BBC: Brexit
Lord Ashton of Hyde Excerpts(6 years, 3 months ago)
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Lord Pearson of Rannoch (UKIP)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper, but not as it appears on the speakers list for today.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, the Government have not made an assessment of the Civitas report The Brussels Broadcasting Corporation?, as the BBC is operationally and editorially independent of the Government. Under its royal charter, the BBC has a duty to deliver impartial and accurate news coverage and content. The BBC is also subject to the Ofcom Broadcasting Code, which requires that news is reported with due accuracy and presented with due impartiality. As the new external regulator of the BBC, Ofcom can also consider complaints relating to the BBC’s output.
Lord Pearson of Rannoch
My Lords, I thank the Minister for that predictably bland reply, but the Brexit Secretary, Mr David Davis, said to me recently that his job in Brussels is made even more difficult if, every time he makes a small advance there, he is promptly undermined by the BBC. Are the Government aware that the BBC cannot give a cross-party group of MPs an example of a single programme since the referendum which has examined Brexit opportunities—not promoted them, just examined them? Secondly, is it acceptable that the BBC has not debated the ideas behind the project of European integration and whether they are still valid today?
Lord Ashton of Hyde
The noble Lord comes from a particular viewpoint, and we understand that he takes its coverage very seriously. He knows that the royal charter has made the BBC independent, and it is very important that Ministers do not get involved in the editorial opinions and conduct of the BBC. That independence is guaranteed in Article 3 of the royal charter. Secondly, there is an established complaints procedure. What is different now is that there is a unitary board holding the director-general, who is the editor-in-chief, responsible and that Ofcom, which has a code, is for the first time the BBC’s regulator, so the noble Lord can also complain to Ofcom.
Lord Richard (Lab)
My Lords, is the Minister aware that the noble Lord, Lord Pearson, and those of his ilk would not be satisfied if every programme that the BBC broadcast on current affairs started with a litany which said, “Confusion to the Commission and down with the tyrannous EU!”? That would not be enough for them. It is vintage Trump: “I didn’t say it. If I said it, I didn’t mean it. If I said it and meant it, nobody believed it”. It is the last screech of a dying cause.
Lord Ashton of Hyde
My Lords, I think the noble Lord, Lord Pearson, is much more balanced than that. He knows that a small portion of Brussels is part of a healthy and balanced diet.
Lord Tebbit (Con)
My Lords, I do not blame the Minister for the Answer that he read out, but does he not think as an individual, a private person, that there is something wrong when, out of 4,275 guests talking about the EU on BBC Radio 4’s “Today” programme between 2005 and 2015, only 132, or 3.2%, were supporters of the UK’s withdrawal from the EU? Frankly, the BBC has become the supporter of a foreign organisation called the European Union. Could not the Minister quietly whisper in somebody’s ear, “Get your act in order, because you owe a duty of impartiality”?
Lord Ashton of Hyde
I agree with my noble friend that the BBC owes a duty of impartiality. I do not think anyone is particularly interested in my views as a private person, but as a Minister I care that Ministers keep out of editorial decisions. This question of impartiality is largely a matter of opinion. For example, I happened to read a letter to a pro-European website, which complained that the BBC had put Nigel Farage on Question Time 31 times since the programme began.
Baroness Bonham-Carter of Yarnbury (LD)
My Lords, following on from that, does the Minister not agree that every political party, including my own, and factions within every political party complain about BBC coverage, particularly on Brexit? Yet the BBC has clearly been successful in following the impartiality guidelines put forward in the new charter.
Lord Ashton of Hyde
I think the BBC does a very difficult job well, but it is for members of the public, including noble Lords, to follow the complaints procedure—which is easy to do. The BBC receives, I think, 200,000 comments on its programmes per year. As I said before, Ofcom is there to make sure they stay within the code.
Viscount Colville of Culross (CB)
My Lords, as we abandon EU institutions, does the Minister agree that we should be bolstering rather than bashing our great British institutions? One of the most internationally respected and well-known of those that need bolstering is the BBC.
Lord Ashton of Hyde
The BBC needs support when it does things well; it also needs to get its house in order when it does things wrongly.
Lord Tomlinson (Lab)
My Lords, having referred to Mr Nigel Farage, does the Minister agree that, if by some chance Mr Farage were to become leader of UKIP once again, he has already had his quota of appearances at the BBC?
Lord Ashton of Hyde
As I have said, it is not up to the Government to express an opinion on editorial matters.
Lord Hamilton of Epsom (Con)
My noble friend referred to the complaints procedure of the BBC. Can he quote any instances where complaints about political bias have been upheld?
Lord Ashton of Hyde
There are about 3,000 comments a day—I do not know the details of any complaints.
Baroness Smith of Basildon (Lab)
My Lords, is it not the case that, when somebody complains about political bias in the media, it is normally because they do not like what the person they are listening to is saying, rather than because of any real bias? In the days of fake news, does the Minister not accept that people have more faith in the BBC and national newspapers than in social media, which is completely unregulated, with anyone saying what they want? The noble Lord, Lord Tebbit, referred to the “Today” programme—some of us rather admire the way presenters on the “Today” programme interrogate people, whatever their views or political persuasion.
Lord Ashton of Hyde
The noble Baroness is right: trust in media sources is measured each year by a survey, which clearly shows that the public believes radio and television more than it believes social media. Radio and television get a 74% to 77% approval rating, whereas social media gets a mere 15%. Members of the public are not fools.
Brexit: Audio-visual Services
Lord Ashton of Hyde Excerpts(6 years, 3 months ago)
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Lord Clement-Jones
To ask Her Majesty’s Government what assessment they have made of the ability of United Kingdom audiovisual services to take advantage of the European Union country of origin rules after Brexit.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, the broadcasting industry has continuously emphasised the significance of maintaining the country of origin principle. We are committed to working with the sector to ensure that those points are explored and considered as the UK develops its stance on exit negotiations as part of the overall effort to secure the best deal for the UK as a whole. The effect of leaving the EU will depend on the exit negotiations.
Lord Clement-Jones (LD)
My Lords, there are hundreds of channels based here which are broadcast to the EU and get the benefit of a single regulator in the form of Ofcom. The Creative Industries Federation states, in its report today on global trade and Brexit:
“To ensure the UK remains a leading hub for international broadcasters, the continued mutual recognition of broadcasting licences between the UK and EU Member States is imperative”.
Does the Minister agree with that statement, and will the Government treat this as a priority in trade negotiations? Is this not another example of where the straightforward solution would be to stay in the single market?
Lord Ashton of Hyde
My Lords, I am very pleased to confirm to the noble Lord that we will treat this as a priority. Of course he is right that the broadcasting industries are one of the UK’s success stories. In fact, 55% of the TV channels based in the UK mainly targeted the European market in 2016, and 53% of the video-on-demand services primarily targeted the EU. It is definitely one of the top priorities of my department, and we communicate regularly with the Department for Exiting the European Union to ensure that it is one of its.
Lord Bassam of Brighton (Lab)
My Lords, given that the multichannel sector is worth £4.2 billion a year to the UK economy, can the Minister explain how the Government intend to guarantee access to EU markets, given that EU rules will require broadcasters to make editorial decisions and deploy their workforce within the EU post Brexit?
Lord Ashton of Hyde
The noble Lord has put his finger on the fact that it will be a challenge but, luckily, it is one we are up to. The point to bear in mind is that a European country which receives, on average, 45% of its channels from abroad—for some smaller countries, it is 75%—wants a respected regulator which will make sure that the channels it receives are up to standard, and that is exactly what the UK provides.
Viscount Colville of Culross (CB)
My Lords, I declare an interest as a series producer at ITN Productions who has just sold a series across the European Union. Are the Government planning to renegotiate the AVMS directive, which defines “European work”? If not, does the Minister recognise the damage that will be done to the UK television production sector if its productions cannot compete with a 50% European work quota?
Lord Ashton of Hyde
My Lords, the Government are actively involved in the renegotiation of the AVMS directive, and I believe that the plan is for the trialogues to finish some time this year. I do not want to disagree with the noble Viscount, who is an expert in these things, but I think that the European work status is confirmed by the Council of Europe transfrontier television convention.
Lord Razzall (LD)
Do the Government agree with the recent recommendation of the DCMS Committee in the other place? The committee said:
“To address profound industry uncertainty … the Government must as an urgent priority state its negotiating intentions with respect to the Country of Origin rules framework and”,
more particularly,
“set out its contingency plan, should the rules cease to apply after Brexit”.
Lord Ashton of Hyde
My Lords, the report to which the noble Lord refers was published last Thursday. Although we are quick in DCMS, we have not come to a considered opinion on it yet.
