Data Protection Bill [H.L.]

§ Lord Elton

The noble and learned Lord has not addressed himself to his own amendment, and he will forgive me if I do not either. He started by addressing himself to the weight to be given to a Lord Chancellor as being double that of any other, and then pointed out that there were two ex-Lord Chancellors on the Bench opposite and that this formed a sort of equilibrium, in which I sit delicately balanced more or less in the middle.

What I would therefore address myself to is this question of the powers of a statutory creature. I am advised that in fact since the notice powers are in the Bill, and since the notice powers could not be pursued except by inquiry and investigation, then it follows that those powers are implicit in the Bill and are the attributes of the statutory creature. I do not know whether that is a long enough speech, but it contains the nugget of information which the noble and learned Lord sought. Therefore, I offer it as an answer to his inquiry.

§ Lord Elystan-Morgan

We on this side of the Committee are disappointed at the response of the noble Lord the Minister. I am afraid that this amendment, like one or two other amendments tonight, has not brought out the best in the noble Lord, and he has not exhibited to the Committee his sparkling personality, of which we are all well aware.

§ Lord Elton

I am very happy to do so, but I do not think this is the occasion.

§ Lord Elystan-Morgan

We would be glad if the noble Lord would reconsider the situation after I have addressed the Committee. He has not shown us his sparkling personality, but rather has exhibited the mustiness of bureaucracy that lies heavy on his notes from the Home Office. As my noble and learned friend Lord Gardiner has put it so succinctly, the White Paper laid specific emphasis upon the registrar's function of pursuing complaints.

The Lindop Committee, in paragraph 19.97, part of which has already been quoted by my noble and learned friend, put the matter more trenchantly. May I be allowed to quote that paragraph, for it sets out the matter with greater force and clarity than I would be able to muster. It reads: the Authority will need powers to investigate complaints. We see this as a most important function. Presumably one of the principal reasons why the Government has decided that there should be a DPA at all is that the individual data subject will seldom be in a position to discover for himself whether there has been an infringement of his interests. The Authority must therefore have the power to do this for him. There are many precedents for such a function, and we recommend that the DPA should have the necessary powers to call for witnesses and the production of documents. In addition, since the DPA will play an important role in subjecting to its independent scrutiny the data processing of government departments, we recommend that it should have the same powers to compel the disclosure to it of official information and documents as are available to the Parliamentary Commissioner for Administration under section 8 of the Parliamentary Commissioner Act 1967". Unless the Government are prepared to spell out that the scrutiny of complaints is an important and integral part of the role of the registrar, then in our submission from these Benches the registrar will be lacking in 401 authority, his role will be incomplete, and his position will lack credibility.

It is of course inevitable in the course of things that complaints will be sent by the thousand by data subjects to the registrar. If the noble and learned Lord the Lord Chancellor is right as to his contention as to the basic authority of every Minister, as I understand his case to be, to give advice—and who am I, a poor barrister, to intervene in such a conflict between the Titans of an incumbent Lord Chancellor and two former distinguished noble and learned Lord Chancellors?—then it may well be that the registrar will take this function on board.

What if he did not? What if he were to say, "Well, it is purely a matter of discretion for me. Nothing appears in the relevant legislation in relation to this". He would then presumably be reporting to Parliament year by year to say, "This year I received 37,000 complaints, 10 per cent. up on last year, but I have not dealt with any one of them at all, and I am unable to tell you what their content was".

This issue of the registrar pursuing complaints is, in our view, something that is utterly central to his function. The registrar, in order to have credibility, must show himself to be a person who is willing to look at all times at the whole system of which he is a head, and to be able to examine at all times the efficiency of that system in so far as it protects, or fails to protect, the privacy of the subject. That is the very raison d'être of this legislation.

If the registrar does not do this, then this legislation will be made a nonsense of. If the registrar does do this, then we say that the estimate of the shoestring capacity of a score of staff will be utterly ludicrous. The Government cannot have it both ways. If the registrar intends doing this—and I should be grateful for the assurance of the Minister that it is his intention to regard this as a central feature of his role—how can it possibly be done with the minuscule resources of a score of staff referred to in the Bill itself?

§ Lord Elton

Clearly I did not speak for long enough to impress upon the noble Lord, Lord Elystan-Morgan, the importance which we attach to the investigative function of the registrar, which is evident if you read the Bill and you see the centrality of the notice giving powers without which, he is, after all, powerless. Really the imagination cannot conjure up a situation in which a person who can only act by exercising these powers should not exercise them for the simple reason that he was not going to inquire into the circumstances of the cases presented to him.

The noble Lord raised another issue, and in this he echoed things that were said from the Bench on which he was sitting at an earlier stage. That was that he felt that there should be a requirement for the registrar in this exercise of a general power, just as it was thought by his noble friends that there should be a requirement in other circumstances. It is obviously the case that the registrar will pay great attention to any accusations of malpractice which he receives. After all, such allegations are likely to be the chief means by which he learns of possible contraventions of principles to which notice will apply.

402 The whole tenor of the powers and obligations placed upon him—I am thinking of his powers of entry, for instance, his notice powers and his reporting and advisory functions which Clause 33 prescribes—are all directed towards such a role. But the noble Lord wants us to go further than that. He said that there will be thousands of complaints and, as this amendment proposes, he requires him to investigate every single one of them, regardless of how patently ill-founded it may be and how little evidence there may be to support it. This will place on the registrar the most enormous burden. As is rightly said, if he is to pursue not only gnats but also will-o'-the-wisps, he will need an army of supporters, and I do not think that is necessary in order to protect the data subject by means of this Bill.

As I suggested in connection with the earlier amendment, under the terms of this amendment the registrar would be unable to distinguish between the genuine complainant and those who were vexatious or unbalanced. He would have no discretion to decide whether he had already spent sufficient time examining complaints in a particular area and that now was the moment to look at other areas which attracted less publicity. He would be obliged each time to prepare a formal report of his findings which could be shown both to the user and to the complainant.

It is possibly this latter function which might place the greatest burden on his already stretched resources. In addition, such a report could conceivably be used as a means for the unscrupulous to obtain access to information to which they had no right. I am thinking, for example, of the use which might be made of this provision by a commercial organisation vis-à-vis its business rivals. I think I have made clear the Government's opposition to a requirement which we believe would hang a substantial millstone round the neck of the registrar.

§ Lord Elystan-Morgan

While accepting, of course, that the complaint procedure—whether it is a formal procedure written into the Bill or whether it is an informal procedure which the noble and learned Lord Chancellor says will be open—is open to abuse, does not the Minister accept that it is necessary for the success of this legislation that the ordinary data subject should know that there was a sympathetic and patient ear for his complaints? If that sympathetic and patient ear is not to be the registrar, who else could possibly discharge that role?

§ Lord Elton

The amendment, as I understand it, is not about accessibility by the data subject to a patient and sympathetic ear. It is about the owner of the patient and sympathetic ear being allowed to go out with a penetrating and perceptive eye to see whether the complaint is justified or not; in other words, to investigate. What the noble and learned Lord has said he is concerned about is the power to investigate. His first concern was that the power to investigate was not actually stated on the face of the Bill. To that I replied that since so many provisions of the Bill, in order to be put into operation, depended on the power to investigate, I was reliably informed that it was implicit in the Bill and that the noble and learned Lord need not have any worries on that score.

403 The noble Lord, Lord Elystan-Morgan, then returned to the charge and said, first, that if this was sedulously pursued the staff would be too small and, secondly, in order to see that every single complaint was pursued, no matter how factious or trivial—the noble Lord did not put it in those words, but his amendment does—there should be no discretion given to the registrar whether to pursue a matter by investigation or not. As I have said before, and no doubt I shall say again on this Bill, we do not believe in producing a huge and expensive machine to deal with every instance however trivial, laughable or irrelevant. We believe in having a degree of flexibility in which the registrar can decide what are the matters to pursue with urgency and what are merely those courteously to take note of. I think that is what ought to happen in real life, and having sat behind a number of ministerial desks for a short time and seen the sort of inquiries and complaints that come flooding in—not all of them, by any stretch of the imagination, susceptible to following up or inquiring about without manifestly wasting public resources—I think we are on the right track in this Bill.

The noble and learned Lord has done a valuable service to the Committee by drawing from the Government their own commitment on the pursuit of cases, and to the fact that the registrar should be the defender of the small and otherwise helpless data subject and that he will have the power to investigate at his finger tips in order to discharge this function. I hope that the noble and learned Lord will feel that this has served a sufficient purpose.

§ Lord Gardiner

The discussion has at least resulted in one thing becoming clear, and that is that the Government have not resiled from their position taken in the White Paper that one of the things the registrar ought to do is to investigate complaints. Here again is a case in which we all want the same thing. The only difference between us is whether it is better to put it into the Bill or not.

