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Audit Commission Bill [H.L.]

Reported from the Joint Committee with an amendment and recommitted to a Committee of the Whole House; Bill ordered to be printed as amended.

Tyne Tunnels Bill

Brought from the Commons, read a first time and referred to the Examiners.

25 Feb 1998 : Column 785

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Official Report of the Grand Committee on the Data Protection Bill [H.L.]

Wednesday, 25th February 1998.

The Committee met at four of the clock.

[The Deputy Chairman of Committees (The Viscount of Oxfuird) in the Chair.]

Clause 28 [Crime and taxation]:

Baroness Nicholson of Winterbourne moved Amendment No. 76:

Page 16, line 39, after ("of") insert ("serious").

The noble Baroness said: The clause before us as we start our debate this afternoon is one that has already aroused a great deal of debate. I am pleased to begin the debate by noting that I already have the support of some Members of your Lordships' Committee for the most important amendment, which comes a little later.

Clause 28 is powerful in its effect. It will absolve law enforcement agencies from having to comply with the first data protection principle, that data should be processed fairly and lawfully. It will also prevent an individual from obtaining access to his files and provides an exemption from the non-disclosure provisions. While those exemptions are not absolute, many people have found that under the Data Protection Act 1984 the police almost invariably claim an exemption. In such cases, when the individual requests his subject access report, the answer is that there is no information that the chief constable or the officer in charge is required to supply under the provisions of the Act. That means either that no data are held or that the police do in fact have the data in respect of which they claim exemption from the subject access provisions.

This first handful of amendments therefore tackle points within that justification. The justification for the first amendment, Amendment No. 76, is that the exemptions would apply only to serious crime in relation to personal data processed for the purpose of prevention or detection of crime. I suggest that that is such a wide category that it would include virtually all information held by the police relating to crime. In other words, the Bill does not make a distinction between categories of crime. The amendment would do that: it would distinguish between less serious and more serious crime.

The consequential amendments take the argument further to ensure that the exemptions contained in Clause 28 cannot also be applied to the assessment and collection of taxes and duties. I find it difficult to see why those bodies which assess and collect taxes or duties should be entitled to claim those wide and sweeping Clause 28 exemptions. Obviously, where data subjects are suspected of having committed criminal offences in respect of taxes or duties, subsections

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(1)(a) and (b) might apply in any case. But this is a very wide-ranging provision and I wonder whether we could consider it also.

I turn now to Amendment No. 85, which would delete "likely" and insert "reasonably considered materially". The objective there is to ensure that two safeguards apply: that the exemption could be claimed only where it was reasonably considered that there would be prejudice; and that there would be material prejudice to the specified purposes and not just any degree of prejudice, however small. I believe that it should be made clear on the face of the Bill that an exemption could be claimed only if there were likely to be prejudice on an objective basis. Requiring material prejudice would also restrict unwarranted claims for exemptions.

This group of amendments also contains the relevant new clause which would ensure that data subjects are informed when an exemption is claimed under Clause 28 and of the reasons. In that context the clause is, I believe, self-explanatory. I beg to move.

The Solicitor-General (Lord Falconer of Thoroton): The noble Baroness has spoken to five amendments with great clarity, and I shall go through each one in turn.

The first amendment the noble Baroness proposes is in relation to the exemption contained in Clause 21(1)(a) which presently relates to the prevention or detection of crime. If her amendment is allowed, the noble Baroness proposes that it should now refer to,

    "the prevention or detection of serious crime".

I invite the Committee to think of the consequences of that proposed change. I do not know how the noble Baroness, in her own mind, would define serious crime, but I imagine that what she has in mind is quite a high test. The amendment would mean that any criminal activity which fell short of that test, namely the test of serious crime, would be outside the scope of the clause. It would no longer be possible, within the excluded categories of criminal activity, for a controller to refuse a request for subject access, even though granting the request would facilitate the commission of an offence or frustrate crime prevention activity. I fear that that is the consequence of the noble Baroness's proposal. The Committee will not be surprised to know that, speaking as I do on behalf of the Home Office, I find that outcome unacceptable, as would quite a number of people. We oppose that amendment.

