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Viscount Chelmsford moved Amendment No. 130:

Page 26, line 41, at end insert--
("( ) In any dispute concerning the fairness of processing personal data, as required by Schedule 1(1), subject to the appeal procedures in Schedule 6, the decision of the Commissioner shall be final.").

The noble Viscount said: It seems to me that many more people will be affected by the new Bill than by the 1984 Act by virtue of the change in the exemption of manual processing. I was concerned as to whether there would be increased numbers of arguments over what is fair.

Clearly we cannot define fairness; it is a matter of judgment. It did not therefore seem appropriate to try to introduce this provision earlier. I am not sure that the suggested amendment is necessarily in the right place now, but it seemed better than including it under the definitions.

It would reduce time and effort if there were some sort of procedure for dealing with arguments about fairness. That is why I have simply suggested that, subject to the standard appeal procedures that exist in the Bill, the data protection commissioner's decision should be final.

I was interested when earlier, in another context, the noble and learned Lord, Lord Falconer, said that the term "fairness" can lead to a considerable amount of information being released. It may be that we have here another part of the processing which might be reduced if there were some sort of process along the lines that I have suggested. I beg to move.

7.15 p.m.

Lord Falconer of Thoroton: I fully understand the reasoning behind the amendment of the noble Viscount, Lord Chelmsford. However, I believe that it is unnecessary because it describes what will happen under the Bill in any case where the commissioner takes enforcement action against a data controller for breach of one of the principles in Schedule 1. That enforcement action will be final, with failure to comply being a criminal offence, unless the data controller appeals to the Data Protection Tribunal. The tribunal's decision to support, modify or quash the commissioner's action is

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also final, unless either party appeals to a higher court on a point of law, which is obviously different from the prime factor question of fairness.

The only other forum for considering infringements of the first data protection principle is a court hearing an action under the provisions of Clause 11, which is where someone has suffered damage as the result of an infringement. We cannot make the commissioner's decision final on that point because that would be to oust the jurisdiction of the court to consider actions for a remedy. The directive does not allow us to do so. In principle, however, what the noble Lord says reflects what we hope will be the position in any event, and we believe that we have achieved that end. With that reassurance, I hope that the noble Viscount will consider withdrawing his amendment.

Viscount Chelmsford: I am grateful to the noble and learned Lord, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 agreed to.

Schedule 6 [Appeal proceedings]:

Lord Falconer of Thoroton moved Amendment No. 131:

Page 48, line 40, at end insert--
("(ff) for enabling an appeal under section 46(1) against an information notice to be determined by the chairman or a deputy chairman,").

The noble and learned Lord said: This is a technical amendment. If one looks at Schedule 6, paragraph 7(2)(g), which was referred to in my noble friend, Lord Williams of Mostyn's response to Clause 41, one will see that there is power in the Secretary of State to make rules for enabling certain matters to be dealt with by the chairman or deputy chairman. The aim of the amendment is to make it clear that, when it says "to be dealt with", it means not just to make particular rulings but to be determined as a whole. We would like that to be included between (f) and (g) of paragraph 7(2). It is a purely technical amendment which will give effect to what we had already intended. In those circumstances, I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 132:

Page 48, leave out line 42.

On Question, amendment agreed to.

Schedule 6, as amended, agreed to.

Clause 47 [Determination of Appeals]:

Viscount Astor moved Amendment No. 133:

Page 27, line 25, leave out ("address") and insert ("residence").

The noble Viscount said: Clause 47 deals with the determination of appeals. Subsection (6) says:

    "Any party to an appeal to the Tribunal under section 46 may appeal from the decision of the Tribunal on a point of law to the appropriate court; and that court shall be--

    (a) the High Court of Justice in England if the address of the person who was the appellant before the Tribunal is in England or Wales".

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It seems to me that "address" is not a good word here. You can certainly have two addresses: one in England and one in Wales; and, indeed, one in Scotland as well. It seems to me that the test of residence would be rather better to determine that fact. I would be interested to hear what the noble and learned Lord has to say as to whether "residence" is a clearer and better term to use. I beg to move.

Lord Falconer of Thoroton: There is no doubt about what your address is. You can see it on the printed page. We are talking about appellants. They choose what their address is. As the noble Viscount must be aware, the word "residence" can give rise to enormous arguments. The word "address" was used in the 1984 Act. It has proved perfectly workable. His suggestion simply leads to confusion and doubt. I respectfully suggest that we stick with "address".

Viscount Astor: I certainly would not wish to extend legal arguments in courts. With that explanation I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments No. 134 and 135 not moved.]

