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Baroness Turner of Camden: I thank the noble and learned Lord for what he said--that there is a gap and that this will be looked at. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (The Viscount of Oxfuird): Perhaps I may point out that under the assembly of these amendments it is the first amendment that is moved, and the remaining amendments along that assemblage line are spoken to. They are not moved at the same time as the first amendment. Every amendment is dealt with seriatim.

[Amendments Nos. 78 to 80 not moved.]

Baroness Nicholson of Winterbourne moved Amendment No. 81:


Page 16, line 43, leave out ("the first data protection principle and").

The noble Baroness said: With this amendment I seek to delete,


from the bottom of page 16 of the Bill. The purpose is clear: that the police and the law enforcement agencies should remain under the obligation to process personal data in accordance with the first data protection principle.

I find it odd that I should have to argue for this with particular reference to what we have called in the Bill--I believe correctly--sensitive personal data which refer to ethnic origin, gender, religious beliefs and political opinions. Those are basic human rights that we take seriously in our civil liberties-oriented society.

I am seriously concerned that for no apparent reason law enforcement agencies in particular should be excluded from the simple duty of having to process that data fairly and lawfully. I find that extraordinary, and difficult to accept. Surely in our society all the law enforcement agencies are bound by the rule of law; and a fundamental law is that material that is held, particularly by a government department, should be processed fairly and lawfully. Those two words seem to me to be a basic need if personal data are to be processed at all.

I beg the noble and learned Lord to take this matter very seriously and to see whether a way could not be found to water down this broad provision that has been allowed, which the amendment seeks to alter. I beg to move.

The Deputy Chairman of Committees: I must advise the Committee that if the amendment is agreed to I cannot call Amendments Nos. 82 and 83 due to pre-emption.

The Earl of Northesk: I note that Amendment No. 88 is also in this grouping. In essence, my purpose with Amendment No. 88 was contingent upon Amendment

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No. 32 which we addressed on Monday. I do not propose to say very much about it. Apart from that, I suspect that my purpose in the amendment is much more likely to be achieved under Amendment No. 89, and so I will leave my deliberations about it until that amendment is moved.

Lord Norton: In the light of Amendment No. 83, I do not propose to speak on Amendment No. 82.

4.30 p.m.

Viscount Astor: Perhaps I could just say a word of general support for the principle of the amendment moved by the noble Baroness, Lady Nicholson of Winterbourne. Clause 28 is causing the Committee some concern and we have more amendments on it. There is a problem here and I look forward to hearing the Minister's reasoning behind some of the rather draconian provisions that are in the clause.

Lord Falconer of Thoroton: On Monday, in talking to Amendment No. 32 in the name of the noble Earl, Lord Northesk, my noble friend Lord Williams of Mostyn said that he thought the subject matter of his amendment was germane to this batch of amendments. If I may, in my response later on I will deal with that amendment as well.

There are two amendments that I will deal with. The first is Amendment No. 81 moved by the noble Baroness, Lady Nicholson of Winterbourne. I will also, if I may, deal with the government amendment, No. 83, which has led the noble Lord, Lord Norton, to withdraw his Amendment No. 82.

Amendment No. 81 would remove the exemption from the fair and lawful processing requirement for those controllers whose purpose is dealing with crime, offenders and collecting taxes. As the noble Baroness, Lady Nicholson of Winterbourne, says, on the face of it it seems a perfectly reasonable proposition that any controller should be subject to the requirement to be fair and lawful. For most organisations these are basic principles of our present data protection law and of the regime the Bill introduces. However, the reason for the exemption is to be found in the particular purposes identified by Clause 28(1).

Law enforcement and tax collection necessarily involve a battle of wits against people who are working hard to cover their tracks and establish whether, and, if so, how far, investigations against them have progressed. Moreover, under the Bill the term "processing" goes very wide indeed. Under Clause 1(1) of the Bill it embraces, for example, obtaining, recording and holding, as well as manipulation, consultation, disclosure and destruction. Depending on the circumstances, the term "fairness", applied to both obtaining and processing, for example, can require considerable information to be given to data subjects--information of a kind whose release would frustrate the inquiries they are making. A requirement for lawful processing may also in practice lead to challenges to important investigative work.

I remind the Committee that the exemption applies only to individual cases where compliance with the principle would frustrate the law and order and taxation

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purposes. That is embodied already in the terms of the clause. I should also explain that its practical effect is the same as the present law. The Data Protection Act 1984 prevents the registrar from taking enforcement action in respect of the first principle where crime, offenders and taxation are concerned; and, more generally, it gives individual data subjects no enforcement powers in respect of that principle.

I should also make clear the limited nature of the exemption from the requirement to process lawfully. All this means is that the unlawfulness is not actionable as a matter of data protection law. It does not make the unlawful act otherwise lawful, and it does not prevent any other form of enforcement or redress in respect of the unlawful act.

Against that background I would invite the noble Baroness, Lady Nicholson of Winterbourne, to withdraw her amendment.

But before the noble Baroness makes any decision about this, I would like to turn to the government amendment, Amendment No. 83. On the face of it, this is more technical in nature, although what I have to say should help to give reassurance to the Committee. As we have heard, Clause 28(1) creates an exemption in limited circumstances from the first data protection principle, but the first data protection principle itself has to be read alongside the provisions of Schedule 2 and Schedule 3. The first principle cannot be satisfied unless at least one of the conditions in Schedule 2 has been met and also, in the case of sensitive personal, one of the further conditions in Schedule 3 has been met.

In allowing for an exemption from the first principle in Clause 28(1), it is not our intention to remove the requirements for compliance with those threshold requirements. In other words, that means that the effect of the government amendment is that people claiming exemption under Clause 28(1) are not exempt from having to show that they have a legitimate purpose for the processing, such as the administration of justice or fulfilling a legal obligation. That is the point which Amendment No. 32, with which we dealt on Monday, was concerned with, and with respect to the noble Earl, Lord Northesk, it deals with precisely the point he raised in Monday's debate on his Amendment No. 32.

I come back to what I believe to be a key point. These exemptions are required to assist in the prevention or detection of crime, the apprehension or prosecution of offenders and the assessment or collection of tax. They are limited to a case-by-case basis, and they apply only in respect of where it would be likely to prejudice any of the matters concerned. If the position is that the Data Protection Bill would lead to prejudicing the prevention or detection of crime, for example, it seems only right and proper to the Government that there should be an exemption to it. A balance has to be struck, and we have struck the balance in the right place. In those circumstances, I would invite the noble Baroness and the noble Earl to withdraw their amendments.

Lord Skelmersdale: Before the noble Baroness withdraws her amendment, I wonder whether I can probe the noble and learned Lord a little further on what he said about the government amendment, No. 83,

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    "except to the extent that it requires compliance with the conditions in Schedules 2 and 3".

By very definition, the data subject cannot possibly give their consent under Clause 28(1), and surely to goodness this is one of the things which ought to be removed from the exceptions to which the government amendment refers--that is to say, Schedule 2, paragraph 1.

Lord Falconer of Thoroton: I cannot think of a circumstance, although there may be one, where consent could be given, but the first data protection principle provides that personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless at least one of the conditions in Schedule 2 is met. Consent is not the only condition in relation to Schedule 2. Obviously there is a large number of other conditions which could be fulfilled which would satisfy the requirement of the first data protection principle in paragraph 1. That is how it works.


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