accordance with the convention if possible. But it is obviously more desirable that Parliament should state the law of the land clearly in this Bill rather than the courts having the obligation of interpretation to make the Bill fit with the convention.

My worry about the proposed amendment to Clause 11 is that it will remove the compensatory remedy where the victim is not an individual, and will therefore give rise to a mismatch, not between the Bill and the EC directive directly, but between the Bill and Articles 8 and 13 of the European Convention on Human Rights. In making up my mind about the amendment I shall be grateful to know whether the point has been considered, and what assurances the Government can give the House as to whether or not there is a mismatch.

Lord Mishcon

My Lords, may I be allowed to support what the noble Lord, Lord Coleraine, said in regard to Amendment No. 5? He covered the ground so fully that it is unnecessary for me to say any more.

Lord Falconer of Thoroton

My Lords, perhaps I may deal first with the amendment in the name of the noble Lord, Lord Coleraine, which my noble friend Lord Mishcon, supports. I am grateful to the noble Lord for having given my noble friend Lord Williams of Mostyn notice of his intention to propose the amendment, for having explained its purpose to him in advance, and for having explained it clearly again.

As the noble Lord made clear, in essence he wants to ensure that the subject information exemption in Clause 30 applies not only to qualified professionals such as solicitors, but also to those being trained for a profession. The argument is that the exemption needs to be available for trainees, too, since they are subject to similar rules of propriety of conduct, competence, and so on.

I have considerable sympathy with this objective. I wonder, though, whether the amendment is needed. The exemption in the relevant part of Clause 30 currently applies to, persons authorised to carry on any profession or other activity". In the first place, I think there is nothing to limit the reference to "any profession" to persons of a particular current status in the profession. Many professions include junior training—or one might say novice—grades which are fully regulated but confined to limited roles. I refer to pupil barristers, or those who used to be called articled clerks. Such regulation seems to me to be integral to protection of the public in respect of persons authorised to carry on any profession, whether by such persons in their present or future capacity. If there is any room for argument about that—which I do not think there is—it must in any event be removed by the Bill's reference to "other activity". I think, therefore, that the Law Society regulation is designed to protect the public in respect of persons authorised to carry on any profession or other activity within the meaning of Clause 30. The same arguments are likely to apply to trainees for other professions.

I certainly understand the noble Lord's concern. I am willing to have another look at this matter, to see whether the position could usefully be clarified, which, with the greatest respect to him, I am not sure his amendment will necessarily do. However, he spoke to it in such a way as to indicate the concerns that we should consider. I shall certainly do so. The amendment goes much too wide, and I cannot advise the House to accept it. However, I am very willing to re-examine this subject.

Lord Coleraine

My Lords, before the noble and learned Lord moves on from that point, perhaps I may thank him for his reply. It will save time, and I shall now not need to move my amendment formally. I am glad to hear that he will have another look at the legal points at issue and I am sure that the Law Society will do the same. In the meantime, I am most grateful for his remarks.

Lord Falconer of Thoroton

My Lords, to turn to the point made by the noble Lord, Lord Lester, the answer is this. Our focus in drafting the amendment has been too exclusively on the directive; it has not focused on the interaction between that and the European Convention on Human Rights. It seems to me appropriate, in the light of what has been said, that we should go away and consider the position. I ask the House to agree to the amendment; however, I wish to make clear that we will consider the point that the noble Lord made, which has not yet been considered in detail.

Lord Lester of Herne Hill

My Lords, I am very grateful for that generous reply. No one, in good grace, could possibly do other than accept it with gratitude. Perhaps I may merely make one point, to which I shall return later. The European Convention on Human Rights is embedded in European Community law. When interpreting the EC directive, the Luxembourg court as well as national courts have to keep their eye on the Convention as well as on Community law. Therefore, while we have in mind the directive throughout these debates, to quote the marvellous metaphor of the Lord Chancellor, the Human Rights Act will make our legal system point towards magnetic north—magnetic north being Convention rights, which are paramount. Therefore, as legislators, we have to try to make the statute fit the directive and the Convention. I am most grateful that this matter will be considered.

On Question, amendment agreed to.

Clause 11 [Compensation for failure to comply with certain requirements]:

Lord Falconer of Thoroton moved Amendment No. 2:

Page 8, line 26, leave out ("A person") and insert ("An individual").

On Question, amendment agreed to.

The Chairman of Committees (Lord Boston of Faversham)

My Lords, in calling Amendment No. 3, I should point out that, if it is agreed to, I cannot call Amendment No. 4.

Clause 28 [Crime and taxation]:

Baroness Nicholson of Winterbourne moved Amendment No. 3:

Page 18, line 8, leave out subsection (4).

The noble Baroness said: My Lords, this amendment relates to Clause 28(4), referring to wide-ranging secondary legislation powers given to the Secretary of State in order to subvert crime and to enforce powers of taxation. It is a very wide-ranging clause indeed. The Data Protection Registrar states, in a letter that she sent to me on 18th March, that Clause 28(4) is unprecedented and that, Exemptions under this broad heading have been case by case".

She adds that, No other enforcement body internationally has asked for broad based exemptions".

She goes on to point out: Clause 28(4) takes away protection given by the 1984 Act".

With that in mind, I have placed two amendments before the House today. The first, to which I now speak, seeks to follow the line of the Data Protection Registrar and to remove Clause 28(4) completely. Perhaps I may briefly seek to justify that; first, on the basis that the Government, when in opposition, called secondary legislation—to quote from Mr. Derek Fatchett, now a Member of the Government— one golden, malevolent thread running through our constitution, … the transfer of prerogative powers from the Crown, not to the House, not to Parliament, but to the Executive".—[Official Report, Commons, 23/5/94; col. 112.]

He went on to say: It is revealing that a Government should have the arrogance to ask for such powers. It would be even more revealing if a Parliament—this Parliament"—

he was referring to 1995— agreed to grant Ministers those powers".

Later, during debate on the same Bill, the Deregulation and Contracting Out Bill, on 23rd May 1994, he repeated, at col. 114, a commitment given earlier that, no incoming Labour Government will use the powers, because … the powers are an abuse of the House of Commons and give too much power to the … Executive".

He made the further point that, The Labour Party oppose in principle the use of order-making powers to repeal primary legislation".

I have no doubt that that is why the Labour manifesto of 1997 stated, Unnecessary secrecy in government leads to arrogance in government and defective power decisions".

I would not wish to see the new Government fall into that pattern of activity so early in their time of responsibility. It is against the philosophy of New Labour, as I understand it.

To turn to the detail of the clause, it justifies its existence on two important government arms: first, the police, and secondly, the Inland Revenue. I am glad to be able to tell the House that the police do not wish to have this wide-ranging power. Indeed, they have stated to me that they would rather that it was not available to them.

I have in front of me a letter from the chief constable who is the chairman of the ACPO Working Group on Data Protection, the police body on data protection, in which he states: The Police Service is not seeking wider exemptions from the legislation and neither have we made any representations to the Home Office on such matters. It would not be in the interest of the Police Service".

In other words, the police comply with the 1984 Act. They have a good professional relationship with the Data Protection Registrar. They have managed to maintain public confidence in an area of great sensitivity; namely, electronic data holding in the modern era. Their behaviour has been exemplary, and they do not wish that public confidence to be shaken by any well-meant but inherently clumsy attempt to give them wide-ranging powers that they do not desire. Their view is that blanket provision such as this is a step too far for any public body. They wish exemptions to be kept to a minimum, they are knowledgeable about using the new technology and feel that public confidence in the police would be shaken if they were given Clause 28(4) powers. I am grateful to be able to lay a part of that letter, which is already in the public domain, before the House.

Secondly, I turn to the question of the Inland Revenue, on whose shoulders therefore this clause must now rest for its inclusion in the Bill. Here I suggest that the Inland Revenue, if it seeks this broad exemption, should surely not wish to have it placed in front of your Lordships in this hole-in-the-corner method. If this is not a Henry VIII clause then surely, from the way in which such clauses were debated by the Labour Party in the other House while I was in the other place, at least it is a "White Queen" clause. Henry VIII, when he said, "Off with their heads", did it; the White Queen merely said rather loudly, "Off with their heads, off with their heads", and perhaps not so many people suffered. Either way, it is a secondary legislation power. If new large powers are needed by the Inland Revenue, noble Lords should be convinced that there is no proper Inland Revenue legislation under which they could be debated.

As the noble and learned Lord the Solicitor-General said in the previous debate on this Bill, we are in an era where the Inland Revenue's future is unknown. That future may, of course, be less unknown since the Chancellor's speech, with insurance being twinned with Inland Revenue computer systems. Undoubtedly, many more changes lie ahead very soon.

However, is it right that the Inland Revenue, with these changes coming to its work, should be authorised by ministerial order alone to remove from Parliament the capacity to debate such matters and for us to be the judges as to what is right and proper in terms of Inland Revenue special provisions in the electronic era?

Before I sit down, perhaps I may pick up a challenge that will immediately be thrown at me that it is an affirmative order and that we can debate it. When on an affirmative order I raised an important point just before Christmas about EU database protection, I was subsequently informed that 13 minutes was far too long. I am asking should wide-ranging, blanket Inland Revenue powers which take away rights of individuals already given under the 1984 Act be trimmed down to such a narrow window of democratic opportunity? I beg to move.

3.30 p.m.

Viscount Astor

My Lords, we debated this amendment at both Committee and Report stages of the Bill. At Committee stage I added my name to the amendment by the noble Baroness. Our first debate was largely after the report of the Delegated Powers and Deregulation Select Committee, which stated that it thought that the powers in Clause 28(4) would be "impossible to justify". Those were their words. The Government listened to that concern and came forward with an amendment that dealt with the problem to a degree, but not entirely. It softened the blow, if I could describe it that way. But at the same time, the Government then came up with many other reasons why this draconian power was necessary.

Throughout the progress of the Bill, on this side of the House we have never been entirely convinced by the necessity for those powers. At Report stage we also debated the present Amendment No. 4, which is grouped with Amendment No. 3, moved by the noble Baroness. That amendment did not delete subsection (4) but sought to amend it in a way that we on this side of the House thought might be more acceptable to the Government.

At that stage, the noble and learned Lord gave reasons why the Government did not want to accept that amendment, which is Amendment No. 4. His main argument was that the Government would lose the flexibility to deal with new developments. That was not a convincing argument against the amendment. It may be that deleting subsection (4) is going slightly too far, but we are not happy with the subsection. The noble and learned Lord must accept that unless he is prepared to consider Amendment No. 4 by the noble Baroness, we would support her in deleting subsection (4) so that the Government could go back, consider the matter more carefully and come up with better drafting.

Lord Falconer of Thoroton

My Lords, I am grateful to the noble Baroness for returning to the subject of Clause 28(4). In effect, at this stage we are debating two amendments. The first would remove subsection (4) altogether and the second would leave it in place purely for tax and related purposes and exclude the reference to crime and the prevention of crime. That neatly crystallises the two big remaining issues concerning this subsection: namely, should it be removed altogether? Do we need it for any department's purposes? Secondly, if, as the Government have argued, it is required for Inland Revenue reasons, should our order-making power also embrace other departments in the area of crime and offenders? I will deal with those issues in turn.

