§ Report stage resumed on Clause 28.
§ 8.44 p.m.
§ Lord Wigoder moved Amendment No. 74A:
Page 21, line 34, at end insert—
("Provided that in the event of personal data having been disclosed under this subsection for any of the purposes mentioned in subsection (1) above the person disclosing such information shall within four weeks of such disclosure notify the Registrar in a prescribed form of the extent and nature of such disclosure and the purpose thereof.").
§ The noble Lord said: My Lords, the vast majority of your Lordships now present will recognise this amendment as being the first half of an amendment that was tabled at Committee stage. The second half was shot down in flames by the noble Lord, Lord Swinfen, among others, and I think, on reflection, quite rightly so. But the first half obviously had some appeal and was of some interest to the Government.
The noble Lord, Lord Elton, at the end of the discussion on this part of the amendment, said:
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.
That is not, I think, the first time that the noble Lord has used that expression. He went on to say:
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."—[Official Report, 22/2/83; col. 713.].
§ The object of the amendment is to ensure that exempt disclosures are registered. This would then enable the registrar in the course of his annual report to Parliament, or in any other reports that he thought appropriate, to draw attention to the extent of such disclosures if he thought it appropriate to do so. This would then enable the various professional bodies in particular that are concerned about the extent to which there might be disclosures of confidential information, to see to what extent the process is extending. This monitoring might, I think, be in the interests of the general public and particularly of data subjects.
§ In those circumstances, I have tabled this amendment at a late stage, waiting to see whether the Government tabled one of their own, in order to see what the noble Lord, Lord Elton, has to say about his further thinking that he indicated on Committee stage. My Lords, I beg to move.
§ Lord Elton
My Lords, I am indebted to the noble Lord, Lord Wigoder, for the care he has taken to 684 remove those elements in the amendment that he moved in Committee to which I (and indeed my noble friend Lord Swinfen) took exception. I have to say that, to my eyes, the amendment he has just moved raises far fewer difficulties. Gone are the references in particular to the registrar giving subject access to data disclosed for crime prevention purposes under Clause 28(2), which was a particular failing of the earlier version. Now, my Lords, we have a proposal simply that what we can call for convenience "exempt disclosures" should be notified to the registrar in a prescribed form.
Under the Bill as it is presently cast, of course, the registrar is already fully empowered to check up on any disclosures and consider whether they are covered by the user's registered particulars. If they are not so covered, and a claim to exemption is made by the user, the registrar may investigate whether that claim is well founded. If not, he can of course take action against the user. However, I see the point that the noble Lord is making, although I think it is necessary—and I referred to this in Committee—to look very carefully at any mechanism that submits every exempt disclosure to a new notification procedure.
In Committee I undertook to think further about the approach that the noble Lord—on behalf, as he said, of the BMA—had put forward. He has now presented it in a refined version—and certainly a version that avoids some of the more prominent problems. I am grateful for that. I hope that he will understand that I do not think that we are yet at the point where we can clearly see where we should go. We shall certainly examine further the approach that the noble Lord has urged upon us. But we do want to consider with some care the implications of what he proposes both for the registrar and for the police. Let there be no mistake: we are determined not to compromise effective law enforcement; we must never lose sight of that. We also want to pay particular attention to detail here, to ensure that if any new procedures are introduced they are properly designed to achieve the desired aim.
I appreciate that I have not given the noble Lord a firm "yes" on this amendment, but he will appreciate that I have not given him a firm "no". I hope he will be patient. This is something on which it would be foolish to rush our fences. We want to look at it further, and therefore I hope that he will not press it now, because he could, I think, be satisfied with the clear understanding that we have expressed of what is being aimed at, and our readiness to continue our examination of his proposal that we have already started.
§ Lord Wigoder
My Lords, I regard the observations of the noble Lord, Lord Elton, as a constructive reply to this amendment. I am pleased to learn that the Government will continue to consider the merits of what I appreciate is a problem that has many difficult edges. In the knowledge that they are going to continue to consider it, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.685
§ 8.50 p.m.
§ Lord Houghton of Sowerby had given notice of his intention to move Amendment No. 74B:
Page 21, line 42, at end insert—
("(5) Nothing in this section shall override, abrogate or alter the form of the declarations of secrecy required respectively by section 58 of the Finance Act 1969 (relating to disclosure for statistical purposes by the Board of Inland Revenue) and by Parts I, II and III of Schedule 1 to the Taxes Management Act 1970 from General and Special Commissioners of Taxes, the Commissioners of Inland Revenue, Inspectors and Collectors of Taxes, and other officers.").
§ The noble Lord said: My Lords, in view of the fully satisfactory reply that the noble Lord gave to my comments on Amendment No. 73, there is no need for me to move Amendment No. 74B.
§ [Amendment No. 74B not moved.]
§ Clause 29 [Health and social work]:
Lord Avebury moved Amendment No. 75:
Page 22, line 1, leave out subsection (1).
The noble Lord said: My Lords, this is a probing amendment designed to see where the Government have reached in their consultations with the bodies concerned on the appropriate restrictions to be imposed on subject access to health and social work records. I should like to remind your Lordships of what the noble Lord the Minister said on Second Reading. At column 1581 of the Official Report for 20th January 1983, he said:
We have not reached a final view on the appropriate restrictions upon subject access to health and social work records. In these areas it is essential that there should be full consultation with the medical and other professions involved. Those consultations are going on now".
He went on to say:
Clearly the restrictions on the right of access must be kept to a minimum, consistent with protecting the subject himself from coming up against information which could be seriously harmful to him. I am sure noble Lords would agree that we ought only to decide where that frontier of discretion lies in the light of the fullest discussion".
§ As I understand it, consultations are still in progress with medical and other related professions. But I am also informed by Dame Elizabeth Ackroyd, the Chairman of the Patients' Association, that that association has not yet been consulted. I do not think that any other organisations serving the interests of patients have been brought into the discussions either. But I am informed that the view of the Patients' Association is that people should have access to their records, if they wish; that that is on record with the Home Office in the reply that it made to the White Paper on Data Protection; and that it believes that there is nothing in law to prevent access now, although in practice doctors very rarely agree to it.
At the Consumer Congress in 1982, where there was representation of a very wide range of consumer bodies, a resolution was passed including, inter alia the thought:
that patients be given fundamental rights regarding access to information, including case records".
§ Turning from the general to the particular, the Patients' Association knows from its own files of cases put to it by individuals, that many people are worried by the refusal of access to their records and they may 686 well suspect, rightly or wrongly, that comments are made about their characters and circumstances which prejudice the attitude of doctors towards them so that their medical treatment is also affected; or they should like to have a truthful diagnosis of the disease and they worry because they believe that the doctor has not been prepared to divulge it to them.
§ Unfortunately this matter was not dealt with by the Lindop Committee which said that the climate of opinion was moving in the direction of greater openness, but it would be a mistake to embody in the legislation itself an exception to the general rule that a data subject should be able to see his records. However, in a number of other countries including Sweden, Norway, France, West Germany and Austria, the legislation has been passed in a form which gives patients access to their individual medical records. There could be safeguards against access which would be likely seriously to damage the patient's health or that of another person. The example might be where there was a note in the record that a child was not the husband's, but the husband did not know that. I believe that in some psychiatric cases there would be justification for non-disclosure. Also there could be an appeal procedure as in Sweden where there have been only a handful of cases of refusal of access to records. The Patients' Association itself agrees that access could be refused in certain circumstances but it also holds that the onus should be on the data user to prove the case for refusal and that there should be such an appeal procedure.
§ In their evidence to the Lindop Committee the association declared that there should be an appeal to the data protection authority, which was then proposed, against a doctor's refusal of access, because it said at the time that doctors were often unnecessarily secretive and possessive about their records. In the present circumstances what is suggested by the association is that a general appeal procedure should be provided in the Bill, although in other circumstances it might have preferred the health ombudsman.
§ So to summarise: its is submitted that most patients worry about access to their notes and it is the refusal of access to case records which causes anxiety. Secondly, the vast majority of medical records at present are manual and therefore are not directly affected by the Bill. But if the Bill were amended so as to allow access in principle to computerised records, then the practice is bound to extend sooner or later to the manual records and this would be in accordance with what the Lindop Committee said about movements in the climate of opinion. I beg to move.
§ Lord Drumalbyn
My Lords, I should like to ask my noble friend what really is the status of this particular subsection. It is perhaps a little surprising to find the subsection in this form in a Bill of this kind. I have no doubt that consultations have been taking place, and I take it that perhaps those consultations have not yet been completed. But to find a subsection subject to affirmative procedure order is at least surprising. I wonder whether the Government intended that it should be rather consultative at present, with perhaps the possibility of reaching a decision as regards the final form before Parliament passes this measure. What do the Government really intend here? Is it 687 intended to get further experience of the working of this, and if so what does the noble Lord hope to achieve, and how long does he think it will take to achieve it?
§ Lord Elton
My Lords, the noble Lord, Lord Avebury, will be aware that this amendment would have diametrically the opposite effect to one moved in Committee by his noble friend Lord Wigoder. That amendment sought to require the Secretary of State to introduce orders providing exemption from subject access to health data. This amendment, on the other hand, seeks to make all health data available to subjects by preventing the Secretary of State from having such powers. But as this is a probing amendment I think that is merely a matter of elegant tactics.
