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Lord Williams of Mostyn: My Lords, I am not sure that I accept the epithet "clumsy". It is certainly technical, but in the nature of the beast there is no alternative but to have technical definitions which are sometimes lengthy and need to be scrutinised.
Accessible records are themselves defined in the new clause which is added by Amendment No.87. They are essentially those records to which I made reference earlier: existing statutory access rights, outside the scope of the data protection regime. They include certain health records, accessible public records and educational records, as defined in the new schedules which are added by Amendments Nos. 131 and 132.
I agree that one needs to spend some time looking at the effect of what is technical legislation, but I have to protect the draftsman against charges of clumsiness. However, if he feels on reflection that he may have erred into clumsiness, I am sure that he will accept the noble Lord's reproof in the good-natured way in which it was tendered.
On Question, Motion agreed to.
9 Clause 7, page 5, line 20, leave out from 'subsection (1)' to end of line 21 and insert 'unless he has received--
(a) a request in writing, and
(b) except in prescribed cases, such fee (not exceeding the prescribed maximum) as he may require.'.
10Page 5, line 31, leave out from beginning to 'or' in line 33.
11Page 6, line 4, at end insert--
'(6A) An individual making a request under this section may, in such cases as may be prescribed, specify that his request is limited to personal data of any prescribed description.'.
12 Page 6, leave out lines 5 to 7.
13Page 6, leave out lines 16 and 17.
14Page 6, leave out lines 18 to 22.
15 Page 6, line 22, at end insert--
'"prescribed" means prescribed by the Secretary of State by regulations;'.
16 Page 6, line 23, leave out 'by the Secretary of State by regulations'.
17Page 6, line 26, leave out 'so'.
18 After Clause 8, insert the following new clause--
'.--(1) Where the data controller is a credit reference agency, section 7 has effect subject to the provisions of this section.
(2) An individual making a request under section 7 may limit his request to personal data relevant to his financial standing, and shall be taken to have so limited his request unless the request shows a contrary intention.
(3) Where the data controller receives a request under section 7 in a case where personal data of which the individual making the request is the data subject are being processed by or on behalf of the data controller, the obligation to supply information under that section includes an obligation to give the individual making the request a statement, in such form as may be prescribed by the Secretary of State by regulations, of the individual's rights--
(a) under section 159 of the Consumer Credit Act 1974 , and
(b) to the extent required by the prescribed form, under this Act.'.
Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 9 to 18.
Moved, That the House do agree with the Commons in their Amendments Nos. 9 to 18.--(Lord Williams of Mostyn.)
On Question, Motion agreed to.
19 Clause 10, page 8, leave out lines 15 to 18.
Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 19.
I shall also speak to Amendments Nos. 30, 76, 85 and 112. Amendments Nos. 19, 30 and 112 make small but important improvements to changes that were made to the Bill at Report stage in this House.
The House may remember that, following amendments tabled by the noble Lord, Lord Norton, in Committee the Government brought forward amendments which would require data controllers to respond in writing within 21 days to written notices from data subjects under Clauses 9, 10 and 13.
Following those changes the Government received very strong representations from the direct marketing industry about the requirement attached to Clause 10. It pointed out that it would be very difficult and costly for them to comply with, and that it might lead to a withdrawal of "opt out" boxes, which are very convenient for data subjects. So, paradoxically, a provision which was intended to help data subjects could result in their being worse off.
In any event, the requirement in Clause 10 serves too limited a function to offer worthwhile protection for data subjects. It is merely a statement of intention to comply
I turn to Amendments Nos. 76 and 85. The Bill makes provision in many places for notices and requests for other communications to be given or made "in writing".
It has been put to us--I hope this will chime agreeably in the mind of the noble Lord, Lord Avebury--that in this electronic age such notices should be capable of being made electronically. The Government agree. Accordingly, the new clause added by Amendment No. 76 provides in respect of certain of these that the requirement for them to be in writing is satisfied if they are given or made in electronic format; that is, by fax or e-mail. It also provides for the Secretary of State by regulation to provide that the requirement for notices and requests to be in writing is not to apply in circumstances prescribed in the regulations.
Amendment No. 85 adds those regulations to the list of statutory instruments subject to negative resolution procedure in Clause 63(5).
Moved, That the House do agree with the Commons in their Amendment No. 19.--(Lord Williams of Mostyn.)
Lord Skelmersdale: My Lords, I notice that the Minister referred specifically to the new clause after Clause 60 and Amendment No. 76. I observe that in subsection (2) the electronic transmission must be received in legible form. As one who has great difficulty on occasions with facsimile machines, and receives what I can only describe as gobbledegook--most certainly not legible--I assume that it will be a defence to produce a piece of fax paper which is clearly not in legible form.
Lord Williams of Mostyn: My Lords, I think that that would be right in the same way as any other form of writing has to be capable of being read. Otherwise it is not a valid notice.
Baroness O'Cathain: My Lords, perhaps I may seek clarification on the issue raised by my noble friend. Facsimile messages have a horrible habit of disappearing off the paper. For how long would one need to keep a copy? They fade.
Lord Williams of Mostyn: My Lords, the old ones fade, the new ones in our spanking new Home Office equipment are on plain paper. It is not really a question of how long one needs to keep a notice, because there is no difference in principle between a fax and a typewritten notice, which does not necessarily have to be kept by the recipient. It is the fact that the notice was given. I take the point made by the noble Baroness, that if one is going to entrust the message to the fax it would be a wise precaution for the fax sender to have a record that the fax was capable of being proved to have been sent. That is an important point.
On Question, Motion agreed to.
Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 20 and 21.
Moved, That the House do agree with the Commons in their Amendments Nos. 20 and 21.--(Lord Williams of Mostyn.)
On Question, Motion agreed to.
20
Clause 10, page 8, line 21, leave out 'requirement' and insert 'notice'.
21
Page 8, line 22, leave out 'requirement' and insert 'notice'.
22 Clause 12, page 9, line 20, leave out from 'destruction' to end of line 22.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 22.
I shall speak also to Amendments Nos. 23 to 28. These amendments make essentially technical changes to the Bill. I shall attempt to explain them simply. Clause 12, as it left your Lordships' House, gave courts two main powers: first, to order the rectification, blocking, erasure or destruction of inaccurate data; and to order the erasure, destruction, blocking but not rectification of data where a data subject has suffered damage for which compensation could be claimed or where there is a further risk of a similar occurrence.
The main purpose of Amendments. Nos. 22 to 28 is to bring consistency between the two powers. They give to courts a power under Clause 12(4) to order rectification of data as well as their erasure, destruction or blocking. As I have said, that power is currently not available to the courts. Attached to the courts' power under subsection (4) is a power similar to that already available under subsection (3) to require controllers to notify third parties to whom data have been disclosed of rectification and so forth. They clarify to which data the power in subsection (4) applies. The power is currently expressed in general terms. The amendments relate the power to particular data and they also ensure consistency of language.
Moved, That the House do agree with the Commons in their Amendment No. 22.--(Lord Falconer of Thoroton.)
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