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Lord Williams of Mostyn moved Amendment No. 72:


Page 34, line 29, leave out ("13(5)") and insert ("13(2A)(b)").

On Question, amendment agreed to.

Baroness Nicholson of Winterbourne moved Amendment No. 73:


Page 34, line 32, at end insert--
("section 31(3),")

The noble Baroness said: My Lords, I spoke to this amendment earlier on Amendment No. 76. It is a request to the Government that approval should be sought by Parliament rather than that codes of practice, particularly with regard to journalism, literature and art should go through by negative resolution. I ask the Government to comment on the two amendments.

Lord Falconer of Thoroton: My Lords, Amendments Nos. 73 and 76 were grouped at an earlier stage. Amendment No. 73 is being moved now, but there is no difficulty over that.

It is essentially a matter of judgment whether a particular power to make subordinate legislation should be subject to negative resolution or affirmative resolution. The general approach adopted in the Bill is that the affirmative resolution procedure is needed where the subordinate legislation affects individuals' rights--for example, subject access exemption orders--or otherwise significantly affects the basic data protection regime; for example, the specification of the descriptions of processing subject to preliminary assessment under Clause 21.

I do not believe that the power provided by Clause 31(3) falls into either of those categories. It is essentially a procedural mechanism for establishing whether or not particular codes of practice relevant to the question whether publication of special purposes material is in the public interest. The order-making power does not of itself determine whether publication is in the public interest. It merely allows the Secretary of State to say that such and such a code may be relevant to the question. This is a very limited function, and I am not absolutely persuaded that it needs to be subject to the affirmative resolution procedure.

The Select Committee on Delegated Powers and Deregulation of your Lordships' House has considered the powers provided by the Bill to make subordinate legislation. In its report of 4th February it did not express a view on the power in Clause 31(3). This suggests that the Select Committee is satisfied that negative resolution is appropriate. Nonetheless, since the noble Baroness clearly feels that this is a matter of some importance, I am pleased to tell her that the Government can accept these amendments.

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Baroness Nicholson of Winterbourne: My Lords, I am grateful to the Solicitor-General for his exceptional attention to the Select Committee's pronouncements. I hope that he will continue to think about its pronouncements on Clause 28(4) later in the proceedings.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 74:


Page 34, line 34, at end insert ("or
paragraph 3A of Schedule 7").

On Question, amendment agreed to.

[Amendment No. 75 not moved.]

Baroness Nicholson of Winterbourne moved Amendment No. 76:


Page 34, leave out line 42.

On Question, amendment agreed to.

Baroness Nicholson of Winterbourne moved Amendment No. 77:


Page 34, line 42, at end insert--
("section 49(3)(a),").

On Question, amendment agreed to.

Clause 62 [Index of defined expressions]:

Lord Williams of Mostyn moved Amendment No. 78:


Page 36, line 44, column 1, leave out ("personal") and insert ("information or").

The noble Lord said: My Lords, in Committee we improved the drafting of the definition of processing by substituting "information or data" for "personal data", wherever the latter term appeared. Those changes were not carried through to the index of definitions. This technical amendment is designed to put that right. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendments Nos. 79 to 83:


Page 36, line 44, column 2, at end insert ("and paragraph 3 of Schedule (Transitional relief)").
After Clause 62, insert the following new clause--

Modifications of Act having effect after 23rd October 2001 but before 24th October 2007

(". During the period beginning with 24th October 2001 and ending with 23rd October 2007, the provisions of this Act shall have effect subject to the modifications set out in Schedule (Modifications of Act).").
After Clause 62, insert the following new clause--
Transitional provisions and savings

(". Schedule (Transitional provisions and savings) (which contains transitional provisions and savings) has effect.").

16 Mar 1998 : Column 540


Before Schedule 10, insert the following new schedule--
("SCHEDULE
Modifications of Act

