European Union (Withdrawal Agreement) Bill
Baroness Barran ExcerptsWednesday 15th January 2020
(4 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-III Third marshalled list for Committee - (15 Jan 2020)
Baroness Ludford
My Lords, I support this amendment, of which I am a co-signatory. I very much agree with what the noble Lord, Lord Stevenson, said, though I fear I might add a few questions for the Minister. As he said, free data flows across borders are an essential foundation of many key sectors of our economy, not just the tech industry as such but manufacturing, retail, health, information technology and financial services. It is vital that the free flow of data between the UK and the rest of the EU continues post Brexit with minimum disruption.
The European Union Select Committee, in its recent report on the revised withdrawal agreement and political declaration, pointed out that there was a lowering of ambition in the political declaration compared to what we have now as part of the EU’s digital single market. We have free flows, whereas the political declaration talks only about the “facilitation” of data flows. That is not the same as “freedom” of data flows. A host of organisations and the Information Commissioner have all persuasively argued that we need to ensure that our data protection legislation and practices are ruled as adequate. That is why it is so important that we get these regular reports and, as the amendment says, that we discover what the policy of HMG is if we do not have a data adequacy agreement after the end of transition.
We cannot take such a decision for granted merely because the GDPR more or less forms part of UK law. A major obstacle to an adequacy ruling is, of course, the bulk data provisions in the Investigatory Powers Act 2016, particularly in the light of the European Court of Justice decision in Tele2/Watson, the case brought by David Davis and Tom Watson over the legality of GCHQ’s retention and bulk interception of call records and online messages. That judgment ruled that UK mass surveillance laws breach the Charter of Fundamental Rights.
Just today there has been an opinion from the Advocate-General, the court’s legal adviser, who tends to get followed in 80% of ECJ cases, on a case which involves Privacy International, and a reference from the Investigatory Powers Tribunal. The Advocate-General has reinforced EU privacy law against mass retention and access to customer data by GCHQ, MI5 and MI6. I think this concerns provisions in Section 94 of the Telecommunications Act 1984. So we may get a second CJEU ruling, which will be problematic for any adequacy ruling given the very explicit requirements of Article 45(2)(a) of the GDPR, requiring the commission to consider
“respect for human rights and fundamental freedoms”,
as well as
“national security … and the access of public authorities to personal data … and … international commitments”.
They will probably want to look at any potential transatlantic transfers agreed with President Trump.
It is already clear that many aspects of the Investigatory Powers Act fall short of satisfying the CJEU criteria. The purposes of retention are not limited to fighting serious crime, data retention is not targeted to what is strictly necessary, prior independent review or judicial authorisation is not required in all cases, and there is no provision for informing individuals.
What are the Government going to do in the area of the powers of intelligence agencies to satisfy the European Commission—and the European Parliament, where I had some experience of this, particularly in the era of the Edward Snowden revelations, when many in the Parliament were jumping up and down about GCHQ but there was nothing they could do about it while we were in the EU? Once outside, we actually get much stricter scrutiny about our interception practices than when we are inside; it is something of an irony, really. Then there is the problem about the exception for immigration data in the Data Protection Act 2018. The EU will no doubt closely monitor how the Home Office reviews settled status applications and whether data subjects can obtain full access to their personal data if there are disputes or problems about their status.
In addition, we discussed earlier today the accusation —it seems stronger than that—that the UK has illegally copied, and therefore misused, the Schengen Information System database by copying it into a national database and even sharing it with private companies. The commission report says that UK practices
“constitute serious and immediate risks to the integrity and security of SIS data as well as for the data subjects”.
That is another area where we are going to be under strict review. There is the trust issue, which we also discussed earlier today about the criminal records fiasco—I think one would have to use that word.
There are lots of questions and challenging reviews that the Government will have to answer in seeking data adequacy decisions. We need to know what steps they have taken so far to achieve this decision. Will they apply to continue to participate in the European Data Protection Board? What will they do if we get turned down for a data adequacy agreement? Anything else is second best. Have the Government thought through what their strategy will be if they do get refused? Will they change the legislation on handling personal data for national security purposes? Those are a lot of questions, but it is a very significant area of the negotiations with the EU 27. From past experience, I know that the European Commission will be very much on the ball— not least because of the eagle eye that the European Parliament will have on this area—so the Government have to be as well.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
I thank the noble Lord, Lord Stevenson, and the noble Baroness, Lady Ludford, for this amendment, which seeks to add additional scrutiny to the data adequacy assessment process by introducing a bespoke statutory reporting requirement. It has certainly been very useful in drawing attention to the importance for both the UK and the EU of the UK pursuing and obtaining positive data adequacy decisions to enable the free flow of personal data after we exit the EU. It is also helpful that the noble Lord highlighted the success of our tech sector, which I thoroughly echo. I am sure that my noble friend the Secretary of State shares that view.
