Data Protection Bill [H.L.]

§ Lord Avebury

The noble and learned Lord reminded us on a previous amendment that the convention permitted derogation from the general principles which are set out now in Schedule 1 for certain purposes. These were, as he reminded us, the protection of state security, public safety, the monetary interests of the state or the suppression of criminal offences. On the previous amendment the noble Lord pointed out that the assessment and the collection of tax came squarely within the phrase "the monetary interests of the state". For that reason it was properly to be found within Clause 28. Will the noble Lord tell us which of these purposes includes immigration control? As I see it this is something which has crept into the Bill after the White Paper and has no place in the legislation. Indeed, it may be likely to bring us into conflict with the provisions of the convention.

I wonder whether the noble Lord can explain at what stage the question of immigration control was brought within the terms of the Bill, and whether the Government already had it in mind at the time the White Paper was published in April 1982. It certainly did not appear from the discussions that were held at the time, and most people think that if we are to grant exemptions of the type we have in Clause 28, they should be limited to the barest possible minimum if 697 people are to have confidence in the way the Bill will be applied and, in particular, to the powers which the Government are proposing to confer on themselves to exempt themselves from both the subject access provisions and the non-disclosure provisions that apply to everyone else. Although we are discussing the subject access provisions in subsection (1), it is very difficult, as we found on the previous amendment, to separate them from the non-disclosure provisions which rely on subsection (1) and apply only to the four purposes which are set out there.

The reason why people are anxious about the control of immigration provisions in the Bill is not so much the subject access—although, there again, it is worth pointing out that because of the provisions in subsection (1)(a) personal data held for the prevention or detection of crime is exempt from subject access provisions—but, if we are talking about people who have broken the law in immigration (the illegal immigrants, for example, or the over-stayers) they would already be dealt with under subsection (1)(a) and there is no reason to have a separate heading for the control of immigration.

One has to ask what kinds of record will be kept that do not relate to the commission of criminal offences, but have some bearing on control of immigration. If I may return to the question which I asked the noble Lord, Lord Elton, yesterday, on which he was good enough to give me a Written Answer in time for this debate, I had asked him about the Prime 550 computer which has been installed at Harmondsworth for the purposes of the Immigration Service Intelligence Unit. I asked about the criteria to be followed in deciding to include in the computer somebody's name and other details; what precautions were taken to ensure that persons who were not suspected of any breach of the immigration laws or rules were recorded there; how many names were to be stored in the computer, and so on?

The noble Lord was good enough to tell me that not only were they going to record the names and other details of persons falling into certain clearly-defined categories—those were the persons refused leave to enter the United Kingdom, refused entry clearance for the purposes of entering the United Kingdom and, in certain cases, persons who had been deported from the United Kingdom—but also they may be included there because they are considered to be involved in abuse or attempted abuse of the immigration laws.

That raises a whole host of questions. First, who considers those persons to have been involved in abuse or attempted abuse of the immigration laws? Is it that persons' names will be included there simply on the unsupported word of an immigration officer, an entry certificate officer or a police officer? What checks are there to be on the reliability of the information so recorded? We have already discussed on Clause 22 the question of second-hand information getting into a computer and the responsibility of the data user for making checks on that information, his liability to proceedings for damages in cases where such information was incorrect. It emerged very clearly that wrong information may get into a computer and that the person who is damaged by it may not have any cause for proceedings because the information was taken in good faith by the data user from a third party.

698 So here we have information about persons considered to be involved in abuse, or attempted abuse, of the immigration laws coming into the Immigration Service Intelligence Unit from third parties, and, very likely, inaccurate information. But where the subject does succeed in discovering that the information recorded about him is wrong he will have no right of recompense through the courts.

It is inevitable that a great deal of incorrect information will get into the computer. As the noble Lord is aware from correspondence which honourable Members and noble Lords have had with the Minister who deals with immigration, letters to which he sometimes has the task of replying in the absence of his honourable friend, there are mistakes. These mistakes can be of a very serious nature, such as to affect the rights of the individual concerned. In the case of this file we are dealing, according to the Minister, with no fewer than 300,000 names. This is a very large number of persons. Only a tiny fraction can be those suspected of contravening the law. As we have already discovered, they are dealt with in subseciton (1)(a). The vast majority of those 300,000 persons must be people who are alleged to be involved in abuse, or attempted abuse, as the Minister described it, of the immigration laws.

It seems to me that we have very little safeguard against people being included in the file for reasons which the public, if they could know of them, would consider to be grossly unsatisfactory. As one example, I mention the possibility that people's names will be included in this file if they have been swept up in one of the so-called passport raids which have been conducted by the Immigration Service Intelligence Unit and the police, acting jointly over the last few years—cases in which, acting on information received, the police and the immigration officers descend on a place of employment, sweep up every single person who is found on the premises and take them into custody, on the basis that a number of them (maybe a small fraction, maybe a larger number) are alleged to be either illegal entrants or overstayers. If subsequently the police find that the majority of those persons are either settled in the United Kingdom or are patrial citizens of the United Kingdom, how will they be sure that their names are not put on the computer?

How can a person who has been taken into custody and found to be completely blameless, and that the only way in which he is connected with illegal immigration or overstaying is that he happened to be a workmate of someone who was an alleged illegal entrant or overstayer, be certain that his name is not recorded on the computer and that he will not suffer damage in consequence? Because the subject access provisions apply to these records there will be no way, other than through the intervention of his Member of Parliament or of a noble Lord, by which he can seek assurances from the Home Office that wrong information is not recorded against him or that his name has not been included in a file which may prejudice him in other respects.

So it is not surprising to find that organisations concerned with civil liberties, such as, for example, the National Council for Civil Liberties and the Joint Council for the Welfare of Immigrants, have protested vigorously about those parts of Clause 28 which apply 699 to the control of immigration. Unless we make amendments of the kind which have been proposed, we are going to sow grave alarm not only among legitimate immigrants to this country but also among the vast majority of people belonging to ethnic minorities who live here, who were actually born in this country or who have been settled here for many years. The kinds or people who will fall under suspicion, to be recorded among the 300,000 names on the computer, are, let us face it, members of the ethnic minorities: the black people living among us. Although they may be perfectly blameless, they will be subject to suspicion and will not even know that their names are there recorded. So I beg the Minister and the Government to have second thoughts about this obnoxious provision and to delete control of immigration from Clause 28.

§ Lord Hatch of Lusby

In view of the debate we are having tonight, I intend to follow the lead of my noble and learned friend Lord Elwyn-Jones in holding back the main thrust of the argument on this amendment until the House resumes. However. I should like to probe the mind of the Government and of the Minister who is to reply so that, before we come to the Report stage, we may be more clear as to where the Government stand on this crucial issue.

I should like to do two other things. First, I should like to appeal directly to the noble and learned Lord the Lord Chancellor. During his opening speech in the Second Reading debate the noble and learned Lord very properly, and at times quite movingly, stressed the importance of the principles which lie behind the Bill, which can be read in Part I of Schedule 1 on page 28 of the Bill. I pick out one principle only upon which to base my appeal for further thought to be given to the clause which we are discussing. Principle 3 states: Personal data held for any purpose or purposes shall not be used or disclosed in any manner incompatible with that purpose or those purposes". May I suggest that it would be of value to the Committee, and at a later stage to the House, if the noble and learned Lord could say how he equates that principle with Clause 28(1)(d), upon which this amendment is based.

Secondly, I should like to ask noble Lords opposite and those on the Cross-Benches to give serious attention between now and the Report stage to the social character of the legislation which we wish to be embodied in the law of this country. The inclusion of the control of immigration with the offences of prevention or detection of crime, the apprehension or prosecution of offenders and, as we have heard tonight from the noble Lord the Minister, tax fraud, not only seems to be unnecessary, but is surely at least in danger of being gratuitously offensive to a large section of the British people—that section which is commonly known as the ethnic minorities: the blacks, the browns and the yellows. I would appeal to noble Lords opposite—indeed, to noble Lords on all sides of the House—to ask themselves, between now and Report stage, whether we wish to risk causing that kind of offence, of suggesting that the control of immigration is in the same category as the offences I have just listed. I hope, and indeed I believe, that there are many noble 700 Lords of all parties and of more in this Committee who would regret that type of impression being given by the Committee.

When he comes to reply to this amendment, perhaps the noble Lord the Minister can give us some details—as the noble Lord, Lord Avebury, has asked—of the information that is to be collected at the illegal immigrants unit at Harmondsworth where a computer has been installed. In what way is that data relevant to what the Bill calls, the control of immigration"? I think everybody will agree that the phrase, the control of immigration". is a very loose phrase. Without professing to speak as a lawyer, I would have thought that the lawyers in this Committee would have at least been concerned that the phrase itself as it stands was too loose to be allowed to go into law. What is meant by, the control of immigration"? How does it relate to the collection of personal data, and how is it related to the exemption clause here? How is it related to the necessity to prevent the individuals concerned in this vague phrase, the control of immigration", from seeing their own data? Why is it that this phrase should be applied in such a way that it is to be used in order to remove the protection which this Bill purports to give, and is intended to give, to the people of this country so far as the keeping of their personal information is concerned?

My noble and learned friend Lord Elwyn-Jones has already pointed out that the Lindop Committee has described the conception of including this issue as a palpable fraud on the public. The noble Lord, Lord Avebury, stated that it was not included in the White Paper. Again, my noble and learned friend pointed out that it is in this Bill in a totally different and contrary form to that in which it is included in the Bill before another place, the Police and Criminal Evidence Bill. Where, then, does it come from? Who has thought up the phrase, the control of immigration"? Who has decided that this phrase should go into the Bill as one of the exceptions from the protection that the Bill gives to other British citizens? Why are we risking identifying in this peculiarly special way a section of the British public which certainly most people will see to be mainly composed of people from the ethnic minorities?

If the Minister can enlighten us on these issues, and if the noble and learned Lord the Lord Chancellor can apply his mind to the relationship between the principles which he stressed in his Second Reading speech and the phrase in this clause, and if noble Lords on all sides of the Committee will think seriously about the social effects of this phrase before we reach Report stage, I believe that we can have a better and better-informed discussion when the House resumes and the Report stage of this Bill is reached.

