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Lord Teviot: My Lords, at this stage I am grateful to the noble and learned Lord the Solicitor-General for referring to my earlier amendment at Committee stage with regard to the word "communicated" and for having taken the matter further. I fully accept what the noble and learned Lord says.
Viscount Astor: My Lords, I had been going to suggest that my Amendment No. 15 be degrouped from this group of amendments, as it concerns a different subject. However, being a helpful kind of person, I will speak to it now in order to give the Minister a chance to think about how he will respond to my noble friend.
I was not entirely sure whether, from a lawyer, that was a compliment or a criticism. However, being a modest person, I took it as a criticism and have therefore come up with a new amendment to insert "or intellectual property" and leave in "trade secret".
I am told, on wise and learned advice, that the law of trade secrets and confidential information is very much a subset of general intellectual property law. As I understand it, the noble and learned Lord said at Committee stage that that was not necessarily the case and that "trade secret" could cover the matter. My advice is that there is a different view, which is shared by industry. I believe there are many who believe that there should be a specific provision allowing information involving intellectual property in addition to trade secrets--if indeed it is additional, which the noble and learned Lord does not yet agree, though I hope he will do so--to be exempt from the data subject's right to be informed of the logic involved in
The Minister said that "trade secret" includes intellectual property. I accept that there seems to be a difference of legal advice on this matter. However, I think it would be unwise if we allowed that to be the case. Including my words in the Bill would remove any question about the matter. I therefore hope that the noble and learned Lord will be able to accept my amendment.
Lord Falconer of Thoroton: My Lords, perhaps I may deal first with the points raised by the noble Earl, Lord Northesk, relating to the Consumer Credit Act aspects of the amendments proposed. I believe he was right to point out that these amendments were only put down last Thursday. There has therefore perhaps not been sufficient time for noble Lords to consider them as they would have liked. Many of the points made by the noble Earl merit further consideration.
He is wrong to say that credit reference agencies were not consulted before these proposals were put down; they were. The way forward seems to me to be that the amendments should proceed at this stage but arrangements should be made for the noble Earl and those whom he thinks appropriate to meet with officials from the department of my noble friend Lord Williams of Mostyn so that the matters which he raises, which were well put and have considerable importance, can be properly discussed and the matter returned to at Third Reading if that proves necessary following those discussions. I hope that that deals with the legitimate concerns that the noble Earl raised.
Lord Skelmersdale: My Lords, there is a procedural difficulty here, is there not? This is Report stage; the next stage will be Third Reading, when amendments are prohibited if the matter has been agreed to at a previous stage, which will be the case under the arrangements proposed by the noble and learned Lord. The only way I can see out of this difficulty is that, should the noble and learned Lord advise that amendments are necessary, those amendments would have to be made in another place and return to your Lordships' House as amendments to the Bill as passed here. I do not consider that a very satisfactory arrangement. My noble friend certainly has a point.
Lord Falconer of Thoroton: My Lords, I am advised that it is possible at Third Reading to make amendments even on matters which have been agreed to, so I do not believe that the procedural point to which the noble Lord refers exists. In any event, after discussion with the noble Earl, if there are matters that the Government consider should be amended, we can obviously bring forward amendments. I do not believe that the procedural difficulty is as described and is a reason for not pursuing the eminently sensible course that I have proposed.
I turn to the amendment of the noble Viscount, Lord Astor. He suggested that it was a new amendment. Obviously so many amendments were tabled in Committee that he forgot this one. In fact, he tabled a similar amendment in Committee.
I listened carefully to his further explanation of why it is necessary to insert a reference to "intellectual property" to sit alongside the reference to "trade secrets". Despite the genuinely persuasive way he put it, I remain firmly of the view that the addition is both unnecessary and inappropriate.
Recital 41 is a comment on the third indent of Article 12(a) of the directive. Although Article 12(a) is in general terms, it allows the provision of information about the logic involved in automatic processing to be confined to fully automated decisions of the kind dealt with in Clause 13 of the Bill. Clause 7(1)(d) takes that more limited option. So we are already narrowing right down the scope for the provision of information about the logic underlying automated processing as far as the directive allows us.
I should say in the first place that Recital 41 refers in particular to the "copyright protecting the software." That has no application to the limited right conferred by Clause 7(1)(d). That right is limited to information about the logic involved in decision taking. That does not include details of the software which may be instrumental in the application of the logic to the decision-taking process itself.
In the context of the limited right established by Clause 7(1)(d), Clause 8(5) gives full effect to the purpose of Recital 41. Clause 8(5) limits the right provided by Clause 7(1)(d). Clause 7(1)(d) creates a right to be given information by a data controller. It confers no rights whatever to obtain copies of anything that the data controller has. Nor does it confer any new rights on the data subject to use the information he receives. It simply requires the data controller to produce some description of the factors and weightings involved in the decision taking. It therefore leaves intact the law of copyright and other issues of intellectual property. As Recital 41 says, the right we have created does not adversely affect intellectual property rights per se.
In effect, Clause 7(1)(d) is giving the right to be told the information behind the logic of the decision-taking process. All it gives is a right to information, not to copies of anything, and therefore all that one is concerned about is trade secrets.
The only legitimate concern that data controllers can have about this right is that it could force them to disclose information which is not generally known and which has some commercial or other value by virtue of that fact. That is what we understand to be the essence of a "trade secret" whether or not that information is in copyright form or the subject of other intellectual
"Trade secret" is a term with a clear pedigree in statutory use and, as I observed in Grand Committee, in case law. If the House wishes, I can recite a rather long list of statutes in which the term is used. I suspect that that might weary the House. I would, though, just mention Section 39 of the Radioactive Substances Act 1993. That imposes a requirement to give public access to certain documents, except in so far as the disclosure of any such document would involve the disclosure of, for example, a trade secret. The House will see the similarity between that provision and Clause 8(5) in this Bill.
We have had the same anxieties as the noble Viscount, Lord Astor. We carefully considered the matter but, having regard to the fact that the right is only to information and the only danger in relation to that is disclosure of trade secrets, we believe that the route that we have adopted provides adequate protection and that the words, "or intellectual property", which the noble Viscount suggests should be put in, would simply confuse the matter and be inappropriate in the circumstances.
Baroness Nicholson of Winterbourne: My Lords, before the noble and learned Lord concludes his response on Amendment No. 15, will he reassert that the reason for not supporting that amendment is that the intellectual property to which the noble Viscount is inadvertently referring is the software, which is fully protected already by the copyright Act 1988 and its subsequent amendments? Am I correct in that?
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