Youth Sport Trust Report

Baroness Chisholm of Owlpen Excerpts

Tuesday 11th October 2022 Lords Chamber

[Lord Kamall (Con)]

I think that we are all very proud of the record-breaking success of England’s Lionesses this summer. The Prime Minister and the Secretary of State were delighted to meet some of the Lionesses yesterday, who are extraordinary ambassadors for sport. However, we must not mandate which sport is played in schools or pick one over the other. We have to make sure that there is a wide variety of sports and physical activity. Some children are put off sport at an early age because they do not feel that they are good enough and there is elite sport even within school, so we have to make sure that we increase walking, cycling and other types of physical activity.

[Baroness Chisholm of Owlpen (Con)]

My Lords, primary schools have very few sports activities and the younger you start in sports, the better, particularly for integration. A lot of children find it difficult when they first go to primary school to integrate with their peers. Yet sport often brings them together and teaches them how to integrate and make friends. Will the Minister work with the Department for Education to make sure that something is done about sports in primary schools, because as far as I can see very little sport is played?

[Lord Kamall (Con)]

My department is working with the Department for Education to make sure that there is school sport and activity. On the wider point, it is important to recognise that, sometimes, sport is not just about activity and getting fit but about bringing communities together where there are divisions. There are a number of projects involving people who have been excluded from school where sport is brought into the classroom to encourage them to get better results at school. A few years ago, I went to see a project where sport was used to stop young kids being radicalised. Sport is a powerful force for bringing people together and addressing some of the problems we see in our society.

Gambling Advertising

Baroness Chisholm of Owlpen Excerpts

Tuesday 1st March 2022 Lords Chamber

[Baroness Chisholm of Owlpen (Con)]

My Lords, if a child or young person has a close friend or carer who gambles, that individual is six times more likely to be a current gambler than those without a connection. We think of gambling as an adult activity but in the UK, 55,000 children aged 11 to 16 are classified as problem gamblers. Gambling has been normalised to such an extent that young people grow up thinking that it is a harmless activity. Clearly, social media has increased the ways in which children can be exposed to gambling, but a study has shown that TV remains the most common source of exposure; and almost all the 11 to 24 year-olds taking part in that study had been exposed to gambling marketing in the previous month. We know that the problem has been exacerbated due to lockdown and the visibility of gambling on social media.

The advertising code forbids the advertising of gambling to under-18s. Almost all forms of gambling are illegal for this age group, so they should not be a targeted audience, but gambling ads are not reaching children accidentally. Advertisers and platforms have access to sophisticated screening tools and accurately target children who are gambling. These ads should not be designed to appeal to children, with an emphasis on fun, cartoons, escapism and winning. E-sports gambling adverts appear to be more appealing to children and young people than adults—the figure is forecast to exceed $1 billion this year with an audience of 500 million, most of whom are children and young people.

The Young Gamers and Gamblers Education Trust, which works with many schools and youth practitioners, has stated that all gambling advertising should be designed and displayed in a way that is appropriate for adults and avoids marketing techniques that appeal to children. Clearly, the advertisers and platforms which host adverts should use technology and data to do more to protect children. We are now seeing a new and complex way of advertising contributing to the normalisation of gambling, as well as attracting young and vulnerable people to its audience.

The Gambling Act needs to consider these new techniques and be able to protect the young and vulnerable from the adverse effects of this new style of advertising. There needs to be far better education and awareness for parents and children, and a better use of age-screening tools. This problem is not going away and arguably, it is a public health issue with serious implications for mental health.

Social Media

Baroness Chisholm of Owlpen Excerpts

Thursday 11th July 2019 Lords Chamber

[Baroness Chisholm of Owlpen (Con)]

I thank the right reverend Prelate for initiating this debate. I read with interest the Church of England’s first ever social media guidelines, which encourage positive engagement across social media accounts run by the Church of England; encourage others to sign up to a voluntary digital charter and to foster a more positive atmosphere online; and hope for people of other faiths or none to use the principles of truth, kindness, welcome, inspiration and togetherness when they use social media. Of course, we all want to live in a world of tolerance, both on and offline, and should strive to do so, but that must not stop us engaging to prevent real social injustices. As the right reverend Prelate mentioned, debates should be vigorous and fearless. Human rights violations and so on need to be challenged. We must not hold back for fear of appearing intolerant.

As in the offline world, there is an important place online for rigorous debate and disagreement. There are already strong laws in place, and we should be mindful that if those laws have not been broken, yet material deemed offensive is removed, it does not then become a form of censorship.

I sit on the Communications Committee, and a recently published report from that committee, Regulating in a Digital World, was debated in this Chamber a couple of weeks ago. The committee took the view that a principle-based approach was the best way forward, and we came up with 10 principles. I shall not list them all now—noble Lords can read them in the report, but please, do not all rush now to get your copy. Two of these principles—parity and education awareness-raising—fit well with what the Church of England is seeking to achieve.

The continual mantra is that there should be equivalent outcomes online and offline. We should all be mindful of our behaviour in the digital world. The focus should be on behaviour. We all have responsibilities in how we behave towards one another. It rests with society to come together to stand up for our common principles, whether face to face or in the digital world. Self-regulation is clearly not enough to right the wrongs. I look forward to the Minister enlightening us on the department’s plans for further regulation; there is no doubt that society needs to step up to the challenge and show that it will not tolerate irresponsible online behaviour.

As we all know, more often than not good behaviour needs to be taught, and therefore learned. That is where education comes in. It is vital that we start educating children about social media. Digital literacy should be the fourth pillar of a child’s education, alongside reading, writing and mathematics. Children require guidance to report and not share inappropriate behaviour, as they are encouraged to do in day-to-day life, in the home or the playground. Parents and those safeguarding children have a vital role to play in educating children about online behaviours, but parents require the tools to do this. Many parents lack the knowledge and confidence, so there is a requirement for more guidance that is easily accessible and clear, allowing parents to help their children to live responsibly when using social media.