§ Lord Elton

It is not long since we were discussing the issues of immigration across this very table. Only 701 last night we had an extended and interesting debate in which I advanced the Government's position and almost everybody else assailed it. As a sort of reprise of that, I have to remind your Lordships that there is general agreement among all of us that there has to be control of immigration into this country. The noble Lord, Lord Hatch of Lusby, implied by his speech that this was not necessary; perhaps he intended to imply only that it was not necessary to introduce that concept into this Bill. In either case, I believe we are agreed that in order to preserve the character of this country so that it can evolve as a multi-racial country, it is necessary to limit the number of people who come here from other countries.

§ Lord Hatch of Lusby

Does the Minister wish me to answer that question now?

§ Lord Elton

It was not a question and it does not require an answer, unless the noble Lord believes there should be no control of immigration into this country. I am happy to give way to hear him say that, because it will make his position very clear.

§ Lord Hatch of Lusby

No, the noble Lord the Minister assumed that I believe there should be no control of immigration into this country. I have never assumed that. What concerns me is that the whole question of immigration into this country—and I know that the Minister is not responsible for this—and the phrase, the control of immigration", has come to be associated with the immigration of people who, for want of a better term, are termed members of the New Commonwealth. That is what I regret.

The noble Lord was going on to suggest that the control of immigration was necessary for race relations. That shows he assumes that immigration has something to do with race. I believe that immigration needs to be controlled irrespective of colour, race or creed, only because these islands can sustain only so many people. That has nothing whatsoever to do with the colour of the immigrants' skins.

§ Lord Elton

I am obliged to the noble Lord for clarifying the position. He has certainly made clear the fact that he accepts that there should be control of immigration and that it should apply equally to people of all colours. My mother, as it happens, was a Norwegian immigrant and I am very happy to agree with the noble Lord in this respect.

Within the present context, a primary objective of immigration control since it was introduced into this country has been to protect the domestic labour market, and hence the jobs of those in that market. It is in the interests of persons in the domestic labour market that control should be effective, regardless of what ethnic origin they may have. It is also an important objective of immigration control—certainly over the past 20 years or so—to control the rate of entry of persons into the United Kingdom having regard to the strains on our multi-racial society and the continuing pressure to come here. I make no bones about that. Ours is a multi-racial society and it is foolish to say that there are not strains within that 702 community which result from its racial composition. A real strain can result from uncontrolled immigration on all sorts of resources to which people already in this country—whatever their ethnic description may be—have an existing right. That includes almost all the services one cares to name. I believe that answers the question which the noble Lord, Lord Avebury, asked me, as to how this Bill sits with the provisions of the convention.

Article 9.2.b. specifically provides for derogation from the convention's provisions where necessary in the interests of protecting the rights and freedoms of others. I submit to your Lordships that that applies to the rights and freedoms of those of every colour, in every community in this country, who are already settled here, and it is in their interests that we should control immigration. An ineffective control arouses fears which can be played on by unscrupulous people.

Having cleared that, I should now like to look at what this subsection and this paragraph do. What they do not do is to affect how immigration is controlled, nor does it have any racist undertones, as the noble Lord, Lord Hatch, has suggested. I think we need to be quite clear that the immigration rules specifically state that, immigration officers will carry out their duties without regard to the race, colour or religion of people seeking to enter the United Kingdom". and that, with regard to control after entry, the powers conferred by the Act are to be exercised without regard to a person's race, colour or religion". Paragraph (d) simply recognises that immigration control does operate, that Parliament is clear in its view that it should operate, and that in those circumstances the provisions of this Bill should not reduce the efficiency with which it operates. That is why paragraph (d) is there—to ensure that subject access to immigration data held on computer does not impair the effective control of immigration as it has been approved by Parliament. That does not exclude all information on the computer; it only excludes that which cannot be revealed without impeding effective control.

The noble Lord, Lord Hatch, asked how all this sat with data protection principle No. 3 on page 28. Here I think is the answer. If your Lordships will hear with me, I will quote: Personal data held for any purpose or purposes shall not be used or disclosed in any manner incompatible with that purpose of those purposes". The purpose here is the control of immigration, and the only purpose of paragraph (d) is to see that where disclosure would be incompatible with that purpose it should not take place. So it sits squarely with that principle and is not in breach of it.

It will not surprise your Lordships that the vast majority of the information held by the immigration authorities is factual and routine. It is everyday straightforward information about everyday straightforward things such as names, nationalities, sex, date of birth, dates of arrival, lengths and conditions of stay of persons subject to immigration control. All this is essential raw material for the purposes of immigration control. We see no difficulty at all in making data of this kind when held on computer available to data subjects when they request access to it.

703 On the other hand, there is a limited amount of information held for quite different purposes; those are to prevent or detect crime or to apprehend or prosecute offenders. This may relate to international criminals, to drug smugglers or to those suspected of committing offences under the immigration legislation. Some of this is held on computer because it is important for the immigration authorities to have speedy access to it. It is certainly true, and I readily agree, that, where subject access to such data would prejudice any of those purposes I have referred to, exemption can already be claimed under paragraphs (a) or (b). But that is not what we are here concerned about. What we are concerned about are those data held on computer which are neither what I have described, the straightforward everyday sort, but which do not fall into the category of crime either.

These data relate to people who may not qualify for leave to enter or remain in the United Kingdom under the immigration rules approved by Parliament but who are not necessarily committing an actual criminal offence. That category has been considerably enlarged by the case of Borg, which the noble Lord, Lord Avebury, will recall, which made overstaying not a criminal offence except in the 24 hours when it first occurs. So this information will not qualify for exemption under paragraphs (a) or (b); yet, access to it by the subject could prejudice immigration control by helping the subject to evade those controls. In those circumstances, and they will be very limited, paragraph (d) permits exemption from access.

Perhaps it would help if I said a little more about what this category of information actually consists of. Perhaps I may give an example. Many countries do not follow our rigid Christian/surname formula and anybody travelling in the East for the first time will know exactly what I mean. For many foreign nationals it is therefore a fairly easy matter to obtain documentation in another name. Where someone in this position has been refused leave to enter or to remain, he may try to enter by using one of these other names. This fact is obviously recorded when it comes to attention. But, as your Lordships will be aware, there is no criminal offence in question, so we cannot apply the prevention and detection of crime exemption. Yet, clearly, an exemption from access is needed because access could allow that person to discover whether we knew of his alias. If the person found that we did have that information he would be able simply to use yet another name to avoid controls, and if we did not have that information he would have found a means of illicit entry.

That is the facility which this amendment would extend to people who wish to settle in this country and have no right to do so. We do need mechanisms to achieve the immigration control in the interests of all citizens of this country wherever they come from. For that reason we cannot accept this amendment. There are one or two points outstanding but I do not doubt that noble Lords will want to come back on those, and perhaps I may marshall them in the interim.

§ Lord Elwyn-Jones

As has been indicated by my noble friend Lord Hatch, the importance of this matter and this provision in Clause 28, which touches 704 the raw nerve of race relations, is such that we think it is better that it should be discussed and considered and divided upon at the Report stage by a fuller House than we have tonight. I confess it is a little disappointing that the noble Lord the Minister has not reflected or even begun to understand the degree of concern, indignation and anxiety that the provisions of Clause 28 have created. I hope that when he was referring to "fears played on by unscrupulous people" he was not referring to any of the members of the great organisations whose names I mentioned earlier which had expressed their anxiety or, least of all, that he should be referring to any noble Lords who have expressed their anxiety in the House tonight. I gather from his anxious expression that he was not wishing to do so.

§ Lord Elton

I was debating within myself whether to say that I was not conscious of having used the phrase that he says he was certain I was going to use, and this reference may reveal more about what the noble Lord thinks about me than what I think about the amendment.

§ Lord Elwyn-Jones

I have had a little experience in court of taking down what people said and it is always a wise precaution. We shall look at the official Record and the reference to "fears played on by unscrupulous people", which is what I dictated. Of course, if the noble Lord did not say that I naturally withdraw the implication of what I said.

We think, therefore, that this is not an appropriate moment to go into these matters in further detail, but we assure the noble Lord the Minister and his colleagues that we shall return to this matter in full awarenes of the gravity of the issues involved. In the circumstances, I shall withdraw Amendment No. 148 and it would be better if I did not anticipate Amendment No. 149.

§ Lord Wigoder

Before we return to it at a later stage, would it be possible for some of us who are interested in this matter to make the odd observation this evening?

§ The Lord Chancellor

Not unless the amendment is moved.

§ Lord Elwyn-Jones

I beg to move.

§ Lord Wigoder

Might I support what the noble and learned Lord, Lord Elwyn-Jones, said about this being one of the most important amendments in the Bill. It seems to me to be important on two grounds. First, it deals to a very large extent, although not exclusively, with the extremely difficult and sensitive area of medical records and health information. Secondly, unless an amendment of this nature is written into the Bill there will be the most extraordinary dichotomy between the Bill and the Police and Criminal Evidence Bill which is at the moment going through another place.

The position about medical information and medical records appears to be this—and I shall be happy to be corrected if I am wrong. Doctors' records are confidential and there is a complete confidentiality between a doctor and his patients. This is accepted in principle, and can indeed be protected and enforced by the civil law in the sense that if a doctor discloses, in breach of that confidence, information about his patient which in turn leads to the detriment of the patient, that is a wrongful act by the doctor and he would be liable for that at common law. I know that there are some exceptions to that. First, there are exceptions by statute, such as those in parts of the Public Health Act. Secondly, there are exceptions in that where it is necessary for the proper administration of justice a judge may—I repeat, may—during a trial order a medical practitioner to disclose what is prima facie confidential information. It is hardly surprising to note that judges are reluctant to take that course unless it is absolutely essential in the interests of the administration of justice. It is therefore clear that in the law as it stands at the moment the relationship between a doctor and his patient is accepted as being one where there is an obligation of confidence which will be enforced by the law.