The application of this legislation in the health field raises, as your Lordships realise, very sensitive questions particularly when it comes to subject access. We need to consider very carefully whether it is right in all circumstances for a data subject to have untrammelled access to all the health information which may be held about him. Is it right, for example, that a doctor should be obliged to tell a subject that he has an incurable or terminal illness? Some, I suppose, may be secretive by nature, as the noble Lord suggests, but what about when the doctor sincerely and rightly believes that doing so would cause unnecessasry suffering or distress? Would it be right to provide subject access if so doing would disturb the patient and prejudice his successful treatment in a non-terminal disease?
These are fundamental questions and we cannot brush them aside just because they prejudice a right of access which in other respects we value so highly. We therefore provided in Clause 29(1) a mechanism by which constraints can be placed on access should we consider constraints necessary. Obviously we shall take account of the advice of the medical profession in coming to a conclusion about making the order, and we are indeed aware of the Patients' Association's views and they will form part of the matter which we shall then consider.
It does not mean that an order will mean that there will be necessarily total exemption for all health data. What Clause 29(1) does is to keep our options open by allowing constraints to be applied should we need them. I think that is probably the answer to my noble friend who asked why this was in the Bill in this form. It is a power available should it be needed, and because it touches a sensitive and important area it is subject to the affirmative procedure in Parliament so that it cannot be slipped through as an administrative démarche.
In following this path we are fully in line with Article 9.2.B of the Convention which provides for derogation from the general principles in the interests of protecting the data subject. We are currently consulting with health professional groups to determine what arrangements might need to be made. I do not wish to prejudge the outcome of these discussions, but your Lordships will be aware that any orders which are made under this provision will need the approval of both Houses of Parliament. By using 688 this method we have preserved flexibility, what is more, to meet changes of practice within the professions from which we take the advice.
§ Lord Avebury
My Lords, I was rather hoping that the Minister could tell us a little more about the nature of this consultative process. Although I entirely appreciate what he said about the sensitivity of the questions we are now dealing with, it would be right that Parliament should have some idea in mind of the nature of the likely regulations that are going to be made by the Government while there is still an opportunity of discussing them in the proceedings on the Bill, rather than wait until the affirmative orders are made at some subsequent time.
It would be much more convenient for the professions themselves if there could be the fullest possible discussion between us during the proceedings on the Bill, and particularly in another place, rather than wait until some time afterwards to know precisely what kind of orders the Minister is going to make. I said that this is a probing amendment and I meant it. I am not going to push it any further at this stage. Having laid down the marker, I think it will probably have to be left for our colleagues in another place to take this a stage further. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 31 [Domestic or other limited purposes]:
§ 9.4 p.m.
The Lord Chancellor moved Amendment No. 76:
Page 22, line 30, leave out ("Parts II and III of this Act") and insert ("Part II of this Act and of sections 21 to 24 above").
§ The noble and learned Lord said: My Lords, I spoke to this with Amendment No. 64, which was accepted. I therefore beg to move.
§ On Question, amendment agreed to.
Lord Elton moved Amendment No. 77:
Page 22, line 35, after ("held") insert ("by a data user").
§ The noble Lord said: My Lords, with permission, in speaking to Amendment No. 77 I shall speak to Amendment No. 80 as well. When I do so I shall probably also refer to Amendments Nos. 79 and 81. Those are amendments tabled in the names of noble Lords opposite. It would be wrong to claim that these are Government amendments. Noble Lords opposite had a large hand in the genesis of what I now propose. The noble and learned Lord, Lord Elwyn-Jones, has been helpful in drawing our attention to the fact that subsections (2) and (3) of Clause 31 are cast in such a way that the exemption can be claimed when subjects have consented only to the data being held. This has the effect that once a subject's consent has been received, the exemption can be claimed. And if the data are then disclosed to another user, even though the subject may not know of it, the new user can also claim the exemption.
§ That was not our intention. And we have looked again at the provision in the light of what the noble and learned Lord said. He and the noble Lord, Lord Mishcon, have tabled their own amendments to Clause 31. I have to say that they do not quite do the trick. Subsection (2) is drafted in terms of data being 689 exempt in certain circumstances. Any disapplication of the subsection also has to be in terms of data—one cannot do it by drafting in terms of disclosures as the noble Lords have sought to do. However, to try to achieve the desired effect by drafting in terms of data the disclosure of which has been consented to, leads, we found, to a quite extraordinarily complicated and convoluted provision. And that is why we have taken the approach in Amendments Nos. 77 and 80 which allows for very neat drafting and overcomes the problem by a somewhat different means. What we have done is to insert the words "by a data user" in line 35 so that the data to which both paragraphs (a) and (b) of subsection (2) refer are held by identified persons. That enables us then, with the second amendment, to tie the exemption in subsection (3) down to the specific user to whose holding of the data the subject has consented.
§ Thus, if a user benefiting from the exemption passes the data on to another user, that user will not inherit the exemption, and that is what the noble Lord sought to achieve. In order to benefit from it himself, he will have to give the subjects the opportunity to object to his holding it. By taking this approach, we have avoided a cumbersome new provision and have achieved, we believe, the result which noble Lords opposite desired. I am grateful to them for having drawn our attention to the point and hope they will accept my assurance that it is herein met. I beg to move.
§ Lord Elwyn-Jones
My Lords, I am grateful that the Minister has taken up the point that was raised in earlier amendments. He then accepted the case for the principle we referred to and undertook to try to remedy the mischief. It would seem that the mischief has now been remedied, but we shall look a little more closely at this group of amendments before the final stage of the Bill. In the meantime, we are grateful to him for having taken up the point and for so generously acknowledging the fons et origo of it.
§ On Question, amendment agreed to.
The Lord Chancellor moved Amendment No. 78:
Page 22, line 39, leave out ("Parts II and III of this Act") and insert ("Part II of this Act and of sections 21 to 24 above").
§ The noble and learned Lord said: My Lords, I spoke to this with Amendments Nos. 64 and 76, and it is consequential on them. I beg to move.
§ On Question, amendment agreed to.
§ 9.11 p.m.
§ Lord Drumalbyn moved Amendment No. 78A:
Page 22, line 39, at end insert—
("( Personal data comprising only names and addresses available to any person from published sources are exempt from the provisions of Part II of this Act and of sections 21 to 24 above.").
§ The noble Lord said: My Lords, I feel rather more than usually diffident in intervening in the discussions at this stage, when nearly everyone here has borne not only today but several days on the Bill. This amendment reflects a matter that has been put to me, a matter of which I have perhaps a little more knowledge than I have of most of the rest of the Bill. 690 Its effect is intended to exempt from the provisions of Part II and Sections 21 to 24 of the Bill personal data held by a data user and comprising only names and addresses, which are available to anyone who cares to cull them from published sources such as electoral rolls and telephone or street directories or to acquire them from someone else who has taken the trouble to do so. The sources, in other words, are the data subjects themselves who supply the information to those who compile those publications.
§ The provision would cover exemption from Part II, which deals with registration; from Clause 21, which deals with the rights of data subjects to access and the obligations of data users to accord access; from compensation for unauthorised disclosure; and from the obligation to rectify or erase. If anybody wonders what would be the good of holding a list in the form of personal data consisting only of names and addresses, the answer is that it is important to thousands of people in business, not to mention charities and other organisations, to have such lists. But the data must be such that they are as accurate and up-to-date as possible.
§ I can see no need at all to impose a duty to rectify the list where the name is misspelt or the individual has changed his or her address. I say that because it is very much in the interest of the data user to get and keep his data—consisting only, as I say, of names and addresses—right. If anyone receives a communication from the data user which is wrong in any respect, that recipient, if he is interested, will be quick to point out the error to the data user, and the data user will be equally quick to rectify the error. It is in his interest to do so. It follows that the courts should never be involved. Principle No. 5, so far as I can see, is safeguarded by common interest, at least to the extent that it can ever be safeguarded, and I am a little doubtful whether it is possible to safeguard it completely.
In response to an amendment moved by my noble friend Lord Mottistone, my noble friend the Minister said:
… 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".—[Official Report, 22/2/83; col. 721.]
Certainly I have not spent years studying real-life cases, and I doubt whether he has either, (though he must have studied quite a lot recently), and apparently some who have did not reach the same conclusion—assuming, if I may say so, his quote is wholly accurate. As to the many who were forced to reach it, perhaps my noble friend could tell your Lordships what forced them to do so? Was it facts, or was it fears? Can he give any examples?
§ It is difficult to see what possible harm lists of names and addresses of themselves could do. Even if they are not wholly accurate or up to date on any given day, all the harm that I can see that could be done would be in expenditure wasted on the part of the data user, to the extent that some of his communications would not reach their destination. I can see no other harm being done. I suggest that nobody can reasonably doubt that such lists are necessary, whether or not the information that they contain is translated into data. What is certain is that it is sensible to take advantage of modem technology and to translate the lists into data 691 because it is more efficient and more economical, especially when larger lists are concerned. I venture to suggest that it is also sensible to avoid the cost of registration, if registration is demonstrably not essential and no harm can result to the data subject.
§ The Government have gone a long way in Clause 31 to ease the burden on the registrar. There is a very real danger that that poor gentleman, or lady (as it may be), and his or her score of staff will be literally smothered by applications for registration and subsequent complaints. I am given to understand that that actually happened in Norway. There, it seems, the data commissioner had to implore the Government to restrict the scope of the Act. I am also told that in other countries where data protection legislation has been in force for some time distinctions between harmless and potentially harmful data have worked quite satisfactorily, even though they go rather further than does this amendment.