All of us have a role to play in how we act online; to set an example of right and wrong; to advise, teach and support those who get it wrong; and to implement the law where it is broken. The most reverend Primate the Archbishop of York made a good point at the launch, which the right reverend Prelate the Bishop of St Albans also mentioned: sometimes it is good to just stop and think. The most reverend Primate said that it is perhaps about stopping, counting to 10 and asking whether a spiteful statement on social media will change a situation for the better. We can all reflect on that, and would it not be a good start if some—no names mentioned—counted to 10 forwards, then stopped and counted to 10 backwards, before tweeting at all times of the day and night?

Public Service Broadcasters

Baroness Chisholm of Owlpen Excerpts

Thursday 28th March 2019 Lords Chamber

[Lord Ashton of Hyde]

My Lords, I agree with the noble Lord that we should have nimble and agile PSBs and therefore a regulatory system that is capable of dealing with that. The analogy he draws is not quite correct. Netflix can change its platform overnight because it has to consider only Netflix, whereas Ofcom has to consider the whole regulatory landscape. It is therefore important that it takes into account what effect it has if the BBC changes something such as the iPlayer. I take the point he makes about being nimble and agile and moving with the times. The chief executive of Ofcom made that point exactly when she said that it needed to be,

“a forward-looking regulator that supports the future success of UK TV, firmly rooted in the online world”.

[Baroness Chisholm of Owlpen (Con)]

My Lords, collaboration obviously brings opportunities, but will my noble friend comment on the importance of ensuring, and indeed what is being done to ensure, that PSBs carry on making programmes that the UK viewer wants to watch—as opposed, perhaps, to what the American viewer wants to watch?

[Lord Ashton of Hyde]

My noble friend is absolutely right. This is one problem with US subscription services. They spend a huge amount on content. Netflix spent £4.6 billion on content in 2017 and Amazon spent £3.4 billion, but only £150 million of that was UK-made TV, whereas the public service broadcasters spent £2.6 billion on UK content.

Florence Nightingale: Bicentenary

Baroness Chisholm of Owlpen Excerpts

Monday 28th January 2019 Lords Chamber

[Lord Ashton of Hyde]

My Lords, I agree with the noble Lord that this is a very good opportunity to support nursing both in this country and abroad. I pay tribute to those in the nursing profession; those of us who have had care from nurses will understand what I mean.

As I said, the NHS is celebrating the year of the nurse in 2020 and will be organising a number of activities, culminating in an international conference organised by the Florence Nightingale Foundation in October 2020. As far as Nursing Now abroad is concerned, I know the noble Lord is meeting the DfID Minister on 5 February to ask for more practical support. I can confirm that we support the aims of the Nursing Now campaign and its promoting the importance of health workers to achieve the goal of universal health coverage.

[Baroness Chisholm of Owlpen (Con)]

My Lords, Florence Nightingale was ahead of her time in realising the importance of data and statistics—in her day I think it was called information and relevant points. Does the Minister realise that today is Data Privacy Day, and that my Private Member’s Bill, the Health and Social Care (National Data Guardian) Bill, has received Royal Assent? Does he agree that this is a very good sign for the health service going forward?

[Lord Ashton of Hyde]

My Lords, as the DCMS Minister, I am aware of course that it is Data Privacy Day. Council of Europe Convention 108 is the only binding international instrument which is signed by 54 states, including Russia. Data Privacy Day celebrates the anniversary of its signing in 1981 and I agree with my noble friend that it is an important day. She is right that Florence Nightingale was an important statistician, and she was the first female member of the Royal Statistical Society in 1858. The national data guardian legislation that my noble friend took through the House as a Private Member’s Bill is excellent because it promotes trust in health data so that we can gain the maximum benefit from it.

Museums and Galleries

Baroness Chisholm of Owlpen Excerpts

Tuesday 23rd January 2018 Lords Chamber

[Lord Hunt of Chesterton (Lab)]

My Lords, before the noble Lord sits down, would he like to mention engineering? It is very important and has hardly been mentioned.

[Baroness Chisholm of Owlpen (Con)]

Sorry, this is a timed debate so we have only a very short time.

--- Later in debate ---

[Lord Patten (Con)]

My Lords—

[Baroness Chisholm of Owlpen]

My Lords, this is a time-limited debate. The Minister has 12 minutes to answer. I am really sorry.

[Lord Ashton of Hyde]

The partnership framework will help better co-operation around how the national museums work with the wider sector. National and regional museums already work in partnership on many galleries and projects, for example, loans of objects such as the V&A lending the Great Bed of Ware to Ware Museum or the British Museum’s partnership with galleries all over the UK with long-term loans for permanent galleries. This goes both ways. The Science Museum in London recently benefited from the loan of the beautiful Silver Swan automaton from the Bowes Museum. I am sure the noble Lord, Lord Rees, approves of that.

These steps highlight a key finding that money is not the only answer. Museums have a responsibility to be creative and innovative, to look at their communities and think hard about their place in them and what they have to contribute and to make themselves relevant in a changing, increasingly online, world and places where people want to spend time and experience the collections.

I now turn to some of the points raised by noble Lords. The noble Lord, Lord Rees of Ludlow, talked about science museums. I thank him for that and for paying tribute to the fantastic work of the Science Museum Group. I could not agree more, and I am delighted that the new Minister for the Arts, Heritage and Tourism, Michael Ellis, will be visiting the National Railway Museum in York later this week to see first hand the planned redevelopment.

The noble Lord, Lord Monks—flattery will get him everywhere, of course—and the noble Lord, Lord Griffiths, mentioned the People’s History Museum. I agree with them on the benefits and interest in the People’s History Museum. It is a marvellous museum. The noble Lord talked about it losing funding. It used to receive £150,000 a year from DCMS in direct grant in aid funding, which was removed, but it successfully applied to become an Arts Council national portfolio organisation and will receive just over double what it previously received annually. However, I concur with the noble Lord’s recommendation to visit that museum.

