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Lord Burnham: My Lords, I thank the noble Lord for giving way. I can solve this problem very quickly. I am most grateful to the noble Lord for his courtesy in writing to my noble friend Lord Campbell and even more so for incorporating our Amendment No. 43 in his Amendment No. 44. I shall not move our amendment.
Lord Williams of Mostyn: My Lords, I thank the noble Lord for his courtesy. I shall deal with Amendments Nos. 40 to 44 and 74 relatively briefly. This group of amendments extends slightly the subject information exemptions in Schedule 7.
The first three amendments deal with the exemption in paragraph 1 of the schedule for confidential references provided by data controllers. It has been suggested to us that the exemption is too narrow. The references to education and employment may be too restrictive. We have therefore introduced these amendments to meet those concerns.
The next government amendment, Amendment No. 44, creates a new power for the Secretary of State to specify subject information exemptions in relation to employment and the service of the Crown or in relation to offices to which appointments are made by Her Majesty or Ministers. There is already an exemption in paragraph 3(a), which the Solicitor-General dealt with in Grand Committee, in relation to appointments to judicial office or the office of Queen's Counsel. It has been represented to us, not least by the noble Lords, Lord Burnham and Lord Campbell of Alloway, that there may be other positions in the public service which ought to be within that class of exemption. I stress that I am not able to make any commitments, but an example might be the senior military posts to which the noble Lords, Lord Burnham and Lord Campbell of Alloway, referred previously. We accepted this widening in principle; the question was how to bring it about.
I stress to your Lordships that we have in mind here only public positions where there are pressing reasons of public interest to make exemptions from the principle of transparency in subject access provisions. There are some public positions which are sensitive and prominent and which require absolute discretion in the appointments system if it is to work at all. We believe that the public is entitled to expect as much information as possible, subject to the provisos I set out. We have therefore formulated an exemption to allow the greatest possible flexibility so that the Secretary of State may specify exemptions by order. We believe that that is wiser and more prudent than having something inflexible on the face of the Bill. We have set out the scheme. I repeat my gratitude for the approach taken by the noble Lords, Lord Burnham and Lord Campbell of Alloway.
The final amendment, Amendment No. 74, is to ensure that this power is subject to the affirmative resolution procedure. We believe that any detailed proposals brought forward ought to be subject to parliamentary scrutiny in this respect.
On the basis of that explanation, I commend the government amendments.
The Lord Bishop of Ely: My Lords, I do not want to detain the House for too long. The concerns of the Bill relate to the data holding of all the Churches and, in particular, to the Church of England in virtue of Crown appointments. I should like to assure your Lordships of the full support of the Churches--who have discussed the implications of the directives since their publication--for individual rights and their commitment to scrupulous observation of them.
The Churches have a specific concern for the selection of candidates for ordination. That is why we are grateful for the Minister's proposal in Amendment
No. 40, and the insertion of the word "training". The addition of the word "office" in Amendment No. 42 is also helpful in that it extends the exemption of confidential references to ecclesiastical offices, which are not employment. I also express my support for Her Majesty's Government's inclusion in Amendment No. 44 relating to Schedule 4 of appointments made by Her Majesty.
Lord Williams of Mostyn: My Lords, I am grateful to the right reverend Prelate for his support. Representations were made by the Church authorities. We gave them every consideration and that is why we tabled the amendments in this form.
Lord Teviot: My Lords, I am grateful to the Minister for responding to my amendment so pleasantly and informatively. I shall take up his invitation to meet with his officials, particularly in relation to Amendment No. 37. With no more ado, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 [Information available to the public by or under enactment]:
Lord Williams of Mostyn moved Amendment No. 39:
On Question, amendment agreed to.
Schedule 7 [Miscellaneous exemptions]:
Lord Williams of Mostyn moved Amendments Nos. 40 to 42:
The noble Lord said: My Lords, I have already spoken to Amendments Nos. 40, 41 and 42. With the leave of the House, I shall move them en bloc. I beg to move.
On Question, amendments agreed to.
Lord Williams of Mostyn moved Amendment No. 44:
Page 20, line 28, at beginning insert ("the fourth data protection principle and").
Page 49, line 20, after second ("education") insert (", training").
Page 49, line 20, after second ("education") insert (", training").
Page 49, line 21, after ("subject") insert--
("( ) the appointment, or prospective appointment, of the data subject to any office,").
Page 49, line 32, at end insert--
3A.--(1) The Secretary of State may by order exempt from the subject information provisions personal data processed for the purposes of assessing any person's suitability for--
(a) employment by or under the Crown, or
(b) any office to which appointments are made by Her Majesty, by a Minister of the Crown or by a Northern Ireland department.").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 45 and 46 not moved.]
6.45 p.m.
