Data Protection and Digital Information Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 22nd April 2024
(2 weeks, 6 days ago)
Grand CommitteeData Protection and Digital Information Bill 2022-23 View all Data Protection and Digital Information Bill 2022-23 Debates Read Hansard Text Amendment Paper: HL Bill 30-VI Sixth marshalled list for Grand Committee - (18 Apr 2024)
Viscount Camrose
“(1A) In regulation 5C of the PEC Regulations (personal data breach: enforcement)—(a) in paragraph (4)(f), for “from the service of the notice of intent” substitute “beginning when the notice of intent is served”, and(b) in paragraph (5), for “21 days of receipt of the notice of intent” substitute “the period of 21 days beginning when the notice of intent is received”.”Member's explanatory statement
This amendment adjusts the language of regulation 5C of the Privacy and Electronic Communications (EC Directive) Regulations 2003 so it is consistent with language used in new provisions inserted into those Regulations by clause 116 of the Bill.
Viscount Camrose
“Emergency alerts: interpretation of time periodsIn regulation 16A of the PEC Regulations (emergency alerts), in paragraph (6), for the words from “7 days” to “paragraph (3)(b)” substitute “the period of 7 days beginning with the day on which the time period specified by the relevant public authority pursuant to paragraph (3)(b) expires”.”Member’s explanatory statement
This amendment adjusts a description of a period of time in regulation 16A(6) of the Privacy and Electronic Communications (EC Directive) Regulations 2003 to clarify that the day on which the time period specified under regulation 26A(3)(b) expires (which triggers the 7 day period mentioned in regulation 16A) is included in the 7 days.
Lord Clement-Jones (LD)
My Lords, tracking the provenance of Clause 113 has been a very interesting exercise. If we think that Clause 114 is pretty politically motivated, Clause 113 is likewise. These rules relating to the fact that political parties cannot avail themselves of the soft opt-in provision have been there since 2005. The Information Commissioner issued guidance on political campaigning, and it was brought within the rules. Subsequently, there has been a ruling in a tribunal case which confirmed that: the SNP was issued with an enforcement notice and the information tribunal dismissed the appeal.
The Conservative Party was fined in 2021 for sending emails to people who did not ask for them. Then, lo and behold, there was a Conservative Party submission to the House of Lords Democracy and Digital Technologies Committee in 2020, and that submission has been repeated on a number of occasions. I have been trying to track how many times the submission has been made by the Conservative Party. The submission makes it quite clear that there is frustration in the Conservative Party. I have the written evidence here. It says:
“We have a number of concerns about the Information Commissioner’s draft code”—
as it then was: it is now a full code—
“on the use of data for political campaigning. In the interests of transparency, I enclose a copy of the response that the Conservative Party sent to the consultation. I … particularly flag the potential chilling effect on long-standing practices of MPs and councillors from engaging with their local constituents”.
Now, exactly as the noble Baroness has said, I do not think there is any call from other political parties to change the rules. I have not seen any submissions from any other political party, so I would very much like to know why the Government have decided to favour the Conservative Party in these circumstances by changing the rules. It seems rather peculiar.
The guidance for personal data in political campaigning, which I read while preparing for this debate, seems to be admirably clear. It is quite long, but it is admirably clear, and I congratulate the ICO on tiptoeing through the tulips rather successfully. However, the fact is that we have very clear guidance and a very clear situation, and I entirely agree with the noble Baroness that we are wholly in favour of charities being able to avail themselves of the new provisions, but allowing political parties to do so is a bridge too far and, on that basis, I very much support the amendment.
The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)
My Lords, I thank the noble Baroness, Lady Jones, for Amendments 209 and 210, which would amend Clause 113 by removing electronic communications sent by political parties from the scope of the soft opt-in direct marketing rule. A similar rule to this already exists for commercial organisations so that they can message customers who have previously purchased goods or services about similar products without their express consent. However, the rule does not apply if a customer has opted out of receiving direct marketing material.
The Government consider that similar rules should apply to non-commercial organisations. Clause 113 therefore allows political parties, charities and other non-commercial organisations that have collected contact details from people who have expressed an interest in their objectives to send them direct marketing material without their express consent. If people do not want to receive political messaging, we have included several privacy safeguards around the soft opt-in measure that allow people to easily opt out of receiving further communications.
Support for a political party’s objectives could be demonstrated, for example, through a person’s attendance at a party conference or other event, or via a donation made to the party. In these circumstances, it seems perfectly reasonable for the party to reach out to that person again with direct marketing material, provided that the individual has not objected to receiving it. I reassure the Committee that no partisan advantage is intended via these measures.
Lord Clement-Jones (LD)
My Lords, perhaps the Minister could elucidate exactly what is meant by “supporting the party’s objectives”. For instance, if we had a high street petition, would that be sufficient to grab their email address and start communicating with them?
Viscount Camrose (Con)
I suppose it would depend on the petition and who was raising it. If it were a petition raised or an activity supported by a particular party, that would indicate grounds for a soft opt-in, but of course anyone choosing not to receive these things could opt out either at the time or later, on receipt of the first item of material.
Lord Clement-Jones (LD)
So what the Minister is saying is that the solicitor, if you like, who is asking you to sign this petition does not have to say, “Do you mind if I use your email address or if we communicate with you in future?” The person who is signing has to say, “By the way, I may support this local campaign or petition, but you’re not going to send me any emails”. People need to beware, do they not?
Viscount Camrose (Con)
Indeed. Many such petitions are of course initiated by charitable organisations or other not-for-profits and they would equally benefit from the soft opt-in rule, but anyone under any of those circumstances who wished not to receive those communications could opt out either at the time or on receipt of the first communication on becoming aware that they were due to receive these. For those reasons, I hope that the noble Baroness will not press her amendments in relation to these provisions.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank the noble Lord, Lord Clement-Jones, for digging and delving into the background of all this. That is helpful because, all the way through our previous debate, we kept saying, “We don’t understand why these provisions are here”. When the Minister in the Commons was challenged, he said, “We have no intention of using this; it’s just a general power that might be there for anyone to use”, but the noble Lord has put the lie to all that. It is clear that only one party wants to pursue this issue: the Conservative Party.
