Data Protection Act 1998 (c. 29)

(The document as of February, 2008)

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Tenure of office

12 (1) Subject to the following provisions of this paragraph, a member of the Tribunal shall hold and vacate his office in accordance with the terms of his appointment and shall, on ceasing to hold office, be eligible for re-appointment.

(2) Any member of the Tribunal may at any time resign his office by notice in writing to the Lord Chancellor (in the case of the chairman or a deputy chairman) or to the Secretary of State (in the case of any other member).

(3) A person who is the chairman or deputy chairman of the Tribunal shall vacate his office on the day on which he attains the age of seventy years; but this sub-paragraph is subject to section 26(4) to (6) of the [1993 c. 8.] Judicial Pensions and Retirement Act 1993 (power to authorise continuance in office up to the age of seventy-five years).

Salary etc.

13 The Secretary of State shall pay to the members of the Tribunal out of money provided by Parliament such remuneration and allowances as he may determine.

Officers and staff

14 The Secretary of State may provide the Tribunal with such officers and staff as he thinks necessary for the proper discharge of its functions.

Expenses

15 Such expenses of the Tribunal as the Secretary of State may determine shall be defrayed by the Secretary of State out of money provided by Parliament.

Part III Transitional provisions

16 Any reference in any enactment, instrument or other document to the Data Protection Registrar shall be construed, in relation to any time after the commencement of section 6(1), as a reference to the Commissioner.

17 Any reference in this Act or in any instrument under this Act to the Commissioner shall be construed, in relation to any time before the commencement of section 6(1), as a reference to the Data Protection Registrar.

Sections 28(12), 48(5).

SCHEDULE 6 Appeal proceedings

Hearing of appeals

1 For the purpose of hearing and determining appeals or any matter preliminary or incidental to an appeal the Tribunal shall sit at such times and in such places as the chairman or a deputy chairman may direct and may sit in two or more divisions.

Constitution of Tribunal in national security cases

2 (1) The Lord Chancellor shall from time to time designate, from among the chairman and deputy chairmen appointed by him under section 6(4)(a) and (b), those persons who are to be capable of hearing appeals under section 28(4) or (6).

(2) A designation under sub-paragraph (1) may at any time be revoked by the Lord Chancellor.

3 In any case where the application of paragraph 6(1) is excluded by rules under paragraph 7, the Tribunal shall be duly constituted for an appeal under section 28(4) or (6) if it consists of three of the persons designated under paragraph 2(1), of whom one shall be designated by the Lord Chancellor to preside.

Constitution of Tribunal in other cases

4 (1) Subject to any rules made under paragraph 7, the Tribunal shall be duly constituted for an appeal under section 48(1), (2) or (4) if it consists of--

(a) the chairman or a deputy chairman (who shall preside), and

(b) an equal number of the members appointed respectively in accordance with paragraphs (a) and (b) of section 6(6).

(2) The members who are to constitute the Tribunal in accordance with sub-paragraph (1) shall be nominated by the chairman or, if he is for any reason unable to act, by a deputy chairman.

Determination of questions by full Tribunal

5 The determination of any question before the Tribunal when constituted in accordance with paragraph 3 or 4 shall be according to the opinion of the majority of the members hearing the appeal.

Ex parte proceedings

6 (1) Subject to any rules made under paragraph 7, the jurisdiction of the Tribunal in respect of an appeal under section 28(4) or (6) shall be exercised ex parte by one or more persons designated under paragraph 2(1).

(2) Subject to any rules made under paragraph 7, the jurisdiction of the Tribunal in respect of an appeal under section 48(3) shall be exercised ex parte by the chairman or a deputy chairman sitting alone.

Rules of procedure

7 (1) The Secretary of State may make rules for regulating the exercise of the rights of appeal conferred by sections 28(4) or (6) and 48 and the practice and procedure of the Tribunal.

(2) Rules under this paragraph may in particular make provision--

(a) with respect to the period within which an appeal can be brought and the burden of proof on an appeal,

(b) for the summoning (or, in Scotland, citation) of witnesses and the administration of oaths,

(d) for the inspection, examination, operation and testing of any equipment or material used in connection with the processing of personal data,

(e) for the hearing of an appeal wholly or partly in camera,

(f) for hearing an appeal in the absence of the appellant or for determining an appeal without a hearing,

(g) for enabling an appeal under section 48(1) against an information notice to be determined by the chairman or a deputy chairman,

(h) for enabling any matter preliminary or incidental to an appeal to be dealt with by the chairman or a deputy chairman,

(i) for the awarding of costs or, in Scotland, expenses,

(j) for the publication of reports of the Tribunal's decisions, and

(k) for conferring on the Tribunal such ancillary powers as the Secretary of State thinks necessary for the proper discharge of its functions.

