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Lord Williams of Mostyn: The noble Baroness makes a correct point. I said that this general area of concern is dealt with in paragraph 4 of Schedule 3. I understand that the specific organisations to which she referred might well not fall within the enabling provisions of paragraph 4 of the schedule.

The Earl of Northesk: I am grateful for the response of the Minister. I shall read carefully what he said, specifically with respect to my Amendment No. 36. As regards Amendment No. 32, I look forward to our further discussions on the matter. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment Nos. 33 and 34 not moved.]

Lord Teviot moved Amendment No. 35:

Page 43, line 22, at end insert--
(". The personal data are processed for research purposes by a recognised record office regularly open to the public which complies with a code of practice approved by the Secretary of State.").

The noble Lord said: This is the first of my three amendments which deal with archival matters. For many years, I have been a genealogist and record agent, researching in archives. Therefore, I must declare an interest. The amendment attempts to regularise the position of record offices which have been swept up into the Bill. Perhaps it is behoven to me to describe the term "record office". I take it to mean a place or repository of archives or records to which the public have access. The term "holding" is one of the activities defined under "processing" in Clause 1, and that is why record offices are affected by the Bill.

Unless those record offices are authorised to continue keeping and accepting on deposit "sensitive" personal data, albeit under strict conditions, there is a real fear that future generations of genealogists, family historians and other researchers will be denied information--much of it quite innocuous--about their ancestors which has hitherto been freely available. The proposed code of practice in the amendment would specify the classes of records that they would be allowed to process, the period before which the material would not be made available for research, and the conditions which would apply during a transitional period, as envisaged in the

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EU Directive 95/46. This would simply give official recognition to what is current normal practice in record offices. I beg to move.

Lord Williams of Mostyn: I am grateful for the clarity of the exposition which the noble Lord has given to the Committee. I indicated earlier that when we brought forward Schedule 3 we tried to follow the provisions of Article 8 of the directive very closely. That sets out specific circumstances in which member states may allow sensitive data to be processed.

In Article 8.4 is found a provision allowing member states to specify additional circumstances in which sensitive data may be processed on the ground of substantial public importance. That provision is reflected in paragraph 9 of Schedule 3, which allows the Secretary of State by order to specify further circumstances in which sensitive data may be processed.

I am happy to say that we undoubtedly recognise that there will be circumstances beyond those set out in Schedule 3 in which substantial public interest requires personal data to be processed. We have a strong preference to follow the approach for which we have made provision and to deal with those further circumstances as and when they arise, as and when the case is made for them, by means of the Secretary of State's order made by virtue of the power given to him under paragraph 9.

We have not decided on specific activities which will need to be covered by such an order, or orders. As far as my personal interest is concerned--this is not governmental policy--I very much sympathise with the cause for which the noble Lord contended and I am more than happy to consider any activities which the noble Lord, or others, wish to put forward in due time when the Bill becomes law, for possible inclusion. I hope that is of assistance.

Lord Teviot: I am grateful to the noble Lord. We in the archive profession are extremely grateful to the Government for the differences in the Bill from the White Paper. Many of our fears have been allayed by the Bill and I am grateful for what the Minister has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 36 not moved.]

Schedule 3 agreed to.

Schedule 4 agreed to.

Clause 5 agreed to.

Clause 6 [The Commissioner and the Tribunal]:

Viscount Astor moved Amendment No. 37:

Page 4, line 17, after ("Chancellor") insert (", after consultation with the Lord Advocate,").

The noble Viscount said: This may be described as a Scottish amendment. If noble Lords look at Clause 6(4), they will see that the tribunal shall consist of--

    "(a) a chairman appointed by the Lord Chancellor after consultation with the Lord Advocate".

It then goes on under paragraph (b):

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    "such number of deputy chairmen so appointed as the Lord Chancellor may determine".

However, when it comes to deputy chairmen, the poor Lord Advocate is missed out. It seems to me that if he was being consulted on who should be chairman, it should be certainly reasonable in the light of devolution and all these things that he should be consulted with regard to deputy chairmen, and it should be on the face of the Bill.

Lord Falconer of Thoroton: With respect, I agree with the point made by the noble Viscount, Lord Astor, but we feel that the Bill achieves it in a legalistic way:

    "such number of deputy chairmen so appointed",

that is, appointed by the Lord Chancellor after consultation with the Lord Advocate. That is how it works. That is the intention; that is the effect as a matter of wording. So I believe we have met the point.

Viscount Astor: I am interested by the Minister's reply, and indeed both Ministers seem to be in agreement. I am always nervous when two such distinguished lawyers are in agreement over such a small clause. I bow to superior legal knowledge. I will be consulting before Report stage with others who will not have the legal knowledge of both noble Lords. I am grateful for the explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Schedule 5 agreed to.

