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Baroness Nicholson of Winterbourne: My Lords, I rise to ask a question of the Minister, the noble Lord, Lord Williams of Mostyn, with regard to Amendment No. 58. That exemption is a first for the United Kingdom. It has been strongly argued. Will the Minister confirm that as his Written Answer of 8th April to my noble friend Lord Lester of Herne Hill indicates, the Data Protection Bill interpretation of Clause 31 will be applied by the courts and interpreted in accordance with the European legal principles of proportionality and legal certainty?

Lord Williams of Mostyn: My Lords, I am most grateful to the noble Baroness whose nomenclature

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I think I have more accurately than my noble and learned friend the Solicitor-General. I shall explain that joke to him later. The noble Baroness gave me notice of this matter and I affirm that what I said in the Written Answer remains correct.

On Question, Motion agreed to.

COMMONS AMENDMENT

60 Clause 39, page 22, line 15, leave out 'may' and insert 'which requires the data controller to rectify, block, erase or destroy any inaccurate data may also'.

Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 60. I shall speak also to Amendments Nos. 61 to 66 and 148.

These amendments make a number of technical changes to ensure that Clause 39 works as it should. Clause 39(1) makes provision for the issue by the data protection commissioner of enforcement notices requiring data controllers to change their practice if the commissioner is satisfied that they are contravening any of the data protection principles. Where appropriate, any enforcement notice is capable of requiring the rectification, blocking, erasure or destruction of data.

Clauses 39(3) and (4) make special arrangements for enforcement notices issued in respect of contraventions of the fourth data protection principle. Clause 39(3) provides for such a notice to require the controller to rectify, block, erase or destroy any inaccurate data and any other data he holds containing expressions of opinion which are based on inaccurate data, or to follow a special procedure in relation to inaccurate data which were received by the data controller and which he has recorded accurately.

Clause 39(4) deals with the situation where inaccurate personal data, which have been rectified and so on, have previously been disclosed to third parties. It says that an enforcement notice may, if reasonably practicable, require the data controller to tell the third parties of the rectification and so on.

The arrangements for the rectification and so on of personal data, and for notifying third party recipients of the rectification, need to apply to any breach of the data protection principles and not simply to breaches of the fourth principle. The purpose of these amendments is to ensure that they do.

Moved, That the House do agree with the Commons in their Amendment No. 60.--(Lord Williams of Mostyn.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

61 Clause 39, page 22, line 16, leave out 'any inaccurate data and'.
62 Page 22, line 18, leave out 'or' and insert--
'(3A) An enforcement notice in respect of a contravention of the fourth data protection principle'.
63 Page 22, line 21, leave out from 'party' to second 'to' and insert 'may require the data controller either--

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(a) to rectify, block, erase or destroy any inaccurate data and any other data held by him and containing an expression of opinion as mentioned in subsection (3), or
(b)''.
64 Page 22, line 28, leave out from 'notice' to 'or' in line 30 and insert 'requires the data controller to rectify, block, erase or destroy any personal data'.
65 Page 22, line 32, leave out 'were inaccurate' and insert 'had been processed in contravention of any of the data protection principles'.
66 Page 22, line 43, leave out from '(7)' to 'before' in line 44 and insert 'an enforcement notice must not require any of the provisions of the notice to be complied with'.
67 Clause 42, page 24, leave out from end of line 29 to second 'the' in line 30 and insert 'and, if such an appeal is brought,'.
68 Clause 43, page 25, line 13, leave out from 'which' to end of line 14 and insert 'proceedings have been stayed under section 31'.
69 Clause 43, page 25, leave out from end of line 42 to second 'the' in line 43 and insert 'and, if such an appeal is brought,'.
70 Clause 50, page 29, line 39, leave out 'observance' and insert 'following'.
71 Clause 52, page 30, line 10, leave out 'brings' and insert 'is an actual or prospective party to'.

Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 61 to 71.

Moved, That the House do agree with the Commons in their Amendments Nos. 61 to 71.--(Lord Williams of Mostyn.)

On Question, Motion agreed to.

COMMONS AMENDMENT

72 After Clause 54, insert the following new clause--
'Records obtained under data subject's right of access
Prohibition of requirement as to production of certain records

.--(1) A person must not, in connection with--
(a) the recruitment of another person as an employee,
(b) the continued employment of another person, or
(c) any contract for the provision of services to him by another person,
require that other person or a third party to supply him with a relevant record or to produce a relevant record to him.
(2) A person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public must not, as a condition of providing or offering to provide any goods, facilities or services to another person, require that other person or a third party to supply him with a relevant record or to produce a relevant record to him.
(3) Subsections (1) and (2) do not apply to a person who shows--
(a) that the imposition of the requirement was required or authorised by or under any enactment, by any rule of law or by the order of a court, or
(b) that in the particular circumstances the imposition of the requirement was justified as being in the public interest.