§ What practical use is made of lists of names and addresses? I am told that they are used for the purposes of address verification; that is, keeping the names and addresses accurate. Among the users are companies, charities, political parties, and even private individuals.
§ Some of your Lordships may feel that the amendment is unnecessary; you may feel that it is inconceivable that the registrar would rule that such purposes were incompatible with the measure. In any case the burden of registration in each instance would be very light. But can we be sure about that argument? Take, for example, the electoral register. Let us suppose that an electoral registration officer failed to register as one of his purposes the making available of the electoral register to data users who wish to bring their own names and addresses up to date in the register. The electoral register is, I believe, the only countrywide list that records in every year the names and addresses of electors, including new addresses, new households forming, others disappearing, entire streets being pulled down, and new houses being erected. Surely it is self-evident that to deny business, not to mention again charities, and everyone else, who wish the use of the electoral register for verification of their lists of names and addresses would work to the detriment of data users and data subjects alike. Indeed, it would bring data users into conflict with principle five, which lays a duty upon them to keep their lists up to date.
§ The main difference between the amendment and subsections (2) and (3) is that under the amendment there is no obligation on the data user to consult each prospective data subject on whether he may hold data about him, even though it is limited to name and address. I feel that the scale of some of the lists involved would make that quite impracticable on grounds of costs alone. Moreover, such consultation would itself constitute unauthorised use of personal data in some cases.
§ As I did not have an opportunity of introducing this amendment at an earlier stage, perhaps your Lordships will bear with me a minute or so longer. I wonder how a businessman could set about availing himself of the exemptions in subsections (2) and(3) unless he first compiled a list of potential customers 692 and clients whom he could ask whether they objected to his holding data relating to them. I have no doubt that it could be done, but only by antiquated methods and at much greater cost. My case for this amendment is that the personal data which it seeks to exempt are finite in quantity, definite in character, inexorably public and, so far from being harmful, are of considerable benefit to both data users and data subjects.
§ I very much hope that my noble friend will see fit to accept it, at least in principle, even if its drafting is imperfect. There is, after all, another stage of the Bill in this House, not to mention the stages in another place. I beg to move.
§ Lord Mishcon
My Lords, the noble Lord, Lord Drumalbyn, always puts a case very effectively. If I may say so on this occasion, I wonder whether he realises (unless I am wrong) that there is a door that he has left open. We are dealing with personal data here. Let us take it for granted that you merely have names and addresses of people—and they could include the name of the noble Lord, Lord Elton, the name of the noble Lord, Lord Drumalbyn, or my own—who were accustomed to play truant at school. I am giving an amusing example, I hope, but, of course, the examples could be such that they are not amusing.
You have the heading: "Those who played truant at school and who are Members of the House of Lords", and you have, say, three names and three addresses underneath. The heading is not within the definition of "personal data". That may be the fault of the noble Lord the Minister for not listening in a more receptive way to the speeches that we made from these Benches when we were trying to define terms. At all events, the heading would not be "personal data". What was underneath would be the name and address. But what would be the result of that would be something that I am sure that the noble Lord, Lord Drumalbyn, had not got in his mind when he was moving this amendment. For those reasons, unless the noble Lord the Minister or the noble Lord, Lord Drumalbyn, feel that my reasoning is wrong, I should have thought that we should accept this amendment with great hesitation.
§ 9.23 p.m.
§ Lord Elton
My Lords, My noble friend Lord Drumalbyn is in effect offering with this amendment a slightly less restrictive version of the exemption already in Clause 31(2)(b). Where we have limited the purpose for which names and addresses should be held to the distribution of articles, my noble friend suggests that there should be no limitation as to purpose. I am not sure whether there is anyone who can envisage what sort of data user would hold only names and addresses—and it is only names and addresses; any other information and the exemption is lost—for a purpose other than distributing articles. My noble friend may have suggested some.
My first impression is that it is difficult to see any objection to the broadening of Clause 31(2)(b) in the way my noble friend suggests. I shall read with care what the noble Lord, Lord Mishcon, has said—not all of which will be as misleading as his representations of my school attendance record appear to be. However, I would prefer not to accept the amendment at this 693 stage. First, because on its own it duplicates the existing Clause 31(2)(b). We ought to have either one or the other in the Bill. Secondly, we have to decide whether the qualifications in Clause 31(3) should apply to these data. Placing the provision as he does in the clause my noble friend does not make his intentions altogether clear in that respect.
Finally, I should not like to give the impression that this is the end of the hunt. The noble Lord said that we were looking for wholly harmless data. My noble friend has perhaps found a unicorn, but it is a remarkably small one. Indeed, I have a feeling that it would in practice be of value to very few data users. None the less, I am most obliged to my noble friend and I hope he will accept this treatment of his amendment.
§ Lord Drumalbyn
My Lords, I am grateful to the noble Lord opposite and to my noble friend beside me here for their courteous rejoinders. May I just say again, before withdrawing my amendment, that there is a great difference between my amendment and subsections (2) and (3), in that my amendment does not give an opportunity to the data subjects to object—not that they will necessarily take their opportunity. But this is a very big one and it is essential to the purpose that I have in mind in proposing my amendment. I ask my noble friend to bear that in mind. Again, I think him for the way in which he has responded, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 79 not moved.]
Lord Elton moved Amendment No. 80:
Page 22, line 42, after ("asked") insert ("by the club or data user").
§ On Question, amendment agreed to.
§ [Amendments Nos. 81 and 82 not moved.]
§ [Amendment No. 82A not moved.]
§ Clause 32 [Other exemptions]:
Lord Mishcon moved Amendment No. 83:
Page 23, line 17, after ("out") insert ("bona fide academic").
§ The noble Lord said: My Lords, I wonder if I may shortly remind your Lordships of an interesting discussion which took place and is recorded at col. 734 of the proceedings on 22nd February, at the Committee stage. I then attempted to argue that there should be some definition of "research" because indeed some statistical research might be the sort of research that one would want to catch under the Bill, whereas other types of research would be such as we would not want to catch. After, the noble Lord, Lord Elton, had courteously driven his unicorn in this direction and caused it to utter certain words of wisdom, such as that he felt that there were types of research which would fall into one definition and not into another and that 694 one should be very careful that one was not including or excluding types of research that ought to be excluded or included.
§ I then ventured to say that possibly it might be suitable if the noble Lord the Minister and I could correspond between the Committee and the Report stages to see whether an agreed definition of "research" could come out. I know that the noble Lord the Minister has been engaged upon activities that are much more important than corresponding with me on a description of "research". That is obvious from the fact that I have not received a letter from him. Thus I was left with no alternative, together with my noble friends, but to answer his challenge and to try to do the best I could by way of a definition. If, as a result of the Minister's cogitations he is now able to give a better definition, or to argue why there should be no definition at all, I should be delighted to hear from him. In the meantime, I beg to move.
§ Lord Mottistone
My Lords, for once, I have to make an unqualified objection to this amendment. To put "bona fide academic" in the clause cuts out all sorts of other research—commercial research—which it would be very important to have exempt, except of course when the results were in a form which identified the data subjects, or any of them, which is in the rest of this subsection. So I would hope very much that my noble friends will resist this and not accept the qualification.
§ Lord Elton
My Lords, I think I ought to start with the words: "Mea culpa, mea maxima culpa". I apologise both to the noble Lord for the discourtesy to him in not having written to him and to your Lordships for necessitating my rehearsal now of the points he wishes to hear.
Clause 32(3) provides an exemption from subject access for personal data held only for the purpose of preparing statistics or carrying out research. The Government believe that personal data held in these circumstances pose no great threat to the privacy of data subjects since they are rarely published in a form that identifies data subjects—and your Lordships will note that it is a condition of the exemption which is set out in Clause 32(3) that the results of such statistical and research work should not be published in a form which identifies data subjects. Indeed, we believe that data used in these ways are not held for a purpose which is "personal" to the data subject at all. The fact that they are personal data is incidental to the primary statistical or research use of the data. We also recognise that it would be quite unduly burdensome on users of these data to grant subject access to them. We have concluded that an exemption from the requirement to grant access is justified and will not detract from our scheme's protection of data subjects.
I should stress that the exemption is available only when the data concerned are used for statistical and research purposes, and no other. Once data are also used for some other purpose, the exemption is lost and subject access has to be given. And, secondly, the exemption is dependent on the data not being made 695 available to anybody else in a form that identifies the data subject. I think that those two conditions go a long way to ensure that the research will be, as the noble Lord requires, "bona fide". Certainly I would have strong doubts about using such a phrase in this context: it seems to add nothing of worth to the provision.
Perhaps I should turn to the other leg of the noble Lord's definition, which is "academic". The effect of that qualification is far from clear to me. We discussed a similar amendment at the earlier stage. That would have limited the exemption to historical or scientific research, and my objection then was that this would be over-restrictive.
I do not think that this reply is actually answering the noble Lord's principal point, to which I have already addressed myself. It is not the kind of research that is the main factor in allowing exemption; it is the fact that it is research and therefore the use of personal data in a particular way that places the privacy of the subject at only minimal risk. That, and the requirement that the results shall not be served up in a way which identifies the subject of the research, renders them immune from harm. I hope that what I have said does somewhat reduce the noble Lord's anxiety in this field.
§ Lord Mishcon
My Lords, I acquit the noble Lord the Minister of any discourtesy: that would be the last thing he could ever be accused of. But I confess that I am still unhappy that the word "research" has no definition because we can all imagine types of research which all of us would wish to be caught by this Bill. I could do no more than put down the amendment with words that I realised, even when putting them down, would not satisfy your Lordshps or the noble Lord the Minister. But I do beg of him to consider the principle involved and to see whether, with the expert guidance that he has and which is not available to me, he can think of some way of dealing with the problem which I think still exists. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9.35 p.m.