(3) In making rules under this paragraph which relate to appeals under section 28(4) or (6) the Secretary of State shall have regard, in particular, to the need to secure that information is not disclosed contrary to the public interest.

Obstruction etc.

8 (1) If any person is guilty of any act or omission in relation to proceedings before the Tribunal which, if those proceedings were proceedings before a court having power to commit for contempt, would constitute contempt of court, the Tribunal may certify the offence to the High Court or, in Scotland, the Court of Session.

(2) Where an offence is so certified, the court may inquire into the matter and, after hearing any witness who may be produced against or on behalf of the person charged with the offence, and after hearing any statement that may be offered in defence, deal with him in any manner in which it could deal with him if he had committed the like offence in relation to the court.

Section 37.

SCHEDULE 7 Miscellaneous exemptions

Confidential references given by the data controller

1 Personal data are exempt from section 7 if they consist of a reference given or to be given in confidence by the data controller for the purposes of--

(a) the education, training or employment, or prospective education, training or employment, of the data subject,

(b) the appointment, or prospective appointment, of the data subject to any office, or

Armed forces

2 Personal data are exempt from the subject information provisions in any case to the extent to which the application of those provisions would be likely to prejudice the combat effectiveness of any of the armed forces of the Crown.

Judicial appointments and honours

3 Personal data processed for the purposes of--

(a) assessing any person's suitability for judicial office or the office of Queen's Counsel, or

(b) the conferring by the Crown of any honour,

are exempt from the subject information provisions.

Crown employment and Crown or Ministerial appointments

4 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.

Management forecasts etc.

5 Personal data processed for the purposes of management forecasting or management planning to assist the data controller in the conduct of any business or other activity are exempt from the subject information provisions in any case to the extent to which the application of those provisions would be likely to prejudice the conduct of that business or other activity.

Corporate finance

6 (1) Where personal data are processed for the purposes of, or in connection with, a corporate finance service provided by a relevant person--

(a) the data are exempt from the subject information provisions in any case to the extent to which either--

(i) the application of those provisions to the data could affect the price of any instrument which is already in existence or is to be or may be created, or

(ii) the data controller reasonably believes that the application of those provisions to the data could affect the price of any such instrument, and

(b) to the extent that the data are not exempt from the subject information provisions by virtue of paragraph (a), they are exempt from those provisions if the exemption is required for the purpose of safeguarding an important economic or financial interest of the United Kingdom.

(2) For the purposes of sub-paragraph (1)(b) the Secretary of State may by order specify--

(a) matters to be taken into account in determining whether exemption from the subject information provisions is required for the purpose of safeguarding an important economic or financial interest of the United Kingdom, or

(b) circumstances in which exemption from those provisions is, or is not, to be taken to be required for that purpose.

(3) In this paragraph--

"corporate finance service" means a service consisting in--
(a)
underwriting in respect of issues of, or the placing of issues of, any instrument,
(b)
advice to undertakings on capital structure, industrial strategy and related matters and advice and service relating to mergers and the purchase of undertakings, or
(c)
services relating to such underwriting as is mentioned in paragraph (a);
"instrument" means any instrument listed in section B of the Annex to the Council Directive on investment services in the securities field (93/22/EEC), as set out in Schedule 1 to the [S.I. 1995/3275.] Investment Services Regulations 1995;
"price" includes value;
"relevant person" means--
(a)
any person who is authorised under Chapter III of Part I of the [1986 c. 60.] Financial Services Act 1986 or is an exempted person under Chapter IV of Part I of that Act,
(b)
any person who, but for Part III or IV of Schedule 1 to that Act, would require authorisation under that Act,
(c)
any European investment firm within the meaning given by Regulation 3 of the [S.I. 1995/3275.] Investment Services Regulations 1995,
(d)
any person who, in the course of his employment, provides to his employer a service falling within paragraph (b) or (c) of the definition of "corporate finance service", or
(e)
any partner who provides to other partners in the partnership a service falling within either of those paragraphs.

Negotiations

7 Personal data which consist of records of the intentions of the data controller in relation to any negotiations with the data subject are exempt from the subject information provisions in any case to the extent to which the application of those provisions would be likely to prejudice those negotiations.

Examination marks

8 (1) Section 7 shall have effect subject to the provisions of sub-paragraphs (2) to (4) in the case of personal data consisting of marks or other information processed by a data controller--

(a) for the purpose of determining the results of an academic, professional or other examination or of enabling the results of any such examination to be determined, or

(b) in consequence of the determination of any such results.