First, does the Inland Revenue need this power? I remind the House that without the Clause 28(4) general exemption, as opposed to case by case exemptions, the Inland Revenue and hence honest taxpayers would suffer losses with information being revealed to suspect taxpayers about the nature and origin of material passed to the Inland Revenue by third parties such as banks and retail businesses and about the revenue's risk rules and scores under the new self-assessment tax system. The Inland Revenue would also be unable to receive information disclosed voluntarily; for example, by retailers helping them to identify potential ghosts and moonlighters.

Since our debate at Report, the noble Baroness was kind enough to have a meeting with my noble friend Lord Williams and myself. I know also that she has been in contact with the Data Protection Registrar who is quite naturally concerned that we should minimise exceptions to the normal data protection law mechanisms. Since then, the Home Office has had joint discussions with Inland Revenue colleagues and representatives of the registrar.

Those discussions have been very valuable in further isolating the operational issues at stake and the extent to which there might be scope to meet them through other data protection law mechanisms. We have reached no firm conclusions, but both the Inland Revenue and the Data Protection Registrar's staff have agreed to explore a number of points further. Between them these bear on both of the principal mechanisms at stake, the subject information provisions and the non-disclosure provisions. I would very much like those issues to be explored further before the Government reach a view on whether any modification to Clause 28(4) is possible.

I should stress that this process is without commitment on either side. The Data Protection Registrar's staff have not dropped their general concerns about Clause 28(4), to which the noble Baroness, Lady Nicholson, gave voice in this debate; nor have the Government conceded that its scope can be reduced. We need to look further to see, with good will, what can be done. I am asking for that work to be done quickly so that there can be no delay in reporting back in another place and, in due course, bringing any appropriate fresh proposals back before the House.

I turn now to needs which may arise beyond the Inland Revenue's. The Government have been entirely open about it. At present—and this confirms what the noble Baroness said in relation to the police—the Inland Revenue is the only department which has sought an exemption. But one can imagine similar circumstances arising elsewhere. I note that ACPO's data protection committee has confirmed that it does not seek an exemption, but the police are not the only ones who handle data concerning crime, offenders and taxation.

I also have to say, with respect, that it would be unreasonably optimistic to think that whenever a future need arose there would be other convenient legislation, whether originating in Europe or elsewhere, going through Parliament, whose scope could accommodate data protection amendments. It does not work like that. Opportunities to amend data protection law in practice arise only rarely.

However, there is something more we could do now. Hitherto, we have frankly been loath to ask other departments whether they can foresee a need for a similar exemption because the very question might stimulate over-cautious responses. However, I think we have gone beyond the point of such niceties. The Home Office will now approach other departments generally, making clear the arguments put in this House for restricting exemptions of this kind and asking whether they have any other clear cases for exemption and if so what are their operational needs. If there are any other such cases, the Government would explain them in another place, and subsequently in this House, to bring out why we need the general order-making power. If there are no other such cases, we will look seriously at an amendment to restrict the scope of subsection (4).

I hope that the House will accept that this is a genuine offer to look again, dealing with both issues raised by the two amendments. Having made our further inquiries, we would come back to Parliament to explain the nature, if any, of our need. Pending that further work, I invite the noble Baroness to withdraw her amendments at this stage in the expectation of further information and assurances in due course.

Viscount Astor

My Lords, before the noble and learned Lord sits down, perhaps I may put to him a question and ask him to respond briefly. He has made a very genuine offer, which is not surprising because we know that the Data Protection Registrar is concerned about these powers and that the police do not want the powers and now we understand that the Inland Revenue is concerned about these powers. He has made a very genuine offer to look at the issue again, but of course with no commitment. Indeed, he cannot, as it were, bind his colleagues in another place.

The difficulty I have—I accept the reasonableness of the noble and learned Lord's argument and his genuine offer—is that if the noble Baroness withdraws her amendment the Bill will then go to another place. If the Government look at the issue and decide, for whatever reason, that they do not wish to alter the clause as it stands the Bill will not necessarily come back to this House and your Lordships will not have an opportunity to ask the Government here in this House why they changed their mind or why they did not change their mind. In those circumstances, it would seem to me reasonable if the noble and learned Lord were prepared to accept the amendment, or one of the amendments, along with his commitment to look at it again. That would ensure that the Bill would come back to this House after it had been in another place and your Lordships could then address the issue, listen to the, I am sure, reasonable arguments from the Government and hear the full consideration that they had given to this issue.

Lord Lester of Herne Hill

My Lords, I am not sure whether the noble and learned Lord the Solicitor-General has yet sat down; but if he has not yet sat down, perhaps I may supplement that question by a further one. The noble and learned Lord has already indicated in the context of an earlier amendment that the European Convention point has not been directly focused upon, for reasons I understand. Can he tell the House whether the effect of Clause 28(4) as it stands, authorising a possible breach of Article 8 of the European Convention on Human Rights by authorising a disproportionate interference with personal privacy, has been taken into account; and if not, whether the Government have it in mind that that too should be taken into account in considering this matter?

Lord Falconer of Thoroton

My Lords, the answer is that I had not sat down. In response to the noble Viscount, Lord Astor, what I have said to the House the Government will do involves in good faith both discussing the matter with the Inland Revenue and the Data Protection Registrar to see what can be done in relation to the Inland Revenue aspect and also making inquiries of other departments to see whether any other department wants it. I am not sufficiently experienced in the procedures of the House to comment on what he said the procedures are. However, assuming that what he said is correct, it seems to me that the House has to rely on the Government's good faith in doing that which they have said they will do. I respectfully suggest that there is no reason why the House should not rely on the Government's good faith in this respect. If the results of the investigations and the talks bear fruit we will then bring forward the appropriate amendments in another place. If they do not bear fruit, we will explain why not at an appropriate point to both another place and to this House.

3.45 p.m.

Viscount Astor

My Lords, I apologise for interrupting the noble and learned Lord again. If he goes for that process, which I accept is a quite reasonable process for the Government to go through, and finds that the Bill goes to another place and is unamended, your Lordships' House will not have an opportunity to see the Bill again. That is the point I was trying to make. I fully accept the genuineness of the noble and learned Lord's offer and the Government's commitment. However, the point I am making is that without a peg on which to hang a debate so that the Bill can come back, your Lordships may not be able to have such an opportunity.

Lord Falconer of Thoroton

My Lords, as far as a lack of a peg is concerned, there would plainly be the opportunity to explain to another place if the conclusion were reached that no such amendments were to come forward. As far as concerns this place, again, I am not sufficiently experienced in the procedures of the House to indicate whether or not an opportunity could be given for us to report back to this House as to why it was—

Noble Lords

No!

Lord Falconer of Thoroton

My Lords, there is a general noise that suggests that there would not be that opportunity. It all seems to come down to the fact that the House has to rely on the Government's good faith, which the noble Viscount has indicated he quite rightly accepts. I earnestly suggest that that is the right course to take in that respect. We will look at it. But it is up to the noble Viscount whether he accepts that or not. I would strongly suggest that he does.

The noble Lord, Lord Lester, asked whether the European Convention on Human Rights would be breached. That would not depend on this power; it would depend on any order that was subsequently made under it, assuming it remained unamended. At that stage consideration would be given to the question of the relationship between whatever order was produced and the provisions of the European Convention on Human Rights.

Lord Lester of Herne Hill

My Lords, I am very grateful to the noble and learned Lord for that reply. Going back, if I may, to the question raised by the noble Viscount, the problem is that unless one of these amendments is accepted by the House, and fully accepting the Government's good faith in every respect, there may be a problem. Let us suppose, hypothetically, that the Government decided that they were right in the first place and that no amendment should be made in another place, there would then be no mechanism when the Bill came back to this House because another place would not have disagreed with a decision taken by your Lordships' House. That is why, in effect and in the most charming way, the noble and learned Lord is asking the House to accept not only the Government's good faith, but whatever decision they reach, subject to another place. That does not seem to be a satisfactory position to be in.

Lord Falconer of Thoroton

My Lords, after the position has been so clearly explained to me by the noble Viscount, Lord Astor, after the noble Lord, Lord Lester, has explained it, after the growl from the House and the noble Earl, Lord Russell, nodding so enthusiastically that they could only be right, I have accepted and understood finally what the procedural position is. I also accept, on the basis of what everyone has told me, that if we in good faith decide that we will not bring forward any amendments there will be no opportunity in the context of this Bill for the matter to be debated again by this House, though of course the matter could be raised by other means; for example, by an Unstarred Question relating to the issue. There is no growl of dissent to that suggestion!

The noble Lord, Lord Lester, has put his finger on it. One does have to accept the Government's good faith and accept it on the basis that if we do not bring forward an amendment in the context of this Bill there can be no debate. But, again, I would earnestly suggest in relation to this Bill that in the context of a government who are listening, who are genuinely trying to improve the Bill and who have brought forward amendments at the suggestion of Members of the House, the correct course is to rely on the Government, recognising that there will not be another opportunity for debate if your Lordships take that chance.

Earl Russell

My Lords, of course we accept the noble and learned Lord's word unreservedly. But would it be a correct understanding of his word that he has not said he will do something; he has said only that he might do something?

Lord Falconer of Thoroton

My Lords, with respect, that is a most accurate account. I have said that we will look at something. I have made no commitment on behalf of the Government to come back with any amendment. Therefore, it is perfectly possible, on the basis of what I have said, that we will not come back with any amendment. That is a perfectly accurate account of the matter. But surely it must be better, when we are looking at it in good faith, for us to do it on that basis rather than putting the matter to a vote, as that would sour the perfectly friendly and constructive approach that has so far prevailed in relation to this most excellent series of debates. I am surprised that everyone laughs when I say that.

Baroness Nicholson of Winterbourne

My Lords, before the Solicitor-General sits down, perhaps I can take him away from the Primrose Farm and the happy debate on mechanics and back to the hard graft, the coal face, which is what this Bill is all about.

Does the noble and learned Lord accept that in his explanation of why he wishes me to withdraw my amendment there is an inherent contradiction? On the one hand, he said that the Government have not conceded that the clause needs altering and, on the other, he stated that if no other department wishes to use the clause it will be restricted. In other words, the noble and learned Lord has not conceded that the clause needs alteration but will now do a wide-ranging, Star Wars-type search around the globe to see whether by any chance anybody happens to want it. It is rather like a Christmas present that nobody has picked up. Does he accept also that he has not offered any recognition of the police position by even giving a guarantee that he will withdraw from the Bill that part of it that relates to crime?

I feel that the noble and learned Lord's offer is rather like a Trojan Horse. Can he reassure me about that?

Lord Falconer of Thoroton

My Lords, I have said that, after what the noble Baroness described as a Star Wars trawl around other departments, if nobody else wants the clause we will look seriously at an amendment to restrict the scope of subsection (4).

I can take the matter no further. I accept what the noble Baroness said—which is a repetition of what everybody else said—and I am making no promises in relation to what, if any, amendment I may come back with. It would be wrong for the House to amend the Bill simply with a view to making sure that the matter can be debated on another occasion. That is what appears to be in the minds of those who tabled the amendment.

I will not assist my case by repeating it. I shall be deeply sorry if those who have until now been so co-operative and received their reward think it appropriate to put the matter to the vote.

