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Lord Norton: I wish to speak to Amendment No. 66, which is grouped with Amendment No. 62. This is a probing amendment. Under this clause, the commissioner has to review the working of notification regulations from time to time so as to maintain an up-to-date registration system. Purpose is critical to the notification process. At present there are some 78 purposes, and since three of the eight data protection principles relate to the purpose, it is obviously important to define purpose clearly.

It is important that purpose is not defined too broadly and the right balance is struck. It is for this reason that I have tabled this probing amendment seeking to establish the extent to which the commissioner shall be allowed to emphasise the relationship between the processing of data and its purpose.

Lord Falconer of Thoroton: The duty laid on the commissioner in Clause 24(2) to keep the working of notification regulations under review is expressed in a general form, leaving the commissioner to determine how to fulfil this duty. The notification regulations themselves cover a variety of issues. My noble friend's amendment draws out for particular attention from that range of issues one section, Section 15(1)(d), which specifies just one of the "registrable particulars" which have to be notified to the commissioner by data controllers. The "registrable particular" is a description of the purpose or purposes for which the data are being, or are to be, processed. The amendment would require the commissioner to review the way data are processed in order to establish whether the processing is being undertaken in accordance with the processes specified in the notification. That is how I understand the amendment.

The role of the commissioner in reviewing the operation of the notification regulations is to consider how the regulations work in relation to the matters to which they relate. The regulations themselves govern the system whereby data controllers are required, in the interests of transparency, to inform the commissioner of certain details about who they are and what they do.

The detail of how purposes are to be described in the context of Clause 15(1)(d) is certainly relevant in this context. So is the manner in which data controllers are to inform the commissioner of those purposes. However, the "appropriateness" or otherwise of their processing is, so far as I can see, not relevant.

It is important to be quite clear that notification differs significantly from the current system of registration. Registration is about direct controls on processing activities themselves. Notification is not; it is, as I have said, about transparency only.

The extent to which data are processed in a manner appropriate to any purpose seems to me essentially a matter concerned with regulating processing, not transparency. The data protection principles set out rules for appropriate processing. The Commissioner has

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powers to enforce those. That, it seems to me, is the right context in which to look at the appropriateness of processing.

In any event, the absence of a specific requirement to undertake a review of the kind proposed in the amendment would not prohibit such a review taking place, were the commissioner to consider one necessary and relevant to the purposes with which he is charged in this provision of the Bill.

In the light of those comments, I invite the noble Viscount to withdraw the amendment.

Viscount Astor: I am grateful to the noble and learned Lord the Solicitor-General for his explanation of Clause 16. I am still somewhat concerned that the Secretary of State has an overriding power on this issue, which does not seem to be subject to the limitations that the Bill generally provides everywhere else. I will read carefully what the Minister has said, but this is an issue to which we may wish to return on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Clauses 17 to 20 agreed to.

Clause 21 [Preliminary assessment by Commissioner]:

Lord Falconer of Thoroton moved Amendment No. 63:


Page 13, line 15, leave out ("significant damage or") and insert ("substantial damage or substantial").

The noble and learned Lord said: This is another technical amendment. It will provide consistency in the way that damage or distress is qualified in the different clauses of the Bill. Clause 9(1) already refers to "substantial damage or substantial distress". The amendment will bring the wording of Clause 21 into line with that of those other clauses and ensure that this threshold is applied consistently. I beg to move.

The Earl of Northesk: I note that my Amendment No. 64 is grouped with this amendment and I wish to speak to it. The purpose of Amendment No. 64 is to restrict the circumstances in which the commissioner will be allowed to extend the amount of time that will be given to the consideration of processing which has been notified.

Specifically, the timing of business ventures is important. Indeed, in some cases it is vital if companies are to be the first to launch a new commercial project. The planning of the launch is precise and businesses require a high degree of certainty in respect of their business and legal obligations to meet their projections.

As the Bill is currently drafted, the commissioner may extend the notice period by a further 14 days if "special circumstances" exist. It is conceivable that such circumstances could be extraneous--for example, by virtue of the commission being subject to too great a weight of notifications for its staff adequately to deal with them--and yet they could impact considerably and detrimentally upon the commercial viability of the company concerned. With this in mind I suggest that any additional time required for further consideration as

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to whether processing is permitted to progress should only be granted in circumstances that are truly "exceptional".

7 p.m.

Lord Falconer of Thoroton: Clause 21 provides the commissioner with 28 days (or 28 days plus one extension of a further 14 days) within which to determine whether a preliminary assessment of a particular notification is required and then to undertake that assessment. The amendment raises the issue of whether the conditions permitting the commissioner the extra 14 days are the right ones. The amendment proposes a much stricter condition; namely, that the circumstances should be "exceptional" rather than special. As at present advised, we do not see the need for the conditions to be made more restrictive.

The 28 days provided in the Bill already strike a fine balance between the time needed to give proper consideration to the assessment and the interests of the data controller, who is unable to process the data during this period (unless the commissioner has given his opinion on the processing's likely compliance with the legislation). The processing which will be subject to preliminary assessment is processing which is particularly likely to cause significant damage or distress to data subjects or otherwise significantly to prejudice their rights and freedoms. Although only a small quantity of processing is expected to fall within this category, it justifies the special attention it will receive in the preliminary assessment. The further 14 days should be available to the commissioner, if needed, on the basis of "special circumstances" as the Bill provides. This is a relatively modest provision for extension in already restricted circumstances. In the light of those comments, I hope that the noble Earl will feel able to withdraw his amendment.

On Question, amendment agreed to.

[Amendments Nos. 64 and 65 not moved.]

Clause 21, as amended, agreed to.

Clauses 22 and 23 agreed to.

Clause 24 [Functions of Commissioner in relation to making of notification regulations]:

[Amendment No. 66 not moved.]

Clause 24 agreed to.

Clauses 25 to 26 agreed to.

Clause 27 [National security]:

Lord Williams of Mostyn moved Amendment No. 67:


Page 15, line 43, at end insert ("any of the provisions of").

The noble Lord said: Grouped with this amendment are Amendments Nos. 69, 70, 72, 73, 84, 91, 94, 95, 98, 99, 110, 111, 114 and 120. It is an extended set of technical amendments, which perform identical functions on a number of exemption provisions. They rectify an unintended effect which derives from the way that the exemptions are expressed at present. They seem to operate on an overly rigid all-or-nothing basis, so that

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if an exemption is justified in respect of one part of a clause, for example, the whole clause inevitably ceases to apply. That is not what we set out to achieve.

Particularly in exemptions relating to Clauses 27 and 31, which potentially disapply a wide range of clauses in the Bill, the exemption should not extend just to those clauses which are appropriate in any given circumstances, but only to the appropriate parts of those clauses. Sometimes it will be right for the whole clause to be disapplied, but not always. We wish to build in a flexibility which is presently missing.

It may also be an important factor in Clauses 28 and 37 to make further exemptions from the Bill; we need to be able to express exemptions precisely, so that everyone knows how we wish them to apply. We do not wish them to apply more broadly than is properly justifiable. That is the basis for these numerous technical amendments. I beg to move.

On Question, amendment agreed to.


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