The Minister said that there is no partisan objective or reason for this but, to be honest, I do not know how he can say that. If only one party wants it and no one else does, then only one party is going to implement it. Without going over the whole of the previous debate, I think a lot of people felt that we as political parties have a lot to do to improve our relationships with the electorate and be seen to represent them on an honest and authentic basis.
This goes in the opposite direction. It is almost collecting data for one purpose and using it for a different one. The noble Lord, Lord Clement-Jones, and the Minister discussed the example of collecting information on a street stall; we have all done that a bit, in that you can put very generalised questions on a questionnaire which could then be used for all sorts of purposes.
Viscount Camrose
Member's explanatory statement
The amendment in my name to insert a new clause after clause 108 will apply the rules of interpretation in Article 3 of Regulation No 1182/71 to the Privacy and Electronic Communications (EC Directive) Regulations 2003. This amendment adjusts the language of new regulation 26A(3) of those Regulations to ensure that Article 3 is able to apply.
Viscount Camrose
Member's explanatory statement
This amendment is consequential on the amendment in my name to insert a new clause after clause 124.
Viscount Camrose
“Time periods: the eIDAS Regulation and the EITSET Regulations(1) In Chapter 1 of the eIDAS Regulation (general provisions), after Article 3 insert—“Article 3APeriods of timeReferences in this Regulation to a period expressed in hours, days, months or years are to be interpreted in accordance with Article 3 of Regulation (EEC, Euratom) No. 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits.”(2) The Electronic Identification and Trust Services for Electronic Transactions Regulations 2016 (S.I. 2016/696) are amended as follows.(3) In regulation 2 (interpretation), at the end insert—“(3) References in these regulations to a period expressed in days or years are to be interpreted in accordance with Article 3 of Regulation (EEC, Euratom) No. 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits.”(4) In Schedule 1 (monetary penalties)—(a) in paragraph 4(f), for the words from “a period” to the end substitute “the period of 21 days beginning when the notice of intent is served”,(b) in paragraph 5, for the words from “a period” to the end substitute “the period of 21 days beginning when the notice of intent is received”, and(c) in paragraph 6, for the words from “a period” to the end substitute “the period of 21 days beginning when the notice of intent is served”.”Member's explanatory statement
This amendment provides for the rules of interpretation in Article 3 of Regulation No 1182/71 (rules of interpretation regarding periods of time etc) to apply to Regulation (EU) No. 910/2014 on electronic identification and trust services and to the Electronic Identification and Trust Services for Electronic Transactions Regulations 2016.
Baroness Sherlock (Lab)
My Lords, I thank the noble Baroness, Lady Kidron, and my noble friend Lord Sikka for introducing their amendments. I also thank all noble Lords who have spoken. I will speak to Amendments 223, 299, 302 and 303 in my name. I should probably say at this point that I am late to this party but, unlike the noble Lord, Lord Vaux, I am not a data protection specialist, I am afraid. However, I am a social security nerd, so I am here for this bit right now.
Since this is the first part of the Bill on DWP powers to tackle fraud, I need to add my little statement on the “fraud is bad” move. Fraud is a problem and has been getting worse across this Government. There have been scandals in procurement, of which the infamous PPE contracts are just one example. There is tax due that goes unpaid at scale and, in social security, the percentage of benefit expenditure lost to fraud has been rising under this Government. However, as my honourable friends made clear in the Commons, a Labour Government would take fraud seriously and pursue all those who seek to take money fraudulently or illegally from the state. They would also focus on helping people to avoid inadvertent overpayments rather than just waiting for them to make mistakes then coming down hard on them at that point. This should not need saying but, in some of the discussions on this Bill elsewhere, there has been a tendency to frame the debates rather along the lines of a classical fallacy: “Fraud is really bad. This will tackle fraud. Therefore, this must be really good”. I know that we are fortunate that in the Minister we have someone who is able to have a much more nuanced debate. I look forward to having exchanges in a way that recognises the important role of this House in scrutinising the powers that the Executive want to take unto themselves, which is exactly what Committees in the House of Lords do so well.
Scrutiny particularly matters here because, as the noble Lord, Lord Vaux, and my noble friend Lord Davies pointed out, all these amendments—more than 200 amendments, 38 new clauses and two new schedules—were introduced on Report in the Commons. My honourable friend Chris Bryant tried to recommit the Bill so that the Commons could discuss it, but the Government refused. The interesting thing is that in their anti-fraud plan back in May 2022, the Government announced that they planned to boost the DWP’s powers to get information from third parties when parliamentary time allowed. The noble Baroness, Lady Buscombe, made a fair point that departments have to wait for the right Bill to come along in order to use it, but the Government have known about this since 2022. They have had two years to draft the amendments, so although they might have had to wait for the Bill to come along, that does not seem a good enough reason for them to have waited until Report in the Commons to deposit them into the process. I hope the Minister will be able to explain the reasons for that.
My noble friend Lady Chakrabarti and others have asked some important questions about the scale on which these powers will be used; I am going to come back to that in our debate on the next group. It is hard to know the scale from the information we have so far, but DWP clearly does know, or has a sense of it, because paragraph 85 of the impact assessment states:
“Using our model to estimate volumes of hits for this measure, over the 10-year appraisal period, internal analysis has estimated that in total there will be an additional 74,000 prosecution cases, 2,500 custodial sentences and 23,000 applications for legal aid”.
It has modelled the volume of matching hits that would require investigation. Can the Minister tell the Committee what that number is? Also, what assurance can he give us that DWP has the resources to investigate that number of hits in a timely manner?
Paragraph 2 of new Schedule 3B says that the account information notices can only cover data going back a year and that they must be done in the week before they are given to DWP. Is there any time limit on how long DWP has to act on the results that have been handed over to it?
I turn now to the amendments in my name. Some of them are quite detailed because these powers are astonishingly wide and it is not at all clear how they could be used. I have deliberately tabled a series of amendments—in three groups in order to make sure that we have a chance to go into detail—to try to get information out of the Government and find out what this is about.
Amendment 223 is a minor probing amendment that would delete paragraph 3(1) of new Schedule 3B, which Schedule 11 to the Bill would insert into the 1992 Act. I will not rehearse it here but can the Minister explain what that provision is for and what its limits are? Neither I nor the people I have spoken to in financial services can understand why it is needed.
