§ 4.37 p.m.
§ Report stage resumed on Schedule 1.
§ Lord Digby moved Amendment No. 5:
§ After Clause 3, insert the following new clause:
§ Data Protection Advisory Committee
- (".—(1) For the purposes of this Act, there shall be a Committee known as the Data Protection Advisory Committee (in this Act referred to as "the Committee").
- (2) The Committee shall consist of:—
- (a) a chairman appointed by the Lord Chancellor after consultation with the Secretary of State;
- (b) Such number of members representative of data users appointed as aforesaid as the Lord Chancellor shall determine;
- (c) such other members appointed by the Lord Chancellor after consultation with such bodies as he thinks fit, to represent employers, employees, data users, data subjects and other persons or organisations interested in the use and safeguarding of personal data.
- (3) The Committee shall keep under review and advise the Secretary of State and the Registrar upon the implementation and enforcement of this Act and may report to the Secretary of State from time to time with proposals for any further or amended legislation, orders, rules or regulations which may seem to them to be desirable.
- (4) Without prejudice to the generality of subsection (3) above, the Secretary of State shall consult with the Committee before making an order, rules or regulations under this Act (and the report of the Committee thereon shall be laid before each House of Parliament).")
§ The noble Lord said: My Lords, this amendment seeks to provide a statutory data protection advisory committee to keep under review and advise the Secretary of State upon the implementation and enforcement of this Act. The only reason that I have reopened this subject is that all the local authority associations are unanimous in their conviction that this advisory committee, or something similar, is essential. The local authorities are not only vitally affected but wholly behind the principles of the Bill. They are trying to be constructive and not obstructive. Put simply, my case is that this Bill is entering uncharted waters. Therefore, it is essential that the registrar should have informed advice from those who have to implement the legislation and be the first to appreciate the problems as they arise.37
§ I now turn to the details of the amendment. It differs from previous amendments on the same subject in significant ways but it is designed to meet the objections of the Government. The objection of my noble friend Lord Elton at the Committee stage was that a statutory committee would lead to rigidity in a rapidly changing field, and that a free rein would be equally unsatisfactory. The amendment moved by my noble and learned friend Lord Elwyn-Jones, Amendment No. 12, at the Committee stage did not spell out the duties of the advisory committee. This amendment does detail its functions, so we must consider whether they are too rigid or too wide. The amendment says that the committee shall keep under review and advise the Secretary of State and the registrar upon the implementation and enforcement of the Act. This seems to me to be a clearly defined function which gives flexibility to change advice as technology alters. But any function would have to be relevant to the Act. Therefore, it is not too wide.
§ I believe we are all agreed that the registrar will need advice, but the Government do not want to spell it out in the Bill. However, I must tell your Lordships that the Government's resistance to this amendment has made the local authorities suspicious of our intentions. I tried my best to convince them that the Government only wish to keep down quangos. But I have not convinced them; nor have I entirely convinced myself. Perhaps my noble friend can convince us all and allay our fears. Advice from users most affected is going to be needed. An advisory committee in some form is necessary and I commend this amendment to the House.
§ Lord Elwyn-Jones
My Lords, I rise to support this amendment which seems, with respect, to be an evolution or possibly even emanation from our earlier attempts to deal with what we regard as the necessity of the provision of a data protection advisory committee. I have had a communication from the United Kingdom local authority associations indicating that a large number of local authorities support this proposal—the Association of County Councils, of District Councils and of Metropolitan Authorities, and the Convention of Scottish Local Authorities. Local authorities, after all, are one of the largest bodies of data users in the country and are responsible for the safeguarding of essential data related to sensitive areas, like social services, housing and education. It is very significant that they recommend that greater efficiency and integrity to what is proposed would be maximised by the creation of an advisory committee. I readily concede that what is now proposed is more satisfactory than what we originally considered.On the last occasion, the noble Lord, Lord Elton, was able to make the attractive criticism that what was then proposed was a "motor car without an engine". That has been remedied now; it is still a motor car but its functions and powers are clearly set out in the terms of Amendment No. 5; the membership structure is made flexible, the appointments are to be made by the Lord Chancellor, and the terms of reference are set out in wide and satisfactory terms, in my submission.
