Data Protection Bill [HL]

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

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

[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?

Data Protection Bill [HL]

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

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

[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.

Data Protection Bill [HL]

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Committee: 5th sitting (Hansard): House of Lords
Monday 20th November 2017 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, the amendments in this group, in my name and that of my noble friend Lord Stevenson of Balmacara, take up a number of issues raised by the Delegated Powers and Regulatory Reform Committee in its report on the Data Protection Act. Our Amendment 163ZC adds a requirement on the commissioner to specify in guidance what constitutes “other failures” under subsection (8). Amendment 164C adds a requirement on the commissioner to specify, within three months of the Act coming into force, what constitutes “other failures”. I think it is important that we are clear, at least in guidance, what these “other failures” are.

Amendment 168A concerns the regulations for non-compliance with the charges regulations, deleting all the subsections and inserting new ones. The new subsections make provision for proper consultation with the commissioner and other persons that the Secretary of State considers appropriate, and state that any regulations made must be subject to the affirmative resolution procedure. The amendment sets a maximum penalty and the amount of penalty for different types of failure.

Amendment 168B seeks to replace “produce and publish” with “prepare”, which we think is better in this context. Amendment 168C seeks to put in the Bill a procedure that was recommended in the report of the Delegated Powers and Regulatory Reform Committee, which suggested that the guidance should be subject to some form of parliamentary scrutiny. Amendment 168D seeks to set out how the guidance can be amended or altered with the new procedures outlined in Amendment 168C.

The final four amendments in the group—Amendments 182D to 182G—take up the issue of the power in the Bill to make Henry VIII changes to reflect changes to the data protection convention. We are seeking to delete “or appropriate” from Clause 170(1) to make it only,

“as the Secretary of State considers necessary”.

We think that presently the subsection is worded too broadly. We also seek to delete “includes” and insert “is limited to” in respect of the powers. Then we make it clear that the power is in respect only of Part 4. Finally, as highlighted by the committee, we time-limit the period for changes to three years. I beg to move.

[Baroness Chisholm of Owlpen]

My Lords, the amendments tabled by the noble Lords, Lord Stevenson and Lord Kennedy, reflect the recommendations made by the Delegated Powers and Regulatory Reform Committee in its report on the Bill. As noble Lords will be aware, the Government hold the committee in high regard and, as always, we are grateful for its consideration of the delegated powers in the Bill. As set out in our previous discussions on delegated powers, the Government are considering the committee’s recommendations with a view to bringing forward amendments on Report. For that reason, I will keep my remarks brief but noble Lords should be reassured that I have listened to and will reflect on our discussions today.

As noble Lords know only too well, delegated powers are inserted into legislation to allow a degree of adaptability in law. As we have touched on in our earlier discussions of delegated powers, and as I am sure noble Lords will agree, no other sector or industry is evolving as quickly as the digital and data economy. The pace at which new forms of data processing are being developed, and the sophistication and complexity with which new data systems are being designed, will render any current governance obsolete in a very short time. It is for this reason that we consider it necessary to be able to adapt and update the Information Commissioner’s enforcement powers.

However, the Government recognise the need to provide certainty through clauses on the statute book. I therefore thank the noble Lord for his suggestions in Amendments 163ZC and 164C for how regulation-making powers relating to the commissioner’s enforcement and penalty notices in Clauses 142 and 148 could be more appropriately defined; this is certainly something that I will reflect upon. In Amendments 168A to 168D, I recognise other recommendations of the DPRRC relating to the Information Commissioner’s guidance and penalties.

As I have already set out, it is important that the Information Commissioner’s powers are subject to a degree of flexibility. She must be able not only to identify new areas of concern but to tackle them with proportionate but effective enforcement measures. In an ideal world, we would have a crystal ball that could tell us all but the reality is that we do not. We do not have one now and the Information Commissioner will not have one three months after Royal Assent. We must preserve the ability of the regulatory toolkit to constantly adapt to changing circumstances and keep data subjects’ rights protected.

I note the proposals in Amendments 182D to 182G, which would limit the scope of the regulation-making power in Clause 170. Clause 170 is intended to allow the Government to update the Bill to reflect amendments to convention 108.

