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Viscount Astor: My Lords, I am extremely grateful to the noble Lord for bringing forward his amendments on transitional relief. We are grateful that the Government have taken full advantage of the transitional reliefs that are offered by the directive.

As the noble Lord will appreciate, his amendments cover about six pages of the Marshalled List and he gave a detailed explanation, which I shall have to study carefully. Perhaps I may ask him one or two questions. I am concerned that paragraph 1 of the new schedule is not sufficiently clear on eligible data. Given continuity of processing for a specified purpose, the definition of "eligible data" for the purpose of transitional relief needs to be clear that they do or do not include data, such as an address, amended on or after 24th October 1998; data added to a record, such as a new educational qualification or a subsequent purchase for a continuing customer, on or after 24th October 1998; and data for a new data subject, such as a new employee, added on or after 24th October 1998.

It also needs to be clear that amendments to programs--such as those that may be necessary to deal with the millennium bug--do not disqualify the processing from transitional relief. Can the noble Lord confirm that none of these changes should disqualify processing from one or more specified purposes which began prior to 24th October 1998 from transitional relief? Further, the replacement of a software system by another employed for the same continuing purpose should not disqualify that processing from transitional relief.

I realise that those are rather technical questions and that transitional relief is a technical subject. Therefore, I should be very happy for the noble Lord to write to me between now and Third Reading on any of those questions. However, in general, we welcome the noble Lord's amendments.

Lord Williams of Mostyn: My Lords, that is a generous approach by the noble Viscount. His questions merit thought and detailed answers. I undertake to write to him with specific answers to each of those questions as soon as maybe.

On Question, amendment agreed to.

Clause 40 [Request for assessment]:

Viscount Astor moved Amendment No. 48:

Page 23, line 25, at beginning insert ("if not, of his reasons, and if so,").

The noble Viscount said: My Lords, this is the amendment I nearly started to move earlier. I moved a similar amendment in Committee. It concerns the commissioner and open government. The Minister said that he accepted that my amendment applies only to the extent that the commissioner considers appropriate, which I thought was very reasonable. He then went on to say that it would not always be appropriate for her to explain her views and actions. He then used that as an argument for saying that he did not want the

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amendment. That rather contradicted his earlier statement that the commissioner has to go through this thing only if she considers it appropriate. For the benefit of open government I thought it worth returning to the issue to ask whether the Government had reconsidered their earlier view. I beg to move.

Lord Falconer of Thoroton: My Lords, the noble Viscount will recall my noble friend's response to his amendment in the Grand Committee. My noble friend said that the amendment was unnecessary and that remains the Government's view.

Clause 40 places an express duty on the commissioner, except in very limited circumstances, to make an assessment on receipt of a request. The noble Viscount's amendment seeks to require the commissioner to give reasons when she refuses to make such an assessment. The only bases for refusal to make an assessment under the Bill are those set out in subsection (2)(a) and (b); namely, that she has not been supplied with such information as she may reasonably require in order to satisfy herself as to the identity of the person making the request; and to enable her to identify the processing in question. So far as concerns paragraph (a)--the identity of the person making the request--that is a simple matter of trying to establish who that person is. If she is not sure, she can ask for more information. If she does not get it, she will notify as much under Clause 40(4). The basis for that will be apparent.

So far as concerns paragraph (b), if she cannot identify the processing, that is likely to be because the person making the request has not, despite being asked, given enough details. Again, that will be very apparent. The commissioner will have information notice powers to seek further details from the data controller if she can establish who that is. So it is unlikely to be the situation contemplated in Clause 40(2). On the basis of the analysis that has gone before, a refusal to make an assessment at all is only likely to result from a process of dialogue with the person making the request which ends with that person not giving enough reasonably requested information. It is not the sort of exercise of discretion where the giving of reasons has much obvious part to play.

Further--and this is worth emphasising--Clause 40(4)(b) requires the commissioner to inform the person who made the request for assessment of,

"any view formed or action taken as a result of the request".