1. After section 13 there is inserted--
"Rights of data subjects in relation to eligible manual data.
13A.--(1) A data subject is entitled at any time by notice in writing--
(a) to require the data controller to rectify, block, erase or destroy eligible manual data which are inaccurate, or
(b) to require the data controller to cease holding eligible manual data in a way incompatible with the legitimate purposes pursued by the data controller.
(2) A notice under subsection (1)(a) or (b) must state the data subject's reasons for believing that the data are inaccurate or, as the case may be, his reasons for believing that they are held in a way incompatible with the legitimate purposes pursued by the data controller.
(3) If the court is satisfied, on the application of any person who has given a notice under subsection (1) which appears to the court to be justified (or to be justified to any extent) that the data controller in question has failed to comply with the notice, the court may order him to take such steps for complying with the notice (or for complying with it to that extent) as the court thinks fit.
(4) In this section--
"eligible manual data" means eligible manual data as defined in paragraph 1(2) of Schedule (Transitional relief) which were held immediately before 24th October 1998, but does not include data to which the exemption in paragraph 14 of that Schedule applies;
"inaccurate" shall be construed in accordance with section 12(5)."
2. In section 14(1), for "13" there is substituted "13A".
3. In section 31--
(a) in subsection (2) for "section 13" there is substituted "sections 13 and 13A", and
(b) in subsection (4) for "or 13(6)" there is substituted ", 13(6) or 13A(3)".
4. In section 33 for "section 12" there is substituted "sections 12 and 13A".
5. In paragraph 9 of Part II of Schedule 1, the word "or" at the end of paragraph (c) is omitted and after paragraph (d) there is inserted "or
(e) he contravenes section 13A by failing to comply with a notice given under subsection (1) of that section to the extent that the notice is justified."").
Before Schedule 10, insert the following new schedule--
("SCHEDULE
Transitional provisions and savings
Interpretation

1. In this Schedule--
"the 1984 Act" means the Data Protection Act 1984;
"the old principles" means the data protection principles within the meaning of the 1984 Act;
"the new principles" means the data protection principles within the meaning of this Act.
Effect of registration under Part II of 1984 Act

2.--(1) Subject to sub-paragraph (2), any person who, immediately before the commencement of Part III of this Act--

16 Mar 1998 : Column 541


(a) is registered as a data user under Part II of the 1984 Act, or
(b) is treated by virtue of section 7(6) of the 1984 Act as so registered,
is exempt from sections 16(1) and 21(5) of this Act until the end of the period at the end of which, if section 8 of the 1984 Act had remained in force, the registration would have expired unless renewed.
(2) Any application for registration as a data user under Part II of the 1984 Act which is received by the Commissioner before the commencement of Part III of this Act (including any appeal against a refusal of registration) shall be determined in accordance with the old principles and the provisions of the 1984 Act.
(3) If a person falling within paragraph (b) of sub-paragraph (1) receives a notification under section 7(1) of the 1984 Act of the refusal of his application, sub-paragraph (1) shall cease to apply to him--
(a) if no appeal is brought, at the end of the period within which an appeal can be brought against the refusal, or
(b) on the withdrawal or dismissal of the appeal.
(4) The Commissioner shall include in the register maintained under section 18 an entry in respect of each person who is exempt from section 16(1) by virtue of sub-paragraph (1); and each entry shall consist of the particulars which, immediately before the commencement of Part III of this Act, were included (or treated as included) in respect of that person in the register maintained under section 4 of the 1984 Act.
(5) For the purposes of section 19(1), a person who is exempt from section 16(1) by virtue of sub-paragraph (1) shall be taken to be a person in respect of whom an entry as a data controller is for the time being included in the register maintained under section 18; and notification regulations under Part IV of this Act may make provision modifying the duty referred to in section 19(1) in its application to such persons.
(6) Where, at the end of the period referred to in sub-paragraph (1), subsection (5) of section 21 applies to a person who was previously exempt by virtue of that sub-paragraph, that subsection shall have effect with the omission of the words from "and either" onwards.
(7) Notification regulations under Part III of this Act may make further transitional provision in connection with the substitution of Part III of this Act for Part II of the 1984 Act (registration), including provision modifying the application of provisions of Part III in transitional cases.
Rights of data subjects

3.--(1) The repeal of section 21 of the 1984 Act (right of access to personal data) does not affect the application of that section in any case in which the request (together with the information referred to in paragraph (a) of subsection (4) of that section and, in a case where it is required, the consent referred to in paragraph (b) of that subsection) was received before the day on which the repeal comes into force.
(2) Sub-paragraph (1) does not apply where the request is made by reference to this Act.
(3) Any fee paid for the purposes of section 21 of the 1984 Act before the commencement of section 7 in a case not falling within sub-paragraph (1) shall be taken to have been paid for the purposes of section 7.
4. The repeal of section 22 of the 1984 Act (compensation for inaccuracy) and the repeal of section 23 of that Act (compensation for loss or unauthorised disclosure) do not affect the application of those sections in relation to damage or distress suffered at any time by reason of anything done or omitted to be done before the commencement of the repeals.
5. The repeal of section 24 of the 1984 Act (rectification and erasure) does not affect any case in which the application to the court was made before the day on which the repeal comes into force.
6. Subsection (3)(b) of section 12 does not apply where the rectification, blocking, erasure or destruction occurred before the commencement of that section.