I quite accept that it is a bona fide argument for saying that, in some way rather mysterious to me, it is implicit in some other clauses in the Bill. I do not myself take that view, but where there is this difference of view we all want the same thing. What surprises me is that the Government do not accept the amendment, because we are more certain to get what we want if they did. Instead of doing that they prefer to leave quite uncertain what the position is in law and what the registrar's powers are or are not.

Having said that, I see, for the record that apart from the Front Bench there are, including the noble Lord the Chief Whip, three Members on the Government side of the House and seven on this side, so it is obviously quite useless to call a Division. Accordingly, I hope that further reflection will lead to some change in the Minister's view. I shall certainly raise this again at the report stage of the Bill, but for the time being I beg leave to withdraw the amendment.

§ Lord Elton

This amendment comes before us as an orphan or bereaved, because I was expecting it, until my noble friend was kind enough to tell me otherwise, to be trotting off with Amendment No. 59 and others in company. However, we are now to look at it on its own and I understand the reasons.

It appears to me at first blush that the amendment is not necessary since the registrar is already required to be satisfied that the transfer in question is likely to contravene or lead to a contravention of any of the data protection principles before serving such a notice. Where the transfer in question is from a United Kingdom user to an overseas subsidiary, the registrar would, of course, consider the extent to which that subsidiary could be relied upon to observe any data protection provisions insisted upon by the United Kingdom parent company. In other words, the registrar can be relied upon to look precisely at the sort of issues which this amendment requires him to consider, and I hope that my noble friend will find this a sufficient reassurance.

§ Lord Mottistone

It is not an important enough point to make a meal of, but there is nothing in the Bill to say that the registrar will do that. However, I trust that is the way it will work out in practice. I beg leave to withdraw the amendment.

§ Lord Elton

I think this is a question of comprehension. As I understand it, the purpose of the amendment is to ensure that the registrar's attention, when deciding whether to serve a transfer prohibition notice, is not to be confined solely to the risk of harm to individuals but that he can consider whether a category of persons will be placed at risk. I sympathise with that desire to enable the registrar to look broadly at the harm which might be caused if the transfer in question goes ahead and to ensure that he would not be inhibited in the use of his powers by the fact that he was unable to identify individuals put at risk, as opposed to categories of persons.

Our belief, however, is that the Bill as drafted already goes as wide as the noble Lord intends by the amendment, and that to add these additional words would be superfluous. If damage or distress is caused to a class of persons, then regardless of whether it is possible to identify individuals who might be harmed it would still be the case that there was a risk of damage or distress to some among the individuals who make up that category of persons. That one will comprehend or embrace the other. We believe that the reference is adequate, just as in the equivalent provisions in Clauses 10 and 11. It would be unusual to make such a change here but not in those other contexts. It is out belief that such a change would not be necessary anywhere because the greater includes the lesser.

§ Lord Mishcon

I shall not waste the time of the Committee in further arguing the matter. I shall look at what the Minister said and, in the meantime, I ask leave to withdraw the amendment.

§ Lord Elton

Perhaps I might refer to the purposes of these provisions. The international nature of the information technology industry came up on Second Reading on a number of occasions. It means that if there were no controls on the transfer of personal data from this country to one which lacked equivalent safeguards for data protection, the purposes of the Bill might be defeated. Indeed, if there was no control over the passage of personal data from this country, others 406 with data protection legislation might not allow personal data to be sent here—hence, one of the reasons for the Bill. It is with that in mind that the Bill's controls on transfers of personal data abroad have been developed; and we have also paid very close attention to the provisions of the European Convention in this respect.

Under Clause 4(3)(c) data users will have to include in their registered details an indication of any countries to which personal data are to be transferred. It would be an offence under Clause 5 for a person to transfer data to any country which was not included in his entry on the register. This information on the register will give the registrar an indication of what transfers of personal data take place. Clause 12 empowers the registrar to issue a transfer prohibition notice in certain circumstances, either preventing the transfer of personal data absolutely or prohibiting such transfers pending the taking of specified steps. In a case where the state to which the personal data are to be sent is not bound by the Council of Europe Convention, the registrar may issue a notice where he is satisfied that the transfer will contravene, or lead to a contravention of, the principles. Where the state involved is a state that is bound by the convention, a notice may be issued only in the more limited circumstances set out in Clause 12(3), which are in accordance with Article 12 of the convention.

As the proposed amendment clearly demonstrates, it would be unrealistic to expect these controls to apply to transfers abroad of all information extracted from personal data. That would be to apply controls to such disclosures of information as telephone calls and letters. The test the registrar must apply in the case of transfers to other states is, broadly speaking, whether the transfer will contravene or lead to a contravention of the data protection principles. He will therefore consider not only the actual transfer but also what is going to happen to the personal data once transferred, and this would clearly be impractical in the case of a telephone call or letter. Thus, Clauses 5(2)(e) and 12 deal only with transfers of personal data and exclude transfers of information.

I am not absolutely satisfied that I have addressed myself squarely to the issue which the noble Lord put to the Committee, as I am not certain it was exactly what I anticipated, but the controls we have established are those designed to apply, as he rightly said, to data and not to information extracted from data. Where data are transferred by telephone line, that is already caught by Clause 12, which deals with material transferred as data as opposed to information extracted from data.

§ Lord Wigoder

I have followed with care every nuance of the Minister's explanation. I hope he will forgive me when I say I should like to look at it again in the Official Report to see if it deals with the object of the amendment, and, if it does not, perhaps to return to the matter at a later stage. For the moment, I beg leave to withdraw the amendment.

§ The Lord Chancellor

I am grateful to the noble and learned Lord for having put the point in such a succinct manner. As I understand the Bill, it would alter the whole philosophy on which this piece of legislation is founded. As was brought out very clearly just before we adjourned the Committee stage at about seven o'clock, the registrar is partly an inquisitorial figure and partly a policeman, to ensure that data users do in fact register, if they are qualified for registration under the Bill and are bound to register under it, and also to ensure by his own discretion that they keep to the eight commandments in Schedule 1 and that they do not damage the rights of the data subject. Those are the functions of the registrar.

In order that he should discharge his functions as we discussed earlier he is given somewhat draconian powers. The powers were described at one stage by my noble friend Lord Mottistone as imposing on the data user an unduly heavy burden, and there was one brief moment—I thought myself it was an aberration—in which my noble friend was supported by the noble Lord, Lord Mishcon. But I would agree that the Bill gives, and is intended to give, somewhat draconian powers to the registrar. He can deprive people of their means of livelihood by refusing to accept their registration applications; he can issue an enforcement notice, which may impose very high degrees of expenditure and inconvenience; and in the last resort he can impose the ultimate sanction of de-registration.

It is therefore right that the data user, who is the target for these powers, should have a right of appeal, by way of a quasi-judicial hearing, to a tribunal composed (as we heard during our first evening) of a legal chairman, a data expert and a member of the great and the good, as it were, representing the general public. That seems wholly desirable.

The data subject on the other hand has given to him a series of protections by Part III of the Bill, to which I suppose in the end we shall resort, and the tribunal before which the data subject effects his rights is the courts of law. In addition I would think—though here I speak rather unadvisedly, but I still think that I am right—either a member of the public, such as Mr. Raymond Blackburn, in a famous case, or a village Hampden of some other kind, or indeed a data subject 408 as a member of the public, could apply for judicial review if it were manifest that the registrar was abusing his powers or refusing to use them reasonably. The noble and learned Lords opposite will remember Blackburn v. the Commissioner of the Metropolitan Police, not to mention other cases. That is the way in which the registrar can be compelled to discharge his function.

These amendments would entitle the village Hampden of whatever kind, or the data user—in fact any member of the public, so far as I understand the amendments, but perhaps that was not the intention—to challenge the registrar for not exercising his powers, whether by way of acceptance or erasure; and that is contrary, I should have thought, to the general purpose and philosophy of this piece of legislation. If the amendments were accepted, it would mean that the registrar would be exposed to continual risk of challenge for having accepted applications for registration, despite the consideration in Clause 7(2), and the test to be applied for applicants would be tougher.

The total effect is to run contrary to the philosophy of enforcement which the Bill contains, and it is also contrary to our conception of the way in which the registrar would exercise his functions. As my noble friend said before dinner, in resisting my noble friend Lord Mottistone, it is not our conception that the registrar would resort immediately to the most severe of sanctions, or indeed at all to compulsion, if it could be avoided. The idea is that he would first seek to persuade, advise, warn, and then proceed to the sanctions which it is amply within his power to use. I have no doubt that if he proved to be wholly unwilling to exercise his functions in good faith, the courts would provide a remedy to whomsoever sought it.

For the reasons that I have sought to explain, the idea that the village Hampden should have access to the appeals tribunal, by way of the appeals procedure provided by Clause 13, runs counter to our idea of how the Bill, when it becomes an Act, ought to work; that is, for the protection of the data user against the draconian powers of the registrar. The appeal procedure is not intended to inhibit the flexible use of the power with which the registrar, as a public authority, with police and inquisitorial powers (using the words in a non-technical sense of course) has been endowed by the Bill. I hope that that explains the view that I at present hold on the matter. I do not know what will be the view of the Opposition Front Bench about it, but I have done my best.