The free flow of personal data is an important feature underpinning the UK and the EU’s future relationship for economic and security purposes. The UK is currently a global leader in strong data protection standards, and protecting the privacy of individuals will continue to be a priority. The noble Baroness, Lady Ludford, referred to a lack of ambition. I do not think there is any lack of ambition on the part of the Government in this area. The Data Protection Act 2018 strengthened UK standards in line with the EU GDPR and law enforcement directive, providing a unique starting point for these discussions. The UK is ready to begin the adequacy assessment process and we are pleased that the EU has committed, in the political declaration, to the Commission beginning its assessment of the UK as soon as possible after our withdrawal, endeavouring to adopt adequacy decisions by the end of December 2020.
Before I try to answer some of the questions posed, I hope it will be helpful to touch briefly on some of the preparation that has been going on in government for the last two years for this eventuality. The Government established a data adequacy negotiation hub which sits within the Department for Digital, Culture, Media and Sport. It was set up early in 2018 and includes experienced experts in both data protection and negotiation. They are ready and waiting and keen to start negotiations with the Commission now.
This amendment would introduce a bespoke statutory reporting requirement, as we heard, covering the assessment period. However, as we heard very eloquently from my noble friend Lord Callanan earlier, there is a need for flexibility of reporting during what will be at times, I am sure, sensitive negotiations. While the Government are absolutely clear in our responsibilities to keep Parliament updated on that progress, and that obviously includes your Lordships’ House, we do not believe that such a rigid regime is appropriate. Obviously, both Houses have an array of tools at their disposal to scrutinise the Government, including through their Select Committees: I refer to the recent report of the Lords EU Committee, which scrutinised the revised withdrawal agreement and political declaration and concluded that the provisions on data protection were to be welcomed.
In this context, we believe there is no need for further bespoke reporting requirements for data adequacy, particularly as setting these out in legislation may have unintended consequences, as was discussed earlier this afternoon. I shall now try to address some specific points, but I am very grateful to the noble Lord, Lord Stevenson, for his offer that I might write to cover some of them.
In a sense, both noble Lords asked about the spirit which would underpin our approach to moving forward in these negotiations. Our aim is to try to find the right way to safeguard privacy while both promoting trade and innovation and protecting citizens from crime and terrorism. All those things are crucial to fully realising the opportunities from the data economy.
Baroness Ludford
I am sorry to interrupt the Minister, but the fact is that the CJU has condemned our regime under the Investigatory Powers Act. The European Commission will have to take account of that, so to say that we and the EU have common high standards is not entirely borne out by the facts. The CJU has criticised, in a full judgment, the Investigatory Powers Act. How will we cope with that in the search for data adequacy?
Baroness Barran
As the noble Baroness understands very well, the adequacy discussions will be broader than strictly personal data and data protection, and will cover these issues. It will be our role to explain to and convince the EU of that, which we are confident we can do.
Similarly in relation to immigration data, which the noble Baroness raised, we believe that there are some misunderstandings about how this provision works. Rather than going into that detail tonight, I can write to her on this. However, we are confident that the provisions included in the Act are fully compatible with EU law, although clearly we recognise that they will be closely scrutinised.
The noble Lord, Lord Stevenson, asked about the independence of the Information Commissioner’s Office. We believe that the ICO is a strong, independent and effective regulator and that its relationship with DCMS upholds that independence. We really do not have concerns that this will be an issue in relation to adequacy.
The noble Baroness referred to the opinion received today from the Advocate-General of the EU; as she said, the opinion is non-binding and the impact will happen only when we have the court’s judgment, although I note her comments on the probability of that. Since the opinion was published only a few hours ago, my officials are currently digesting it, so noble Lords will understand that our ability to comment on these proceedings is limited.
The noble Lord, Lord Stevenson, asked about recitals in the future UK GDPR which still include the EU terminology. Recitals are non-binding in both EU GDPR and future UK GDPR. They are there only as an aid to interpretation and we do not believe that the references to the EU will be confusing.
The noble Baroness, Lady Ludford, referred to the Schengen Information System. I understand that the House will discuss the UK’s access to several EU law enforcement databases on the next amendment. If she will permit it, I think it would be easier to return to that question then.