Lord Mishcon moved Amendment No. 84:
Page 23, line 20, leave out ("identifies") and insert ("enables").
§ The noble Lord said: My Lords, if it is your Lordships' wish, I can speak to Amendments Nos. 84 and 85 together. The purpose of these amendments is to remove what I think learned statisticians call the "small cell". In other words, what you do in a published research study is so to describe a situation that, although you do not name somebody, you quite clearly identify him. To give an example of that, if there is in a very small village one gentleman who has the privilege to be coloured, and you therefore talk about a coloured person in that village, quite obviously, although his name has not been mentioned, everyone can clearly identify him. It is that which we are trying to get at by the use of the words in the amendments.696
§ The Lindop Committee, which I understand included a professor of statistics and, indeed, a distinguished epidemiologist, dealt with this problem in paragraphs 26.6 and 26.7 of its report, and I understand that there is no reason to anticipate any objection to these amendments from those of the community of statistics and research. In view of the desirability of getting over the problem to which I have ventured to address myself to your Lordships, I beg to move.
§ Lord Elton
My Lords, the noble Lord's amendments would alter the circumstances in which statistical and research data qualified for the exemption from subject access which Clause 32(3) provides. As drafted, the exemption could be claimed, provided the results of the work in question were made available in a form which did not identify any of the data subjects—that is to say, the results did not in themselves identify the individuals in question. The apparently minor modification which the noble Lord's amendments would introduce, of allowing the exemption only where the result did not enable the data subject to be identified, would, in fact, be a substantial change, as a result of which, I suspect, this exemption would become worthless to the majority of those engaged in work in this area.
In the Bill as drafted, the test is whether the results themselves identify individuals, without any further information having been brought to bear. It need not be a matter of a data subject being identified by name, but it would rely upon the possibility of identifying an individual from the research results alone. To accept the noble Lord's amendments, on the other hand, would entail depriving researchers of this exemption, if the results simply enabled individuals to be identified—whether as a result of further research, or as a result of some further knowledge, which anyone having access to those data might, quite accidentally, happen to possess.
It might, for example, be that a prison governor, by reason of the specialised knowledge he possessed of the inmates of his establishment, was able to identify certain of the anonymised individuals in regard to whom a piece of penal research had been undertaken. The result of the noble Lord's amendments as I read them is that, in [...] latter instance, the research would not qualify for exemption, even though to anyone else reading the results there would be no possibility of identifying anyone. And the problem is that those preparing the statistics or carrying out the research would very seldom be able to know in advance whether there might be some individual possessed of this specialised knowledge and thus capable, for himself, of identifying an individual data subject. In other words, we would have provided an exemption, but effectively have ensured that it was unlikely ever to be of any practical value to those whom it was designed to help, because they could not know what other knowledge those looking at their published results would have. I see the force of what the noble Lord has said. We have looked at the area with some care, but we seem to have come as close as we can to the edge of what he wants he wants without dissipating altogether the usefulness of the exemption. I am sorry we cannot do better.
§ Lord Mishcon
My Lords, I thought I detected—and colleagues in the law will recognise what I am saying—a Hulton v. Jones point in the answer which the noble Lord the Minister gave. If, after the consideration which has undoubtedly been given to the matter, the noble Lord has been advised that it is impossible to go further without going over a boundary that neither he nor I would want to do, I must be content, certainly for the time being, with his answer. In those circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 85 not moved.]
§ 9.42 p.m.
Lord Avebury moved Amendment No. 86:
After Clause 32, insert the following new clause:
§ ("Regulation of exempted data.
§ The Secretary of State may make regulations requiring data users holding data exempted by this Part of this Act from any provision of Part II or III of this Act to conform to provisions specified in those regulations with respect to those data.").
§ The noble Lord said: My Lords, this is another approach to the problem of the potential harm which may be caused as a result of the exemptions in the Bill. Here, instead of removing from the area the exemptions which we discussed earlier, the notion I had in mind was to build in safeguards where personal data is under the control of an exempted user, and power is given to the Secretary of State to require such a user to conform to regulations. Although I appreciate my noble friend's reluctance to add to the number of ministerial discretions allowed in the Bill, I am afraid I am not capable of formulating precisely what kinds of restriction would be most effective in minimising the damage which is otherwise likely to be caused.
§ For purposes of illustration only, I mention again the British Medical Association's suggestion that each transfer of personal medical information should be recorded, together with a description of the type of information released. The association propose further that such transfers and descriptions should be published within a specified period of time in order that the decisions to disclose may be open to scrutiny and challenge.
§ If I were the Secretary of State I would wish to have such a power and I would execise it in order to see that at the very minimum regulations were made on the lines which the BMA have suggested. I would go further and say: why do we not provide that all transfers to exempt systems should be treated in the same manner? It is better not to try to draft across the Floor of the House the kinds of regulations which the Secretary of State would bring in if he had such a power. I believe that such a power is necessary, and I hope the Minister will agree to accept the amendment. I beg to move.
§ Lord Elton
My Lords, my starting point in dealing with the amendment, as I indicated to my noble friend Lord Swinfen in reply to one of the amendments which he moved earlier during the Report stage, is that an order-making power is not necessarily unobjectionable because there is no obligation to use it. Any such power on the face of the statute raises the expectation that it will one day be used and generates 698 pressure to use it, regardless of whether it is justified to do so. I am bound to say I do not envisage a circumstance in which it would be appropriate to make use of this sort of power. For one thing, as I also indicated in Committee, the Secretary of State already enjoys the power under the Bill to provide increased protection in the especially sensitive areas for which Clause 2(3) provides.
I argued to the noble Lord, Lord Mishcon, and I do so again here, that there is no reason why such safeguards might not extend to the function of making good protection lost by exemption, say, from the subject access or non-disclosure provisions. If it were ever right to use the power being proposed in the present amendment, then surely those are the very areas in which a Secretary of State might choose to use it.
Moreover, except in regard to data totally exempted from the provisions of the Bill, the registrar will still retain substantial influence in the case of other data. Apart from the area of national security and the limited exemptions for which Clause 31 provides, the registrar will always retain some powers wherever the other exemptions are claimed. There will be nothing to prevent him looking with particular care at data in respect of which, say, subject access exemption has been claimed, in order to ensure that such other principles as still apply in the circumstances of the case are being complied with. He might, for example, decide to examine with particular care a question such as the accuracy of the data or the security procedures being provided. Yet, this amendment would in some way double up that on aspect of registrar oversight. The registrar would pursue his course while the Secretary of State, albeit after consultation with him, would follow what might prove to be quite a different approach to the protection of the data in question.
I do not see from this amendment how that potential conflict can be resolved. Nor do I see how the Secretary of State would see to it that his own regulations were carried into effect. Would he be required to order the registrar to take certain action, which I believe would be a dangerous departure, given the care that we have taken to distance the registrar from the influence of the Secretary of State? Or is there to be some direct sanction applying to data users who fail to comply with the Secretary of State's regulations? The power given to the Secretary of State under Clause 2(3) is to augment the data protection principles, thereby automatically affecting the scope of the registrar's jurisdiction. There is nothing like that in this amendment, so that there is provision neither for the policing of these regulations nor for any sanctions.
I hope that I have said enough to make it clear why I believe such a power to be unnecessary and why I do not believe in any case that it would work. I hope that in so doing I have cast light on the areas of concern which the noble Lord wanted to be further illuminated.
§ Lord Avebury
My Lords, I shall have to study that reply and come back to the noble Lord the Minister at a later stage. At first sight, I am not happy that the provisions of Clause 2(3) entirely meet the point, because there the Secretary of State is given power to 699 modify or supplement the data protection principles in relation to personal data of a very limited kind—if the noble Lord will look at subsection (3)(a) to (d). There could be personal data of many other kinds exempted under Parts II and III of the Bill which the Secretary of State's powers would not touch at all.
The point made by the noble Lord about the registrar also does not satisfy me because the registrar will have no power to order that data exempted under 700 Parts II and III will be treated in a particular way. He would not, for example, be able to satisfy the suggestion of the British Medical Association that transfer to exempt systems should be recorded and that after a period of time they should be released. I would prefer to study the Minister's arguments in detail before deciding whether to take this matter any further. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.701
§ 9.49 p.m.
Lord Avebury moved Amendment No. 87:
After Clause 32, insert the following new clause:
§ ("Removal of exemptions
§ . The Secretary of State may by order remove exemption from personal data exempted by Parts II and III of this Act, or any personal data exempted by an order under section 32(1) above.")
§ The noble Lord said: Again, my Lords, I agree with my noble friend that one does not want to add needlessly to the powers of the Secretary of State; but here we have a case where the Secretary of State already possesses the power in Section 32(1) to exempt subject access provisions from personal data of certain kinds. This is a reciprocal power to allow the Secretary of State to remove exemptions from personal data under certain circumstances.
§ For example, if one takes the immigrant intelligence unit computer that we were discussing earlier, the noble Lord the Minister has assured us on several occasions that much of the personal data that is contained there will not be denied personal access, because it will not relate to persons who commit criminal offences and so on. So there may be parts of the files held by data users which would be properly exempted which the Minister would think fit to remove from exemption. I think therefore this is a power that he would like to have. I beg to move.