Clause 7 [Right of access to personal data]:

Lord Teviot moved Amendment No. 38:

Page 5, line 5, after ("communicated") insert ("or made available").

The noble Lord said: Many classes of records containing personal data are defined as "sensitive" in the Bill because they touch on political or religious affiliations. For example, political party subscription lists or church registers are already held by local record offices in manual files. Record offices fear that Clause 7, as it stands, will oblige them to search through many such sources before replying to a person's written request and that this would stretch their resources unnecessarily. They would, however, be happy to make the material available to the searcher or his commissioned agent, as is the usual practice now. I beg to move.

Baroness Turner of Camden: I shall speak to Amendment No. 41, which is grouped with Amendments Nos. 38 and 42. I will probably be told that this is not necessary, but this again is another attempt by me to deal with the issue of fraud.

Subsection (6) refers to situations where it is reasonable in all the circumstances to comply with the request under subsection (4)(c) without the consent of the other individual concerned. My amendment seeks to write in an additional clause where the data relevant to the request are being or are likely to be processed under subsection 28(1). Subsection 28(1) of course is the provision that relates to crime which includes fraud. It

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may well be that this is by way of a probing amendment and I will perhaps be told that it is quite unnecessary, but I would be grateful if the noble and learned Lord could let me have his views on this amendment.

5.45 p.m.

Lord Falconer of Thoroton: I shall speak to Amendments Nos. 38 and 41, the latter having just been moved by the noble Baroness, Lady Turner of Camden, and Government Amendment No. 42. I will first consider the amendment of the noble Lord, Lord Teviot.

It is the Government's view that "communicated" does not constrain the means by which the information is to be provided. Clause 8(2) provides for data subjects to be given access to their data otherwise than by being given a hard copy of their consent. The wording in Clause 8(2) is consistent with that. Moreover, there is a very good reason for using "communicated". It is the word used by the directive. We might be running the risk of contravening the directive if, by using a different term, we were to make provision for an approach which the directive did not contemplate. We are compelled to stay with that word, and moreover the amendment would not make any difference. I would respectfully invite the noble Lord to withdraw his amendment.

If I may move to the amendment of the noble Baroness, Lady Turner of Camden, I understand entirely what she is trying to achieve by this and other amendments, but I am not sure that the amendment would necessarily have the desired effect. Clause 7(6) sets out the conditions to which regard must be had by a data controller in deciding whether it would be reasonable to give subject access in circumstances in which a third party, who would not be consented, would be identified. My noble friend's amendment would add to the list of express considerations the fact that Clause 28(1) was applicable to the relevant data, and, as she has explained, this clause provides an exemption from the subject information provisions of the Bill. It applies very broadly where personal data are processed for law enforcement purposes, and giving subject access would prejudice those purposes in a particular case.

The difficulty I have with my noble friend's amendment is that I cannot see what additional benefit it would bring. My noble friend's intention is to ensure that where third party data are being used for law enforcement purposes, that is relevant to the question whether those data should be disclosed without the third party's consent. I tend to agree, but I believe it to be the case that those data would not be disclosed in any event since they benefited from the exemption under Clause 28(1).

If one looks at Clause 28(1) it specifically says,

    "Personal data processed for any of the following purposes--

    (a) the prevention or detection of crime ...

    "are exempt from the first data protection principle and section 7 in any case in which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection".

So the way in which Clause 28(1) would work is to give a complete exemption in any event. Even if I am wrong about that I would point out that the test in Clause 7(6)

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is non-exhaustive--there can be other matters apart from those specified in Clause 7(6) which can be taken into account. It would be open to controllers to have regard to other considerations that are not specifically mentioned, and even if there are other relevant circumstances they must have regard to them.

I hope that I have understood the purpose of the amendment. It does not achieve what I believe is a perfectly legitimate purpose. That is either covered under the exemption under Clause 28(1) or, if it is not, by the fact that it is a non-exhaustive list that could be taken into account. I hope that the noble Baroness will consider my reply, and I invite her to withdraw her amendment.

The last amendment in this group is a government amendment. It is a technical amendment. It improves the drafting of "relevant day" in Clause 7(9). That is the day from which, as provided in Clause 7(7), the timetable within which a data controller must comply with a subject access request begins to run. The amendment makes it clearer that the relevant day is either the day on which the data controller receives the request itself or the day on which any condition is allowed by the Bill to attach to the request is subsequently fulfilled. These conditions may be the payment of a fee, the provision of information about the identity of the person making the request and the data in question or the consent of a third party, where relevant. At the appropriate moment I will move that amendment.

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