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The noble and learned Lord said: This is a technical amendment. It improves the expression of the exemption provided in Clause 34 for disclosures of data which are required by law. As it stands at present the exemption states that,
that the law otherwise requires. We do not intend that reference to be understood as permitting exemption from the seventh data protection principle which requires technical and organisational security measures. The amendment that we propose removes that doubt and in the interests of consistency brings this exemption into line with other provisions of the Bill by reference to the
On Question, amendment agreed to.
Clause 34, as amended, agreed to.
Schedule 7 [Miscellaneous exemptions]:
Viscount Astor moved Amendment No. 109:
The noble Viscount said: I beg to move Amendment No. 109 and speak to a whole raft of other amendments that, although not necessarily on the same subject, all relate to Schedule 7. The first one, No. 109, is a simple amendment which I hope that the Government will look at because it locates the point in the right place and avoids the rather tortuous reliances that are placed on Clauses 7(5) and (6), as the references it deals with would normally be held by the recipient and not the provider of the reference. Therefore this is a simple amendment that makes this clear.
Amendment No. 110A is again a simple one that I hope will improve the transparency of decision-making. Amendment No. 110B--for the life of me I cannot remember why I put it down so I will just say "better drafting"! Amendment No. 110C was designed to improve the definition of such data to prevent avoidance of the subject information provisions. Those are the simple ones.
Slightly more complicated is Amendment No. 112. This is about the definition of intentions. The personal data held in relation to negotiations are likely to be wider in scope than simply the intentions of the data controller and may include opinions and other data. The real example of this is a company which is, for example, negotiating with an employee. It must be right that that employee should not during those negotiations be able to demand the right to see perhaps informal opinions on his or her merits which then could affect the outcome of the negotiations if it is in regard to employment, a pay rise or something like that. It seems to me that should be narrowed somewhat.
In the same way with my Amendment No. 113, there may be situations where negotiations concerning the data subject are conducted with third parties, and this amendment covers those situations. I am thinking, for example, of conversations with head hunters or with other companies because there is a merger, or indeed a disinvestment, in the offing.
The final amendment that I am speaking to is No. 119. This is of a slightly different nature, but I believe is an important issue. Industry is concerned that the definition of processing will catch any automated processing of personal data whether or not by reference to the data subject. Making an obligation to inform and to provide subject access could be unnecessarily onerous.
I am thinking about a specific example where there is processing of orders or invoices in bulk between corporate bodies which contain contact names. Although it is not really relevant to the invoice, it would be printed on the piece of paper and that would automatically bring
This is trying to reduce a burden without in any way affecting anybody's rights or anything like that. It is purely looking at the mechanical process of the way industry operates. I beg to move.
Viscount Chelmsford: I should like briefly to talk to the last amendment discussed by my noble friend Lord Astor. I am part of the parliamentary organisation which is concerned about whether it will in the future be able to publish telephone directories globally containing contact names. Presumably employees joined our organisation in order to have such information published. Indeed, I cannot see that an employee who has joined the company which my noble friend Lord Astor was talking about could possibly object to having his name put on the invoice as a contact name. Indeed, it should help rather than hinder him.
What worries me about the amendment is that it says,
whereas the point I would like to make is that the member of my association holds data, and therefore it includes processing as defined here. The amendment would have been far stronger if it did not have the exclusion at the end of it.
Baroness Turner of Camden: I have two amendments, Nos. 117 and 118, which are included in this group which deal with a slightly different point. Schedule 7 deals with "Miscellaneous exemptions" and paragraph 9 would appear to give special exemption in respect of personal data if they,
My very simple amendments take out the word "legal" in both those lines. As your Lordships will know, on Second Reading I and several other Lords raised issues that had been mentioned to us by the Chartered Institute of Loss Adjusters, which is concerned about its own professional status in respect of the Bill. The amendments seek to give cover to professional advisers who are not necessarily lawyers. I know it is a bit difficult, but this amendment is one way of flagging up the concerns of professional people who may very well be involved in claims of one sort or another but cannot claim the kind of privilege which appears to be conferred by particular provision because they are not lawyers. I wonder whether the Minister would be good enough to respond to that quite small point.
The Earl of Northesk: I wish to make a brief contribution on Amendment No. 119 moved by my noble friend Lord Astor. It seems to me that this highlights some of the problems that I attempted to tease
Lord Falconer of Thoroton: Let me deal, I hope quite briefly, with all these somewhat disparate points. The first point raised by the first amendment of the noble Viscount, Lord Astor, is in effect to say that references given not only by the data controller but also to the data controller should be the subject of some sort of exemption. He suggests it should be done by including them in paragraph 1 of Schedule 7 to the Bill. We are broadly in agreement with the approach he takes, but feel that it is already adequately dealt with by Clause 7(4) of the Bill:
and then various exceptions are given, including primarily, consent, or where,
In considering whether it is reasonable, regard under Clause 7(6) has to be had to any duty of confidentiality owed to the other individual. We believe that normally, unless there is a special situation, that would mean that references from another person to the data controller would not have to be disclosed, which would seem to be adequate protection under the circumstances.