Baroness Nicholson of Winterbourne

My Lords, I am grateful to the Solicitor-General. It is a pleasure to work with him on this important piece of legislation. However, I feel that I need to help him out of his difficulties. Since the Data Protection Registrar stated on 17th March, It remains my view that Clause 28(4) should he deleted"; since the Chief Constable of Police in charge of data protection for the entirety of the police in England and Wales believes that the clause should not include them; and since so far the Inland Revenue has given no good cause to include the clause, other than enforced subject access, on which we could have another debate if we so wished, I feel sure that the Solicitor-General will feel a lot more comfortable if the clause is in the wastepaper basket where we believe it belongs.

Lord Falconer of Thoroton

My Lords, before the noble Baroness sits down, perhaps I can say that she should not divide the House simply to make me feel more comfortable. It will make me feel more uncomfortable.

Baroness Nicholson of Winterbourne

My Lords, sometimes the medicine tastes a little sour but the illness is then cured. I am sure that in the privacy of the Lobby the noble and learned Lord will come to see, not the error of his ways, but the error of the Inland Revenue's tempting efforts to draw him down the road of secondary legislation in a way which is antipathetic to the Government whom he so well represents at the Dispatch Box in your Lordships' House.

I feel that I need to test the opinion of the House to see whether it agrees with myself and the noble Viscount, Lord Astor.

3.54 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 134; Not-Contents, 99.

Division No. 1
CONTENTS
Addington, L.	Dholakia, L.
Ailsa, M.	Dilhorne, V.
Aldington, L.	Dixon-Smith, L.
Anelay of St. Johns, B.	Dowding, L.
Archer of Weston-Super-Mare, L.	Ellenborough, L.
Astor, V.	Elles, B.
Astor of Hever, L.	Elliott of Morpeth, L.
Avebury, L.	Erne, E.
Baker of Dorking, L.	Erroll, E.
Bath, M.	Exmouth, V.
Beaumont of Whitley, L.	Ezra, L.
Beloff, L.	Falkland, V. [Teller.]
Bethell, L.	Forbes, L.
Brain, L.	Gainford, L.
Bridges, L.	Gardner of Parkes, B.
Brigstocke, B.	Geraint, L.
Butterworth, L.	Glenarthur, L.
Cadman, L.	Goodhart, L.
Calverley, L.	Gray of Contin, L.
Carlisle, E.	Grey, E.
Carnarvon, E.	Hampton, L.
Chesham, L.	Hamwee, B.
Clancarty, E.	Harmar-Nicholls, L.
Coleraine, L.	Harmsworth, L.
Coleridge, L.	Hayhoe, L.
Craigavon, V.	Henley, L.
Crook, L.	Hothfield, L.
Cross, V.	Hutchinson of Lullington, L
Dahrendorf, L.	Hylton, L.
De Freyne, L.	Hylton-Foster, B.
Dean of Harptree, L.	Inglewood, L.
Denham, L.	Jacobs, L.

Jenkin of Roding, L.	Oppenheim-Barnes, B.
Jopling, L.	Platt of Writtle, B.
Kinnoull, E.	Rankeillour, L.
Kirkwood, L.	Razzall, L.
Kitchener, E.	Redesdale, L.
Knollys, V.	Rees, L.
Lang of Monkton, L.	Renton of Mount Harry, L.
Lauderdale, E.	Ritchie of Dundee, L.
Layton, L.	Rochester, L.
Lester of Herne Hill, L. [Teller.]	Rodgers of Quarry Bank, L.
Linklater of Butterstone, B.	Romney, E.
Lucas of Chilworth, L.	Russell, E.
Ludford, B.	Russell-Johnston, L.
Mackay of Ardbrecknish, L.	Sainsbury, L.
McNair, L.	St John of Bletso, L.
McNally, L.	Sandford, L.
Maddock, B.	Selkirk of Douglas, L.
Malmesbury, E.	Stair, E.
Mar and Kellie, E.	Stockton, E.
Marlesford, L.	Strange, B.
Marsh, L.	Swinfen, L.
Masham of Ilton, B.	Teviot, L.
Middleton, L.	Thomas of Gwydir, L.
Monro of Langholm, L.	Thomas of Swynnerton, L.
Montgomery of Alamein, V.	Thomas of Walliswood, B.
Morton, E.	Thurso, V.
Mountevans, L.	Tordoff, L.
Moyne, L.	Vivian, L.
Newby, L.	Waterford, M.
Newton of Braintree, L.	Weatherill, L.
Nicholson of Winterbourne, B.	Wharton, B.
Norrie, L.	Wigoder, L.
Northesk, E.	Williams of Crosby, B.
Norton, L.	Winchilsea and Nottingham, E
Ogmore, L.	Young, B.
NOT-CONTENTS
Acton, L.	Grenfell, L.
Ampthill, L.	Hardie, L.
Archer of Sandwell, L.	Hardy of Wath, L.
Ashley of Stoke, L.	Haskel, L.
Barnett, L.	Hayman, B.
Bassam of Brighton, L.	Hilton of Eggardon, B.
Berkeley, L.	Hogg of Cumbernauld, L.
Blackstone, B.	Hollis of Heigham, B.
Blease, L.	Howie of Troon, L.
Blyth, L.	Hoyle, L.
Borrie, L.	Hughes, L.
Bruce of Donington, L.	Hughes of Woodside, L.
Burlison, L.	Hunt of Kings Heath, L.
Callaghan of Cardiff, L.	Irvine of Lairg, L. [Lord Chancellor]
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]	Islwyn, L.
Castle of Blackburn, B.	Janner of Braunstone, L.
Chapple, L.	Jay of Paddington, B.
Cledwyn of Penrhos, L.	Jenkins of Putney, L.
Clinton-Davis, L.	Kennedy of The Shaws, B.
Currie of Marylebone, L.	Kennet, L.
David, B.	Kilbracken, L.
Davies of Oldham, L.	Lockwood, B.
Dean of Thornton-le-Fylde, B.	Lofthouse of Pontefract, L.
Dixon, L.	McIntosh of Haringey, L. [Teller.]
Donoughue, L.
Dormand of Easington, L.	Mason of Barnsley, L.
Elis-Thomas, L.	Merlyn-Rees, L.
Evans of Parkside, L.	Milner of Leeds, L.
Falconer of Thoroton, L.	Mishcon, L.
Farrington of Ribbleton, B.	Molloy, L.
Gainsborough, E.	Monkswell, L.
Gallacher, L	Montague of Oxford, L.
Gilbert, L.	Murray of Epping Forest, L.
Glenamara, L.	Nicol, B.
Gordon of Strathblane, L.	Orme, L.
Graham of Edmonton, L.	Peston, L.
Gregson, L.	Pitkeathley, B.

Prys-Davies, L.	Smith of Gilmorehill, B.
Puttnam, L.	Stallard, L.
Ramsay of Cartvale, B.	Stoddart of Swindon, L.
Randall of St. Budeaux, L.	Stone of Blackheath, L.
Rea, L.	Strabolgi, L.
Rendell of Babergh, B.	Symons of Vernham Dean, B
	Taylor of Blackburn, L.
Richard, L.[Lord Privy Seal.]
	Turner of Camden, B.
Sefton of Garston, L.	Wallace of Coslany, L.
Shepherd, L.	Wedderburn of Charlton, L.
Shore of Stepney, L.	Whitty, L.
Simon, V.	Williams of Elvel, L.
Simon of Highbury, L.	Winston, L.

Resolved in the affirmative, and amendment agreed to accordingly.

4.3 p.m.

[Amendment No. 4 not moved.]

Clause 30 [Regulatory activity]:

[Amendment No. 5 not moved.]

Clause 31 [Journalism, literature and art]:

Baroness Nicholson of Winterbourne moved Amendment No. 6:

Page 19, line 19, at beginning insert ("Subject to subsection (1A) below.").

The noble Baroness said: My Lords, I shall not speak to this amendment for long but I request a small hearing from your Lordships' House. I want to revisit briefly the fact that Clause 31(1)(a) embraces such a wide range of persons that it could be said to undermine to a significant extent the function of the legislation. I seek a definition in this context of the words "journalist", "journalism" and "publication". I suggest that because the word "publication" means "showing a document to another person" and because the word "journalist" has never been defined by statute, it is possible to argue that this clause, which expands the exemption from journalism to include literary and artistic material, will provide a valuable shield to those who gather and hold information for purposes other than those for which the legislation is intended.

I ask first whether the Solicitor-General will look again at the exemption because the wording used is so broad that I believe it will have the capacity in the modern world to bring in other classes of people and undermine the legislation significantly.

Secondly—I raised this point earlier—I want to revisit the concept of accuracy and to remind the noble and learned Lord that no duty of accuracy is imposed by law on print journalists and that the Press Complaints Commission code of practice does not provide an effective remedy. Indeed, it is not even a quasi-judicial procedure. In those circumstances, I can see no logic in exempting the print media from the obligation of accuracy enshrined in the fourth data protection principle. It would readily be possible to amend Clause 31(2)(a) by bracketing the fourth principle with the seventh. The noble and learned Lord knows that I have raised the issue of the necessity for accuracy in the print media previously, but I believe that if an amendment similar to this could be made in the other place it would introduce a new right which could be of considerable value to ordinary citizens.

Finally, the balance between privacy and freedom of expression has been tilted profoundly towards the media, in this case print journalism, as the remainder of the media are already covered by the Broadcasting Act 1996 and by the earlier radio and television legislation. I remind the House that in the United Kingdom there is no right of privacy and that the exemption therefore is not a counterweight against the right of privacy in favour of a proper balance being struck for freedom of information; it is merely a heavyweight against the citizen. Indeed, other European Union nations have a right of privacy. There is a written constitutional right of privacy and therefore the balance that is supposedly struck here is no balance at all. It is a heavy thump against the rights of the individual.

At Second Reading I mentioned that I hoped that, despite the plethora of knowledge now collected about everyone globally in the electronic media, we could create an oasis of privacy for individuals by the mechanism of this Bill. This clause is such a sweeping exemption for the media that it takes away the fragile and existing rights which, slender as they are, will be demolished by this new right which was not contained in the Data Protection Act 1984. I beg to move.

Lord Falconer of Thoroton

My Lords, the insertion of the word "necessary" into the language of Clause 31 is an entirely understandable proposition. As the noble Baroness lucidly explained, the amendment is motivated by a proper concern to achieve maximum fidelity to Article 9 and to the European Convention on Human Rights. However, it is a proposition the logic of which we find to be more apparent than compelling. I shall seek to explain why we do not consider it appropriate to agree to these amendments. I am speaking now to Amendments Nos. 6 to 10 which at the moment are grouped. The noble Baroness has in effect spoken to Amendments Nos. 6 and 8 which are grouped with Amendments Nos. 7, 9 and 10 in the name of the noble Lord, Lord Lester.

4.15 p.m.

Lord Lester of Herne Hill

My Lords, I am grateful to the noble and learned Lord for giving way. It is Amendment No. 6 that has been moved. These amendments have been grouped together. If we are to consider them together perhaps I should speak immediately to Amendments Nos. 7 and 9. I shall not speak to Amendment No. 10 because that raises a different issue about legal certainty. I shall turn to that separately later, if that is for the convenience of the House.