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(4) Having regard to the provisions of Part V of the Police Act 1997 (certificates of criminal records etc.), the imposition of the requirement referred to in subsection (1) or (2) is not to be regarded as being justified as being in the public interest on the ground that it would assist in the prevention or detection of crime.
(5) A person who contravenes subsection (1) or (2) is guilty of an offence.
(6) In this section "a relevant record" means any record which--
(a) has been or is to be obtained by a data subject from any data controller specified in the first column of the Table below in the exercise of the right conferred by section 7, and
(b) contains information relating to any matter specified in relation to that data controller in the second column,
and includes a copy of such a record or a part of such a record.
TABLE

Data controllerSubject-matter
1. Any of the following persons-- (a) a chief officer of police of a police force in England and Wales. (b) a chief constable of a police force in Scotland. (c) the Chief Constable of the Royal Ulster Constabulary. (d) the Director General of the National Criminal Intelligence Service. (e) the Director General of the National Crime Squad. (a) Convictions. (b) Cautions.
2. The Secretary of State. (a) Convictions. (b) Cautions. (c) His functions under section 53 of the Children and Young Persons Act 1933, section 205(2) or 208 of the Criminal Procedure (Scotland) Act 1995 or section 73 of the Children and Young Persons Act (Northern Ireland) 1968 in relation to any person sentenced to detention. (d) His functions under the Prison Act 1952, the Prisons (Scotland) Act 1989 or the Prison Act (Northern Ireland) 1953 in relation to any person imprisoned or detained. (e) His functions under the Social Security Contributions and Benefits Act 1992, the Social Security Administration Act 1992 or the Jobseekers Act 1995. (f) His functions under Part V of the Police Act 1997.
3. The Department of Health and Social Services for Northern Ireland. Its functions under the Social Security Contributions and Benefits (Northern Ireland) Act 1992, the Social Security Administration (Northern Ireland) Act 1992 or the Jobseekers (Northern Ireland) Order 1995.

(7) In the Table in subsection (6)--
"caution" means a caution given to any person in England and Wales or Northern Ireland in respect of an offence which, at the time when the caution is given, is admitted;

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"conviction" has the same meaning as in the Rehabilitation of Offenders Act 1974 or the Rehabilitation of Offenders (Northern Ireland) Order 1978 .
(8) The Secretary of State may by order amend--
(a) the Table in subsection (6), and
(b) subsection (7).
(9) For the purposes of this section a record which states that a data controller is not processing any personal data relating to a particular matter shall be taken to be a record containing information relating to that matter.
(10) In this section "employee" means an individual who--
(a) works under a contract of employment, as defined by section 230(2) of the Employment Rights Act 1996 , or
(b) holds any office,
whether or not he is entitled to remuneration; and "employment" shall be construed accordingly.'.

Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 72. I shall speak also to Amendments Nos. 75, 78 and 105.

We gave an undertaking to deal with the problem of enforced subject access. The issues are complex and we were not able to complete all the necessary work before the Bill left this House. These amendments give effect to the Government's undertaking.

Amendment No. 72 makes enforced subject access an offence in certain circumstances. We do not propose an offence lightly. Criminalising behaviour places a special duty on the Government and Parliament to focus very carefully on significant social problems. Therefore, we have put the offence in that context. It is limited to certain types of records--criminal records, prison records and DSS records.

Therefore, we are focusing on the types of records with which there is currently a problem or those to which the present problem might be displaced. The present problem is mainly with records which give information about criminal history; namely, police records or DSS contribution records where significant gaps might indicate periods in custody.

However, we are not ruling out applying the offence to other records. Under Amendment No. 78 the list is extendable by order subject to affirmative resolution in case the practice is diverted elsewhere. The offence is committed only where the data subject is required to provide the specified data. We do not wish to criminalise straight requests for information. It is perfectly legitimate for a potential employer to ask a job applicant for details of any criminal record. It should be a crime only if he requires provision of that information through the applicant's subject access right.

We are confining the offence to the types of situation in which systematic use is most likely to occur and where people are least likely to be acting in their private as distinct from their professional capacity. Those are employment and appointments which would include recruitment, continued employment, preferment or promotion; placing contracts; and providing goods, facilities or services to the public.

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We propose defences where it can be shown that the requirement was authorised by law or court order or was justified as being in the public interest. But bearing in mind the planned dedicated channel for the supply of criminal records under the Police Act 1997, the public interest defence will explicitly exclude crime prevention or detection. Anyone who has that as a genuine motive will have an alternative route to obtain appropriate information.

Because of the close link that we see with the introduction of criminal record certificates, Amendment No. 105 provides that the new clause added by Amendment No. 72 cannot be brought into force before they are available.

As with other offences under the Bill, by virtue of Clause 57, only the data protection commissioner or the Director of Public Prosecutions can prosecute. The punishment would be a fine and Amendment No. 72 also allows the court to order forfeiture, erasure or destruction of documents or other material. I commend the amendment to the House.

Moved, That the House do agree with the Commons in their Amendment No. 72.--(Lord Williams of Mostyn.)


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