(2) Where the relevant day falls before the day on which the results of the examination are announced, the period mentioned in section 7(8) shall be extended until--

(a) the end of five months beginning with the relevant day, or

(b) the end of forty days beginning with the date of the announcement,

whichever is the earlier.

(3) Where by virtue of sub-paragraph (2) a period longer than the prescribed period elapses after the relevant day before the request is complied with, the information to be supplied pursuant to the request shall be supplied both by reference to the data in question at the time when the request is received and (if different) by reference to the data as from time to time held in the period beginning when the request is received and ending when it is complied with.

(4) For the purposes of this paragraph the results of an examination shall be treated as announced when they are first published or (if not published) when they are first made available or communicated to the candidate in question.

(5) In this paragraph--

"examination" includes any process for determining the knowledge, intelligence, skill or ability of a candidate by reference to his performance in any test, work or other activity;
"the prescribed period" means forty days or such other period as is for the time being prescribed under section 7 in relation to the personal data in question;
"relevant day" has the same meaning as in section 7.

Examination scripts etc.

9 (1) Personal data consisting of information recorded by candidates during an academic, professional or other examination are exempt from section 7.

(2) In this paragraph "examination" has the same meaning as in paragraph 8.

Legal professional privilege

10 Personal data are exempt from the subject information provisions if the data consist of information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality as between client and professional legal adviser, could be maintained in legal proceedings.

Self-incrimination

11 (1) A person need not comply with any request or order under section 7 to the extent that compliance would, by revealing evidence of the commission of any offence other than an offence under this Act, expose him to proceedings for that offence.

(2) Information disclosed by any person in compliance with any request or order under section 7 shall not be admissible against him in proceedings for an offence under this Act.

Section 39.

SCHEDULE 8 Transitional relief

Part I Interpretation of 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.

Part II Exemptions available before 24th October 2001

Manual data

2 (1) Eligible manual data, other than data forming part of an accessible record, are exempt from the data protection principles and Parts II and III of this Act during the first transitional period.

(2) This paragraph does not apply to eligible manual data to which paragraph 4 applies.

3 (1) This paragraph applies to--

(a) eligible manual data forming part of an accessible record, and

(b) personal data which fall within paragraph (d) of the definition of "data" in section 1(1) but which, because they are not subject to processing which was already under way immediately before 24th October 1998, are not eligible data for the purposes of this Schedule.

(2) During the first transitional period, data to which this paragraph applies are exempt from--

(a) the data protection principles, except the sixth principle so far as relating to sections 7 and 12A,

(b) Part II of this Act, except--

(i) section 7 (as it has effect subject to section 8) and section 12A, and

(ii) section 15 so far as relating to those sections, and

4 (1) This paragraph applies to eligible manual data which consist of information relevant to the financial standing of the data subject and in respect of which the data controller is a credit reference agency.

(2) During the first transitional period, data to which this paragraph applies are exempt from--

(a) the data protection principles, except the sixth principle so far as relating to sections 7 and 12A,

(b) Part II of this Act, except--

(i) section 7 (as it has effect subject to sections 8 and 9) and section 12A, and

(ii) section 15 so far as relating to those sections, and

Processing otherwise than by reference to the data subject

5 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.

Payrolls and accounts

6 (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).

(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.

Unincorporated members' clubs and mailing lists

7 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.

8 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.

9 Neither paragraph 7 nor paragraph 8 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.

10 It shall be a condition of the exemption of any data under paragraph 7 that the data are not disclosed except as permitted by paragraph 11 and of the exemption under paragraph 8 that the data are not processed for any purpose other than that mentioned in that paragraph or as permitted by paragraph 11, but--

(a) the exemption under paragraph 7 shall not be lost by any disclosure in breach of that condition, and

(b) the exemption under paragraph 8 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.

11 Data to which paragraph 10 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.

Back-up data

12 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.

Exemption of all eligible automated data from certain requirements

13 (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 12 of Part II of Schedule 1;

(d) in section 7(1), paragraphs (b), (c)(ii) and (d),

(e) sections 10 and 11,

(f) section 12, and

(g) section 13, 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.

(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.

Part III Exemptions available after 23rd October 2001 but before 24th October 2007

14 (1) This paragraph applies to--

(a) eligible manual data which were held immediately before 24th October 1998, and

(b) personal data which fall within paragraph (d) of the definition of "data" in section 1(1) but do not fall within paragraph (a) of this sub-paragraph,

but does not apply to eligible manual data to which the exemption in paragraph 16 applies.

(2) During the second transitional period, data to which this paragraph applies 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

Part IV Exemptions after 23rd October 2001 for historical research

15 In this Part of this Schedule "the relevant conditions" has the same meaning as in section 33.

16 (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

17 (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

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

18 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--

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