Curiously, and rather confusingly, once the doctor completes his medical record and hands it over in the National Health Service to the hospital administrator it at once loses the whole of that confidentiality, because it then becomes the property in law of the Secretary of State, and the Secretary of State is not bound by any such obligation of confidentiality and that obligation could not be enforced by the law. That is a curious discrepancy although it is right to say that it is not suggested that the Secretary of State or the administrators who work in the National Health Service in fact ignore altogether the obligations that are upon them, even though they are not strictly legal obligations.

Against that general background there are now two Bills before Parliament. In the Police and Criminal Evidence Bill which is in another place, under Clause 10, as the noble and learned Lord reminded us some little time ago there is provision whereby on the order of a circuit judge and provided it is necessary for the detection of a serious arrestable offence, a doctor can be ordered to breach that obligation of confidence. That of course can be done not simply during a trial, as is the present position, but under Clause 10 before a trial if the judge decides that that is necessary in the interests of justice. I think it is possible that that Clause 10, perhaps with certain additional safeguards, might provide a reasonable solution to the very difficult problem of a medical practitioner's position where the 706 information which he has might, in the public interest, have to be disclosed to the authorities. That is the position under that Bill. Under this Bill as the noble and learned Lord, Lord Elwyn-Jones, again has pointed out, the situation is totally different.

Under this Bill doctors who have medical records or in particular health authorities who have medical records, would register them under the terms of the Bill as being information which might be disclosed, for example, to their colleagues in the medical profession, or might be disclosed to insurers, or might be disclosed for statistical purposes, or might be disclosed for research purposes. That registration might well be done in accordance with this Bill. But what could then happen under this clause, as I understand it, is that medical men or health authorities would be totally free to disclose the whole of their information in secret to any of the authorities named in subsection (1): the police, the tax authorities and the immigration authorities. That will be done entirely in secret. Nobody would know that it was being done.

It would bring the whole question of the confidentiality of medical records totally into disrepute. No longer would anyone have any faith in it at all, and it will lead to the most extraordinary distinctions between this Bill and the Police and Criminal Evidence Bill. Under this Bill there would be no judicial control, which is desirable. Under this Bill there is not the limitation of a serious arrestable offence—it could be absolutely anything, entirely at the whim of the person handing the information over. And under this Bill it would not be the police authorities for the detection of crime, it would be for a variety of other purposes as well.

I regard it as absolutely essential that we should take steps in the course of the passage of the Bill to see that the confidentiality of medical records is preserved and is respected and is known by patients to be going to be respected. It is also important for the sake of our legislation that we should bring this Bill and the Police and Criminal Evidence Bill into a far greater degree of harmony than exists at the moment.

Although Amendment No. 149 was moved in a general way by the noble and learned Lord in connection with Amendments Nos. 147 and 148, it is really a totally separate matter. It deals with totally different issues. I very respectfully ask the noble Lord the Minister to look at what has been said in the course of this debate with the greatest of care before the next stage to see whether he might not think it proper that steps should be taken to try and reconcile these two Bills to the benefit of the confidentiality of medical records.

§ Lord Avebury

My noble friend has advanced the very important case of medical records. But there are other records, of not perhaps quite the same sensitivity, which are equally affected by these provisions. The noble Lord, Lord Mishcon, earlier on mentioned the representations which we have received from the National Association of Citizens' Advice Bureaux, which relate to the possibility that in the future, as new technology advances—and they are in the process of studying the ways in which microcomputers can be used in the operations of the Citizens' Advice Bureaux—they would have sensitive 707 personal information relating to their clientele held on these computers which would be affected by the provisions of Clause 28(2). For when those personal data were required for cases where the disclosure was for any of the purposes mentioned in subsection (1), then they would be freed of the obligation of confidentiality.

I know that the noble Lord the Minister will say that they are not obliged then to provide information under these headings, but I suggest that, once the Bill is on the statute book, they will be under enormous pressure to do so. When the police come along and tell them that a particular item of information is required for the detection of some dreadful offence, they will be in a serious dilemma. As the director of the national association, Elizabeth Filkin, has said in her letter on the subject: The interests of the detection of crime may on rare occasions be in opposition to the duty of confidentiality … but the problem is that confidentiality cannot be observed selectively.". Once the Citizens' Advice Bureaux or any other agency of this kind which deals with sensitive, personal information, concedes that the detection of a particular crime is of such overriding importance that confidentiality must be breached, the public can no longer have faith in the way in which this information will be treated when they have given it in confidence to one of the counsellors employed by that organisation.

It is really an all or nothing matter. The doctor has an absolute prohibition on giving information, and every patient who comes to discuss sensitive, personal matters with his doctor knows that he can do so in absolute security and that the doctor will not divulge that information to a police officer or to anybody else who might possibly be interested in it. The same applies pari passu to Citizens' Advice Bureaux and to many other personal agencies that give advice on sensitive matters. Therefore, I think that the existence of a clause such as this on the statute book will undermine the confidence of the public in the doctors and in the agencies to whom they would otherwise be quite happy to give this information.

Another point arises on this clause, which follows the discussion we were having on the Inland Revenue. I was very happy to hear the assurances of the noble Lord the Minister that there was nothing in the Bill which undermined the principle which has been applied, certainly from the beginning of the 19th century onwards, that any information that a person gave to an inspector of taxes would not be divulged to another Government agency for any other purpose. But it is a particular case of a general principle that Governments collect information for a variety of purposes and, unless it is otherwise provided by the statute, it is assumed by the person who gives that information that it will only be used for the purposes for which it has been collected.

There are only seven exceptions to the general rule of non-disclosure of this kind which were identified in the work of the Royal Commission on Standards of Conduct in Public Life to which I referred earlier. I shall not go through those provisions individually, but, if the noble Lord cares to refer to them, they are mentioned on page 256 of the report. Therefore, anybody who had provided information under those 708 Acts would know for what purposes it might have been disclosed to a third party.

But, when we come to look at Clause 28(2), we see that at any rate a general power is given for the transfer of information collected by a Government and put on to one of its computers, to another computer for a totally different purpose. The noble Lord the Minister will have to assure the Committee—or I hope he will, if he is to satisfy the Committee that this clause should be allowed to pass—that there will not be any general instruction to civil servants that information which they collect—for example, for social security purposes—will be treated as freely available to other arms of the Government for any of the four reasons that are given in subsection (1).

If no assurance of that kind is given, the Government will find that people generally will not be frank and disclose information to Government which is essentially required for everyday purposes. They will simply not trust any civil servant with confidential personal information as they have been able to in the past. The whole of the trust between the people and government, which we have enjoyed in this country for so long, will have been gravely undermined by this one clause in a single Bill—that is, if the Minister has not been prepared to listen to the argument we have been advancing today—and while I do not suppose we shall arrive at a conclusion about this matter now, the Government would be foolish not to listen to the many criticisms that have already been voiced about the clause.

§ Lord Elton

I wonder whether all the anxiety that has been so eloquently expressed is entirely well founded? The noble Lord, Lord Wigoder, argues that Clause 28(2) is inconsistent with Clauses 9 and 10 of the Police and Criminal Evidence Bill, now being considered in another place. We are in an interesting situation, with the two Bills in opposite Houses. Shortly we shall have the Changing of the Guard as our Bill marches down there and theirs marches up here, and I suppose they will salute each other on the way. The noble Lord suggested that in doing so, and in catching each other's eye, they will recognise a sort of incompatibility about each other in the area of the ninth or tenth waistcoat button.

Clauses 9 and 10 of the Police and Criminal Evidence Bill and Clause 28(2) of this Bill address two different situations. The Police and Criminal Evidence Bill deals with cases where police suspect that evidence in connection with an offence is being held by someone who is refusing or is unwilling to give it to them. That evidence may be a document or an item of clothing, but where the person in possession of it does not wish to yield it, the police cannot get it unless they have a power in law to do so, and that is what the Police and Criminal Evidence Bill gives them.

Subsection (2) of the clause in this Bill which we are discussing now faces a quite different set of circumstances. It comes into operation only where a user of data is perfectly willing to disclose information to the police—say, to help them with investigations into a crime—and in those circumstances Clause 28(2) provides that the user may disclose the information at his own discretion, notwithstanding the prohibitions that exist elsewhere on disclosure.

709 The important point to seize is that the prohibitions elsewhere referred to are elsewhere in this Bill. What it is setting aside is only the prohibitions in this Bill, and everything else is left the same. The doctors' code is in no way affected by what is said in this provision. In other words, it preserves the present situation where holders of information decide for themselves whether the public interest in disclosing the information for the purposes of crime prevention and associated matters should outweigh any obligation of confidence that the holder owes to the individual subject, and that is as it has always been.

There is no intention to open up a network of communications—of computers' chattering to each other in Government departments like Triffids overnight exchanging data in forms unintelligible to man so that it emerges elsewhere, to pop up and do damage to the unsuspecting data subject. That is not a bad analogy of what noble Lords opposite collectively fear. That is not the purpose at all and this Bill does not in any way affect the confidentiality that already exists in all the fields about which noble Lords opposite are concerned.

To suggest therefore that the same approach must be taken to the quite different situations dealt with in the two Bills is to miss the vital distinction that must be made. It would be wrong to introduce into a Bill protecting individual privacy a police power to get vital evidence in a murder inquiry as a principal object of the Bill. That belongs in the Police and Criminal Evidence Bill, with which we shall be dealing later. Clause 28(2) of this measure neither needs nor seeks to impose any new obligation on holders of information, but it allows them to make their own decision, within the confines of this Bill, as to whether or not to disclose it for important purposes, such as the prevention of crime.

I hope that the noble Lord, Lord Wigoder, has listened to and will read what I have said as carefully as I have listened to and will read what he and the noble Lord, Lord Avebury, have said. I recognise the anxieties of noble Lords, but I believe that in this instance they may well prove to be ill-founded.