§ Lord Elwyn-Jones

The best of the noble and learned Lord is always very well worth listening to, if I may say so without being patronising. But as I see it, it presents an unequal situation as between the data subject—the person whom we are principally out to protect—and the data user. If I may say so, with respect, it is all very well to mention that there is judicial review, but that is an expensive, difficult process. I know well the problems that the noble and learned Lord faces with legal aid. Judicial review could well give rise to legal proceedings which could justify an application for legal aid. The procedure is not easy, and one of the advantages of the whole tribunal set-up is ease of access, in circumstances and an environment that are as informal as possible.

409 I suggest that it might be worth looking again to see whether we can avoid clogging up court process with judicial review applications, with all the delay and expense that that would ultimately entail for the taxpayer and the Lord Chancellor's budget. There is much to be said for the user having easy access to the tribunal. I wonder whether, in the light of what I have said, the noble and learned Lord might be willing to look at this point again?

§ The Lord Chancellor

I always reflect deeply upon what the noble and learned Lord says, but I think that I shall have another go at him before I give an undertaking. Our theory is—and this is why I am trying to persuade him that our approach to the Bill is right and that this amendment is misconceived—that the registrar is the friend of the data subject and potentially the policeman and inquisitor of the data user. The structure of this Bill, as we conceive it, is that the data subject has two parallel ways of recourse. He has recourse to his friend the policeman and inquisitor, who is designed as a weapon targeted on the data user, and he has resort to the courts—and for that purpose I invoke Part III of the Bill and not judicial review—and that is the ultimate resort that he has.

We do not want to subject the registrar to a great deal of appeal work from either data users or village Hampdens. On the contrary, if I were to hazard an opinion about costs and delay and clogging up—to use the felicitous phrase of the noble and learned Lord—I should have thought that the amendment would do all those things to a much greater degree than the Bill would achieve if the Government's philosophy of enforcement were adhered to. Having said that, of course, I shall take advice again but I do not want to give the smallest glimmer of hope that I have given an undertaking to do more than that.

§ Lord Elwyn-Jones

I am grateful to the noble and learned Lord. This is not an easy field. I see the force of what he has said in regard to the rights of the data subject under Part III. Perhaps the argument (if that is the right way of putting it) became directed towards judicial review by the way the argument went. But, in the light of what the noble and learned Lord has said, I beg leave to withdraw the amendment.

§ The Lord Chancellor

I hope to persuade my noble friend that this proposed amendment is really a fifth wheel to a coach, inspired by a false analogy. I had observed (and my noble friend has already drawn attention to the fact) that the clause is based on the analogy of Section 159, I think, of the Consumer Credit Act 1974 from which its language is largely drawn. But, with respect, it is a false analogy. There is no general power in the Director-General of Fair Trading, to whom this procedure applies under the Consumer Credit Act, of acting on his own initiative to correct or erase inaccurate data.

The point about this amendment is that it substitutes for the existing flexible powers given to the registrar in the Bill a formalised procedure which is altogether superfluous to the powers which he possesses. They do not add in any significant way to the protection available to data subjects. What they introduce is an unnecessary, formalised procedure securing correction or erasure of incorrect data.

It is true, of course—and I think that it could be said in addition to the point made by my noble friend—that Clause 24 of the Bill gives a resort to the courts, but only in circumstances entitling the data subject to compensation by reason of the inaccuracy of data or the unauthorised disclosure of data. But the provisions of the new clause apply only where the data subject believes he is likely to be prejudiced if the information in question is not corrected; although the registrar is not precluded in subsection (6) from ordering an amendment to be made even where he is satisfied that there are no grounds for the subject's fear of prejudice.

The proposal seems to us to add nothing to powers already available to the registrar in this area. Since the end of the complex procedure for which the new clause provides, where agreement between user and subject has proved impossible, is to bring the whole issue back before the registrar, nothing appears to have been gained by the proposed formalised procedure; because the registrar is already empowered, where there would otherwise be a breach of the "seventh commandment" 411 in Schedule 1, to order the correction or erasure of data where this is necessary for ensuring compliance with the other data protection principles. That is why the analogy with the Director-General of Fair Trading, who has no such power, is an inaccurate analogy and it is also why the proposals are really a fifth wheel to a coach. I think that it would be more than awkward to have two sets of provisions applying concurrently. I would suggest that the approach being proposed would be much less suitable than reliance upon the powers of the registrar in performing the task required.

In this matter of correction and erasure, the Consumer Credit Act establishes a very appropriate procedure for correcting the fairly simple factual statements (county court judgments and the like) upon which credit reference is generally based—that is to say, it provides for the inclusion on the agency's file, in disputed cases, of the customers' "notice of correction". In the data protection field, however, the material being held by data users will be vastly wider in scope than that of consumer credit: ranging from straightforward factual matters that might possibly be appropriate for a "correction notice" from the data subject, to more complex statements and judgmental material that clearly would not be appropriate—even with the generous allowance of 500 words per notice that my noble friend's series of amendments would allow. The spread of the material is so wide that a more flexible system is needed, and that is. I believe, what is already in the Bill. Although I am very fully in sympathy with what is underlying the amendments, we already have it there and in better measure than the new proposal would provide.

§ Lord Wigoder

May I indicate that Amendment No. 121A, which we seem to have reached somewhat abruptly, is in a sense an alternative to Amendments Nos. 119, 120 and 121? I propose to deal with those when we reach them rather than at this stage.

§ Lord Mottistone

I thank my noble and learned friend very much for his very full comment on this amendment. In view of the depth of his reply I shall have pleasure in studying it carefully between now and the next stage, and I shall discuss that with the National Consumer Council and I may raise the matter again. In the meantime, I beg to withdraw the amendment.

§ Lord Wigoder

I rise with a little hesitation to support this amendment. My hesitation arises partly from the fact that the other day I supported with enthusiasm the proposition that the noble and learned Lord the Lord Chancellor rather than the Secretary of State should appoint the members of the tribunal. I must confess that on re-reading the noble and learned Lord's reply in the Official Report I found it somewhat persuasive. I have a feeling that it may be a somewhat persuasive answer which may also be forthcoming to this amendment this evening.

This is not an easy point. There are at the moment a number of Bills or contemplated Bills where the issue arises as to whether tribunal rules should be made by the Secretary of State or by the noble and learned Lord the Lord Chancellor. I think there is one relating to the special commissioners of income tax, one relating to wireless telegraphy and one to the registered homes tribunal. Perhaps it is right that one should endeavour to discover a principle by which one can divide from the tribunals where the Lord Chancellor should make the rules those tribunals where a Secretary of State may properly make the rules. There are clearly precedents for both. I would not think that it should be contended that either the Lord Chancellor should make the rules in every case or that the Secretary of State should do so.

413 I suggest that in the ordinary way the proper criterion is that where a tribunal is deciding appeals against decisions which are made by the parent deparment, or where the parent department might be thought by the public to have an interest in the decision, then the public might think, however wrongly, that the tribunal rules were weighted somewhat in favour of the parent department. Therefore there would be a case for the Lord Chancellor to make the tribunal rules. Devising tribunal rules is, after all, basically a jucicial, rather than an administrative process. Of course, the Lord Chancellor has accepted that obligation on many occasions. One can mention the misuse of drugs tribunal, the plant variety rights tribunals, the lands tribunals and no doubt many others.

The difficult question is precisely how to apply that principle, if it is the right principle, to this particular Bill. It is not easy to contend that the department, the Home Office, will have a direct interest in the decisions of the tribunals set up under this Bill. What perturbs me somewhat is that there is a very real danger as this Bill begins to operate that the registrar might be wrongly regarded by many people as in some way representing the Home office as against the data users. Rightly or wrongly, if that danger arises from the way this Bill appears to operate after a year or two, then I venture to think it might be better—I do not suppose it will affect the content of the rules in any way—if the rules were authorised by the Lord Chancellor rather than by the Secretary of State.

I should add what is perhaps, in a sense, the contrary argument, that of course I accept that the Bill places the tribunal under the supervision of the Council on Tribunals, which is to some extent a safeguard to the general public as to the independence and efficiency of the rules. But I think there is a very careful and delicate balance to be drawn here and, on the whole, it might be better if the Lord Chancellor were nominally to accept the responsibility for the rules of this tribunal rather than the Home Secretary.

§ The Lord Chancellor

The noble Lord has, I think perhaps knowingly, introduced what is a very interesting and what has until fairly recently been a fairly debateable constitutional issue: namely, the appropriate Minister to make tribunal rules. Just in passing, I must remind the noble Lord, Lord Wigoder, that the registrar is independent both of the Lord Chancellor and of the Home Office. He can, I think, be removed only by a resolution of both Houses, and he is much more like a high court judge, the Comptroller and Auditor-General or one of those characters who are above ministerial influence. Therefore I do not think that the Registrar can be considered in any way as a minion of the Home Office or indeed of the Lord Chancellor, and I should be very sorry to think that that heresy could be promulgated at all.

