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Mr. Hawkins: The hon. Member for Leyton and Wanstead (Mr. Cohen) need not apologise to the House for the way in which he has just moved his amendments.

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I hope I do not embarrass him when I say that it is typical of the thoroughness with which he approaches all matters that he has gone through the amendments in detail and explained the seriousness of the issues involved. Not for the first time, I find myself agreeing with much of what he says. He has again provided a classic example of the reason why he is exceptionally popular among Members of Parliament on both sides of the House. He and I have, on occasion, disagreed about one issue--nuclear disarmament--but on almost all other issues, I find myself largely in agreement with him because I know the seriousness with which he approaches important matters.

The official Opposition have a great deal of sympathy with the hon. Gentleman's amendments. He describes them as probing amendments, and he is wise to do so, but I hope that the Under-Secretary of State for the Home Department, the hon. Member for North Warwickshire (Mr. O'Brien), is shortly to tell us that the Government are prepared to consider the issues with a view to making provision for them. The hon. Member for Leyton and Wanstead was present in the Chamber for much of yesterday's debates, so he will have heard me say that, quite separate from my Front-Bench responsibilities, I have a personal, long-standing interest, arising from my professional work, in the Data Protection Act and its operation.

The hon. Gentleman has made many good points. It is possible that the Minister might tell us that not all of the issues addressed by the amendments can be dealt with in the Freedom of Information Bill, but I hope that the Minister will be able to give his hon. Friend and the House an undertaking that the issues will be considered. Issues of protection of personal privacy are enormously important, and the hon. Gentleman is right to highlight the interesting overlap between the Bill and the Human Rights Act 1998. In due course, the Government might have to admit that they have got the legislative cost assessment completely wrong and that they have colossally underestimated the cost to the taxpayer of the new legislation. We might return to that matter later.

I do not want to detain the House. I simply wanted to express the Opposition's appreciation of the careful approach taken by the hon. Member for Leyton and Wanstead. We have a great deal of sympathy with his arguments. He has made it clear that he does not intend to press the amendment to a Division, but I hope that, either in another place or when the Bill returns to the House of Commons, we hear a great deal more on the subject. I shall be pleased if many of the hon. Gentleman's proposals are later incorporated in legislation, either in the Freedom of Information Bill or a later measure.

The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien): Probably for the first time, I agree with the hon. Member for Surrey Heath (Mr. Hawkins)--that is, in his tribute to my hon. Friend the Member for Leyton and Wanstead (Mr. Cohen) for the thorough way in which he has addressed important issues.

My hon. Friend described the complex interface between the Data Protection Act 1998 and what will become the Freedom of Information Act; he might also have mentioned the complex relationship that is superimposed on that by the Human Rights Act 1998. Each of those pieces of legislation will interplay with the

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others in a complex way. My hon. Friend is right to say that we need to be sure that the juxtaposition of those measures does not cause unnecessary confusion.

I accept some of my hon. Friend's points, even though I cannot accept the amendments--I shall explain why not shortly. I accept his arguments about the need to examine precisely how the measures will interrelate and I undertake to consider, while the Bill goes through the other place, ways in which we can simplify and clarify the various relationships, especially that between the Data Protection Act and this Bill.

My hon. Friend has highlighted a difficulty: the Data Protection Act protects personal data, but some requests for information under what will be the Freedom of Information Act will be in respect of individuals, and so may affect personal data held by public authorities. Getting right the balance between the public's right to know, under freedom of information legislation, and the public's right to privacy, under data protection legislation, is a difficult matter. Struggle as we may, it is possible that we will not get that balance right for all time in this legislation. Over many years we may have to continue to adjust a complex balance.

4.15 pm

Mr. Dalyell: It would not occur to me to ask my hon. Friend to answer off the top of his head, but while he is making inquiries, will he look at the position of Members of Parliament and data, particularly in relation to the case long ago of George Strauss v. London Electricity Board, when the Privileges Committee was overturned and it was decided, rightly or wrongly, that Members of Parliament should not have the protection that many thought they had at the time? These are extremely complex matters, but in the due course of events they should be looked at.

Mr. O'Brien: I certainly undertake to my hon. Friend to look at these matters. As he says, they are complex. The best approach that I could take would be to take advice from our lawyers about how the legislation might operate. I shall then write to my hon. Friend setting out how I think it might affect Members of Parliament. In due course it may be appropriate to discuss that advice in a wider context.

I shall look carefully at what my hon. Friend the Member for Leyton and Wanstead says. He asks which part of schedule 2 of the 1998 Act can legitimise the processing of personal data about employees. Fair processing of data may take place where the data subject gives his consent, the processing is necessary for the performance of a contract to which the data subject is a party, and if it is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by a contract. Those are some of the circumstances in which information may be given.

