Very briefly, subsection (1) includes the phrase
“must be lawful and fair”.
Could the Minister say a little more about the word “fair”? What definition is she resting on, and who is the judge of it?
“Lawful” means any processing necessary to carry out a particular task, where that task is authorised either by statute or under common law. It would cover, for example, the taking and retention of DNA and fingerprints under the Police and Criminal Evidence Act 1984, or the police’s common law powers to disclose information required for the operation of the domestic violence disclosure scheme.
The Government recognise the importance of safeguarding sensitive personal information about individuals. Subsections (3) to (5) therefore restrict the processing of sensitive data, the definition of which includes information about an individual’s race or ethnic origin, and biometric data such as their DNA profile and fingerprints.
Further safeguards for the protection of sensitive personal data are set out in clause 42. The processing of sensitive personal data is permitted under two circumstances. The first is where the data subject has given his or her consent. The second is where the processing is strictly necessary for a law enforcement purpose and one or more of the conditions in schedule 8 to the Bill has been met. Those conditions include, for example, that the processing is necessary to protect the individual concerned or another person, or is necessary for the administration of justice. In both cases, the controller is required to have an appropriate policy document in place. We will come on to the content of such policy documents when we debate clause 42.
I am grateful for the Minister’s extensive definition, given in response to a question I did not ask. I did not ask for the definition of “lawful” but for the definition of “fair”.
I am so sorry; I thought it was apparent from my answer. “Fair” is initially a matter for the data controller, but ultimately the Information Commissioner has oversight of these provisions and the commissioner will cover that in her guidance.