Eighth Standing Committee on Delegated Legislation
Tuesday 4 July 2000
Mr. Jim Cunningham
Draft Data Protection (Designated Codes of Practice) (No. 2) Order 2000
The Chairman: First, before I ask the Clerk to read the title of the first instrument, I should say that if hon. Members wish to remove their jackets, they may do so. Secondly, I understand that the Minister has had a slight accident, on which I shall not dwell. If he would be more comfortable sitting, I would have no objection to his doing so.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien): I beg to move,
That the Committee has considered the draft Data Protection (Designated Codes of Practice) (No. 2) Order 2000.
The Chairman: With this it will be convenient to consider the draft Data Protection (Miscellaneous Subject Access Exemptions) (Amendment) Order 2000.
Mr. O'Brien: I welcome you to the Chair, Mr. Cunningham. This is the first time that I have served on a Committee under your chairmanship. I am sure that you will preside over the Committee with the courtesy, tact and consideration for the participants for which we all know you well.
The Data Protection Act 1998 came into force on 1 March 2000. In February, the House approved seven orders subject to affirmative resolution that were needed to complete the regime established by the 1998 Act. The two draft orders make adjustments to two of the orders approved as part of the original package of seven. I shall deal with them briefly in turn.
The Data Protection (Designated Codes of Practice) (No. 2) Order replaces the Data Protection (Designated Codes of Practice) Order 2000. When the original order was considered in Committee, I drew the Committee's attention to the fact that a later edition had superseded one of the codes that the order designatesthe Press Complaints Commission code of practice. Therefore, the edition of the code specified in the order was already out of date. I undertook that the Government would introduce a revised order to correct the mistake, and that is the purpose of the order.
If specific editions of codes are designated, each time a code is amended, a new order will be required. As we have seen, that can give rise to problems. To avoid such problems in future, we decided to adopt a different approach in the new order and designate each of the codes at large, without specifying a particular edition. The relevant edition will be the one in force when the processing or publication in question takes place. The new order revokes and replaces the existing one.
Hon. Members may ask, what will happen if the code changes? In such circumstances, the order will continue to apply. What if, however, the Government or Parliament do not approve of a particular code? In such circumstances, we will need to propose to the House an amending order in order to re-examine the issue.
We do not want to constrain the codes. We wish to allow them to be updated reasonably and expeditiously so that they comply with the different circumstances that apply in their fields, especially in the case of the Press Complaints Commission code of practice. That will give the Press Complaints Commission some freedom and will ensure that we need to intervene as parliamentarians only in the event of a clear need to do so.
The Data Protection (Miscellaneous Subject Access Exemptions) (Amendment) Order makes one small change to the Data Protection (Miscellaneous Subject Access Exemption) Order 2000, which was also among the original package of draft subordinate legislation approved in February. The Data Protection Act 1998 creates a right, subject to exemptions, for individuals to see information that is held about them. Among other things, the original order allows that right to be restricted for adoption records held by local authorities. The justification for that is that it can sometimes be harmful for individuals to learn about the background to adoptions.
Following the approval of the original order, it was drawn to our attention that adoption records are not held only by local authorities. Approved adoption societies also hold them, and similar considerations apply. At the request of the bodies representing such voluntary adoption societies, we are therefore introducing the order to apply the exemption to them as well. We discussed the principles of that on a previous occasion.
Given the complexity and far-reaching nature of the 1998 Act, I hope that the Committee accepts that fine tuning involving such orders is likely to be necessary from time to time. I apologise to the Committee for asking it to consider two orders so soon after the implementation of the 1998 Act, but I think that it will see why that is necessary. I explained in February that the first order would be needed, and it became clear from our consultation that a second order was needed as well.
Mr. Michael Trend (Windsor): I have a question about the Data Protection (Designated Codes of Practice) (No. 2) Order 2000. I did not follow why the Minister thought it better to have a system in which the codes could change without coming before Parliament each time. I can see arguments on both sides, but will he give us more detail about why the Government think that preferable?