My hon. Friend asked about extending the Data Protection Act to include non-structured personal files. As his contribution showed, he is aware of the way in which we have so far progressed the 1998 Act. Because of the nature of non-structured files--that is, files held neither on computers nor in a filing system--we have taken the view that it is not appropriate for the full impact of the DPA to apply to that information at this time.

By definition, such files are not easily searched. We have extended the principles of accessibility and accuracy to those files, but not other principles. These files are not

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covered by the DPA at present. It has been determined by the European Union that it would be too burdensome to business to extend full protection to that information. I was therefore a little surprised at the extent of agreement between the Conservative Front-Bench spokesman and my hon. Friend about extending such regulation to business. No doubt they can justify their wish to do so.

We have delivered the White Paper broadly as promised, but personal files will be covered by access, to some extent, under the DPA; other files may well be accessible via the freedom of information legislation.

I make no apology for going into a realm of some complexity as my hon. Friend did. It will take some time, but that is necessary in order to deal with an important and complex technical issue. The effect of amendment No. 107 would be to apply clause 13, the duty to disclose in the public interest, to information which is exempt by virtue of clause 38(2) in so far as it relates to the conditions referred to there--that is, disclosing personal information about a third party where disclosure is contrary to the data protection principles in the Data Protection Act 1998. A disclosure contrary to those principles would be contrary both to EU law and to the European convention on human rights, particularly in relation to article 8, as my hon. Friend identified. Despite that, the public interest could be taken into account when considering whether disclosure would contravene data protection principles. The amendment is unnecessary, because the public interest could be considered, but not to the extent that my hon. Friend the Member for Leyton and Wanstead seeks, through applying clause 13 to data protection principles.

If we extended the provisions of clause 13, as amended by our proposals, to the Data Protection Act, we would undermine the principles of the data protection directive. I am advised that that would place us in breach of European Union law. We would also be in serious danger of compromising our position in relation to article 8 of the European convention on human rights. My hon. Friend identified those issues.

If we are to get the complexities of the Data Protection Act 1998 and the Freedom of Information Bill right, it would be wrong to put ourselves in a position whereby we undermined European Union directives and possibly the Human Rights Act 1998, which comes into effect on 2 October.

It would be unwise to adopt the approach that my hon. Friend suggests. That does not mean that he has not raised substantive and important points. I want to consider the matter further. Perhaps I can advise him in due course about a method of proceeding. We cannot proceed in the way my hon. Friend suggests in the amendment, for the reasons I have given. Perhaps it might be helpful if he and I met to discuss the matter further.

Amendment No. 109 covers a slightly different matter. Section 55 of the Data Protection Act makes it an offence for a person knowingly or recklessly to obtain, disclose or procure the disclosure of personal data without the consent of the data controller. It would catch an employee of the controller who disclosed personal data about the controller's instructions. The data controller is not caught by section 55. The test of the legitimacy of his actions is whether they are consistent with data protection principles. If the data controller breaches the principles,

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the Data Protection Commissioner may issue an enforcement notice against him. Failure to comply with such a notice is an offence.

Amendment No. 109 would make it an offence for the controller knowingly or recklessly to obtain or disclose personal data in a way that would seriously breach data protection principles. The amendment therefore conflicts with the general approach to enforcing data protection principles that is already enshrined in the 1998 Act. I understand my hon. Friend's point that, nevertheless, there may be reasons for doing that.

The data protection legislation has operated relatively well so far, however. There have been no substantial problems. The arrangements have worked well, and the commissioner has tried to resolve problems without the need for formal enforcement. She issued only five enforcement notices in 1998-99. We do not know of any prosecutions for failure to comply with a notice.

My hon. Friend identified a genuine problem. The legislation is currently operating reasonably well, but my hon. Friend has raised a serious issue. We cannot accept the amendment because it would conflict with data protection principles. However, as the years pass, we can keep the matter under review and, if we need to enhance the procedures for protecting those who want to ensure that their privacy is not invaded, we shall reconsider the matter. At this point, we are not in a position to accept amendment No. 109.

In many ways, prosecution is a blunt instrument. A conviction is a punishment and it can influence behaviour, but it is not targeted on the specific problem that my hon. Friend identified. Enforcement notices, on the other hand, address the issue in question: they identify the precise steps needed to improve behaviour and they clearly work. Although we could not be persuaded that immediate criminal action would add to them significantly at the moment, we do not have a closed mind for the long term. On that basis, I hope that my hon. Friend will withdraw his amendment, which he has said he is able to do.

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