My noble friend Lord Eccles made some interesting points, particularly about DCMS. We will support museums as they rethink their place in today’s society. The action plan will help put a funding framework around priorities such as how museums work with audiences and help shape places. The Government fund national museums at arm’s length and regional museums through the Arts Council. This means that museums are fiercely and gladly independent, curatorially and operationally. We think it is a major strength of the sector and do not wish to interfere in museums’ practice.

The noble Lord, Lord Clement-Jones, asked about the operational freedoms pilot. This was set out in a strategic review of government-sponsored museums. We will seek to evaluate the operational freedoms pilot three years after they become permanent in 2018—this year—and will set out our evaluation plans in due course.

The noble Lord, Lord Rees, talked about London-centric national museums. There are 24 branches of national museums outside London, and in 2016-17 the national collection was lent out to more than 1,300 UK venues. We absolutely take his point, but we are working hard to move the benefits of the national museums to a wider audience around the country.

My noble friend Lord Cormack mentioned business rates, which of course are a real problem. The Government are working to revitalise the business rates system, and the Ministry of Housing, Communities and Local Government is currently consulting on the fair funding review. We are aware that the sector has some concerns about how the business rates system affects museums. Many museums are charities and enjoy 80% mandatory rates relief. The York Museums Trust Upper Tribunal decision in 2017 was a milestone, and we are working with the Treasury and the VOA to understand the decision and its long-term impact.

The noble Earl, Lord Clancarty, talked about ivory sales. The proposals on those include specific exemptions for sales to and between museums. Defra does not intend the proposed ban to impact on the display of items by museums or to prevent museum-to-museum loans where currently allowed.

The noble Viscount, Lord Falkland, reminisced that there was not much going on west of Bristol when he was a bit younger. I can assure the noble Viscount that there is now plenty of culture to be had in the south-west of England: Tate St Ives reopened in autumn 2017; the Mary Rose in Portsmouth is a fantastic attraction; and the 70-strong Cornwall Museums Partnership, working with its local enterprise partnership, goes from strength to strength. I urge him to revisit his youth and capture his Inverness enthusiasm in the south-west.

The noble Baroness, Lady Grender, and the noble Viscount talked about school visits and young people. The curriculum fund will support leading cultural and scientific institutions in bringing high-quality materials from our rich cultural and scientific heritage directly into the classroom. It is worth £7.7 million, and the DCMS is working with the Department for Education to engage the relevant stakeholders.

I conclude by talking about national museums working with regional museums. As I mentioned, the national collection was lent out more than 1,300 times, and ACE has provided £3.6 million to regional museums to help them improve their galleries to protect and display borrowed items through the ready to borrow scheme.

The nation’s museums represent a successful, resourceful and creative sector. The Government are focusing on how we can support an environment in which museums can flourish on their own terms, and the steps I have outlined will help to do that. My time is up, and I will write to those noble Lords whose questions I have not yet managed to answer, with apologies.

Data Protection Bill [HL]

Baroness Chisholm of Owlpen Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th December 2017 Lords Chamber

[Lord Clement-Jones]

My Lords, I am inspired by the last two speeches to add some words here. This is a very imaginative amendment. There is a great debate about ownership or control of one’s personal data, and this may be an elegant solution to some of that in future, although I suspect that the noble Lord, Lord Stevenson, may be right in his prediction about the Government’s response at this stage. Again, it is a bit of future-proofing that we really should think about.

If the Government do not like this, how do they think portability will work? If portability is to be a substantive right that can be taken advantage of under the GDPR, this is a very good way to make sure that data can then be inserted into a vehicle as a result of it having been sought in a portable way. This could be a very imaginative way to give teeth to the right of portability. I shall be extremely interested to hear how, otherwise, the Government think it will take effect.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I thank the noble Lord, Lord Stevenson, for explaining the amendment, and the noble Earl, Lord Erroll, the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, for their words. The amendment is fascinating. When I talked to the noble Lord, Lord Stevenson, about it earlier today, I thought that it just shows how interesting it is, how fast everything is moving in this world and how difficult it will be for us to keep up. I feel rather relieved that I may not be around to have to grapple with it myself and that there will be younger people better at dealing with it than I am.

The amendment would require the Information Commissioner to consult on the use of private personal data accounts, which provide for people to retain greater ownership of their data. While I recognise the intention behind this amendment—to stimulate debate and a shift in public attitudes towards personal data and its value—this is not the appropriate means through which to pursue these aims.

By way of explanation, I have three quick points to make. First, I question the value of the Information Commissioner consulting on the use of private data accounts, which are already available to those members of the public who wish to use them. Importantly, the priority for the commissioner at the moment and for the foreseeable future is helping companies and organisations of all sizes to implement the new law to ensure that the UK has the comprehensive data protection regime we need in place, and to help prepare the UK for our exit from the EU. I hardly need to point out that these are massive tasks, and we must not divert the commissioner’s resources from them at this point.

Secondly, it is a question not only of resource, but of remit. It is right that the commissioner monitors and advises on developments in the use and storage of personal data, but it is not her role to advise on broader issues in society. The question of whether individuals should have ownership of their personal data and be remunerated by companies for its use falls squarely into that category. The commissioner is first and foremost a regulatory body.

Thirdly, I take this opportunity to highlight that there are already mechanisms in the new regime which will support individuals to have more control over their data and place additional requirements on data subjects. For example, data controllers will be required, when obtaining personal data from an individual, to inform that person of: the purposes for which their personal data are being processed; the period for which their data will be stored, to the extent that this possible; their right, where applicable, to withdraw consent for their data to be used; and their right to lodge a complaint with the supervisory authority. Obviously, that is not an exhaustive list but it is illustrative of the protections that will be put in place. Such information must also be updated if the controller intends to process the personal data for any new purpose.