Lord Williams of Mostyn moved Amendment No. 47:
After Clause 37, insert the following new clause--
(". Schedule (Transitional relief) (which confers transitional exemptions) has effect.").
The noble Lord said: My Lords, Amendment No. 47 is grouped with Amendments Nos. 58 and 79 to 83. These amendments deal with the transitional provisions proposed for the Bill. I am sorry that it has taken until now to put these proposals forward.
Perhaps not unusually, the transitional arrangements are extremely difficult because they are so technical and have been subject to many representations from various people with proper interests. It has therefore been difficult and time consuming, added to which the directive is not always the easiest beast to understand. We have tried to take full advantage of transitional flexibility while ensuring that arrangements are practicable and, importantly, do not impose unnecessary burdens on controllers.
We canvassed a number of different options and from the soundings there appeared to be two messages: first, to try to avoid if possible the creation of a dual regime--that is, running the 1984 regime and the new Act alongside each other during the transitional period; secondly, there was an equally strong desire to find arrangements which did not result in systems having to be changed merely because additional personal data were added to them during the transitional period. Organisations are already having difficulties with what I might call the "year 2000 problem". Many have made clear to us the extreme difficulty that they would have in coping in addition with the detailed technical systems changes which a provision of that kind could require. I believe that the new arrangements meet those concerns, as well as our objectives.
I shall try to be brief. The overall structure and effect of this grouping has two broad objectives: Amendments Nos. 47, 58 and 79 to 82 give effect to the transitional exemptions permitted by the directive; Amendment No. 83 makes technical provision to ensure the smooth transition from the 1984 Act to the Bill. I shall concentrate on the first set.
The key provision is the new schedule in Amendment No. 58. The basic scheme is that the transitional exemptions apply to "processing already under way" immediately before 24th October 1998. As your Lordships will remember, that is the date on which the directive is due to be implemented by member states. Paragraph 1 of the schedule is expressed in such a way that the subsequent addition of new personal data to such processing need not invalidate the exemption. That was one of the major concerns expressed to us in the discussions which I mentioned earlier. We are confident that the directive does not require this, so nor does the Bill. Any new processing started on or after 24th October 1998 will be subject in full to the Bill's provisions immediately. I therefore turn to processing already under way.
The expression is taken directly from the directive, where it is not defined. We have considered carefully whether we should seek to define it in the Bill. We concluded that we should not. Taking account of the informal discussions, we believe that the best approach is to allow data controllers themselves to decide what is and what is not processing already under way, in the light of any guidance that may be issued by the commissioner.
The exemptions fall into four broad categories. First, there is a complete exemption until 23rd October 2001 for certain processing. That covers processing of all manual records to which the Bill applies; and the principal categories of automated processing to which the 1984 Act does not apply but which will come within the scope of the Bill. Those exemptions are set out in paragraphs 2 to 9 of the schedule. Paragraph 10 is a limited exemption which replicates a similar provision in the 1984 Act.
The second main exemption applies to all remaining automated processing--that is to say, processing to which the 1984 Act currently applies. Such processing is exempt from those provisions of the Bill which are specified in paragraph 11 until 23rd October 2001. The exemption applies to most of the new requirements imposed by the Bill in consequence of the requirements of the directive. So, for example, it covers the requirement for controllers to provide information to data subjects under paragraph 2 of Part II of Schedule 1; the requirement to satisfy the conditions in Schedules 2 and, in some cases, 3, before processing may take place; the rights for individuals to object to processing under Clauses 9, 10 and 13; as well as a number of other provisions which are new to our law.
The third main exemption relates only to manual records. Part III of the schedule provides a further exemption from, in effect, the first five data protection principles (except the requirement to provide information to individuals under paragraph 2 of Part II of Schedule 1) for the period 24th October 2001 to 23rd October 2007.
In relation to this further exemption, first, it does not cover the subject access arrangements. Individuals will be able to gain access to their manual records as from 24th October 2001. Secondly, the exemption does not apply to personal data newly added to existing systems after 24th October 1998. Thirdly, the new schedule in Amendment No. 82 provides for individuals to be able to remedy inaccuracy in, or incompatible holding of, their manual data during this extended transitional period. The fourth category of exemption in the new schedule in Amendment No. 58 is found in Part IV. That provides special exemptions for processing only for historical research purposes from 23rd October 2001 with no limit as to time.
I have had to spend a moment or two in explanation. These are technical provisions. One further point arises as to the technical provisions made in Amendment No. 83. One of the things that is of concern to those affected by data protection law is what will happen to the existing registrations. We offer them the answer that existing registrations will be preserved until their normal date of expiry and treated as though they were notifications under the Bill. We believe that that is the simplest and most effective solution to this problem. It means that the data protection commissioner will not be
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