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Lord Renton: My Lords, this group of amendments is desirable and necessary. I am not making a drafting point this time. Amendment No. 28, the proposed subsection (4A) in the third line, refers to,

As a practical matter, will the third parties necessarily be known or will there be difficulty in finding out who they are?

Lord Falconer of Thoroton: My Lords, I recognise the point the noble Lord makes. It was a point recognised by the draftsman because in the second line

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of subsection (4A) the court must consider whether it is reasonably practical to notify the third parties. So the point that the noble Lord, Lord Renton, has raised, which is an important point, can be considered by the court before it determines which third parties have to be notified. The point is covered.

On Question, Motion agreed to.



Clause 12, page 9, line 24, leave out from first 'of' to 'of' in line 25 and insert 'any contravention by a data controller of any of the requirements'.


Page 9, line 25, after 'Act' insert 'in respect of any personal data'.


Page 9, line 27, leave out 'failure' and insert 'contravention in respect of those data'.


Page 9, line 29, leave out 'erasure, destruction or blocking' and insert 'rectification, blocking, erasure or destruction'.


Page 9, line 29, leave out third 'the' and insert 'any of those'.


Page 9, line 29, at end insert--

'(4A) Where the court makes an order under subsection (4) it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.
(4B) In determining whether it is reasonably practicable to require such notification as is mentioned in subsection (3) or (4A) the court shall have regard, in particular, to the number of persons who would have to be notified.'.

Page 9, leave out lines 30 and 31.


Clause 13, page 10, line 2, leave out '(1) or'.


Page 10, line 27, leave out from second 'decision' to end of line 28 and insert 'which is not based solely on such processing as is mentioned in subsection (1)'.


Transpose Clause 13 to after Clause 10.

Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 23 to 32 en bloc.

Moved, That the House do agree with the Commons in their Amendments Nos. 23 to 32.--(Lord Williams of Mostyn.)

On Question, Motion agreed to.



Clause 16, page 11, line 45, leave out 'section 21 applies to the processing' and insert 'the processing is assessable processing for the purposes of section 21'.

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 33. I shall speak also to the other amendments in this group.

These amendments make what is essentially a series of tactical improvements to the preliminary assessment provisions in what was Clause 21 when the Bill left this House, and also associated provisions.

Clause 21 provided for certain processing about which particular worries about data subjects' interests arise to be assessed by the data protection commissioner for compliance with the principles before it may begin. The processing in question is to be specified in subordinate legislation.

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The preliminary assessment is to be carried out in the context of notification. That is why all processing in this limited category, even where it is carried out manually or might otherwise have been exempted from the notification regime, has to be notified. As it stood, the Bill was not as clear as it might be about how the system works. The purpose of the amendments is to clarify matters.

Essentially they do three things. First, they make technical changes so that the key provisions in Clause 21 are much easier to follow and the sequence of events is set out more plainly. The drafting is simplified and made more narrative in its form. Secondly, they make clearer the relationship between the preliminary assessment itself and the notification which precedes it. Thirdly, both of those improvements are carried through to the transitional provisions where the arrangements are substantially simplified.

Moved, That the House do agree with the Commons in their Amendment No. 33.--(Lord Falconer of Thoroton.)

On Question, Motion agreed to.



Clause 17, page 12, line 10, leave out 'may' and insert 'shall'.

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 34. I shall also speak to Amendments Nos. 35 to 38 and Amendment No. 145.

Clause 17 in the Bill as it left this House deals with the arrangements for data controllers to notify the data protection commissioner of the processing which they do. It covers both mandatory and voluntary notification. Subsection (1) said that controllers "may" notify the commissioner. Amendment No. 34 changes "may" to "must". This makes clear that any controller who wants to go into the register, following mandatory or voluntary notification, must make a proper notification to the commissioner in the form required by the rest of the clause.

As to Amendments Nos. 35 and 36, what was Clause 18 requires the data protection commissioner to maintain a register of notifications given under Clause 17. The provision limited the content of the register to the details notified by the data controller in line with Clauses 15 and 17 together with any necessary updating amendment. But it could sometimes be appropriate to include further material in the register entry. Amendments Nos. 35 and 36 allow for this. An example of the additional material that might be included would be the content of an enforcement notice that was in force in respect of a particular data controller. Under the amendments, the notification regulations would be able to authorise or require the commissioner to include the particular types of material. The regulations themselves would need to be laid before Parliament. The amendments are intended, therefore, to allow limited, commonsense additions to notification entries.

Amendment No. 37 makes clear that the commissioner must not charge for making the register of notifications open for public inspection under what

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was Clause 18(6). Amendment No. 38 is a technical amendment which makes a small improvement to Clause 19.

Moved, That the House do agree with the Commons in their Amendment No. 34.--(Lord Falconer of Thoroton.)

Baroness O'Cathain: My Lords, I agree to Amendment No. 34. However, it does not use the word "must" but the word "shall", despite what the Minister said.

Lord Skelmersdale: My Lords, before the Minister responds to the noble Baroness, is he now advocating new drafting practice, that the word "must" shall appear generally in legislation?

Lord Falconer of Thoroton: My Lords, I stand entirely corrected by the noble Baroness, Lady O'Cathain, who has read the documents much more closely than I. She is absolutely right. Perhaps I may say in my own rather pitiful defence that I think the substance is the same.

As to the question of the noble Lord, Lord Skelmersdale, the answer is no. It is not now a practice that "must" shall always replace "may" but only when appropriate in the circumstances.

Lord Skelmersdale: My Lords, the noble and learned Lord has answered the wrong question. I was asking whether "must" shall now replace "shall".

Lord Falconer of Thoroton: My Lords, in the context of this particular Bill the word "shall" is obviously the most appropriate word to use. Whether that will be the case in every Bill I have no idea. I suspect not. It will depend on the circumstances.

On Question, Motion agreed to.

11.45 a.m.



Clause 18, page 12, line 39, after 'of' insert '(a)'.


Page 12, line 41, at end insert 'and

(b) such other information as the Commissioner may be authorised or required by notification regulations to include in the register'.

Page 13 line 12, after 'public', insert 'free of charge'.


Clause 19, page 13, line 36, after 'notification' insert 'under notification regulations made'.


Clause 21, page 14, line 1, leave out from beginning to 'processing' and insert 'In this section "assessable processing" means'.

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