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House of Lords

Friday, 10th July 1998.

The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers--Read by the Lord Bishop of Manchester.

Data Protection Bill [H.L.]

The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, I beg to move that the Commons amendments be now considered.

Moved, That the Commons amendments be now considered.--(Lord Williams of Mostyn.)

On Question, Motion agreed to.

COMMONS AMENDMENTS
[The page and line refer to Bill (158) as first printed for the Commons.]
COMMONS AMENDMENT

1

Clause 1, page 1, line 12, leave out 'or'.

Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. In speaking to this amendment I shall speak to the numerous other amendments in this group. All deal with rights of access to information held in certain manual records.

The records in question are those to which the Access to Personal Files Act 1987, the Access to Health Records Act 1990 and the Education (School Records) Regulations 1989 and the corresponding legislation in Scotland and Northern Ireland apply. These are local authority housing and social services records, health records, and records held by schools on pupils and former pupils.

The amendments are numerous. That is because the provision they make is technically complex and intricate. But the underlying purpose is perfectly straightforward. That is to consolidate in the Bill the access rights given in the other legislation to which I referred and thereby to give effect in respect of the relevant records to the ECHR judgment in the case of Gaskin.

Gaskin is to do with refusal of subject access. It says that where access is refused because of the risk of identifying third parties who have not consented there must be a mechanism for independent review of that refusal. The Bill deals with this in two ways. Where access has been refused data subjects may seek a court order requiring access to be given or they may request an assessment to be made by the data protection commissioner who has the power to take the necessary enforcement action.

The Bill, as it left this House, did give effect to the Gaskin judgment in relation to automated and structured manual records within the first three parts of the definition

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of "data" in Clause 1. So, to the extent that public bodies--for example, local authorities, NHS trusts and schools--hold records likely to be caught by the Gaskin judgment, the Bill, as it left this House, already did the job for those automated or manual records which came within its scope.

We did need, however, to make the necessary provision for the other unstructured manual records to which there is an existing right of access under the other legislation and which did not then come within the scope of the Bill. To deal with that problem--because we wish to meet the United Kingdom's ECHR obligation in this case in full--we decided to bring those additional records within the scope of the Bill. That is the purpose of these amendments.

Moved, That the House do agree with the Commons in their Amendment No. 1.--(Lord Williams of Mostyn.)

Viscount Astor: My Lords, we welcome these amendments.

On Question, Motion agreed to.

COMMONS AMENDMENT

2

Clause 1, page 1, line 14, at end insert 'or


(d) does not fall within paragraph (a), (b) or (c) but forms part of an accessible record as defined by section (Meaning of "accessible record");'.

Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2.

Moved, That the House do agree with the Commons in their Amendment No. 2.--(Lord Williams of Mostyn.)

On Question, Motion agreed to.

COMMONS AMENDMENT

3

Clause 1, page 2, leave out lines 39 to 47.

Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. In dealing with that amendment, I shall speak also to Amendments Nos. 5, 6 and 102.

The purpose of Amendments Nos. 3 and 102 is to delete Clause 1(5) and (6) and the associated reference to the definition of "transfer" in the index of defined expressions in Clause 65. Clause 1(5) and (6) was included in the Bill with the intention that it might clarify the somewhat opaque provisions relating to the international movement of personal data in Articles 4 and 25 of the directive.

The wording of Clause 1(6) in the Bill, as introduced, gave rise to a certain amount of confusion. We therefore introduced an amendment in another place designed to clarify its effect.

Not for the first time, after listening carefully to further representations made, we concluded that there was still a measure of confusion about the purpose and effect of Clause 1(5) and (6). Since their sole purpose was to clarify, that was rather unsatisfactory. We could not see a useful way in which the necessary clarity could be achieved by further amendment and we thought that the best thing would be just to delete them.

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Amendments Nos. 5 and 6 make a small change to Clause 5 to bring it into closer conformity with the data protection directive, providing that, where processing to which the Bill applies is done by a controller established outside the United Kingdom but using equipment in the UK, the controller must appoint a representative in the UK. The directive requires provision of this kind. These amendments remedy that relatively small deficiency in the Bill.

Moved, That the House do agree with the Commons in their Amendment No. 3.--(Lord Williams of Mostyn.)

Lord Renton: My Lords, I have not taken part previously in proceedings on this Bill. I wonder, looking at Clause 5, what is meant by the word "established", what effect it will have and the condition that it indicates. We find the same word used in Amendment No. 5. That is why it seems to me to be in order to raise the matter. It is a very vague word. It could mean "residing" or someone who has an office in the United Kingdom but moves about the world. What is the word intended to mean in the context of this Bill?