Baroness Hayter of Kentish Town (Lab)
My Lords, one of the issues raised by the creative industries again and again has been about the ability of people to move to work across the EU. I have heard the same as the Minister said—that his department has been very open to talks with the creative industry. Unfortunately, his colleagues at the Home Office have not always been as open to hearing from them about their needs. On their behalf, could he talk to the Home Office about being able to engage in those demands?
Lord Ashton of Hyde
My Lords, we agree that migration and key skills in the creative industries generally, and the audio-visual sector as well, are crucial. We have made that point very clear to the Home Office. We are liaising with the Migration Advisory Committee to make sure that we have up-to-date information. We have made it aware that in the audio-visual sector 5.7% of the workforce come from the EU. However, interestingly, the immigration system appears to be working for the audio-visual sector, because more than that—6.7%—come from outside the EU.
Viscount Waverley (CB)
Would the Minister use the case in reverse and encourage Mezzo, probably the best music channel in the whole world, which is beamed only into Europe, to be available in the United Kingdom?
Lord Ashton of Hyde
I am not aware of that, but I am sure that it would be a very good thing.
Lord Foulkes of Cumnock (Lab)
Has not the Minister noticed that, week after week, we have had question after question and report after report from our excellent committees showing that sector after sector is going to be really harmed by our withdrawal from the European Union—which he describes as a “challenge”? Is not it about time that the Government came to their senses and took the advice and indications from Mr Barnier and many others that an opportunity is there for us to think again and stay within the European Union?
Lord Ashton of Hyde
I do not agree with that. The Government are carrying out the will of the British people and will continue to negotiate on behalf of the country to get the best deal that it can on leaving the EU.
Lord Forsyth of Drumlean (Con)
My Lords, is not it obvious that, with our fantastic success and brilliance in creative industries, our future lies in free trade and a global market and not in being sucked into a protectionist racket?
Lord Ashton of Hyde
The noble Lord is right to highlight the success of the creative industries. It is a world-leading example of what Britain does well, and we will continue to do that for the benefit not only of the EU after the negotiations but of the rest of the world as well.
Museums and Galleries
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The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, I have two problems in answering this debate. One is that I have a slipped disc and it takes me about a minute to stand up without grimacing—I am not grimacing because I do not want to reply. The second problem is that I misinterpreted the debate and have a 20-minute speech instead of a 12-minute one. I will do the best I can so I will speak quickly, if I may.
I thank my noble friend Lord Cormack for securing this debate and all other noble Lords for their interesting contributions. We are deeply committed to museums, as to all arts and culture. Museums play an important role in our lives and our society. They look after the historic, scientific, global and local collections that help us to understand the world around us and who we are as people. They make our towns and communities places where people and businesses want to be and to visit. They attract foreign visitors and give them a sense of Britain’s values.
The period of change that we have seen over recent years led the Government to commission a review, as we have heard. It is the first of the whole sector in more than 10 years, looking in depth at museums and their challenges and opportunities. This shows the importance that the Government place on museums and on culture. As we have heard, the Mendoza review was published in November 2017, and the Government are very grateful for Neil Mendoza’s hard work over more than a year of research and thinking. I am also grateful to the noble Baroness, Lady Andrews, for her welcome of the review. The response from John Glen, the then Minister, was published the same day. He welcomed the review and committed to implement all its recommendations. I am pleased to say that Michael Ellis, the new Minister, has reiterated his enthusiasm as well.
I note first that Neil Mendoza and his team found that there is not a crisis in the museums sector, contrary to the perceptions which some may hold. There are, of course, some museums that have struggled and faced very serious problems, often because of councils and local authorities withdrawing funding. Many noble Lords mentioned this. It is sometimes difficult to accept hard decisions, but it is right that decisions which directly affect local matters are taken locally.
I absolutely do not wish to overlook the difficulties of some individual museums. Some museums have indeed closed, but museums should not be institutions that simply assume they can always exist as they have. Many museums have adapted and found different ways of doing things, and some new museums have opened. Overall, it was found that the museum sector is already impressive and well placed to thrive. For example, Neil Mendoza found great work in Norfolk, Barnsley, Derby, Cornwall and Manchester, and in many other places.
As many noble Lords have observed, the funding environment for some museums has been tight. The review goes into some length about how many museums have adapted to this. Many museums have innovated and found ways to make money go further, work together to share costs or generate more income. For the first time, the review brought together all public funding sources to museums, as much as is possible. They still receive over £800 million every year from 16 different sources. The Government continue to help museums. The new tax relief for exhibitions is now in effect and is expected to provide £30 million per year. There will be a further £4 million through the DCMS/Wolfson fund to be spent in 2019-20. Museums will also benefit from the Government’s recent announcements on creating a cultural development fund of £2 million to work on pilots —I make the point to my noble friend Lord Cormack that it is £2 million to work on pilots, not the actual amount to spend—and a £7.7 million curriculum fund.
We in DCMS are conscious of our role, as mentioned by my noble friend Lord Eccles and the noble Lord, Lord Clement-Jones. We are taking steps to address the challenges in the sector. I have said that the Government agree with the review recommendations, as outlined by the former Minister John Glen, and I am therefore very pleased that he moved to the Treasury in the reshuffle. His successor, Michael Ellis, has met Neil Mendoza, and I know he is also very supportive.
Over time, we expect to implement the Mendoza Review in full. First, we will prioritise the museums action plan. The key improvement will be better joined-up activity between government funders. DCMS, Arts Council England and the Heritage Lottery Fund will produce a plan showing how their funding will be used more strategically across the country to support the nine priorities Neil Mendoza identified for the sector. We will also prioritise the partnership framework.
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.
UK Sport: Elite Sport Funding
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The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, I am staggering to my feet with an old sporting injury, which has come back to haunt me. I, too, thank the noble Lord for securing this debate. What a marvellous collection of sportsmen and sportswomen—I should say ex-sportsmen and ex-sportswomen—we have here to talk about this. It is an important issue that is being raised. It is particularly enjoyable for me as the Minister responding because there have been hardly any questions at all, although that is genuinely because it has been a true debate, where people have put their points of view. That is quite rare, I have found.
The timing is especially apt following UK Sport’s announcement last week confirming the medal targets for the forthcoming Winter Olympics and Paralympics in Pyeongchang. It has set a target of five medals in the Olympics, which would represent Team GB’s best ever performance at a Winter Games. ParalympicsGB’s target of seven medals would be its best performance since lottery funding began. Whatever one’s views of the current no-compromise mission of UK Sport, I think that noble Lords will join me in wishing those sports men and women the very best of luck as they compete for medals in South Korea in a few weeks’ time.
I agree that the noble Lord has raised a subject which is worthy of debate—namely, considering the current UK Sport funding model and how it relates to the strength of sport at the grass-roots level. The fantastic successes at recent Olympic and Paralympic Games, exemplified by what the IOC acknowledged as the greatest Games of modern times at London 2012, have showcased to the world the very best that Britain has to offer. As has been said, the no-compromise approach delivered the greatest performances in a century at Rio 2016, with 67 Olympic and 147 Paralympic medals, and Britain coming second on both medal tables. We should remember that thanks should also go to National Lottery players, without whom none of this would have been possible. Noble Lords who do not think that medals are the only criteria to consider must acknowledge that the public, and the noble Lord, Lord Wasserman, like watching our athletes on the podium at these Games.
The noble Lord’s Question is right to raise the importance of sport at all levels. The Government’s interest in areas such as safeguarding, anti-doping and tackling inactivity is set out in the sport strategy. In answer to the noble Lord, Lord Addington, I can say that UK Sport is currently planning its next public consultation on its strategic direction for supporting elite sport post Tokyo, and the results of the consultation should be available at the end of this year. In 2014, UK Sport’s remit was validated by its public consultation at that time.
The noble Lord, Lord Addington, particularly asked me to define what UK Sport’s mission is. It is currently to,
“inspire the nation through Olympic and Paralympic success”.
So its remit, in which it has undoubtedly succeeded, was to deliver Olympic and Paralympic medal success. The home countries’ sports councils’ role is to support participation and talent development. However, UK Sport also has other responsibilities which are best delivered at a UK level, such as bidding for and staging major sporting events in this country, and hosting major events on home soil that showcase our athletes and deliver an economic impact for the UK. That is aligned with our Sporting Future strategy.
The noble Lord, Lord Moynihan, mentioned having a seat at the table at the highest level of international sport, and UK Sport is there to help secure that. It will help to deliver impact through athletes volunteering in schools and communities, and sharing their knowledge and expertise with the wider sector.