§ Lord Elton
My Lords, we are becoming familiar with the suggestion by the noble Lord that the Secretary of State should be given new powers, and on this occasion it appears to be even more far-reaching than on the last. For what is being suggested is that the Secretary of State should by order be able to reverse significant areas of the Bill as decided by Parliament. Those who have been most critical of the exemption provisions in Part IV of the Bill have asserted that these are issues of fundamental importance; we have spent some considerable time on them in your Lordships' House and I have no doubt that they will attract a lot of attention elsewhere in another place. Believing though I do that these provisions are right and necessary, I would be the last to deny the need for Parliament to give them the greatest possible scrutiny. But having said that, it seems to me inappropriate to suggest that those decisions should be made capable of reversal after a less thorough scrutiny than Parliament has given to their original formulation. I acknowledge that the noble Lord's consequential amendments to Clause 36 would subject any attempt to use this order-making power to the most rigorous of the forms of scrutiny available in the case of subordinate legislation—to resolution by both Houses of Parliament—but we do not need to go far back in Hansard to find the noble Lord himself saying that these are far inferior to the scrutiny given in the passage of the Bill.
Governments are the first to be criticised if they attempt to avoid the full rigours of parliamentary examination of proposals by tucking substantial powers away in subordinate legislation, yet here we are being asked to allow that to happen in respect of some very important and sensitive issues—national security and crime prevention to name but two obvious examples. Clause 28(1), for example, permits 702 exemption from the subject access provisions where the application of those provisions would be likely to prejudice the prevention or detection of crime. Are we suggesting that it would be right in subordinate legislation to decide that those provisions should apply even though the prevention or detection of crime would thereby be prejudiced?
There is another side to all this, the opposite end of the spectrum, as it were, from the crime and security side. Clause 31 exempts from the provisions of Parts II and III of the Bill in the case of data held for domestic or other limited purposes. I wonder whether it would be right to provide for an order-making power subjecting to the provisions of the Bill data which Parliament after full deliberation had decided should be exempt. Or to take another example—and here I look in the direction of the noble and learned Lord, Lord Elwyn-Jones—to provide an order-making power enabling the exemption from subject access to be removed in the case of data to which a claim of legal professional privilege could be maintained. I think I have said enough to show my concern that what is being proposed here is beyond the limits of what is permissible in subordinate legislation. I do not believe that it would be right to allow for so radical a reversal of what Parliament has decided in these provisions, and I think that is the overriding consideration. I recognise that this is a probing amendment, but those are the reasons for which anything of this sort ought to be resisted.
§ Lord Avebury
My Lords, I think the noble Lord the Minister is perfectly well aware that I was not envisaging that any future Secretary of State would use this power to remove exemption from the systems that are covered by paragraphs (a), (b) and (c) of Clause 28(1). Coming back again to what has been said on several occasions about the system of immigration control, the Minister is well aware that this has been the subject of widespread criticism, not only within this House but from many organisations of a highly respectable character outside. So it is not beyond the bounds of possibility that some future Secretary of State would very much welcome the power to bring before the House proposals to remove from exemption some of the systems at present covered. But I know that this is not a point that I shall get across to the Minister this evening, so I might as well withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 33 [Reports, information and advice]:
§ Lord Glenarthur moved Amendments Nos. 88 and 89:
§ Page 24, line 10, leave out ("and advice")
§ Page 24, line 12, at end insert ("and may give advice to any person as to any of those matters.")
§ The noble Lord said: It might be for the convenience of your Lordships if we take Amendments Nos. 88 and 89 together.
§ Concern was expressed in Committee by a number of noble Lords as to whether the registrar possessed the power, if he wished to use it, to provide advice to any individuals who sought it from him. I argued that the requirement in Clause 33 to disseminate information and advice gave him all he needed, but there were 703 those who remained anxious lest he might be precluded from giving advice on an individual basis. I undertook to look again at this point. Having done so, I remain convinced that Clause 33(2) is adequate for the point in question, but I do recognise the force of the concern which has been expressed, and accept that it is desirable to state on the face of the Bill that the registrar can give advice to individuals.
§ We have repeated on a number of occasions the view that the registrar will, in general, proceed by means of consultation and advice, rather than through the exercise of his formal powers, except as a last resort. But I agree that that advisory role should be spelt out. This is what the proposed amendments to Clause 33(2) are designed to achieve. I beg to move.
§ Lord Gardiner
My Lords, we are deeply grateful to the Government for the consideration they have given to amendments moved in Committee. We are naturally a little sorry that they have not applied the same arguments to the question whether in the Bill there is any power for the registrar to investigate complaints. Perhaps they would be good enough to look at that before the next stage of the Bill. Meanwhile, we are very grateful for the amendments.
§ On Question, amendments agreed to.
§ Clause 35 [Application to government departments and policies]:
§ Lord Gardiner moved Amendment No. 90:
Page 25, line 12, at end insert—
("(6) Subsection (1) above shall not be treated as affecting in any manner the responsibility of any Minister of the Crown for the acts or omissions of any government department.")
§ The noble and learned Lord said: My Lords, the sole object of this amendment is to obtain information. Your Lordships may or may not remember that at about 3.48 p.m. on the afternoon of 17th February, at col. 346, I rose to ask a question for the simple reason that I wondered what was the answer. The question which I asked, because no one had asked it before, was: in the case of a Government computer like the immigration computer, who is the data user? Would it be the Home Secretary, the Home Office, the Secretary of State, the man in charge of the actual machine or someone I hadn't thought of?
§ It is right that I should at once make it plain that I asked this question on Clause Stand Part, but the Minister had received no notice of it and, understandably therefore, he was not immediately prepared with the answer. We waited for the usual help to arrive from a known quarter and he then said that he was told his bet should be on the Home Secretary. A little after nine o'clock that evening, at col. 417, the noble Lord, Lord Elton, rose and said that he had now been told that he had lost his money and that the answer was the Home Office.
§ One or two further questions, I am afraid, arise from that. The first question, of which I have given notice because I thought it might need a little research, is: what are the precedents, if any, for making a Government department a person within the meaning of an 704 Act of Parliament? Secondly, does the noble Lord, or do the Government, take the view, or do they not, that, who is the registered data user in the case of a Government computer, is really a question of construction for the courts to decide? One could perhaps take out a construction summons for a declaration, " That on the true construction of the Data Protection Act 1983 the data user in the case of a Government computer is …", because of course it must depend primarily on Clause 1(5) which defines a data user.
§ The next question that I should like to ask is whether the Government do or do not agree with the view. This is not really a question for the Government to decide at all; it is probably simply a question of construction for the court. But, my Lords, so long as the answer is, " the Home Office ", I think that one or two other questions arise also. The first is: what has happened to the doctrine of ministerial responsibility? I shall be corrected, I am sure, if I am wrong; but, as I have always understood it, it is part of our constitutional doctrine that the Minister who is in charge of a Government department is always responsible for what that department does. If it has done something wrong—he may be not to blame in any way at all; he may know nothing about it—then he has to resign. That is what we call the doctrine of ministerial responsibility. If the answer is that it is the Home Office and not the Home Secretary, then I do respectfully ask: what has happened to the doctrine of ministerial responsibility?
§ Then I think there is another question, and it is this. If it is the Home Office, what has happened to the doctrine that one cannot criticise civil servants because they cannot answer back? Is this some subtle ploy to make sure that nobody can criticise whatever anybody does about the immigration computer, because it is only the Home Office which is responsible and they are civil servants and they cannot answer back so one cannot criticise them? Therefore, I would also ask: what has happened to the doctrine that one cannot criticise civil servants?
§ Then, as it seems to me, there is one more question, and it is this. Suppose that in the working of the Act in relation to the immigration computer the Home Secretary is of the opinion that his officials have not been applying the Act rightly and he says to them, "You have been doing A. I have come to the conclusion that you ought to have been doing B, so in future you will have to do B ". Will they be entitled to say—as apparently they frequently do on television but not I think outside television—"No, Minister. We should always regard anything you say with the utmost reverence but you really must get it into your head that this is a matter for us, the Home Office; it is not a matter for you, the Home Secretary. Do you not remember Lord Elton telling the House of Lords? First, he said that it was the Home Secretary but then that was changed and he said that it was the Home Office, and that is us. So without talking about anybody taking a running jump, we must make it plain that this is a matter for us to decide and you have to go away and leave it to us to decide it". Is that right?705
§ 10.3 p.m.
§ Lord Renton
My Lords, I have listened to the noble and learned Lord, Lord Gardiner, with very great interest, as one always does, but especially on this question of ministerial responsibility, a matter about which in our constitution I have had grave doubts for a long time. The doctrine contains, when one tries to think it through, various absurdities.
As the noble and learned Lord has mentioned the Home Office, may I mention the remarkable example of the Home Secretary in relation to the Metropolitan Police. He is responsible to Parliament for everything that the Metropolitan Police do. That is the theory of the matter. But also under our legislation he has no power to tell them how to do it except in certain very wide circumstances which are defined by statute. There is but one example.
This is a huge subject and, with deep respect to the noble and learned Lord, I would very much doubt whether we should attempt to make an exception to it in this particular way. In our constitution, and by its evolution, we have a type of natural instinct for ironing out the absurdities by the way in which we apply it in practice in Parliament. I would have thought that here we are in a considerable difficulty because, if the noble and learned Lord is right, the Government department which is given this obligation would have to be sued as a Government department. Instead of suing the Home Secretary one would have to sue the department. That would be a new constitutional departure as well which, by a sidewind, the noble and learned Lord would be making. I must confess that these thoughts of mine are entirely improvised and inspired only by what I have heard the noble and learned Lord just say.
