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Viscount Astor: My Lords, it is for me at this stage to withdraw Amendment No. 48.
Amendment, by leave, withdrawn.
Clause 41 [Information notices]:
Lord Falconer of Thoroton moved Amendment No. 50:
On Question, amendment agreed to.
Schedule 6 [Appeal proceedings]:
Lord Falconer of Thoroton moved Amendment No. 51:
The noble and learned Lord said: My Lords, Clause 27 provides for personal data to be exempted from the main elements of the Bill where this is necessary to safeguard national security. The question of necessity is subject to ministerial certification. There is a right of appeal to a designated panel of the Data Protection Tribunal for any person affected by this certification. Schedule 6 has effect in relation to these appeals and to the proceedings of the tribunal in respect of them.
The proposed amendments have been put forward in the light of further reflection on the arrangements for these appeals. In this group are Amendments Nos. 51 to 56 and 84 and 85. The amendments to Schedule 6 would have the effect of requiring the tribunal to be drawn from a panel of lawyers, with a quorum of three, when hearing
I said in Committee that there were going to be circumstances in which personal data would need to be processed by the appropriate agencies to safeguard national security and that Clause 27 made it possible for that processing to be carried out without the otherwise subsisting controls in the Bill putting national security at risk. I stressed that the exemptions available could apply only if they were required for the purpose of safeguarding national security and then only to the extent that they were so required. A Cabinet Minister, the Attorney-General or the Lord Advocate would be able to certify the requirement. Under the current Data Protection Act the signing of a ministerial exemption certificate is the end of the matter. This Bill will give a right of appeal to the Data Protection Tribunal for persons affected by the issue of such a certificate.
Having, as I indicated, reflected further on the arrangements for giving effect to this provision, I have to tell your Lordships that we believe the specialised and sensitive nature of these national security appeals makes it appropriate for them to be dealt with by lawyers. Appeals under Clause 27(4) of the Bill will be dealt with by a judicial review approach, which is not inherently suited to lay input. Appeals under Clause 27(6) will turn on a fairly narrow question of fact; that is, whether the certificate's general description of personal data applies to the particular personal data at issue. It seems to us that this is a question on which lay members are unlikely to be able to offer any additional expertise. But if a non-legal perspective or a particular data protection expertise were found to be needed in either case, this would of course be available to the tribunal via expert witnesses. An all-lawyer panel for these appeals would, furthermore, be in line with the position of the existing tribunals which deal with matters involving national security.
The proposed amendments to Schedule 10 would have the effect of removing the tribunal from the jurisdiction of the Council on Tribunals in relation to national security appeals. It would remain subject to the council's supervision in respect of other appeals. This proposed exemption, which the council is aware of, would preserve the current position in regard to tribunals dealing with matters involving national security; namely, that they are, because of national security considerations, outside the council's remit and their work kept within the so-called "ring of secrecy".
A particular effect of this amendment would be to remove the requirement for the Secretary of State to consult the Council on Tribunals when drawing up rules of procedure. I am happy to assure your Lordships that in practice we intend to consult the council on the rules
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendments Nos. 52 to 56:
On Question, amendments agreed to.
Clause 47 [Determination of appeals]:
Lord Williams of Mostyn moved Amendment No. 57:
The noble Lord said: My Lords, this a short, technical amendment. Clause 47 deals with the determination of appeals brought by data controllers to the Data Protection Tribunal. Subsection (6) provides that any party to an appeal may refer to the appropriate court on a point of law. The appropriate court depends on the address of the person who was the appellant. This amendment specifies how the address is determined. It is based on the approach adopted in the 1984 Act. I beg to move.
On Question, amendment agreed to.
Lord William of Mostyn moved Amendment No. 58:
Page 24, line 7, leave out from ("furnished") to ("pending") in line 8.
Page 47, line 30, leave out ("one or more") and insert ("those").
Page 47, leave out lines 32 to 34.
Page 47, line 35, leave out ("or (2)").
Page 47, line 36, leave out ("or, as the case may be, by the Secretary of State").