In pursuit of elite success, we have not forgotten grass-roots sport. The Government, with the lottery, are investing around £1 billion in grass-roots sport through Sport England over the current four-year period to increase participation and activity. To put that in perspective, that is nearly three-and-a-half times as much as the current Olympic cycle amount. Sport England’s Active Lives data show that more than 60% of people aged 16-plus are regularly active. As the noble Baroness, Lady Grey-Thompson, said, activity is one thing that we ought to consider as important, because it is best for the health of the nation. If sport helps with that and helps to get people out of the front door on a cold January morning, it is a very good thing.
The latest data from Sport England’s Active Lives survey will be published in March. We hope to see continued positive levels of activity, which can contribute to physical and mental well-being and individual, social and economic development.
UK Sport’s remit of achieving medal success for the Tokyo cycle is set and performance targets remain on track. Annual reviews are held, which give unfunded sports the chance to bid with fresh evidence of performance to obtain UK Sport investment. The latest annual review decisions will be made on the 31st of this month; of course, they are a matter for UK Sport and in keeping with our arm’s-length principles.
The capacity for long-term planning is part of Team GB and ParalympicsGB’s success. As mentioned by the noble Lord, Lord Addington, lottery funding is crucial to UK Sport in making its funding allocations on a four-year basis ahead of each Games, which is why the DDCMS has underwritten any potential lottery shortfall so that it can confidently plan ahead of 2020.
The lottery is a matter of some concern: lottery ticket sales were £6.9 billion in 2016-17, which was lower than in recent years. Nevertheless, it is still the fourth best sales performance since the National Lottery began in 1994. We expect good cause returns in 2017-18 to be broadly similar to those in 2016-17, but we are concerned and we are looking into what we can do about the National Lottery. Camelot has carried out a comprehensive review of its business in response to those falling returns, which I welcome as a positive step. The Minister for Sport recently announced proposals to ban companies from offering bets on EuroMillions, which affects our National Lottery. DDCMS has been working with Camelot and lottery distributors to improve awareness of the good causes and projects that benefit from National Lottery funding. We have underwritten UK Sport’s lottery funding until 2020, but noble Lords will appreciate that it is a big ask to expect the Chancellor to guarantee it beyond 2020. As I said before, no funding criteria have been set beyond Tokyo, and UK Sport will consider the Paris 2024 funding cycle at the appropriate time.
Despite how it may appear from newspaper headlines, UK Sport is committed to supporting unfunded Olympic and Paralympic sports by offering knowledge sharing, technical support and services to sports that may wish to bid for major events in the UK. UK Sport will consider investment and support for unfunded sports wishing to apply for international federation positions—which my noble friend Lord Moynihan told us were so important—as well as wider advice, including participation in its international leadership programme.
UK Sport and Sport England work closely to ensure alignment of resources, messaging and support that they can offer on education and development programmes for sports and sporting talent. They also collaborate on duty of care, organisational culture, conduct, the implementation of the sports governance code and investment in talent and high-performance programmes. Over the next four years, Sport England is investing £225 million in national governing bodies and their work with grass-roots participants, through its core market investment programme, as well as £6 million in the almost 400 athletes who are not yet podium ready, supported by the Talented Athlete Scholarship Scheme, providing academic support in areas such as sports science, medicine, strength, conditioning and performance lifestyle.
The noble Baroness, Lady Grey-Thompson, mentioned activity. I agree with that. The point is that we need to educate people about the benefits of activity. If sport helps to do that, then so be it. It might make exercise more fun, for example, but getting out and taking more exercise is difficult. We need to work on that, I agree.
I thank my noble friend Lord Wasserman for his spirited advocacy of basketball. He knows of course, that specific funding decisions for individual sports are deliberately not in Ministers’ hands but are confined to arm’s-length bodies. But he wants money from non-DDCMS sources, so I also wish him well on that.
I was going to mention the medal winners from Wales, but I think that the noble Lord, Lord Thomas, did that. I conclude by emphasising that we acknowledge that there is an issue to be debated, that UK Sport has done a fantastic job in the remit it was given, but that it may not be the correct remit for ever. There is a consultation taking place this year and I am sure noble Lords will want to contribute to it. UK Sport and Sport England, which work on grass-roots sport, work closely together to take into account sport at both levels. We as a Government remain committed to supporting both elite and grass-roots sport. We will continue to seek improvements for the benefit of both levels of sport and for the nation as a whole.
Data Protection Bill [HL]
Lord Ashton of Hyde ExcerptsWednesday 17th January 2018
(6 years, 3 months ago)
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Lord Stevenson of Balmacara
My Lords, I do not wish to detain the House. I thank the noble Baroness for raising the point; clarity is always important, as we have learned, and she is right to put her finger on it. However, the point made by the noble Lord, Lord Paddick, is correct.
We run the risk in this Bill of pouring fuel on an already raging fire: the more we try to focus on children as a group, the more we demonise and make difficult the Bill’s attempts—through an amendment we all supported on Report—to raise our sights and find a way of expressing how all people are dealt with in terms of internet access, with particular reference to those with developmental or other support needs to whom the word “child” could well be applied. But that does not mean that we want the more generic approach to fail because it did not mention vulnerable adults, the elderly who may be struggling with internet issues, those with special needs or others. These groups all need to be considered in the right way, and I am sure that, in time, “age appropriate” may not be the most appropriate way of dealing with it. It does get us to a particular point, however. It was a historic decision that we took on Report to do it this way, but we need to have an eye on the much wider case for a better understanding of under what conditions and with what impact those of us who wish to use the internet can do so safely and securely.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, I feel confident that I will be able to reassure the noble Baroness and other noble Lords who have spoken this afternoon.
Child online safety is an issue close to the heart of the noble Baroness, Lady Howe, and everyone in this House. It is right that children in the UK should be granted a robust data regime so that they can access online services in a way that meets their age and development needs. It was with this goal in mind that the Government, with a great deal of support from a number of Peers from all sides of the House, led by the noble Baroness, Lady Kidron, agreed and supported her amendment. It introduced a requirement on the Information Commissioner to prepare an age-appropriate design code. This amendment was the product of many hours of discussion and days of drafting and redrafting, and I am glad that it was accepted with no dissenting voices in this House. The code will contain guidance on standards of age-appropriate design for relevant online services which are likely to be accessed by children.
The aim of Amendment 4, as explained by the noble Baroness, is to add a definition to the age-appropriate design code to define “children” as those under the age of 18. We are determined to ensure that children of different ages are able to access online services in a way that is safe and takes into account their different needs. For that reason, we included in Clause 124(4) a requirement that the commissioner must have regard to the fact that children have different needs at different ages, and in Clause 124 (4)(b) that the commissioner must have regard to the United Kingdom’s obligations under the United Nations Convention on the Rights of the Child. So I maintain that it is explicitly included in the Bill.
Article 1 of the United Nations Convention on the Rights of the Child defines children as,
“every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”.
As such, the existing age-appropriate design code, which requires the commissioner to have regard to the convention, already addresses the point that the proposed amendment is making.
Article 2 of the convention obliges state parties to respect and ensure the rights in the convention to each child—all those under 18. By requiring the commissioner to have regard to the convention, Clause 124 ensures that in order to comply with the requirements for the code on age-appropriate design, children up to 18 would need to be considered. Therefore, the existing age-appropriate design code already ensures that the commissioner must have regard to the different needs and rights of children under the age of 18, and as a result this amendment is not necessary.
Not only is the amendment unnecessary, it is potentially unhelpful. One of the key features of the existing age-appropriate design code is that it recognises that children have different needs at different ages. The proposed amendment risks undermining this important point by presenting children as a homogenous group. The needs of a child aged 17 are very different from the needs of a child aged 10 and it is right that the requirements of the age-appropriate design code reflect that.
The noble Baroness asked—the noble Baroness, Lady Kidron, also alluded to this—whether the Bill is consistent in its approach to children. As I said, children are human beings under the age of 18. That is the consistent approach we are taking on this legislation. But the Bill works in tandem with the GDPR and we cannot amend the GDPR. Nor does the GDPR allow member states to come up with their own definitions, so we interpret the GDPR as adopting the definitions from the UN Convention on the Rights of the Child.
There are of course differences between young children and older children, and the provision needs to be age appropriate. A child who is 12 years old may consent to having their data processed in the offline world. Clause 201 ensures that is consistent in Scotland as well as England and Wales. A child who is 13 years old may consent to having their data processed online. That is provided by Clause 9. Any website or app maker providing services for children—meaning everyone under 18—will have the benefit of the code of practice on age-appropriate design provided by Clause 124. Of course, the law generally makes different provision for older children and for young children—for example, the age of sexual activity, marriage and serving in the Armed Forces.
There is a risk that the proposed amendment to the clause on age-appropriate design could also have serious unintended consequences. The Data Protection Bill contains numerous references to “children”. We cannot agree to an amendment that could have implications for issues elsewhere in the Bill.