I rise to support Amendment No. 6 and speak at the same time to Amendments Nos. 7 and 9. I should like to take a few moments to deal with this matter because it has not been dealt with previously at any stage of the Bill. I suggest that it is our duty to do our best to ensure that the Bill properly implements binding European law, including the EC directive. If and to the extent there is a failure to give domestic effect to European law that will lead to legal uncertainty and unnecessary litigation in our courts. That may be litigation before both European courts. On a worst case scenario failure to implement the directive properly could give rise to a claim for damages against the United Kingdom with the British taxpayer having to foot the bill.

The task is made more difficult for your Lordships by the tortuous structure and language of the directive and the Government's desire to avoid legislating in a way that arouses hostility from the media. I am concerned that Clause 31 as it stands fails properly to implement binding European legal principles as regards the exemption for journalism, literature and art. Amendments Nos. 7, 9 and 10 seek to ensure that the exemptions for the vital right to free expression of the media and the public satisfy the European principle of legal certainty—that is Amendment No. 10, to which I shall turn later—and can be properly balanced against the right to individual privacy using the European "pressing social need" test of necessity which includes the vital European legal principle of proportionality.

In Grand Committee on 25th February the noble Lord, Lord Williams of Mostyn, rightly referred to, the need to avoid unnecessary infringement of privacy".—[Official Report, 25/2/98; col. CWH 96.] He referred to the well-known Strasbourg case law. Unfortunately, Clause 31 does not embody that test of necessity to which he referred nor to the effect of the Strasbourg case law.

The directive's preamble makes clear that the object of national laws on the processing of personal data such as this Bill is to protect fundamental rights and freedoms, notably the right to privacy recognised in Article 8 of the European Convention on Human Rights. It also states in the preamble that the approximation of national laws must not result in any lessening of the protection that they afford but, on the contrary, must seek to ensure a high level of protection in the Community. The directive's preamble also states that the processing of personal data for the purposes of journalism or literary or artistic expression, in particular in the audio-visual field, should qualify for exceptions—I quote the key words— in so far as this is necessary to reconcile the fundamental rights of individuals with freedom of information and notably the right to receive and impart information, as guaranteed … in Article 10 of the European Convention [on Human Rights]". I emphasise the word "necessary", echoing the test of necessity in Articles 8 and 10 of the European Convention, to define the extent of exceptions that may lawfully be made to the rights to free expression and personal privacy. Perhaps I may be forgiven for taking time on this matter. Article 9 of the directive states that member states shall provide for exceptions or derogations for the processing of personal data carried out solely for journalistic purposes for the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.

Article 9 uses the key tests of objective necessity to justify any exemption of the media from their obligation to respect personal privacy when obtaining, using or publishing personal data. The directive is made within the framework of the European Convention on Human Rights that binds all member states. I repeat that the right to free speech under Article 10 of the convention is subject to exceptions that are sufficiently precise to comply with legal certainty and which are necessary to protect, inter alia, the right to personal privacy guaranteed by Article 8. Similarly, the right to personal privacy guaranteed by Article 8 is subject to exceptions that are sufficiently precise to comply with the principle of legal certainty and which are necessary to protect, among other things, free speech under Article 10.

A balance must be struck and maintained in the end by the courts between the conflicting rights based on the test of necessity and proportionality. I would be surprised if the noble and learned Lord the Solicitor-General disagreed with any of that. If he does I am sure that he will tell us. The case law of the European Court of Human Rights also makes it quite clear that protection under Article 10 of the convention of the role of the media as investigative journalists, purveyors of information and as public watchdogs on matters of public interest is essential to a healthy democratic society. The Strasbourg court has emphasised that people in public life cannot use the right to personal privacy to prevent or inhibit the media from communicating matters of legitimate public interest and concern to the public.

But the European court has also made it clear that the right to free expression is not absolute. It must be balanced using the test of necessity and proportionality against the right to personal privacy. For its part, in Luxembourg the European Court of Justice has made it clear, too, that when interpreting European Community law, including directives, regard must be had to the principles in the European Convention on Human Rights governing free speech and personal privacy. My concern is that Clause 31 as it stands unamended authorises interference with the right to personal privacy by the media in breach of the directive and Article 8 of the European Convention on Human Rights.

The media exemption in Clause 31(1) relates to all of the data protection principles apart from the seventh principle; that is, the right of access to personal data under Clause 7; the right to prevent processing likely to cause damage or distress under Clause 9; the right to rectification or destruction of inaccurate data under Clause 12; and the rights in relation to automated decision-taking under Clause 13. The media exemption in Clause 31(1) also applies to sensitive personal data, for example about an individual's physical or mental health or his or her sexual life.

In view of the sweepingly broad scope of the media exemption it is very important to scrutinise with particular care the limits placed on the exemption in Clause 31 and the safeguards against the misuse of personal data. In my opinion, the safeguards contained in Clause 31 fail to satisfy the vital European principles of proportionality and legal certainty. Perhaps I may go through them in turn. Clause 31(1)(a) provides that to be within the media exception the processing must be undertaken with a view to the publication by any person of any journalistic, literary or artistic material. That merely establishes that the data processing must be done for journalistic, etc. purposes and not for a collateral purpose.

Clause 31(1)(b) provides that the data controller must reasonably believe that, having regard in particular to the general importance of the public interest in freedom of expression, publication would be in the public interest. Of course, the data controller is not an independent person but a person who alone, jointly or in common with other persons in the media organisation—say, the Independent. Sunday Times, Daily Telegraph or Daily Mail—determines the purposes for which and the manner in which personal data are obtained, stored and published. All that Clause 31(1)(b) requires is that the data controller should have a reasonable belief that publication of the personal data would be in the public interest having regard in particular to the special importance of the public interest in freedom of expression.

Clause 31(1)(b) does not require the data controller to have a reasonable belief that publication would be necessary in the public interest to protect the rights of the media and those to whom they publish to freedom of expression, but merely that he reasonably believes that publication would be in the public interest. The data controller does not have to believe that the harm done to the data subject's right to personal privacy, whether because of the unfair and unlawful way in which the data had been processed, or because of the inaccuracy or outdated nature of the data, or because of the damage or distress caused to the individual, outweighs and is disproportionate to the public interest in free expression. Still less does the data controller have to show that his belief is objectively justified in accordance with the well-known principles of the European convention and Community law.

I turn then to the third limb, which is Clause 31(1)(c). That requires the data controller to have a reasonable belief that in all the circumstances compliance with that provision—that is, with any of the provisions protecting personal privacy covered by the exemption—is incompatible with the special purposes; that is, incompatible with the purposes of journalism. Once again, there is no requirement that the data controller's belief should be that it is necessary and proportionate to invade the individual's right to privacy in the interests of the conflicting right to free expression.

Clause 31(3) provides that, in considering whether the data controller's belief that publication would be in the public interest was or is a reasonable belief, regard may he had—not "must"—to his compliance with any code of practice. As it stands, that is no real safeguard but a thing written in water. There is no requirement that there should be a code of practice. Even if there is a code, there is no requirement that the code should include the test of necessity to justify the interference with the right to personal privacy. The Press Complaints Commission's current code does not include a test of necessity. By contrast, the Broadcasting Standards Commission's code is stronger in requiring a privacy infringement to be justified by an overriding public interest in disclosure.

The codes are not to be legally binding under the Bill. Nor is there any obligation for the courts to have regard to the codes in deciding whether the data controller's belief is a reasonable belief. I shall return to Clause 31(3) under Amendment No. 10. The present amendments to Clause 31(1)(b) are most modest. The amendment leaves intact the concept that it is for the data controller to form a reasonable belief, but it requires the data controller to have a reasonable belief, not just that the publication of personal data is in the public interest, especially of free expression, but that it is necessary in the public interest; in other words, the amendment requires the data controller to have a reasonable belief that the obtaining, storing or publishing of personal data is necessary in the interests of free expression and does not involve a disproportionate interference in the right to personal privacy.

In my view that is the minimum—I emphasise "minimum"—needed if Clause 31 is properly to implement the directive and properly to comply with Article 8 of the convention. It is less satisfactory in some respects than my noble friend's amendment, but it is better than the illusory safeguards contained in Clause 31 as it stands. It probably does not go far enough, because, unlike my noble friend's amendment, it does not import the test of objective necessity required by the convention.

In a case in which I had the privilege of acting for the Sunday Times many years ago, the European Court made it clear in the thalidomide judgment that the adjective "necessary" does not have the flexibility of words such as "reasonable". If the Government will not accept my noble friend's amendment, I hope that they will accept my modest amendment on the basis that half a loaf is better than no bread.

Curiously enough—this is a matter that I am sure will concern the media—the Government's indication of the amendments they propose to introduce to the Human Rights Bill in another place in the interests of free speech and of the press, which are modelled on this Clause 31, are likely to authorise unnecessary prior restraints on free speech for the very same reason that Clause 31 is likely unduly to authorise unnecessary interference with personal privacy. In each case, the vice is the same—a failure to introduce the principle of necessity and proportionality as the touchstone for determining whether interferences with the fundamental human rights are justifiable.

The print media and the chairman of the Press Complaints Commission, the noble Lord, Lord Wakeham, are in my view profoundly mistaken, hilariously profoundly mistaken, ironically profoundly mistaken, in welcoming the Government's declared intention to amend the Human Rights Bill in that way. An amendment modelled on this Clause 31 will make it easier to obtain privacy injunctions against the media than is permissible under Article 10 of the convention. The press is being hoist with its own petard. It would have been much wiser to have heeded the wisdom of the Data Protection Registrar, Elizabeth France, and to have accepted the well-modulated tests in Article 8 and Article 10 of the convention as the basis for Clause 31, while leaving the Human Rights Bill well alone.

I apologise for having taken so long to explain the matter, but, if I am right, Parliament is being asked to authorise legislation which does not do the job that it was designed to do, which is to implement the directive and convention law properly.

Lord Falconer of Thoroton

My Lords, at the heart of this debate is whether we have complied with our obligation under the terms of the directive. Article 9 of the data protection directive provides: Member States shall provide for exemptions or derogations from the provisions of the relevant Chapter for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression". The amendment moved by the noble Baroness merely says, in effect, "chuck that into the Bill without amendment, and leave everybody else to sort it out". The amendment tabled by the noble Lord, Lord Lester of Herne Hill, says, in effect, that in determining whether the balance is in favour of freedom of expression, consider whether it is reasonably necessary in the public interest to publish. He suggests that the way we deal with the problem is to raise the concept of publication that is "necessary" in the public interest. Those are the two propositions that we have to address this evening.

I should say at the outset that the Government are unreservedly committed to full and proper implementation of Article 9, and I believe that we have achieved that. As has been pointed out this afternoon, this is a provision of pivotal importance. It is the point of confluence of two fundamental rights which naturally proceed in different directions—the right to privacy and the right to freedom of expression. As my noble friend Lord Williams of Mostyn said in Grand Committee, the essential thrust of the directive, and the Bill, is in the direction of the protection of personal information privacy. But the extent of that tendency is inherently limited by the requirements of freedom of expression. Article 9 expressly allows member states to acknowledge those limitations by providing exemptions in favour of the special purposes, but only, as has been clearly explained this afternoon, if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.

Article 9 does not provide a simple answer to the problem of reconciliation. It does not attempt to. There is no reason to believe that there is a single right answer to the problem of reconciliation. It is much too complex and multi-faceted an issue for that. By that I mean, if we assume that every state is introducing protection legislation, it is inconceivable that the Community has it in mind that every state will pitch the reconciliation at the same place.

