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Lord Falconer of Thoroton moved Amendments Nos. 12 and 13:


Page 24, line 17, leave out ("the suspected contravention") and insert ("to compliance with the principles").
Page 24, line 24, leave out from ("Commissioner") to end of line 26 and insert ("regards the specified information as relevant for the purpose of determining whether the data controller has complied, or is complying, with the data protection principles and his reasons for regarding it as relevant for that purpose.").

On Question, amendments agreed to.

Clause 50 [General duties of Commissioner]:

Lord Falconer of Thoroton moved Amendment No. 14:


Page 29, line 6, leave out from beginning to ("after") in line 8 and insert ("Where--
(a) the Secretary of State so directs by order, or
(b) the Commissioner considers it appropriate to do so,
the Commissioner shall,").

The noble and learned Lord said: My Lords, in moving Amendment No. 14, I shall speak also to Amendments Nos. 15, 17 to 20, 24, 25 and 32 which are grouped with it. Amendments Nos. 14 and 15 improve the drafting of Clause 50(3)(a). At present there is a slight ambiguity in the wording. It is not clear whether "he" in line 8 is the Secretary of State or the data protection commissioner. The amendments make clear that it is the latter. I await the comments of the noble Earl, Lord Northesk, on Amendment No. 17. I beg to move.

The Earl of Northesk: My Lords, Amendment No. 17 in my name, which is grouped with the amendment we are discussing, is simply a matter of good housekeeping. I move it on behalf of my noble friend Lord Skelmersdale, who apologises that, regrettably, he is unable to be present today. He pointed out on Report that Clause 65 contains a table cross-referencing the various expressions used in the Bill. With the acceptance of the Government's amendments at Report stage, the expression "data subject notice" was added to the face of the Bill without any corresponding reference being added to Clause 65. In the interests of tidiness and in a spirit of helpfulness I suggest it would be sensible that this is done. I have it in mind that the noble Lord, Lord Williams of Mostyn, indicated at least some sympathy with this proposition at Report stage. I hope that the Solicitor-General may be able to assist me.

Lord Falconer of Thoroton: No, my Lords, I am afraid not. I understand why the noble Earl, Lord Northesk, has proposed this amendment on behalf of his noble friend Lord Skelmersdale, who, unfortunately, is unable to be here today. The noble Lord, Lord Skelmersdale, mentioned this point on Report in connection with the amendments to Clauses 9, 10 and 13 which the Government brought forward on that occasion.

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My noble friend Lord Williams of Mostyn promised to write to the noble Lord, Lord Skelmersdale, about the matter, and he has done so.

When the same expression is used on several occasions to mean the same thing, it does, indeed, generally make sense to define it in one place and refer subsequently to that definition. This is the approach which is taken in this Bill. Clause 65 is a convenient index of those "defined expressions". But the term "data subject notice" is not a "defined expression". It is not used on several occasions to mean the same thing. As I have said, the term is used in three places in the Bill: in Clauses 9, 10 and 13. Each of those clauses confers a different right on the data subject; and each of them provides for the data subject to send a notice in writing to the data controller in the exercise of that right. These "data subject notices" do not mean the same thing, interchangeably, in each case. They are about different rights. They must contain different particulars. They are not, therefore, defined in the same way each time. There is no cross-reference outside the terms of each individual clause. So "data subject notice" is not a suitable candidate for the Clause 65 definition.

The use of the "data subject notice" in the three clauses in which it appears is no more than a narrative convenience in drafting terms. It saves a few cumbersome back-references. But it is actually quite important to distinguish between this and a "defined expression" with a particular general meaning. "Defined expressions" are useful devices but can be potential traps for the unwary. A check with Clause 65 will tell you whether any expression has a special meaning which may not be apparent from its immediate context. Clause 65 will tell you where to find that special meaning. It is important not to confuse that key function by including terms which do not properly fall within that category. I invite the noble Earl to withdraw his amendment in due course.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 15:


Page 29, line 12, at end insert--
("(3A) The Commissioner shall also--").

On Question, amendment agreed to.

[Amendment No. 16 not moved.]

Clause 65 [Index of defined expressions]:

[Amendment No. 17 not moved.]

Schedule 1 [The data protection principles]:

Lord Falconer of Thoroton moved Amendment No. 18:


Page 43, line 26, at end insert ("or by failing to give a notice under subsection (3) of that section").

The noble and learned Lord said: My Lords, in moving Amendment No. 18 I wish to speak also to Amendments Nos. 19 and 20. These amendments make technical provision consequential upon changes which were made to Clauses 9, 10 and 13 at Report stage. Changes to Clauses 9, 10 and 13 introduced a

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requirement for data controllers to respond in writing within 21 days to a data subject's notice of objection to processing under each of the clauses.

As the Bill stands, there is some provision for individuals to bring court action in respect of a data controller's failure to give the notices in question. But the changes were not carried through to the commissioner's enforcement powers. The present amendments remedy that. They make a failure by a data controller in each case to give the required notice a breach of the sixth data protection principle and therefore something in respect of which an enforcement notice can be issued by the commissioner.

I shall speak also to Amendment No. 24 which is grouped with the amendments I am discussing and which I did not discuss earlier. This amendment puts right an error. It is Section 159, and not Section 158, of the Consumer Credit Act 1974 which should be referred to in the provisions which relate to the commissioner's finances.

I wish to speak also to Amendments Nos. 25 to 32 in this group. This group of amendments is intended to clarify elements of the transitional provisions which were added to the Bill on Report. They are technically very complex and I will not weary your Lordships with a detailed explanation. In essence they are tidying up a few loose ends in the relationship between registration under the Data Protection Act 1984 and notification under the Bill. They also clarify the provision for transitional relief from the preliminary assessment requirements of Clause 21. They make no changes to the policy which my noble friend Lord Williams of Mostyn explained to the House on Report. Their purpose is to give better effect to that policy. I commend them to the House. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 19 and 20:


Page 43, line 28, at end insert ("by failing to give a notice under subsection (2) of that section, or").
Page 43, line 29, at end insert ("by failing to comply with a notice given under subsection (1) or (2)(b) of that section or by failing to give a notification under subsection (2)(a) of that section or a notice under subsection (3) of that section").

On Question, amendments agreed to.

Viscount Astor moved Amendment No. 21:


Page 44, line 18, leave out ("in force") and insert ("enforceable").

The noble Viscount said: My Lords, throughout the passage of this Bill multinational companies, whether British or American, have expressed concern about the regulation of data transfers between the United Kingdom and the United States under this Bill. In accordance with the EC directive, the Bill requires that there be an adequate level of protection when personal data are transferred to countries outside the European Community. Although the United States regulates data privacy under a number of state and federal laws, there is no general federal data protection law comparable to those in the European Union.

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In these circumstances the required level of protection will often depend, at least in part, on particular arrangements between data controllers in this country and the companies to which they transfer data, for example in the United States. Such arrangements may include provisions under which the US transferee is required to comply with codes of conduct or other statements of data protection rules consistent with those imposed on data controllers in this country.

This amendment provides that such arrangements will be given due consideration in determining whether an adequate level of protection is provided. The initial determination whether the level of protection is adequate will be made by the UK data controller, subject to scrutiny by the data protection commissioner.

I moved similar amendments at both Committee and Report stage. We have had an ongoing debate with the Government. The noble and learned Lord has listened carefully to our concerns and has helpfully allowed me to draft a new and more acceptable amendment in consultation with his officials at the Home Office. I am extremely grateful to him and to them for their help. I hope that this amendment will therefore find favour with the Government. I beg to move.


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