I ventured to indicate last time round on this matter that there is a precedent for what is proposed in what was done in relation to the drug scene. But the need, I 38 submit, is to set up this data protection advisory committee now when it would, I would imagine, be most needed by the registrar. He has to cover a very wide range of duties in highly technical fields, and the expertise that will be provided by people chosen in the way proposed by the amendment would, I should have thought, be of greater value to him now than when the thing is set up. I confess I have not been able to follow the reluctance of the Government to set this up now and not leave us behind with some vague promise of good things to come in never-never land perhaps. Therefore, I hope that this time there will be a more forthright and more determined attitude on the part of the Government to give effect to what is proposed now and not postpone it for some indefinite uncertain future. This is the time to act and this is the time to give the registrar the biggest protection.
§ Lord Avebury
My Lords, I only want to say a few words in support of this amendment because I think the ground has been very adequately covered. I think the criticisms the noble Lord the Minister advanced on the previous occasion have been very thoroughly and effectively dealt with by the noble Lord who drafted this amendment.
There are two points I would add to what has already been said. One is to remind your Lordships that in the original proposals of the Lindop Committee it was recommended that there should be an advisory committee and nobody has ever satisfactorily refuted the arguments that were then advanced. As the noble Lord, Lord Digby, said, the registrar is going to want to take advice, and so is the Secretary of State, presumably. The only question is whether you set that out on the face of the Bill or whether you leave it to the kind of informal consultations that the registrar would otherwise be bound to have.
I do not know what the British Computer Society feels on this and I do not claim to speak for them, but I should have thought they would certainly recommend if they were asked—and it would be interesting to know whether the Minister has taken their advice—that something on these lines should be established. I dare say they do not want to put forward their own views in case it should be thought that they are pushing the functions of their members on a body of this kind. But certainly the BCS with its vast expertise would be capable of producing members who would be helpful in the early stages, as the noble and learned Lord, Lord Elwyn-Jones, has said.
I always prefer to have things set down in Bills rather than left to the whim of a Secretary of State or an official in a post which is being set up under legislation. So I think it is incumbent on the Minister to say why the advisory committee is not required rather than for those who have put this forward at each successive consideration of this matter to show that it is required. There is no doubt at all that there will be many and complex problems that your Lordships have not uncovered during the discussions so far.
I think the noble Lord the Minister is nodding, because he sees that, even between Committee and Report stage, ideas have been advanced which on careful examination the Government have found to be valid. These have led to important amendments being brought forward by the Government only this 39 afternoon. So who can doubt that after the Bill becomes law we shall be found to have omitted certain things or to have failed to take into account technological developments which had not been anticipated? It is to meet that kind of contingency that I believe that a body of this kind is imperative. So I hope that, in spite of the cold water which the Minister has poured on this on previous occasions, he will, invigorated by his absence during the Recess, be encouraged to reconsider the views which he expressed on the last occasion and will accept what Lord Digby is putting forward.
§ Lord Mottistone
My Lords, when we discussed this matter in Committee I was persuaded absolutely by what my noble friend the Minister said, which was that expert opinion will be necessary—in fact I think three-quarters of his speech was devoted to that—but that he did not see any reason to have a statutory body. I must say I do not see any reason to have a statutory body. I know that my noble friend has been kindly conceding all sorts of things to me and perhaps to other noble Lords. Perhaps he will have changed his mind, but my personal view is that we have far too many statutory bodies.
There is going to be an awful lot of advice. There is advice coming to the Government right now through your Lordships. There are going to be all sorts of subsidiary bodies set up to look into this problem. Whatever advice the Government are provided with from within their own ranks, whatever advice the registrar is provided with within his own ranks, will be supplemented by outside advice of all sorts. The question is why do we need to have a statutory body included in the face of the Bill as something that has got to be there whether you want it or not? And how is its advice going to be superior to that which will be coming from other sources? I would have thought that this was overdoing it and that the amendment was unnecessary.
§ Lord Howie of Troon
My Lords. I think there is one brief answer to the noble Lord, whose views we listen to often with respect. While it is true that the Government have been inundated with advice for the last several years, there is little sign that they pay any attention to it. Our belief is that, if the advisory body is statutory, much additional weight will be given to its advice and the Government may possibly be inclined to pay more attention to it than they otherwise would.