The noble Baroness, Lady Kidron, and others mentioned the fact that the Information Commissioner said he could not provide to Parliament his assurance that this measure is proportionate. My other amendments in this group are therefore designed to try to understand the impacts better. Amendment 302 would prevent these new powers coming into force automatically, while Amendment 303 would require the Secretary of State to fulfil several requirements before laying regulations to commence the powers. Amendment 299 is a minor consequential amendment. The effect of this is that the Secretary of State would have to issue a call for evidence, to inform the creation of the first code of practice, and consult relevant bodies. They would also have to lay before Parliament statements on key issues, of which I will highlight two.
The first would say whether and how AI will be used in exercising these powers, as well as how those proposals will take account of protected characteristics; this was touched on by my noble friend Lady Lister and others. That benefits often engage protected characteristics is in the nature of social security. Sickness and disability benefits engage disability, obviously; pensions engage age; benefits relating to children may engage age and also indirectly engage sex; and so on. The National Audit Office has warned that machine learning risks bias towards certain vulnerable groups and people with protected characteristics. So, what external governance or oversight is there to ensure that, once data are collected on the scale envisaged here, we do not end up with a mass breach of equality law?
The second issue I want to highlight concerns the provision that will be made to ensure that individuals subject to investigation do not experience hardship during it or lasting detriment afterwards. Given the comments of my noble friend Lady Lister about the cases from CPAG, can the Minister say whether a claimant’s benefits will be kept in payment while they are investigated following the data that are surfaced as a result of these trawls?
I am concerned that, given the potential scale of hits, a claimant who had, say, inadvertently breached the capital limit but then found themselves at the back of a long queue to be investigated could find themselves ending up paying back really large sums. The Minister will be aware of the recent media coverage, which others have mentioned, of how the DWP is treating people who were overpaid the carer’s allowance, a benefit that gives £81.90 a week to people providing at least 35 hours a week of unpaid care. It is a cliff-edge benefit—if your net earnings are under £150 a week, you get the lot; if they are over it, you get nothing—so a small rise in the minimum wage or a change in tax thresholds or rates can be enough to make someone entirely ineligible overnight, even if nothing changes in their circumstances.
As my noble friend Lady Lister said, apparently, DWP’s IT systems can flag when a carer’s income breaches the threshold but it does not necessarily do that, allowing them then to rack up potentially thousands of pounds’ worth of overpayments. The Guardian has investigated this issue; I shall mention two cases that it offered. First, an unpaid carer with a part-time charity job unknowingly breached the threshold by an average of £4.40 a week—£58 in total—caused by the automatic uprating of the national minimum wage. Because that left her not eligible for anything, she ended up being told to repay £1,715, including a civil penalty.
In the second example, a woman caring for her husband with dementia and Parkinson’s was told to repay nearly £4,000 for inadvertently exceeding the earnings threshold by calculating earnings from her zero-hours job on a monthly basis, as she thought the rules required, rather than a four-weekly basis, which they actually do; the rules around allowable costs and earnings are quite complicated. Crucially, according to the Guardian, she was told that, if she appealed, it could cost her even more. The Guardian quotes from a DWP letter telling her that, if she challenged the repayment order,
“the entire claim from the date it started will be looked at, which could potentially result in the overpayment increasing”.
Is that standard practice? Is DWP currently acting on all the alerts it receives of overpayments? If these powers are switched on, what safeguards will there be when that happens to protect millions of people from ending up paying back years of overpayments that DWP could have prevented?
Before embarking on investigations on this scale, we need to understand more about how this measure will work. We have had some excellent questions in Committee from the noble Lord, Lord Vaux, and others; I look forward to the Minister’s reply.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Viscount Younger of Leckie) (Con)
My Lords, I thank all those who have spoken today. I have been made well aware of the strong views expressed about this measure in Committee. I thank the noble Baroness, Lady Sherlock, for her kind remarks. She is right: I take all these matters extremely seriously. I have listened carefully to all the speeches, although I might not agree with them. Many questions have been asked. I will attempt to cover them all, of course; I doubt that I will be able to but I assure noble Lords that it is likely that a long letter will be required after this. Obviously, I will reflect on all the speeches made in Committee today.
I start by talking about the timing of the introduction of this measure. The noble Baroness, Lady Sherlock, said that the measure was introduced, in her words, “on the late side”. As she alluded to, the DWP published the Fraud Plan in May 2022, where it outlined a number of new powers that it would seek to secure when parliamentary time allowed. In answer to her question and others, in the parliamentary time available, the DWP has prioritised our key third-party data-gathering measure, which will help it tackle one of the largest causes of fraud and error in the welfare system. We will not sit back and ignore an opportunity to bring down these unacceptable losses and better protect taxpayers’ money. I will expand on all of that later in my remarks.
Before attending to the themes raised and addressing the amendments, it is important to set out the context for the power for which we are legislating. Fraud is a serious and damaging UK-wide issue, accounting for more than 40% of all crime. To be fair, many speeches alluded to that. The welfare system is also a target for fraudsters, and we are seeing increasingly sophisticated attacks occur on a scale that we have not seen in the past. We all have our own experiences at home of fraudsters who try completely different methods, not linked to the benefits system at all, to try to gain money through ill-gotten uses and methods.
In 2022-23, the DWP paid out more than £230 billion in benefits and payments to people across Great Britain. I very much took note of the figure that my noble friend Lady Buscombe raised. I say to the Committee that this figure is forecast to rise to nearly £300 billion by 2024-25, in quite short order, so this is a really serious issue to address. However, more than £8 billion has been overpaid in each of the past three years because of deliberate fraud against the state or because genuine errors have been made.
To assist the noble Baroness, Lady Lister, to whose speech I listened carefully, fraud, not error, is the biggest cause of welfare overpayments, totalling £6.4 billion of the £8.3 billion overpaid last year. The noble Lord, Lord Vaux, also asked about the figures. These losses are largely because people are intentionally and knowingly taking money that they are not entitled to. This is not organised fraud either; the vast majority comes from individuals who are not entitled to the money. We cannot underestimate the lengths to which some will go in order to take money they are not entitled to or promote ways to defraud us to a wider audience. This new legislation is not just about protecting the taxpayer; it will help those who make genuine mistakes in their claim, and our swift action will avoid them building up large overpayments.