I fully agree with the noble Lord that the questions of an individual’s control over their data and the value of that data are worthy of debate and, as I said earlier, we will have to wrestle with them for years to come as the digital economy evolves. However, the Government’s view is that the Bill strikes the right balance between protecting the rights of data subjects and facilitating growth and innovation in the digital economy, and that placing an arbitrary requirement on the commissioner to consult would not be appropriate or the best use of her resources at this point. On that basis, I urge the noble Lord to withdraw his amendment.

[Lord Stevenson of Balmacara]

I thank all noble Lords who have spoken in this short debate, particularly the noble Earl, Lord Erroll, for the idea about agency, which is an important construct that we will need to keep an eye on. He is quite right about that. I thank the noble Baroness, Lady Kidron, for reminding me, correctly, that I had got a lot of information from the IEEE, whose work on this I have praised before. I reiterate that: it has done a great job in trying to think through some of the bigger issues involved in this area. I also take this opportunity to acknowledge the debt I owe an organisation called HATDeX, which has been working in this area and from which I got the original idea of a private personal data account.

I agree with the noble Lord, Lord Clement-Jones, that this is something that will come back to haunt us. Obviously, as long as the Minister is there with her beaming smile, we will be able to resist all blandishments to come at it, but I think it will come and bite us. It was not an arbitrary thought of mine that it might be something that the ICO would want to look at it. I know from talking to the ICO that it is interested in this as well. I think the Minister is saying that the proposal, as it is, stands outside the Bill framework, but that is because the Bill focuses on a particular area, and perhaps that is a pity. But if it is not the ICO, who is it? I hope it will be the data ethics commissioner that we hope to establish in the future. I beg leave to withdraw the amendment.

Data Protection Bill [HL]

Baroness Chisholm of Owlpen Excerpts

Report: 1st sitting: House of Lords
Monday 11th December 2017 Lords Chamber

Moved by

[Baroness Chisholm of Owlpen]

3: Clause 6, page 4, leave out line 34

[Baroness Chisholm of Owlpen (Con)]

My Lords, I am pleased to be moving the Government’s technical amendments this evening, and, in particular, Amendments 3, 4 and 5 which respond to the concerns raised by the noble Baroness, Lady Royall, and others on behalf of the UK’s universities, schools and colleges. They were worried that the Bill would restrict their ability to process the data of alumni for fundraising purposes. As the noble Baroness explained in Committee, universities, schools and colleges were concerned that being badged as public authorities by Clause 6 would mean they could not rely on the legitimate interests processing condition in article 6(1)(f). This is because the final sentence of article 6(1) states:

“Point (f) … shall not apply to processing carried out by public authorities in the performance of their tasks”.


Universities also doubted whether, in the context of alumni relations, they could rely on article 6(1)(e) of the GDPR, which relates to processing necessary for the performance of a task carried out in the public interest. Although there is a good argument that any fundraising or similar activity which allows universities to improve facilities for students would be considered a “public interest” task, the Government can see why universities might doubt whether all their fundraising work would fall into that category. If universities could not rely on article 6(1)(e) or (f), they say they would be left without an obvious processing condition in situations where obtaining the data subject’s consent, at least in the GDPR sense of that term, was not a realistic option.

Government Amendments 3, 4 and 5 address these concerns by making it clear that public authorities will be treated as public authorities for data protection purposes only when they are carrying out their public tasks. To the extent that they carry out non-public tasks, they would not be defined as a public authority for the purposes of the GDPR and would not be prevented from relying on the legitimate interests processing condition.

We recognise that the amendment does not refer to universities, schools or colleges by name. This is deliberate, meaning that any public authority which is processing data for non-public functions will be able to rely on this provision. The education sector is not the only one to have these worries. I know, for example, that our museums and galleries would welcome the same degree of flexibility, and this amendment will ensure they have it. I am grateful to the noble Baroness for raising this matter and I hope these amendments will provide universities and other similar organisations with the reassurance they need.

I will not go through the remaining amendments in the group one by one, but instead pick out a few which I think may be of broader interest—for example, Amendments 145 and 146. In Committee, my noble friend Lord Hunt of Wirral was among those to express concerns about the inclusion of the term “other adverse effects” in the definition of damage in Clause 159. He asked whether this was broader than the definition in the GDPR. As I set out then, the Government’s intention in including a definition of damage in Clause 159 was to provide clarity, specifically in relation to the inclusion of distress. Clause 159 does not seek to provide a wider definition of damage than is currently provided in the GDPR; nor indeed could it.

None the less, in light of the concerns expressed by my noble friend, the Government have reconsidered this issue and decided to amend the definition to ensure that it is as clear as possible and to minimise the risk of any uncertainty such as that which concerned noble Lords. The amended definition now simply states that the reference to “non-material damage” in the GDPR includes distress. The definition of damage for the purposes of the law enforcement and intelligence services regimes is set out separately in Clause 160. Amendment 146 makes a similar change to that definition so that it is as clear as possible and no longer refers to “other adverse effects”. I beg to move.

[Lord Patel (CB)]

My Lords, I will comment on Amendments 3, 4 and 5. The Minister and the noble Baroness may well feel that I do not give up, and I agree: I do not. I of course understand clearly what the Government are trying to do with the amendment from the noble Baroness, Lady Royall of Blaisdon—that they have agreed to get that into the Bill. It is helpful to know that public bodies need to be defined as such when they are processing data for tasks that are not defined as tasks in the public interest. This opens up the possibility of their instead using legitimate interests as a legal basis under some circumstances: for example, as has already been mentioned, for universities contacting alumni for fundraising purposes.