§ Lord Donaldson of Kingsbridge
My Lords, one could add an objection to the defence of the noble Lord, Lord Mottistone, of the Government's obduracy, which is, I hope, only temporary. Clauses 3 and 4 actually say what the advisory bodies should do. This does not apply to the millions of people who are giving advice. They have no limitations or instructions and, if one has a body which tells one what to do and which also must be consulted before changes are made, that is something very different from what the noble Lord says we have already.
§ Lord Mishcon
My Lords, if I may add to the general fulminations which have been directed at the noble 40 Lord, Lord Mottistone, after his early triumphs over the Minister, may I just say this? There is no point in setting up committees unless one pays respect to the research they do and their findings. The Lindop Committee spoke upon this matter. It said that there ought to be a statutory advisory council. It said that it was necessary very specially—I am paraphrasing its words—because we were dealing with a fast evolving situation in technology and, therefore, it was very necessary to see that there was a completely running advisory council which would not just be there for a day or a year but would be sitting in session to see exactly what was happening in this field, which would be changing week by week and year by year—I often think that it is a minefield in which we are operating—which council, as has been said, I believe, by the noble Lord, Lord Donaldson of Kingsbridge, and by my noble friend as well, would have the statutory dignity which will be given by this Bill.
§ Lord Mishcon
And authority, my Lords, as I am reminded by the very helpful suggestion of my noble and learned friend. Advisory councils, as the noble Lord, Lord Mottistone, said, can of course be set up. They are voluntary bodies. One does not know who their personnel will be, who will be the nominating authorities and, indeed, what work they will do. The amendment very clearly sets out who the responsible appointing bodies will be in order that this advisory committee—I repeat, recommended by Lindop and, so far as I can see, encouraged, too, by the White Paper that was issued by the Government—does have proper authority.
The weakness in the past has been overcome by the amendment presented to the House today. There were, as my noble and learned friend pointed out, weaknesses in the previous amendments which came before the House. In my view, it would be quite wrong if with this very comprehensive and limited amendment the House were to refuse this almost last opportunity of incorporating that advisory council so necessary to the registrar and so necessary to the Government in this very difficult field.
§ Lord Elton
My Lords, I am grateful to my noble friend Lord Digby for his explanation of the amendment and the concern that lies behind it in his attempt to snatch another stage of this Bill between the quickly succeeding Statements we are having to cope with this afternoon.
I can certainly assure the noble Lord, Lord Avebury, that we have given this proposal very close consideration and I can remind the noble Lord, Lord Howie of Troon, that we have taken careful note of advice given to us, not only at this stage but in other stages of this Bill and, indeed, in the last Parliament. It is, therefore, a little unkind to say that we are obdurate in never listening to what we are advised to do. But we do have to exercise judgment on what we are advised to do, and we do not always agree with that advice. That, of course, will be open to the data protection registrar as well.
In one respect we and those who share my noble friend's anxieties are entirely at one. In that respect, I 41 can give him and them the assurance for which they are asking. We are absolutely agreed that the data protection registrar will require a considerable volume of expert advice drawn from a wide variety of people with different experience and divergent interests. To that I can only say. "Hear, hear". But where we differ, we differ not in principle but in practice, and I blame myself very much for not, it seems, having made this abundantly clear on earlier stages of the Bill. The difference is a wide one and must apply to any amendment of this nature and I may, perhaps, have concealed the general by dealing too much with the particular on earlier stages. Let me then deal with the general first and the particular, very briefly, afterwards.
A statutory body is created by legislation and it can only be changed by legislation. Legislation, as we are, I suppose, engaged this afternoon in proving yet again, is a ponderous engine that cannot often be applied for the same purpose. Once one has a statutory body, therefore, in whatever form, one is stuck with it and its terms of reference. One is stuck with it, as the noble Lord, Lord Mishcon, helpfully reminded us, in a field occupied by very fast evolving technology and, therefore, fast changing and evolving problems. To suggest, as I think was done at an earlier stage, that changes could be made by subordinate legislation is, I am afraid, only half an answer. Where we part company with those who favour this amendment is on whether we should in law set up a quango to issue the advice that predetermines the occasions on which this advice is to be sought. I am much obliged for the welcome support of my noble friend Lord Mottistone in this respect. In other words, is an effective scheme of data protection best served by legislating for an advisory committee, or would we be better off leaving the registrar and the Secretary of State a free hand to take advice as the circumstances merit and from whomsoever is best placed to provide it?