§ Lord Elwyn-Jones

I hope that in reviewing the position the noble Lord will do me, too, the honour of reading what I ventured to say in introducing this combination of amendments, since my remarks reflected communications that have been addressed to me. I may say that the mailbag on Clause 28 has been almost as great as I was accustomed to receiving in another place on highly controversial issues. There is great concern about this matter in not only the medical profession, but other occupations as well—

§ Lord Elton

Perhaps I may intervene at this point to give the noble and learned Lord the assurance that he seeks. Of course I did not intend him any discourtesy. He had already shot his bolt earlier. I shall be looking at all the bolts that he shot at that stage as they apply to each individual amendment that is moved.

§ Lord Elwyn-Jones

There are many bolts left in whatever part of the anatomy one keeps bolts. I assure the noble Lord that we shall return to the attack upon this matter at the Report stage. It is a serious matter, 710 and I regret to say that I do not think that the Minister has yet seized, and become aware of, its gravity, but we shall improve his knowledge of it at the next stage. In the circumstances, I beg leave to withdraw Amendment No. 149.

§ Lord Elton

The paragraph which the noble Lord seeks to amend is designed to secure the exemption of data from the non-disclosure provisions where, for instance, the prevention of crime, or the apprehension of offenders, or their prosecution, et cetera would be likely to be prejudiced; and as I read the noble Lord's amendment, he would therefore be content for that process to be prejudiced, provided that the prejudice was not substantial. It seems to me that instantly we get on to very dangerous ground indeed, because there is no definition that I can see of the word "substantially", and one is then going to argue till the cows come home about how much prejudice should be accepted in the apprehension of criminals, the prosecution of offenders, the detection of crime, and so on.

There would of course, be important practical implications that would flow from the amendment as well. How would the "prejudice test" be satisfied? Under Clause 28(1), where the exemption is from subject access, it would be a relatively straightforward question. Will giving a person access be likely to forewarn him of suspicions about him and impede, say, police inquiries, or will the information to which the subject would have access reveal to the subject the precise source of the information, thus leaving informants open to reprisals and discouraging them from providing information? It is clearly vital to avoid helping suspects to thwart inquiries, and discouraging informants from giving information to the police, and either would undoubtedly be likely to prejudice crime prevention or detection and so justify subject access exemption.

711 But where exemption from the non-disclosure provisions is concerned (and that is what the noble Lord's amendment applies to) it may not be possible quite so clearly to see the extent of the prejudice in advance. For when the police, say, seek information from a user, they obviously will expect it to be of some value to them, otherwise they would not ask for it; but they may not know how valuable it is until they have actually been given it. It may be of substantial value in identifying a culprit; or it may be only marginal in eliminating a suspect from their inquiries. And, of course, the extent of the prejudice that would be caused by not getting that information would be in direct proportion to the extent of the value if they did get it. I hope that I have shown enough of the pitfalls that I see in this amendment to invite the noble Lord to think about it again.

§ Lord Wigoder

Of course, I shall do so. There is no definition of the word "substantially" or of the word "prejudice". I venture to think that the use of the word "prejudice" by itself, and the proviso that it is sufficient to claim exemption from the non-disclosure provisions on the most marginal and trivial degree of prejudice, is going to give rise to just as much difficulty as, if not more than, the inclusion of the word "substantially". It might be that the best solution is to drop the whole of subsection (2) and substitute the words which the noble and learned Lord, Lord Elwyn-Jones, moved in Amendment No. 149. But that is another argument. For the moment I beg leave to withdraw the amendment.

§ Lord Swinfen

Surely this could negate the prevention and detection of some crimes. The noble Lord's amendment means that the information disclosed should be made public after a period of six months. Some crimes take longer than six months to solve and to consider. It would allow some criminals to get completely away because they would be warned that the police or someone else was looking out for them. It is not a purely medical matter. It refers to the whole of this clause and not just to the medical aspects. Looked at again it would probably occur to the noble Lord that it is not just medical but is to do with the detection of crime and prevention of crime.

§ Lord Elton

I am obliged to my noble friend, who has said several of the things that I intended to say much quicker than I would—but not all of them. I understand that the noble Lord is seeking to require users making what we might call exempt disclosures to notify such disclosures to the registrar. He would then be required to publish them in general terms, and by that I understand is meant that no names would be revealed. Finally, an entitlement to subject access to such data may be established on application to the registrar.

713 I do not think that the noble Lord has wasted the Committee's time at all. It is an interesting and important area. But I have to say that on the last point alone the amendment must be unacceptable. It would enable subjects to gain access to data disclosed, for example, to the police in the investigation of crime, and my noble friend has put his finger squarely on the fact that it could both prejudice police inquiries by forewarning suspects, and leave users who have disclosed information open to reprisals; and my noble friend did not pick up the latter point.

But the principle behind the amendment does deserve some consideration. Should disclosures that benefit from the exemption in Clause 28(2) have to be notified to the registrar and subsequently published by him? I am in no doubt that we must be very careful here. We must not protect the work of investigating crime with one provision, only to impede it with another. I think that to require all disclosures for these purposes to be published—even in a general form—may be going a great deal too far, certainly if the user who made the disclosure is identified, as the noble Lord, Lord Wigoder, suggests. I have to ask, also, whether to publish every disclosure made when a policeman is told some necessary but possibly routine piece of information, perhaps in the course of eliminating a person from inquiries, may be going to undue lengths. We do no want to set up new and considerable bureaucratic procedures here unless we are convinced of the value of them.

But having said that, I should like to give further thought to the possibility of the registrar being alerted to exempt disclosures of a potentially sensitive nature, so that he can ensure that subjects' rights are being protected so far as is consistent with effective law enforcement. This is an area that bristles with practical difficulties. I certainly cannot give a commitment at this stage. But I can go so far as to say that, although we cannot accept the amendment, we will think further about the points that have been made in this discussion.

§ Lord Wigoder

I am most grateful to both the noble Lords who have spoken on this matter. It was not the intention of those who drafted the amendment to drive a coach and horses through this part of the Bill. I am sure that will be generally accepted. But it was the intention to try to see whether machinery could be found which would ensure that such disclosures as took place in accordance with Clause 28 could, if possible, be monitored to ensure that the provisions were not being abused.

I am particularly grateful for what the noble Lord the Minister said about the fact that he would look at the point in principle at any rate. I am sure that, if the body which asked me to raise this matter can be of any assistance, they will be very happy to co-operate in doing so. I beg leave to withdraw the amendment.

§ Lord Elton

I wonder whether the noble Lord spent some time construing these subsections together, as I did. I think that my answer must be simply a paraphrase of what lies within the sections. I understand that the distillation of the meaning of the two subsections is, to the extent to which they are exercisable by reference to the first data protection principle, that the provisions conferring powers on the Registrar in Part II of this Act shall not apply to personal data in any case where, if such provisions were not supplied, such application would be likely to prejudice any of the matters mentioned in subsection (1) above". I wonder whether the noble Lord would read that tomorrow morning and see whether it elucidates his question.

§ Lord Mishcon

I can well picture the noble Lord the Minister writing this out with great care last night, having, as he said, studied every line of it. The least I can do in courtesy, since he has taken so much trouble—I am sure personally writing out those words—is to say that certainly I will look at it. In the circumstances, I ask leave to withdraw Amendments Nos. 150 and 151.

§ Lord Campbell of Alloway

May I raise a short point on Clause 28? I shall be very brief. It is apparent from the debates in your Lordships' House during the passage of the Bill introduced by the noble Lord, Lord Wigoder, which is now on its way to another place—the Juries (Amendment) Bill—that a system must be devised which will involve the use of computers to enable those responsible for empanelling juries to know about previous convictions of jurors 715 before they are empanelled. In submission, as drafted, Clause 28 does not purport to deal, and indeed does not deal, with this situation. I wonder, with respect, whether consideration could be given perhaps to including in Clause 28(1) a sub-category (e) to read something like this: the empanelling of jurors in implementation of any statutory requirement". I only rise at this late hour because all your Lordships feel, as I do, that this question of the empanelling of jurors is a very important point. We shall need to have resort to the computers. It is a matter which I feel your Lordships would not wish to be overlooked.

§ Lord McIntosh of Haringey

I, too, shall be very brief. I confess that the noble Lord the Minister lost me in his construing of subsections (3) and (4), and therefore my remarks are genuinely directed at the whole of Clause 28. My question about the whole of Clause 28 is one which I confess does not appear in the wording at the moment. I can quite see the reasons why information relating to a criminal investigation should not be made generally available, in such a way as to damage the course of that criminal investigation. But I suggest that a large number of the queries which may arise about criminal records will not be about criminal investigations which are in the course of being pursued, but will come from those who may find themselves on criminal records and will be about the accuracy of those records.

My question is this. Is it in any way possible when we come back to this at a later stage for the rather draconian exemptions which we find in this clause at the moment to be limited in such a way that those who have reason to suspect that their names may be found on criminal records, and that information about them may be found on criminal records, have the right of access and the opportunity to correct any inaccuracies?

§ Lord Elton

I am obliged to both noble Lords for putting in my mind considerations which I think should be there before we reach the Report stage. I noticed the smile, but not the intervention, of the noble Lord, Lord Wigoder, as his favourite progeny 716 was mentioned as another companion of this Bill. The noble Lord, Lord McIntosh, asked us to address our minds to what he calls the draconian nature of the exemptions which are at present in the Bill, and, in particular, to the effect which they may have of excluding from knowledge of what is on criminal records the people to whom they relate, who would be concerned if they were inaccurate. I have taken the point on board.

I have to remind the noble Lord that there is not a general freedom of access to criminal records at present, and if there were the system would dissolve into chaos. If one could detect which were the inaccurate records and release those, so that they could be corrected and returned, that would doubtless be very useful. But I see difficulties in opening the whole mass of information, whether it is on paper or on computer, for examination by what, in large part, will prove to be the criminal fraternity, who would be most grateful to the noble Lord for his giving them access to it, but I do not think anybody else would.

§ Lord McIntosh of Haringey

The noble Lord the Minister used the word "general", and he defined that word earlier in this Committee's consideration as being available to other people. I did not say that. What I said was that the person who suspects that there may be an entry on a criminal record about himself or herself should have the right of access to that record, in order to check whether or not it is inaccurate. That is not access to the criminal fraternity in general.