My point is different: universities and their research activities and how that is recognised, which we discussed. Here, it is more pressing to be clear on what counts as a task in the public interest, since public bodies will need to determine which legal basis is appropriate to the processing they are undertaking in different circumstances. For example, is research conducted in universities a task in the public interest, in which case the university would be considered as a public body for the purposes of the Bill, or is it not? In the latter case the university is not a public body for research purposes, and the research is therefore conducted on the legal basis of legitimate interest.

These differences matter, particularly as the GDPR requires data controllers to be clear on the legal basis they are using. How are public bodies such as universities to make this determination? The clearest answer would be, as I indicated in Committee, that the ICO gives guidance. I understand that the Government cannot direct the ICO to give guidance, so a way needs to be found to clarify which tasks fall under the public interest basis, specifically using the example of university research to provide that clarity. I would be grateful if the Minister commented on that.

--- Later in debate ---

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I thank the noble Baroness, Lady Chisholm of Owlpen, for her explanation of the government amendments in this group, which are largely in response to issues raised in Committee. I do not intend to speak for long on this group, because the amendments are largely to be welcomed. I want to pay particular tribute to my noble friend Lady Royall of Blaisdon, who raised the concern of the university sector during Committee that, under the Bill, universities could find themselves in difficulty over fundraising activities with alumni. We were pleased to see today that the Government have listened and addressed that. My noble friend cannot be with us today because of the weather making it difficult for her to travel to London. Generally, the higher education sector and others are grateful for what is proposed, although a couple of noble Lords have raised particular concerns, so it would be useful if the Minister could address those in her response. There may be one area that has not quite been resolved.

There are a couple of issues to mention. We are happy to support the amendment on police sharing of information for law enforcement purposes, as I am the amendment in respect of the Prisoner Ombudsman for Northern Ireland and the technical amendments on tribunals and courts to ensure consistency of language.

I shall not go on any further, because I am conscious that we have two Statements today and one will take at least an hour and the other 40 minutes, and the dinner break business for an hour, which will eat in to our time for Report today. I shall leave it here and say well done to the Government: thank you very much for that. It is better that we spend our day looking at issues that we have not quite resolved.

[Baroness Chisholm of Owlpen]

My Lords, I thank all noble Lords for the points they made. In answer to the noble Lord, Lord Patel, as my noble friend Lord Ashton explained in previous debates, Clause 7 was never intended to provide an exhaustive list of public interest tasks but, rather, to ensure continuity with respect to those processing activities that cover paragraph 5 of Schedule 2 to the 1968 Act. However, I am happy to reiterate that medical research—and other types of research carried out by universities for the benefit of society—will almost always be seen as a public interest task. I appreciate the sector’s desire to have greater guidance from the Information Commissioner on the issue, and I shall certainly pass that on, but the noble Lord will appreciate that it is not for me to dictate the Information Commissioner’s precise programme of work from the Dispatch Box.

I thank the noble Lords, Lord Smith and Lord Macdonald, for their kind words. I think we have put universities on a safe footing in this regard. I reiterate my thanks to them for coming to see us and helping us with that amendment.

The noble Lord, Lord Clement-Jones, asked: is alumni fundraising always in the public interest, and what about medical research?

[Lord Clement-Jones]

No, can it sometimes be in the public interest?

[Baroness Chisholm of Owlpen]

I think that gets more rather than less muddling, but I think I see where the noble Lord is coming from.

The amendment should relate to and rely either on article 6(1)(e) or (f). That should solve any possibility raised by the noble Lord.

Amendment 3 agreed.

Moved by

[Baroness Chisholm of Owlpen]

4: Clause 6, page 4, line 36, leave out “, subject to subsection (2)”

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

6: Clause 7, page 5, line 11, after “enactment” insert “or rule of law”

Amendment 6 agreed.

[Baroness Chisholm of Owlpen]

My Lords, as it is 4.25 pm and the Statement is due sometime after 4.30 pm, it would be unwise to start on another amendment now, particularly a very long amendment, so I need to adjourn the House during pleasure for four minutes until 4.30 pm.

Data Protection Bill [HL]

Baroness Chisholm of Owlpen Excerpts

Report stage (Hansard - continued): House of Lords
Monday 11th December 2017 Lords Chamber

Moved by

[Baroness Chisholm of Owlpen]

9: Clause 9, page 6, line 5, leave out paragraphs (a) and (b) and insert—
“(a) amend Schedule 1 —(i) by adding or varying conditions or safeguards, and(ii) by omitting conditions or safeguards added by regulations under this section, and(b) consequentially amend this section.”

[Baroness Chisholm of Owlpen (Con)]

My Lords, before I launch myself into the detail of these many amendments, I will express our thanks and gratitude for the detailed report of the Delegated Powers and Regulatory Reform Committee. We are also grateful for the extensive and informative discussions in Committee, and we have reflected on the views expressed by all noble Lords during the debates. We have carefully and comprehensively considered each of the committee’s recommendations, and none of our decisions have been reached lightly. A theme that noble Lords have heard me express previously is the extraordinary pace of change in the digital and data economy. I am very conscious that the Bill needs to provide a framework for the constant evolutions and developments in how we use and apply data. It must support rather than stifle innovation and growth and, primarily for this reason, in some areas we have deviated from the committee’s full recommendations.

I will speak to the key points. In its report, the committee raised concerns about the Henry VIII powers in Clauses 9(6), 33(6) and 84(3), which enable the Government to make regulations to “add to, vary or omit” the processing conditions and safeguards for sensitive data set out in Schedules 1, 8 and 10 respectively. Amendments 9, 90, and 99 respond to these concerns and narrow the regulation-making powers in these clauses. Amendment 9 removes the Government’s power to omit processing conditions and safeguards in Schedule 1. Amendments 90 and 99 remove the Government’s ability to vary or omit processing conditions in Schedules 8 and 10 respectively. We reflected at length as to whether we could go further than this but, on balance, considered it necessary to maintain the powers to add new processing conditions and to vary those in Schedule 1.