In the course of our discussions of both this Bill and its predecessor we have been offered a variety of forms of advisory comittee for our consideration. I regret that not one of them has seemed to us to be satisfactorily designed. That is not a reflection on the skill of the architects of the proposals; it is an indication of just how difficult—I might even say how impossible—it is to foresee the circumstances in which advice may be valuable and to legislate precisely for those circumstances in advance. For example, my noble friend's amendment gives his committee the job of advising, broadly, on the state of the law, on possible amendments to it, and on subordinate legislation to be made under the Data Protection Act. I accept that the formulation that my noble friend has used, advising on the "implementation and enforcement" of the Act, does go pretty wide. But can he be sure that that will cover every possible circumstance in which the registrar may want advice? I am not saying it will not. I am simply doubting whether we can foresee everything. And, if there is a statutory committee with a remit that turns out not to extend to giving advice in the particular circumstances that present themselves, what will the registrar do?
§ Lord Avebury
My Lords, if the registrar wanted some advice which was not covered by the wording of 42 the amendment, why could he not take it informally as he would have to do anyway in the absence of such an amendment?
§ Lord Elton
My Lords, to use a metaphor which may not appeal to the nobleLord, he is hunting a little ahead of the hounds, but only a yard or two. I was about to come to that. That is the exact question I am asking. If there is a statutory committee with a remit that turns out not to extend to giving advice in the particular circumstance, what will the registrar do? He will surely be reluctant to ask the committee to go beyond its statutory remit and the committee will be equally reluctant to go beyond the duties and powers voted to it by Parliament.
Is the registrar to overcome that reluctance and to ignore the statutory advisory committee and seek advice elsewhere, as the noble Lord, Lord Avebury, very sensibly suggests? If not, the net result could be that the existence of the statutory committee would discourage rather than encourage the taking of advice. But if he does, surely in that case he will be doing just what we expect him to do in every case if there is no statutory body. So, by solving the problem in the way that the noble Lord, Lord Avebury, cogently suggests, and which is in fact the only way that will be open to him, he will be proving that the committee need never have been created, because he will be getting the advice anyway.
§ Lord Elton
My Lords, it is not a flippant illustration; it is a very real one. If the man is to have a statutory committee charged with giving him all his advice, either he gets all his advice from it or he gets some from elsewhere; but if he can get advice from elsewhere, there seems to me little point in having the statutory body.
Let me take another example. With my noble friend's amendment, let us assume that perhaps 12 or 20 members are appointed to the committee, representing employers, employees, data users, data subjects and others as proposed.Once a statutory committee is established it must be the prime source of advice. I take it that that must be the purpose of the amendment, otherwise it is without purpose. But suppose the registrar faces an especially tricky question regarding a potential or alleged breach of the principles by a user operating in a particular field; and suppose the registrar wants some advice based on first-hand experience in the field concerned; and suppose further that the Lord Chancellor, for all his undoubted wisdom and foresight, has appointed 12 or 20 members of great eminence, but because of the competing demands for membership from so many different professions and disciplines—and data users will proliferate until they cover every discipline, trade and branch of commerce—he had not been able to find room for a person with quite the right experience to shed light on the problem the registrar urgently needed help on.
I suppose there is a third course. The registrar or the chairman of the advisory committee could ask the Lord Chancellor to appoint another member to the committee to make good that deficiency, and another, 43 and another, as each occasion arose. But suppose both the Lord Chancellor and the proposed recruits were available easily enough, and the business of appointment to the committee was crisp enough for the new members to be appointed in time to give their advice. I do see a certain oddity to the proceedings. First, can a committee recruiting new members for perhaps the majority of its agendas function as a committee at all? Secondly, what will be added to the advice of the new recruits of such importance that the registrar should be prevented from receiving it until they are appointed? Will they be allowed to give it before appointment? If so, why do they have to be appointed at all? If they are not, and if they cannot be got on to the committee to deal with the relevant matter before it has to be disposed of, again the statutory committee would prove to be either counter-productive or superfluous.