§ Lord Elton

I am sorry. The generality was applied to the criminal fraternity. Each person is able to inquire about himself. The noble Lord is suggesting that Burglar Bill, the rapist, the arsonist and so on should be as free as anyone else, presumably, to inquire whether his misdeeds are accurately recorded, and whether the suspicions that are held against him can be confirmed or denied. It is a proposition which, at first blush, I do not find attractive. But, of course, as always, I will consider between now and Report what he has said.

§ Lord Elton

I do recognise, as your Lordships all will, that the application of data protection legislation to the health field raises difficult and delicate questions which can only be resolved through informed comment and debate. In considering this amendment, I would say one thing before addressing the particular question of how data about health should be treated. The amendment seeks to place the Secretary of State under an obligation to exempt certain data by order. On that ground alone the amendment would be objectionable. Under Clause 36(4) all such orders are subject to the discretion of Parliament. It is not the Secretary of State but Parliament which is in control of whether the order is made or not, and noble Lords will accept that the Bill must not force the registrar to do what elsewhere it empowers Parliament to prevent him from doing.

Your Lordships will wish me to give some indication of how we see the order-making power being exercised, and I am happy to do that. Medical and health data can be particularly sensitive when it comes to subject access. Is it right for a mentally unstable person to have access to all psychiatric reports on him? What would be the effect on a patient who thinks himself perfectly healthy suddenly to discover that his doctor has diagnosed a disease? What if that disease is described as incurable or terminal? These are questions that cannot be brushed aside on the basis that subject access is a sacred principle. In considering these issues the Government are consulting closely with doctors and other professionals in the health field about what arrangements for subject access should be made.

We do not want to disallow subject access altogether unless that proves really necessary. What we are investigating is the possibility of placing some controls on subject access so that harm to the subjects themselves can be avoided, while at the same time 718 giving access freely where there is no danger of harm to the subject. I do not want to say more and risk prejudging the outcome of the careful consideration that is now being given to these matters, but I hope I have said enough to indicate the general approach that we have in mind.

§ Lord Avebury

I hope that when the noble Lord is consulting with the doctors he will consider a particular case of difficulty which has arisen, which, although it does not relate to information held on computers, may well do so in the future; that is, the reports which are made by doctors in relation to a person's mental state when he comes before a court of law.

At the time, the reports are obviously made available to the court and to the person's solicitors. But when requests have been made by the person, who has subsequently been convicted, for copies of the reports, which he may require in connection with an assessment of his suitability for a transfer to a special psychiatric hospital under Section 72 of the Mental Health Act, the individual doctors who have made the psychiatric reports for the purposes of the court proceedings may subsequently decline to give the patient a copy, even though it is within his knowledge and has been presented in evidence during the course of his trial.

I consulted the British Medical Association on this and it took the view that no question of medical ethics was involved, and that the individual doctor ought to disclose the contents of such a report if it could be useful to the patient in the course of his attempts to clarify his position under Section 72. But the individual doctors were not influenced by the advice that they received from the British Medical Association. During the course of the discussions which he has with the profession on the subject access provisions of the Bill, I wonder whether the noble Lord would take the opportunity to clarify what may be a very important point.

§ Lord Elton

I am obliged to the noble Lord for bringing us back to ground which we nearly trod on during consideration of the Mental Health (Amendment) Bill, as it then was. Certainly I am seized of the anxieties expressed and I shall see that they are part of our consultation.

§ Lord Wigoder

This was in the nature of a probing amendment. I am content with the response which has been given to it by the noble Lord the Minister. I beg leave to withdraw.

§ Lord Digby

I welcome this clause. It is of great importance that records required for social work should be completely confidential. In the Bill we are particularly concerned with the rights of the individual as against the data user. However, in social work the rights of children are paramount. There is a great public outcry when children are harmed by parents who, with hindsight, are patently quite unfit to look after them. But any evidence which the social workers have acted upon is very often subjective, or hearsay. It 719 is most important that the compilers of these reports should be able to give their opinions freely without the worry that the parents would have access to their remarks. These are cases which would quite patently come under the heading of social work and be covered by the clause. However, there are some cases where educational and social work may overlap. I should be most grateful if my noble friend the Minister could tell me whether the following cases would come under the heading of social work in this subsection.

First, there are the special education records under the Education Act 1981. Your Lordships will remember that this Act changed the law on special education following the Warnock Report, which took a wider view of special educational needs and encouraged them to be met in an integrated setting. The rights of parents are fully protected under this Act and the statements of special educational needs, together with the professional advice on which it is based, must be made available to parents. However, there are likely to be other details on record whose communication might give rise to problems of confidentiality. In my opinion, these special education records are of a social work nature. I should be grateful if my noble friend could confirm that they would be covered by the clause.

My second point relates to the education welfare officers whose duties today extend far beyond those of the Education Act 1944 which originally set them up and are now much closer to conventional social work.

It may be that both of the cases I have cited are academic because at present their records are not normally computerised, but things are moving so fast in this direction that it would be of great help to local authorities if the Government would give an assurance that they consider that both special education and education welfare records could be covered by the exemptions in the existing Bill. If not, I should have to consider whether an amendment ought to be put down at a later stage.

§ Lord Elton

The term "social work" is not used in the Bill in a technical sense. We are, as we have said, in the process of consulting interested parties and representative groups in the social work field as to what particular data will need to be covered by order under Clause 29(2). At this stage I do not wish to prejudge the outcome of those consultations, so I hope my noble friend will understand that I cannot give a firm assurance as to whether these particular data will be covered. But in principle we accept that education welfare officers do sometimes perform functions which involve the carrying out of social work and that their records contain similar data to those contained in those of social workers and that to that extent their records may well, for the purposes of Clause 29(2), need to be treated in the same way as those of social workers.

I might add that, in general terms, the Government take the same view in relation to those aspects of probation records which are concerned with the performance and functions which can be regarded as falling under the head of social work. My noble friend's second question concerned subject access to special educational records. To the extent that such 720 records do contain personal data as to the physical or mental health of the subject, they may well benefit from the provisions of Clause 29(1)—but I should point out that disclosure of statements of special educational needs prepared under the Education Act 1981 is restricted under the Education (Special Educational Needs) Regulations 1983. In effect, the child may have access only with the parents' consent.

In general, such restrictions will, by virtue of Clause 26(4) of the present Bill, be overridden by the right of subject access. However, Clause 32(1) allows the Secretary of State to preserve specified restrictions by exempting personal data covered by them from subject access. We are examining the question of access to statements of special educational needs to determine whether they should be covered by a Clause 32(1) exemption on the ground that the 1983 regulations' restrictions on disclosure should prevail over the subject access provisions of the Bill. I hope that I have gone far enough to reassure my noble friend on these points.

§ Lord Elton

We are now embarking on a series of amendments with a common theme; that certain data are of a kind that have no potential for harm or misuse and that therefore they do not need to be brought within the scope of this Bill. A happy thought, but one we may not be able to seize upon. My noble friend has ably indicated the attractions of this approach. They are, first, the fear that if every single data user is caught by the Bill, the size of the register will be quite unmanageable; secondly, that it is just plain unnecessary for certain users to come under the registrar's supervision at all.

As to the question of the size of the register, we believe that with the aid of modern technology, which has given rise after all to the need for the Bill itself, the compilation and use of a large register will not pose 721 insuperable problems. On the second point, we do have some sympathy. Indeed, I will go further. If we can identify a category of data which everybody can agree will pose no possible threat if unregulated, and in respect of which nobody would be concerned about lacking the rights that the Bill provides for subjects, then in principle we shall be ready to be persuaded. But those are not easy tests to satisfy, and many of those people who have studied this subject over the years have been forced to conclude that there is no such thing as wholly harmless data.

Let us consider the category that my noble friend has sought to isolate and has described as "routine" in his amendment. It would exempt for a start all staff records held by a commercial or professional concern—although, oddly enough, not by a noncommercial concern, and there seems no logic in that, although I will not pursue the matter. Therefore, whatever an employee of a commercial firm might fear, and however much he might suspect that inaccurate or misleading data were the reason for a particular attitude throughout the company towards him, or towards his promotion, he would have no right of access to the data, no recourse to the registrar to help him, no remedies.

Then there are data about persons with whom the user deals in business. There may be records of a person as a bad debtor or as being dishonest. It could be extremely damaging, as the noble Lord, Lord McIntosh, will readily realise—all we are doing now is looking at the innocent trader with a company, as he was looking at the possibly innocent person with a criminal record—to such a person if a large corporate user makes this information available through its computerised records to all its staff in all its branches, especially if the information is mistaken. Yet under the amendment no rights for the data subject would exist.

I hope my noble friend will not think that I am concentrating on the minor blemishes in the amendment to the exclusion of the validity of the central principle. The difficulty is—and it is a genuine difficulty, because we have thought long and hard on the matter—that, however we define the category of data to be exempted, the blemishes reappear. There invariably seem to be real circumstances where leaving the data unregulated could damage both the data subject and the credibility of the overall scheme. I want to emphasise that I accept and understand the basis on which my noble friend has founded his amendment, and the noble Lord, Lord Wigoder, has adopted a not dissimilar approach in an amendment tabled in his name. If a workable, readily identifiable area of data could be excluded safely without arousing concern among subjects, and if the terms of categorisation could be precisely and satisfactorily drawn in statutory terms we would not be ill-disposed to it, but we are not at all convinced that such a category exists. Like the unicorn, it is immensely attractive, but I have never seen one.

§ Lord Mottistone

I am deeply grateful to my noble friend for giving such a clear answer to this rather difficult problem. I fully understand the points that he made, and I hope that my noble friend Lord Colville 722 will do so when he comes to read the account of the debate. I beg leave to withdraw the amendment.

§ Lord Avebury

May I take this opportunity of asking the Minister what is the position of personal records kept by Members of Parliament for the purposes of their work? I ask this—

§ Lord Elton

I am sorry, but I lost the beginning of what the noble Lord said and I think it is crucial to the end.