Both noble Lords asked what will happen if an adequacy decision has not been granted at the end of the implementation period. Obviously both sides have committed clearly, and it is an absolute priority, to make this work, but in the event that an agreement is not reached, the Government have already done a huge amount around no deal, working proactively to communicate companies’ responsibilities in this area—particularly in relation to smaller companies, which we know might find this more challenging. The Information Commissioner’s Office produced a portal to support organisations preparing the standard contractual clauses referred to by the noble Lord, Lord Stevenson.
I fear that time may not permit me to answer any more questions but I will endeavour to write and cover all the important points made. I hope that I have managed to reassure the noble Lord that, once adequacy discussions are under way, both Houses will continue to use all the available scrutiny tools at their disposal to ensure that they are absolutely appropriately informed on the Government’s data adequacy progress and policy. I hope that he will feel able to withdraw his amendment.
Lord Stevenson of Balmacara
Before the Minister sits down, I hope that she can respond to one section of what I was asking about, on the interaction between existing responses to the data adequacy question and the new legislation that the department is working on. Does she feel that the new legislation as previously conceived—and, indeed, as set out in her party’s manifesto—is being progressed and that there is no adverse fallout from that?
Lord Stevenson of Balmacara
My Lords, I thank the noble Lords who have contributed to this short but good debate. It was a robust response. I thank the Minister for the various points that she was able to cover and I look forward to her letter.
I did not raise it, but sitting a bit behind those on the Benches opposite is the question of why such a mess was made on the age-verification issues relating to children’s safety online. In a sense, that is why I asked about future policy in relation to where we were. This is a moving target. I do not want to be critical about this in any sense because it is right that we keep things moving and do not stick on where we were, in some sort of pre-Brexit mode. We must move forward. Life is changing, attitudes are changing and technology is moving forward at a huge pace.
We must be ready to anticipate that but it must not be at the expense of some hard-won decisions that were reached after a lot of debate. They were good decisions in relation to the Bill; both the Home Office and DCMS were heavily involved in them and I am sure that they are joined at the hip over this wonderfully named data adequacy hub. I wish it well in its future negotiations; I am sure that it is raring to go and that it will be very successful.
That leaves us with a bit of an information gap. Yes, the existing arrangements for getting information can be used, but they are never as efficient or effective as the Opposition want and are probably too frequent and difficult for the Government to respond to. How much better if we had a plan where we could say, “Every two months, you’re going to stand up and say something about it.” Perhaps we can make this work but I hope that this important issue is kept very much at the forefront of the department’s work, that there is an all-government response to this because it applies across the piece, and that we see something positive come from it. With that, I beg leave to withdraw the amendment.
Brexit: Withdrawal Agreement and Political Declaration
Baroness Barran Excerpts(5 years, 3 months ago)
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Lord Stephen (LD)
My Lords, democracy did not start and finish on 23 June 2016. For those who say we must at all costs respect the result of the referendum, does that mean that whatever the deal, whatever Prime Minister Theresa May or some other Prime Minister might come up with, we have to go through with it, however unpopular that agreement is to both the remainers and those who support Brexit—and, indeed, however misleading, manipulative and incorrect the claims of the leave campaign? Does it mean that one referendum binds us for evermore on an issue? Do we not have a parliamentary, representative democracy? Do our MPs not count? This Government, in this 21st-century UK democracy, say that only one vote counted—in June 2016. A new referendum on a new issue—the acceptability of the EU deal currently offered by the Government—is now said to be anti-democratic and a betrayal as it does not respect the decision taken in the summer of 2016.
I am a Liberal Democrat, and it has to be said that we often encourage referendums. But I tell your Lordships this: I do not have any great enthusiasm for referendums. I never have had. That has been emphasised by my position as a Scottish Liberal Democrat. Generally, I would support them only to give authority—the authority of the people of this country—to a major constitutional change that the Government of the day want to implement. I do not much like them being used to test the waters when a Government or party are unclear or divided. I do not like their consequences when the result is desperately close: 51.9% to 48.1% is desperately close and has left a nation very divided. With the Scottish referendum on independence, 55.3% versus 44.7% felt very divisive and very close.
In the current circumstances, a second referendum, a people’s vote, a new referendum on a different question on the detail of the deal, is entirely legitimate. Remember that Theresa May was once a campaigner to remain. On 25 April 2016 she said:
“In essence, the question the country has to answer … whether to Leave or Remain—is about how we maximise Britain’s security, prosperity and influence in the world, and how we maximise our sovereignty: that is, the control we have over our own affairs in future”.
