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Viscount Astor: It may be convenient if I speak to Amendments Nos. 14 and 16. I can only half thank the Minister for replying in advance to my amendment. I had rather hoped to ask him a series of difficult questions about Amendments Nos. 14 and 16, but he has asked me a whole series of difficult questions about my amendment. Unfortunately, I do not have the hot towel, the coffee, or any of the support that is needed.

Perhaps I could start in reverse order, because that is the question I remember better. My concern, as the noble Lord rightly surmised, was that telecommunications operators should not be considered the data controller for personal data which are carried as part of a message. As the noble Lord said, this is provided for in paragraph 47 of the directive, to ensure that anybody who is just providing a service would be exempted, if I understood him. It is only those who were providing a service who were not only sending the data but in some way processing them who would therefore be caught. That is what I understood from the noble Lord. Therefore, for example, if British Telecom or any other Internet provider provides the lines, it is not a controller: it is just using the lines and therefore it is not caught. I am grateful for the noble Lord's clarification on that.

On Amendment No. 14, about anonymous information, I am rather concerned by the noble Lord's reply. In the directive, paragraph 26 is clear. It says that:


I accept what the Minister said, but I feel that the Bill is weak in making that clear. I wonder whether there is some way in which we can ensure clarity. Information will be used for statistical and research purposes and it would be a pity if that information could not be used because there were worries on this issue. I wonder whether between now and the next stage the Government could address the issue and come forward with a solution to clarify it on the face of the Bill. I entirely accept what the noble Lord says are the intentions. However, I am not 100 per cent. convinced that this is clarified in the Bill as it stands.

Baroness Nicholson of Winterbourne: I have a comment on Amendment No. 16. We have not heard the last of the need to address the problems of personal privacy on the Internet. The Commissioner, Mr. Mario Monti, of the Internal Market and Financial Services, announced last week that he will be seeking from the Council of Ministers a possible brief to negotiate on the drafting of guidelines for the protection of individuals

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with regard to the collection and processing of personal data on the information highways. He has stated that, while working on this in the Council of Europe, he believes he should ensure that the work is of a comparable level of protection with Directive 95/46EC, and does not interfere with its implementation. He goes on to say that he believes the Commission should pay particular attention to a number of quite stringent points. My own view, for what it is worth, therefore, is that while we may believe that we make up our minds on this, it will end up in a holding position while we await yet another directive.

Lord Williams of Mostyn: The noble Baroness may well be right, and I make my response to her comment on Amendment No. 16. We sought to get the balance as safely as we can. It may well be that circumstances will make us take a different view.

Let me say how sorry I am that there has been any apparent personal discourtesy in respect of the noble Earl, Lord Northesk. I gave particular instructions that the letter was to be delivered to him before we began this Committee in the Moses Room. I know that I have signed it and it may well be on its way. But it is extremely unsatisfactory and I can assure not only the noble Earl but the Committee that I intended no discourtesy. His letter was very informed and detailed, and required quite a good deal of research, which I know officials began as soon as the letter came to the Home Office because I made the particular request that they should do that, and I know they have. I will take that further and find out where the letter is. It may well simply not have arrived; it may have been lost in the building.

The Earl of Northesk: I thank the Minister very much for that, and I know perfectly well that no discourtesy was intended.

Lord Williams of Mostyn: I am grateful to the noble Earl.

The noble Viscount, Lord Astor, returned to this question on Amendment No. 14. All of these matters are certainly worth considering because there is no absolutely right answer to any of these problems. I can undertake that we will give them careful thought, by which I mean truthfully and literally rather than any implied inducement, because I am not in a position to give any sort of inducement at all, nor to indicate by a nudge and a wink that we are likely to change our minds. We are genuinely wanting assistance, I cannot repeat that too often, and I am most grateful for the further questions that have been put, which we shall of course consider.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendments Nos. 5 to 11:


Page 2, line 1, leave out ("personal") and insert ("information or").
Page 2, line 2, after ("the") insert ("information or").
Page 2, line 3, after ("the") insert ("information or").
Page 2, line 4, after ("the") insert ("information or").

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Page 2, line 5, after ("the") insert ("information or").
Page 2, line 6, after ("the") insert ("information or").
Page 2, line 9, after ("the") insert ("information or").

On Question, amendments agreed to.

[Amendment No. 12 not moved.]

Viscount Astor moved Amendment No. 13:


Page 2, line 15, leave out ("particular").

The noble Viscount said: I can be very brief with this amendment. It concerns the definition of "relevant filing system". By eliminating what one might call the second hurdle, more files will come with the ambit of a "relevant filing system". Otherwise files which are structured by reference to individuals but not also by reference to the particular information which they hold would not come within the definition. That does not seem to be what the Bill intended. In trying to improve some of the drafting of the Bill, I suspect I might not have it necessarily right, but I look forward to the noble Lord's response. I beg to move.

Lord Williams of Mostyn: It was this amendment to which I made oblique reference earlier. Let me say at the outset what I am directed to say at the end, which is that we will certainly look at the wording of this clause to see if we can get more precision. At present, the Act of 1984 only applies to computerised records. Because of the directive, we have the obligation to extend the regime of protection to some manual records. This is extremely important and it is also extremely difficult to get the right phrasing.

The definition as it stands is our best effort so far, and we have tried to identify three key elements: one, the set of information must be structured; two, the structuring must be done by reference to individuals; and, three, particular information about particular individuals must be readily accessible. There is no doubt that that can be criticised as lacking certainty. It does not make it absolutely clear as to whether all personnel files will be caught, but the answer is that it depends on the way in which the files are structured and upon the ease of access to particular information. To give an example: a personnel file about a named individual which contains a miscellaneous set of papers filed in date order may not be caught. A personnel file about a named individual with nothing in it but annual staff reports might well be.

I mentioned at Second Reading--and have reiterated to this Committee in answer to the noble Viscount's question--that the Data Protection Registrar does not share our view on the effect of the definition as drafted. Her view, if I have it correctly, is that it already covers the general personnel file. She believes that it is sufficient for the file to be about a single named individual for it to be caught by our present definition. That would apply to files of any kind.

I did say at Second Reading that we were willing to have another look at the definition to see whether it could be made more precise. We need to reach a conclusion, after the full debate, as to which categories of records are to be included. One possibility would be to make clear that the definition did, indeed, apply to

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the broader category of records which the registrar believes are already included. As the noble Viscount said, that would virtually be the effect of his amendment.

If that is the way we are to proceed, there would be for all users of manual records important consequences and substantial extra burdens. From representations we have received, it would not seem to be welcomed by those who hold large collections of this type of file, going back decades.

Our present preferred approach would be to maintain the present definition and limit it to a narrower category of files. However, as I stressed at the outset speaking to Amendment No. 13, I do not pretend that we have necessarily arrived at a perfect drafting answer. We are content to look further as the debate itself develops.

4.15 p.m.

Lord Flowers: I understand why the Minister wishes to make such a sharp distinction between automatic and manual, because it has been a problem in the past and he is concerned about it. However, the future of computing is an interactive one, in which automatic processing pauses from time to time and waits for the operator to feed in manual information or instructions. Increasingly, computing is developing in that interactive manner. It will become more and more difficult to make a sharp distinction between automatic and manual. In the amendment put forward by the noble and gallant Lord, Lord Craig, which I support, we raised an objection to the use of the word "automatic" for that reason. I emphasise again, in the context of the particular paragraph now under discussion, that the same objection applies. I hope that the Minister will reconsider the use of the word "automatic" throughout.


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