§ Lord Avebury

I am taking the opportunity of this amendment to ask the Minister: what is the position regarding exemption of personal data records kept by Members of Parliament in the course of their duties? As the noble Lord will probably appreciate, I have a personal interest in his answer because I keep my immigration case records on a computer which I have 723 in my office. It would be obviously taking an enormous sledgehammer to crack a nut if the registration provisions of the Bill were to extend to the kind of records that I keep in my office or that other noble Lords or Members in another place may keep to assist them in the course of their duties. Although I do not see that they would be exempted by subsection (1) as it stands, I take this opportunity of asking the Minister whether he does not think that, with the increasing adoption of computer technologies by Members of both Houses of Parliament, it will be necessary to have some kind of exemption in the Bill of the kind that I suggest.

§ Lord Elton

I am very grateful to my noble friend Lord Teviot for the notice he gave me of the reasons for this amendment, which enabled me to reply rather more intelligibly than I could otherwise have done. I was not aware of his interest in the pursuit of genealogy on the small scale, for which I apologise to him.

My noble friend has queried the extent of the exemption which Clause 31(1) provides, and he has instanced the problem faced by genealogists and family historians wishing to conduct their research with the assistance of home computers, but who need a little information about living persons in order to provide the necessary link with earlier generations.

I am sorry to have to inform my noble friend that it is our understanding that the sort of activity which he has in mind would not qualify for exemption under the terms of Clause 31(1). Certainly the dictionary tells us that the term "family" is capable of wide interpretation. There are some who would tell us that the whole human race is one family by common descent from Adam. But I fear that the scope of the provision is substantially narrowed by the terms "management" and "affairs". It is not just any personal data related to one's family for which Clause 31(1) provides, but personal data "concerned only with the management" of one's family "affairs". These terms carry with them the very definite sense of administering or controlling functions relevant to the person concerned. This may be something intangible, like preserving the cohesion of the family unit, or a more practical task of maintaining the accounts, or sending out birthday cards on time, but the sense of performing a function in relation to those individuals is very firmly there in the clause as drafted. I am afraid that the activities of concern to my noble friend, where those elements will not be present, or will be only accidentally present, will not fall within the formulation of Clause 32(1).

I realise that this answer will be something of a disappointment to my noble friend and to those on whose behalf he has raised this issue. I am afraid that it is inevitable with any exemption scheme—I have to echo what I said on the last debate—that some activities will be covered by it, while others, not apparently significantly different, will fail to meet the test for exemption. If we went on indefinitely attempting to deal with the hard cases we should find that we had no Bill left at the end of it.

I have to look at the noble Lord, Lord Avebury, with a mixture of sorrow and amusement because I 724 have to tell him that, if the Bill reaches the statute book in the form that I hope it will, the first subject access application that anyone will be receiving will be mine to the noble Lord to see what he has on me, because I have a volume of correspondence with him which suggests that there will be a good deal. I have to say, if he does not like it, that I find that there is a great deal that we have in common, because we do a lot with prisons too. I find that everybody wants data protection to apply to everybody but themself, and everybody wants more prisons in the United Kingdom except next door to them. There is a remarkable similarity there.

Registration, as I have said on a number of occasions, will not be an onerous requirement, but I realise that it will still leave the necessity for the payment of a fee. I would not want my noble friend to conclude that the Government are unsympathetic to the problem that he has highlighted. I cannot give a guarantee that we shall be able to find a way of exempting the apparently innocuous activities to which he has drawn our attention (I like the word "apparently" here; I wonder what deep suspicion lay behind the advice of the possibility on non-innocuous genealogical research). I cannot do that without at the same time creating possible loopholes in the general scheme. I do not underestimate the difficulty of finding some workable formula, and I do not wish to raise false hopes. But, with that proviso, I am prepared to say that the Government will look again at the position of those engaged in this sort of research, and to see whether there is any way in which the impact of the Bill's provisions upon them might be modified.

§ Lord Teviot

I must say that I almost take umbrage at the word "innocuous". We have had plenty of arguments about "vexatious", but "innocuous" sounds worse than "vexatious". However, I shall not take umbrage on this occasion. I shall read every word that my noble friend has said. He has been kind enough to say that he will look into the matter again and I shall be in touch with him between now and the next stage. With those comments, I beg leave to withdraw the amendment.

§ Lord Elton

Perhaps my noble friend will forgive me if I am brief because he has so narrowed his definition that I can discard much of what I had planned to say. The nub of it is that his amendment does not have the effect of excluding electronic mail, Personal data carried by electronic mail, as described by my noble friend, are not in the normal course of events covered by the definition of "processing" in Clause 1. My noble friend may find himself reassured by that, but I shall further consider what he said in the interim period between now and Report in case I have not understood him correctly.

§ Lord Mottistone

I thank my noble friend. Perhaps my noble friend will appreciate that there are aspects of this which bridge the gap. What is so difficult is to find some sort of phraseology which excludes what he has told me he thinks is now excluded. But some of this equipment will do processing within the terms of the Bill. So if he cares to study that aspect of it, it would be helpful.

§ Lord Elton

I am sorry to delay the Committee, but it will help me if I can take this on board. My noble friend is talking about machines which are not simply word processors which work as addressing machines in correlation with correspondence produced on them, but they also update the addresses and move them around. I take it that he is asking whether that is processing and, if it is caught by Clause 1, what about word processors?

§ Lord Mottistone

Yes. And how do we identify the two types of equipment? With that, I beg leave to withdraw the amendment.

§ Lord Elton

There are devices which allow one to immerse these things in water for a time, compress them and use them as solid fuel, but that is not within the scope of this Bill. Subsection (2) of this clause refers in particular to personal data held by unincorporated members' clubs and by those who use names and addresses for the purpose of distributing articles. The example in this area may help specialised clubs and societies who use micro-computers to record their membership lists and circulate their regular newsletter, and bodies such as churches who may not be unincorporated clubs but who also may use a micro-computer, for example to circulate the parish magazine; some parishes are very go-ahead.

The Government think it very unlikely indeed that holding data in these situations could result in harm 727 being caused to data subjects. However, we thought it was necessary to qualify the exemption to avoid all possibility of harm. This qualification is set out in subsection (3) and it takes the form of a requirement on users to ask subjects if they object to the data being held. Clearly, if the subject objects, the exemption cannot be claimed and the data will have to be registered. I should stress at this point that failure to object is not a once-and-for-all matter; the effect of subsection (3) is that a subject may object at any time. And if a subject does object, the user cannot maintain a claim to exemption in respect of that subject's data. In these circumstances, the user would either have to apply for registration or delete the data relating to the individual who objected. I think that is what the noble and learned Lord is after.

I have listened with interest to the case he made for the amendment, and I have come to the view that we should look further at the exemption as it is drafted. The amendment has drawn my attention to the fact that exempt data, to which a subject has not objected, can be disclosed to another user who can also claim the exemption. I can quite understand that there is a case for giving the subject some control over these disclosures, for the reasons the noble and learned Lord gave. I would therefore like to give an assurance that the Government will take another look at this point. I do not think the amendment quite meets the point; it does not allow the subject to agree in the holding of the data and yet to object to the disclosure. It also requires subjects to be asked to consent to disclosure even where the user has no wish to disclose. But I see what the noble and learned Lord is after and I hope he will be content for me to pursue it.

§ Lord Elwyn-Jones

I am very content with that and, in the circumstances and with that assurance, I ask leave to withdraw the amendment.

§ Lord Elton

First let me indicate how we see the very limited exemption in Clause 31(2)(b) being of use to 728 data users. We do not see it as being of great benefit to commercial mailing companies, because very few such companies hold only names and addresses: they usually hold other data as well, such as the subject's socio-economic grouping or his interest in particular goods. Rather, the exemption is aimed to be of much more limited application: for example, as I said earlier, for local churches who use a micro-computer to list the recipients of the parish magazine.

Secondly, I cannot accept the basic principle of the amendment. In effect, it would totally remove the safeguard provided for the subject in subsection (3), for virtually every subject's name and address are recorded in a register or directory—the electoral register or a street or telephone directory, and so on. Thus, virtually every subject would be deprived by the amendment of the ability to refuse to consent to his name and address being held on a user's computer. Yet the data would, under the amendment, be exempt; and even though they might be inaccurate—or unfairly collected, or being transferred to others for the distribution of quite inappropriate articles—they would not be supervised by the registrar. On both those grounds, I cannot commend the amendment.

§ Lord Mottistone

I understand what my noble friend has said, and I beg leave to withdraw the amendment.

§ Lord Mottistone

I should like, briefly, to say that I should be very happy to join with the noble Lord, Lord Wigoder, and try to thrash out something which combines the best of what he has here as well as my original amendment, No. 52 (which we took on the first day) and the other points raised on the same subject. Perhaps at the Report stage we shall be able to come back with something which the Government might even like the look of.

§ Lord Elton

I never object to people hunting unicorns and I always hope that they will eventually succeed. Since the hour is late, I am almost tempted to leave it at that, but I think I should go on to say that the noble Lord is seeking to categorise data as harmless, and to exempt them from the Bill, if they have three characteristics: that they are not sensitive as itemised in Clause 2(3); that they have come from the subject himself, or from published reference material; and that they are not disclosed to anyone. On the surface of it, what could be more innocuous? Unfortunately, however, we cannot rely on the surface alone. We have to go a little deeper; and what do we then find?

Well, I am sorry to have to say, just as I had to say about the category proposed by my noble friend Lord Mottistone (with whom the noble Lord, Lord Wigoder, is to enter into alliance between now and the Report stage), that we find that the data may not be quite as incapable of misuse as we thought. For example, data subjects may happily give information for one purpose, but is it right that there should be no control over its use for a quite different purpose, and no ability by the subject to check what that purpose may be? A person may happily provide his name and address to a record club distributing classical music, but if he then finds that the data he supplied are being used to send him prurient literature, he may take a dim view that the Bill does not cover the data user concerned; and of course vice versa. That example illustrates two other points. First, what happens if the subject changes his mind and decides that he does not want data held about him, and what happens if his circumstances have changed and the data have been rendered inaccurate? He has no rights and no recourse to the registrar. Secondly, published reference material may appear innocuous because of its general availability, but there is enough of it about in different forms for a comprehensive picture to be drawn upon a computer that could be used for a number of purposes. Is it really right, I have to ask myself, that a user of such collated data, just because all the sources are published reference material, should be beyond reach of the Bill and the registrar?