However, it is idle to pretend that there is absolute consistency in our legislative book about this principle and I am not going to pretend that there is. During the last 15 years we have more or less settled down to an established and consensual philosophy about it. It is true that before that time the Lord Chancellor was given (and still possesses and exercises) the right of making rules for quite a number of tribunals, though 414 now they are only in a minority of cases. They do not by any means include all the most important tribunals or all those where another minister may have an interest in the outcome of the hearings or all those which involve difficult or delicate issues. For instance, the Lord Chancellor does not make the rules for the social security tribunals: that is for the DHSS. The Immigration Appeal Tribunal is perhaps more in point. That matter is very closely connected with the Home Office and it is highly sensitive. The Home Office make the appropriate rules, and I am advised—I think it is right—that during the last 15 years the practice has grown up—and I think on the whole it is a sound practice, which has been followed in the paragraph as drafted—that new rule-making powers have been given to the department with administrative responsibility for the tribunal rather than to the Lord Chancellor.

The tendency during the same period has been that even in those cases where the Lord Chancellor does in theory make the rules it has been the department with administrative responsibility which has done the drafting. This means that in form the rules are made by the Lord Chancellor and in fact they have been drafted by the officials of another department—the department carrying the load of departmental responsibility for the subject matter.

As I say, we have settled down to a view that, at any rate in the first instance, the responsibility for making the rules of these subordinate tribunals should lie in the hands of the departmental Minister with policy responsibility for the subject matter in question. In that way, that Minister whose department is found to have the greatest policy input will be seen to be publicly accountable for the outcome. That does not mean that, even in theory, the Secretry of State could make rules which favoured his own side of the case although, for the reasons I have already given, he has not got a case himself in relation to the registrar. This happens to be a Home Office Bill but the registrar, when he is set up, will be a totally independent official. However, it does mean that the Minister who is responsible for the area of policy and whose officials will in practice draft the rules is made publicly accountable for them.

That does not mean that as this constitutional practice has developed the Lord Chancellor has no role to play. On the contrary, the Lord Chancellor is responsible for the Council on Tribunals, as the noble Lord, Lord Wigoder, very rightly reminded us. They may make recommendations for amendments in any rules drawn by a Government department. It is the general practice—and it shows how our constitution is constantly developing by practice and convention rather than by legal rules—that where the Council on Tribunals makes recommendations in its annual reports (which incidentally are published), and there is resistance on the part of the department, it has become the inter-departmental practice for the Lord Chancellor to take up the cudgels for the Council on Tribunals.

I would have thought there was much to be said for this balance of power, this system of checks and balances within our administrative structure, and that on the whole the appropriate point at which the Lord Chancellor's office can bring their influence to bear is where the Council on Tribunals finds fault with the 415 rules and makes recommendations which are met with a certain vis inertiae. I think it would be more difficult, if the Lord Chancellor had signed those rules himself, for him to take up the cudgels with quite the same degree of enthusiasm as if his colleague had done so. It is, of course, a matter of opinion and a matter upon which views can be expressed on either side; but I would recommend the Committee to take the view that practice in the last 15 years has settled down and we do not want to disturb the existing practice.

§ Lord Gardiner

There was a time when I was quite familiar with the Council on Tribunals and their work. I accept everything which the noble and learned Lord the Lord Chancellor has said, and particularly that there has been a sort of general rule that the Lord Chancellor and not the Minister should make the rules where the Minister might be interested in the result of the proceedings. I agree there has been no settled plan. As a matter of personal opinion, I have always felt it was wrong that the rule should be made by a Government department and not by the Lord Chancellor, who has appointed the chairman and often the deputy chairman. That, as I say, is a matter of opinion; but what I would like to ask is this: Can the Government tell me of any single case like this case for a tribunal where the man who is most likely to be in trouble before the tribunal is the Minister? I know of no such case.

Ever since the Younger Committee it has been said—not once but twice—that what people are afraid of in this field is not computers in the private sector, but the Government computers and particularly those in the Home Office, those dealing with Scotland Yard, police intelligence and MI5 and, to some extent, public health: mainly it is the computers in the Home Office, and concerning immigrants too.

We now know—but we did not know it until this afternoon—that the chief data user in the whole country will be the Secretary of State, because I asked the question: who is going to be the data user of the Home Office computers? Is it going to be the Home Office, which can be a person under the Bill, is it going to be the Minister or is it going to be a civil servant deputed by the Secretary of State to keep the computers? I was told, No, it is going to be the Secretary of State, and the person who is more likely to find himself in the dock before the tribunal than anybody else is, of course, the Secretary of State. I am quite satisfied that there is no other tribunal in the country to which this applies. For those reasons, I hope that the Government will think again about this, because it seems to me to be a unique case.

§ The Lord Chancellor

With great respect to the noble and learned Lord, I thought that I had answered his question in my original remarks. I cannot imagine an area which is more sensitive to the Home Office than immigration, and the Immigration Appeals Tribunal. I gave that as an example of where the Home Office drafts the rules. Of course, the noble and learned Lord is entitled to say that that is a bad show, but he is not entitled to ask me whether I can give him an example, because I can and have done so.

416 I should have thought almost as good an example as that is the Supplementary Benefits Appeals Tribunals, where the Secretary of State for Social Services is in the same position. Again, I thought I could have said the Secretary of State for Scotland, because he exercises what are effectively a Home Office and, indeed, up to a point, even Lord Chancellorian functions North of the Tweed. At any rate, I am quite sure you would find that he was making a lot of rules.

No, I am not prepared to accept that this is a case in which the Home Office is most likely to be in the dock. I think that very large data users outside government altogether are just as likely to be in the dock, if that is the right phrase. I know that the noble and learned Lord, Lord Gardiner, has rather a "thing" about the police. We have crossed friendly swords with one another on numerous occasions about them. But even the police, except in the metropolis, are not the direct responsibility of the Home Office, although no doubt they have very powerful computers. I have no doubt that I am on a number of computers of the Social Services Secretary. No, this is an all-embracing tribunal effecting appeals from the registrar, who is a non-departmental official responsible directly to Parliament. So I should have thought not only that the case for saying that this was unique was not a good one, but that the case for maintaining the constitutional status quo was particularly strong.

But the noble and learned Lord, Lord Gardiner, has asked me to reflect upon this; and, anyhow, I could not, as he knows perfectly well, act without my colleagues in the matter. I have stated my case—I do not particularly want to die in the ditch for it—and will certainly stick to it at this stage, and tell him that what he said will be taken due notice of before the next stage of the Bill. But I do not want to give him much hope that I shall be the ultimate arbiter who drafts the rules.

§ Lord Elwyn-Jones

The noble and learned Lord has indicated the importance and the difficulty of this issue. There are obviously two sides to it, but we will be returning to it again. It is a constitutional question of very great importance and, in the circumstances, I beg leave to withdraw the amendment.

§ Viscount Craigavon

May I very briefly support the noble Lord, Lord Wigoder, as my name is above the amendment? I am advised by the British Computer Society that the wording in the Bill, as it stands, would not be adequate. The addition of the words "data material" is needed to make sub-paragraph (2)(d) meaningfully complete.

§ The Lord Chancellor

I think I can offer some comfort here, or at least I hope that I can. I am grateful to those who have propounded this amendment, both the noble Lord, Lord Wigoder, and the noble Viscount, Lord Craigavon, who spoke from the Cross-Benches. In one respect the amendment is inappropriate, but there is a respect in regard to which I should like to take it away and think about it. If there is a need for amendment—and I am not at all sure that there is not—it is in connection with the "testing" of data material. Paragraph 4(2)(d) allows data equipment to be inspected, examined, operated and tested, and this would include using the data material on the equipment. But it is possible, so I am advised, that it might be necessary, for example, to take away discs for testing on other equipment, and it is true that paragraph 4(2)(c) and (d) does not provide for this.

We need to ensure that we use the right words in this context. We would, therefore, be happy to consider the drafting in the light of what we have heard today, and, if necessary, return to the House ourselves with a more suitable amendment. If we can find a form of words, we shall do so on Report. With that assurance, perhaps the noble Lord will consider withdrawing the amendment in this form.

§ Lord Swinfen

I wonder whether my noble and learned friend could enlighten me on one other word in sub-paragraph (2)(d). Does the testing by members of the tribunal also include testing by servants of the tribunal, or does it have to be by a member of the tribunal?

§ The Lord Chancellor

I shall have to think about that point and inform my noble friend at some other time.

§ Lord Wigoder

Apart from that point, I am happy to accept the assurance given by the noble and learned Lord. I beg leave to withdraw the amendment.