Member states are afforded, as one would expect, a margin of latitude by Article 9, as indeed they are under the convention itself, to come to their own judgment as to what is necessary to reconcile those two fundamental rights and to give proper expression to them in national legislation. This is plainly not a case where a copy-out solution can be made to work. By "copy-out" I mean to put into the terms of the Bill the wording of Article 9, which is the intention of the noble Baroness's amendment. The data protection regime is an extremely detailed network of private rights and public regulation. We are plainly called upon to give a satisfactory detailed, clear and faithful expression to the policy set out in Article 9 as the only realistic means of incorporating the reconciliation it speaks of in our Bill.

We have not ducked the issue of coming to a view on what and when exemptions are necessary to reconcile information privacy with freedom of expression. We cannot duck the issue. We have identified the provisions of the Bill from which we think exemption will at least potentially be necessary, about which there appeared to be no debate. We have identified three elements, all of which are necessary before any exemption may be relied on. In other words, we have decided to tell the citizen what elements must be made out before the balance is tipped in favour of freedom of expression. We have not simply used the word "necessity", which would provide inadequate guidance for the individual citizen in determining where the balance is to be struck.

The three conditions which the noble Lord set out in his speech are our interpretation of what is necessary to reconcile privacy and freedom of expression. The exemptions are no less and no more than what is necessary to achieve that reconciliation. The necessary conditions which must be satisfied are mandatory. In other words, all three conditions must be satisfied before one achieves reconciliation or obtains exemption. We are saying that one achieves reconciliation if one is engaged in journalistic, literary or artistic activity, which is the open door in the directive. The Bill states that: the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and…reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes". Therefore, the data controller must reasonably believe that it is in the public interest to publish, having regard to the need for freedom of expression, and reasonably believe that compliance with the provisions of the Act is incompatible with the special purposes—journalistic, literary or artistic.

The noble Lord, Lord Lester, suggested that we are obliged to require as a prerequisite of reliance on the exemptions that the data controller reasonably believes that publication would be "necessary" in the public interest. For the reasons I have explained, that is not correct. In our view, the fact that the three requirements are mandatory is enough to indicate where the balance is to be struck.

As to whether the amendment would be an improvement, which is the second limb of the noble Lord's argument, we have great difficulty with the concept of "necessary" publication. When is the publication of an individual story "necessary" in the public interest? That is the question posed by his amendment. It is difficult to conceive of a "necessary" publication in isolation from the more general requirements of freedom of expression. The Bill explicitly directs particular attention in this context to the special importance of the public interest in freedom of expression. This gives the weighting which we believe is required by the reconciliation of the rights to privacy and freedom of expression by suggesting that there is a general sense in which publication per se is an exercise of freedom of speech in which there is a general public interest.

The public interest in privacy is signalled loud and clear throughout the Bill, and some restoration of the balance in the present context is, we believe, necessary. So if a data controller reasonably believes that publication would be in the public interest, having regard to the special importance of the public interest in freedom of expression, we believe that to be a proper and sufficient expression of one of the conditions for reliance on an exemption.

We do not believe it appropriate to introduce the concept of "necessary" publication in individual cases. There is a sense in which an individual publication is hardly ever necessary in the public interest. There is a sense in which, as a particular example of a general rule about freedom of expression, it will almost always be necessary in the public interest; at any rate, if the publication itself has that quality. We do not see how this could work satisfactorily and we do not believe that we are required by our international obligations to include this idea.

With the greatest of respect to the noble Lord, we reject the idea that it is required by Article 9 because we believe that by imposing the three mandatory conditions we have struck the balance to which we are entitled under Article 9. We further believe that we would not improve the Bill by introducing the concept of "necessary" publication in the public interest because—and again I say this with the greatest respect—it is difficult to apply and may mean everything or nothing. We respectfully submit that it is not a helpful way of amending the Bill.

We believe that the amendment tabled by the noble Baroness provides the system with no assistance whatever in seeking to reconcile the balance in the context of a Bill which is determined to lay down detailed provisions as to how data protection is to operate in this country. Therefore, we do not regard her amendment as either appropriate, necessary or helpful and I invite the noble Baroness and the noble Lord to withdraw their amendments.

Viscount Astor

My Lords, before the Minister sits down, perhaps I may make two brief points. We on this side of the House entirely accept his argument and would not support the amendments. Indeed, perhaps they would have been better debated in Committee because the issue is complicated. I believe that Amendment No. 7 in particular does not work at all.

Lord Lester of Herne Hill

My Lords, I am grateful to the Minister for his explanations. He used the phrase "with great respect". It is an expression which lawyers use to each other when they are at their most adversarial. I have the greatest respect for the noble and learned Lord the Solicitor-General—

Lord Hoyle

My Lords, I thank the noble Lord for giving way. As this is Third Reading, there is only the noble Baroness, Lady Nicholson, to reply.

Lord Lester of Herne Hill

My Lords, I thought that we were debating all three amendments together. I must necessarily move my amendment and deal with it separately, if that is the pleasure of the House. I had thought that it was more convenient to deal with the matter in this way, both of us indicating whether we wished to move the amendments. If that is for the convenience of the House, I can deal with it briefly.

Lord Hoyle

My Lords, will the noble Lord move his amendment later?

Lord Bridges

My Lords, perhaps I may make a brief comment on the debate so far—

Lord Hoyle

My Lords, I am afraid that it is for the noble Baroness, Lady Nicholson, to reply.

Baroness Nicholson of Winterbourne

My Lords, I am grateful to the noble and learned Lord the Solicitor-General for his comments on my amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill moved Amendment No. 7:

Page 19, line 25, after ("be") insert ("necessary").

The noble Lord said: My Lords, I have spoken to this amendment at some length. Perhaps I may be economical and deal simply with the points that have been raised. First, the principle of proportionality is a general principle of Community law. The test of necessity must be read in context, and under the convention and the directive it is necessary for the courts to weigh competing public interests and rights using the test of necessity. The defect in Clause 31 as it stands is that it does not provide the courts with the proportionality criterion, but leaves the whole matter to the reasonable belief of a member of the media organisation, the data controller. Therefore, the Bill as it stands at present does not provide the necessary legal standard which is required both by European Community and European Convention law.

If we leave the Bill in that way, the misfortune is that it will be litigated upon. The first case in which a newspaper is alleged to have intruded upon personal privacy in data processing—where the data controller says that he has a reasonable belief and where an attempt is made to challenge that belief—will be based upon the proposition that this Bill does not implement properly the directive or the European Convention on Human Rights.

When the Human Rights Act comes into force, the courts will be obliged to construe the Data Protection Act, if they possibly can, so that it is compatible with Articles 8 and 10. It is not good enough for us to leave this Bill to be made sense of, if I can express the matter in that way, under the Convention and the directive by a process of judicial interpretation if we are able to use language in the Bill which achieves that result.

At present, the media are under the totally false impression that having secured Clause 31, which is a virtually open-ended exemption, that is where the matter will end. In that, they are completely mistaken because if I am right in my opinion about the European law, it will be entirely open to a data subject to rely upon Article 8 of the Convention and the principle of necessity and proportionality, of course having regard to the particular context. That context is the importance of freedom- of speech. But the importance of freedom of speech is not an absolute concept.

We shall say au revoir to this Bill; it will go to another place; and if the Government do not think again and I am right, the only beneficiaries will be the members of the legal profession. They will find themselves involved in complicated litigation because the Government have not wished to write on the face of the Bill that which is required by European law.

I am concerned that our statutes should be enacted properly in accordance with European law. In the light of that, and not, if possible, have to be interpreted by the courts to put them right under European law, that I very much hope that even if the noble and learned Lord the Solicitor-General is unwilling to accept my amendment, he will be sufficiently open-minded to say that he will reconsider the point when the Bill travels to another place to see whether there is not some way of writing into the Bill the European test of necessity and proportionality instead of leaving it to the personal but reasonable belief of a member of the media organisation, with all the litigation which will follow as a result. I beg to move.

4.45 p.m.

Lord Falconer of Thoroton

My Lords, I have obviously heard and will consider with an open mind what the noble Lord has said. However, the Government's present view is that Clause 31 does effectively comply with the obligation under Article 9 and that it is both in compliance with the law and the best way of dealing with the matter.

Lord Lester of Herne Hill

My Lords, before the noble and learned Lord sits down, does he accept that the courts will have to apply the proportionality principle in interpreting Clause 31 and Article 9 of the directive and the European Convention on Human Rights?

Lord Falconer of Thoroton

My Lords, if the courts apply Clause 31 in accordance with its terms, they will be acting in accordance with the provisions of Article 9 which, in its turn, involves compliance with the Convention.

Lord Lester of Herne Hill

My Lords, I am most grateful. I am reminded of the story of the father with the naughty daughter who gets lost in the middle of the city. She keeps saying, "Daddy, daddy, where are you?" "Shut up", he explained. It seems to me that in the nicest possible way, the noble and learned Lord the Solicitor-General has not really answered my point. In spite of my criticisms, he simply said that the Government are satisfied that somehow there is compliance with the tests of proportionality and necessity which, as I say, is not the same as reasonableness.

This is not a matter to be tested by political muscle or numbers. I very much hope that it will be reconsidered. If it is not reconsidered in Parliament, it will surely come to be considered in our own domestic courts and in the European courts. That is my prediction. For the reasons I have given, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 8 and 9 not moved.]

Lord Lester of Herne Hill moved Amendment No. 10:

Page 19, line 39, leave out ("may") and insert ("must").

The noble Lord said: My Lords, this amendment deals with a wholly separate and important matter. Its purpose is to ensure that the very broad media exemption in Clause 31 satisfies another European legal principle; that is, the principle of legal certainty. Both under Community law and Convention law, the principle of legal certainty requires that the effect of legislation must be clear and predictable for those who are subject to it.

In its landmark judgment in the Sunday Times thalidomide case, the Strasbourg court decided that to satisfy the requirements of legal certainty, the law must be adequately accessible. That means that the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. The legal rule must be formulated with sufficient precision to enable the citizen to regulate his conduct. He must be able to foresee, to a degree that is reasonable in all the circumstances, the consequences which a given action may entail. Those consequences do not have to be foreseeable with absolute certainty, but they must be foreseeable with reasonable certainty.

As the Bill is currently drafted, determining whether the media exemptions in Clause 31 do or do not apply depends largely on whether the data controller's belief is a reasonable belief that the intrusion of a data subject's personal privacy is in the public interest. Clause 31 is without standards. It does not provide reasonably foreseeable criteria as to when the media are or are not immune from liability. Therefore, on its face, it fails to satisfy the requirements of legal certainty because neither the data subject nor the media can reasonably foresee in what circumstances a belief will or will not be regarded as reasonable. In particular, as I have pointed out already in relation to the earlier amendments, Clause 31 is flawed because it leaves out the proportionality principle.

Clause 31(3) provides that in considering whether a data controller's belief that publication will be in the public interest was or is reasonable, regard may be had to his compliance with any relevant code of practice designated by order of the Secretary of State.

If the code of practice is reasonably precise, and if it contains the proportionality criteria that the interference with personal privacy must be necessary, I accept that that will satisfy the European principle of legal certainty provided that the individual and the media know that the criteria will apply.