I do not want to go on. I have indicated some areas of difficulty. These are the blemishes that I spoke of earlier which keep on emerging whatever definition we produce. I may have to repeat myself later in the Bill, 730 in which case I shall simply remind your Lordships of this little diatribe and hope to get away with not repeating it.

§ Lord Wigoder

As the noble Lord has said, we must not deal in hard cases. I propose in the circumstances to ask leave to withdraw this amendment but to come back to it, beyond any question, at a later stage.

§ Lord McIntosh of Haringey

The noble Lord, Lord Mottistone, in moving his amendment said that his intention was to widen the scope of subsection (1) of this clause. I should have thought that that was the reverse of what was needed. My question to the noble Lord the Minister is this. In what way could the scope of this subsection he any wider? Specifically, I am asking him about subsection (1)(a) where it speaks of information, the disclosure of which is prohibited or restricted by or under any enactment". If we look at Government-held data, is it not the case that all Government-held data is, in fact, restricted by the Official Secrets Act and, therefore, all Government data is already excluded from the scope of this clause? When one looks at subsection (1)(b), the wording of that (as will be seen from the next amendment to be considered) is so wide that one could drive many coaches and horses through it. Is there any way in which this clause could be any wider or in which it could do more damage to the Bill than the way in which it is drafted at the moment?

§ Lord Elton

After that spirited intervention, I will deal first, if I may, with My noble friend. I hope I can explain quickly why Clause 32(1) needs only to refer to exempting data from the subject-access provisions even though Clause 29(1) refers also to modifying those provisions. The purpose of Clause 32(1) is simply to allow for certain existing statutory restrictions to be preserved so that they are not overridden by this Bill's subject access provisions. We shall consider in a moment the circumstances under which this may be necessary. Only total exemption 731 from those provisions will achieve the necessary aims: mere modification would not. Under Clause 29(1), as I indicated in the context of Amendment No. 152, it may prove desirable to allow access under certain considerations; and therefore it is necessary to have the power to modify the subject access provisions in that instance. I hope those few words will be sufficient to reassure my noble friend and his advisors that there is no need for any reference to "modify" in Clause 32(1).

My noble friend spoke also to Amendment No. 155B and suggested that the order-making power in Clause 32(1) should be capable of extending to existing common law restrictions or prohibitions on disclosure of information—as well as to those of a statutory nature. If he did not suggest it in words, it was there on the Marshalled List. He clearly has in mind information to which an obligation of confidence attaches at common law.

That is not our intention here, nor should it be. If we were to exempt from subject access all data held under a common law obligation of confidence, we would be down-grading very sharply the entitlement to subject access. Subjects would be prevented from gaining access to a vast area of personal data held about them. Indeed, any user seeking information about a subject from a third party could very simply arrange matters so that it was given in confidence, and he would thereby avoid having to grant subject access. We do not wish or intend to use Clause 32(1) orders to exempt data to which common law restrictions apply. They will only be used where Parliament has expressly decided that access should be restricted or prohibited; and where there is good reason for that restriction or prohibition to take precedence over the Bill's subject access provisions.

The noble Lord then spoke on Amendment No. 156A. I did not think that my noble friend would go to the stake at any time of day or night for this amendment. No great harm would be done by it, so far as we can see. If I have understood my noble friend correctly, his amendment appears to me to be unnecessary to his purpose. Clause 32(1)(a) gives the Secretary of State power to exempt from subject access all personal data consisting of information of which disclosure is prohibited or restricted by statute. That is a very general power. Paragraph (b) is the paragraph which restricts it. It does so by saying that an order can only apply to information appearing to the Secretary of State to be of such a nature that existing statutory restrictions on its disclosure should be preserved—for example, the Adoption Act—or possibly to prevent the data subject gaining access to information given by a third party under some statutory procedure, as under the Race Relations Act.

It is our view that in these circumstances it will be sufficient for the Secretary of State to consider the nature of the information in determining whether it should be covered by an order. We do not think that either the source or the use of the information could persuade the Secretary of State to include it in an order, where he would not be so persuaded by virtue of its nature. As I said, therefore, we do not see the additional words providing any help, and I wonder, perhaps, whether that brief explanation will persuade 732 my noble friend not to pursue any of those three amendments.

§ Lord Wigoder

May I ask the Minister whether I am correct in understanding that the Secretary of State is not seeking two separate powers, one under paragraph (a) and one under paragraph (b), but one power in relation to which both (a) and (b) have to be complied with? That is what has been giving rise to some confusion, particularly about the existence of paragraph (b). If that is right, as I believe it is, the cause of the trouble—and it sounds an absurdly small matter to raise at this hour of the night—is in fact the semicolon between the word "enactment" and the word "and".

§ Lord Elton

The word "and" is usually used to conjoin two separate pieces where both have to be taken into consideration. I think that answers the noble Lord's question, whether there is a semi-colon there or not. The noble Lord is looking baffled. They do stand together.

§ Lord Wigoder

The trouble is that the noble Lord, Lord McIntosh, and I, as we both read this, assumed that under paragraph (b) the Secretary of State was taking an entirely unlimited power to do whatever he liked within the terms of this Bill.

§ Lord Elton

No.

§ Lord Mottistone

Perhaps the wording should be changed; but I am not going to press for my re-wording. I accept what my noble friend has said, and beg leave to withdraw the amendment.

§ The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

I have to point out, before calling Amendment No. 156, that if it is agreed to I cannot call No. 156A.

§ Lord Elton

It might clarify things if I said that data to be covered by an order under Clause 32(1), which is very narrow in application, contrary to what the noble Lord, Lord McIntosh, feared, would have to satisfy two tests. They will have to consist of information of which the disclosure is prohibited or restricted by some statute other than this one. That is the first test. And it will have to appear to the registrar that, for one reason or another, the confidentiality afforded by that other statute ought to take precedence over the accessibility afforded by this one. If it does not so appear then the exemption will not take effect and all will be revealed, whether it be an examination or not, if it is touched by statute—which I would doubt.

It is this second test that the noble Viscount's amendment is designed to remove. It would be sufficient under what he proposes that disclosures should be prohibited or restricted by another statute. Once that is established, the registrar would be bound to accept the exemption. Indeed, the registrar would probably not come into it at all, as he would not be called on to consider the expediency of setting the exemption aside. That applies whether the subject is a dog licence, an examination or a Cromwell tank.

§ Viscount Craigavon

I am grateful for what the noble Lord has said. I will study what has been said and, in the meantime, I beg leave to withdraw the amendment.

§ Lord Elton

The noble Lord has set himself a famous example and me a very difficult task! I am prepared with all sorts of answers to all sorts of points that he has not raised. I shall be interested in the punctuation in the Official Report, to discover whether it was indeed one sentence that he used, but I will forgive him three! I am not quite certain how much reply the noble Lord wants, because we are actually addressing ourselves to a fairly wide principle. I will try just to pick out what he wants. The amendment has two aspects—

§ Lord Mishcon

I wonder whether I can help the noble Lord. The point is a simple one that I tried to make. It is that one ought to define the nature of the research; otherwise so many things can come under this umbrella. The noble Lord will, presumably, either agree or disagree with that.

§ Lord Elton

I agree that there are all sorts of research. The noble Lord has required them to be "bona fide historical or scientific". I merely cast a fly, as it were. What he said is that research ought to be more accurately defined. I think I could more readily undertake to look at that further, if he would undertake just to give me a little inkling of the sort of definition he would want, if it is other than what he has here. If it is what he has here, I have a number of reasons for suggesting that that is not sufficient, because it excludes, for instance, the whole range. There is musical, topographical, geological, otological, palaeontological, and so on, research, of which only the latter falls into either definition. Once you start defining, you start excluding, and I think that the noble Lord would need to take very careful thought before inserting the words after "bona fide" in his first, substantive amendment.

§ Lord Mishcon

What the noble Lord the Minister has said has convinced me that possibly I have the wrong wording here. Therefore, I shall beg leave to withdraw the amendment. But would he consider the main point, which is the broad nature of the word "research"? It would be a great privilege for me if we could correspond between now and the Report stage, and if we could come up with an agreed amendment I am sure that everyone would be happy.

§ Lord Swinfen

May I suggest that it would be easier, rather than trying to define kinds of research that may be carried out, to define the kinds of research that should not be included, such as race, religion, political ideas and matters of that kind? That might be easier.

§ Lord Elton

I am sure that the noble Lord, Lord Mishcon, would be as ready as I am for religions to be researched into. It would be a very great handicap to theologians, who already suffer from an absolutely staggeringly large subject, to cope with if they did not receive the benefits of this amendment.

§ Lord Elton

I am always delighted to go faster. But sometimes I think that we go too fast for elderly and muddled Ministers such as myself. The Bill, in Clause 32, already does for the legal profession much of what my noble friend wishes it to do. It identifies a category of data—those to which legal professional privilege applies—and recognises that subject access to such data would offend against the principle that lies behind that privilege, by allowing third parties to gain access to data that lawyers hold about them provided by the lawyers' clients. I submit that, to a very large extent, that provision meets my noble friend's point.

735 As for other personal data, in so far as they are processed automatically by reference to a particular data subject—and, of course, other data are not caught by the Bill—I think that a case for an exemption for lawyers is no stronger than that for many other groups. Certainly I think it would be considered odd by data subjects that they were prevented from gaining access to personal data held about them—subject, of course, to the legal professional privilege point that I have already mentioned. And I also think it odd to provide that lawyers can disclose data with impunity to anybody they choose—regardless of what they have said in their registered particulars—when nobody else can.

Even the exemptions from the non-disclosure provisions in Clause 28(2) are available only when disclosures are for clearly specified purposes. I think a general exemption for the lawyers, as appears to be proposed, would be considered anomalous. I believe that they already have the special treatment that they require under Clause 32(2). I hope that that reassures my noble friend.