Finally, it is worth emphasising that the existing wording of the age-appropriate design code is completely consistent with the wording of the general data protection regulation, which itself does not define children. I hope I have reassured the noble Baroness and as a result she feels able to withdraw her amendment at this late stage of the Bill.
Lord Ashton of Hyde
“( ) An information notice does not require a person to give the Commissioner information to the extent that requiring the person to do so would involve an infringement of the privileges of either House of Parliament.”
Lord Ashton of Hyde
My Lords, I turn now to an issue that is pertinent to us all: parliamentary privilege. I am sure that noble Lords will agree that it is paramount that both this House and the other place continue to be safeguarded in their processing of personal data in connection with parliamentary proceedings.
This issue was raised in previous debates by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, to whom I am very grateful. Those debates influenced our thinking on how the Bill currently provides for parliamentary activity, and I am pleased to announce that the amendments in this group have been tabled to ensure that privileges under the current law will not disappear when we enter the new data protection framework.
I will start with Amendments 5 to 8. Amendments 5 to 7 restrict information, assessment and enforcement notices served by the commissioner from requiring a person to comply with the notice if compliance would involve infringing the privileges of either House of Parliament. Put simply, the commissioner’s notices are “switched off” where there would be an infringement of parliamentary privilege. Amendment 8 prevents the commissioner giving the House a penalty notice with respect to the processing of personal data by or on behalf of the House. These amendments have been tabled to ensure that parliamentary proceedings will not be impeded by the commissioner and that Parliament will maintain the freedom to do its work that it currently enjoys.
Amendments 9 to 13 relate to criminal liability and seek to prevent corporate officers of either House of Parliament being liable to prosecution as a data controller. This is the current position in the Data Protection Act 1998, and our amendments seek to clarify the Government’s intention to maintain the effect of Section 63A of the 1998 Act. The amendments also make equivalent provision for government departments and data controllers for the Royal Household. It should be noted, however, that these provisions do not prevent corporate officers being liable for their own conduct when acting as data controllers on behalf of either House, for government departments or for the Royal Household. This maintains the current position, and we believe that it is an important safeguard that allows full parliamentary privilege while balancing the rights of data subjects.
Amendments 14 and 15 revert to the current position under the Data Protection Act 1998 in relation to the processing that is necessary for the functions of the Houses of Parliament or for the administration of justice by removing the additional “substantial public interest” test. On reflection, we could not see how such processing would not be in the substantial public interest, so the test appeared redundant. On that basis, the Houses of Parliament will have to consider simply whether processing is necessary for the purposes of their functions, as is the position now.
Amendments 20 and 21 make a corresponding amendment to Schedule 8, where processing is necessary for the administration of justice under the provisions in Part 3 for law-enforcement processing, to maintain a consistent approach across the Bill.
Amendment 18 is to Schedule 2 and extends the exemptions from the GDPR relating to parliamentary privilege to include an exemption from article 34(1) and article 34(4) of the GDPR. Article 34 requires controllers to communicate a personal data breach to the data subject where the breach is likely to result in a high risk to the rights and freedoms of the subject. The amendment excludes this requirement from applying to parliamentary proceedings and also restricts the ability of the commissioner to oblige either House to comply with it.
I hope that the House will agree that these amendments, taken as a package, will ensure that there will be no chilling effect on the functions of Parliament and will restore the regime that applies under the Data Protection Act 1998. It has the approval of the House authorities. I beg to move.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I strongly support this group of amendments, perhaps unsurprisingly given that they have now been brought forward in place of a series of broadly similar amendments which, as the Minister has mentioned, I tabled on Report. They achieve the same basic objective, which is to safeguard parliamentary privilege and thereby ensure that this House, along with the other place, can continue to go about its business and fulfil its vital constitutional role without inappropriate inhibitions and concerns with regard to the protection of data and privacy, which of course the Bill as a whole is rightly designed to protect.
As I made plain on Report, I was prompted to table the original amendments by and on behalf of the officials of both Houses, that is to say, the clerks and counsel, because of their concern about how, unamended as it then was, the Bill risked infringing parliamentary privilege in the various ways that the Minister has recounted. These concerns were raised and over recent months they have been discussed extensively between officials and the Bill team. Again I express my gratitude and pay tribute to the Bill team for its hugely constructive help and co-operation throughout. As now formulated, these amendments substantially and realistically meet the concerns of officials, and accordingly I welcome them.
Lord Stevenson of Balmacara
I too thank the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his stalwart work in bringing forward these important amendments. What he did not say but we should also recognise is that on a couple of occasions he had to stay late in order to do that, I am sure far beyond his normal bedtime.
Unfortunately, squeezed out in the second group of amendments which I also supported but which did not find favour with the Government, was an effort to try to retain the current arrangements under which noble Lords of this House who wish to speak about individual cases would be able to do so on the basis that they would be treated as elected representatives. That did not win the support of the Government and therefore will be left to the other place, which I am sure will immediately seize on it and see the injustice reversed. In due course it will come back to us. With that, I support the amendment.
Lord Ashton of Hyde
My Lords, I am grateful for most of the comments. It is a pity that the noble Lord, Lord Stevenson, had to bring up the one bit that did not quite go through, but as he says, I am sure that we can rely on the other place.
Lord Ashton of Hyde
“( ) An assessment notice does not require a person to do something to the extent that requiring the person to do it would involve an infringement of the privileges of either House of Parliament.”
Lord Ashton of Hyde
“( ) An enforcement notice does not require a person to do something to the extent that requiring the person to do it would involve an infringement of the privileges of either House of Parliament.”
Lord Ashton of Hyde
“( ) The Commissioner may not give a controller or processor a penalty notice with respect to the processing of personal data where the purposes and manner of the processing are determined by or on behalf of either House of Parliament.”
Lord Ashton of Hyde
“(5A) As regards criminal liability—(a) a government department is not liable to prosecution under this Act;(b) nothing in subsection (4) makes a person who is a controller by virtue of that subsection liable to prosecution under this Act;(c) a person in the service of the Crown is liable to prosecution under the provisions of this Act listed in subsection (6).(6) Those provisions are—”
Lord Ashton of Hyde
“(4A) As regards criminal liability—(a) nothing in subsection (2) or (3) makes the Corporate Officer of the House of Commons or the Corporate Officer of the House of Lords liable to prosecution under this Act;(b) a person acting on behalf of either House of Parliament is liable to prosecution under the provisions of this Act listed in subsection (5).“(5) Those provisions are—”
Lord Ashton of Hyde
Lord Ashton of Hyde
“13A(1) This condition is met if the processing—(a) is necessary for an insurance purpose,(b) is of personal data revealing racial or ethnic origin, religious or philosophical beliefs or trade union membership, genetic data or data concerning health, and(c) is necessary for reasons of substantial public interest,subject to sub-paragraphs (2) and (3).(2) Sub-paragraph (3) applies where—(a) the processing is not carried out for the purposes of measures or decisions with respect to the data subject, and(b) the data subject does not have and is not expected to acquire—(i) rights against, or obligations in relation to, a person who is an insured person under an insurance contract to which the insurance purpose mentioned in sub-paragraph (1)(a) relates, or(ii) other rights or obligations in connection with such a contract.(3) Where this sub-paragraph applies, the processing does not meet the condition in sub-paragraph (1) unless, in addition to meeting the requirements in that sub-paragraph, it can reasonably be carried out without the consent of the data subject.(4) For the purposes of sub-paragraph (3), processing can reasonably be carried out without the consent of the data subject only where—(a) the controller cannot reasonably be expected to obtain the consent of the data subject, and(b) the controller is not aware of the data subject withholding consent.(5) In this paragraph—“insurance contract” means a contract of general insurance or long- term insurance;“insurance purpose” means—(a) advising on, arranging, underwriting or administering an insurance contract,(b) administering a claim under an insurance contract, or (c) exercising a right, or complying with an obligation, arising in connection with an insurance contract, including a right or obligation arising under an enactment or rule of law.(6) Terms used in the definition of “insurance contract” in sub-paragraph (5) and also in an order made under section 22 of the Financial Services and Markets Act 2000 (regulated activities) have the same meaning in that definition as they have in that order.”
Lord Ashton of Hyde
My Lords, I am very pleased to be able to set out the Government’s reasoning in tabling this group of amendments in response to valid concerns from the insurance industry. There are three amendments in the group; one technical matter and two addressing processing for insurance purposes. Regarding Amendments 16 and 17, I am grateful to the noble Earl, Lord Kinnoull, and the noble Lord, Lord Clement-Jones, for raising the challenges facing the insurance industry in previous stages of the Bill’s progress through the House and in discussions with me and my officials.