In the Government's view, this means that the commissioner must, to the extent that is appropriate, tell the person concerned of any view formed about the merits of a request in respect of which the commissioner decided to take no further action. Whether and to what extent the provision of this information is considered appropriate is, in our view, quite rightly a matter for the commissioner, who must have particular regard to the issues of confidentiality.

I have explained why we think the amendment is unnecessary. I hope that the noble Viscount will consider withdrawing it.

Viscount Astor: My Lords, I am grateful to the noble and learned Lord. He has certainly gone further this

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evening in explaining the Government's views. I think he has satisfied my concerns. No doubt the registrar will have to take account of what was said during the passage of the Bill. I shall read carefully what he said. I notice that Amendments Nos. 67, 68 and 69 are grouped with this amendment and I wonder whether the noble and learned Lord wishes to speak to those before I withdraw my amendment.

Lord Falconer of Thoroton: My Lords, I am grateful to the noble Viscount for making that point. I was going to interrupt him before he finished because I had noticed that I should have spoken to those amendments.

Amendments Nos. 67 and 68 would allow the Secretary of State to direct the commissioner to assist the commissioner's opposite number in a colony to carry out data protection functions. They have been tabled in response to a request by the Gibraltar Government, who would like the commissioner to be able to carry out data protection functions on behalf of any supervisory authority which may be established there at the request of that authority. I understand that it is Gibraltar's intention to legislate later this year to implement the 1995 data protection directive. It is not possible to estimate at this stage the extent to which the commissioner's assistance might be required in this regard, but I am able to reassure your Lordships that the commissioner will be able to charge for such assistance on such terms as the Secretary of State may direct or approve. Any receipts would be treated in the same way as if they had originated in the United Kingdom; that is to say, they would be subject to the regime specified in Schedule 5 to the Bill.

With the leave of the House I shall speak to Amendment No. 69. It relates to Clause 54. That clause imposes a duty of confidentiality on the commissioner and her staff in respect of the information (both personal and business) which they obtain in the course of carrying out their functions under the Bill. The duty is backed by a criminal sanction.

Concern has been expressed that the clause, as drafted, imposed too heavy-handed a regime of secrecy on the commissioner's staff and might place them too readily in jeopardy of criminal penalties. I know this was of concern to the registrar, particularly in view of the culture of openness fostered by her office.

In Committee, we had a brief debate about the clause in the light of an alternative version proposed by the noble Baroness. Since Committee, Home Office officials have had the opportunity of discussing the provision further with the registrar. This amendment is the result of that discussion.

It does not go as far as the registrar had perhaps hoped but does incorporate some of her suggestions. While we are sympathetic to her points we are, of course, bound to implement the directive. This contains an express requirement to ensure that the members and staff of the supervisory authority are subject to a duty of professional secrecy with regard to confidential information to which they have access.

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While I appreciate that the overall effect of the amendment may appear remarkably similar to that of the present clause, it incorporates a number of changes. The obligation of secrecy is now imposed specifically on, and limited to a,

"person who is or has been the Commissioner, a member of the Commissioner's staff or an agent of the Commissioner",

rather than being related to the information itself and applying to "any person". This wording more clearly reflects the requirement of the directive.

The drafting has also been amended so that the elements which go to make up "confidential" information are contained within subsection (1) and the extent of the authority to disclose is contained in subsection (2).

On a technical point, the registrar considers that with this amendment, in the event of a prosecution under the clause, it would be for the prosecution to prove that the disclosure was of information falling within all the elements now contained in subsection (1).

The registrar had some concern that in the present clause subsection (1)(b) might operate by way of a defence only, so that if a member of staff was charged under the clause he would have to show that the information was in the public domain. This would have placed an additional burden on the member of staff. To that extent we have sought to accommodate the registrar's concerns. I cannot see, in the light of the directive, that we can go further. I commend the amendment to the House.

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