§ Lord Elton

May I seize this opportunity to straighten the record, particularly since the noble and learned Lord, Lord Gardiner, took me up on the point and referred to it during the debate on the schedule? Your Lordships will recall that I was asked, under difficult circumstances, who would be the registered data user in the Home Office. After a certain hesitation I said that I would put my money on the Home Secretary. I very much regret to have to tell your Lordships that I lost the bet. I am advised that the 418 statutory person will be the Home Office. I hope that that has not materially altered the arguments which the noble and learned Lord would have used. However, I thought I ought to tell your Lordships as soon as the slip came back from the silver ring.

§ Lord Gardiner

I am obliged to the noble Lord. I thought that change might come about when it came to the question of making the rule.

§ Lord Elton

It would have shortened that debate.

§ Lord Elton

I fear that I must oppose my noble friend's amendment, and for two reasons. The first is largely technical. A data user, as defined by the Bill, is one who, among other things, "controls the contents and use" of data. Yet this amendment would apply to such people the quite separate concept—entirely valid so far as bureaux are concerned—of providing services on behalf of other people. I fear that the idea of "control", and that of being authorised to perform certain tasks, are not ones that will sit happily together, and that the amendment, as it stands, must be regarded as defective.

The second, and substantive, reason why I cannot give this amendment support is that it is unnecessary. I suggest that many of the circumstances about which my noble friend is concerned would already entail a breach of the law—most obviously a breach of contract between the supplier and the user of the list. And where such a use of the data did involve an unlawful act, it would be open to the registrar to conclude that this constituted a contravention of the first data protection principle, requiring lawfulness of collection.

Even if no contractual relationship existed, the registrar might still decide that the "fairness" limb of the first principle had been breached and that action by him was therefore indicated. In short, we believe that to the extent that it is appropriate in a data protection Bill to attempt to tackle this problem, the Bill does already provide an adequate sanction. I frankly do not see how we could go further in providing against the behaviour which has caused my noble friend concern, and I believe that the powers which the registrar enjoys under the Bill will enable him to take whatever action is appropriate. In view of these considerations, I would ask my noble friend to withdraw his amendment.

§ Lord Redesdale

I am most grateful to my noble friend for his very full reply. I should like to consider the points he has raised and beg leave to withdraw the amendment.

§ Lord Mishcon

I should like to explain to the Committee one point that arises out of these amendments. They do in fact have their source in the Law Society, of which I have the privilege to be a member. I did have a word with the noble Lord the Minister about raising these points on clause stand part because I felt it was unreasonable to put down amendments so late. It is an extraordinary situation that the Opposition Front Bench is more considerate, presumably, to the Minister than his own noble friends. I thought I ought to explain that; that is why the amendments are not down in my name and that of my noble friends. But certainly we support the spirit and say that this person ought to be a circuit judge.

Perhaps I ought to add one word, to remind your Lordships' Committee that in regard to the question of revenue searches, which has been engaging the minds of many people, certainly in another place at this time as well, it is necessary for a circuit judge to authorise the search. It seems to me to be extraordinary, therefore, that we should be considering a Bill where a justice of the peace can authorise a search in a matter of this kind, which is a new type of offence which we are creating. It is not necessarily fraud and matters of that kind with which searches are concerend when it comes to revenue matters—and many of us remember the embarrassment that was caused in certain places when a search did take place in regard to revenue matters some little time ago. I would have thought it extraordinary that a revenue search needs a circuit judge to authorise it, whereas the invasion of the privacy of data users, much though we want to protect the data subjects, should be allowed to take place merely on the authority of a justice of the peace.

I think the Law Society are right about this. I am so glad that the noble Lord, Lord Mottistone, took up such a worthy cause, and I hope it will be an encouragement for him in future to support such causes as those advanced by the Law Society.

§ Lord Glenarthur

I am certainly very grateful for the remarks of the noble Lord, Lord Mishcon, so far as the tabling of the amendment is concerned. It is a very complex matter, and of course if amendments are tabled late it is very difficult to get all the facts at one's fingertips. I think the point about access to the revenue information to which the noble Lord referred as a case in point is something which we shall have to check specifically in due course.

421 My noble friend Lord Mottistone has spoken with his customary eloquence on this particular amendment, the first of many we are to discuss on Clause 16. Clause 16 empowers a justice of the peace to issue a search warrant authorising the registrar to enter and search premises, to inspect, examine, operate and test equipment, and to inspect and seize any material which may be evidence of an offence under the Bill or of a contravention of the data protection principles by a registered person. This power has been included very much as a weapon of last resort, to be available only where the registrar is unable to enforce the Bill's requirements through persuasion. As is only right, there are a number of safeguards in Clause 16 designed to circumscribe the power of entry to its proper limits. One of these is the requirement under Clause 16(1) for a warrant to be obtained from a justice of the peace or his equivalents in Scotland and in Northern Ireland.

The amendment proposed by my noble friend would have the effect of requiring such a warrant to be issued in all cases by a circuit judge. It is possible to argue the case for such an amendment by reference to Clauses 9 and 10 of the Police and Criminal Evidence Bill, which is currently being considered by another place. The powers of entry and search conferred on the police by Clause 9 of that Bill are exercisable on the basis of a warrant issued by a justice of the peace, but this does not apply where the evidence sought is within the scope of Clause 10, which concerns evidence held on a confidential basis, in which circumstances the police must follow different procedures and apply to a circuit judge.

Perhaps it might be easier to explain the function of Clause 10 of that Bill by reference to an example. Where, for instance, the evidence sought consisted of the accounts and other financial records of a company which were held by the company's accountants, it is right that more stringent safeguards should exist. As regards the Data Protection Bill, I think that on reflection perhaps your Lordships will agree that the same considerations do not apply. The registrar's powers of entry, if exercised in relation to an accountant or another person holding information on a confidential basis, will be used to obtain evidence as to the accountant's operations as a data user, not as to his dealings with his clients. The question would be one of whether, for example, the accountant was operating as an unregistered data user or, if he were registered, whether he was operating in contravention of the principles. The client's affairs would not be of any interest to the registrar.

Under the circumstances which the Police and Criminal Evidence Bill addresses, it is the client in whom the police are interested, and if evidence concerning that client held by the accountant in confidence is to be seized, then special safeguards are required. Under this Bill it is the accountant himself in whom the registrar is interested and the client's interests are not at risk. Indeed, it may be on the client's behalf that the registrar is exercising his powers. That is the fundamental difference. Of course, it is not impossible that information relating to another person might be seized in such circumstances as evidence of the data user's activities. But there are strict limitations in Clause 17 upon the disclosure of 422 information obtained by the registrar in the course of his duties under the Bill.

In conclusion, it would seem that the special considerations which lead, in the context of Clause 10 of the Police and Criminal Evidence Bill—to which I referred, and which is now in another place—to the requirement for a warrant to be issued by a circuit judge, simply do not apply here. Indeed, the fact that the Bill allows applications to be decided usually by a magistrate strengthens the case for this Bill following the same course. I hope that my noble friend will agree with that, and in all the circumstances will feel that perhaps the Bill is pitched about right.

§ Lord Wigoder

I should like to make two observations. First, the noble Lord the Minister said that this is a measure of last resort, from which I think it would follow that it would not be expected to happen on a very large number of occasions. Therefore, there is no question of any undue pressure of work or time so far as the particular person is concerned who has to authorise the execution of the warrant. Secondly, if one looks at Clause 6(1) one appreciates just what the person who is asked to issue the warrant has to decide. First, he has to decide whether: there are reasonable grounds for suspecting—(a) that an offence under this Part of this Act has been or is being committed; or [secondly] (b) that any of the data protection priciples have been or are being contravened"; and thirdly: that evidence of the commission of the offence or of the contravention is to be found on any premises specified in the information". Are these not essentially legal issues? Is it not absolutely desirable that they should be determined by somebody who is legally qualified? I can accept that in the Greater London area, for example the power might be given to a metropolitan magistrate. But I should have thought that outside the areas where there are metropolitan magistrates sitting, it is essential, if this provision is to be applied fairly, that it should be applied by somebody who is legally qualified, which in fact means a circuit judge.

§ Lord Elwyn-Jones

I am very glad that the noble Lord, Lord Wigoder, has spoken. We have had eloquent support for this amendment from the Law Society. I venture to think that the Bar would be equally enthusiastic in support.

§ Lord Swinfen

Surely a circuit judge should be the individual here rather than a magistrate, because it could involve the total livelihood of the person whose premises are going to be searched?

§ Lord Elton

I do not quite follow that last question. If no offence is committed, the fact that the place is searched cannot destroy the livelihood of the person whose equipment et cetera is inspected.

§ Lord Mishcon

It may not be very good for him.

§ Lord Elton

It may not be very good for him, but I suggest that it will not happen very often. The noble Lord, Lord Wigoder, pointed out that the applications will not be very numerous. My noble friend has 423 pointed out that in similar cases in legislation going through another place we have taken the authority of the magistrate for similar circumstances, and only where the circumstances are dissimilar and there is at risk a link between the data user and his client, is it necessary to have a judicial input.