Many of these powers are not new. The 1998 Act already provides a power to add to the conditions for sensitive processing. In addition, many of the provisions in Schedule 1 in respect of which these powers will apply are currently set out in secondary legislation. This means that they can currently be added to, varied or omitted through other secondary legislation. Our experience under the 1998 Act and, indeed, in Committee, has highlighted the frequency with which scenarios can arise which require new processing conditions for sensitive data. Accepting the Committee’s recommendations in full would leave the Government unable to accommodate developments in data processing and the changing requirements of certain sectors. This in turn could render the UK at a disadvantage internationally if, for example, we were unable to make appropriate future provision for sectors, including those such as insurance, where the UK is a world leader, to reflect advances and changes in their approach to data processing.

The committee also raised concerns about Clause 15 of the Bill, which enables the Government by regulation to add to, vary or repeal the exemptions from certain specified data protection principles and data subject rights set out in Schedules 2, 3 and 4. Clause 111 contains a similar power to add, vary or repeal the list of exemptions in Schedule 11. The Government listened carefully to the debate in Committee, where the noble Lords, Lord Stevenson and Lord McNally, recognised the challenge of future-proofing the legislation to take account of changing technology. The noble Lord, Lord Stevenson, further suggested that,

“the most egregious issue here is when the Government seek to omit legislation which has been passed as primary legislation by secondary legislation”.—[Official Report, 6/11/17; col. 1639.]

I am hopeful that our amendments will set the noble Lord’s mind at rest.

Government Amendments 67 and 68 will remove the Government’s power in Clause 15 to omit provisions in Schedules 2, 3, and 4. It also removes Clause 15(1)(d) in its entirety. Amendment 103 removes the corresponding power in Clause 111(2) to vary or omit the existing provisions in Schedule 11. I am aware that there are some who would like us to go further than this, but it would not be a good idea for a number of reasons. First, a number of the provisions in Schedules 2 to 4 have been added to the Bill to address specific requirements arising from the new regime and have not yet been tested in operation. Others have been carried over from secondary legislation, where they can at present be added to, varied or removed. The Government therefore consider it prudent to retain the ability to amend Schedules 2 to 4 if it proves necessary. There is also a technical issue here. Schedules 3 and 4 contain a large number of references to subordinate legislation. The power to make and amend the instruments referred to does not always include the power to make consequential amendments to primary legislation. This provides a further, technical reason to retain the power in Clause 15 to vary these provisions.

Government Amendment 71 provides that any regulations made under Clause 17 will now be subject to the affirmative rather than negative resolution procedure. In cases of urgency, there is provision for the “made affirmative” procedure to be used if accompanied by an urgency statement. There is precedent for such an approach; for example, in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Amendments 168, 169, 170 and 184 make consequential provision later in the Bill.

I turn now turn to Amendments 130, 133, 134 and 136, which respond to the Committee’s concerns that the powers in Clauses 142 and 148 were too broad and gave the Government unlimited powers to determine types of additional failure that could attract the Information Commissioner’s enforcement powers, including unlimited penalties. Clearly, this was never the Government’s intention, and these amendments make it clear that any additional failures must be failures to comply with data protection legislation. They clarify also that the regulations making provision about the penalty for an additional failure will provide for the penalty to be either the standard maximum amount or the higher maximum amount referred to in Clause 150.

Amendment 144 provides that the Information Commissioner’s guidance about regulatory action will be subject to the negative resolution procedure when first produced. Generally, the Government believe that guidance of this kind should not be subject to parliamentary procedure. However, exceptionally in this instance, and in recognition of the large and ever-growing number of organisations for which this guidance will be relevant, on reflection the Government agree with the Committee that the negative resolution procedure would be appropriate. Amendments 139, 140, 141, 142 and 143 make consequential provision to ensure that the relevant clause functions as intended.

Amendment 166 reflects the concerns raised by noble Lords in Committee that regulations made under the Bill should be subject to consultation, not only with the Information Commissioner but also with consumer organisations and others who represent data subjects. Accordingly, we are including a requirement in Clause 169 that when the Secretary of State makes regulations under the Bill, she must consult “such other persons” as she considers appropriate. This will apply to all regulations save for those listed in new subsection (2A). We have also tabled consequential Amendments 126, 131, 135 and 138 to remove the equivalent requirement from Clauses 133(1), 142(9), 148(6) and 152(3) to avoid unnecessary duplication in the light of the new general requirement in Clause 169.

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[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, this group of overwhelmingly government amendments seeks to address issues raised by the Delegated Powers and Regulatory Reform Committee in its sixth report, published on 24 October this year, the only addition being Amendments 10 and 69 in the names of the noble Lords, Lord Clement-Jones and Lord Paddick. As we have heard, the Delegated Powers and Regulatory Reform Committee is widely respected in the House and I am pleased that the government amendments address the concerns raised by the committee. But as we have heard from the noble Baroness, Lady Chisholm of Owlpen, those concerns have not been accepted in full, and she has given the reasons for that.

I was particularly pleased to see government Amendments 9, 67 and 68, among others, which would limit the powers to amend the processing conditions and exemptions found in various schedules to the Bill. I am equally pleased to see the Government act in respect of the powers to make regulations. This will be done using the affirmative rather the negative procedure, starting with government Amendment 71. It gives Parliament the right level of scrutiny and the ability to reject or express regret about a particular decision, and allows for a proper level of scrutiny, a debate having to take place in both Houses.

In respect of Clauses 9 and 15, Amendments 10 and 69 seek to change the scrutiny procedure from the affirmative, as presently in the Bill, to the super-affirmative. I am not convinced that this is necessary as we have the tools at our disposal to scrutinise the proposals using the affirmative procedure. Starting with government Amendment 130, we have a series of amendments relating to the enforcement powers of the ICO, and again these are to be welcomed.

As I say, in general I welcome the government amendments and the explanation given by the noble Baroness.