Clause 47 agreed to.

Clause 48 agreed to.

Schedule 8 agreed to.

Clause 49 [General duties of Commissioner]:

Viscount Astor moved Amendment No. 136:

Page 27, line 34, leave out subsection (1) and insert--
("( ) It shall be the duty of the Commissioner--
(a) so to perform his functions under this Act as to promote the observance of the requirements of this Act by data controllers, and
(b) after consultation with the parties affected, to promote good practice by data controllers.").

The noble Viscount said: I was concerned about the drafting of Clause 49 on the general duties of the commissioner. There is no clear distinction between the commissioner's two-fold duty. My amendment attempts to make this distinction clear, and to give primacy to promoting the observance of the requirements of the Bill. At the moment as far as I read it, it is the wrong way round. It seems to me that you cannot promote good practice if it is not within the legislation.

My second amendment relates to the development and promotion of good practice beyond the specific requirements of the Bill. Prior consultation should be considered in the case of good practice which goes beyond the legislation. That is why I have put forward the amendment. I beg to move.

Lord Craig of Radley: I speak to Amendment No. 138, which is also in the names of my noble friends Lord Flowers and Lord Phillips.

The purpose of this probing amendment is to establish whether there is an intention to tighten the existing voluntary codes of practice for the way in which data, captured by CCTV or other surveillance systems, are handled, stored and disposed of. I am not sure whether this is the right place in the Bill to address this topic. However, Clause 49(3) lays on the commissioner the

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task, where he deems it appropriate, to prepare and disseminate codes of practice for guidance as to good practice. It seemed therefore an opportune point to raise the need or otherwise for more than voluntary codes.

Perhaps I may refer again to the Science and Technology Select Committee Inquiry into the Use of Digital images as Evidence, which I chaired. We gave particular consideration to the current voluntary code which the Local Government Information Unit (LGIU) issued for CCTV. It was called 'A Watching Brief'. I have a copy with me here.

It was in general regarded as an excellent document, which had been widely discussed and well researched. It seems to command wide acceptance. But it is without teeth; it is voluntary. It is, I understand, Home Office policy to require that those bodies which are given grants or other help with public space surveillance systems should adopt the LGIU Code of Practice. In our inquiry we found that there was a tendency, by no means necessarily with evil intent, for surveillance operators and owners to pick and choose within the details of the code. In other words, the code, without teeth, was not invariably followed, and there was no way to enforce the requirements of this or any other similar code.

The LGIU in the introduction to its code foresees the possible need in future for a statutory form of control for CCTV. The Select Committee itself concluded, after a very careful discussion of the subject and in the light of the evidence we received, that to maintain public confidence in the use of CCTV and similar surveillance technology for the prevention of crime and public disorder greater control of its use was needed.

We recommended that the Government give urgent consideration to introducing tighter control over any system, either publicly or privately owned, covering sites to which the public had free access. To meet the requirement for continued public support, we would expect this to cover the need for some form of licensing; for statutory or other enforceable codes of practice; and for powers to inspect and audit the use and handling of surveillance systems, including the images, their storage and disposal--tasks which would seem to lie within the remit of this Bill's commissioner.

We recognise that this is not as simple or straightforward as just stating it; and further complications may arise because of overlap with other regulatory codes, for example the broadcasting one, which were mentioned earlier by the noble Viscount, Lord Astor, and the noble Baroness, Lady Nicholson of Winterbourne, when speaking to Clause 31.

However, we were encouraged by the Home Office evidence we received which told us that the Government recognised that there were concerns about accountability and control, particularly of CCTV schemes, both public and private. Individually developed codes of practice may lead to lack of consistency and not all schemes are obliged to adopt them. Mrs France (DPR) in her oral evidence referred to the possibility of introducing (through the Bill) codes of conduct which can be used as a baseline for using the powers of enforcement that Parliament then gave.

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The Home Office evidence also said that the Government had stated that they would consider the principle and practicability of underpinning the existing codes with legislation. I was further heartened to hear the Home Office Minister, Mr. Alun Michael, say on radio last Sunday that the Government were now intent on introducing enforceable codes of practice for CCTV.

While I recognise that there must be considerable difficulty in drafting the appropriate legislation to give statutory life to these intentions, I look forward to the Minister's comments on my remarks. Whether here is the appropriate clause in the Bill I am quite unsure. I am no lawyer, but I know that the Minister is supremely better qualified than I am to provide the right answers. I ask him and the Committee to bear in mind that the essential purpose of all this is to act in ways which will sustain and enhance the public's confidence in surveillance systems.

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