Once a statutory body is set up, it must be that body from which advice is taken, and that body must abide by its predetermined terms of reference in giving advice. Why we have reservations about a statutory body in the data protection context is because we cannot foresee with sufficient precision what the most appropriate terms of reference will be: nor can we be sure that the members of that body once appointed will be best suited to offer the most helpful advice in every circumstance. We therefore fear that a statutory body is unduly inflexible. Better to leave the registrar—and the Secretary of State—to decide for themselves whom to go to for advice in the light of the particular issue on the particular occasion. That will ensure that they retain the freedom to go to whomsoever is best placed to be helpful.
So much for the general principle. I am sorry if I have dwelt on it for some time but this is not Committee stage. I cannot return and I am going to say it all. There is little more to say because I have dealt with the general principle. I promised also to comment briefly on the detail of the amendment. It seems decidedly odd that my noble and learned friend the Lord Chancellor should be asked to appoint the committee. It is not after all a judicial body. For all his wisdom and expertise, I am sure that my noble and learned friend would be the first to point out the inappropriateness of his appointing people to represent data users and subjects, employers and employees. Secondly, Iam puzzled by the duplication between paragraphs (b) and (c) of the new clause. Paragraph (b) requires representatives of data users to be appointed after consultation with the Secretary of State; but then paragraph (c) requires more representatives of data users to be appointed after consultation withsuch bodies as the Lord Chancellor thinks fit".I am not certain if that is intended. Finally, there is a strange itemisation in paragraph (c) of employers, employees, data users and data subjects. I think that one would be well advised to probe carefully what is to differentiate between employers and data users or between employees and data subjects. But these are minor points. My major difficulties with the amendment are those to which I have already referred at some length. Because of these I am reluctantly unable to support my noble friend's amendment.
44 I will in conclusion make one thing yet again abundantly clear. I am not objecting to the amendment because the Government do not think that the registrar will need advice. Quite the contrary. We believe he will need, and take, copious advice from a wide range of very expert people. We object because we think that on balance what is now proposed will limit his ability to get the advice rather than increase it. On that I can give my noble friend an assurance that that is not our intention. I hope therefore that if he withdraws the amendment he will take the opportunity to reassure those who have exressed concern to him outside the House that we have every intention that the data registrar will take at least adequate advice in every circumstance.
§ Lord Digby
My Lords, I cannot accept that this amendment limits the advice that can be given, which is the whole basis of my noble friend's arguments. He says that there might be a particular expertise that was not represented on the committee. No committee can have expertise from every field. If a particular expert witness is required, the registrar will still be perfectly capable of obtaining the advice. I still do not understand the Minister's objection to the general principle. I believe that this committee is necessary and I—
§ Lord Elton
My Lords, I do not doubt that I am being stupid in this, but the noble Lord has said that of course the committee will not have every sort of expertise and of course the registrar will get advice from the right experts when they are not on the committee. Therefore, what he has not now convinced me of is why we need to have the committee at all.
§ Lord Digby
My Lords, the registrar needs the statutory advice, in my opinion: a committee laid down for that purpose which will come into effect. It can always be said that anyone can take whatever advice he likes. Presumably the registrar can set up a committee of his own. But we have had no particular assurances from the Government as to what form that committee would take. I must admit that I feel that we have not had the assurances that we should have had.
§ 5.7 p.m.
§ On Question, Whether the said Amendment (No. 5) shall be agreed to?