§ Lord Glenarthur
My Lords, I feel somewhat self-conscious in view of a barrage of legal expertise such as that both behind me and in front of me. But the noble and learned Lord, Lord Gardiner, raised a number of questions, the first of which was the question of precedents. The noble and learned Lord asked whether there were any precedents for treating a Government department as a person for the purposes of a statute. I have to say that I know of no direct precedent. But that is because we have not hitherto needed to legislate for Government departments in the way that has been required in this Bill. Obviously it was necessary to provide that the personal data held by Government departments and similar bodies should be subject to the Bill. And we were determined to achieve this in the most effective way open to us.
One approach would have been to apply the Bill to the Crown as a whole. That would, of course, have been well-precedented. But the effect would have been that the Crown might have been able to register as a single data user. And transfers of information within Government would not have been revealed on the register because they would not have been between separate entities in the terms of the Bill, but within the one, all-embracing entity—the Crown. That is why Clause 35(1) treats Government departments (as defined in Clause 37) as private persons, requiring them to register separately and to treat exchanges of information between each other as exchanges between separate entities, thus revealing them on the public register and allowing them to be brought within the controls on disclosures in the Bill.
706 Our whole approach, therefore, is aimed at treating Government departments so far as possible in the same way as other data users in the private sector are treated. As I have said, the Government are not aware of any precedents for this particular approach, nor are we aware of any direct precedent for the situation we have sought to deal with. There are, however, precedents for not treating the Crown as a seamless whole. For example, under Section 17 of the Crown Proceedings Act, civil proceedings against the Crown are to be instituted against the appropriate Government department, drawn from an authorised list, rather than the Crown, which I think deals with the point raised by my noble friend Lord Renton.
The assumption behind Clause 35(1) is that Government departments will register under the Bill. Indeed, the noble and learned Lord, Lord Gardiner, did, as he said, elicit that information during the Committee stage. If the intention of his amendment is to ensure that Clause 35(1) does not affect the general position as regards the responsibilities and liabilities of Ministers, then the amendment is unnecessary. Clause 35(1) simply makes provision as to how the data protection scheme will apply to departments on the assumption that departments will register. It does not affect the political responsibility of the Ministers in charge of those departments; nor does it reduce their public accountability.
I should also like to allay any doubts about the principle of registering Government departments rather than the Ministers who control them. This does not conflict with the concept of ministerial responsibility. In practical terms the consequences of drafting the Bill so that Ministers rather than departments registered would be minimal. As is the case with Government departments, it would be contrary to constitutional practice to make a Minister criminally liable; criminal proceedings would, therefore, still be a nonsense, and at the end of the day the Bill would still have to rest on the assumption that the Crown will not act in breach of the Crown's own laws. In relation to civil remedies, too, it would seem to make little difference whether the Minister or the department is to be sued, as the cost of any compensation would in any case fall on public funds where the act complained of was done in a public capacity.
Clause 35(1) will in no way affect a Minister's responsibility before Parliament to answer for the actions of his department. Nor will it relieve him of any other personal responsibilities that he may have either in political or legal terms. There is therefore nothing to fear from Clause 35(1). It does not represent an inroad into the responsibility of Ministers. Rather, it is an effective and sensible way of applying the provisions of the Data Protection Bill to Government in a way that treats Government for all practical purposes in the same way as non-governmental data users. I hope that with that explanation the noble and learned Lord will be content and feel able to withdraw his amendment.
§ Lord Hylton
My Lords, we have seen in the past separate Government departments merged into one as, for instance, in the case of the Department of the Environment from which, I may say, later the Department of Transport was extricated and became 707 separate again. Can the noble Lord say what the position is likely to be in the future—I am asking this without any warning at all, I know—if what are now separate entities become merged into a single department? Would the data remain in some way separate or not?
§ Lord Swinfen
My Lords, what would be the position of companies merging and dividing? A similar point arises.
§ Lord Glenarthur
My Lords, so far as Lord Hylton's point is concerned, I understand that they would both have to change their registered particulars in the case of a splitting of the departments. My noble friend Lord Swinfen's point I think may also be covered by that answer. I hope it satisfies him.
§ Lord Gardiner
My Lords, I am grateful to the noble Lord for what he has said. I am not clear from what he said whether or not he is taking the view that the question: who is the registered data user in relation to a Government computer? " is a matter for the construction of the court. Secondly, what happens if there is a difference of opinion between the Minister and the Home Office in the practical working of the Act? Are the Home Office entitled to say to the Minister, " No, Minister, this really is for us. It is not for you." If they cannot say that, what does it mean by saying that it is the Home Office and not the Home Secretary?
§ Lord Elton
My Lords, if it was me who lost my money, perhaps I ought to reply to the noble and learned Lord. The user is, we envisage under Clause 35, the department. The responsibility and answerability of the Minister shelters civil servants from criticism for all the reasons that the noble and learned Lord gave; but he can direct the whiplash of his tongue, as he is accustomed to, to the Home Secretary or to the other Secretaries of State in other departments. As to differences of opinion between permanent Secretaries and Secretaries of State, to some extent they probably revolve around personalities. But the noble and learned Lord will know from his own experience of Government what the responsibilities are; and they are not changed by this Bill, as I see it, at all.
§ Lord Gardiner
My Lords. 1 shall consider most carefully what has been said and, if necessary, return to it at Third Reading. I am grateful to the noble Lord and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 36 [Regulations, rules and orders]:
§ Lord Elwyn-Jones had given notice of his intention to move Amendment No. 91:
§ Page 25, line 21, after (" Registrar ") insert (" and the Advisory Committee ")
§ The noble and learned Lord said: My Lords, by a grave misfortune the proposal for an advisory 708 committee was not accepted. It has been a kind of Banquo's Ghost, unlike the unicorn, and we have not come to grips with either. But in the circumstances, I shall not move this amendment.
§ [Amendment No. 91 not moved.]
§ [Amendments Nos. 92 to 94 not moved.]
§ 10.15 p.m.
Lord Renton moved Amendment No. 94A:
Page 25, line 29, leave out subsections (6) and (7).
The noble Lord said: My Lords, I can deal with this very briefly. Although most of the Bill is well drafted, I hope the Government and draftsman will look again at the drafting of Clause 36(6) and (7). It seems strange to put together two such different matters as,
Regulations prescribing fees for the purposes of any provision of this Act",
and regulations for the period mentioned in Clause 8(2), which is,
the period for which an entry is to be retained in pursuance of a renewal application ('the renewal period')".
We find in Clause 36(7) this same juxtaposition. I think it would be more helpful to the ultimate users of the statute, when it becomes one, if those matters could be separated.
§ I have a further point—it is one which could be made on a number of occasions—which the noble and learned Lord, Lord Simon of Glaisdale, made with great effect recently when it occurred often in another Bill. I refer to the habit, which has descended from the 19th century, of referring to the need for the approval of the Treasury. The Treasury, anyway, have a finger in every pie, and consulting the Treasury is part of the routine process of consultation within Government. It seems otiose to be stating it here and in many other places. I beg to move.
§ Lord Glenarthur
My Lords, I have listened carefully to my noble friend's explanation of the amendment. It is one of a series in which he is drawing to our attention certain points as to the way the Bill has been drafted or structured. I am only too ready to undertake that we will study carefully what he said and consider the implications. But many of your Lordships will accept, I know, that too much subordinate detail in a Bill tends to obscure its main principles. For this reason, therefore, we have been careful to place such matters in the schedules, or to leave them out of the Bill altogether where they are not needed at all. But when it came to the requirement that statutory instruments concerned with access fees, registration fees and the period of registration should be laid before Parliament after being made, it seemed to us reasonable to place this requirement in the body of the Bill. It is, of course, the frequency of the renewal period which will affect the level of the fee, and hence the link to which my noble friend referred.
As regards subsection (7), again it is important that the main body of the Bill should make it clear that the 709 Secretary of State shall be able to make regulations prescribing registration fees only after consultation with the Treasury and the registrar. The Treasury has the responsibility for ensuring that no unnecessary strains are placed on the public purse, and the registrar is the person charged with running the data protection ship, so to speak. As I said at the outset, we will certainly look carefully at what my noble friend said, without giving any cast-iron guarantee that we can necessarily take it all in; and in the light of what I have said I hope he will feel reassured and accept that at least the point he has raised is being looked at.
§ Lord Renton
My Lords, I am grateful to my noble friend for that explanation and for saying he will look at the matter again. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 37 [General Interpretation]:
§ Lord Glenarthur moved Amendment No. 95:
Page 26, line 7, at end insert—
(" "enactment" includes an enactment passed after this Act;")
§ The noble Lord said: My Lords, there are a number of provisions in the Bill which deal with the relation between the Data Protection Bill and other enactments. This amendment will eliminate any possible doubt that these references to enactments include future Acts. Obviously it will be open to Parliament to make explicit provision to the contrary in any future Act if that is appropriate; but in the absence of such provision, the courts will have a useful rule of construction when considering the relationship between this Bill once enacted, and any future Act. If this were left in doubt, it might be necessary to make specific provision in any future Act which overlapped with the Bill. Bearing in mind that no conflict would arise unless the information concerned was to be held as personal data in the terms of Clause 1, the need for such provision might not be obvious at the time of enactment, and this would lead to confusion. Obviously it is better that such confusion should be avoided, and all doubt eliminated. I therefore beg to move.