Lord Avebury: My Lords, before the Minister replies to the noble Lord, Lord Renton, perhaps I may also ask a question. What is the situation regarding the dissemination of information via the world-wide web? A case has recently come to my attention where information relating to the sexual orientation and religious beliefs of an individual was placed on a website. The service provider was approached by the individual and asked to take the information off the web. He did so in circumstances where, I understand, the interpretation of Section 1 of the Defamation Act was not clear as applying to service providers. He was afraid that litigation against him might ensue as the publisher of that material. If we disregard that and the application of this clause to service providers, is there not an additional danger that where those operating websites place information in relation to an individual on a page it becomes available to anyone in any country and would seem to be caught by this part of the Bill? Would the Minister care to say anything for the benefit of service providers about their obligations under this Bill where those who use service providers for their web pages disclose such information? Would they be liable to any action in the courts? Will not that place even further restrictions on what the service providers are prepared to allow, thus inhibiting freedom of expression on the web?

Lord William of Mostyn: My Lords, if the noble Lord, Lord Avebury, will provide me with the details of the case that troubles him, I undertake to write to him on the specific questions that he has raised. I am happy to address the general problem. I can deal with it shortly now or in correspondence with the noble Lord, which I undertake to place in the Library. I should have thought that it may be more fruitful to place such correspondence in the Library once I have considered the full details, if the noble Lord does not mind giving them to me in writing.

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In reference to the question from the noble Lord, Lord Renton, "established" in this Bill has the same meaning as in Community law generally.

Lord Renton: My Lords, there is a reference to it in Clause 5(2), which rather elaborately includes various situations, but it did not seem to me to be complete which is why I raised the matter. However, I take note of what the noble Lord says and will follow it up.

On Question, Motion agreed to.

11.15 a.m.

COMMONS AMENDMENT

4

Clause 2, page 3, line 5, leave out 'or other beliefs' and insert 'beliefs or other beliefs of a similar nature,'.

The Solicitor-General (Lord Falconer of Thoroton): My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 4. I should like to speak also to Amendments Nos. 79, 80, 114 and 115.

I shall deal first with Amendment No. 4. Clause 2 sets out lists of sensitive data for the purposes of the Bill. These data may only be processed if one of the conditions in Schedule 3 is met.

Article 8 of the directive requires personal data revealing "religious or philosophical beliefs" among other categories to be treated as sensitive.

The Bill originally gave effect to this requirement in Clause 2(b) by referring to "religious or other beliefs". On reflection, we took the view that that was insufficiently precise. Amendment No. 4 changes this to read, "religious or other beliefs of a similar nature". We believe that that expression captures more precisely the data which the directive requires to be treated as sensitive.

I turn now to Amendments Nos. 79 and 114. These amendments are intended to make sure that paragraph 7 of Schedule 3 is fully consistent with the directive. Paragraph 7 permits the processing of sensitive data where necessary for a range of public sector functions. This paragraph is included in reliance on Article 8.4 of the directive.

Article 8.4 specifies that processing to which it relates must be accompanied by appropriate safeguards, and must be carried out for reasons of substantial public interest.

As it left this House, paragraph 7 made no express reference either to substantial public interest, or to safeguards. We think that both these requirements will normally be met in the circumstances covered by the paragraph. However, given the breadth of the provision, we think it prudent to make provision to deal with any cases which may arise where they may not be.

Amendment No. 114 allows the Secretary of State by order to specify cases in which the public sector processing may not involve sensitive data. This would, for example, allow processing which was conceivably not in the substantial public interest to be excluded from the scope of the paragraph.

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The order may also specify cases in which sensitive data may only be processed if specified conditions are met. The conditions could take the form of additional safeguards to ensure full conformity with the directive in any doubtful case.

Amendment No. 79 provides that the power is subject to the negative resolution procedure.

I turn now to Amendments Nos. 80 and 115. The House will recall that at Third Reading an undertaking was given to bring forward an amendment to make clear on the face of the Bill that information about racial or ethnic origin may be processed for the purpose of ethnic monitoring. This was in response to an amendment tabled by the noble Lord, Lord Dholakia. These amendments give effect to that commitment.

Amendment No. 115 introduces a new paragraph into Schedule 3 which has the effect which I have just mentioned. It says that information about racial or ethnic origin may be processed for ethnic monitoring purposes, provided that the processing is carried out with appropriate safeguards. Subparagraph (2) provides for the Secretary of State to specify by order circumstances in which the processing is or is not to be taken as being carried out with appropriate safeguards.

Amendment No. 80 would add that order-making power to the list of those in Clause 63(5) which are subject to the negative resolution procedure.

These amendments have been drafted in close consultation with the Commission for Racial Equality which welcomes them. I am grateful to the commission for its help.

Moved, That the House do agree with the Commons in their Amendment No. 4.--(Lord Falconer of Thoroton.)

On Question, Motion agreed to.


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