But as Clause 31(3) stands at present, it does not require regard to be had to the data controller's compliance or failure to comply with the code of practice. In my view, that combination of a failure to prescribe the criteria in the code on the face of the Bill and the failure to require regard to be had to the criteria prescribed in the code of practice, together with the absence of any requirement that the code of practice should contain the test of necessity, create a serious risk that the statutory scheme will fail to satisfy the principle of legal certainty. If that happens, it violates Community law as well as Convention law.

Neither the data subject nor the media, including data controllers, will be able reasonably to foresee with sufficient certainty whether the obtaining, storing or publication of personal data will or will not breach the right to personal privacy embodied in the Bill because of the vagueness of the statutory criteria and the absence of any obligation to comply with the code. That is why I seek to make a one-word change, and to substitute for the word "may" the word "must" in Clause 31(3) so as to require regard to be had to the code in deciding upon the reasonableness of the belief. That is a most modest change and one which would do no violence to the structure of the clause or of the Bill. Indeed, it would go some way to ensure at least the certainty that what is in the code will be had regard to in deciding upon the reasonableness of the belief of the data controller. I very much hope that the noble and learned Lord the Solicitor-General will, in a fit of characteristic generosity, feel able to accept my modest amendment. I beg to move.

Lord Falconer of Thoroton

My Lords, the noble Lord suggests that instead of the courts having the option to have regard to the code, they should in every case be obliged to do so. We believe that the approach now followed in the clause as presently drafted is the better one. It gives the courts flexibility. As my noble friend Lord Williams of Mostyn said in Committee, in response to a similar amendment—

Lord Simon of Glaisdale

My Lords, I thank the Minister for giving way. Surely the term "to have regard to" gives quite sufficient flexibility.

Lord Falconer of Thoroton

No, my Lords. If we say that the courts "must" have regard to it, then, in every case, they would be bound to look at the code and consider whether they should weigh it in the balance as regards the facts in the particular exercise of discretion.

In Committee, in response to a similar amendment tabled in the name of the noble Viscount, Lord Astor, my noble friend Lord Williams of Mostyn said that compliance with codes will not always be relevant. It is only one factor among others that may need to be taken into consideration. Much will depend upon the circumstances. The position, for example, may be crystal clear without the need to consider compliance with a code. It is the Government's view that leaving the matter to the courts to decide is the right approach, and that the clause as it stands is satisfactory. Therefore, I invite the noble Lord to withdraw his amendment.

Lord Lester of Herne Hill

My Lords, I am sorry to say that I do not understand the Minister's reply to the points that I have raised as regards meeting the problem. As the noble and learned Lord, Lord Simon of Glaisdale, indicated in his intervention, there is nothing in my amendment to require the courts to do more than have regard to the code. That is a perfectly normal provision which is found in all Bills that have codes of practice. Indeed, it is normal to use the word "shall" or the word "may".

Where the code is relevant—and it is bound to be relevant if there is code of practice in the area—I do not understand why the citizen, the data controller and the media should not he in a position to be sure that the code will be had regard to. That would at least give some reassurance to citizens as to the standards which are to be applied. If the matter is left entirely discretionary, coupled with the vagueness of the primary legislation and the fact that we are wholly in the dark as to what the codes will contain, or whether in fact codes will be prescribed, we will still have the vice of legal uncertainty.

I have made my points, although they do not seem so far to have impressed the noble and learned Lord. Again, all I can say is that it will make a lot more work for lawyers, but I do not think that it will make good law. I very much hope that the matter will be further considered, together with what I said about press injunctions on the Human Rights Bill, which are the other side of the coin. Having got nowhere this afternoon on this Third Reading stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 [Information notices]:

Lord Falconer of Thoroton moved Amendment No. 11:

Page 24, leave out lines 11 to 13 and insert— ("(b) reasonably requires any information for the purpose of determining whether the data controller has complied or is complying with the data protection principles,").

The noble and learned Lord said: My Lords, in moving the above amendment, I shall speak also to Amendments Nos. 12, 13 and 16. In Grand Committee the noble Lord, Lord Norton, expressed concern about the usefulness of the commissioner's power to issue information notices in what was then Clause 41. The noble Lord was concerned about two things: the right of appeal, which the notice attracted; and the fact that the commissioner had no power to seek a warrant while an appeal was before the tribunal. My noble friend Lord Williams of Mostyn said that we would look at the noble Lord's concerns.

On Report, the Government brought forward an amendment to deal with the concern of the noble Lord, Lord Norton, about warrants. I made clear then that that amendment was an earnest of the Government's commitment to try to find other ways of making the information notice a more useful instrument for the commissioner, without making it unduly restrictive of data controllers' freedoms.

The present amendments are an attempt to do just that. They complement the government amendment made on Report, and complete the package of improvements to what is now Clause 42. Their effect is to broaden the second of the grounds on which the commissioner may issue an information notice. The amendments do not alter the first ground, which applies where the commissioner has received a request for her to make an assessment. The change is to the second ground. At present this allows the commissioner to issue an information notice where she has reasonable grounds for suspecting a breach of the data protection principles.

The Data Protection Registrar—who will, of course, in due time become the commissioner and need to exercise this power—strongly believes that those grounds are much too restrictive. She thinks that they offer the commissioner very limited opportunities to seek the information which she needs to carry out her functions under the Bill effectively. The registrar believes that the commissioner will need a wider information notice power if she is to be able to carry out those functions properly.

The Government have been rightly cautious in approaching the matter. The case for wide regulatory powers needs to be made. The powers must be consistent with and proportionate to the activity being regulated. The regulation of data protection is unlike most other types of regulation which, by and large, affect limited sectors. Data protection knows no sectoral boundaries: it applies to all organisations, in whatever sector, which use personal data. The case for rigorous scrutiny of the powers available to the commissioner is therefore particularly strong.

The Government have given very careful consideration to this matter in the light of the registrar's concerns. We believe that there is a case for giving the commissioner the wider powers to seek information which the registrar has identified. That is the purpose of the amendments. They allow the commissioner to issue an information notice where she reasonably requires information for the purpose of determining compliance or non-compliance by a data controller with the data protection principles.

The Government have not thought it right to go beyond this and change the grounds of appeal as was suggested by the noble Lord, Lord Norton, in Grand Committee. There is a need for checks and balances. With a wider power to compel information, the case for an appeal right becomes stronger rather than diminishing. We believe it necessary to retain the appeal arrangements as one of the necessary checks and balances.

Both in Grand Committee and on Report, the noble Viscount, Lord Astor, sought to build a further balancing mechanism into the clause. He wanted to amend the clause to require the commissioner to seek the information she needs by informal means before being able to issue an information notice. We debated those amendments fully on the earlier occasions, and I do not want to rehearse further the arguments against the approach that he favoured.

However, I have had the benefit of some helpful comments from the Data Protection Registrar. She tells me that it has always been the practice of the registrar to seek good relations with data users and to try to achieve the resolution of problems by agreement. As data protection commissioner, she would expect to adopt the same approach to her use of the new information notice. She believes that this notice should be a valuable extra means of implementing data protection; but she expects that, in the typical case, there will, first, be an informal approach to seek co-operation and obtain information. I hope that that statement of the registrar's position reassures the noble Viscount and other Members of the House.

Clause 42 raises important issues. We have discussed them at some length both in this debate and on earlier occasions. The Government believe that the amendments they now propose, which have been drawn up in the light of that earlier debate, represent a necessary and important improvement to the Bill. I commend them to the House.

Before I sit down, I believe I said that I would also speak to Amendment No. 16. However, that amendment is tabled in the name of the noble Baroness, Lady Nicholson of Winterbourne, and has been grouped with the government amendments. I do not know whether the noble Baroness wishes to move her amendment in the light of what I have just said. I shall wait to see what she decides. In the meantime, I beg to move.

5 p.m.

Baroness Nicholson of Winterbourne

My Lords, I would not wish the Solicitor-General to believe that I had an obsession with Clause 28 and therefore I shall not move my amendment when we reach it.

Viscount Astor

My Lords, we are grateful to the noble and learned Lord for introducing government amendments that go a long way to address the concerns that we raised at earlier stages of the Bill.

Lord Norton

My Lords, I thank the Minister for his kind words. This amendment goes a long way to redress the balance that the commissioner will need in order to enforce the regulations and codes of practice. The amendment completes the package. To replace "reasonable grounds" with "reasonably requires" goes a long way to redress that balance. I welcome the amendment.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 12 and 13:

Page 24, line 17, leave out ("the suspected contravention") and insert ("to compliance with the principles").

Page 24, line 24, leave out from ("Commissioner") to end of line 26 and insert ("regards the specified information as relevant for the purpose of determining whether the data controller has complied, or is complying, with the data protection principles and his reasons for regarding it as relevant for that purpose.").

On Question, amendments agreed to.

Clause 50 [General duties of Commissioner]:

Lord Falconer of Thoroton moved Amendment No. 14:

Page 29, line 6, leave out from beginning to ("after") in line 8 and insert ("Where—

1. (a) the Secretary of State so directs by order, or
2. (b) the Commissioner considers it appropriate to do so, the Commissioner shall,").

The noble and learned Lord said: My Lords, in moving Amendment No. 14, I shall speak also to Amendments Nos. 15, 17 to 20, 24, 25 and 32 which are grouped with it. Amendments Nos. 14 and 15 improve the drafting of Clause 50(3)(a). At present there is a slight ambiguity in the wording. It is not clear whether "he" in line 8 is the Secretary of State or the data protection commissioner. The amendments make clear that it is the latter. I await the comments of the noble Earl, Lord Northesk, on Amendment No. 17. I beg to move.

The Earl of Northesk

My Lords, Amendment No. 17 in my name, which is grouped with the amendment we are discussing, is simply a matter of good housekeeping. I move it on behalf of my noble friend Lord Skelmersdale, who apologises that, regrettably, he is unable to be present today. He pointed out on Report that Clause 65 contains a table cross-referencing the various expressions used in the Bill. With the acceptance of the Government's amendments at Report stage, the expression "data subject notice" was added to the face of the Bill without any corresponding reference being added to Clause 65. In the interests of tidiness and in a spirit of helpfulness I suggest it would be sensible that this is done. I have it in mind that the noble Lord, Lord Williams of Mostyn, indicated at least some sympathy with this proposition at Report stage. I hope that the Solicitor-General may be able to assist me.

Lord Falconer of Thoroton

No, my Lords, I am afraid not. I understand why the noble Earl, Lord Northesk, has proposed this amendment on behalf of his noble friend Lord Skelmersdale, who, unfortunately, is unable to be here today. The noble Lord, Lord Skelmersdale, mentioned this point on Report in connection with the amendments to Clauses 9, 10 and 13 which the Government brought forward on that occasion. My noble friend Lord Williams of Mostyn promised to write to the noble Lord, Lord Skelmersdale, about the matter, and he has done so.

When the same expression is used on several occasions to mean the same thing, it does, indeed, generally make sense to define it in one place and refer subsequently to that definition. This is the approach which is taken in this Bill. Clause 65 is a convenient index of those "defined expressions". But the term "data subject notice" is not a "defined expression". It is not used on several occasions to mean the same thing. As I have said, the term is used in three places in the Bill: in Clauses 9, 10 and 13. Each of those clauses confers a different right on the data subject; and each of them provides for the data subject to send a notice in writing to the data controller in the exercise of that right. These "data subject notices" do not mean the same thing, interchangeably, in each case. They are about different rights. They must contain different particulars. They are not, therefore, defined in the same way each time. There is no cross-reference outside the terms of each individual clause. So "data subject notice" is not a suitable candidate for the Clause 65 definition.