Page 47, leave out lines 40 to 44 and insert ("three of the persons designated under paragraph 2(1), of whom one shall be designated by the Lord Chancellor to preside").
Page 48, leave out lines 1 to 4.
Page 28, line 3, at end insert--
("(7) For the purposes of subsection (6)--
(a) the address of a registered company is that of its registered office, and
(b) the address of a person (other than a registered company) carrying on a business is that of his principal place of business in the United Kingdom.").
Before Schedule 8, insert the following new schedule--
1.--(1) For the purposes of this Schedule, personal data are "eligible data" at any time if, and to the extent that, they are at that time subject to processing which was already under way immediately before 24th October 1998.
(2) In this Schedule--
"eligible automated data" means eligible data which fall within paragraph (a) or (b) of the definition of "data" in section 1(1);
"eligible manual data" means eligible data which are not eligible automated data;
"the first transitional period" means the period beginning with the commencement of this Schedule and ending with 23rd October 2001;
"the second transitional period" means the period beginning with 24th October 2001 and ending with 23rd October 2007.
2. Eligible manual data are exempt from the data protection principles and Parts II and III of this Act during the first transitional period.
3. During the first transitional period, for the purposes of this Act (apart from paragraph 1), eligible automated data are not to be regarded as being "processed" unless the processing is by reference to the data subject.
4.--(1) Subject to sub-paragraph (2), eligible automated data processed by a data controller for one or more of the following purposes--
(a) calculating amounts payable by way of remuneration or pensions in respect of service in any employment or office or making payments of, or of sums deducted from, such remuneration or pensions, or
(b) keeping accounts relating to any business or other activity carried on by the data controller or keeping records of purchases, sales or other transactions for the purpose of ensuring that the requisite payments are made by or to him in respect of those transactions or for the purpose of making financial or management forecasts to assist him in the conduct of any such business or activity,
are exempt from the data protection principles and Parts II and III of this Act during the first transitional period.
(2) It shall be a condition of the exemption of any eligible automated data under this paragraph that the data are not processed for any other purpose, but the exemption is not lost by any processing of the eligible data for any other purpose if the data controller shows that he had taken such care to prevent it as in all the circumstances was reasonably required.
(3) Data processed only for one or more of the purposes mentioned in sub-paragraph (1)(a) may be disclosed--
(a) to any person, other than the data controller, by whom the remuneration or pensions in question are payable,
(b) for the purpose of obtaining actuarial advice,
(c) for the purpose of giving information as to the persons in any employment or office for use in medical research into the health of, or injuries suffered by, persons engaged in particular occupations or working in particular places or areas,
(d) if the data subject (or a person acting on his behalf) has requested or consented to the disclosure of the data either generally or in the circumstances in which the disclosure in question is made, or
(e) if the person making the disclosure has reasonable grounds for believing that the disclosure falls within paragraph (d) above.
(4) Data processed for any of the purposes mentioned in sub-paragraph (1) may be disclosed--
(a) for the purpose of audit or where the disclosure is for the purpose only of giving information about the data controller's financial affairs; or
(b) in any case in which disclosure would be permitted by any other provision of this Part of this Act if sub-paragraph (2) were included among the non-disclosure provisions.
(5) In this paragraph "remuneration" includes remuneration in kind and "pensions" includes gratuities or similar benefits.
5. Eligible automated data processed by an unincorporated members' club and relating only to the members of the club are exempt from the data protection principles and Parts II and III of this Act during the first transitional period.
6. Eligible automated data processed by a data controller only for the purposes of distributing, or recording the distribution of, articles or information to the data subjects and consisting only of their names, addresses or other particulars necessary for effecting the distribution, are exempt from the data protection principles and Parts II and III of this Act during the first transitional period.
7. Neither paragraph 5 nor paragraph 6 applies to personal data relating to any data subject unless he has been asked by the club or data controller whether he objects to the data relating to him being processed as mentioned in that paragraph and has not objected.
