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Lord Williams of Mostyn: I have considerable sympathy with the underlying concerns which have been expressed so fully by the noble Baroness, not only on this occasion but on earlier occasions. I recognise the rightness of what she says in that government departments, not only central but local, have a vast amount of information on people's private activities.

If one has the possibility of data matching, one looks at that with a degree of anxiety which was reflected, rightly I believe, by the noble Earl. Equally, the other side of that particular penny, everyone recognises that data matching may well have a proper part to play, not least in fighting crime, in particular fraud.

The amendment of the noble Baroness would require, as she indicated, every government department and agency to prepare a data matching code of practice within six months of the passage of the Bill. That would apply whether or not the department or agency had any plans or any prospects of undertaking data matching. She specified the nature of the code and I do not trouble the Committee with it. There are one or two technical deficiencies. I mention them not to chide but to be of assistance, in case the noble Baroness wants to return to this matter in due time. I am simply seeking to be helpful.

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She refers to "relevant filing systems" and that would refer to manual records, and therefore that would miss the particular bull's eye at which she was looking. I stress that I simply seek to be helpful and am therefore likely to be the subject of instant dismissal! If the noble Baroness is going to return to this, I do not want to be in the position of saying, "By the way, there is a technical deficiency", which I regard as the last refuge of the inadequate!

The next technical deficiency is the definition of "government department", and, again, perhaps we may discuss that privately. There is a deficiency there but it is not of such pulsating interest that I need to develop it further.

The real question is how do we deal with these matters? The noble Earl had an important point, if I may say so, in that drafting is difficult because one is going to set in stone, if one is not extremely careful, drafting requirements which will not then be competent or have the ability to deal with changed circumstances. We believe that that is an indicator towards a certain degree of flexibility rather than the degree of rigidity which might be consequent on the amendments of the noble Baroness.

At the moment, the Bill is in general terms. It requires that personal data shall be processed fairly and lawfully on the first data protection principle. That means it could only be done lawfully by government departments and their agencies if it were under the authority of statute, common law or by virtue of royal prerogative. We think that that is a degree of stringency in itself.

What we are looking to, essentially, is Clause 49(3) of the Bill. That enables the commissioner to prepare and disseminate codes of practice, to encourage the preparation and dissemination of such codes by trade associations (which includes bodies representing data controllers) and to advise on the adequacy of any such codes submitted for her consideration. They would not, I readily concede, need to be laid before Parliament, but they would be expected to have a detailed statement of the application of the enforceable data protection principles.

That, I hope, would meet the purpose upon which we are all generally agreed, together with the warning, which I have accepted, about the desirability to have a degree of flexibility to meet quite rapidly-changing technological conditions. We believe that that process, which will be under the remit and informed control of the commissioner, gives us a preferable solution because it offers flexibility and informed input rather than something which is a statutory code.

We ought perhaps to pause for a moment on Clause 21 because that allows preliminary assessment or prior checking. It relates in particular to processing that is likely to cause significant damage or distress, or significantly otherwise to prejudice the rights and freedoms of data subjects.

The commissioner can prohibit processing. If during the prohibited period processing occurs it will be an offence. If the commissioner concludes that the processing is unlikely to comply with the Bill's requirements, the processing may still go ahead, but at the data controller's risk of enforcement action.

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The particular processing to which the clause applies is to be specified in an order that will be subject to the affirmative resolution procedure. No decisions have been made as to which categories of processing operation should be subject to preliminary assessment--prior checking--but Members of the Committee will be aware from the proposals that we published last July that data-matching operations are primary candidates. I undertake to pay particular regard to the concerns that were so admirably deployed and explained by the noble Baroness.

On the second amendment, the general points I have made apply and I do not repeat them. The noble Lord's amendment would bring about a situation whereby, where processing was subject to preliminary assessment, it could only be done in accordance with a code of practice issued by the Secretary of State, subject to affirmative resolution. We do not ourselves see the necessity for that because processing is already able to be the subject of scrutiny of preliminary assessment. What we are looking for at the moment is the development of codes of practice under the remit--I cannot stress this too highly--of an admirable commissioner and a first-rate department. We believe that that is likely to be a productive way ahead.

I hope that I have gone at least some significant way--if not to the final winning post--in meeting the concerns, which I fully recognise are legitimate and widely held by a large number of people.

Baroness Nicholson of Winterbourne: I thank the Minister very much for his clear explanation and for the knowledge that he has given us. I believe it is very important in the Data Protection Bill for this subject to be properly addressed. As has already been seen from the social security fraud legislation, it will flow in to other legislation now more and more. I want both Houses of Parliament to have the opportunity on a constant basis to examine the infringement of citizens' privacy, which is so large when data matching happens without their knowledge and consent.

I welcome the Minster's acceptance of my concern and his sharing of it. I will look carefully, as I know the noble Earl will, at what he has said, and then see whether maybe he could be persuaded to go a little bit further later on; but it is a most welcome statement that he has made.

Amendment, by leave, withdrawn.

[Amendment No.147 not moved.]

Clauses 58 and 59 agreed to.

Clause 60 [Orders, regulations and rules]:

Lord Williams of Mostyn moved Amendment No. 148:


Page 34, line 6, leave out (" 64(2)") and insert (" 64(3)").

The noble Lord said: The drafting is incorrect. There is a reference to "Section 64(2)" and it should be "Section 64(3)". I beg to move.

On Question, amendment agreed to.

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Lord Williams of Mostyn moved Amendment No. 149:


Page 34, line 12, at end insert--
("section 13(5)").

The noble Lord said: I shall speak to Amendments No. 149 and 152, if I may. These amendments provide that an order to prescribe circumstances other than those specified in Clause 13 in which automated decision-making may be permitted shall be subject to the affirmative, not the negative, resolution procedure. Because an order under this clause could affect the rights of data subjects, we have thought about it and we accept that it should be subject to the fuller parliamentary scrutiny of the affirmative process. This change was recommended by the Select Committee on Delegated Powers and Deregulation. We thought about its recommendation and believed that the proper thing to do was to accept it. That is the purpose of these amendments. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 150 and 151 not moved.]

Lord Williams of Mostyn moved Amendment No. 152:


Page 34, leave out line 23.

The noble Lord said: I have already spoken to this. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 153 and 154 not moved.]

Clause 60, as amended, agreed to.

Clauses 61 to 63 agreed to.

Schedule 10 agreed to.

Schedule 11 [Repeals and revocations]:

Lord Williams of Mostyn moved Amendment No. 155:


Page 57, line 36, column 3, leave out ("paragraph 15") and insert ("paragraphs 15 and 40").

The noble Lord said: I wonder whether I might speak to Amendments Nos. 155 and 156, and for a purpose which will appear later, inquire of the noble Viscount as to whether he intends to move his objection to Clause 64 stand part.

Viscount Astor: Before the noble Lord arrived I did say that this was purely a way to say something about the Government's proposals on transition.

Lord Williams of Mostyn: These are both technical amendments which delete references to the 1984 Act in subordinate legislation which are no longer needed. I beg to move.


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