Some people have said that the department has the powers that it needs to fight fraud and error—I think that was alluded to even today. However, some of the current powers that we have to ensure benefit correctness are over 20 years old—a point that I think my noble friend Lady Buscombe made. In this time, fraud has evolved and become increasingly sophisticated and we must keep pace with the fraudsters. It is for this reason that the Government are bringing these new third-party data powers, as set out, as said earlier, in the fraud plan.
Lord Vaux of Harrowden (CB)
I apologise for interrupting, but can the Minister show us in the Bill where those restrictions on the information that can be requested reside? As I read it, as I mentioned to the noble Baroness, Lady Buscombe, paragraph 2(1) of new Schedule 3B, as inserted by Schedule 11 of the Bill, is pretty wide when it refers to
“names of holders … other specified information relating to the holders … and … such further information in connection with those accounts as may be specified”.
So it appears that the DWP can ask for whatever it wants, rather than what the Minister just described.
Viscount Younger of Leckie (Con)
That is a fair challenge and I will certainly be coming on to that. I have in my speech some remarks and a much more limited reassurance for the noble Lord.
It is only when there is a signal of potential fraud or error that the DWP may undertake a further review, using our business-as-usual processes and existing powers—an important point. DWP will not share any personal information with third parties under this power, and only very limited data on accounts that indicate a potential risk of fraud or error will be shared with DWP in order to identify a claimant on our system. As I said earlier, I will say more about the limited aspects of this later in my remarks.
Lord Clement-Jones (LD)
I am sorry to interrupt the Minister, but will he be coming on to explain what these signals are? He is almost coming to a mid-point between innocence and suspicion called “signals”—is this a new concept in law? What are we talking about and where in all of Schedule 11 is the word “signal”?
Viscount Younger of Leckie (Con)
If the noble Lord will allow me, I would like to make some progress and I hope that this will come out in terms of what we may be seeking on a limited basis.
The first third parties that we will designate will be banks and other financial institutions, as the Committee is aware. We know that they hold existing data that will help to independently verify key eligibility factors for benefits.
This clause does not give DWP access to any bank accounts—a very important point—nor will it allow DWP to monitor how people spend their money or to receive sensitive information, such as medical records or data on opinions or beliefs.
As the noble Baroness, Lady Sherlock, mentioned—I want to try to answer one of her questions—this power cannot be used to suspend someone’s benefit. Cases that are flagged must be reviewed under existing processes and powers—business as usual, which I mentioned earlier—to determine whether incorrect payments are being made.
Our approach is not new. HMRC has long been using powers to request data at scale from banks on all taxpayers under Schedule 23 to the Finance Act 2011. Our approach carries similar safeguards. Tax fraud is no different from welfare fraud and should be treated similarly. This was a key point that the Prime Minister made only on Friday when he committed to bring DWP’s fraud and error powers more in line with those of HMRC. This is one clear area where we are seeking to do this.
This allows me to go on to very important points about safeguards. Not all the cases found through this power will be fraud. Some will be errors which the power will help to correct, preventing overpayment debt building up. Some cases may also have legitimate reasons for seemingly not meeting eligibility requirements, for example where claimants have certain compensation payments that are disregarded for benefit eligibility rules. In those cases, no further action will be taken. Our robust business-as-usual processes will ensure that all cases are dealt with appropriately.
Another question raised by the noble Lord, Lord Vaux, on safeguards was to do with the legislation. A key safeguard is that we cannot approach any third party either; there must be a three-way relationship with the department, the claimant and the third party. This safeguard will narrow the use of this power substantially and ensure that it is used proportionately, as these three-way relationships are limited, meaning that data cannot be gathered at scale from just any source for any purpose. Any third party we will want to get data from will need to be designated in affirmative regulations that noble Lords will have an opportunity to scrutinise. These regulations will be accompanied by a code of practice. We will be bringing that forward, and we will consult on the code before presenting it to Parliament—which answers a question raised by, I think, the noble Baroness, Lady Kidron.
The power also ensures that we can request only very limited data on benefit recipients. I think this addresses a point raised by the noble Lord, Lord Vaux. We must work with key third parties to define what is shared, but our expectation is that this would be a name and date of birth or a unique payment number, along with the eligibility criteria someone has matched against: for example, a benefit claimant who has more savings than the benefit rules would normally allow.
Outside controls will apply here, too. DWP already handles vast amounts of data, including personal data, and must adhere to the UK GDPR and the Data Protection Act 2018.
On the point, which again was raised during this debate, about the remarks made by the Information Commissioner’s Office and its updated report on this measure, published as Committee started and which the Committee may be aware of, I was pleased to see that the commissioner now acknowledges that the third-party data measure is in pursuit of a legitimate aim, stating:
“I understand and recognise the scale of the problem with benefit fraud and error that government is seeking to address and accept that the measure is in pursuit of a legitimate aim. I am not aware of any alternative, less intrusive, means of achieving the government’s stated policy intent based on their analysis”.
I think that is a significant point to make, and it is a point with which I very strongly agree.
Lord Clement-Jones (LD)
It is also worth pointing out that the paragraph I quoted follows immediately on that. That is the qualification that I quoted.
Viscount Younger of Leckie (Con)
Yes, I am aware of that. I think the noble Lord was alluding to the point about proportionality. I listened carefully and took note of that, but do not entirely agree with it. I hope that I can provide further reassurances, if not now then in the coming days and weeks. The point is that there is no other reasonable way to independently verify claimants’ eligibility for the payment that they are receiving.
I turn to the amendments raised, starting with the stand part notice from the noble Baronesses, Lady Kidron and Lady Chakrabarti, the noble Lord, Lord Anderson of Ipswich, who is not in his place, and the noble Lord, Lord Clement-Jones. They and my noble friend Lord Kamall, who is not in his place, interestingly, all made their case for removing the clause, of which I am well aware. However, for the reasons that I just set out, this clause should stand part of the Bill.
In raising her questions, the noble Baroness, Lady Kidron, made some comparisons with HMRC. There are appropriate safeguards in place for this data-gathering power, which will be included in the code of practice. The safeguards for this measure will be equivalent to those in place for the similar HMRC power which Parliament approved in the Finance Act 2011.
