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Lord Williams of Mostyn: My Lords, I am grateful for the exposition which has been given. I was most pleased to hear that the discussions which have taken place with officials have been helpful if not entirely productive of an outcome that everyone can accept. The proposition which is being put is that contracts in appropriate cases should be able to make a contribution to a finding of adequacy for the purposes of Schedule 1. We believe that that is already the case as the Bill is drafted. Paragraph 14 of Part II of Schedule 1 states that,

I emphasise that. It is the full situation in individual cases--both legal and practical--which must be considered. The ensuing list of matters in paragraph 14 is not exhaustive. If the person to whom data are exported is under relevant contractual obligations and the country or territory in question is one with an effective contractual enforcement system, that may well contribute to a finding of adequacy.

There may be, for instance, a relevant code of conduct in force in the territory in question which the recipient of the data is contractually bound to comply with. The fact of that contractual obligation is clearly relevant to the question of whether the overall level of protection offered by that territory is,

    "adequate in all the circumstances",

as paragraph 14 requires. Similar considerations would of course apply vis-a-vis security measures, to which this amendment specifically relates.

We are not persuaded that there is a gap in the scheme which this amendment could usefully fill. The list of mandatory considerations is designed to highlight the most important issues. It follows clearly the words of Article 25.2 of the directive. However, other factors will be relevant. That is the reason for the phrase,

    "all the circumstances of the case".

There is no end to the circumstances which could be listed. We have highlighted the major factors indicated by the directive.

The noble Viscount said that this was a difficult area. We understand that. I shall reflect further on what the noble Viscount has said today. I cannot accept his amendment today but we shall look carefully at the points he has raised this afternoon. I hope that in respect of Amendment No. 6 the noble Viscount will accept those comments and will not press the amendment.

Viscount Astor: My Lords, I am grateful to the Minister for those comments. I shall not press the amendment, but this is a matter that we must try to make clear before the Third Reading of the Bill.

On Question, amendment agreed to.

[Amendment No. 6 not moved.]

Schedule 3 [Conditions relevant for purposes of the first principle: processing of sensitive personal data]:

[Amendment No. 7 not moved.]

16 Mar 1998 : Column 474

Lord Dholakia moved Amendment No. 8:

Page 43, line 21, at end insert--
(" . The processing is--
(a) undertaken only for the purpose of promoting, ensuring or monitoring equality of opportunity or treatment between persons of different racial or ethnic origins, and
(b) carried out with appropriate safeguards for the rights and freedoms of data subjects.").

The noble Lord said: My Lords, let me first declare an interest in this amendment. At one time I worked at the Commission for Racial Equality and made my maiden speech in this House on the subject of equal opportunity in a debate proposed by the noble Baroness, Lady Turner of Camden, some time ago. It should therefore come as no surprise to your Lordships' House that I move the amendment in my name on the Marshalled List.

I express my concern and also the concern of the Commission for Racial Equality, which is a body set up by the Government to promote equality of opportunity and good relations among our various communities. It has the full backing of the Home Office in this important task. Equal opportunity has no meaning unless this process is adequately monitored. Needless to say the commission is concerned about the impact of the Data Protection Bill on ethnic monitoring. I believe the amendment I propose will address this deficiency.

The Data Protection Bill as drafted imposes a general prohibition on the processing of sensitive personal data, which includes data on racial and ethnic origin. This causes a major problem. The recording or analysis of the ethnic origins of employees or service users will not be lawful unless one or more of a number of specified conditions set out in Schedule 3 to the Bill are met or unless the purpose is one within any of Clauses 27, 28 or 31. Let me remind your Lordships that these relate to national security, prevention and detection of crime, assessment or collection of taxes etc.

The conditions in Schedule 3 do not include any reference to processing for the purpose of ethnic monitoring and none can be reasonably interpreted as permitting it. The Bill in its present form will therefore permit ethnic monitoring by employers and service providers only if data subjects give their explicit consent as stated in paragraph 1 of Schedule 3.

Paragraph 9 of Schedule 3 confers on the Secretary of State a general power to stipulate by order further conditions in which sensitive personal data may be processed. I am well aware from my discussions with the Commission for Racial Equality that it has been in touch both with the Home Secretary and the noble Lord, Lord Williams of Mostyn. The Minister has indicated that it is the Government's intention to use the power in paragraph 9 of Schedule 3 to permit ethnic monitoring. Let me say straight away that this approach is not equivalent to the inclusion of such an exception in primary legislation. The Minister must therefore accept that this is highly damaging to the work of the Commission for Racial Equality and others working to promote ethnic monitoring.