The Government recognise the fundamental importance of insurance products. They are vital to the public at large, who rely on insurance daily to protect them from financial loss due to an unfortunate emergency, accident or other unforeseen event. The industry is an important sector in the economy. On Report, we made clear our intention to propose an amendment addressing the noble Lords’ concerns at Third Reading. These amendments make good on that promise. Amendment 16 therefore replaces the three narrow conditions currently included in Schedule 1 with a single, more holistic condition permitting the processing of certain types of special category data where it is necessary for an insurance purpose.
There is a need to balance such processing with appropriate safeguards, and Amendment 16 provides these. First, as I have just said, processing must be necessary for a defined insurance purpose. For example, this condition will not be met if the organisation could achieve the purpose by some other reasonable means that did not require the processing of special categories of data, or if the processing was necessary only because the organisation has decided to operate its business in a particular way.
Secondly, processing must be necessary for reasons of substantial public interest. We consider that ensuring the availability of insurance at a reasonable cost to members of the public through risk-based pricing, the ability to detect and investigate fraudulent claims and the efficient administration and payment of insurance claims are matters of substantial public interest. Nevertheless, as this processing condition for insurance purposes is drawn more widely than those previously included in the Bill, we consider it reasonable to ask data controllers to consider whether, in respect of a particular processing activity they propose to undertake, it is necessary for a purpose that is in the substantial public interest.
Thirdly, the processing condition has been designed so that it affords additional safeguards to those data subjects who do not have rights or obligations in respect of the insurance contract or insured person. For example, a witness to an event giving rise to an insurance claim or a parent of a person seeking health insurance might fall into this category. Processing of data relating to these data subjects is permitted only if the data controller cannot reasonably be expected to obtain the consent of the data subject and they are not aware of the data subject withholding their consent.
Fourthly, data controllers relying on this new insurance condition will be required to have an appropriate policy document in place, as set out in Part 4 of Schedule 1 to the Bill.
Amendment 17 extends paragraph 13A so that the processing of criminal conviction and offences data is also permitted for an insurance purpose, which is clearly essential. Taken as a whole, we think that the processing condition set out in the new paragraph 13A provides the necessary balance between the rights of data subjects and the benefits that members of the public derive from the efficient and effective provision of insurance products.
Finally, Amendment 19 is a minor and technical matter. It merely deletes a reference to a provision elsewhere in the Bill that no longer exists. I am grateful to the helpful staff of the Public Bill Office who spotted this error when preparing the current print of the Bill last week. I am pleased that we have achieved what we agreed to do at the earlier stages of the Bill and I acknowledge the help of the Association of British Insurers and the Lloyd’s Market Association in reaching this solution. On that note, I beg to move.
Lord Stevenson of Balmacara
My Lords, I welcome these amendments and it is nice to hear the story that has come through of a listening Bill team and a listening Minister, and the way in which the industry has organised itself to make sure that the perceived faults were remedied.
If it is of interest to the House, a lot of us have been doing events with professional bodies and others interested in this whole area since the Bill started. I was reflecting just before this Third Reading debate that there were really only three things that came up time and again at these sessions, after the presentations by the experts and others such as us who were trying to keep up with what they were saying. The first was Article 8 of the European Charter of Fundamental Rights—that came up time and again. People did not understand the basis on which their rights would be retained, but we have dealt with that.
The second was the—unpronounceable—re-identification of previously anonymised data. I suspect that was because there are one or two very active persons going around all these groups—I seemed to recognise their faces every time it came up—who were anxious to make sure that this point was drilled back to Ministers. We have found a way forward on that, which is good.
The third item was the insurance industry time and time again raising points similar to those raised by the noble Earl, Lord Kinnoull, by suggesting that there was a problem with efficient markets and the operation of customer good, and that the Government had to look again. We are very glad that the Government have done so. I have now ticked off all my list and it is done.
Lord Ashton of Hyde
My Lords, I am grateful to the noble Earl, Lord Kinnoull, and to the noble Lords, Lord Stevenson and Lord Clement-Jones. The noble Earl is absolutely right that there are various names for different insurance contracts, including reinsurance and retrocession, but they are all contracts of indemnity. The schedule absolutely covers all types of insurance, including reinsurance and retrocession contracts.
As for the clarificatory questions asked by the noble Lord, Lord Clement-Jones, they are very reasonable because this is not an easy part of the Bill to understand—even for people who have been looking at it for many weeks, as we have. First, he asked whether the provision permits processing of data relating to criminal convictions or offences where it is necessary for an insurer to process this data for policy underwriting and claims management, and for insurance purposes. Technically speaking, paragraph 13A, introduced by Amendment 16, does not permit the processing of criminal convictions data because it exercises the derogation provided by article 9(2)(g) of the GDPR. Criminal convictions data is regulated by a separate article of the GDPR, article 10, but the noble Lord will be pleased to know that Amendment 17 extends paragraph 13A so that it also covers criminal convictions and offences data.
Secondly, as for the processing of special category data by insurance companies and related intermediaries such as reinsurers and brokers, which are important, as is managing claims, the noble Lord asked whether that will be regarded by the Government as purposes that are in the substantial public interest. The answer is that the Government have introduced paragraph 32A because they believe that the provision of core insurance products is in the substantial public interest. However, the world of insurance is an exciting and dynamic one—no, really it is—and controllers must be accountable for their own particular processing activities. I hope that answers his questions.
Lord Ashton of Hyde
“32A_ This condition is met if the processing—(a) would meet the condition in paragraph 13A in Part 2 of this Schedule (the “insurance condition”), or(b) would meet the condition in paragraph 32 by virtue of the insurance condition,but for the requirement for the processing to be processing of a category of personal data specified in paragraph 13A(1)(b).”
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
My Lords, in moving that the Bill do now pass, I shall say a few words about it. The Bill has been central to my life and the lives of a number of noble Lords for many weeks now. It was accepted right from the word go as a necessary Bill, and there was almost unanimity about the importance and necessity of getting it in place by next May, taking into account that it still has to go through the other place. I am very relieved to have got to this stage. Despite that unanimity, we have managed to deal with 692 amendments during the passage of the Bill, which is a very good indication of unanimity as far as I am concerned. I have to admit that of those 692, 255 were government amendments, but that is not necessarily a bad thing. The GDPR takes effect in May and many of the things that would have been put into secondary legislation have been dealt with in the Bill. I think most noble Lords would agree that that is a good precedent. Data protection is so pervasive that the previous Data Protection Act, passed 20 years ago in 1998, is referred to around 1,000 times in other legislation, so a lot of the amendments were to make sure that when we repeal that Act and this Bill becomes law it will be consistent with other legislation.
I am very appreciative of what we achieved and the way that we did it. One thing we managed to achieve was to accept a number of recommendations from your Lordships’ House, so we changed the way that universities, schools and colleges can process personal data in respect of alumni relations; we ensured that medical researchers can process necessary personal data they need without any chilling effect; we agreed that patient support groups can process health data; we ensured a fair balance between privacy and the right to freedom of expression when journalists process personal data; and we have talked about insurers today. The noble Baroness, Lady Kidron, one of the heroes of the Bill, helped us protect children online, which we all agreed with—in the end. We amended the way that some of the delegated powers in the Bill are effective and subject to the right parliamentary oversight.
I thank the Front Benches for their co-operation. This is meant to be the last Bill for the noble Lord, Lord Stevenson. I doubt that. Every time he says that, he comes back. He had a good team to help him: the noble Lords, Lord Kennedy and Lord Griffiths of Burry Port. It was the first Bill for the noble Lord, Lord Griffiths; if he can survive this, he can survive anything. I am sure we will see a lot of him in future. I thank the noble Lords, Lord Clement-Jones and Lord Paddick. I should have mentioned the noble Baroness, Lady Hamwee, and acknowledged her position on the privilege amendment. I must say that the way she withdrew her amendments one after the other on Report is a very good precedent for other legislation that might be coming before your Lordships’ House soon.
The Bill team has been mentioned several times, not only today but all through the passage of the Bill. The members of the team have been outstanding. They have worked incredibly hard. I should like to mention Andrew Elliot, the Bill manager, Harry Burt, who worked with him, Jagdeep Sidhu and, from the Home Office, Charles Goldie. They have all done a tremendous job and been great to work with.
Lastly, I have had a galaxy of talent to help me with large parts of the Bill. My noble friends Lady Williams, Lady Chisholm and Lord Young of Cookham and my noble and learned friend Lord Keen have made my life very easy and I am very grateful to them. I beg to move.
