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Viscount Astor: Before the noble Baroness replies, perhaps I could ask the noble and learned Lord a question. I follow the logic of his answers, but for these data to be exempted for these purposes under this clause, does that purely relate to data that are held by either a government department or a government agency, or can it be wider than that? My concern is whether this could be a quango or some totally outside third party. If that is the case, that would certainly cause me some concern, as opposed to data specifically held by some government department.

Lord Falconer of Thoroton: It is not restricted to government departments and I can see no reason why it should be. If there are bodies holding data for the purpose of the prevention or detection of crime--there may be bodies that hold information, for example on child abuse, which are not government departments--why should their purchasing of that material, and therefore their activities in the prevention or detection of crime, be restricted? It seems to me as a matter of principle wrong that it should only be government departments that have that protection.

Viscount Astor: The noble and learned Lord uses rather an extreme case, but in my experience there are organisations such as quangos which are reluctant to reveal material to people involved. They all too easily use excuses. It would be far too easy to say "There might be a case". It is difficult to drag information out of them. Often this is information which belongs to the public. But the organisations have an aversion to revealing information. That information may not be correct; it may be entirely fallacious. Therefore I am worried that there are organisations that are not directly connected to government departments or government agencies holding information which is entirely wrong. It either has been included by mistake, or it may have been included for some malicious reason. How can this ever be corrected?

Lord Falconer of Thoroton: I know I am repeating myself to some extent, but there is no harm in that. First, it is dealt with on a case-by-case basis. I take the first

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example. In order for the exemption to apply it has to be for the prevention or detection of crime. The exemption will apply only in relation to where it would be likely to prejudice any of the matters mentioned in the subsection. It has to prejudice the prevention or detection of crime. Moreover, the exemption is only from the first data protection principle, subject to the change made by the amendment. Therefore there is no exemption from the fourth data protection principle, which is that the personal data shall be accurate and, where necessary, kept up-to-date. That meets the noble Viscount's point.

If a quango--which is the noble Viscount's concern--wrongly uses this exemption to keep back information, it is not through this exemption but it is misconduct, in effect, on the part of the quango. If, on the other hand, this mythical quango that he has in mind is holding the information back in order to assist itself in the prevention or detection of crime, then in the Government's view that is a fair operation of the exemption.

Viscount Astor: I am grateful to the noble and learned Lord. I can assure him that there will be cases in the future where people write to agencies enclosing a copy of the Hansard statement that he has made today.

Lord Falconer of Thoroton: I am very glad to hear it.

Baroness Nicholson of Winterbourne: I am grateful to the Minister for his explanations. I beg leave to withdraw the amendment. We are about to discuss a more wide-ranging amendment in which we can return to the same topic.

Amendment, by leave, withdrawn.

[Amendment No. 82 not moved.]

Lord Falconer of Thoroton moved Amendment No. 83:

Page 16, line 43, after ("principle") insert ("(except to the extent to which it requires compliance with the conditions in Schedules 2 and 3)").

The noble and learned Lord said: I formally move the amendment. I have just spoken to it.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 84:

Page 16, line 43, leave out ("in which") and insert ("to the extent to which").

The noble and learned Lord said: I formally move this amendment. It was spoken to by my noble friend Lord Williams of Mostyn on Monday.

On Question, amendment agreed to.

[Amendments No. 85 to 88 not moved.]

4.45 p.m.

Baroness Nicholson of Winterbourne moved Amendment No. 89:

Page 17, line 15, leave out subsection (4).

The noble Baroness said: I am particularly delighted that the teatime crumpets, or maybe the 6 p.m. whisky that the noble Viscount, Lord Astor, found on Friday

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evening encouraged him to support this amendment. It is a very important one and I was glad on Monday morning to find that he had noticed it; indeed, we should look at this very seriously. The Select Committee on Delegated Powers and Deregulation of the House of Lords in its session 1997 to 1998, which published a report on 4 February 1998, turns our attention to it immediately.

On page 3, the committee reported that, when examining the Data Protection Bill, it looked to see whether or not the grant of secondary power was appropriate, and states:

    "With the potential exception of clause 28(4), to which we return later, in each instance we concluded that it was".

That of course undermines my earlier amendment which referred to Clause 28(1) but it puts it in the context of the Select Committee's concerns on Clause 28(4).

In paragraph 6 of the report the Select Committee states:

    "The order-making power in clause 28(4) is one of the most controversial elements of the bill. It gives the Secretary of State an apparently unlimited power to exempt personal data of a specified description from the data subject's right of access to personal data (section 7) and from the requirement to process personal data fairly and lawfully (set out in paragraph 1 of Schedule 1 to the Bill)".

It goes on to say in paragraph 7:

    "As the Minister acknowledged during the Second Reading debate on this bill, there is a particularly difficult balance to be struck with this power, about which the Data Protection Registrar has expressed her concern".

The committee goes on to say:

    "The need for the power in section 28(4) to create additional exemptions"--

on top of the extension in Clause 28(1) which the Minister has begged us to support--

    "is not immediately apparent, and indeed the Minister told the House that the Government had 'made no firm decisions about its use'. It is not easy to see what clause 28(4) adds which is not covered by clause 28(1)".

In other words, if the Minister wishes us to accept Clause 28(1), would he not reconsider Clause 28(4)? Indeed, the Select Committee concludes that this is:

    "a power which in the Committee's view it would be impossible to justify. The House will no doubt wish to consider these issues with the greatest care during the Bill's subsequent passage and may wish to amend the Bill to remove the general power to grant exemptions from the first data protection principle."

The Select Committee referred to the concerns of the Data Protection Registrar and, in a note circulated to noble Lords in this Committee on Monday of this week, she drew attention to her briefing note which expresses her considerable disquiet at Clause 28(4). She welcomes the tenor of those amendments, which would in a proportionate way exempt from the powers of the commissioner and the courts rather than giving blanket exemption from the principles, and also provide an opportunity to carry out assessments when the exemptions are relied upon. That refers to her own release on the Data Protection Bill of 2nd February, when she claims in paragraph 6:

    "A blanket exemption is disproportionate".

She goes on to say:

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    "It is difficult to see how it is consistent with the limited power to provide exemptions in Article 13 of Directive 95/46/EC which permits exemptions which are 'necessary' to safeguard, among other things, law enforcement and 'an important economic or financial interest of a Member State ...including...taxation matters'".

She also points out that there,

    "must also be a risk of a breach of Article 8 of the European Convention on Human Rights which is currently the subject of a Bill before Parliament which would incorporate it into UK law".

She, herself, makes the proposal that if the Inland Revenue requires more powers, they should be placed in a financial piece of legislation.

Of course there are many other bodies which have expressed their concern such as Justice, which has subsequently sent a brief, and the organisation Liberty. But I believe that our concern is fully warranted as Members of this Committee. With the digestion of Clause 28(1) will the Minister not save us an additional course to give us indigestion with Clause 28(4)?

The Deputy Chairman of Committees: I have to advise the Committee that should this amendment be agreed to, I cannot call Amendments Nos. 90 and 91 due to pre-emption.

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