She went on to answer her question by saying that the case for remaining was the stronger. She referred in her speech to how Europe stumbled towards war in the last century. She talked about a hard-headed analysis and confirmed that, on security, trade and the economy, we should stay in the EU. So before she lapsed into the language and rhetoric of “Brexit means Brexit” and “no deal is better than a bad deal”, she was very clear that our “destiny”—again I use her word, not mine—was better inside the EU. Those are strong words, and very different words from those we hear today.
What happens next? There are no strict rules on any of this, and certainly no written rules. It seems that the UK desperately needs those written rules now more than ever, but there is no written constitution in this country. So where from here? I still hold the memories and bear some of the scars of the Scottish referendum. As I mentioned, it was never the outpouring of democracy that some, especially in the SNP, like to suggest. It was divisive and damaging.
If it had gone the other way, I say this: I am totally convinced that some of the unionists opposite me today, who—whether as Brexiteers or government supporters—strongly oppose a new referendum on the EU issue, if there had a been a yes vote on independence would have been strongly supporting a second referendum on the detail of that independence vote, to try to keep Scotland inside the UK, highlighting the divisive, damaging consequences of a disastrous deal. Such is politics in times of turmoil.
What Theresa May could have done before Christmas, when she realised she was going to be defeated in Parliament, was surely call a second vote, a new referendum. A win-win situation for her, you would have thought. Either the Prime Minister would get the backing for her deal from the people of Great Britain, or we remain in the EU—the position which she supported and perhaps somewhere deep down still does support. Her alternative is ploughing on. Is that better? Why does she do it? Is it better for the Conservative Party? Is it better for the Government? Is it better for the people of this country, better for our future? We shall see—but I see no sign of it being better.
“Accept the deal”, she says. And if we do not trust her—and it seems clear that we do not, either in this place or in the other place—we are no longer at the kicking the can down the road stage of all this, are we? It seems that we go closer and closer to the edge of the cliff and, unless Parliament intervenes, we might all together go over the edge of that cliff. This is high-noon, high-wire madness. It is not good government, it is a derogation of duty. It is done because the Prime Minister has lost sight of her duty to act in the best interests of the nation, and instead is desperately trying to hold together something, I know not what: her Ministers, her party, maybe in her own mind our country. Already over 100 of her MPs believe that she is not the best person to lead her own party, far less our country. It is highly possible that with a new referendum she would win support—
Baroness Barran (Con)
To echo my noble friend, I would respectfully ask that noble Lords look at the clock and respect the six-minute speaking time.
Lord Stephen
I will draw my remarks to a close. I do not believe that a new referendum, whatever the question, would support a hard Brexit—so the result would either be the Prime Minister’s deal, or remain, which the Prime Minister campaigned for. Would that be such a terrible result for her and for this country? Should we not build consensus in this country for a way forward that unites, not frightens and divides?
Brexit: Withdrawal Agreement and Political Declaration
Baroness Barran Excerpts(5 years, 3 months ago)
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Lord Watson of Invergowrie (Lab)
My Lords, despite the many hours spent discussing this country’s exit from the European Union in your Lordships’ House, I have not dipped my toe in the water. I used my Front-Bench role as a shield, thinking I could get through the entire debate without participating. However, a particularly surreal interview on the “Today” programme on Monday involving Iain Duncan Smith claiming—preposterously—that not a single job would be lost in this country after we leave the EU, finally propelled me into the fray.
Education is my subject so I will say a few words on that first. It is important to highlight Brexit’s collateral damage to universities and colleges, the loss of EU-funded research and the reduction in student applications from the rest of the EU. UK students need to know whether they will still have access to things like the excellent Erasmus scheme which, since 1987, has allowed more than 200,000 students to study in Europe as part of their UK degree. What fees will EU students be charged? Who can say? How can universities plan in the face of such uncertainty?
I think there is a sinister agenda at play in this whole debate, which has not been highlighted to a great extent in the debates in your Lordships’ House. It is the sort of free-trade deal held up as the Brexit prize of the hard Brexiters, which is contained in a blueprint published by the right-wing think tank, the Institute of Economic Affairs. It is called “Plan A+”—itself a sinister term. The priority areas for removing “anti-competitive” EU regulations highlighted in Plan A+ include GDPR data protection rules introduced by the EU to ensure privacy. It is also believed that services and government procurement should be opened to international competition, with protections designed to prevent workers being exploited or undercut by cheap migrant labour removed. The same goes for environmental protections, food standards and the precautionary principle that the EU favours when assessing risk. That is before we even look at the Plan A+ plans for financial services after Brexit, which they seek to fully deregulate. Let us not forget it was deregulation of the financial sector that enabled the 2008 financial crash.