As with previous amendments based on the Delegated Powers and Regulatory Reform Committee’s report, it is important that we consider these amendments alongside the broader recommendations given by that committee. The Government are keen to give proper consideration to these recommendations and, although this is ongoing, I am confident that we will have concluded our position on these amendments before we come to the next stage of the Bill. I am grateful for the informative discussion we have had today, which forms the final part of our reflection upon the committee’s report. I hope that the noble Lord will feel able to withdraw his amendment and I look forward to returning to these issues on Report.

[Lord Kennedy of Southwark]

My Lords, the Delegated Powers and Regulatory Reform Committee is one which the Opposition hold in high regard, as the Government do. It does an important job for the Government by going through legislation and looking at whether the powers the Government seek to take are applied appropriately. I thank the noble Baroness, Lady Chisholm, for that very much and I am pleased that she confirmed that the Government were looking at the matters in the report carefully. When they come back on Report, I hope that they will address the issues I have raised and others in that report. On that basis, I am happy at this stage to withdraw my amendment.

Data Protection Bill [HL]

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Committee: 4th sitting (Hansard): House of Lords
Wednesday 15th November 2017 Lords Chamber

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

My Lords, Amendment 93A in my name and that of my noble friend Lord Stevenson of Balmacara is the first amendment in a small group before the Committee this afternoon. They are probing amendments to allow us to begin to debate the issues around Schedule 3, specifically Part 2 and matters concerning health data and social work data.

Amendment 93A would delete the words “or another individual”. I want to understand clearly what the Government mean when they refer to the “serious harm test” for the data subject and to this very wide catch-all phrase, “or another individual”. Amendment 94A would delete specific wording as detailed in the Bill and replace it with the wording in my amendment.

I can see the point of paragraph 4(1)(c) of Schedule 3, but do not see why the Government would not wish to rely on the definition of lacking mental capacity, as defined by the Mental Capacity Act 2005. Can the Minister explain, if my amendment is not going to be accepted, why the Government appear to be relying on weaker words in this section?

Amendment 94B would delete paragraph 4(2)(a) of Schedule 3. Again, I stress that this is a probing amendment to give the Minister the opportunity to set out clearly how this is going to work so that it does not cause problems for research but respects people’s privacy regarding the data that they have been provided with.

On the other amendments in the group, Amendment 94C looks to broaden the definition of social work data to include education data and data concerning health, by probing what the Government mean by their definition of social work data in the Bill. Amendment 94D probes, regarding paragraph 8, the details on data processed by local authorities, by the regional health and social care boards, by health and social care trusts and by education authorities.

With Amendments 95A and 95B, I am looking for a greater understanding of what the Government mean. The wording in the Bill which these amendments would delete is quite vague. We want to understand much more what the Government are talking about here. I beg to move.

[Baroness Chisholm of Owlpen (Con)]

My Lords, the Bill sets new standards for protecting general data, in accordance with the GDPR, which will give people more control over use of their data and provide new rights to move or delete personal data. However, there will be occasions when it is not in the best interests of the data subject for these rights to be exercised, or where exercising them might impinge on the rights and freedoms of others. Schedule 3 considers this issue in the specific context of health, social work, education and child abuse data. It provides organisations operating in these fields with targeted exemptions where it is necessary for the protection of the data subject or the rights and freedoms of others. Importantly, much of Schedule 3 is directly imported from existing legislation.

The amendments which the noble Lords, Lord Stevenson and Lord Kennedy, have tabled focus on exemptions available for healthcare and social services providers. Let me deal first with the amendments relating to the healthcare exemptions. Amendment 93A would amend the serious harm test, in paragraph 2 of Schedule 3, by removing the reference to harm caused to other individuals. This is an important safeguard. For example, if a child informed a healthcare provider that they had been abused by a relative and then that person made a subject access request, it is obvious that disclosure could have serious consequences for the child. I am sure that this is not what the noble Lords envisage through their amendment; we consider there are good reasons for retaining the current wording. As I said earlier, these provisions are not new: they have been imported from paragraph 5 of the Data Protection (Subject Access Modification) (Health) Order 2000.

Amendments 94A and 94B would amend the exemption in paragraph 4 which allows health professionals to withhold personal data from parents or carers where the data in question has been provided by the data subject on the basis that it would not be disclosed to the persons making the request. Again, neither of these provisions is new. They too were provided for in paragraph 5 of the 2000 order and we think they remain appropriate.