Lord Clement-Jones
My Lords, I will just slip in for a couple of minutes in the light of the Minister’s very shrewd appraisal of the progress on the Bill. I had not quite realised that the Bill team were treating the Digital Economy Bill as a dress rehearsal for the Data Protection Bill, but that is really why this has gone so smoothly, with very much the same cast on the Front Benches.
We on these Benches welcomed many aspects of the Bill on its introduction last October and continue to do so. Indeed, it has improved on the way through, as the Minister pointed out. I thank my noble friends Lord Paddick, Lady Hamwee, Lord McNally, Lady Ludford and Lord Storey for helping to kick the tyres on this Bill so effectively over the last four months. I also thank the noble Lord, Lord Stevenson, and all his colleagues for a generally harmonious collaboration in so many areas of common interest.
I very much thank the Minister and all his colleagues on the Front Bench and the excellent Bill team for all their responses over time to our particular issues. The Minister mentioned a number of areas that have been significant additions to the Bill. I thank the Minister for his good humour throughout, even at late hours and on many complicated areas. We are hugely pleased with the outcome obtained by the campaign of the noble Baroness, Lady Kidron, for age-appropriate design, which many of us on these Benches think is a real game-changer.
There is just a slight sting in the tale. We are less happy with a number of aspects of the Bill, such as, first, the continuing presence of exemptions in paragraph 4 of Schedule 2 for immigration control. Solicitors need the facts to be able to represent their clients, and I am afraid these immigration exceptions will deny access to justice.
Secondly, the Minister made a pretty good fist of explaining the way the new framework for government use of personal data will operate, but I am afraid, in the light of examples given, for instance by the noble Earl, Lord Clancarty, in relation to the Department for Education’s approach to the national pupil database, and now concerns over Public Health England’s release of data on 180,000 patients to a tobacco firm, that there will be continuing concerns about that framework.
Finally, one of the triumphs of debate in this House was the passing of the amendment from the noble Baroness, Lady Hollins, calling for, in effect, Leveson 2. The response of the Secretary of State, whose appointment I very much welcomed at the time, was rather churlish:
“This vote will undermine high quality journalism, fail to resolve challenges the media face and is a hammer blow to local press”.
On Sunday he did even better, saying it could be the “death knell” of democracy, which is pretty strong and unnecessary language. I very much hope that a sensible agreement to proceed is reached before we start having to play ping-pong. I am sorry to have to end on that slightly sour note, but it is an important amendment and I very much hope that it stands.
Social Media: News
Lord Ashton of Hyde Excerpts(6 years, 4 months ago)
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The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, I am very grateful to all noble Lords for their interesting and succinct contributions—I know how difficult that is on a subject such as this. I very much support the noble Lord, Lord McNally, in his view that this is part of a process and that we will not provide all the answers tonight. I hope that I will answer some noble Lords’ questions, but there is an awful lot to get through. Of course I also thank the noble Baroness, Lady Kidron, for convening this debate.
There is a lot to cover, but I say at the outset that the Government get the message which I think the House in aggregate is giving today, which is that social media companies and the way they work have developed rapidly and that there are issues that need to be considered. I hope that I can show that we are taking that seriously.
For example, I think we all agree that the internet offers a huge range of opportunities but, as we have heard, there are legitimate concerns about illegal and harmful content online. A number of noble Lords have expressed specific concerns about the role that major social media platforms play. Because we are so acutely aware that the internet can have both a positive and a negative effect on users, particularly children, the Government have developed a clear ambition, as stated in our manifesto commitment, to make the UK the safest place in the world to be online. We aim to realise that ambition via policies developed through our new digital charter.
If I may initially confine myself to the noble Baroness’s Motion—which I know is not always the practice in this House—I must make the point that online platforms such as social media companies, auction sites and cloud service providers are, as has been alluded to, currently defined as information society services, as set out in European Union law. While we are still a member of the EU, the UK is subject to the e-commerce directive, but the directive was drafted in 2000, when the internet was in its infancy. The intention behind it was laudable: to create a regulatory environment in which cross-EU online commerce could flourish and prevent member states creating barriers to the growth of the digital single market. But since the turn of the century, digital technology has developed faster than society has adapted to that change, and citizens now have legitimate concerns about rising online threats. The noble Lord, Lord Bew, explained the dilemma that this creates.
Around the globe, it is now increasingly acknowledged that there are problems with online behaviour and content and that they must be addressed. The EU Commission recently published guidelines on how online platforms should increase the proactive prevention, detection and removal of illegal online content, and it is currently considering whether further action should be taken.
The noble Baroness, Lady Kidron, asked about legal liability structures to which I alluded. I thought it would be helpful to show what the new Secretary of State said in his evidence to the Select Committee on polling and digital media—the noble Lord, Lord McNally, might be interested in the philosophical nature of this. He said:
“The approach that we take as a whole to the internet and internet companies is encompassed in what we call the digital charter. Essentially, this is about changing the attitude towards what happens online from a libertarian view that the more people connect in the world, the better, and that Governments should have no view, which was probably the founding political philosophy of the internet, to a liberal values view whereby you support and promote the freedom that the internet brings while ensuring that that freedom does not trample on the freedom of others. That involves mitigating harms”.
We agree, and as long as the UK remains a member of the EU, and bound by its rules, we will work closely with the Commission, and other member states, to secure further progress in this area. Of course, consideration of online liability is fraught with complexities, not least because we will be leaving the EU. Similarly, an ill-considered approach might also produce technical problems for online service providers. If they were to become fully liable for all third-party content, this could be fundamentally prohibitive to many service models, including those operated by cloud storage providers, video-sharing sites and others. Balancing these various interests is a delicate matter, but essential if we are to meet safeguarding concerns for users while still supporting the internet as a useful vehicle for exchanging ideas and promoting the digital economy.
These points are not intended in any way to downgrade the importance of tackling online harms, but rather to outline the need for a well-developed and, if possible, consensual approach. The digital charter is our primary response to the more fundamental questions of ensuring that new technologies work for the benefit of everyone. The noble Lord, Lord Knight, talked about new policy thinking. While I talk about that, I remind noble Lords that we intend to set up a data ethnics and innovation body, and we have allocated £9 million in this budget to do that. It could consider things such as the verification ideas that the noble Baroness, Lady O’Neill, mentioned, and the suggestion of the noble Baroness, Lady Eaton, of an innovation fund, among many other things. We intend to develop the policies and actions to make the UK the safest place to be online, and to drive innovation and growth across the economy.
As the noble Baroness, Lady Lane-Fox, mentioned, that includes women, who are a valuable and essential resource. I am pleased to say that the Government are supporting the recently launched Tech Talent Charter, to which over 125 tech companies have already signed a pledge to take concrete measures to improve the gender diversity of their workforces.
What we are trying to achieve cannot be achieved by government alone. So we will work collaboratively with citizens, businesses, charities and others to build both our understanding of the challenges, and a consensus around the solutions. As I have mentioned, the challenges we face online are global. The international element was mentioned by the noble Baronesses, Lady Kidron, Lady Benjamin, and my noble friend Lord Inglewood, among others. It is at this global scale that we should be looking to gain consensus on our approach. We have already begun to hold international discussions on the key issues under the charter, including at the recent G20 digital taskforce in Hamburg. Going forward, we will look to expand this work, including bilaterally with like-minded countries such as France, and through multilateral organisations, including the OECD and the D5.
The very first element of the digital charter is our work on online safety, a reflection of how seriously the Government take this issue. In October, we published the Internet Safety Strategy Green Paper, an important next step in meeting our relevant manifesto commitments. The strategy set out our ambition for everyone to play a role in tackling online harms. For example, we are working closely with the Department for Education to ensure that online safety, which the noble Baroness, Lady Grey-Thompson, mentioned, is part of new compulsory relationships and sex education curriculums, and that parents have the support they need to keep their children safe. We will certainly pass on my noble friend Lady Eaton’s suggestions about innovation to the department.
In answer to the views of the noble Lord, Lord Puttnam, on understanding how these large sites work and what they do, we acknowledge his point. The Department for Education issued a call for evidence late last year to help shape the new content and guidance, and we expect the new curriculums to cover digital literacy and critical thinking skills. The noble Baroness, Lady Lane-Fox, had a debate recently about digital understanding, which was extremely useful and interesting. Alongside the publication of the strategy, a public consultation was launched, which asked for views on a range of new safety initiatives—this is the scope that the noble Baroness, Lady Kidron, asked about—that included a social media code of practice, a social media levy, and transparency reporting. The consultation closed on 7 December, with a good number of responses from a range of contributions.
The noble Lord, Lord Bew, mentioned the report of his Committee on Standards in Public Life, Intimidation in Public Life. I think that the right reverend Prelate the Bishop of Gloucester also mentioned that. We will address its recommendations in the government response, which is due to be published shortly.