[Baroness Chisholm of Owlpen]

I thank the noble Lord for those kind words. The noble Lord, Lord Clement-Jones, asked who would be consulted. While it is clearly impossible to be specific, the Secretary of State might consider it appropriate to consult, for example, representatives of data subjects or trade bodies, depending on the circumstances and regulations in question. I hope that that answers his question.

On why it is permissible to admit provisions added by regulations, we believe it is qualitatively different from admitting those added during the extensive parliamentary debate and scrutiny afforded to primary legislation. As I said, many other powers are not new. The 1998 Act already provides a power to add to conditions for sensitive processing. We feel it is prudent to retain the ability to amend Schedules 2 to 4 if necessary. As I said, this is a fast-moving area. We want to make sure that the Bill provides a framework for the constant evolution and developments in how we use and apply data, but it must be supportive rather than stifle innovation and growth.

[Lord Clement-Jones]

With the greatest respect, the point I was making was whether the right to vary was not omission by the backdoor. Perhaps I was not clear enough.

[Baroness Chisholm of Owlpen]

No, we do not believe it is omission by the backdoor.

Amendment 9 agreed.

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[Baroness Hamwee (LD)]

My Lords, from these Benches I support the noble and learned Lord, who is absolutely the right person to pursue this matter. If I might simply add to what he said, it is important that we bear in mind that in the same way as legal professional privilege is the privilege of the client, these provisions would be for the benefit of the public, the running of good democracy, good scrutiny and holding the Government to account. It is not a personal benefit that is proposed here and I hope—I trust, because this is very important—that the Government can find a way through this. I look forward to hearing from them, as the noble and learned Lord said, early in the new year.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful to the noble and learned Lord, Lord Brown, for raising these amendments and for the words of the noble Baroness, Lady Hamwee. His amendments address concerns about the interaction of the Bill with parliamentary privilege. I agree wholeheartedly with him that parliamentary privilege should continue to be safeguarded and maintained for future generations, as it has been for centuries past. As I said in Committee, the Government’s view is that the Bill contains adequate protections to ensure that this is the case. However, we recognise the concerns that, in some areas, these protections could be enhanced and clarified, and we will bring forward amendments at Third Reading to address some of the points that the noble and learned Lord has raised in his amendments.

With that in mind, I will now turn briefly to the amendments themselves, starting with Amendments 16, 17 and 185. The Government recognise the concerns raised in these amendments about the way the conditions for processing sensitive personal data apply in respect of parliamentary proceedings, and liability under Clause 193(5). I am happy to reassure noble Lords that the Government intend to bring forward amendments to address these points at Third Reading.

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[Lord Stevenson of Balmacara (Lab)]

Before the Minister sits down, I put it to her that, in the considerations that will take place between now and the return in January, one thing that changes between 1998 and today in terms of the Act is something we have not looked at specifically, although it comes up in the Bill. It is the need to ring-fence the Information Commissioner from any involvement with Parliament or the Government. She is answerable to Parliament, but she should not be in that sense exposed to considerations that might adversely affect her. I hope that might be taken into account as well.

[Baroness Chisholm of Owlpen]

I agree with the noble Lord, and we will take that into account.

[Lord Brown of Eaton-under-Heywood]

My Lords, I am most grateful for the reassurance given to us by the Minister. On the basis that all these matters will be brought back in some shape or form at Third Reading, I beg leave to withdraw the amendment.

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[Lord Stevenson of Balmacara]

My Lords, we do not need to think very hard about this issue in terms of providing evidence that might be helpful to Ministers given that at Oral Questions today, at which I think the Minister and the noble Baroness were present, a case was raised by a Peer on our side of the House, in a Question to the DWP Minister, which verged on picking up a particular case. It was very useful in terms of making a broader political point. Are we saying that that will not be possible in future, as it raises significant questions? Secondly, as the noble Baroness, Lady Hamwee, said, irrespective of whether we have been an MP or a Member of the other House, we receive letters and emails almost daily offering individual data and information which, if we used it, would, I think, fall into the category mentioned by the noble and learned Lord.

At the weekend, I had the privilege of seeing the RSC perform the “Imperium” plays, adapted from the books of Robert Harris. These deal with a well-known orator, Cicero. Noble Lords will not be surprised to learn that he recommends to his clients—at one stage, he gives a tutorial to fellow citizens of Rome who intend to seek high office—that it is always helpful, and always catches the attention of an audience, if you give the specifics of an individual case and rise from that to the general. So if there is a possibility of placing a constraint on the ability of Members of this House to raise cases in an effort to improve the quality of life for citizens to whom we owe a duty of care and responsibility, that must be wrong. I hope that the Minister will take this away and work with the noble and learned Lord, Lord Brown, to bring something forward at Third Reading.

[Baroness Chisholm of Owlpen]

My Lords, Amendments 28 and 29 create a new processing condition for Members of this House. The Government’s view is that the provisions in paragraphs 19 and 21 of Schedule 1 are intended to reflect the unique and special nature of the relationship between an elected representative and their constituent.

Like the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Brown, I am very aware of the important and valuable work that many noble Lords carry out on behalf of members of the public, advocating for their rights, taking up their cases with government departments and representing their interests in any number of scenarios. However, this relationship between a Peer and a member of the public is of a different nature and order from that conferred on an elected representative by their constituents. Elected representatives have particular rights and duties to act on behalf of the citizens they represent. The Government therefore consider it appropriate for them to be able to deal with urgent situations where they could not reasonably be expected to obtain consent; for example, in the case of an individual facing imminent deportation. There is no such need for Peers to be exempted from the provisions on consent. I stress again that nothing in the Bill or the GDPR prevents Peers undertaking casework if they first obtain the consent of the individual concerned.