This agenda will be familiar to anyone who has read Naomi Klein’s seminal book No is Not Enough, which is a chilling volume. She wrote of what she called the “shock doctrine”: the exploitation of a crisis to push through highly controversial policies while everyone is too distracted to fight them off. The plans for ultra-free trade, advocated by many Brexiters, look very much like shock doctrine and we should be aware of what they will mean for the UK as a stand-alone player on the global stage. What chance will we have to resist the predations of Trump’s USA?
That is the world we are facing. The USA was never the bedrock of liberal values but none the less it was a major player in the post-World War II social democratic consensus. It has now gone rogue under a president who is openly and unashamedly racist and misogynistic and sees Vladimir Putin as more of an ally than the European Union. What unites Trump and his allies? They can be classified as anyone unwilling to stand up to him, including politicians in this country among whom Boris Johnson, David Davis, Liam Fox and Mr Rees-Mogg can be counted. They are the real hardliners who believe that leaving the EU is of absolute overriding importance, even without a deal.
What unites these people and their backers—apart, I suspect, from the dream of a return to the days of Empire—is an antipathy towards the EU’s ability to rein in their power and that of their backers. The EU is the target because it signs up to climate agreements, is prepared to legislate for a financial transaction tax, chases down corporate tax dodgers and challenges tech giants and hedge funds. Who will do that after we leave? That is not what people voted for, or even realised they were being asked to vote for, in the referendum.
That is why I am dismayed to see some of my party colleagues in your Lordships’ House as well as in the other place, and indeed not a few trade unionists, argue in favour of leaving the EU, claiming it will benefit this country. It cannot and will not, and it will certainly not benefit many of the people who have traditionally voted Labour. As my parliamentary colleague Chris Matheson MP argued powerfully this week, there is simply no left-wing justification for Brexit. Those who believe differently have short memories, which do not go back to the years of Margaret Thatcher when it was often only EU law that prevented greater attacks on environmental and workplace protections.
After 29 March, the Brexit extremists will no longer have the restraining influence of the EU to hold them back. Those extremists will not sit back after that; they will congratulate themselves on a job well done, but will see it as just the first step. They regard tearing us out of the EU and all of its institutions of solidarity and co-operation as merely the first step. They will not be satisfied, they will never be satisfied and they will no longer have the restraining influence of the EU.
But the looming economic slump seems to be of no concern to Brexiters, for whom no deal is regarded as acceptable, even—laughably—being described as “manageable”. If there is any fantasy in this whole sorry episode, that best encapsulates it, surely. My noble friend Lady Smith admirably set out the case for ensuring that no deal must not be allowed to happen and she was warmly supported by the noble and learned Lord, Lord Hope, on behalf of the Cross-Benchers. Yet the Foreign Secretary stated recently that he believes this country will flourish and prosper under a no-deal exit. We should perhaps take some comfort from the fact that a few months ago the same man said that no deal would be a,
“mistake we would regret for generations".
Perhaps his confused state of mind should be seen as a metaphor for this apology for a Government, who have all the sense of purpose of someone stumbling around in a thick fog.
So where does this leave us? I confess I do not know and anyone who claims they do is not to be taken seriously. I do not recall Mr Johnson or Mr Gove mentioning during the referendum campaign that leaving the EU could involve putting troops on the street, stockpiling medicines to keep the NHS operating or establishing websites for people to consult when faced with food shortages, but that is where we are today. Nobody voted for this and that is why the only option—I believe this is likely to be the conclusion ultimately reached by the Prime Minister—is a return to the people. I do not like the misappropriation of the term “the people’s vote”; we had one of those in 2016.
I have reluctantly come round to the position that the knowledge that the people have today is so radically different from that presented to them by both sides in the referendum that it has become appropriate for us as politicians to say to people: “We heard what you said; a majority of you wanted us to leave the EU. We got that. We have tried to put together the best possible terms under which we can do so, but we cannot reach agreement among ourselves or with the EU, and we are now gazing into the abyss that is a no-deal exit. This is what it will mean. Do you still believe leaving the EU is the best option?” This is neither undemocratic nor a threat to democracy. There is nothing wrong with anyone echoing the words of John Maynard Keynes:
“When the facts change, I change my mind”.
That is now what we should do.
Baroness Barran (Con)
I respectfully ask your Lordships to consider those speaking later in the debate and respect the advisory speaking time of six minutes.