Lord Vaux of Harrowden (CB)
When might we see the code of practice? It would be extremely helpful to see it before Report, as that might short-cut some of these discussions.
Viscount Younger of Leckie (Con)
I will need to get back to the noble Lord on that, but perhaps can reassure him that it is already being worked on. You can imagine that, because of the sensitivity of these powers, we are working very carefully on this and making sure that it will be fit for purpose.
Lord Bassam of Brighton (Lab)
Can we see the draft code of practice before Report?
Viscount Younger of Leckie (Con)
That is part of the answer that I gave to the noble Lord, Lord Vaux, which I think is a fair point.
The noble Baroness, Lady Kidron, asked about the code of practice and what steps my department will take to ensure transparency and accountability in the exercise of these powers if they are implemented. In the primary legislation, we will make provision to publish the code of practice, which will set out general guidance on how the third-party data power will work, as I have mentioned. We will develop the code of practice with relevant third parties and it will be consulted on publicly before being laid in Parliament. We will explain what the expectation is for data holders and ensure full compliance for the DWP. This will provide assurance that we will operate transparently and mirror the approach that we have taken with other DWP powers. Any changes to the code of practice, other than minor changes, will also be done in consultation with stakeholders.
The noble Baroness, Lady Kidron, stated that the power was too broad and the gist of one of her questions was that there is no need for all these benefits to be in scope. As the noble Baroness has demonstrated, there is a wide range of benefits and therefore potential avenues for fraudsters to seek to exploit or for error to creep in. That is why it is important that the power enables the department to respond proactively, as new fraud risks emerge.
That said, as the noble Baroness knows, the power will not be exercisable in all the benefits that she listed, such as child benefit, because the legislation is drafted in such a way that it could reasonably be exercised only in relation to benefits for which the Secretary of State is responsible. I reassure the Committee that using Section 121DA of the Social Security Administration Act 1992 is a consistent approach that we take to defining benefits in this way to safeguard all existing legislation and account for a benefit being, for example, renamed or amended. It should be stressed that the listing of a benefit does not mean that this power can or will be exercised upon it. The conditions in the third-party data legislation must still apply, and therefore not all benefits will be subject to this measure. That is a very important point.
Lord Sikka (Lab)
I would be convinced about the Government’s intentions, and would not press this amendment at the next stage, if the Minister can name just one big accounting firm which since 2010, as a result of a court judgment that said it was selling unlawful tax avoidance schemes, has been investigated, fined or prosecuted. If he can give me such an example then I will be convinced that the Government are seriously tackling tax fraud and its enablers.
Viscount Younger of Leckie (Con)
The noble Lord has set me quite a challenge at the Dispatch Box. It is out of scope of today’s session but, having said that, I will reflect on his question afterwards.
I am aware that time is marching on. My noble friend Lord Kamall asked about burdens on banks. We believe that the burdens on banks will be relatively low.
The noble Baroness, Lady Sherlock, made a number of points; I may have to write to her to expand on what I am about to say. Removing the requirement for third parties to provide legible copies of information means that DWP could receive the information but there is a risk that the information is not usable; that is my answer to her points. This could limit the data that DWP receives and prevent us utilising the power in full, which could in turn impact the savings due to be realised from this important measure.
I turn to the final amendments in this group, which were raised by the noble Baroness. They would place requirements on the Secretary of State to issue statements in the House and consult on the code of practice. We will talk more about the code of practice later on in this debate, and I have already made clear my firm opinions on it: we will take it forward and are already working on it. There will be a consultation that will, of course, allow anybody with an interest in this to give their views.
I turn to the number of statements that must be made in the House regarding the practical use of the measures before powers can commence, such as the role that artificial intelligence will play or assurances on any outsourcing of subsequent investigations. This is an important point to make and was raised by other Peers. I want to make it clear that this measure will be rolled out carefully and slowly through a “test and learn” approach from 2025, in conjunction with key third parties. To make these statements in the House would pre-empt the crucial “test and learn” period. I say again that discussions with the third parties are deep and detailed and we are already making progress; this point was made by the noble Lord, Lord Clement-Jones, on the link with banks and third parties.
Importantly, I assure the noble Baroness, Lady Sherlock, that we will not make any automated decisions off the back of this power; this was also raised by the noble Baroness, Lady Kidron. The final decision must and will always involve a human being—a human agent in these cases—and any signals of potential fraud or error will be looked at comprehensively. I am grateful for the remarks of my noble friend Lady Buscombe on this matter.
I know that I have not answered a number of questions. Perhaps I can do so in our debate on another group; otherwise, I certainly wish to answer them fully in a letter. I hope that I have explained clearly, from our perspective, why this power is so important; why it is the right power to take; and how we have carefully designed it, and continue to design it, with the key safeguards in mind. I strongly value the input from all those who have contributed today but I remain unconvinced that the proposed amendments are necessary and strengthen the power beyond the clear safeguards I have set out. With that, I hope that the noble Baroness will not press her opposition to Clause 128.
Lord Clement-Jones (LD)
I may have missed something, but can I just check that the Minister will deal with the matter of signals, which he mentioned at the beginning of his response? Will he deal with where that phrase comes from, what they are, whether they will be in the code, et cetera? There are a lot of questions around that. Does it amount to actual suspicion?
Viscount Younger of Leckie (Con)
Absolutely; I am keen to make sure that I answer on that. It may be possible to do so in the next group but, if not, I will certainly do so in the form of a precise letter—added to the larger letter that I suspect is coming the noble Lord’s way.
Lord Sikka (Lab)
A number of pensioner groups are watching these proceedings. I have received some messages. They are asking, “When is the Minister going to answer the questions asked about the operation of the surveillance of recipients of the state pension, especially those who have foreign accounts?” I assume that the Minister will clarify that in any subsequent letter to me.
Viscount Younger of Leckie (Con)
Absolutely; the noble Lord will know that I have not managed to answer all the questions. I have tried to bring in everybody on this important and serious debate. The answers will be forthcoming.
Baroness Buscombe (Con)
I thank my noble friend very much for all the explanation that he has given thus far. I just want to add a word that has not been mentioned: deterrent. One of the reasons why the Government have sought to introduce this in the Bill, I believe, is that it is hugely important that we are much more thoughtful about what will stop people doing the wrong thing. It has become an old-fashioned word but, from a legal, practical and moral standpoint, does my noble friend agree that this is a practical deterrent to make sure that people do the right thing?