Data Protection Bill [HL]

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Monday 30th October 2017 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, I have no interests whatever to declare in this debate.

Amendment 10, moved by my noble friend Lady Royall of Blaisdon and signed up to by the noble Lords, Lord Pannick and Lord Macdonald of River Glaven, raises the important issue of legitimate fundraising and alumni relations undertaken by schools, colleges and universities being at risk due to the changes being brought in by GDPR. My noble friend referred to various conditions and mentioned the lawfulness condition, specifically on the issue of consent.

As we have heard, GDPR sets a very high bar in requiring a positive opt in, and it is likely that existing consents will not reach the required standard. So educational institutions would have to take on the enormous task of rebuilding their databases from scratch to meet the condition, as my noble friend referred to.

The public interest condition does not really work, for various reasons. The legitimate-interest condition may provide a route for the justification of data processing for fundraising purposes but, as we have heard in this debate, there are issues here as well. To make that a realistic solution to this unintended consequence of the new regulations—I think we all agree that it is unintended—my noble friend is seeking to put in the Bill a subsection in Clause 6 that, for the purposes of GDPR, would make it clear that schools, colleges and universities are not public bodies.

I note that Clause 6(2) provides the Secretary of State with the power to designate those public bodies that are not regarded as public bodies for GDPR. I am not sure what the general attitude of the Minister is, although he seems to have indicated that he is broadly sympathetic, but if he is going to rely on subsection (2) then he is going to have to do a bit more. As I mentioned previously, when Governments tell us it will all be sorted out in regulations, that is often not the solution and things can take a very long time. I mention the Housing and Planning Act again.

This is not something that educational institutions can wait months or years for; it would cost them considerably in terms of their fundraising plans. I hope the Minister can deliver some positive news to my noble friend, who has raised an important issue. It is fair to say that if she pressed this or a similar amendment to a vote on Report, she would be likely to win the day because it is an issue that many noble Lords are very concerned about.

[Baroness Chisholm of Owlpen]

My Lords, I thank noble Lords for taking part in this debate. I always feel humbled when I realise how many chancellors, presidents and fellows of universities we have in this House. I think that is why our debates and discussions are always of such high quality, because that is what noble Lords bring to this House. I congratulate the noble Baroness, Lady Royall, on her appointment. I visited Somerville College a lot because my daughter went there; she had an extremely enjoyable time and loved her three years there.

Universities are classified as public authorities under the Freedom of Information Act, and the Bill extends that classification to data protection. We recognise that universities, as complex organisations with many varying functions and interests, also carry out other functions that may not count as “public tasks” under data protection law. The conundrum raised by the noble Baroness has also been raised with the Government by the universities. I thank them for their time and help in working with both the Government and the Information Commissioner to resolve the problem.

I fully appreciate that the intention of the amendment is to protect our schools, colleges and universities by allowing them to continue pursuing their interests outside of their public tasks. I reassure noble Lords that neither the Bill nor the GDPR puts that at risk. The Information Commissioner’s Office has confirmed that it will issue detailed guidance on this matter, including the processing of personal data for the purpose of maintaining alumni relations, in order to make this clear. Representatives of the higher education sector have also indicated to the Information Commissioner’s Office that they may wish to develop further sector-level guidance, and the Information Commissioner’s Office will assist with that.

However, we are very sympathetic to everything that noble Lords have said today. It is important that we should meet again, and I am happy to agree to a meeting between myself, my noble friend Lord Ashton and all interested Peers so that we can talk about this further, in order that when we come back on Report we will have something that perhaps everyone will wish to hear. I hope my clarification on this issue is sufficient for now, and that the noble Baroness will agree to withdraw her amendment.

[Lord Kennedy of Southwark]

The Minister mentioned guidance and said that these matters would be solved then. Can she give us an assurance that we will have the guidance before the Bill becomes law?

[Baroness Chisholm of Owlpen]

The guidance from the Information Commissioner’s Office is ongoing. I had better go and find out whether we will have it by the time this Bill becomes law, because I do not want to say something at the Dispatch Box that turns out to be wrong. I will have to get back to the noble Lord on that point.