§ Their Lordships divided: Contents, 74; Not-Contents, 102.45
|DIVISION NO. 1|
|Airedale. L.||Cledwyn of Penrhos, L.|
|Avebury. L.||Collison. L.|
|Barrington, V.||Cooper of Stockton Heath. L.|
|Beaumont of Whitley. L.||Craigavon, V.|
|Birk, B.||David, B.|
|Bishopston. L.||Davies of Penrhys, L.|
|Blyton. L.||Digby, L. [Teller.]|
|Boston of Faversham, L.||Donaldson of Kingsbridge, L.|
|Briginshaw. L.||Elwyn-Jones. L.|
|Brockway, L.||Ewart-Biggs, B.|
|Bruce of Donington, L.||Fisher of Rednal, B.|
|Byers, L.||Gaitskell. B.|
|Chitnis. L.||Gallacher. L.|
|Gladwyn, L.||Ogmore, L.|
|Glenamara, L.||Oram, L.|
|Hale, L.||Phillips, B.|
|Hampton, L.||Ponsonby of Shulbrede, L.|
|Harris of Greenwich, L.||Rhodes, L.|
|Hatch of Lusby, L.||Ross of Marnock, L.|
|Hooson, L.||Sainsbury, L.|
|Howie of Troon, L.||Sandford, L.|
|Jacques, L.||Seear, B.|
|Jeger. B.||Sefton of Garston, L.|
|Jenkins of Putney, L.||Simon, V.|
|John-Mackie, L.||Stewart of Alvechurch, B.|
|Kilbracken, L.||Stewart of Fulham, L.|
|Kilmarnock, L.||Stone, L.|
|Kirkhill, L.||Strabolgi, L.|
|Llewelyn-Davies of Hastoe, B.||Taylor of Mansfield, L.|
|Lloyd of Hampstead, L.||Tordoff, L|
|Lockwood, B.||Underhill, L.|
|Longford, E.||Whaddon, L.|
|McIntosh of Haringey, L.||Wigoder, L.|
|McNair, L.||Winstanley, L.|
|Mayhew, L.||Winterbottom, L.|
|Mishcon, L.||Wootton of Abinger, B.|
|Airey of Abingdon, B.||Lauderdale, E.|
|Alport, L.||Long, V.|
|Ampthill, L.||Lonsdale, E.|
|Auckland, L.||Lucas of Chilworth, L.|
|Avon, E.||Lyell, L.|
|Belhaven and Stenton, L.||McAlpine of Moffat, L.|
|Beloff, L.||Mackay of Clashfern, L.|
|Belstead, L.||Mancroft, L.|
|Boardman, L.||Mansfield, E.|
|Caccia, L.||Margadale, L.|
|Caithness, E.||Marley, L.|
|Campbell of Alloway, L.||Marsh, L.|
|Carnegy of Lour, B.||Melville, V.|
|Clitheroe, L.||Merrivale, L.|
|Cockfield, L.||Mersey, V.|
|Coleraine, L.||Milverton, L.|
|Constantine of Stanmore, L.||Morris, L.|
|Cork and Orrery, E.||Mottistone, L.|
|Croft, L.||Mowbray and Stourton, L.|
|Cullen of Ashbourne, L.||Newall, L.|
|Daventry, V.||Northchurch, B.|
|Davidson, V.||Nugent of Guildford, L.|
|Denham, L. [Teller.]||Orkney, E.|
|Derwent, L.||Pender, L.|
|Drumalbyn, L.||Portland, D.|
|Elliot of Harwood, B.||Rawlinson of Ewell, L.|
|Elton, L.||Reigate, L.|
|Enniskillen, E.||Renton, L.|
|Fortescue, E.||Romney, E.|
|Fraser of Kilmorack, L.||Runciman of Doxford, V.|
|Gainford, L.||St. Aldwyn, E.|
|Gisborough, L.||St. Davids, V.|
|Glanusk, L.||Seebohm, L.|
|Glenarthur, L.||Skelmersdale, L.|
|Gowrie, E.||Soames, L.|
|Grantchester, L.||Spens, L.|
|Gridley, L.||Stamp, L.|
|Hailsham of Saint||Strathcarron, L.|
|Marylebone, L.||Strathclyde, L.|
|Harmar-Nicholls, L.||Strathspey L.|
|Hayter, L.||Swinfen, L.|
|Headford, M.||Swinton, E. [Teller.]|
|Holderness, L.||Terrington, L.|
|Home of the Hirsel, L,||Teynham, L.|
|Hylton-Foster, B.||Tranmire, L.|
|Inglewood, L.||Vaux of Harrowden, L.|
|Kemsley, V.||Vickers, B.|
|Kilmany, L.||Vivian, L.|
|Kimberley, E.||Westbury, L.|
|Kinloss, Ly.||Whitelaw, V.|
|Kinnaird, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.