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Lord Falconer of Thoroton: My Lords, the noble Lord suggests that instead of the courts having the option to have regard to the code, they should in every case be obliged to do so. We believe that the approach now followed in the clause as presently drafted is the better one. It gives the courts flexibility. As my noble friend Lord Williams of Mostyn said in Committee, in response to a similar amendment--

Lord Simon of Glaisdale: My Lords, I thank the Minister for giving way. Surely the term "to have regard to" gives quite sufficient flexibility.

Lord Falconer of Thoroton: No, my Lords. If we say that the courts "must" have regard to it, then, in every case, they would be bound to look at the code and consider whether they should weigh it in the balance as regards the facts in the particular exercise of discretion.

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In Committee, in response to a similar amendment tabled in the name of the noble Viscount, Lord Astor, my noble friend Lord Williams of Mostyn said that compliance with codes will not always be relevant. It is only one factor among others that may need to be taken into consideration. Much will depend upon the circumstances. The position, for example, may be crystal clear without the need to consider compliance with a code. It is the Government's view that leaving the matter to the courts to decide is the right approach, and that the clause as it stands is satisfactory. Therefore, I invite the noble Lord to withdraw his amendment.

Lord Lester of Herne Hill: My Lords, I am sorry to say that I do not understand the Minister's reply to the points that I have raised as regards meeting the problem. As the noble and learned Lord, Lord Simon of Glaisdale, indicated in his intervention, there is nothing in my amendment to require the courts to do more than have regard to the code. That is a perfectly normal provision which is found in all Bills that have codes of practice. Indeed, it is normal to use the word "shall" or the word "may".

Where the code is relevant--and it is bound to be relevant if there is code of practice in the area--I do not understand why the citizen, the data controller and the media should not be in a position to be sure that the code will be had regard to. That would at least give some reassurance to citizens as to the standards which are to be applied. If the matter is left entirely discretionary, coupled with the vagueness of the primary legislation and the fact that we are wholly in the dark as to what the codes will contain, or whether in fact codes will be prescribed, we will still have the vice of legal uncertainty.

I have made my points, although they do not seem so far to have impressed the noble and learned Lord. Again, all I can say is that it will make a lot more work for lawyers, but I do not think that it will make good law. I very much hope that the matter will be further considered, together with what I said about press injunctions on the Human Rights Bill, which are the other side of the coin. Having got nowhere this afternoon on this Third Reading stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 [Information notices]:

Lord Falconer of Thoroton moved Amendment No. 11:

Page 24, leave out lines 11 to 13 and insert--
("(b) reasonably requires any information for the purpose of determining whether the data controller has complied or is complying with the data protection principles,").

The noble and learned Lord said: My Lords, in moving the above amendment, I shall speak also to Amendments Nos. 12, 13 and 16. In Grand Committee the noble Lord, Lord Norton, expressed concern about the usefulness of the commissioner's power to issue information notices in what was then Clause 41. The noble Lord was concerned about two things: the right of appeal, which the notice attracted; and the fact that the commissioner had no power to seek a warrant while an

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appeal was before the tribunal. My noble friend Lord Williams of Mostyn said that we would look at the noble Lord's concerns.

On Report, the Government brought forward an amendment to deal with the concern of the noble Lord, Lord Norton, about warrants. I made clear then that that amendment was an earnest of the Government's commitment to try to find other ways of making the information notice a more useful instrument for the commissioner, without making it unduly restrictive of data controllers' freedoms.

The present amendments are an attempt to do just that. They complement the government amendment made on Report, and complete the package of improvements to what is now Clause 42. Their effect is to broaden the second of the grounds on which the commissioner may issue an information notice. The amendments do not alter the first ground, which applies where the commissioner has received a request for her to make an assessment. The change is to the second ground. At present this allows the commissioner to issue an information notice where she has reasonable grounds for suspecting a breach of the data protection principles.

The Data Protection Registrar--who will, of course, in due time become the commissioner and need to exercise this power--strongly believes that those grounds are much too restrictive. She thinks that they offer the commissioner very limited opportunities to seek the information which she needs to carry out her functions under the Bill effectively. The registrar believes that the commissioner will need a wider information notice power if she is to be able to carry out those functions properly.

The Government have been rightly cautious in approaching the matter. The case for wide regulatory powers needs to be made. The powers must be consistent with and proportionate to the activity being regulated. The regulation of data protection is unlike most other types of regulation which, by and large, affect limited sectors. Data protection knows no sectoral boundaries: it applies to all organisations, in whatever sector, which use personal data. The case for rigorous scrutiny of the powers available to the commissioner is therefore particularly strong.

The Government have given very careful consideration to this matter in the light of the registrar's concerns. We believe that there is a case for giving the commissioner the wider powers to seek information which the registrar has identified. That is the purpose of the amendments. They allow the commissioner to issue an information notice where she reasonably requires information for the purpose of determining compliance or non-compliance by a data controller with the data protection principles.

The Government have not thought it right to go beyond this and change the grounds of appeal as was suggested by the noble Lord, Lord Norton, in Grand Committee. There is a need for checks and balances. With a wider power to compel information, the case for an appeal right becomes stronger rather than

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diminishing. We believe it necessary to retain the appeal arrangements as one of the necessary checks and balances.

Both in Grand Committee and on Report, the noble Viscount, Lord Astor, sought to build a further balancing mechanism into the clause. He wanted to amend the clause to require the commissioner to seek the information she needs by informal means before being able to issue an information notice. We debated those amendments fully on the earlier occasions, and I do not want to rehearse further the arguments against the approach that he favoured.

However, I have had the benefit of some helpful comments from the Data Protection Registrar. She tells me that it has always been the practice of the registrar to seek good relations with data users and to try to achieve the resolution of problems by agreement. As data protection commissioner, she would expect to adopt the same approach to her use of the new information notice. She believes that this notice should be a valuable extra means of implementing data protection; but she expects that, in the typical case, there will, first, be an informal approach to seek co-operation and obtain information. I hope that that statement of the registrar's position reassures the noble Viscount and other Members of the House.

Clause 42 raises important issues. We have discussed them at some length both in this debate and on earlier occasions. The Government believe that the amendments they now propose, which have been drawn up in the light of that earlier debate, represent a necessary and important improvement to the Bill. I commend them to the House.

Before I sit down, I believe I said that I would also speak to Amendment No. 16. However, that amendment is tabled in the name of the noble Baroness, Lady Nicholson of Winterbourne, and has been grouped with the government amendments. I do not know whether the noble Baroness wishes to move her amendment in the light of what I have just said. I shall wait to see what she decides. In the meantime, I beg to move.

5 p.m.

Baroness Nicholson of Winterbourne: My Lords, I would not wish the Solicitor-General to believe that I had an obsession with Clause 28 and therefore I shall not move my amendment when we reach it.

Viscount Astor: My Lords, we are grateful to the noble and learned Lord for introducing government amendments that go a long way to address the concerns that we raised at earlier stages of the Bill.

Lord Norton: My Lords, I thank the Minister for his kind words. This amendment goes a long way to redress the balance that the commissioner will need in order to enforce the regulations and codes of practice. The amendment completes the package. To replace

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"reasonable grounds" with "reasonably requires" goes a long way to redress that balance. I welcome the amendment.

On Question, amendment agreed to.

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