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Baroness Nicholson of Winterbourne: I thank the noble and learned Lord the Solicitor-General for his clear explanation. If he believes that proper protection is more suitably addressed with "adequate", then I am very happy to accept his reasoning and I will not raise the amendment again. I believe that all EU partners should march together on this sort of matter, if not on one or two others.

I would argue, however, with the noble Viscount, Lord Astor, that "equivalent" would have been impossible to achieve. It would have been perfectly possible to achieve. We merely have to look at the other data protection laws in the countries to which we are exporters. Enforcing EU law in other countries is surely a noble aim for all of us. I beg leave to withdraw the amendment.

Viscount Astor: Before the noble Baroness withdraws the amendment, perhaps I may reply to the Minister. I shall, of course, briefly reply to the noble Baroness. She is right that we could have an "equivalent" level of protection if other countries have a data protection law, but the problem is that some of them do not. If they do not have a data protection law, we cannot have the word, "equivalent", because it would not work.

Perhaps I could address the points made by the Minister on my amendment. I quite understand what he says but I believe there is concern from industry about transfer particularly to the USA, and these concerns are ones that have come from the European Commission when it has been talking particularly to companies that do business both in this country and in America. This is an important issue. I am not sure exactly what the answer is, but I am sure that we will have to clarify the

23 Feb 1998 : Column CWH27

situation before we reach the end of the Bill's proceedings. However, I thank the Minister for his helpful reply.

Amendment, by leave, withdrawn.

[Amendment Nos. 22 and 23 not moved.]

Lord Falconer of Thoroton moved Amendment No. 24:

Page 40, leave out lines 25 and 26 and insert--
("( ) he contravenes section 9 by failing to comply with a notice given under subsection (1) of that section to the extent that the notice is justified,
( ) he contravenes section 10 by failing to comply with a notice given under subsection (1) of that section, or").

The noble and learned Lord said: This is a technical provision which relates to the powers of the commissioner to take enforcement action for breach of the sixth data protection principle. That principle requires data to be processed in accordance with the data subject's rights. One of those rights is the right conferred by Clause 9 to prevent certain processing which is causing, or is likely to cause, harm of the type specified there. So if data are processed in contravention of that right, that is something in respect of which the commissioner can act in furtherance of her duties to enforce the data protection principles.

Paragraph 9 of Part II of Schedule 1 explains in more detail when a data controller is to be taken as failing to process in accordance with the data subject's rights. As regards the rights in Clause 9, it currently provides that a breach will occur where a data controller fails to comply with a notice duly given under Clause 9, requiring him not to process. However, Clause 9 makes clear that the giving of a notice cannot by itself be conclusive as to the right. For example, under Clause 9(3) a court can only order compliance with a notice if it appears to be justified to that extent. A notice will only, of course, be justified if it shows reasons to believe that the processing in question is the cause of substantial damage or substantial distress which would be unwarranted. Only to that extent should the notice be enforceable. This amendment achieves that result and, therefore, brings the powers of the commissioner into line with those of the court. I beg to move.

Viscount Astor: My Amendment No. 25 is grouped with the Minister's amendment. Mine is a drafting amendment. I am struggling to understand why I regarded it as necessary, but I know that there was a very good reason. I believe the reason was that under Clause 7 failing to supply information includes Clause 8 but, as I read it, makes Clause 7 supplementary to Clause 8, and that seemed to me not what the Bill intended.

Perhaps between now and the next stage those drafting the Bill would look at the matter and see whether I am talking absolute nonsense, and whether this Clause needs to be improved.

Lord Falconer of Thoroton: We understood why the noble Viscount, Lord Astor, had tabled the provision, but we think it is unnecessary. He included Clause 8 in

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those clauses which would be the subject of enforcement. We do not think it is necessary because Clause 8 is supplementary to Clause 7, and therefore you would never seek to enforce a right under Clause 8 because Clause 8 creates no rights at all; it simply adds to rights which are specifically derived from other clauses. We understand why the amendment was tabled, but we do not think it is necessary.

Viscount Astor: I am grateful to the noble and learned Lord, Lord Falconer of Thoroton, for confirming that I did indeed have some logic in tabling my amendment and I am grateful for his explanation.

On Question, amendment agreed to.

[Amendments Nos. 25 to 27 not moved.]

Schedule 1, as amended, agreed to.

Schedule 2 [Conditions relevant for purposes of the first principle: processing of any personal data]:

[Amendment No. 28 not moved.]

Viscount Astor moved Amendment No. 29:

Page 42, line 5, after ("other") insert ("similar").

The noble Viscount said: This is a simple drafting amendment. The reason I tabled it was that the

    "other functions of a public nature"

referred to in paragraph (5)(1)(d) should be similar to those outlined in sub-paragraphs (a) to (c). I wonder whether the noble Lord might comment. I beg to move.

Lord Williams of Mostyn: Schedule 2 follows Article 7 of the directive very closely. That article sets out conditions which must be met if processing is to meet the fair and lawful requirement in the first data protection principle. Paragraph 5 deals with processing which is necessary in the public interest. The first three paragraphs are intended to cover processing such as that carried out by the courts, by central government and by those exercising statutory functions. There may be other circumstances where the public interest requires data to be processed. That is the purpose of paragraph 5(d).

The amendment in the name of the noble Viscount, Lord Astor, would add a restriction to paragraph 5(d). We do not believe it is necessary because paragraph 5(d) already contains safeguards. First, the processing must be necessary; secondly, the functions must be public functions; and, thirdly, they must be exercised in the public interest.

We do not see any benefit in the addition of the word "similar". The amendment would require those other functions to be similar to those of the Crown and central government. I cannot presently think of any such functions. We feel it adds a restriction which is too restrictive and unnecessary. I hope that I have demonstrated that the safeguards are fully contained within sub-paragraph (d).

Viscount Astor: With the Minister's explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

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Schedule 3 [Conditions relevant for purposes of the first principle: processing of sensitive personal data]:

Viscount Astor moved Amendment No. 30:

Page 42, leave out lines 23 and 24.

The noble Viscount said: This is a probing amendment and it considers the power in Schedule 3 under paragraph (2)(a). I am concerned as to why this power is necessary. Sub-paragraph 1 states that:

    "The processing is necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment".

However, the power in sub-paragraph (2)(a) allows the Secretary of State to,

    "exclude the application of sub-paragraph (1)".

I do not understand that; and the amendment gives the Government an opportunity to explain the need for those powers. I beg to move.

5.15 p.m.

Lord Williams of Mostyn: In drawing up the third schedule, we paid close attention to the requirements of Article 8 of the directive. Paragraph 2 follows closely the corresponding provision in Article 8. It provides for the processing of sensitive data, which is necessary to meet legal rights and obligations in the employment field. It makes provision for the Secretary of State to make an order attaching conditions to such processing, but it also allows the Secretary of State, by order, to prohibit such processing again in particular cases. If the noble Viscount's amendment were to succeed, it would remove the second of those powers from the Secretary of State.

We believe that paragraph 2 of Schedule 3 gives proper effect to the requirements of the directive. Sometimes, as the directive recognises, there will be the need for processing sensitive data in the employment field. But sometimes the Secretary of State in this country will need to be able to regulate such processing, in particular by the obligation of the provision of adequate safeguards.

We also need the power for prohibition of processing in particular cases. That is why we have included in the Bill the order-making power in paragraph 2(2) to which the noble Viscount's amendment is directed. It is possible--and reasonably to be anticipated--that there may be cases where processing simply should not take place at all. We want that power, even if it is only rarely to be exercised.

I hope that explains to the noble Viscount the thinking behind the construction of this section of the Bill.

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