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Baroness Nicholson of Winterbourne: I thank the Minister for those helpful illuminations. I know about that as a co-sponsor of the right of access to medical records Bill, a co-sponsor of the right of access to schools' records Bill and as the initiator of the rights of employee records access.
I turn to the NHS--my core example--for the substance of my argument. I have here an excellent document which is a best practice statement about confidentiality in the NHS. It is a statement to be given to the patients as a best practice statement from the department:
- "We only ever use or pass on information about you if people have a genuine need for it in your and everyone's interests. Wherever we can we shall remove details which identify you".
There are two big gaps in that. The judgment of whether it is in "your and everyone's, interest" rests entirely with the Government. There is no guarantee--in fact there is the reverse of a guarantee--that personal data detail will be removed.
Here is further proof in a World Health Organisation document--this is again a European Union Rights of Patients consultation under the auspices of the WHO, another EU piece of material. The European Union believes strongly that:
- "Confidential information can only be disclosed if the patient gives explicit consent".
I fully accept that that ownership of information is not in English law. But what about control of its use?
As I said at the beginning, perhaps my phraseology is not adequate for this. I of course perforce must withdraw the amendment. However, I would wish to have a meeting, perhaps with the Minister or with the noble and learned Solicitor-General, to discuss whether or not some form of citizen control of use could be built into records of services from the Government to the individual. These are services for which the individual pays--such as health and social security--and which would not in any way unsettle Government need to
perform national actions for the citizens. If commercial companies can do it, why cannot the Government? I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Baroness Turner of Camden had given notice of her intention to move Amendment No. 41:
The noble Baroness said: I had already spoken to this because it was grouped with Amendment No. 38. I should like to thank the noble and learned Lord for his explanation. I shall not move the amendment.
Lord Williams of Mostyn moved Amendment No. 42:
On Question, amendment agreed to.
Clause 7, as amended, agreed to.
Clause 8 [Provisions supplementary to section 7]:
Viscount Astor moved Amendment No. 43:
The noble Viscount said: This amendment involves the words "trade secret" and their definition. It seems to me that an intellectual property right which would give rise to an action for breach of confidence is capable of interpretation by the courts, whereas the words "trade secret" are not a clearly defined term of intellectual property law. My amendment, therefore, seeks to clarify those issues.
I am concerned by the meaning of those words. They can mean almost anything, from a complicated chemical formula to the number of hours spent working on some deal. They could indeed be what time a factory starts. They seem to be words for which I have been unable to find any definitions that have been used adequately in English case law. My amendment is an attempt to clarify the situation. It is difficult. It is one of those issues where, if one looks at it, one realises more and more that it is something which may be further elucidated if we had the freedom of information Bill coming on at the same time, but that of course is no part of this process. It will not come in this Session. I do not believe that there is an adequate definition in law of "trade secret" and the Government need to give some thought to the matter.
My second amendment, Amendment No. 44, is an extension of that theme. I believe that there should be a specific provision allowing information involving intellectual property, as it were, in addition to trade secrets--because what might be intellectual property might indeed not be a trade secret or it might be--to be exempt from the data subject's right to be informed of the logic involved in certain automated decision-making.
That is consistent with the directive, under Recital 41, which states that this right is not intended to allow either trade secrets or intellectual property to be adversely affected. As I understand it, "trade secret" at the moment can include intellectual property, but it is not clear in legislation. Page 18 of the Government's White Paper on freedom of information (in relation to commercial confidentiality specifically) refers not only to trade secrets but also to intellectual property. Therefore, there is an inconsistency in that respect.
I am concerned that knowing the logic involved in certain circumstances would increase the incidence of fraud, which is also the third leg to the amendment. Businesses have a duty to prevent the commission of crime and the amendment seeks to ensure that they are able to do so. This is a difficult area, and the Bill does not adequately define these two areas. I hope that the Government will consider the issue. I beg to move.
Lord Falconer of Thoroton: I am grateful to the noble Viscount, Lord Astor, for moving the amendment and also for his Amendment No. 44 which puts forward an alternative formulation of trade secret; namely,
One proposal that he puts forward is to delete the reference to "trade secret" and replace it in effect by reference to an intellectual property right; the other proposal is to keep in "trade secret" and put in the words "or intellectual". If I may say so, that is a very legalistic way of dealing with the issue.
Perhaps I may deal with both the noble Viscount's amendments. The noble Viscount is concerned that this safeguard for "trade secrets", which is contained in Clause 8(5), is not sufficiently wide to protect intellectual property. His second amendment is to prevent the commission of offences. In bringing forward this particular provision in Clause 8(5), we have paid particular attention to the question of intellectual property. The provisions of Clause 8(5) protect commercial or other information from disclosure. Intellectual property rights are not just--or perhaps even mainly--about disclosure. The Bill is not intended to affect any protected restrictions on the use by the data subject of information acquired by this route. Where it is necessary to protect information from disclosure, whether or not that information is the subject of intellectual property rights, we consider that that information will have the necessary quality of a trade secret. As a lawyer, I know from my own experience that "trade secrets" is a phrase used in a large number of decided cases in order to define certain sorts of information which people are not allowed to disclose.
As to the facilitating of criminal offences, I am not convinced that there is a problem here. Clause 8(5) is concerned with a very narrow set of circumstances. It is about the situation in which an individual seeks access to the logic underlying a fully automated decision. It is pertinent to ask what criminal offences may be facilitated by the provision of limited information of this kind. The answer is, I suggest, that the offences would be those relating in some way to the way in which the organisation in question carries out its business. It is difficult to see what more general opportunities for criminal activity might be facilitated. That being so, I would suggest that the expression "trade secret" is again sufficiently wide to mean that the organisation would not have to reveal information of a kind likely to assist criminal activity.
I note the concern that the noble Viscount has expressed about the phrase "trade secret", but it does the trick and it is the best way to deal with the matter. In the light of what I have said, I would hope that the noble Viscount will feel able to withdraw his amendment.
Viscount Astor: I thank the noble and learned Lord the Solicitor-General and I will certainly withdraw the amendment. I quite understand what he said about intellectual property rights. I am still somewhat concerned, however, about the openness of trade secrets. As he said, this can be interpreted in a fairly wide way, and I am concerned about what will and will not be interpreted as a trade secret. However, I will study carefully what the noble and learned Lord said, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 [Right to prevent processing likely to cause damage or distress]:
Page 5, line 47, at end insert ("and
( ) whether data relevant to the request is being, or is likely to be, processed under section 28(1)").
Page 6, leave out lines 19 to 24 and insert--
("the day on which the data controller receives the request or, if later, the first day on which the data controller has all of the following--
(a) the required fee,
(b) the information referred to in subsection (3), and
© in a case falling within subsection (4) but not within paragraph (b) or © of that subsection, the consent of the other individual concerned.").
Page 7, line 5, leave out ("a trade secret") and insert ("an intellectual property right the disclosure of which would give rise to an action for breach of confidence").
"or intellectual property or would, or is likely to, facilitate the commission of a criminal offence".
6.15 p.m.
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