§ Lord Mottistone

I thank my noble friend and accept what he has to say. I beg leave to withdraw the amendment.

§ Lord Elton

I am grateful to my noble friend for that explanation, which bears out the motives that I thought lay behind this amendment—namely, in making the amendment, he wishes to ensure that data covered by the Part IV exemptions can still be subject to the registrar's general supervision.

I hope I can reassure him there, because, with the exception of national security data, that is already the case. Certain data may be exempt from subject access but they are still registered under the registrar's supervision and liable to his powers. Just because the subject may not have access to those data does not mean that the registrar cannot check them out and apply to them the principles concerning accuracy, adequacy and the rest. The same applies to data covered by exemption from the non-disclosure provisions or by the exemption provided for in Clauses 28(3) and 28(4). Therefore the investigations that my noble friend proposes the registrar should be able to make can be made into all the data, other than national security data, under the Bill as it is drafted. I hope that is a matter of considerable reassurance to him.

§ Lord Mottistone

Yes, indeed. It is a matter of considerable reassurance, but I should like to see it applied to national security areas as well within the very carefully worked out safeguards I have devised in my amendment. I hope that my noble friend will perhaps see whether there is not some way in which he can do that. If not, perhaps I may have to come back on Report with a modified amendment to cover that particular point. I beg leave to withdraw the amendment.

§ Lord Glenarthur

I understand the point that my noble friend makes with this change in the batting now. It does not mean, however, that the Crown is under no kind of obligation as a result of the Bill. Clause 35(2) deliberately excuses Government departments from the liability to prosecution under Part II of the Bill, but it excuses departments from nothing else. Departments will still remain under the obligation to register, so it will be an offence not to register and they will still be liable to the exercise of the registrar's notice powers.

A Government department which handled data in a manner inconsistent with its registered particulars, or which contravened a notice of the registrar, would be failing to comply with the legal obligation placed on it. I frankly do not believe that a department would continue in that position once the situation had been pointed out to it by the registrar, but it would be open to him, if it did, to seek a declaration from the courts to the effect that it was thus acting in breach of a legal obligation placed upon it. I hope that, with that explanation and part of what I could say in addition, my noble friend will withdraw his amendment.

§ Lord Mottistone

I accept what my noble friend says and am greatly relieved by it. I beg leave to withdraw the amendments.

§ Lord Elton

I had rather supposed that this amendment on the advisory committee had fallen at the end of the line of dominoes. As there is no advisory committee as a result of earlier amendments having been withdrawn, it does not seem to me to be appropriate to refer to it here as if it did exist. Unless the noble and learned Lord wishes me to address myself again to the general principle of the advisory committee, which we did when we considered all these amendments together, I am not sure that I can add greatly this evening to our common wisdom.

§ Lord Elwyn-Jones

I am content to rub a tearful eye at the absence of the advisory committee from the provisions of the Bill, although I hope that we may return later to resurrect it. In the circumstances, I beg leave to withdraw the amendment.

§ Lord Glenarthur

Since the publication of the Bill, it has become apparent that there are even more devious minds, dare I say it? than those possessed by some members of the Home Office. Prior to publication of the Bill it had not become apparent to us that anyone should interpret Clause 32 as applicable to the provisions of the Official Secrets Act. I should like to assure the Committee categorically that there has been no intention in the Government's mind of using this provision for the kind of blanket exemption which some claim that it could provide. In the Government's view, to use this provision in such a way would so nullify the provisions applying the Bill to the Crown that it would come close indeed to an abuse of the powers conferred by the subsection. In order therefore to reassure the Committee of the Government's good faith in this regard, we are very ready to give to this provision the added guarantee which would be provided by making it subject to the approval of each House. Therefore, I am happy to accept the noble and learned Lord's amendment.

§ Lord Elton

I hope that the noble and learned Lord will not be disappointed by what I am about to say but, by a slip of the tongue, my noble friend was disapplying the whole of Clause 32; in fact the reference should be to Clause 32(1) and that is embraced by the amendment, but I should not want the record to be misleading.

§ Lord Elwyn-Jones

I do not know whether to cheer or not. Is the noble Lord accepting the amendment without qualification?

§ The Lord Chancellor

He has accepted it!

§ Lord Elwyn-Jones

Eureka! Hooray! Thank you very much.

§ Lord Glenarthur

Clause 38 of the Bill is fairly complicated and establishes transitional arrangements to enable the provisions of the Bill to come progressively into force, and it has been designed so as to allow sufficient time for both the registrar and those who will be affected by the legislation to complete the various tasks that will be required of them.

Very briefly, the scheme provides for a day to be appointed by the Secretary of State, during the six months following which there will still be no requirement to register but there will be the opportunity to submit applications for registration. There will then be another 18 months, during which users and bureaux will be required to register but during which period the registrar will not be able to serve a notice which requires compliance earlier than the second anniversary of the appointed day. My noble friend's amendments substantially change that procedure, by allowing for more than one day to be appointed.

The effect is to bring the provisions of the legislation into force progressively so far as different types or categories of data use are concerned, rather than requiring every sort of activity to come into conformity with the legislation at the same time. Such an approach takes us back into the realms of codes of practice, where the approach would, as I understand it, be to apply the legislation sector by sector once appropriate codes for each sector had been worked out. If we were going down the road of codes of practice, then I could understand why it might be necessary to apply the legislation in stages, as is being 740 suggested, to allow the registrar time to work his way round each individual area.

I would also point out that, quite apart from the question of whether we should approach data protection across the board, as the Government have done, or sector by sector, as these amendments imply a desire to do, these amendments simply will not stand up on their own. As the Bill is drafted, the appointing of a day by the Secretary of State is tantamount to saying that the offence of being an unregistered data user or computer bureau will come into force six months thereafter.

What would happen, however, if more than one day were appointed—given that the amendments do not provide a mechanism for distinguishing between days appointed in regard to one category of data and another? The same problem would apply to subsection (2), which relates the second part of the initial two-year period to the six months, and to the remainder of Clause 38, all of which is founded upon the assumption of a single starting day. I hope that my noble friend will at least be able to read and understand what I have said, and that he will withdraw his amendment.

§ Lord Mottistone

I will certainly read that explanation with great care and may come back at Report stage. Meanwhile, I beg leave to withdraw the amendment.

§ Lord Glenarthur

I am afraid we do not believe that the Bill is in need of elaborate phasing-in provisions. Why do we need to place on the registrar the burden of deciding who should register first, who later? What yardsticks is he to use, what limit should the time-scale have, how does he deal with multiple users? The main objective must surely be to establish the register at the earliest opportunity, enabling us to move as rapidly as possible to ratification of the Convention. That is why we have gone for the approach in the Bill of an 741 appointed day which ushers in a six-month period during which all registration particulars must be lodged. Of course, there will be a great mass of these. And without special provision the registrar might get bogged down. But the special provision is there, in Clause 7(5). And we fully expect the registrar at the outset to make generous use of the ability that Clause 7(5) gives him to allow users to operate pending his processing of their application.

We believe that this is a practicable means of establishing the register with the minimum of delay, reassuring opinion both at home and abroad that the scheme will be fully operational as rapidly as possible and avoiding the utter confusion that would befall both the registrar and data users if the amendment proposed by the noble Lords opposite were accepted. I hope the noble Lord will agree to withdraw the amendment.

§ Lord Mishcon

The attempt was to be merciful. The noble Lord thinks there is no need for mercy and that it is far more merciful to leave the registrar deciding which should go into what phase by way of applications. In view of the expression of opinion by the Minister, who I suppose has taken advice, I beg leave to withdraw the amendment.

§ Lord Glenarthur

To place users in the position where the registrar could insist upon full compliance with the requirements of the legislation only six months after the day to be appointed by the Secretary of State under Clause 38(1) could be to place some users under substantial economic and administrative burdens. I make no apology for resisting that proposal on this ground alone. The Government are as anxious as anyone to see the early implementation of data protection legislation, in order at the earliest possible date to be able to ratify the Council of Europe Convention and to provide the protection which it is the intention of this Bill to provide.

But we have made it a clear element of policy that doing so should not impose an undue burden on either the private or the public sectors. We have argued throughout that public sector costs must be kept 742 within existing planned totals and we have made equally clear our determination not to place excessive burdens on the private sector, either. To provide two years from the appointed day (with discretion for the registrar to permit longer in individual cases if cost considerations demand) seems to us the appropriate means of allowing users to co-ordinate making whatever changes to their systems may be necessary with the planned replacement of equipment. To shorten that period by 18 months (albeit while still allowing the registrar discretion to permit longer if he wishes) would, we think, make life substantially more difficult and expensive for the private and public sectors. We must maintain a sense of proportion in all of this, and, while in no way reneging from the importance of data protection, introduce that protection in ways that cause the least disruption to all involved. I hope that in view of what I have said the noble Lord will withdraw his amendment.

§ Lord Mishcon

I shall certainly study what the noble Lord said. Obviously there is much force in the argument he uses, and at this stage I ask the Committee's leave to withdraw the amendment.

§ The Deputy Chairman of Committees (Lord Ampthill)

Before calling Amendment No. 168, I have to point out to the Committee that if it is agreed to I cannot call any of the other amendments on the Marshalled List.

§ Lord Elwyn-Jones

May I be permitted not entirely out of professional loyalty to add our gratitude to the noble and learned Lord the Lord Chancellor for his participation in this endless long vigil to which we shall return again?

§ Lord Elton

Before the noble Lord does not move his amendment, may I on behalf of my colleagues, both learned and otherwise, respond to the kind words that have been said and respond in kind. Your Lordships have for the most part been most patient, pretty lucid and fairly forgiving. Moreover, it has also been possible for me to resist your Lordships when it has been necessary. We are all grateful for that and for the good spirit in which your Lordships have taken our success.

§ Lord Mottistone

As the enfant terrible of this affair, may I apologise to your Lordships and say how very charming your Lordships have been in accepting the difficulties that I have created for you?

§ Lord Wigoder

May I make it clear that I had of course included the noble and learned Lord as one of those who were, for this purpose, on the Front Bench opposite?