As set out in the strategy, we are working with the main social media platforms on a voluntary basis because we believe that that secures faster results. However, the previous Secretary of State was crystal clear, and the new Secretary of State agrees, that we will not hesitate to bring forward legislation, if necessary. I hope that that commitment reassures my noble friends Lady Harding and Lady Fall. The age verification protections for online pornography show that we are willing to tackle online harms through legislative means. The internet safety strategy is not the only vehicle through which we will protect children online. I am very pleased to be responding to the noble Baroness, Lady Kidron, so soon after we worked together closely on securing improvements to the Data Protection Bill. I commend her persistence and firmness, but also her good humour. We have never once fallen out—yet!
I am sure that the House does not need reminding that the Government were pleased to support an amendment to that Bill to address the concerns of many noble Lords. We supported a statutory code of practice for age-appropriate design for all information society services. We look forward to working with the Information Commissioner’s Office to drive up the levels of protection afforded to children online.
Many noble Lords mentioned fake news. The Government are committed in their manifesto to protect the reliability and objectivity of information as an essential component of democracy. Work is now under way, also under the digital charter, to ensure that we have a news environment where accurate content can prevail. As my noble friend Lord Black said, it is the UK’s robust, free, wide, vibrant and varied media landscape that remains our key defence against disinformation.
I shall go through as quickly as I can some of the points that noble Lords have raised. The noble Baroness, Lady O’Neill, mentioned competition policy. We have a world-leading competition regime, and we will continue to keep it under review. The Competition and Markets Authority recently announced a new technology team to strengthen its ability to deal with competition issues surrounding algorithms, artificial intelligence and big data. We are also setting up a new Centre for Data Ethics and Innovation, as I mentioned, which will be well placed to support the CMA in its work.
The noble Viscount, Lord Colville, and the noble Baroness, Lady Lane-Fox, talked about trust in the media. We absolutely agree with the trusted role of the traditional media sectors in the UK, but I do not believe that the trust has been eroded quite as much as some may fear by the newer forms of content. A recent Radiocentre survey in 2017 on levels of trust in media sources among UK citizens found that 77% of respondents trusted radio news, 74%—just under three-quarters—trusted TV news and only 15% trusted news on social media. The public are not complete fools.
The right reverend Prelate the Bishop of Gloucester, who is my bishop, I might add—I do not mean “my” bishop; I must push on—asked why we are not establishing an independent digital commissioner. The Digital Minister, supporting the Culture Secretary, who is personally invested in raising the level of online safety, plays that convening role on this issue across government.
The noble Viscount, Lord Colville, talked about the filter bubble effect and I thank him for his interesting views on this. The Government consider the effect of news, advertising and other content being tailored algorithmically to personal preferences to be an issue. The work on the digital charter will consider this and what response is most appropriate.
I have an answer from the Box on the gambling questions that the noble Baroness, Lady Howe, asked. It says, “We will write”. It also says, “Wrong officials in the Box”. But, more seriously, I have a reply in train to the noble Baroness on this subject, following the recent debate that we had on gambling. That is ongoing and I will write to her.
The right reverend Prelate the Bishop of Gloucester talked about Germany’s new law, under which social media companies are fined for not removing hate speech on their services quickly enough. We are aware of that and, through the digital charter, we will look right across the range of potential solutions for tackling that issue. We will look at steps that other countries, including Germany, are taking to inform this work.
The noble Baroness, Lady Worthington, and the noble Lord, Lord Vaux, asked what we are doing about online anonymity, which I think is an interesting point. We asked questions about online anonymity in the internet safety strategy consultation and we are analysing those responses. We will formally respond to them soon.
Online advertising was raised by my noble friend Lord Black and the noble Lord, Lord Vaux. They were right to raise the role of online advertising in many of the issues discussed. We have a good advertising regulatory system but we recognise that there have been rapid developments in the marketplace. We are working alongside the Advertising Standards Authority to monitor developments and respond appropriately. This is a key part of much of our work under the digital charter, including ensuring that there are sustainable business models for high-quality online news media, protecting people’s personal data and ensuring that value created online is rewarded appropriately.
The noble Baronesses, Lady Benjamin and Lady Howe, asked about the BBFC and age verification in social media. The age verification regulator will not duplicate the Internet Watch Foundation’s remit. If, in the course of investigations, the age verification regulator identifies child abuse images hosted in the UK, it will report these to the IWF. We recognise the concerns about the availability of pornographic material on some social media platforms but, as we discussed during the passage of the Bill, it is our intention for age verification to apply to the pornography industry. Within the regulator’s powers will be the ability to notify ancillary service providers, including the social media platforms, if, for example, a person is using a social media platform to market their non-compliant website.
I want to end by repeating that the Government are very much concerned about the impact that online harms are having, particularly on young people and children. That is why we are launching a range of initiatives to keep people safe online—and we agree with the noble Baroness, Lady Grey-Thompson, that social media sites should take responsibility. Social media platforms should be aware that, if we do not get results, we will not be afraid to go further.
Data Protection Bill [HL]
Lord Ashton of Hyde ExcerptsWednesday 10th January 2018
(6 years, 4 months ago)
Lords ChamberRead Full debate Data Protection Act 2018 View all Data Protection Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 74-III Third marshalled list for Report (PDF, 153KB) - (8 Jan 2018)
Lord Ashton of Hyde
(a) by adding conditions; (b) by omitting conditions added by regulations under paragraph (a).”
Lord Ashton of Hyde
“( ) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (5) has effect as if it included a reference to that Part.”
Lord Ashton of Hyde
(a) by adding conditions;(b) by omitting conditions added by regulations under paragraph (a).”
Lord Ashton of Hyde
“(1) The Secretary of State may by regulations amend Schedule 11 —(a) by adding exemptions from any provision of this Part;(b) by omitting exemptions added by regulations under paragraph (a).”
Lord Puttnam (Lab)
My Lords, the last time I cleared a room like this, it was a very bad film indeed.
Amendment 103A is connected to Amendments 103B, 103C, 124A, 124B and 125A, and I move it with the support of my noble friend Lord Stevenson and the noble Lords, Lord Clement-Jones and Lord Holmes. In a well-run world, this group of amendments should not really need to be moved or pressed. They are designed purely to ensure that we have the data commissioner—and the office of that commissioner—that we need. Frankly, they are the natural consequence of all the debates that have occurred during the passage of the data protection legislation.
There can be no more important role over the next few years than that of the Data Commissioner. The organisation she is being asked to regulate is the largest in the world. A quite extraordinary statistic is that the four largest companies—Google, Amazon, Facebook and Apple—have between them a larger market capitalisation than the FTSE 100. That is the scale of the businesses we are asking the Data Commissioner to regulate. At the same time, under the Bill at present the resources available to her are wholly inadequate to that task. We went through a similar operation 15 years ago with Ofcom, and out of that, and through the collective wisdom of this House, we were able to ensure that Ofcom had the resources to become what is genuinely the gold standard of any media and telecoms industry regulator in the world. That is an achievement of this House of which we should be very proud. The purpose of these amendments is to achieve exactly the same for our ICO—something we can be proud of and that can do the job given to it.
During the passage of the Bill, we have loaded the ICO with significant new and additional responsibilities. The idea that we might have an underfunded and underresourced regulator that is not adequate to the task we are giving it is unthinkable. The purpose of these amendments is to prevent that. I could go on at some length, but I think the mood of the House is that it wishes to move on, so I shall listen to the Minister’s response. I beg to move.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, it might be for the convenience of the House if I speak now as I have some information which may help the noble Lord, Lord Puttnam, and other noble Lords who have put their names to these amendments.
As I have repeatedly said during the debates on the Bill, the Government are committed to ensuring that the commissioner has adequate resources to fulfil her role as a world-class regulator and to take on the extra regulatory responsibilities set out in this Bill, so I agree with pretty well everything the noble Lord said. That is why we legislated for a new, GDPR-compliant charging regime in the Digital Economy Act, which we will turn to in the next group, but it is also why the commissioner needs to be able to recruit and retain expert staff.
I am therefore very pleased to announce that the Government have today granted the Information Commissioner’s Office pay flexibility up to 2020-21 so that it can review its pay and grading structure. The commissioner will have the independence to determine the levels of pay necessary for the ICO to maintain the expertise it needs to fulfil its new and revised functions as a supervisory authority, subject to the standard public spending principles. I am also pleased to say that the Information Commissioner has agreed these arrangements. She said:
“I welcome the positive response to my business case for pay flexibility at the ICO. I am confident that this will allow me to prepare the ICO for its critical role under the new data protection regime ensuring that the UK has a strong and expert regulator in an area recognised for its importance to the digital economy and society as a whole”.