The noble Viscount, Lord Astor, did not speak to Amendment No. 110A about judicial appointments, for some reason.
Viscount Astor: I thought I did. I think I said that this amendment was designed to improve the transparency of decision-making--
Lord Falconer of Thoroton: I see. I missed that. It was so quick. Many congratulations for that! The amendment relates to judicial appointments. In the case of judicial appointments, the exemption is necessary to safeguard the integrity of the arrangements for appointing, and, where necessary, removing from office, judges and senior members of the legal profession. The integrity of the judiciary is an essential pillar of our democracy. It could too readily be undermined where individuals who might either be considered for appointment or be serving as judges or Queen's Counsel might be able to gain access to the confidential information about their suitability held by the Lord Chancellor's Department.
The same argument applies to the system of Crown honours: systems of this kind need to be capable of being operated on a basis of full confidence and discretion. That is the reason for it and, speaking as a Queen's Counsel myself, I can quite see the overwhelming, but inappropriate, curiosity one would have.
The next amendments of the noble Viscount are Nos. 110B and 110C. He wanted to restrict the exemption in relation to business planning. We understand the spirit in which they were offered, but, in effect, they rather ruin the exemptions that are there.
The first one is to insert the word "solely" before "processed". The point of the exemption is to allow businesses to plan certain of their future management activities such as staff allocation, where necessary, on a fully confidential and discretionary basis. In such planning exercises data processed for other purposes will necessarily and inevitably be used--typically, for example, personnel data. The amendment of the noble Viscount would effectively prevent this; it seems to be running wholly counter to the purpose of the exemption. This exemption can only be relied on, as the paragraph he has amended says, in any case, to the extent,
That is to say, on a case-by-case basis only to the required extent and subject to a harm test. That seems to us to be the appropriate limitation of the use of this exemption. Restriction on the type of data is not appropriate.
The next point relates, in effect, to negotiations--Amendments Nos. 112 and 113. I have listened carefully to the explanation of the need for these amendments and have some sympathy. As I said before, in considering exemptions from the subject information provisions we need to have regard for the restrictions which the directive imposes. It permits exemptions to be made only in a limited range of circumstances and where they are "necessary". It must also be remembered that subject access is an important right for data subjects and we must not remove or dilute that right, except where there is a clear need to do so. Therefore subject to those caveats, and with no absolute commitment of any sort to make the changes that the noble Viscount seeks, I am willing to consider whether we can find a way of meeting his concerns.
I now come to the point raised by the noble Baroness, Lady Turner of Camden. The proposal she makes to take out the word "legal" for legal reasons gets us nowhere. If you take out the word "legal", all you are left with is an exemption for "professional privilege", and it only the lawyers who have managed to establish for themselves this particular privilege. So, as a matter of law, it would not get us anywhere.
Beyond the points that were referred to when we were talking about Clause 28, I am not quite sure what the noble Baroness's concerns are in relation to that and whether she feels that they have been adequately met by what we said in relation to that clause of the Bill. I am not sure that I can give much more help than we have given before, save the rather negative indication that the amendment, as proposed, does not achieve anything and is, therefore, not worth pursuing. I am sorry not to be more helpful in that respect.
The noble Earl, Lord Northesk, spoke to the final amendment. As I understand it, underlying this there is a genuine and considerable concern among the business community about the application of the Bill in particular
If it is correct that the processing of contact names is not done by reference to the data subject, which it will not be on many occasions, then I agree that the Bill will have the wider effect about which both noble Lords have expressed concern. In that respect, the position is that we have no choice: the directive does not allow us to limit our new law to processing done by reference to the data subject, which is what would meet the concern about contact lists. Nor, I am afraid, does the directive allow us to follow the creative approach proposed by the noble Viscount and provide an exemption from the subject information provisions for contact names, which is what in effect this amendment proposes.
The exemptions provided for in the Bill must be permitted by the directive. Article 13 of the directive provides for exemptions from what the Bill calls the "subject information provisions" in a limited set of circumstances. I have looked carefully at the scope of Article 13, and I cannot find a provision which would justify our providing for this exemption--although, if anyone could indicate one to me, then we would think again. I am sure that the Committee will understand that the Government cannot agree to this Bill making provisions which would put us in breach of the directive. In the light of all the remarks I have made, I would ask noble Lords to withdraw their amendments.
Page 20, line 19, leave out from beginning to ("is") in line 20 and insert ("Personal data are exempt from the non-disclosure provisions where the disclosure").
"The data protection principles shall not be regarded as restricting or preventing any disclosure",
Page 49, line 19, after ("by") insert ("or to").
"for a purpose or purposes which do not include processing by reference to the data subject",
"consist of information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality as between client and professional legal adviser, could be maintained in legal proceedings".
"Where a data controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless",
"it is reasonable in all the circumstances to comply with the request without the consent of the other individual".
6.45 p.m.
"in which the application of those provisions would be likely to prejudice the conduct of that business or other activity".
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