§ On Question, amendment agreed to.
§ Clause 38 [commencement and transitional provisions]:
§ Lord Mishcon moved Amendment No. 96:
Page 26, line 36, at end insert—
("( ) After the end of the period mentioned in subsection (1) above, no application for registration shall be made by data users of any category holding personal data for any purpose until the end of a further period of six months after the Secretary of State shall by order have specified that category or that purpose (or both) as requiring registration.")
§ The noble Lord said: My Lords, at precisely 11.15 p.m. one evening during the Committee stage I moved an amendment in which I asked for mercy for the registrar, and at nearly half-past ten at Report stage I am not at all sure that I ought not to couple your Lordships with the plea for mercy, if you have to listen 710 to a long speech from me. The reason for seeking mercy for the registrar on the last occasion arose because it was thought that on Day 1, with his little department, he will be confronted with a whole mass of applications, and it was suggested that for the purpose of administrative sense the registrar ought to be enabled to phase the applications, dealing with the most sensitive ones first. Obviously one realises that, for example, a payroll system which has to be registered might not be of the most essential and immediate character. So the amendment was moved on the basis that the registrar would be able to phase.
§ The noble Lord, Lord Glenarthur, most courteously dealt with the amendment, and he had two objections to it. The first was that the registrar should not have put on him the onus of fixing priorities. Secondly, if one looked at Clause 7(5) of the Bill, one would find that in any event he had the power to defer applications. We have concentrated upon those two objections, and we have met the first one by imposing the duty upon, or giving the power to, the Secretary of State, and we think that in terms of common sense in administration it ought to be the Secretary of State, not the registrar.
I have looked at Clause 7(5). If your Lordships look at it, you will find the following words:
If in any case it appears to the Registrar that an application needs more consideration than can be given to it in the period mentioned in subsection (1) … he shall as soon as practicable and in any case before the end of that period notify the applicant in writing to that effect".
I do not think that we ought to invite the registrar to cheat—especially on the very first day when he comes into office—by saying, "Well, I am going to use the powers in Clause 7(5). I haven't even looked at your application. I don't know whether it requires one minute's consideration or 10 months' consideration. But because I can't reach it within the period I am going to use Clause 7(5)". That would not be at all an honest use of Clause 7(5). It is there because if there is a complicated application that will take a considerable time, the registrar is given leave to take a certain period of time over and above the period stipulated in the Bill in order to deal with it.
§ Bearing in mind that in our view Clause 7(5) is not applicable in these circumstances, we have tried to cover the real burden that will rest on the registrar's department. In order that there should not be chaos something must be done about the phasing provisions. There is nothing in the Bill to deal with the situation, and, as I say, the Secretary of State has now been invited to carry out the duty of phasing. So the registrar will not be deemed to be subjective in dealing with applications. It will be the objective view of the Secretary of State as to which ones he ought to deal with in order of priority. I beg to move.
§ Lord Glenarthur
My Lords, I have listened carefully to what the noble Lord has said, but I have to say that I have grave doubts as to whether the amendment that he proposes would in fact achieve its purpose. There are two points which I can put briefly. First, there are significant advantages in achieving comprehensive registration at an early stage; and secondly, there is no need for elaborate phasing-in provisions for registration.
711 The early establishment of the register will have advantages both domestically and internationally. One of the aims of public registration set out in the White Paper was to increase public awareness of the existence and purpose of computerised personal information systems, and it is obviously desirable that this be achieved quickly. Secondly, the establishment of the register will go a long way towards persuading the United Kingdom's trading partners that we take seriously the need for data protection, and are moving quickly towards the implementation of legislation.
Thus the transitional scheme in Clause 38 has been designed to achieve the early establishment of a comprehensive register while giving data users and computer bureaux a longer period under Clause 38(2) in which to come into compliance with the principles. As we explained in Committee, the Government do not believe that elaborate phasing in arrangements is required for registration. Of course it is accepted that there will be a mass of applications during the initial six months' period and at times it may be impossible for the registrar to give full consideration to all applications within two months of receiving them. Yet Clause 7(5) makes the necessary provision here, by allowing the registrar to indicate to the applicant that he may undertake operations pending full consideration of his application.
Subsection (5) of Clause 7 is not a cheat. It is designed specifically for this purpose as well as for particularly complex applications which could come forward. We believe therefore that what is proposed in Clause 38 is a practical means of achieving comprehensive registration with all the attendant advantages at the earliest possible stage. The amendment, I think, would be nothing but a recipe for delay, certainly for some confusion and, also, I think, for some hardship.
§ Lord Mishcon
My Lords, I have listened with respect to what the noble Lord the Minister has said. As often is the case, time will see whether he is right or the forecast of some chaos is right. He is one who must accept responsibility at this stage for the administrative sense of the Bill. Therefore, there is no point in my continuing that fight. I have said my little piece and that must be that.
On the point of Clause 7(5), may I remind the noble Lord that I certainly did not say that the clasue was a cheat. The clause is perfectly clear. What I said was that one should not ask the registrar (as the noble Lord the Minister on the last occasion asked him) to use this clause for the purpose merely of deferring an application which he has not even looked at, because his department is swamped.
I am saying, and I said with all sincerity, that if I sent the noble Lord a letter and he told me that he wanted further time in which to consider my letter because of its contents, and, in fact, he had not even looked at it because he was too busy, I would say that that was not a proper way to deal with the matter. In truth, what he ought to say is that he needs further time to look at it, but not that he needs further time for consideration of it because of its complexity—which is what Clause 7(5) goes to.
712 If the noble Lord the Minister wants to give that power instead of adopting my amendment, then I respectively suggest that he looks again at Clause 7(5). If he wants to give the registrar that power, let him do it in sheer honesty on the basis that further time is required because of administrative difficulties in dealing with it, not that it requires further consideration; because, in my view, that is a dishonest use of the power contained in Clause 7(5). Having said that, I leave the matter there and ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 10.29 p.m.
Lord Mishcon moved Amendment No. 97:
Page 26, line 37, leave out ("two years") and insert ("six months")
§ The noble Lord said: I think that again I can deal quite shortly with this amendment. At Committee stage, I made a point; and, if I may say so with respect to the noble Lord the Minister, he did not then answer it at all and I do not think that he was seized of it. It may be my fault that I did not make myself clear, although I think, on reading again what I said, that the language was fairly lucid, even if one takes into account the time of the day or night at which I made it.
§ What it means is this: as the Bill at present stands, even if the registrar finds the most scandalous contraventions of all the data principles in an application that he gets for registration, he can do absolutely nothing about it for two whole years. That is what the Bill says. That is what the clause says and that is what we are faced with. That is the real mischief—but I must not repeat what I said on the last amendment—of insisting that all applications to register must come up on Day 1. If the registration can be phased by categories then the time for users to put their houses in order would be the period before they are called in for registration and, in that case, another period of six months would be ample before the registrar can begin to exercise his powers.
§ So to some extent what I said on the last amendment is linked to this one; but in view of the Minister's answer to me, with no phasing we are left with the situation that the registrar, as I said, can see the most patent contraventions of principles on an application for registration and, as we have now left the Bill if we do not amend it, we cannot do anything about it for two years. On the person can go, having put in his application for registration, and he can carry on for two whole years without the registrar being able to do anything about it. I beg to move.
§ Lord Glenarthur
My Lords, I thought I had convinced the noble Lord at Committee with the arguments that I advocated then. However I see I did not quite succeed, so I shall have to repeat them.
I argued then that the two-year transitional period before the registrar's powers became fully effective was absolutely essential if we were not to place substantial cost burdens on the shoulders of data users, both public and private. Users will not know, before the Bill has completed its parliamentary passage, just what is going to be expected of them—particularly so far as 713 the provision of subject access is concerned, but also in regard to other data protection principles. Only when the final obligation is clear can they be expected to start making the necessary detailed alterations to their systems and procedures, and the Government have recognised from the start that this may take considerable time in some cases. To allow only six months from the appointed day—and we do not intend to delay the latter any longer than necessary to complete the practical functions that will have to be performed after Royal Assent and before the registrar begins operation—would be to place users under very great difficulties. In some instances that might mean replacing existing equipment early, or making expensive alterations to computer systems, whereas allowing a little more time might enable those changes to be incorporated into the planned replacement of equipment. But this does not mean that the registrar will be without influence during this interim period.
The need to achieve "balance" is something we have mentioned continually during the passage of this Bill: the need to balance the demand for effective data protection at as early a date as possible, against the legitimate demand from users that they should not be placed under undue constraints in achieving this objective. In this matter of the speed of implementation we believe we have the balance just about right, and I hope that, on further reflection, the noble Lord will agree.
§ Lord Mishcon
My Lords, before the noble Lord sits down, to save the House from being wearied by another speech from me, would he kindly answer the direct question which I put to him? It is this: is it correct or not that under the provisions of the Bill as they now are the registrar can find on an application contravention of every one of the principles set out in the schedule? Is it right that if he finds that he can do nothing as against the user—nothing at all—for a period of two years? If that is right, I ask the Minister to say so, because then we have to revert to this matter on Third Reading. I think many Members of your Lordships' House would be horrified to know it.
§ Lord Glenarthur
My Lords, with the leave of the House, I can tell the noble Lord that he is correct: that is the case.
§ Lord Mishcon
My Lords, with a heavy heart and a somewhat light head at this hour, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Renton moved Amendment No. 97A:
Page 27, line 7, leave out subsections (4) and (5).