Baroness Lister of Burtersett (Lab)
Is it not one of the dangers that this is a deterrent to people claiming these benefits?
Viscount Younger of Leckie (Con)
I have a response to the question from the noble Lord, Lord Clement-Jones, about signals. The signal is where the criteria or rules for benefit eligibility appear not to be met, and Parliament will have agreed those rules.
Baroness Kidron (CB)
My Lords, the Committee will be grateful to hear, I hope, that I will not try to capture such a rich conversation. I thank the Minister for his careful listening and consideration. I will read carefully what was said at the Dispatch Box and what is about to be said during our discussion on the next two groupings because, without seeing all that in the round, I cannot truthfully say whether the questions asked by noble Lords have been answered.
I share a little of the concern that I can see agitating the noble Lord, Lord Clement-Jones, about the words “signals”, “criteria” and “codes”, which are not promised in the Bill but are suddenly appearing. Indeed, the Minister will remember that, in a private meeting, we talked about how those criteria might be gamed and, therefore, how detailed they could possibly be. There may still be some differences of opinion, and possibly differences of practice, that need to be worked out.
Of course, for now, I will not press my opposition to Clause 128 standing part. I welcome further conversation between now and Report but, I have to say, I lost count of the number of times noble Lords have said “proportionate” in this debate and how many times the issues of scope, sweeping powers and so on were stated by some very expert people—both in and outside of this Room, not simply noble Lords.
The noble Baroness, Lady Buscombe, mentioned a pilot but I seem to remember that some of the outcomes on equality in that pilot got lost in translation. Perhaps it would be good to find out exactly what the pilot did and did not reveal—that is, not just the things that the department would like to reveal but some of the things that were not tested.
I do not doubt the personal integrity of the Minister in the slightest but I am unsure about the idea that the “test and learn” approach has no boundaries around it in the Bill. It is like saying, “Trust us. We test and learn, and all those powers exist”. With that, I will withdraw my stand part notice on Clause 128, but we have quite a lot of questions still to answer in our discussions on the next group of amendments and beyond.
Lord Clement-Jones (LD)
My Lords, I would of course much prefer Clause 128 not to stand part, but we were just privileged by a master class from the noble Baroness, Lady Sherlock. She talked about these being probing amendments, but I do not think that I have seen a schedule so expertly sliced and diced before. If those are probing, they are pretty lethal. I agree with so many of those elements. If we are to have provisions, those are the kinds of additions that we would want and the questions that we would want to ask about them. I very much hope that the Minister has lots of answers, especially for the noble Baroness, Lady Sherlock, but also for the other noble lords who have spoken.
Viscount Younger of Leckie (Con)
My Lords, the debate on this group has focused largely on the amendments from the noble Baroness, Lady Sherlock, regarding using powers only where there is a suspicion of fraud, making provisions so that information collected can be used only for the narrow purpose of determining overpayment, removing pension-age benefits from the scope of the powers and requiring approval from Parliament before the power can be used on specific working-age benefits.
I was going to go over the reason behind these measures once again, but I will not delay the Committee on why we are bringing them forward. I believe I did that at some length in the previous group, so I am going to turn to the amendments raised.
Narrowing these powers as suggested by the noble Baroness, with Amendments 220, 221, 222 and 222A, will leave us exposed to those who are deliberately aiming to defraud the welfare system and undermine the policy intent of this measure. In fact, taken together, these amendments would render the power unworkable and ineffective.
To restrict the power to cases where DWP already has a suspicion of fraud, as suggested by the noble Baroness, would defeat the purpose of this measure. The intent is to enable us to use data from third parties to independently check that benefit eligibility rules are being complied with. We use data from other sources to do this already. For example, we use data from HMRC to verify earnings in UC and check that the benefit eligibility rules are being complied with. Parliament has determined that, to be eligible for a benefit, certain rules and requirements must be met, and the Government have a responsibility to ensure that taxpayers’ money is spent responsibly. Therefore, the DWP should be able to utilise information from third parties to discharge that duty. This is an appropriate and proportionate response to a significant fraud and error challenge.
The noble Baroness, Lady Sherlock, also proposed that the power should be restricted such that it would not apply to persons who hold an account into which a benefit is paid on behalf of someone who cannot manage their own financial affairs—such persons are referred to as “appointees”. An appointee is a person who may be appointed by the Secretary of State to act on behalf of the benefit customer. Usually, the appointee becomes legally responsible for acting on the customer’s behalf in all matters related to the claim. It is also made clear to the appointee, in the documents that they sign, that we may get information about them or the person they are acting for from other parties, or for any other purposes that the law allows, to check the information they provide.
Under our proposed legislation, it is right to say that there may be some people who are not themselves benefit claimants but who have given a person permission to pay benefits into their bank account, who may be picked up in the data returned by third parties. Under the noble Baroness’s amendment, we would not be able to gather data on appointees, which would make the power unworkable, because third parties would not be able to distinguish between an individual managing their own benefit and an appointee. It also assumes that no fraud or error can occur in these cases, which is definitely wrong. I assure the noble Baroness that we handle such cases regularly and have robust existing processes for identifying appointees on our own database and for carefully handling cases of this nature.
The noble Baroness would also like to see the power—
Baroness Sherlock (Lab)
Rather than asking all my questions at the end—I only have four—I will try to get answers as we go. On the appointees, I think that the Minister has just said that the reason the Government need these powers is that some appointees will have their benefit money paid into their own account, not into a separate second account, so that therefore needs to be the case. I am very happy to reword this amendment to make that clear. I was talking specifically about the linking arrangements; the amendment does not talk about excluding appointee accounts. It specifically says that accounts that are linked to an account into which the benefit is paid are not there. I am happy to reframe that in a way that defines it—I am sure we can find a way around this—but does the Minister accept the principle behind this: that, if there is a separate account that, say, I hold for a child who is there, this should not give a reason to look into my own accounts? Or is he saying that the Government want to look into my own accounts, or business accounts, or family accounts as well? Which is it?
