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However, while the applicant must be informed of the outcome, the commissioner may commit an offence under clause 59 by revealing the same information to any other person. Thus, although there may have been a well-publicised complaint about a particular practice, the commissioner may not tell anyone--including a journalist, a Member of Parliament or another potentially affected person--about her findings. The amendment allows, but does not require, the commissioner to make such disclosures; however, a requirement may arise under the proposed freedom of information Act.
The discretion is appropriate in this instance. When a complaint relates purely to the circumstances of an individual applicant, wider disclosure may not be appropriate; but when the issue is of general concern and affects a large number of people, disclosure may be justified--if, for example, it reveals that a bank is failing to safeguard personal data about its customers.
There is no reason why the level of disclosure proposed in the amendment should be thought to contravene the obligation of professional secrecy required by the directive, given that the directive also provides that supervisory authorities
It is hard to see why that public interest test should be set down so strictly, particularly as most of the Bill's other public interest tests are less demanding. For example, there is no requirement that the public interest be "substantial" before a newspaper can publish personal data under the public interest test in clause 32(1)(b).
Amendment No. 17 would remove the requirement that the disclosure be "necessary" and that the public interest be "substantial". The defence, as amended, would read:
Mr. Greenway:
My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) very adequately set out the concerns of the Data Protection Registrar. I tried to impress on the Government the importance of several concerns about the provisions that create the offence of unlawful disclosure of information by staff. People who are only doing their job may find themselves committing a criminal offence. The House must be sure that the legislation provides for that criminal offence only when it is strictly necessary.
I was disappointed in Committee that the Government did not accept the harm test to which my hon. Friend the Member for Aldridge-Brownhills referred. There seems to
be an inequality in the public interest test, in that the word "necessary" will apply to this provision, even when the Government amendments are made, but not to other exemptions in the Bill. I cannot for the life of me understand why staff who are only doing their job should be subject to a greater hurdle than others when disclosure is accidental, especially as some of the exemptions, as in clause 32, are extremely wide.
I hope that the Minister will acknowledge that those are genuine concerns. If Government amendment No. 46 is made, it would at least allow the other place to return to the matter when it considers our amendments. With that in mind, it may not be too late for the Government to reconsider the word "necessary", to which my hon. Friend the Member for Aldridge-Brownhills so rightly referred.
Mr. George Howarth:
I pay tribute to the hon. Member for Aldridge-Brownhills (Mr. Shepherd) for his hard work and the good advice that he often takes on these matters. His concern about confidentiality of information is well recognised and respected, and he moved the amendment very much in that spirit.
Clause 40 is a key part of the Bill. It enables the commissioner to issue enforcement notices requiring compliance with data protection principles. Amendment No. 15 would require the commissioner to maintain a register of enforcement notices, to be accessible in much the same way as the main register of data controllers' notifications provided for in clause 19.
The idea of keeping a public record of enforcement notices has been suggested in the past, and we are not unsympathetic to it in principle. I understand that the Data Protection Registrar herself has expressed some interest in such a record, as the hon. Member for Aldridge- Brownhills said.
It was with such an idea in mind that the Government tabled an amendment in Committee to add clause 19(2)(b), allowing the Secretary of State, by notification regulations, to authorise or require the commissioner to include in the register of notifications maintained under that clause certain information in addition to the basic registrable particulars.
It would be possible to use the provision to add information about enforcement notices to the register. Under clause 25, the commissioner can make proposals for the content of notification regulations. The Government look forward to hearing the commissioner's views and will consider the issue further in that context. Against that background, I invite the hon. Gentleman to withdraw the amendment.
Amendment No. 16 would explicitly allow the commissioner to tell any other person, as well as the originator, the outcome of a request for assessment of the compliance of any particular processing with the provisions of the law. I recognise that the provision is discretionary, but I do not think it appropriate for the legislation to be framed in that way.