The second amendment the noble Baroness proposes is, in effect, to delete the exemption as defined in Clause 28(1)(c), namely relating to personal data processed for the purpose of,

    "the assessment or collection of any tax or duty or of any imposition of a similar nature".

None of us likes paying taxes but most of us recognise that it is necessary to do so. Most of us also want the Inland Revenue to be able to ensure that all those who are liable to pay taxes do so in the interests of equity and fairness. The amendment would make it more difficult, if not impossible, for the Inland Revenue and the other tax collecting bodies to achieve this. It would

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stop the Inland Revenue refusing subject access even though it knew that the individual concerned would use the information he obtained to avoid his tax liability. I do not believe, and nor do the Government, that this is an acceptable approach. So again, I invite the noble Baroness to withdraw the amendment.

The next amendment the noble Baroness proposes relates to the words after paragraphs (a), (b) and (c) which presently state that where personal data are processed for any of the reasons mentioned in paragraphs (a), (b) and (c), they shall be exempt from certain provisions,

    "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".

The noble Baroness's amendment leaves out the words,

    "would be likely",

and inserts the words,

    "reasonably considered materially to prejudice any of the matters mentioned in this subsection".

It is the Government's view that the present test, which is based on the likelihood of prejudice to law enforcement or tax assessment or collection, is right. That test is not free-standing. There is another important safeguard already in the Bill, and the exemptions are only available on a case-by-case basis. That is the effect of the words "in any case" which are to be found in the first line after paragraph (c). This means that blanket exemptions are ruled out. But where, in a particular case, it is likely that there may be prejudice to the matters in question, the exemption is available.

This is already a fairly tightly drawn provision. It follows very closely the model of the corresponding provision, Section 28 of the Data Protection Act 1984. As far as I am aware, that provision has not shown itself to be capable of abuse. If anything, the complaints I have heard about Section 28 of the 1984 Act are to the effect that it is too tightly drawn. We believe that it is clear; we believe that it is tight. With the greatest respect to the noble Baroness's amendment, we do not think the amendments are tight. We do not believe they will lead to anything other than difficulty and confusion. We believe that we have struck the right balance in the likelihood test, in particular having regard to the reference to "in any case". Again I invite the noble Baroness to withdraw the amendment.

The final amendment in this batch of five is to insert at the end of Clause 28 a provision that in effect says, "If you are a data controller and you do not provide the information, give a reason as to why you are not providing the reason". I understand the reason for the amendment. Where it is necessary to deny a person their subject access rights for the Clause 28 reasons, we should give them as much information as we can in the circumstances. However, we must look at the purposes of Clause 28 to guide us. If subject access data has to be withheld for the reasons given in Clause 28(1)(a) to (c), revealing the fact that data are being processed may itself be sensitive information which could prejudice the purpose in question. The exemption applies not only to Clause 7 but also--through their connection with the

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first data protection principle--to the Schedule 1 requirements for information to go to data subjects when or soon after data are obtained. Together, these are known as the "subject information provisions".

It is necessary to look with some care at Clause 7 itself. Clause 7(1)(a) is an entitlement to be told whether a data controller is processing your information. If a Clause 28 exemption has to be claimed from that provision, it would be self-defeating to insist on an explanation of the reasons for it. It could seriously damage investigation or prosecution. Clearly, there may be some situations in which the fact of an investigation or prosecution is known already to the data subject. However, I think that the judgment on this matter should essentially be a matter for the controller. It would not be possible to establish a general requirement for the data subject to be told without there being substantial prejudice to the purposes of the exemption.

I remind the Committee that this exemption can only be applied in any case where it is likely to prejudice the purposes in question. It will very often be the case that the reasons which make it necessary to invoke the exemption will also make it necessary to be reticent about those very reasons.

I make one final point. There is not a total absence of protection. It must be borne in mind that in Clause 40 we have provided a specific protection for data subjects who are refused subject access, for whatever reason. They can ask the commissioner to investigate. Clause 40(3)(c) points the commissioner in the particular direction of subject access refusals. Clause 40(4)(b) provides a specific mechanism for giving the subject reasons for refusal, where it is appropriate. That formula takes account of the points I have made. It is the mechanism indicated by the directive, and I think that it is the best way to deal with the point made by the noble Baroness. I believe that I have dealt with all five amendments. I invite the noble Baroness to withdraw them.

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