I am very far from convinced by what has so far been said, that what is in the Bill is not as it should be. I feel rather strongly that it is right. On the other hand, we have not had the amendment before us very long. The noble Lord opposite was kind enough to explain that Her Majesty's official Opposition is actually more considerate towards the Government than Her Majesty's Government's supporters in this respect. If Her Majesty's Government's supporters get a rather dusty answer from the Front Bench from time to time as a result, it is not a matter for surprise. On the other hand, I think it would be sensible for me to look at this in the light of the exchanges, but only on the basis that the amendment was submitted so late that I do not think we have had a fair chance to look at it properly.

§ Lord Mottistone

My Lords, I am grateful to my noble friend for undertaking to look at it. Indeed, I apologise to the noble Lord, Lord Mishcon, if I have stolen his thunder by taking this on. I was asked to do so and I did. Funnily enough, I thought it was kinder to put it down rather than to take it on clause stand part, because at least my noble friends know what to expect. This is basically very straightforward: it is a question of one or the other. It is not complicated. I should have thought that the arguments of the noble Lord. Lord Wigoder, are excellent and should be taken into account more than those of any of the rest of us. Therefore, I hope that my noble friend will see fit to make a change. In the meantime, I, too, will look to see the background to this more fully and hope that one or the other of us will put something down at the next stage of the Bill. I beg leave to withdraw the amendment.

§ The Chairman of Committees (Lord Aberdare)

I have to point out that if Amendment No. 99 is agreed to, I cannot call Amendment No. 100.

§ Lord Glenarthur

I fully appreciate the need for Parliament to examine the justification when any new 424 power of entry is proposed. As I said earlier, Clause 16 has been included in the Bill rather as a weapon of last resort. Where all else fails the registrar must have the necessary powers to obtain evidence in order to take action against a person who flouts the law. This clause therefore empowers a justice of the peace, or his equivalents, to issue a warrant authorising the registrar to enter and search premises, operate equipment and seize evidence. The justice of the peace may issue a warrant only where he is satisfied that an offence has been or is being committed under the Bill, or that the data protection principles have been or are being contravened, and that evidence to that effect is to be found on the premises in question. The amendment proposed by my noble friend would restrict this power to circumstances involving the commission of an offence under the Bill.

As the Committee has considered the various clauses it will have become obvious to noble Lords that the Bill seeks to ensure compliance with the data protection principles—the "Ten Commandments" referred to by my noble and learned friend—through a combination of criminal offences and administrative sanctions. Thus the provisions of Clause 5 ensure that data users, and persons carrying on a computer bureau, must be registered. Clauses 7, 10, 11 and 12 enable the registrar to take action where he is satisfied that a breach of the principles has occurred, or is likely to occur. In this way contraventions of the data protection principles, which may in themselves be very serious, need not necessarily involve the commission of a criminal offence. This approach has been dictated by the general nature of the eight principles for data protection, which precluded the Government from proposing that data users and persons carrying on computer bureaux be placed under a justiciable duty to comply with the principles.

But these mechanisms for ensuring compliance with the principles can function only where the registrar has adequate information. In the case of the vast majority of operators adequate information will be given voluntarily, and we foresee the registrar working very largely through persuasion. It would be unwise to assume, however, that there will never be an exception to this rule. There may be some who simply seek to avoid any involvement in the registration process and refuse to supply the registrar with any information. There may be others who, once registered, will refuse to co-operate with the registrar. Where in such circumstances the registrar decides that he must resort to a prosecution, or to the exercise of his formal notice powers, he must be able to obtain sufficient information to pursue the matter. That ultimately is the function of Clause 16. Given the reliance of the scheme upon administrative sanctions alongside criminal offences, it is equally important that the power of entry, and so on, should apply when contraventions of the principles are in question, as it is in the case of suspected breaches of the criminal law.

Thus, if we are to ensure that the proposed legislation on data protection cannot simply be flouted, this power must be retained in relation to both criminal offences and contraventions of the principles. The alternative would be to make a contravention of the principles a direct criminal offence—and the most rapid consideration of the principles reveals the awful 425 consequences that that would have, both for data users and for the criminal courts. I would therefore hope that my noble friend will withdraw this amendment.

§ Lord Airedale

Are we breaking new ground here? Are there precedents for power being sought to obtain a warrant from a magistrate to enter premises because there is suspicion that conduct has occurred falling short of the commission of an offence in those premises? It may well be that there are precedents for doing what is now sought, but it might be that we are breaking new ground. If we are, we ought to think about it rather carefully.

§ Lord Glenarthur

We are not in fact breaking new ground. There are numerous examples of existing powers of entry conferred on public officials and the police, some, not dependent on obtaining a warrant from a justice of the peace, which are not limited to cases involving criminal offences. I can give examples. One is Schedule 4 paragraph 24(1) to the Gas Act 1972 which authorises entry into premises served by gas to inspect meters fitted, et cetera; and there are others under the Electric Lighting Act and Section 159 of the Housing Act 1959.

§ Lord Avebury

It says that there has to be evidence that an offence has been committed, or that any of the principles have been contravened. But supposing that the data user merely declines to provide the registrar with any information on which to base a suspicion that either an offence has been committed or any of the related principles have been contravened? The registrar is not in a position to issue an enforcement notice, or to bring into play any of the other powers that he has under Clauses 10 and 11.

It seems to me that something of an impasse might have been reached then, because although the registrar might suspect that offences were being committed behind the cloak of secrecy which the data user had erected, he would never be able to get enough information either to issue an enforcement notice or to ask for a warrant to be issued. I am wondering, while we are still on this clause, whether the Minister can explain to me how the registrar would proceed in those circumstances.

§ Lord Glenarthur

To be honest, I did not hear all that the noble Lord said. I should like to read in Hansard in due course the points that he made. I could talk further about examples of contraventions of principle not involving criminal offences, but I am not entirely sure that that was the point that the noble Lord was making. Would it be better if I were to study what he said, and if there is any material substance in it I will perhaps take it up later? I am not satisfied that on what he said I need necessarily reconsider what I said earlier.

§ Lord Mottistone

I thank my noble friend for his reply, which was very full, and I shall have pleasure in reading it and seeing whether anything further needs to be said at a later stage. In the meantime, I beg leave to withdraw the amendment.

§ Lord Mishcon

While the noble Lord is posing questions without limit, may I ask him what, in his view, would happen if somebody was permanently on night shift and his premises could not be searched between six in the evening and six in the morning?

§ Lord Swinfen

While I am not a computer expert, I understand that a number of computers can be given 427 instructions by telephone. Someone who suspected that his premises would be raided between, say, 6 a.m. and 6 p.m. could telephone at 3 a.m. and wipe his computer clean, so no evidence would be left on it to be found by those investigating. That must be the whole object, where necessary, of allowing an inspection to be made at what would normally be an unreasonable hour.

§ Lord Wigoder

My amendment would not delete the words: unless … there are grounds for suspecting that the evidence in question would not be found if it were so executed". I would hope, therefore, that the point raised by the noble Lord would be dealt with by that.

§ Lord Glenarthur

The Committee will wish to consider the proposed powers of entry under Clause 16 to ensure that appropriate safeguards are built in. As your Lordships would expect, the Government have borne that need in mind in preparing the clause. The power of entry, search, inspection and seizure is available only where a warrant has been issued by a justice of the peace and, normally, only where there has been a previous request for, and a refusal of, access. Another limitation (to which the amendment relates) is that a warrant should be exercised at a reasonable hour unless that might result in the evidence sought not being found. Under the amendment, that requirement would be altered, in the way the noble Lord described, so that a warrant would not normally be executed between 6 p.m. and 6 a.m.

I think it could be unfortunate to lose the flexibility in the term "reasonable hour" for the rigidity of specified hours, particularly in the context of computer facilities, which may run for 24 hours a day, as described admirably by my noble friend Lord Swinfen and by the noble Lord, Lord Mishcon, in another context. To take an example, I understand that, for sound operational reasons, computer users often perform different tasks on their equipment at different times. Thus, something like a pay-roll task can be performed at night if it does not require the presence of the full staff. Obviously, where the evidence sought relates to such a task, it may be more appropriate for the warrant to be executed at night. Indeed, it might cause significant disruption to the data user if the warrant had to be executed at a time of 428 day when the Registrar knew full well that a quite different operation, one with which he was not concerned, was being performed on the computer.

That will not always be the case, and there will be occasions when the evidence will be of a more permanent nature, and then the registrar will be able to execute the warrant during day time. The circumstances in which warrants may need to be executed dictate that we do not prevent the registrar fitting the time of execution to the case he confronts, conscious, of course, that a data user can seek a remedy in the courts if it is considered that the time of execution has not been reasonable. The key point is that it is impossible to specify what "reasonable" is for all users, and it would be for the courts to decide. I hope that will satisfy the noble Lord, and that "reasonable hour" might be considered an appropriate phrase regarding any further discussion of the amendment.