The amendment, which has the support of my noble friend Lady Nicholson, has the clear objective of including in the Bill a specific exception relating to

16 Mar 1998 : Column 475

ethnic monitoring. It will make clear to all employers and service providers that the Data Protection Bill will permit ethnic monitoring. I believe that that is crucial.

It has been a hard struggle to get where we are on the important subject of ethnic monitoring. The uncertainty as to what the law will permit will increase reluctance and may lead some to abandon the issue altogether. I do not believe that the Government's explicit commitment to equality of opportunity in their manifesto ever envisaged the placing of such a restriction.

Let me take the example of the CBI's equal opportunities forum. It shares the view that the Bill should be amended. It shares the view that this provision should be made evident on the face of the Bill rather than being dealt with in subordinate legislation. The TUC agrees that the Bill needs amendment for this purpose. If the Bill is not amended, the message will be clear. It will suggest that racial equality and the means of achieving it are not a priority. It strikes at the heart of all government policies because they frequently refer to the centrality of equal opportunity to their work.

In all the years that I have known the Minister I have never doubted his total commitment to racial equality and the means of achieving it. I believe that, on reflection, he will accept that the amendment gives weight to the CRE's code of practice issued under Section 47 of the Race Relations Act. This is vital to the promotion of the objectives of all those who work to build a decent society free from any improper discrimination. Ethnic monitoring should be in the mainstream of legislation rather than delegated to its margins. If the Government decline to accept this reasonable amendment, they risk being seen as failing to take positive action to promote equal opportunity when there is an easy and available opportunity to do so. The amendment has all the necessary safeguards for the data subject. I commend it to your Lordships.

4 p.m.

Baroness Nicholson of Winterbourne: My Lords, I support the excellent amendment of my noble colleague and urge the Minister to support it or to investigate the subject most seriously. As my noble friend so rightly says, ethnic monitoring should be in the mainstream and forefront of the Government's policies. I feel confident that with this Government it is. I remind the Minister that the last government opposed this legislation. The new Government give matters such as ethnic monitoring the importance that I believe is obligatory in a multicultural and multifaith society.

I also draw the Minister's attention to the second part of the amendment. It provides carefully for the rights of subjects, ensuring that that part of the amendment is also taken into account. It is of vital importance that employers should not misuse this information if, as we hope, our amendment, or some provision close to our amendment, is placed on the face of the Bill.

Lord Williams of Mostyn: My Lords, the noble Baroness puts forward the most powerful of arguments; namely, that the last government opposed the provision. It is deeply seductive!

16 Mar 1998 : Column 476

I sympathise and understand, I hope, the reasoning underlying the speeches of the noble Lord and noble Baroness. As they rightly say, ethnic monitoring is not on the face of the Bill. That is partly because our Schedule 3 follows closely the relevant provisions in Article 8 of the Data Protection Directive which does not mention ethnic monitoring.

Originally we thought that we would go by way of order under paragraph 9 of Schedule 3. We could have had the necessary measure of detail and flexibility so that we captured all necessary angles properly. That would have given us the benefit, in due time, of easier amendment power, because this Bill will be an Act which has to last for a long time and needs to be sufficiently flexible.

I understand the persuasive force of the noble Lord's argument. The Home Secretary had a meeting with Sir Herman Ouseley recently. I had the benefit of further conversations with him with officials as recently as Friday. We have said throughout that we are perfectly willing to have an open mind. I hope that I can demonstrate that on this occasion by saying that the Government are content in principle for the Bill to be amended along the lines suggested.

While paragraph (b) is well intentioned, we believe that it may not hit the target, but that is a matter of drafting, not of principle. Therefore we do not think that the amendment is perfect. I do not think that even the parental joy of the noble Lord, Lord Dholakia, would necessarily pretend that his offspring was perfect. We shall put matters in hand for the Government to bring forward their own amendment to deal with the point. I accept that it is in many ways a point of principle and an extremely important indicator of how seriously the Government deal with these matters. They are matters of great sensitivity but equally of great principled importance.

We shall try to do that by Third Reading. We are very tight on time. I think that the noble Lord and the noble Baroness know how extremely stretched officials are at present because they have been in continuing discussions, not only on drafting but also other matters, with noble Lords who are interested. We shall do our very best. It is possible that we shall not be ready for Third Reading. If we are not ready for Third Reading in this House, we shall be looking to bring forward an amendment in another place.

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