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Baroness Nicholson of Winterbourne: My Lords, I waited to hear the noble and learned Lord's proposals as regards his amendment before commenting on Amendment No. 64. Perhaps I may comment, first, on Amendment No. 49. I echo the Solicitor-General's comments. Why make an informal approach first? The

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commissioner should have no such obligation. It would surely give ill-intentioned businesses time to set things right, safely hidden away from everyone, ready to start again with the next case. Such an informal approach would not seem binding and therefore gives all the power to the one in possession of the information.

If the noble and learned Lord agrees with that reasoning--from what he said on his amendment it seems that he did--I suggest that he has weighted too heavily the balance between the Data Protection Registrar and the data controllers, in this case mainly businesses. I suggest that the balance is weighted too heavily against the data protection commissioner.

The noble and learned Lord stated to the House that most businesses will be in line with the 1984 Act and the new legislation. As regards Amendment No. 64, I remind him that, according to polls that have been undertaken officially, 40 per cent. of businesses do not comply with the current Act. Amendment No. 64 takes that into account in allowing the data protection commissioner to make spot checks.

Viscount Astor: My Lords, I understand the noble and learned Lord's argument. However, it must be better for matters to be sorted out by informal approaches. The registrar seems to recognise that. That should be recognised in the Bill. I believe the Government recognise that such an approach is always best.

If, in effect, my amendment fetters the registrar, how is it that the Bank of England has to take that same approach when it considers revoking a licence? I have not heard a representative of the Bank of England or any bank officials say that it is a problem in those cases. Section 13 of the Banking Act 1987 makes provision for such action only after the informal approach has failed to resolve the issue.

6.15 p.m.

Lord Falconer of Thoroton: My Lords, with respect to the noble Viscount, as the Bill stands without amendment, it will be perfectly open to the commissioner to make an informal approach before any information notice is served. As I indicated, it may well not be appropriate to make an informal approach first but to go straight to the information notice phase because the circumstances justify it. It seems to us appropriate that the registrar or commissioner should be able to choose the appropriate course.

The noble Viscount draws an analogy between revoking a banking licence on the one hand and serving an information notice on the other. Merely stating the two powers indicates that they are very different indeed. In relation to a banking licence, one is dealing, first, with someone's livelihood, and, secondly, an issue in respect of which there must be public confidence. So, even having heard the arguments so well put by the noble Viscount, it seems to me clear that there is a substantial difference. With the greatest respect to him, we gain no real support or assistance from the analogy that he seeks to draw.

I replied in advance to the noble Baroness in respect of her amendment. At bottom, the noble Baroness's point is that the balance should be tilted in favour of the

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data subject in this respect. What underlay all my remarks is that we think a balance has to be struck between the rights of the data controller and of the data subject. There is power to audit a data controller's compliance with good practice. We think it right that it should be only with the consent of the data controller. Otherwise it could give rise to a burden upon a data controller which would be too disruptive and too high a price to pay for the regime.

Baroness Nicholson of Winterbourne: My Lords, the poll--I understand that it was an official poll--stated that 40 per cent. of current businesses do not honour the current legislation. Does the Minister accept that that must be addressed by the authorities and that the Bill should take that knowledge into account? We cannot allow Acts to be passed which are not fulfilled by the broad majority of those whom they address.

Lord Falconer of Thoroton: My Lords, I am not aware of the result of the poll but I do not dispute what the noble Baroness says about it. I am sure that the right way to procure compliance with the law is not to place upon business a burden that we regard as undue. I entirely agree with the noble Baroness that it is appropriate and right that the terms of the law be made known, and that the appropriate steps, which do not involve too much of a burden, be taken to ensure their compliance.

At the end of the day it is a question of where the balance lies. We have taken the view, although I have indicated that we are still listening, that the balance lies in making the audit power consensual. It is for that reason that we do not propose to accept the amendment because we think that the balance is in favour of the data controller in relation to that issue.

Lord Norton: My Lords, before the Minister sits down, he mentioned that it would be too great a burden for data controllers. Audits in general have to be performed to ensure fiscal compliance, and so on. In order to comply with a different form of legislation, I can see no reason why audits should not be performed. They need not be burdensome. They need not be on-the-spot checks. They can be planned. The very nature of data processing is that in many instances it leaves a trail. I wonder what burden the noble and learned Lord is thinking of.

Lord Falconer of Thoroton: My Lords, the proposal made in the name of the noble Lord, Lord Norton, and the noble Baroness, Lady Nicholson, involves giving the commissioner the power, without the consent of the person being investigated, to conduct an assessment or investigation of what that person is doing. That involves a disruption, a cost, and an element of intrusion in relation to their business. We do not think that that element of cost, disruption and intrusion is justified in seeking to balance the interest of the data controller with the data subject.

Lord Norton: My Lords, I have listened to the helpful comments of the noble and learned Lord the

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Solicitor-General. I shall read his comments in Hansard with great interest. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 [Journalism, literature and art]:

Lord Williams of Mostyn moved Amendment No. 32:

Page 18, line 43, leave out ("specified in subsection (2)") and insert ("to which this subsection relates").

The noble Lord said: My Lords, in this group are Amendments Nos. 37, 38, 39, 40, 41, 42, 43 and 44.

Viscount Astor: My Lords, I believe that we are speaking to Amendments Nos. 32, 33, 34, 35 and 36.

Lord Williams of Mostyn: My Lords, I have been led astray by an older man; namely, the Solicitor-General.

Lord Falconer of Thoroton: My Lords, it is entirely my fault for not rising to my feet quickly enough. I am sure that I do not have to remind your Lordships of the importance of Clause 31 in the data protection regime created by the Bill. It is to that section that this group of amendments relates. Perhaps I may speak to Amendments Nos. 32, 33, 34, 35, 36, 73 and 76 in this group.

I turn first to Amendments Nos. 32 to 36. This group of amendments is in effect mainly technical. It brings the terminology of subsection (1) of Clause 31, into line with that of subsection (2) of the clause.

The remaining four amendments to Clause 31 are of a little more substance, but they clarify or complement the provision which is already made in the clause rather than changing it. An essential feature of the mechanism is that it prevents data protection considerations being used to prevent the publication of unpublished journalistic and other material in certain circumstances. Clause 31 (4) provides for civil proceedings under any relevant provisions of the Bill to be stayed where a data controller claims that the processing is undertaken only for the special purposes--that is, journalistic, literary or artistic purposes--and with a view to the publication of previously unpublished material. The stay on proceedings remains until either the claim is withdrawn or a determination of the commissioner under Clause 43 that those criteria are not satisfied takes effect.

It occurs to us that there may be a small ambiguity in these arrangements. This concerns the circumstances in which no explicit claim is made by a data controller, but it appears to the court that the basis for such a claim is there--that is, that the processing is for the special purposes and with a view to the publication of unpublished material. Our expectation would be that in such circumstances a court would not in any event proceed to grant relief--by way of injunction otherwise--to a data subject inappropriately. But these amendments put the matter beyond doubt. They require proceedings to be stayed where a data controller makes a claim or where it appears to the court independently that the criteria in Clause 31(4) are met.

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This small change would improve the clarity of the Bill in this respect. I commend the amendments to the House. I beg to move.

On Question, amendment agreed to.

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