I emphasise that these provisions are not new. The position under the 1998 Act is very similar and, in answer to the point made by the noble Lord, Lord Stevenson, it has not prevented Peers who are interested in undertaking casework doing so. Indeed, I have not found difficulty in this respect; I have just obtained consent first.

I hope I have reassured the noble and learned Lord that the Government understand the concerns raised, and that in this instance he will withdraw his amendment.

[Lord Brown of Eaton-under-Heywood]

I confess to being disappointed by the Minister’s response to this. I dealt with the fact that things have changed over the 15 years since the 2002 order. Of course there will continue to be circumstances in which it is possible to get, without inhibiting problems, the express consent of the person concerned. However, it will not always be possible, and to that extent it will inhibit the future ability of Members to discharge a function they have been discharging. Of course I will not divide the House at this stage; nevertheless, I urge the Government to reread the arguments and submissions that the noble Baroness and I have advanced today and see whether they cannot bring themselves to recognise that there is a substantial point here. Although there is a natural reluctance to treat us as elected Members, they should for this limited purpose do so; that is justified in the narrow circumstances in which this point arises.

Data Protection Bill [HL]

Baroness Chisholm of Owlpen Excerpts

Committee: 6th sitting (Hansard): House of Lords
Wednesday 22nd November 2017 Lords Chamber

[Baroness Neville-Rolfe (Con)]

I also share the concerns expressed by my noble friend Lord Hunt, based on my experience, both in government and in a number of different businesses. We have the experience not only of the motor sector, which has been talked about, but obviously of PPI, where there was compensation that needed to be paid, but the whole business took years and generated not only claims management companies but also nuisance calls and lots of other harms. This is an area that one has to be very careful about, and I support looking at the drafting carefully to see what can be done, and at my noble friend’s idea of trying to estimate the economic impact—the costs—in terms of those affected. That would help one to come to a sensible conclusion on what is appropriate in this important Bill.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I thank my noble friend Lord Hunt for explaining Amendment 170A and other noble Lords who have spoken. The amendment seeks to clarify the definition of “damage” provided by Clause 159 and its relationship to the language used in article 82 of the GDPR. This is important because article 82 of the GDPR provides a right to compensation when a person has suffered damage as the result of an infringement of the rights during the processing of their personal data.

Currently, the type of damage that can be claimed is broader under article 82 than Section 13 of the 1998 Act, as article 82 expressly extends to “non-material” damage. As a result, in drafting the Bill, the Government considered that some definition of “damage” was necessary, including specifying that it extends to distress, to provide clarity and certainty for data subjects and others as to their rights under article 82.

I stress that Clause 159 does not seek to provide a wider definition of “damage” than is currently provided in the GDPR, and nor indeed could it. The intention is simply to clarify the GDPR’s meaning. My noble friend Lord Hunt asked what estimates have been made of the financial consequences of the increase in litigation, but as Clause 159 does not provide a wider definition of damage there will be no financial consequence.

The concept of “damage” included in the GDPR reflects developments in case law over a period of some years. As such, I cannot agree with my noble friend’s suggestion that the Bill or the GDPR will suddenly unleash a free-for-all of claims. However, I am happy to reflect on my noble friend’s point that the Bill’s use of the term “other adverse effects” may unintentionally provide uncertainty rather than clarity. With the reassurance that I will go away and look at that, I hope my noble friend feels able to withdraw his amendment.

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[Lord Clement-Jones]

My Lords, in moving Amendment 183A I hope to astonish the Minister with my brevity. Clause 172 deals with the avoidance of certain contractual terms related to health records so that,

“A term or condition of a contract is void in so far as it purports to require an individual to supply another person with a record which — … (a) consists of the information contained in a health record, and … (b) has been or is to be obtained by a data subject in the exercise of a data subject access right”.


The NHS has committed to informing patients how their medical records are used. The legal protections in the Bill against an enforced subject access request on a medical record should also apply to such information about that record. Does this provide the required protection? I beg to move.

[Baroness Chisholm of Owlpen]

My Lords, I think that must be a record.

[Lord Clement-Jones]

We try.

[Baroness Chisholm of Owlpen]

It is probably for the best that we are not doing a seventh day in Committee because the noble Lord, Lord Stevenson, has told us that his voice is going and I seem to have an infected eye. Slowly, we are falling by the way, so it is probably just as well that this is our last evening.

This amendment seeks to amend Clause 172, which concerns contractual terms relating to health records. As noble Lords are aware, the Bill will give people more control over use of their data, providing stronger access rights as well as new rights to move or delete personal data. Data subject access rights are intended to aid people in getting access to information held about them by organisations. While subject access provisions are present in current data protection law, the process will be simplified and streamlined under the new legal framework, reflecting the importance of data protection in today’s digital age.

There are, unfortunately, a minority of instances where service providers and employers seek to exploit the rights of data subjects, making it a condition of a contract that a person supplies to them health records obtained through use of their data subject access rights. It is with this in mind that Clause 172 was drafted, to protect data subjects from abuses of their rights. Organisations are able to use provisions in the Access to Medical Reports Act 1988 to gain access to a person’s health records for employment or insurance purposes, and so should not be unduly relying upon subject access rights to acquire such information.

Amendment 183A seeks to widen the clause to include prohibiting contractual terms from including a requirement to use subject access rights to supply a person with information “associated with” as well as “in” a health record. While I can see where the noble Lord is coming from with the amendment and appreciate the willingness further to protect data subjects from exploitation, we are not convinced that it is necessary to widen the scope of this clause. The Government believe that avoidance of contractual terms—that is to say a restriction on parties’ freedom of contract—is not something that should legislated for lightly. Our starting point must be that contractual terms are voided only where there is a known, rather than a hypothetical, abuse of them.

It is also important to point out that the clause has been carried over from the 1998 Act, which has served us well for many years and we are not aware of any issues with its scope. But I will certainly carefully read the noble Lord’s contribution in Hansard, and with this in mind I encourage the noble Lord to withdraw his amendment.