Requests for assessment may deal with essentially private matters--that is, private either to the data subject or to the data controller. More fundamentally, such requests are at most preliminaries to enforcement action, and they may come to nothing, as there may be perfectly good answers to the questions. I am not in favour of any general presumption in favour of releasing the results of assessments. That is not to say that they might not emerge in one form or another under other parts of the Bill.
Clause 51 places general duties on the commissioner to promote good practice and to disseminate material that she considers appropriate, about the operation of the Act, good practice and any other matters within the scope of his functions. Anonymised information from assessments may appear in one of those contexts, and the result of any assessment may be quoted in enforcement proceedings.
I do not think that a power at large, qualified only by the general term "appropriate", fits what we need in this targeted legislation. Release of information when it serves a particular purpose is fine; but otherwise, just as we have to be careful with the interests of data subjects, we have to be careful with the interests of data controllers. I invite the hon. Member for Aldridge-Brownhills to reflect on the provisions of clause 51 and not to press to a vote amendment No. 16, which is a general amendment to clause 42.
Clause 59 is an important and, I accept, difficult provision. It is important because it discharges the obligation on us to ensure that the supervisory authority--the Data Protection Commissioner and her staff--are subject to a duty of what the directive calls "professional secrecy", in respect of the confidential information to which they have access.
We have found it difficult to get the provision right. Our original proposal in another place was criticised by the Data Protection Registrar, and we revised it on Report there, but we could not, and still cannot, accede to pressure to remove it; the directive requires us to have a statutory provision, which needs to be enforceable through a criminal sanction.
We have considered the detail further in the light of representations, not least from the hon. Members for Aldridge-Brownhills and for Ryedale (Mr. Greenway), and of the Government's own commitment to freedom of information legislation, which the former hon. Gentleman rightly prayed in aid for his argument.
Clause 59 states that one way in which a disclosure may be made with lawful authority is if,
Amendments Nos. 17 and 18 go in much the same direction, as the hon. Gentleman said. I prefer the Government's wording, for two reasons. First, it maintains the necessity test, which is important for an exemption from the directive's requirements. Secondly, our words are simpler. "In the" rather than "for reasons of" is a simpler way to express the point. I hope that the hon. Gentleman will be willing to withdraw his wording in favour of ours.
"must help to ensure transparency of processing".
Let me now deal with amendment No. 17. A public interest test is available under clause 59(2)(e) should the commissioner, or a member of her staff, be prosecuted for an offence relating to the disclosure of information.
The test is particularly restrictive, and amendments Nos. 17 and 18 seek to remove some of the restrictive features. Clause 59(2)(e) provides that no offence is committed if
"having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary for reasons of substantial public interest."
That means that it would have to be established that the disclosure was "necessary", not just desirable, in the public interest, and that the public interest related to the
"rights and freedoms or legitimate interests"
of others. That term does not, on the face of it, acknowledge the public interest in the accountability of the commissioner's work. Moreover, the public interest itself would have to be "substantial".
"having regard to the rights and freedoms or legitimate interests of any person, the disclosure is in the public interest."
Amendment No. 18 and Government amendment No. 46 cover similar ground. Amendment No. 18 is an alternative to amendment No. 17. It would delete the word "substantial" in clause 59, but would retain the word "necessary". The amended clause would then read:
"having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary for reasons of public interest."
The wording is effectively identical to amendment No. 46, tabled by the Home Secretary. Under that amendment, the clause would read:
"having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary in the public interest."
I hope that the Government will withdraw their amendment and support mine, because the word "necessary" would remain a problem with both amendment No. 18 and amendment No. 46. A disclosure that was "desirable" in the public interest, but not "necessary", would not be permitted under those amendments. There is an important distinction between the two, and I hope that the Government will accept my amendments.
"having regard to the rights and freedoms or legitimate interest of any person, the disclosure is necessary for reasons of substantial public interest."
Government amendment No. 46 replaces that with a simple test of necessity in the public interest. I hope that the hon. Member for Aldridge-Brownhills will accept that that goes further in the direction of freedom of information, while still complying with the directive. That is a difficult balance, but amendment No. 46 achieves it.
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