Mr. O'Brien: The Press Complaints Commission has a code of practice. Circumstances sometimes change, as they did shortly before February when the original order was considered in Committee, so the commission varies the advice in its code of practice, often in a small way. If each code of practice had to be individually approved, we would have to bring an order before Parliament on each occasion on which there was a variation in the code of practice. That would be undesirable, and in many cases would be a waste of Parliament's time as there would often be no issue that we would want to debate properly. The context in which some of the changes occur is likely to be uncontroversial.
The provision enables the commission to change its code of practice as it feels is appropriate and necessary and as the various pressures on it demand. It also enables us to recognise the code of practice that exists at any time. As I have suggested, if Parliament wants at some stage to reconsider the issue, it would be entitled to ask the Government to draft a new order that would not recognise the code in place. If parliamentarians want to raise issues about the code of practice in other ways, they will be able to do so through the normal channels currently available, such as parliamentary questions, Adjournment debates and so on.
Mr. Trend: It is indeed the Press Complaints Commission that is of greatest concern. The list is too long, although broadly speaking all right, but the Press Complaints Commission could make a small change with large effects. However, it is arguable whether the press pays much attention. Will the Minister assure us that, from time to time, the Government will examine the workings of the commission closely? Will they bring them to the attention of the House in general debate?
Mr. O'Brien: The Government always keep an eye on the way in which the Press Complaints Commission operates, as I imagine that most parliamentarians do. We receive regular reports from the commission about various adjudications and decisions that they have reached. The means of communication are so central to the process of political debate that it is right and proper that hon. Members and those in another place should be able to ensure that the codes of practice are appropriate.
However, the House does not need to have an order brought before it every time a change is made. Such changes may happen regularly; for example, the race relations forum made a reference to the commission and asked it to consider some aspects of its code. In such circumstances, the commission may decide to amend its code, but parliamentarians would not necessarily need to discuss the entire issue again.
Mr. Oliver Heald (North-East Hertfordshire): I join the Minister in welcoming you to the Chair, Mr. Cunningham. It is excellent to see you ruling in such an even-handed, clear and concise way.
Mr. Peter Luff (Mid-Worcestershire): And compassionate.
Mr. Heald: And compassionate, as I am prompted to say by my hon. Friend.
The Data Protection (Miscellaneous Subject Access Exemptions) (Amendment) Order 2000 poses little difficulty. It reflects what the House wanted in the first place, and corrects a mistake. However, there is a concern about the way in which the Data Protection (Designated Codes of Practice) (No.2) Order 2000 might operate, although I am sure that the Minister will be able to reassure us. A member of the public can apply to the courts under the 1998 Act when a data controllerfor example, the editor of a newspaper, refuses access to data on himself or the correction or destruction of inaccurate data. That data controller may make that refusal if he reasonably believes that freedom of expression and publication of personal data is in the public interest and complies with data protection rules and the requirements of journalism. The code of practice has a role in the matter, because it can be taken into account in considering whether the data controller's decision was reasonable and whether the publication of any journalistic, literary or artistic material was in the public interest.
The original order was defective, as the Minister admitted, and there was a certain amount of badinage about why it was impossible for the Home Office to draft things correctly. However, under that original order, the House could have a debate on an affirmative order every time the codes were changed. That opportunity has been lost as a result of the amendment, which does not put specific dates on the codes. Under the old order, the code dated with a particular date was designated, which meant that we could debate the new code and consider whether it was reasonable or not. In theory, we could have defeated the new data protection order.
Any of the codes in the new legislation can be revised without Parliament having a role in that, because the codes do not have a date on them. That might be acceptable if the Minister can assure us that any major amendments to the codes will be presented to the House by the relevant Minister in a statement or a written answer. The House should have drawn to its attention any significant changes in these codes of practice. As my hon. Friend the Member for Windsor (Mr. Trend) said, some of the issues involved are fundamental to our democracy. There should at least be a report to the House if there is a significant change so that right hon. and hon. Members who want to make something of it can do so.