16 Mar 1998 : Column 542

Enforcement and transfer prohibition notices served under Part V of 1984 Act

7.--(1) If, immediately before the commencement of section 38--
(a) an enforcement notice under section 10 of the 1984 Act has effect, and
(b) either the time for appealing against the notice has expired or any appeal has been determined,
then, after that commencement, to the extent mentioned in sub-paragraph (3), the notice shall have effect for the purposes of sections 39 and 45 as if it were an enforcement notice under section 38.
(2) Where an enforcement notice has been served under section 10 of the 1984 Act before the commencement of section 38 and immediately before that commencement either--
(a) the time for appealing against the notice has not expired, or
(b) an appeal has not been determined,
the appeal shall be determined in accordance with the provisions of the 1984 Act and the old principles and, unless the notice is quashed on appeal, to the extent mentioned in sub-paragraph (3) the notice shall have effect for the purposes of sections 39 and 45 as if it were an enforcement notice under section 38.
(3) An enforcement notice under section 10 of the 1984 Act has the effect described in sub-paragraph (1) and (2) only to the extent that the steps specified in the notice for complying with the old principle or principles in question are steps which the data controller could be required by an enforcement notice under section 38 to take for complying with the new principles or any of them.
8.--(1) If, immediately before the commencement of section 38--
(a) a transfer prohibition notice under section 12 of the 1984 Act has effect, and
(b) either the time for appealing against the notice has expired or any appeal has been determined,
then, on and after that commencement, to the extent specified in sub-paragraph (3), the notice shall have effect for the purposes of sections 39 and 45 as if it were an enforcement notice under section 38.
(2) Where a transfer prohibition notice has been served under section 12 of the 1984 Act and immediately before the commencement of section 38 either--
(a) the time for appealing against the notice has not expired, or
(b) an appeal has not been determined,
the appeal shall be determined in accordance with the provisions of the 1984 Act and the old principles and, unless the notice is quashed on appeal, to the extent mentioned in sub-paragraph (3) the notice shall have effect for the purposes of sections 39 and 45 as if it were an enforcement notice under section 38.
(3) A transfer prohibition notice under section 12 of the 1984 Act has the effect described in sub-paragraph (1) or (2) only to the extent that the prohibition imposed by the notice is one which could be imposed by an enforcement notice under section 38 for complying with the new principles or any of them.
Notices under new law relating to matters in relation to which 1984 Act had effect

9. The Commissioner may serve an enforcement notice under section 38 on or after the day on which that section comes into force if he is satisfied that, before that day, the data controller contravened the old principles by reason of any act or omission which would also have constituted a contravention of the new principles if they had applied before that day.
10. The Commissioner may serve an information notice under section 41 on or after the day on which that section comes into force if he has reasonable grounds for suspecting that, before that day, the data controller contravened the old principles by reason of any act or omission which would also have constituted a contravention of the new principles if they had applied before that day.

16 Mar 1998 : Column 543

Warrants issued under 1984 Act

11. The repeal of Schedule 4 to the 1984 Act does not affect the application of that Schedule in any case where a warrant was issued under that Schedule before the commencement of the repeal.
Complaints under section 36(2) of 1984 Act and requests for assessment under section 39

12. The repeal of section 36(2) of the 1984 Act does not affect the application of that provision in any case where the complaint was received by the Commissioner before the commencement of the repeal.
13. In dealing with a complaint under section 36(2) of the 1984 Act or a request for an assessment under section 39 of this Act, the Commissioner shall have regard to the provisions from time to time applicable to the processing, and accordingly--
(a) in section 36(2) of the 1984 Act, the reference to the old principles and the provisions of that Act includes, in relation to any time when the new principles and the provisions of this Act have effect, those principles and provisions, and
(b) in section 39 of this Act, the reference to the provisions of this Act includes, in relation to any time when the old principles and the provisions of the 1984 Act had effect, those principles and provisions.").

On Question, amendments agreed to.

Schedule 10 [Minor and consequential amendments]:


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