Viscount Younger of Leckie (Con)
The Government do wish to have that power. I should make it clear that an appointee could be a claimant as well, so there is a dual issue. It is important that we retain that power, to be sure that we cover the whole ground. But I will reflect on the noble Baroness’s point.
Baroness Kidron (CB)
There were a number of questions on the other group that related specifically to people’s willingness to take these roles on and what the unintended consequence of putting appointees and carers in this position might be for the DWP, with people saying, “Actually, not me, then”.
Viscount Younger of Leckie (Con)
The noble Baroness makes a very good point. I may be able to give her further reassurances in a letter because, on the one hand, we do want the power to be able to cover the ground. On the other hand, there are necessary protections that we must put in place. So further reassurances probably need to be given. There is that balance to be struck, but I hope I can continue to do that.
Baroness Jones of Whitchurch (Lab)
If I may pursue this, I am not sure I heard the Minister’s answer to the question of the noble Baroness, Lady Kidron—or maybe I did. If it was a charitable bank account, a business account or anything else, I think the Minister said that it would be subject to that scrutiny as well. Once someone acts for a carer, all of their bank accounts could be scrutinised—surely that is ridiculously unfair.
Viscount Younger of Leckie (Con)
I am not sure I agree with that. I hope I can reassure the noble Baroness, as I tried to on the previous group. Using our test and learn process, which is already under way working closely with the banks, bringing them along with us and them bringing us along with them—there is a good relationship there—we are working through these important matters.
The point made by the noble Baroness, Lady Kidron, is important, as is that of the noble Baroness, Lady Jones. Again, it is important to give those reassurances. They will be forthcoming, and that is all part of our test and learn process, which I hope provides some reassurance.
Lord Vaux of Harrowden (CB)
I want to be absolutely clear on this point, because I am still not totally sure I am—I raised this the first time around on the last group. If I, as a landlord, have been paid rent as housing benefit directly, my accounts are caught. If I am a trustee of a charity and a cosignatory on a bank account, is the Minister saying that that charity’s account will be caught or not? I want to be absolutely crystal clear on that.
Viscount Younger of Leckie (Con)
This is part of the filtering discussions that are already taking place at the moment.
Lord Vaux of Harrowden (CB)
Under the terms of the Bill, would this allow that to be caught?
Viscount Younger of Leckie (Con)
Yes it would. Landlords are in scope. We will filter this through in terms of the business as usual. If we receive any information—
Baroness Lister of Burtersett (Lab)
Given that, has the department done an assessment of the likely impact on landlords being willing to take people on housing benefit? It is already an issue that landlords are reluctant to take housing benefit recipients, but, with this, I could see the market completely freezing for people on benefit.
Viscount Younger of Leckie (Con)
I clearly cannot go far enough today, but, because this is important and we are in Committee, I need to give some further reassurances on where we are in the process in terms of filtering. If I may conclude my remarks, I will finish this particular point. This is all part of the test and learn, and I give some reassurance that we are working through these important issues in relation to appointees and landlords.
Lord Clement-Jones (LD)
It is precisely as the noble Baroness, Lady Kidron, said on the last group—this is a massive net. It feels as though this is so experimental that there is no certainty about how it will operate, and the powers are so broad that anything could be subject to it. It sounds extremely dangerous, and it is no wonder that everybody is so concerned.
Viscount Younger of Leckie (Con)
I do not agree with that. We have done quite a lot of business together across the Chamber. That is a slightly sweeping issue, because I have given some reassurance that we are already working with the third parties to make sure that we have robust processes in place. For instance, when we are talking about landlords, while it is possible that a landlord’s account may be matched under the measure, only minimum information will be provided by the third parties to enable my department to identify an individual within our own database. With all the data received, we will make further inquiries only where appropriate and where the information is relevant to the benefit claim. This is already part of our business-as-usual processes.
Lord Clement-Jones (LD)
My Lords, I am sorry to interrupt the Minister but, throughout these two groups, he has, in a sense, introduced wholly new concepts. We have “test and learn”, “filtering”—which sounds extraordinary—and “signals” but none seem to be in the black letter of the schedule, nor in the rest of the Bill. We have a set of intentions and we are meant to trust what the DWP is doing with these powers. Does the Minister not recognise that the Committee is clearly concerned about this? It needs tying down, whether we need to start from scratch and get rid of the clause or take on board the amendments put forward by the noble Baroness, Lady Sherlock. The uncertainty around this is massive.
Viscount Younger of Leckie (Con)
Right. A number of questions have been asked. I am not sure that I can give too much more clarity—only that I will go back to what I said on the first group in terms of the limited nature of what we are trying to do. I was very clear about its limited nature, I think.
This leads on to the numbers that noble Lords are asking me about. Of course, I cannot give that figure, as we do not honestly know it. Until we move forward on bringing the measure in, we will not know it. What is certain is that we need this power to be able to gain the limited data that we need. When we receive the data, it may be the case that we need to follow up. I am sure that we will not need to follow up in the vast majority of cases but we must have this power.
To the noble Lord, Lord Vaux, I say this: this measure is for UK accounts only. I hope that that is also helpful to the noble Baroness, Lady Bennett.
Lord Vaux of Harrowden (CB)
This is the problem. We have been talking about limited information, a limited nature and the limited things that we will look at, but that is not what the Bill says. We need to think seriously about how we should limit the rights in the Bill to match the requirements of the DWP. At the moment, there seems to be a huge gap.
Viscount Younger of Leckie (Con)
That point is very much noted. I will certainly take it back. Clearly, we need to provide greater reassurance on the limits and scope, as well as on what we are trying to do. I regret that I am not able to give those answers in full to the Committee now but I hope that, today, I have already taken us further forward than we were before we started. That is quite an important point to make.
I shall touch on the benefits that are in scope of this measure, a point that was raised by the noble Baroness, Lady Sherlock. I think the noble Baroness wishes to restrict the power to working-age benefits, but pension-age benefits are not immune to fraud and error—I wanted to address that—and it is our duty to ensure that these benefits are paid correctly and in line with the benefit eligibility rules that Parliament has previously agreed. Every payment that the DWP makes has eligibility criteria to it. Parliament has considered these criteria in the passage of the relevant social security legislation, and the Government have a responsibility to check that payments are being made in line with those rules so that taxpayers’ money is spent responsibly.