The use of the "data subject notice" in the three clauses in which it appears is no more than a narrative convenience in drafting terms. It saves a few cumbersome back-references. But it is actually quite important to distinguish between this and a "defined expression" with a particular general meaning. "Defined expressions" are useful devices but can be potential traps for the unwary. A check with Clause 65 will tell you whether any expression has a special meaning which may not be apparent from its immediate context. Clause 65 will tell you where to find that special meaning. It is important not to confuse that key function by including terms which do not properly fall within that category. I invite the noble Earl to withdraw his amendment in due course.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 15:

Page 29, line 12, at end insert— ("(3A) The Commissioner shall also—").

On Question, amendment agreed to.

[Amendment No. 16 not moved.]

Clause 65 [Index of defined expressions]:

[Amendment No. 17 not moved.]

Schedule 1 [The data protection principles]:

Lord Falconer of Thoroton moved Amendment No. 18:

Page 43, line 26, at end insert ("or by failing to give a notice under subsection (3) of that section").

The noble and learned Lord said: My Lords, in moving Amendment No. 18 I wish to speak also to Amendments Nos. 19 and 20. These amendments make technical provision consequential upon changes which were made to Clauses 9, 10 and 13 at Report stage. Changes to Clauses 9, 10 and 13 introduced a requirement for data controllers to respond in writing within 21 days to a data subject's notice of objection to processing under each of the clauses.

As the Bill stands, there is some provision for individuals to bring court action in respect of a data controller's failure to give the notices in question. But the changes were not carried through to the commissioner's enforcement powers. The present amendments remedy that. They make a failure by a data controller in each case to give the required notice a breach of the sixth data protection principle and therefore something in respect of which an enforcement notice can be issued by the commissioner.

I shall speak also to Amendment No. 24 which is grouped with the amendments I am discussing and which I did not discuss earlier. This amendment puts right an error. It is Section 159, and not Section 158, of the Consumer Credit Act 1974 which should be referred to in the provisions which relate to the commissioner's finances.

I wish to speak also to Amendments Nos. 25 to 32 in this group. This group of amendments is intended to clarify elements of the transitional provisions which were added to the Bill on Report. They are technically very complex and I will not weary your Lordships with a detailed explanation. In essence they are tidying up a few loose ends in the relationship between registration under the Data Protection Act 1984 and notification under the Bill. They also clarify the provision for transitional relief from the preliminary assessment requirements of Clause 21. They make no changes to the policy which my noble friend Lord Williams of Mostyn explained to the House on Report. Their purpose is to give better effect to that policy. I commend them to the House. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 19 and 20:

Page 43, line 28, at end insert ("by failing to give a notice under subsection (2) of that section, or").

Page 43, line 29, at end insert ("by failing to comply with a notice given under subsection (1) or (2)(b) of that section or by failing to give a notification under subsection (2)(a) of that section or a notice under subsection (3) of that section").

On Question, amendments agreed to.

Viscount Astor moved Amendment No. 21:

Page 44, line 18, leave out ("in force") and insert ("enforceable").

The noble Viscount said: My Lords, throughout the passage of this Bill multinational companies, whether British or American, have expressed concern about the regulation of data transfers between the United Kingdom and the United States under this Bill. In accordance with the EC directive, the Bill requires that there be an adequate level of protection when personal data are transferred to countries outside the European Community. Although the United States regulates data privacy under a number of state and federal laws, there is no general federal data protection law comparable to those in the European Union.

In these circumstances the required level of protection will often depend, at least in part, on particular arrangements between data controllers in this country and the companies to which they transfer data, for example in the United States. Such arrangements may include provisions under which the US transferee is required to comply with codes of conduct or other statements of data protection rules consistent with those imposed on data controllers in this country.

This amendment provides that such arrangements will be given due consideration in determining whether an adequate level of protection is provided. The initial determination whether the level of protection is adequate will be made by the UK data controller, subject to scrutiny by the data protection commissioner.

I moved similar amendments at both Committee and Report stage. We have had an ongoing debate with the Government. The noble and learned Lord has listened carefully to our concerns and has helpfully allowed me to draft a new and more acceptable amendment in consultation with his officials at the Home Office. I am extremely grateful to him and to them for their help. I hope that this amendment will therefore find favour with the Government. I beg to move.

Lord Falconer of Thoroton

My Lords, these amendments relate to the transfer of personal data to countries outside the European Economic Area.

The noble Viscount, Lord Astor, has explained the purpose of the amendments. Both in Committee and on Report he brought forward amendments to this same broad effect. We said then that the Bill as drafted fully allowed for a finding of "adequacy" in the circumstances about which the noble Viscount was concerned. But we fully recognised the importance which the noble Viscount attached to the issue underlying his amendments. On Report my noble friend Lord Williams of Mostyn therefore said that the Government would look carefully at the points raised by the noble Viscount to see whether any useful clarification could be made.

I should perhaps remind your Lordships that the proposition is that contracts in appropriate cases should be capable of contributing to a finding of adequacy for the purposes of Schedule I. As my noble friend said at Report stage, we are happy to accept that proposition. We believe that the Bill as drafted already provides for that. But we have reflected on the noble Viscount's arguments as to the merits of further clarification. We have concluded that they are persuasive. I believe that the amendments he proposes would improve the Bill in the respects with which he is concerned and I am pleased to be able to tell the noble Viscount that the Government can accept them.

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 22:

Page 44, line 19, after ("territory") insert ("(whether generally or by arrangement in particular cases)").

On Question, amendment agreed to.

Schedule 2 [Conditions relevant for purposes of the first principle: processing of any personal data]:

Lord Norton moved Amendment No. 23:

Page 44, line 41, at end insert ("and has not withdrawn that consent").

The noble Lord said: My Lords, the amendment is a simple expansion on a right that has been implied in previous discussions. It relates to Clause 9, the right to prevent processing likely to cause damage or distress. If the data subject has given his consent, it has always been made clear that consent could be withdrawn, although it is by no means certain. My amendment is simple. It allows the data subject to withdraw that consent, and in that way have a right to prevent processing likely to cause damage or distress. I beg to move.

Lord Falconer of Thoroton

My Lords, this amendment arises, as the noble Lord said, out of our recent exchanges about the extent of the right to object to processing in Clause 9. But it raises questions about the giving of consent by data subjects, and the subsequent withdrawal of consent, which go wider than that.

When we looked at Clause 9 at Report stage, I was happy to confirm to the noble Lord the general rule that consent given under the first paragraph of Schedule 2 could he withdrawn at any time. That remains the case. I am not persuaded that putting it on the face of the Bill adds anything at all in this respect. If a data subject has withdrawn his consent then, as I say, from that point he cannot be taken to be giving his consent to the processing in question.

The issues of what properly constitutes consent and of when consent can be said to have been withdrawn are, as I may have observed to your Lordships before, matters of general law with which the courts are very used to dealing on a case by case basis. We think it preferable to rely on that general law rather than seek unnecessarily to prescribe special rules for the purposes of the Bill, which might well have a confusing effect. In those circumstances, I invite the noble Lord to withdraw the amendment.

Lord Norton

My Lords, I thank the Minister for that reply. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 5 [The Data Protection Commissioner and the Data Protection Tribunal]:

Lord Falconer of Thoroton moved Amendment No. 24:

Page 49, line 13, leave out ("158") and insert ("159").

On Question, amendment agreed to.

Schedule 8 [Transitional relief]:

Lord Falconer of Thoroton moved Amendment No, 25:

Page 56, line 43, at end insert—

("Exemption from section 21

11A.—(1) During the first transitional period, all processing which was already under way immediately before 24th October 1998 is exempt from section 21.

(2) Where, on 24th October 2001, section 21 first applies to any processing which was already under way immediately before 24th October 1998, subsection (5) of that section shall have effect in relation to the processing with the omission of the words from "and either" onwards.").

On Question, amendment agreed to.

5.15 p.m.

Schedule 12 [Transitional provisions and savings]:

Lord Falconer of Thoroton moved Amendments Nos. 26 to 32:

Page 62, line 26, leave out ("sub-paragraph (2)") and insert ("sub-paragraphs (3) and (3A)").

Page 62, line 30, leave out ("sections 16(1) and 21(5)") and insert ("section 16(1)").

Page 62, line 30, after second ("the") insert ("registration period or, if earlier, 24th October 2001.

(1A) In sub-paragraph (1) "the registration period" means the")

Page 62, line 42, at end insert—

("(3A) If a data controller gives a notification under section 17(1) at a time when he is exempt from section 16(1) by virtue of sub-paragraph (1), he shall cease to be so exempt.").

Page 63, leave out lines 1 to 10 and insert—

("(5) Notification regulations under Part Ill of this Act may make provision modifying the duty referred to in section 19(1) in its application to any person in respect of whom an entry in the register maintained under section 16 has been made under sub-paragraph (4). (5B) If a person is exempt from section 16(1) by virtue of sub-paragraph (1), he is also exempt from section 21(5). except in relation to processing in respect of which he is obliged, under notification regulations made by virtue of section 19(1) or sub-paragraph (5), to give a notification to the Commissioner.").

Page 64, line 48, leave out (" 40") and insert ("41").

Page 65, line 3, leave out (" 40") and insert ("41").

The noble and learned Lord said: My Lords, I have spoken to the amendments already. With the leave of the House, I beg to move them en bloc.

On Question, amendments agreed to.

An amendment (privilege) made.

Lord Falconer of Thoroton

My Lords, I beg to move that the Bill do now pass.

My noble friend Lord Williams of Mostyn very much regrets that he is unable to be here this afternoon to make his concluding remarks on the Bill. Pressing government business has taken him overseas. He has, however, asked me to convey his own personal thanks for and appreciation of the constructive and courteous way, with the exception of this afternoon, in which noble Lords in all parts of the House have contributed to the debates that we have had on this Bill.

It falls to me therefore to offer the Government's valedictory remarks. I do so with a great deal of pleasure, since I have thoroughly enjoyed the debates which we have had both in Grand Committee and in this Chamber. Like my noble friend, I am deeply appreciative of the positive spirit in which the debates have taken place.

Although its subject matter is, to some, rather dull, this Bill is very important. It gives effect to this country's obligations under European Community law. It provides important rights for individuals. It affects the vast majority of organisations, big and small, throughout the country. It is broad in its scope, technical in its substance, and intricate in its detail. Those are all reasons why this Bill needs detailed and careful consideration. I believe that in its passage through this House it has been given the careful attention it deserves, save in respect of the amendment this afternoon.

In his opening remarks on Second Reading, my noble friend Lord Williams of Mostyn made clear that the Government would approach the Bill in a non-partisan way, and be very receptive to suggestions for improvement, provided that they were consistent with the Government's overall approach. I hope that your Lordships will agree that the Government have indeed been open and responsive.

Important amendments, reflecting views expressed from all parts of the House, have been made to the Bill. There have been important changes to the provisions on individuals' rights in Part II; to the exemptions in Part IV and Schedule 7—although I recognise from our debate on Clause 28(4) there are clearly issues between us still on that.