8. It shall be a condition of the exemption of any data under paragraph 5 that the data are not disclosed except as permitted by paragraph 9 and of the exemption under paragraph 6 that the data are not processed for any purpose other that mentioned in that paragraph or as permitted by paragraph 9, but--
(a) the exemption under paragraph 5 shall not be lost by any disclosure in breach of that condition, and
(b) the exemption under paragraph 6 shall not be lost by any processing in breach of that condition,
if the data controller shows that he had taken such care to prevent it as in all the circumstances was reasonably required.
9. Data to which paragraph 8 applies may be disclosed--
(a) if the data subject (or a person acting on his behalf) has requested or consented to the disclosure of the data either generally or in the circumstances in which the disclosure in question is made,
(b) if the person making the disclosure has reasonable grounds for believing that the disclosure falls within paragraph (a), or
(c) in any case in which disclosure would be permitted by any other provision of this Part of this Act if paragraph 8 were included among the non-disclosure provisions.
10. Eligible automated data which are processed only for the purpose of replacing other data in the event of the latter being lost, destroyed or impaired are exempt from section 7 during the first transitional period.
11.--(1) During the first transitional period, eligible automated data are exempt from the following provisions--
(a) the first data protection principle to the extent to which it requires compliance with--
(i) paragraph 2 of Part II of Schedule 1,
(ii) the conditions in Schedule 2, and
(iii) the conditions in Schedule 3,
(b) the seventh data protection principle to the extent to which it requires compliance with paragraph 13 of Part II of Schedule 1;
(c) the eighth data protection principle,
(d) in section 7(1), paragraphs (b), (c)(ii) and (d),
(e) sections 9 and 10,
(f) section 11, except so far as relating to--
(i) any contravention of the fourth data protection principle,
(ii) any disclosure without the consent of the data controller,
(iii) loss or destruction of data without the consent of the data controller, or
(iv) processing for the special purposes, and
(g) section 13.
(2) The specific exemptions conferred by sub-paragraph (1)(a), (c) and (e) do not limit the data controller's general duty under the first data protection principle to ensure that processing is fair.
12.--(1) During the second transitional period, eligible manual data which were held immediately before 24th October 1998 are exempt from the following provisions--
(a) the first data protection principle except to the extent to which it requires compliance with paragraph 2 of Part II of Schedule 1,
(b) the second, third, fourth and fifth data protection principles, and
(c) section 12.
(2) Sub-paragraph (1) does not apply to any eligible manual data to which the exemption in paragraph 14 applies.
13. In this Part of this Schedule "the relevant conditions" has the same meaning as in section 32.
14.--(1) Eligible manual data which are processed only for the purpose of historical research in compliance with the relevant conditions are exempt from the provisions specified in sub-paragraph (2) after 23rd October 2001.
(2) The provisions referred to in sub-paragraph (1) are--
(a) the first data protection principle except in so far as it requires compliance with paragraph 2 of Part II of Schedule 1,
(b) the second, third, fourth and fifth data protection principles, and
(c) section 12.
15.--(1) After 23rd October 2001 eligible automated data which are processed only for the purpose of historical research in compliance with the relevant conditions are exempt from the first data protection principle to the extent to which it requires compliance with the conditions in Schedules 2 and 3.
(2) Eligible automated data which are processed--
(a) only for the purpose of historical research,
(b) in compliance with the relevant conditions, and
(c) otherwise than by reference to the data subject,
are also exempt from the provisions referred to in sub-paragraph (3) after 23rd October 2001.
(3) The provisions referred to in sub-paragraph (2) are--
(a) the first data protection principle except in so far as it requires compliance with paragraph 2 of Part II of Schedule 1,
(b) the second, third, fourth and fifth data protection principles, and
(c) section 12.
16. For the purposes of this Part of this Schedule personal data are not to be treated as processed otherwise than for the purpose of historical research merely because the data are disclosed--
(a) to any person, for the purpose of historical research only,
(b) to the data subject or a person acting on his behalf,
(c) at the request, or with the consent, of the data subject or a person acting on his behalf, or
(d) in circumstances in which the person making the disclosure has reasonable grounds for believing that the disclosure falls within paragraph (a), (b) or (c).").
The noble Lord said: My Lords, I have already spoken to this. I beg to move.
On Question, amendment agreed to.
Clause 49 [General duties of Commissioner]:
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