Lord Davies of Brixton (Lab)
Pension benefits other than pension credit have eligibility criteria attached, but I do not know any eligibility criteria applying to pensions that you could discover from someone’s bank account.
Viscount Younger of Leckie (Con)
The example that the noble Lord will be aware of links to what the noble Lord, Lord Sikka, was saying about some pensioners who have moved abroad but, for whatever reason, have not told us that they have done so and continue to receive the uprating. The figure for the fraud aspect—or it could be error—linked to state pensions is £100 million.
Lord Davies of Brixton (Lab)
Presumably the DWP already knows the address of the bank account to which an overseas pension is being paid. Why does it need to know any more?
Viscount Younger of Leckie (Con)
My understanding is that it needs to have these powers to be able to cover the ground properly. I say again that these powers are limited, and whatever comes from the data that is requested from the third parties will end up being, we hope, limited. Even then, it may not be used by us because there is no need to do so.
The power covers all relevant benefits, grants and other payments set out in paragraph 16 of new Schedule 3B to the Social Security Administration Act 1992, as inserted by Schedule 11 to the Bill. To remove pension-age payments from the scope of the power would significantly undermine our power to tackle fraud and error where it occurs. Pension-age payments are not immune to fraud and error, as I have mentioned. I will give an example of that. The noble Baroness, Lady Sherlock, asked whether people would be notified of their bank accounts being accessed.
Baroness Lister of Burtersett (Lab)
Before the Minister moves on, I asked specifically about child benefit. Could he please answer that?
Viscount Younger of Leckie (Con)
I know that I said earlier that child benefit was not included. I will clarify that child benefit is not a benefit for which the DWP is responsible or has any functionality for. This measure will be exercised by the DWP Secretary of State, and we cannot use this power for that benefit.
I was in the middle of answering a question from the noble Baroness, Lady Sherlock.
Viscount Younger of Leckie (Con)
I will finish this answer, if I may. The DWP personal information charter lists banks and financial institutions, and other parties, among the parties with which DWP may share data and from which we may receive data. It also lists checking accuracy and preventing and detecting fraud among the purposes for which we may share or receive information.
A claimant will not be notified if their account details have been returned to DWP by a third party as that could alert fraudsters to the criteria, enabling them to evade detection—I think that is a valid point—but they will be notified if a DWP agent determines that a review is required as a result of the information provided by the third party. That notification will be done through the business-as-usual processes.
Moving on to defining working-age payments in legislation, which relates to the final amendment in this group, Amendment 235, which was tabled by the noble Baroness, Lady Sherlock, it would require the Government to specify in regulations the working-age benefits with which this power could be used. As she demonstrated, there is a wide range of benefits and therefore potential avenues for fraudsters to seek or exploit or for error to creep in. That is why it is important that the power enables the department to respond proactively as new fraud risks emerge.
That said, as the noble Baroness knows, the power will not be exercisable in all the benefits she listed—I took note of her long list—such as child benefit, which we have just mentioned, because the legislation is drafted in such a way that it could reasonably be exercised in relation to benefits for which the Secretary of State is responsible. I reassure the noble Baroness, Lady Sherlock, and the Committee that in the first instance, we plan to use this with universal credit, employment and support allowance—ESA, pension credit and housing benefit. That is the way forward.
There may be a number of questions that I have not addressed, but I hope that I have continued to make the case for why this measure is so important and our aim to tackle fraud and error. I continue to make the case that it is proportionate and that proportionate safeguards are in place. With that, I hope the noble Baroness will agree to withdraw her amendment.
Baroness Kidron (CB)
Will people with power of attorney over the account of someone who receives a benefit also be caught up in all this? That is another vulnerable group, so this could be extensive and quite worrying. Secondly, I am concerned by the Minister’s answers on this group. They have made me feel somewhat more strongly than I did when giving my response on the previous group, so I feel I should put that on the record.
Viscount Younger of Leckie (Con)
That is understood. I know that I need to provide further reassurances. Attorneys are included for the reasons that I set out for appointees.
Baroness Sherlock (Lab)
My Lords, I thank the Minister for taking the time to try to answer the questions. I know that we have given him a hard time, but I thank him for responding so graciously.
He did not take the opportunity to explain the process simply to the Committee. It may be that it is too difficult to explain simply or that, in fact, he can explain what they intend to do, but the powers allow them to do something much wider than that. It would be helpful if he could reflect before he writes as to how best to frame this. I think I heard him trying to say to the Committee that people think that more information is being handed over than will in fact be handed over. If that is the case, it would be helpful if he could spell that out because that would at least begin to help people understand better what is going on.
Secondly, in responding to me, the Minister focused, understandably, on the content of the amendments. I was trying to explain that the reason they are probing is that it is quite hard to get a handle on this. It is a big, sprawly thing, and I am trying to find a way of nailing some jelly to the table; I am trying to find ways of containing it. I still do not know which benefits the Government can use the powers over and which ones they intend to. It is a great step forward to know where they are going to start; that is really helpful. I am also grateful for the clarity, whether people are happy or not, that the Government intend to use the powers on the state pension and make that clear because that was not the impression given in the House of Commons when the matter was debated there. That is a helpful piece of clarity for the Committee and the wider community.
I know this is hard; fraud is difficult. A case was mentioned where an organised fraud gang stole more than £50 million in social security benefits. I know it is hard, and I know it is hard for the DWP to understand precisely where these things will lead when you begin to go there. I understand that if it is too boxed in, it makes it difficult to be able to follow where the fraudsters go, who are often one step ahead of the Government. I get all of that, but there is a risk that when it has spread so widely, the level of concern gets to the point that it will not be as publicly acceptable as the Minister thinks it is. I ask him to take the opportunity, when he goes back to the department, to talk to colleagues and think about what kind of assurances the Government could try to find a way of giving to people, either staging processes or government oversight. I ask him to think about that because the kinds of concerns he has heard here will only increase as the powers start to unfold.
In the next group of amendments, which I think will now be discussed on Wednesday, I want to dig further into the question of who the data and account notice can be given to and what criteria will be used. That will be another chance to flush out some things, so I give notice now that I would like the Minister to look into those areas next. I am grateful for his efforts and to all Members of the Committee who have explored this matter. I beg leave to withdraw my amendment.