As a result of the efforts made by this House, I believe that the Bill is now much improved. But I recognise that there are a number of points still outstanding, including Section 28(4).

A significant change made by this Bill is to introduce data protection controls over certain manual records. Defining which records are caught has proved to be very tricky. We have made some small changes in an attempt to clarify matters. But I know that some Members of the House still have reservations. This is an important definition and I certainly do not rule out the possibility that the Government might wish to return to it in another place.

I also regret that we have not been able to bring forward proposals for dealing with enforced subject access. As I said on Report, the issues are complex, and I am afraid that we still have not been able to resolve all the problems. Again, we shall come back to this at a later stage.

My noble friend Lord Williams of Mostyn also undertook on Report to deal in the Bill with the question of ethnic monitoring, in response to an amendment proposed by the noble Lord, Lord Dholakia. My noble friend said that he hoped we might be able to deal with the matter on Third Reading but stressed that time might be against us. I am afraid that that has proved to be the case. But I can assure the House that the Government will bring forward the necessary amendment in another place as soon as we can. I beg to move.

Moved, That the Bill do now pass. (Lord Falconer of Thornton).

Viscount Astor

My Lords, on this side of the House we are extremely grateful for the way in which the noble and learned Lord and his colleague, the noble Lord, Lord Williams of Mostyn, dealt with the Bill. They certainly listened to our arguments, considered them carefully and accepted a number of amendments, for which I am extremely grateful.

It was a rather complicated subject. I was supported by my noble friends Lord Northesk, Lord Skelmersdale, Lord Teviot and Lord Chelmsford. I think that we have improved the Bill. As the noble and learned Lord said, there are issues that will be considered in another place which we were unable to deal with. We shall have the opportunity to deal again with Clause 28. I can assure the noble and learned Lord that we shall do so in as constructive a manner as I hope we have dealt with the Bill as it passed through your Lordships' House.

Baroness Nicholson of Winterbourne

My Lords, I am grateful to the noble and learned Lord the Solicitor-General for this opportunity to wind up the Bill on its way to another place. I am particularly grateful to him and the noble Lord, Lord Williams of Mostyn, for the way in which they have enabled me to discuss the matters I wished to raise with officials as well as with themselves.

I am grateful to the Home Office team led by Mr. Graham Sutton, to the Data Protection Registrar, Mrs. France, and her staff, particularly her deputy, Mr. Aldhouse, and to police Chief Constable Burrow and his colleague, John Black—all of whom the Ministers were comfortable that I should talk to in an attempt to improve the Bill.

I have been met, as indeed we all have, by an impressive range of official talent and expertise. That has been matched at least by the variety of expert opinion that noble Lords have brought to our debates on the Bill. They have been led, primus inter pares, by two Ministers who have addressed a Bill whose purpose was to harmonise the data protection principles and practices, often in opposition, of a number of different EU member states, and to reach a common position. I suggest that the Minister succeeded in reaching an uncommon position of shared political purpose, at least between his party and my own, and from time to time between all three main parties to improve the Bill and not to indulge in trench warfare. This is a Bill in which the devil is in the detail. Ministers are to be highly congratulated on enabling the passage of so complex a piece of legislation to go so smoothly and so well.

Lord Brightman

My Lords, perhaps I may take up a moment of your Lordships' time to thank the noble and learned Lord the Solicitor-General for providing us in this Bill with an index of defined expressions. I refer to Clause 65. This is a device of great value to the reader. It helps to make a long and complicated Bill so much more user friendly than it would otherwise be. As noble Lords will know, Clause 65 tells the reader at a glance whether a particular expression has a special meaning, and, if so, where that meaning is to be found. There is no need to grub around in order to find it.

Indexes of defined expressions were at one time uncommon, despite the assistance which they can render to the reader. Things have now changed. Indexes are becoming far more common in appropriate places. There are presently three Bills going through the other place, all of which contain an index of defined expressions: the Government of Wales Bill, which has 35 defined expressions; the Scotland Bill, with 44; and the school standards Bill, with 58.

There is a fourth Bill which has just left this House, the Competition Bill, which has 59 defined expressions but no index. However, at Third Reading the Minister stated that he intended to ask the draftsman to reconsider his previous advice that the Bill should not contain an index.

I venture to express the hope that every Bill will be considered on a case by case basis to decide whether an index of defined expressions will or will not make the Bill more user-friendly. I am grateful for the opportunity to ventilate once more this important aspect of helpful legislative drafting.

Lord Lloyd of Berwick

My Lords, I wish to add a few words to what was said by my noble and learned friend Lord Brightman. Whether the inclusion of an index of defined expressions is a good or bad thing is a matter upon which not all draftsmen are agreed. Obviously, an index will not be needed in every case. I have certainly found that in long and complicated cases an index is an invaluable tool. I had a good deal of experience of long and complicated Bills when I sat as chairman of the Joint Committee on Consolidation Bills. Whatever else may be said about the matter, it seems to me that an index of defined expressions can do no harm.

The Earl of Northesk

My Lords, I should like to add my expressions of gratitude for the most considerate and helpful way in which the Government Front Bench and their officials have dealt with the passage of the Bill through this House—even in the context of Clause 28. The matters with which we have attempted to get to grips in recent weeks are exceedingly technical and complex. Put simply, computers, let alone issues of data protection, are not everyone's cup of tea. I am conscious, too, that the urgency of enacting the Bill by the deadline of 24th October this year, taken with the multiplicity of other measures with which it is currently involved, has imposed the added constraint of an unenviable workload on the Home Office. Nonetheless, I am tempted to suggest that the co-operative approach that has been engendered in relation to this Bill is of considerable credit not only to all involved but to the House as a whole. I thank the noble and learned Lord, and in his absence the noble Lord, Lord Williams of Mostyn, and their officials for that.

Quite deliberately I chose not to pursue the concerns that I raised on Report via the mechanism of amendment at Third Reading. Aside from any other consideration, I am unconvinced that the Bill as it stands would respond well to any such attempt. However, my concerns remain, and perhaps I may take this opportunity to touch upon them.

Noble Lords will recall that, in the context of Clause 8 and the credit reference industry, I touched upon the apparent public policy shift away from the provisions of the 1974 Consumer Credit Act to a more rights-based regime, as espoused by this Bill and the Human Rights Bill. In this relatively narrow area, there remains a measure of concern that the Data Protection Tribunal enforcement notice, which has operated satisfactorily for a number of years and which—if I may borrow the words expressed to me recently by the noble Lord, Lord Borrie—exhibited the "wisdom of Solomon", may in some way be summarily superseded by the enactment of this Bill. While accepting absolutely that the noble and learned Lord cannot give any guarantees on the point, I nevertheless hope that he may be able to give some reassurance to the industry that there is no inevitability attached to that, and that there is some hope that the terms of the enforcement notice will persist for the time being.

Turning to Clause 10 and the concerns of the direct marketing industry with respect to opt-out tick boxes, perhaps I may, with the leave of the House, read out the text of a commitment that I have received from the Direct Marketing Association. I believe that the noble and learned Lord has also had sight of a copy. It states: The DMA undertakes to provide in its Code of Practice that any written notice by a data subject under Section 10(1) of the Data Protection Act 1998, other than a notice using or forming part of transactional or other commercial documentation, must be acknowledged by the data controller in writing to the data subject as soon as is reasonably practicable. In the case of a notice using or forming part of transactional or other commercial documentation, the data controller must take such steps to comply with the requirement under Section 10(1) as he considers appropriate to ensure that no such further processing for the purposes of direct marketing in respect of that data subject is undertaken by the data controller subsequent to the completion of the commercial arrangements, eg: fulfilment of order, to which the documentation relates. The DMA also undertakes to use its very best endeavours to persuade other organisations operating relevant Codes of Practice, eg: the Committee of Advertising Practice re the British Codes of Advertising and Sales Promotion, to include similar provisions". I very much hope that, in the light of that, the noble and learned Lord, while giving no guarantees as to the outcome, might be prepared to concede that this is an issue to which the Government will be prepared to give further consideration as the Bill makes its way through another place.

Lord Teviot

My Lords, like other noble Lords, I wish to add my thanks. The Bill's passage has been a very happy experience. I originally wrote, "pleasant and useful"—which I repeat.

The noble Lord, Lord Williams of Mostyn, suggested, following Report, that I met with his officials and should include anybody that I liked to bring along to a meeting. That meeting took place and was on the whole very satisfactory. If I did not get a green light on one point, I certainly had an amber one. My concern remains, but as a result of the meeting I hope it will be possible in another place to devise a form of words which will allow, for example, a solicitor to continue to seek beneficiaries of wills by searching through many kinds of records which contain personal data. There are plenty of other examples which I shall not go into now.

In addition, I hope that the Secretary of State will soon issue an order, as is provided under Schedule 3 to the Bill, endorsing the safeguards which record offices habitually impose on personal material. Such an order would help to reassure depositors of their right to go on depositing non-public records in record offices. It would authorise the latter to process new insertions of such material, all of which are tightly hedged by the Bill.

Finally, I should emphasise that no attempt is being made to seek new powers. Archivists and record users are simply trying to preserve long established practices which are incidentally affected by the Bill. I thank the Minister and also the noble and learned Lord the Solicitor-General for their earlier assurances that such was not their intention. I am optimistic that they and their officials will be able to overcome the remaining problems.

Lord Falconer of Thoroton

My Lords, I think this is neither the time nor the place to embark on the debate again. Perhaps I may make two points, the first on the comments made by the noble Earl, Lord Northesk, about the concerns of the direct marketing sector and the changes to be made to Clause 10. If I understand him correctly, the concern is that the requirement for controllers to respond to every written notice they receive is simply unworkable in respect of "tick-boxes" and similar notices, and it may well work against the interests of the data subjects. The noble Earl quoted the text of an undertaking which the Direct Marketing Association would be prepared to make, were the statutory requirement to be reconsidered.

During the passage of the Bill we have not been shy to acknowledge that we may not always have got everything absolutely right the first time, or even the second time. We have been very willing to respond positively to the legitimate anxieties of those affected by the Bill. The amendment which the Government proposed to Clause 11 earlier this afternoon is an example.

I have taken careful note of the points about direct marketing made by the noble Earl. We shall look very carefully, in consultation with the representatives of the direct marketing sector, at their proposal for dealing with the matter in question by means of a code of practice. Our minds are certainly not closed and if we feel that improvements can be made, we shall return to the matter in another place.

As regards the points made by the noble Lord, Lord Teviot, I am glad that he found that the meeting with the Home Office officials helped clarify a number of matters. As he said, one or two points are still outstanding. We are looking carefully at them and will get back to those whom he represents about them as soon as we can.

I wish to make two final points. First, perhaps I may echo the sentiments expressed on all sides of the House about the quality of the official team led by Mr. Graham Sutton. They made a real contribution towards making the Bill as good as it is. I also wish to say how grateful my noble friend Lord Williams of Mostyn and I have been for the positive and helpful way in which all the debates have been conducted. We are particularly grateful to the noble Viscount. Lord Astor, and the noble Baroness, Lady Nicholson of Winterbourne, for the constructive spirit in which they have approached the Bill from the Front Benches opposite. I beg to move that the Bill do now pass.

On Question, Bill passed, and sent to the Commons.