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Lord Williams of Mostyn: I certainly listened carefully to the points which have been made, because they may well be points of general application, not specifically directed to Amendment No. 13. I am bound to say that the noble Lord's comments echo quite a number of observations which have come from industry and from business in general. I shall certainly bear in mind his cautionary note. It is perhaps of wider application than simply Amendment No. 13.
Viscount Astor: I am grateful for the Minister's reply to my amendment in particular, if I may call it that, and also his statement concerning the current situation with the registrar, which, of course, is a wider issue.
There is an important point here and one which I am sure we will want to consider further. It is likely that we will have to move somewhere towards the position outlined by the noble Lord, Lord Flowers, on one part of the Bill before the next stage, so that we are all--if nothing else--in a position of clarity. Unless this Bill is made clear, it will, in effect, be interpreted by the new commissioner. She will be looking over her shoulder, as it were, at what the Bill says and also at what is said as the Bill progresses through Parliament. It would be better for all involved, as I am sure the Minister will agree, if we could have a Bill which clarifies the issue entirely. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Chelmsford moved Amendment No. 15:
The noble Viscount said: This amendment follows up some of the issues which were discussed at Second Reading. Schedule 2 begins with the comment that where,
the first principle applies. It is a question of establishing what is consent.
We all know perfectly well in our minds what is personal data that may move from place to place and be totally appropriate, legal and correct, in particular in the business sense. We all know perfectly well what is data which, if passed without consent, are probably not legal or appropriate. There is a dividing line somewhere; and that dividing line probably differs slightly for each one of us. It is almost something that cannot be put on paper and defined. But I am not discussing the dividing line; I am simply suggesting that when business needs to move personal data, and it is obvious to anyone with a modicum of common sense that that personal data will be accepted by the data subjects because it is in the data subjects' interests, then there should be some means of taking a short cut.
The obvious way to take a short cut is contractual. There are a number of contracts in different parts of the industries which are standard. We mentioned two of the many standard business contracts at Second Reading--the employment contract and the proposal forms for insurance. I suggest that where the business wishes to take that short cut in order to move things along speedily it can apply to the data commissioner to inquire whether a standard clause in the standard contract about personal data would be acceptable. I beg to move.
Baroness Nicholson of Winterbourne: The other part of the amendment has already mentioned by the noble Viscount, Lord Chelmsford, but my point is the more personal one. My amendment talks about free and informed consent, and from that it may be seen immediately that I am thinking particularly, to give the ultimate example, of the asylum seekers whom we imprison at the moment without trial and with no knowledge of any crime they may have committed. It was a move put in by the previous government and prisons or places of detention such as Campsfield where there are many nationalities altogether in prison without free movement, unable to leave an institution which appears to have more physical barriers than Dartmoor.
Because of that situation, I put forward strongly the view that free and informed consent surely is a civilised country's obligation in legislation such as this where we have an opportunity to discuss this matter. We have a chance to put a provision on the face of the Bill. It is frightening for people to give medical data, family data, and such information in such circumstances to a doctor they have never seen before, to a person in authority
I believe strongly that as a civilised society, we should insert "free and informed" before "consent".
The Solicitor-General (Lord Falconer of Thoroton): The two amendments that have been put so well by the noble Viscount, Lord Chelmsford, and the noble Baroness, Lady Nicholson of Winterbourne, both deal with the same topic; namely, there is no definition in the Bill of the word "consent". We do not believe that it is necessary either for the purposes advanced by the noble Viscount, Lord Chelmsford, or for the reasons advanced by the noble Baroness, Lady Nicholson, to include a definition of consent. We believe that it is for the courts to determine on a case-by-case basis if consent has been given.
The first proposal, that made by the noble Viscount, Lord Chelmsford, seeks to give a partial definition of consent in a particular set of circumstances, which in effect means accepting a standard form approved by the commissioner. In our view, that is not a desirable approach to be taken. We believe that whether consent has been given is a matter which must be capable of being assessed in all the circumstances of an individual case. We do not feel it either necessary or desirable to be any more prescriptive. To try to be more prescriptive is in our view liable to cause more difficulties than it can solve. People will be raising questions about the particular consent that they gave, perhaps in a long form. We believe the courts can deal with that sort of problem, and that it is better for it not to be dealt with in an amendment of the sort proposed by the noble Viscount.
The same approach follows in relation to the amendment proposed by the noble Baroness, Lady Nicholson. The courts are very practised in determining in many contexts whether consent has been appropriately given. They are well used to considering whether any purported consent which is neither free nor informed, which is the wording of the amendment of the noble Baroness, can properly be considered a true consent at all. These things all need to be judged in the circumstances. We believe that the best course is for the courts to deal with it on a case-by-case basis, which I am sure will give the best protection. In those circumstances, I respectfully ask whether both the noble Baroness and the noble Viscount would consider withdrawing their amendments.
Viscount Chelmsford: Perhaps I may question the Minister a little further. On Second Reading, I thought I understood the noble and learned Lord to say that his initial feeling--and I will not hold him to this--was that a clause or a box in a proposal form would probably be acceptable, but that perhaps a clause in an employment contract was not. I hope I do not put words into his mouth, but it was something of that nature. It means that he is clearly making a judgment, even though he prefers not to do so officially.
It would be helpful for business if some ground rules were laid down. It seemed to me that the Minister was quite keen on giving the commissioner latitude to make decisions, and that this was a sensible route to take. Is he now saying that the commissioner has no power to advise data controllers on the matter?
Lord Falconer of Thoroton: The noble Viscount exactly records what I said on Second Reading. The effect of what I said then seems to indicate that it has to be dealt with on a case-by-case basis, and the best people to deal with it in that way would be the courts and not the data controller. I say that because the courts are focusing on whether it is a real consent, which is what one is looking for.
Viscount Chelmsford: I thank the noble and learned Lord for that answer. I need to go away and reflect on the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 1, as amended, shall be agreed to?
Lord Skelmersdale: I should declare an interest as a director of a mail order company. I spent a moderately happy three hours this morning amending a mailing list. This involved removing names, adding names and recording order numbers and occasionally telephone numbers, by hand, on index cards which are arranged by name and postcode--steam technology perhaps, but nonetheless it is, as I understand it, a relevant filing system under the Bill.
In my case, or rather that of my business, all these cards are as a result of personal intervention by a customer or potential customer answering an advertisement, or telephoning in as a result, say, of a newspaper article; in other words, they are applied for. We have never bought mailing lists, although it is perfectly legitimate to do so.
The point I should like to make is that my actions were, and under this Bill still will be, perfectly--I intended to use the word "kosher" but my noble friend Lord Chelmsford supplied my answer--correct. However, were I a maker of cigarettes this would shortly become illegal under the tobacco advertising directive, which is currently undergoing the process of being signed up to by the Government.
For many years now if you have filled in a questionnaire or applied for an offer for a packet of cigarettes, you have had to sign and declare that you are a smoker over 18 years of age. It follows that if you are sent a letter as a result of being on such a mailing list, you are in exactly the same position as one of my firm's customers--except, of course, that it would be on computer. Why, then, is one to be banned and not the other? It cannot be because of cigarette advertising as the individual has already been in contact with the company and is, by definition, already hooked.
I do not expect an answer today because I have rather sprung this on the noble Lords, but if they will cogitate I shall be very interested in receiving an answer by letter at an appropriate moment.
Page 2, line 22, at end insert ("and
(c) "consent" includes the consent of data subjects obtained through standard contractual provisions, where such conditions have been approved by the Commissioner.").
"the data subject has given his consent to the processing",
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