§ Lord Avebury

The Minister said that a request for, and refusal of, access will have to have occurred before a warrant is issued under Clause 16. Can he point to the words in the Bill which have that effect?

§ Lord Glenarthur

I am advised that Clause 16(2) contains the words which apply in this particular case.

§ Lord Wigoder

I hope that the noble Lord the Minister will forgive me if I say that I do not think that he has passed his examination paper. Certainly he has made no attempt to answer the questions that I raised. But I see the problems that arise here. I should like to reflect on the matter, but a possible solution might be to give to the person who authorises the issue of the warrant the power to state within what hours it may be executed, so that he would then have direct evidence as to the appropriate hours in relation to the particular user. I should like to consider that possibility before the next stage. I still feel very strongly that to leave the clause in its present form will give rise to very great trouble in future, and I should find it no consolation to say, "I told you so". For the moment, I beg leave to withdraw the amendment.

§ Lord Wigoder

I wonder whether it would be convenient to your Lordships' Committee if at this stage I were to speak to Amendment No. 107, because it deals with substantially the same issue, but by means of a slightly different wording. It imposes upon a person executing a warrant a duty of care not to impede the owner of the premises or the data user in the carrying on of his lawful business. I perhaps marginally prefer this amendment to Amendment No. 106, but I should very happily settle for either amendment, depending upon which one the noble Lord the Minister thought fit to concede.

§ Lord Glenarthur

It may help to shorten our consideration of Amendment No. 105 if I indicate the Government's attitude at an early stage. I have earlier described the powers that Clause 16 of the Bill introduces. Clause 16(6) requires that where a warrant has been executed, it should be endorsed stating whether any documents or other material have been seized in pursuance of it. This is designed to give the issuing authority information on the use made of warrants issued by it, and follows a recommendation of the Royal Commission on Criminal Procedure. The amendment moved by my noble friend Lord Mottistone would extend this requirement so that where such a warrant had been executed, the endorsement to be made would also have to include a statement as to whether data equipment had been inspected, examined, operated, or tested in pursuance of the warrant.

The Government are certainly prepared to look again at this provision to see whether it would be appropriate to broaden the requirement on those executing warrants, so as to provide more information for the issuing authority. I trust that my noble friend will understand that it is difficult for me to go further at this stage, and I hope that in the light of my undertaking he will agree not to press the amendment.

If my noble friend would like me to continue with Amendment No. 106, we have described the safeguards in Clause 16 at length. I should like to emphasise that damage will, in normal circumstances, become a possibility only where the person responsible for the premises has failed to fulfil his obligations under the Bill. In most circumstances the registrar will never have to resort to his formal powers and Clause 16 will not be needed. Where he must take action, he will in most cases first have to request access to the premises in question, and will only be able to 430 secure a warrant where this is unreasonably refused. Where a warrant is issued, it will usually be executed at a reasonable time and only reasonable force may be used. By virtue of Clause 16(8), it is an offence for any person to obstruct another person executing a warrant or to fail without reasonable excuse to give such assistance as he may reasonably require. Thus, force will normally be necessary only where the occupier fails in his obligations under Clause 16(8).

Once entry has been obtained, it is unlikely that the registrar will have to operate the equipment directly and it would be easier for both parties to request that the occupier do so. The registrar is entitled to seek reasonable assistance by virtue of Clause 16(8). Of course, there is provision in Clause 16(2) for a warrant to be issued without there having been a prior request for access, but only where the justice is satisfied that the case is one of urgency or the giving of notice would defeat the object of entry. Similarly, a warrant may be extended outside reasonable hours where this is necessary to obtain the evidence sought. Yet these powers are limited to extreme circumstances. Thus, I would submit that even where as a last resort the power of entry comes into use it will in almost all cases he exercised in such a way that no damage will result. The Bill follows established procedures in these matters. I hope that with these reassurances and the explanation of how we understand Clause 16 would work in practice, my noble friend Lord Mottistone will withdraw his amendment.

§ Lord Mottistone

If I can deal with Amendments No. 105 and No. 106 and then No. 107 will be tackled later, I accept my noble friend's remarks about No. 105, that he will be looking at that; and I am grateful for that. With regard to Amendment No. 106, I will look at what he has said about that. I am not sure that I am really satisfied and will probably come back on Report. With that, I beg leave to withdraw the Amendment.

§ Lord Glenarthur

The amendment of the noble Lord, Lord Wigoder, would go rather beyond the detail which I described and which was contained in Lord Mottistone's earlier amendment. It will provide that where a warrant was executed, the inspection, examination, operating and testing of any data equipment or data material would have to be carried out in a way which would not impede the data user's business. Thus, it would seem that wherever any impediment, however small, was caused, the inspection, examination or operation of any data equipment would be rendered unlawful.

While the Government have sought to safeguard the occupier as far as is practicable in this clause, to accept 431 the noble Lord's amendment would take us over the brink. We must remember that a warrant will be used only where reasonable demands for co-operation have been refused. Ther occupier of premises is quite likely to be ill-intentioned towards the registrar; and where computers are concerned, it could be quite easy for the user to ensure that in examining or testing the equipment some impediment, perhaps of a minor nature, was unavoidable.

Where it would not be possible to execute the warrant without impeding the occupier's business in some way, the registrar cannot be prevented from using the power that the warrant confers. The whole purpose behind the clause will otherwise be defeated. In the extreme case—and that is what we are talking about—the registrar must have adequate powers to obtain evidence where all the other measures have failed.

In addition to this fundamental objection to the amendment, there are a number of more detailed flaws. For example, the amendment deals only with data users and not with persons carrying on a computer bureaux, and it refers to the inspection, examination, operation and testing of data material, which is a phrase not found anywhere else in Clause 16. I hope that I need go on no further and that the noble Lord will withdraw his amendment.

§ Lord Swinfen

When the Minister considers these three amendments, would he consider the methods in which computers can give their information? On Amendment No. 105 there is reference to whether any data equipment was inspected, examined, operated or tested. There is also the question of whether anything was removed. A print-out can of course be removed, but information given on a visual display unit cannot be taken away for examination unless photographed. There is also information given out in some form of sound or another modern method. I should be grateful if the Minister would consider this when looking into the matter further.

§ Lord Glenarthur

I shall certainly read what my noble friend has said. I did not undertake to consider Amendment No. 107. I undertook to consider Amendment No. 105.

§ Lord Wigoder

I am grateful to the noble Lord for his comments. I beg leave to withdraw the amendment.

§ Lord Glenarthur

I am grateful to my noble friend for raising this point. Legal professional privilege is an important principle in British law. It is vital for the integrity of the judicial process to protect the confidences that pass between an individual and his legal adviser. The courts recognise this, and cannot require such confidences to be exposed. In Clause 32(2) the Government recognise it also by exempting data covered by legal professional privilege from the subject access provisions, thus preventing third parties from gaining access to data concerning them which has been passed in confidence by a client to his legal adviser.

The Bill places no restrictions on the data that the registrar can inspect or seize when in the interests of data subjects, and as a last resort, he obtains a warrant to gain access to data which, for example, he suspects are contravening the principles. It is a complicated and difficult area. If the registrar cannot gain access to data under the entry powers given by Clause 16, he may be unable fully to supervise compliance with the principles, and that is why Clause 16, as drafted, contains no restrictions of this kind. On the other hand, I recognise the force of my noble friend's argument that the normal practice in law is to avoid provisions that allow any third party to see information to which legal professional privilege attaches.

We wish to reflect on the dilemma that my noble friend has uncovered, and, in particular, to have another look at this point in the light of the comparable provisions in the Police and Criminal Evidence Bill. I cannot commit the Government at this stage; but I ask my noble friend to agree that we should have time for reflection and, therefore, not to press his amendment.

§ Lord Mishcon

I wonder whether the Committee would allow me to say just one word. This, again, is one of the amendments which were recommended by the Law Society to which I referred earlier. I am most grateful to the noble Lord for his promise to consider this point, which is one of great concern to the legal profession. I am obliged to him.

§ Lord Mottistone

I am deeply grateful to my noble friend for undertaking to look at this, and with that I beg leave to withdraw my amendment.

§ Lord Mishcon

Before the noble Lord replies, would he kindly take it that I am saying precisely what I said in regard to the last amendment?

§ Lord Glenarthur

Following our discussion of the amendment of my noble friend to Clause 16, the reason for this amendment to Clause 17 is quite clear, I think. On the previous clause the wish was to ensure that no third party, not even the registrar under his powers of entry, should be entitled to see information to which legal professional privilege attaches. On this clause it is the desire to ensure that solicitors and barristers who will be the holders of such information are under no obligation to show the registrar this information in the context of the normal discharge of his functions. But we believe that the two situations are different. We have to accept that Clause 16 as drafted might entitle the registrar to inspect and seize documents and material attracting legal professional privilege. It is on that basis that we have undertaken to look at this further.