§ The noble Lord said: My Lords, I shall not detain your Lordships for long. As we have heard from the discussion on the last two amendments, this is a very, very complicated commencement clause. To my mind, the complexity reaches its climax when we come to consider subsections (4) and (5) and try to find out exactly when it is that the provisions to which they refer will come into operation.
§ We find that the contravention of data protection principles, which are very important and are 714 mentioned in Clause 16(1)(b), will not come into operation until the end of the period mentioned in subsection (2) and that period will not come into operation until the end of two years from the day appointed under subsection (1). So that we have an indeterminate, unspecified period waiting for the Secretary of State to make his appointed order. Then we have to wait for six months and then we have to wait for some time after a further period of two years before we find when the right of access by data subjects to their personal data can be made.
§ I am not just complaining, as I have done, as my noble and learned friend the Lord Chancellor knows, about the complexity of commencement provisions which parliamentary counsel, on instructions from departments, seem unable to avoid. I am referring to a specific complexity, an indeterminate period, resulting from the way that this is drafted; and what I have said about the right of access by data subject to personal data applies also of course to the contravention of data protection principles. They are both referred to in subsection (4).
§ As regards subsection (5), I must confess there is not such a strong case for alteration, but I should be grateful if it could be further considered because here we find we are back to the end of the period mentioned in subsection (1). It is not until the end of that period that compensation for inaccuracy can be paid under Section 22. So without more ado, I hope I have drawn attention to this matter, which will cause confusion in the minds of the ultimate readers or users of the statute, so that my noble friend on the Front Bench will say that he will have it further considered.
§ Lord Glenarthur
My Lords, I rise with some trepidation to deal with this amendment, not only because I am well aware of my noble friend's formidable reputation in matters of this kind but also because, as he rightly says, the matter is complicated. As we have stated on a number of occasions, the Government wish to ensure that the Bill does not impose an undue burden on resources. It is therefore essential that it should make provision to give an adequate time period for data users and computer bureaux to come into compliance with the scheme. This involves the postponement of the application of certain of the obligations imposed and powers conferred by the Bill, and that is what Clause 38 is primarily all about. It would appear right, therefore, that these matters be spelt out on the face of the Bill. The question of when statutory rights and duties apply in this way is, on this occasion at least, surely too fundamental to the effect of the Bill to be left to a schedule.
My noble friend asked particularly about subsections (4) and (5) of Clause 38. Subsection (4) disapplies two provisions of the Bill for a period of two years after the day to be appointed by the Secretary of State under Clause 38(1). First, it disapplies Clause 16(1) (b), which now empowers a circuit judge to issue an entry warrant where he is satisfied that evidence of a contravention of the data protection principle is to be found. Given that the registrar's powers to require compliance with the principles will not apply during the two-year period, it would be wrong for this aspect of the power of entry to apply. Secondly, Clause 38(4) 715 disapplies Clause 21 during the two-year period. Clause 21 deals with the right of subject access alongside the seventh data protection priciple. It may take some time for certain users to establish procedures for giving subject access, and to require them to do so unreasonably soon would place an excessive burden on users' resources.
As for Clause 38(5), I think that we will probably discuss this further with Amendment No. 98, so I will, if I may, merely deal with the matter briefly now. Clause 22(3) of the Bill defines the term "accuracy" in such a way that opinions or information received from the subject or a third party are not to be regarded as inaccurate, provided that their status is made clear. The problem for data users is that it would be very expensive, and in some cases impossible, to search through existing records differentiating opinions and received information. Clause 38(5) therefore disapplies the accuracy-related provisions of the Bill during the first six months, to allow users time to make arrangements for data coming to them to be recorded in such a way that their status is indicated. It also disapplies these provisions thereafter, in respect of data shown to have been held by the data user in question since before the end of the initial six-month
When I started. I said that this is a complicated matter. I have it set out in tabular form and I should be delighted to show my noble friend afterwards. That might make more sense. But we will, of course, study carefully my noble friend's remarks when we can read them in the Official Report, and I hope that with that assurance he will be satisfied.
§ Lord Renton
My Lords, I am grateful to my noble friend. I think that I had better read my own remarks in the Official Report before my noble friend does. But I am not suggesting that important provisions of this kind, which affect the application of the whole of the Bill, should be in a schedule, although, as my noble friend had the temerity to say that he has a schedule, it is very tempting to suggest that the effect of the clause could very well be repeated in the schedule, and that is for consideration. I think it is quite clear from what my noble friend has said that he would like to have further thoughts about the whole of this clause, and, on the assumption that he will do so, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 10.44 p.m.
Lord Mishcon moved Amendment No. 98:
Page 27, line 10, leave out from ("above") to end of line 17.
§ The noble Lord said: My Lords, in the same spirit to which the noble Lord, Lord Renton, gave expression. I hope that, at the very least, the noble Lord the Minister, when my voice fades after this final amendment on Report stage, will do me the courtesy of giving his rapt attention to this amendment and to the words with which I move it. The extraordinary situation, as I see it—and I believe that your Lordships may agree—of Clause 38(5) is that all false or misleading data which are held by the data user before Clause 22 comes into force—that is, six months before 716 the appointed day—will enjoy complete immunity in perpetuity from correction. I can think of no conceivable argument for this. Once the Act comes into force, surely data users should bring all their records up to the standard of accuracy which is required. It would be perfectly proper to give them generous time within which to do so; but to say that in perpetuity the records of, say, every single one of your Lordships, including myself, however inaccurate they may be, are not subject to the provisions of the Bill—for correction, or whatever—merely because they are inaccurate at the date when Clause 22 comes into effect, cannot be right.
§ I have already said that at this late hour there is no point in my plaintively calling for a Division if the noble Lord the Minister does not accept my amendment. All I can possibly do, in sheer common sense, is to ask him to be good enough between now and Third Reading to consider this point very carefully indeed and either accept the amendment or put down an amendment which satisfies him more than this one does. I beg to move.
§ Lord Mottistone
My Lords. I too, have the same misgivings as the noble Lord, Lord Mishcon, on this point. I hope my noble friend will give careful thought to it with a view to putting it right before the Bill is passed.
§ Lord Glenarthur
My Lords, we have arrived at another point in the Bill where the balance between the need to protect the data subject and the desire not to impede the sensible use of personal data by data users is particularly difficult. During an earlier amendment we touched on Clause 38(5), and I ought to go into it a little more. It is complex. The effect of Clause 38(5) is to disapply those provisions of the Bill that have the effect of requiring data to be accurate during the initial six-month period after the day to be appointed by the Secretary of State and to disapply them thereafter in respect of data that the user can show have been held since before the end of that period. Clause 38(5) first disapplies Clause 22 which entitles a data subject to apply to the courts for compensation where damaged by the inaccuracy of personal data (and thereby disapplies the similar right in respect of rectification under Clause 24(1)(a), which depends on Clause 22). Secondly, Clause 38(5) provides that the registrar shall treat the provision about accuracy in the fifth principle as inapplicable when exercising his powers—again where what we might call "old" data are concerned.
The need for Clause 38(5) follows from the approach adopted to accuracy under Clause 22(3). That clause recognises that data users cannot be expected to vouch for the substance of personal data which consist of opinions, or of information received from a third party. I may believe that the noble Lord opposite has a brilliant intellect; but if I commit that belief to a computer it cannot be tested for accuracy. Beliefs, opinions, suspicions and the rest are not susceptible to such tests. Equally, if the noble Lord were to tell me that he attended a particular school, or indulges in a particular hobby, I take that on trust. If it turns out he misled me, it is scarcely my fault. Thus. Clause 22(3) provides that the test of accuracy does not 717 apply to such data, provided the status of the personal data is indicated. This however creates a difficulty in the case of existing records. I am sure that noble Lords with experience in the use of computers will appreciate the vast resource implications of having to comb through all existing records in order to differentiate opinions and received information so that they can benefit from the provisions of Clause 22(3). And that is why Clause 38(5) in effect disapplies the requirement for accuracy during the initial six-month period, and thereafter in respect of old data; that is, personal data that the data user can demonstrate he already held prior to the end of the initial six-month period.
In the light of this explanation of the function of Clause 38(5), your Lordships will realise that the amendment proposed by the noble Lord, Lord Mishcon, would defeat its main purpose. The amendment would require data users to conduct detailed scrutiny of all existing personal data in order to differentiate opinions and received information, so that they would be in a position to take advantage of the interpretation in Clause 22(3). I have listened carefully and with considerable interest to the arguments put by the noble Lord, Lord Mishcon, and those in support of him put by my noble friend Lord Mottistone. In view of those arguments I am willing to consider this matter further, and with that assurance I hope that the noble Lord will withdraw his amendment.
§ Lord Mishcon
My Lords, those words were very generous and I want to take advantage of them. In view of the noble Lord's reply, I will merely add that it is an odd situation when such inaccuracies remain in perpetuity. I repeat that, of course, if a generous time were given to the data user, I am sure we would all agree that that was the proper balance. It is an odd situation when something gives a data subject a right if it happens to have been recorded against him and is inaccurate in July 1984 or whenever the date may be; but if by some extraordinary circumstance it happens to have been recorded a few months before that date, he can do nothing about it. It is an extraordinary situation and one that cannot be right.
I am grateful to the noble Lord, Lord Glenarthur, for his undertaking to look at this point again. I am sure that, in view of the seriousness of this matter, his will not be an empty undertaking and that it will have, as he has promised, his very concentrated attention. In those circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.