However, Clause 17 gives no explicit entitlement to the registrar and places no obligation on data users who hold privileged information. Clause 71(1) simply frees users from the restrictions that might otherwise prevent their allowing the registrar to see information that they were quite willing for him to see. The clause goes on to make sure that, having seen potentially confidential information, the registrar cannot dislose it further than is necessary to carry out his function.

Clause 17(1) permits users to be free agents in deciding whether to give information to the registrar or to withhold it from him. It certainly does not compel a lawyer who holds information to which legal professional privilege attaches to disclose that information to anybody. He is free to decide. That is the difference between this clause and Clause 16; and that is why, particularly since we have undertaken to look at the dilemma which is contained in Clause 16, I hope my noble friend will not press this amendment to Clause 17.

§ Lord Mottistone

I have noted what my noble friend says, and it sounds sensible to me. I beg leave to withdraw the amendment.

§ Lord Glenarthur

This amendment would provide an entitlement for what it terms "the relevant data subject" to be heard by any court considering ordering the forfeiture, destruction or erasure of data material, in accordance with Clause 19(4). My noble friend has explained why he believes that such a provision is necessary, but I am afraid that I neither see a case for such a provision, nor do I believe that it would be workable in the form proposed. The intention of the amendment appears to be to ensure that the interests of data subjects are not harmed by the forfeiture, destruction or erasure of data relevant to them, but I cannot believe that any court deciding to take this action would not have had the interests of data subjects very firmly in mind before deciding to do so. Indeed, the whole purpose of subsection (4) is to enable the court to conclude that harm could be done if the data in question were left unaltered in the hands of the data user, and that it would be in the interests of those affected for an order under this subsection to be made.

It seems to me inconceivable that the court would fail to consider whether the data subjects had an interest in seeing that those data were preserved unchanged. Indeed, if the court were in any doubt about the matter, it would be able to consult the registrar, who, other than in Scotland, is likely to have been responsible for bringing the prosecution. If, on the other hand, what is intended is to provide a counter-balancing voice to that of anyone claiming to have an interest in the preservation of the data material—and this is certainly something which is raised by the amendment—then I am sure that the court will be able to come to an appropriate conclusion without bringing in the data subject at this stage; and, again, it will have available the expertise of the registrar where necessary.

Furthermore, I am bound to point out that the amendment would be unworkable as it stands. It refers to "the relevant data subject", but in many of the cases that we are discussing there will be no individual data subject. Among the provisions of the Bill to which this subsection relates is one which makes the unregistered use of personal data an offence. In that instance, for example, there might be millions of data subjects, all of whom had an equal interest in the data in question. Are we to require the court to inform all of them of the intention to destroy their data, and to give each one of them the opportunity to be heard before the court? I am afraid that it is not possible to produce a workable formula like that, and I hope my noble friend will agree, on the basis of that information, to withdraw his amendment.

§ Lord Mottistone

I listened with as much care as I could to my noble friend's remarks, which appeared to have a measure of common sense within them. I shall read them with great interest and may come back, but probably will not. I beg leave to withdraw the amendment.

§ Lord Wigoder

May I ask the noble Lord, Lord Mottistone, whether he was moving Amendments Nos. 109ZD and 109ZE together?

§ Lord Mottistone

No, I was moving Amendment No. 109ZB and speaking to No. 109ZC, but not No. 109ZE.

§ Lord Glenarthur

I thank my noble friend Lord Mottistone for raising this question as to the registration of companies and groups of companies, but I only wish that we could have seen it earlier because it raises complicated issues of both a legal and an administrative nature. These issues need very careful study. As we have already made clear, the Government have sought to ensure that the process of registration should be as simple as possible in order to avoid creating an undue burden on users.

The amendment proposed by my noble friend seeks further to simplify the process of registration in the case of interconnected groups of companies. Unfortunately, we were not made aware until yesterday evening that this amendment was to be moved, and as noble Lords will appreciate it has not been possible since then to give adequate consideration to the complex ramifications of the suggested change. I really think it would be rash of me to pass judgment on the amendment without the benefit of having thought it through fully. Having said that, the amendment deserves consideration. Therefore, I should like to ask my noble friend to withdraw it so that we can consider it further and, if the implications are acceptable, return to it at a later stage.

§ Lord Mottistone

I am deeply grateful to my noble friend for once again having smoothed out the muddle, and I apologise once again for the 436 trouble caused. I beg leave to withdraw Amendment No. 109ZB.

§ Lord Elton

It is one of the paradoxes of legislation and many other aspects of life that it takes much longer to write a short speech than it does to write a long one. In order to satisfy your Lordships' anticipations at this hour of the night. I do not propose to deliver the whole of the speech that I had prepared to deal with this amendment.

437 My noble friend prefaces many of his amendments with the name of some august body or another that he has had put in his hand. I suggest that whereas we have to debate everything that is on the table before us, he does not have to take everything into his hand. Perhaps this is something of which the august bodies in question might take note when providing material for occasions such as this, because if this is to be merely a canter round the course before we gallop or perhaps walk round it again at Report, it will be a pity to have done it twice. I say that by way of apology to your Lordships because there may be less than the fluent coherence to which your Lordships are, I hope, accustomed in my deliveries from this Box.

The basic assumption underlying the Bill's structure is that the eight principles for data protection, drawn from the Council of Europe Convention, are not sufficiently precise to be directly justiciable before the courts. Thus the registrar has been given powers to take action where the principles are contravened and these powers are subject to a right of appeal to a tribunal specifically appointed for this purpose. To elaborate, Clause 10 empowers the registrar to issue an enforcement notice where he is satisfied that a registered person has contravened or is contravening any of the data protection principles. Such a notice would specify steps to be taken by a given date, in order to rectify the contravention, and failure to comply with such a notice would be an offence under Clause 10(8). Clause 12 permits the registrar to issue a transfer prohibition notice prohibiting the transfer of personal data abroad, either absolutely, or pending the taking of special steps, where he is satisfied that the transfer would contravene or lead to a contravention of the data protection principles. Again, failure to comply with a notice would be an offence under Clause 12(10).

Under Clause 13 a data user or computer bureau in receipt of a notice has a right of appeal to the Data Protection Tribunal, and the notice powers have been structured so as to ensure that no notice can take effect before there has been the opportunity to take the issues to appeal. Thus data users and computer bureaux will have the opportunity to challenge a decision by the registrar to issue a notice, and the requirements contained in that notice, before an expert body equipped with relevant knowledge and expertise in the data processing field. Where, however, an appeal has failed because the tribunal has upheld the registrar's decision, or no appeal has been brought, and the person concerned still fails to comply with the requirement of the notice, the registrar could bring a prosecution.

Under the Bill as drafted the question before the court in such a case would be the simple question of fact, whether the notice had been contravened. Thus the question in a prosecution under Clause 10(8) might be the direct one; whether the additional security measures specified in a notice had been implemented, or arrangements had been made for the provision of subject access. In the case of Clause 12 a similar question could arise where say the notice had required the taking of appropriate security measures prior to the transfer of the personal data in question. It would not be open to the recipient of the notice to question the reasonableness of it in the course of a 438 prosecution for failure to comply with it. To do so would be to reopen issues appropriately heard on appeal, before the specialist tribunal, in the far less suitable environment of the criminal courts.

I would therefore submit that the Bill already provides adequate opportunity for the recipient of a notice to challenge its reasonableness. Where such notice is reasonable it is right, as recognised by this amendment, that the data user or computer bureau concerned should be under a positive duty to comply with it. The difficulty with the amendment proposed by my noble friend is that it would allow the recipient of such a notice to reopen the whole question of its reasonableness before the criminal courts. In the light of these arguments—which I really do hope satisfy my noble friend so that we do not have to go over them again at Report stage—I hope that my noble friend will withdraw his amendment.

§ Lord Elwyn-Jones

It is really a matter of protest that high technicalities such as these were put down yesterday. We have a great reputation in this House as lawyers and as Members of this honourable House, to take seriously the task of looking at legislation. This sort of behaviour makes it impossible. I hope that the noble Lord takes due note of that. I was referring, of course, to the noble Lord, Lord Mottistone.

§ Lord Elton

I can stop shrinking in my Bench and indeed give a sympathetic nod in the direction of the noble and learned Lord.

§ Lord Mottistone

I was aware of where the noble and learned Lord was directing his remarks. I thank my noble friend for his full and lengthy explanation, which I shall read with great care and which I am sure will be satisfying when I do so. I beg leave to withdraw my amendment.

§ Lord Denham

I am advised that it would be rash at this hour to venture into the ground of Clause 21, and so therefore I beg to move that the House do now resume.

§ Lord Denham

My Lords, I beg to move that the House do now adjourn.