This flexibility underscores the UK’s commitment to an independent and effective data protection regulator, and I think goes a long way in responding to the points raised by the noble Lord’s amendments. We all want an efficient, well-resourced ICO, so I am very pleased that this agreement has been reached. I should have said at the outset that I am very grateful to the noble Lord for coming to talk to me about it. I am glad to say he was pushing at an open door.
Lord Puttnam
I thank the noble Lord, who has been extraordinarily generous with his time. He and his officials could not have been more helpful in reaching what I regard as a perfectly satisfactory conclusion. My only wish is that we have a regulator that can do the job required of it and tackle the abuses along the way confidently and competently. I am extraordinarily grateful for this outcome. I am very happy to withdraw the amendment.
Lord Ashton of Hyde
“(and see also the Commissioner’s duty under section (Protection of personal data))”
Lord Ashton of Hyde
Lord Stevenson of Balmacara (Lab)
My Lords, the noble Lord, Lord Deben, said that a small number of people do everything in small communities. It sometimes feels like that here. I do not think that we need to say much more; all the issues have been raised and I am sure that when he responds, the Minister will answer some, if not all, of the questions. The underlying theme is that we do not want to spoil what is a very good Bill with desirable aims by failing to pick up all the areas that it needs to address, because there will be benefits from it, as we have heard. I think that the Government understand that, but they must not be in the position of willing the ends of policy without also willing the means.
Lord Ashton of Hyde
My Lords, I am grateful to all noble Lords who have spoken. I begin by thanking my noble friend Lady Neville-Rolfe, my predecessor in this role, for once again bringing the topic of small businesses to the House’s attention. Other noble Lords have extended that from small businesses to small organisations—indeed, even clans. While I am on the important subject of the clan, the noble Earl asked whether they would be classed as small organisations. I am sure that they are not small, but the answer is yes, they will be subject to the provisions of the GDPR.
The serious, general reason is that the GDPR, which is EU legislation which comes into direct effect on 25 May, is there to protect personal data. We must remember that the importance of protecting people’s personal data, particularly as it has developed since the most recent Data Protection Act was passed in 1998, has extended dramatically and concerns very personal items that belong to people. That is why it does not entirely matter whether it is a small or large organisation. Public authorities, such as parish councils, and other small organisations, such as charities, must take personal data seriously. They have obligations under the existing Act, but under the GDPR, they have more, and that is why. However, I and the Government instinctively support small organisations where we have it in our power to do so. I shall return to some of the specific points later.
I thank my noble friend for bringing this matter to the House’s attention and for coming to discuss it at length; I welcome this opportunity to provide some reassurance. As I have said at previous stages of the Bill, I wholeheartedly agree that the Government should recognise the concerns of the smallest organisations and continuously look at ways to support them through the transition to a new data protection framework. The amendments tabled by my noble friend have all been designed with small organisations, charities and parish councils in mind.
Before I address each amendment in turn, I remind noble Lords that the Information Commissioner’s Office already produces a variety of supportive materials intended to help organisations of all sizes to navigate their way to data protection compliance. I strongly encourage businesses to consult these, and to make use of the commissioner’s new dedicated helpline, provided specifically for small organisations. I am pleased to say, in answer to my noble friend Lord Marlesford and, in part, to my noble friend Lord Deben, that the Information Commissioner has agreed to issue advice to parish councils, which will be published shortly. That is one of the organisations to which my noble friend referred. I understand exactly what he is saying, as I live in a small village and my wife is a parish councillor. I assure noble Lords that the issues of the Data Protection Act in relation to parish councils have been aired vociferously, and not only in this Chamber.
In addition, it is worth noting that the process for paying annual charges to the commissioner will become simpler and less burdensome, which I am sure will come as welcome news to small organisations—but we will return to that point shortly.
Amendment 106 would add a new clause that would give the Information Commissioner a duty to provide additional support to small businesses, charities and parish councils to meet their requirements under the GDPR. This may include, among other things, additional advice and discounted fees paid to the commissioner. I think that my noble friend Lord Marlesford, raised a point earlier on, and I hope that it will be helpful if I put it on record that parish councils can share duties like a data protection officer, which is a public authority that they have to have, under the GDPR, with other parish councils as well as with district councils. Parish clerks can also fulfil that role.
While I agree with my noble friend that small organisations should be supported to meet new obligations under the GDPR and this Bill, I cannot agree with the obligations that that would place on the commissioner. As I mentioned earlier, the commissioner has already published a wide breadth of guidance online and is continuing to develop this guidance as we near the date of GDPR implementation. I mentioned an example just now. Only recently, she updated her small business portal to make it easier for organisations to access GDPR-related resources. Given that the commissioner is already so active in this field, which the Government and, I think, my noble friend fully support, I fear that additional prescriptive requirements would distract rather than contribute.
Lord Storey (LD)
While the Minister is responding on this issue—I was not allowed to move Amendment 87A because somebody shouted out “not moved” when it was in fact not moved by myself—could he include schools in his comments?
Lord Ashton of Hyde
We were going to have a debate on that—I gather that the Liberal Democrats did not want to bring it forward—but the basic answer is that schools have responsibilities under the GDPR. They particularly have responsibility for personal data relating to children; they already have extensive responsibilities under the current Data Protection Act. So it is very much an issue for schools. In this case, to help them, the Department for Education is going to provide guidance—and I am assured that it will be out very soon. So they have particular responsibilities. The kind of personal data that they handle on a regular basis is very important; I believe that the noble Lord, Lord Clement-Jones, mentioned an example of some of the personal data that they hold in relation to free school meals, which has to be protected and looked after carefully. One benefit for the school system, as far as other organisations are concerned, is that they will have central guidance from the Department for Education—and I repeat that that is due to come out very soon.
I turn to Amendment 125, also proposed by my noble friend. It seeks to introduce a requirement on the Secretary of State, when making regulations under Clause 132, to consider making provision for a discounted charge—or no charge at all—to be payable by small businesses, small charities and parish councils to the Information Commissioner. Clause 132(3) already allows the Secretary of State to make provision for cases in which a discounted charge or no charge is payable. The new charge structure will take account of the need not to impose additional burdens on small businesses. This may include a provision in relation to small organisations.
I am happy to confirm that the Government have given very serious consideration to the appropriate charges for smaller businesses as part of the broader process for setting the Information Commissioner’s 2018 charges. The new charge structure will take account of the need to not impose additional burdens on small businesses. It is important to note, however, that small and medium organisations form a significant proportion of the data controllers currently registered with the ICO—approximately 99%, in fact. The process of determining a new charge structure is nearly complete and we will bring forward the resulting statutory instrument shortly. I would, however, like to put one thing on the record: in putting together that charging regime, we have been mindful of the need to ensure that the Information Commissioner is adequately resourced during this crucial transitional period, but I want to be clear that the Government do not consider the 2018 charges to be the end of the story. There may well be more we can do further down the line to modernise a regime that has not been touched for the best part of a decade.
Amendment 127 would place an obligation on the commissioner, in her annual report to Parliament, to include an economic assessment of the actions that the commissioner has taken on small businesses, charities and parish councils. I agree with my noble friend about the importance of the commissioner being aware of the impact of her approach to regulation during this crucial period. As I said to the commissioner when we met, we must nevertheless also be mindful of maintaining her independence in selecting an approach. Even if we did not think that having an independent regulator was important—I want to be clear: we do —articles 51 to 59 of the GDPR impose a series of particular requirements in that regard. But, all of the above notwithstanding, I agree with a lot of what my noble friend has said this afternoon.
Turning to amendment 107A, in the name of the noble Lord, Lord Clement-Jones, concerning the registration of data controllers, I remember the Committee debate where the noble Lord tabled a similar amendment. I hope that I can use this opportunity to provide further reassurance that it is unnecessary. The Government replaced the existing notification system with a new system of charges payable by data controllers in the Digital Economy Act. We did this for two reasons. First, the new GDPR has done away with the need for notification. Secondly, and consequentially, we needed a replacement system to fund the important work of the Information Commissioner. All this Bill does is re-enact what was done and agreed in the Digital Economy Act last year. We legislated on this a year earlier than the GDPR would come into force because changes to fees and charges need more of a lead time to take effect. As I have already said, these new charges must be in place by the time the GDPR takes effect in May and we will shortly be laying regulations before Parliament which set those fees.
Returning to the subject matter of the amendment, under the current data protection law, notification, accompanied by a charge, is the first step to compliance. Similarly, under the new law, a charge will also need to be paid and, as under the previous law, failure to pay the charge is enforceable. We have replaced the unwieldy criminal sanction with a new penalty scheme—found in Clause 151 of the Bill.
Lord Clement-Jones
My Lords, can the Minister explain what the trigger is for the payment of the fees?
Lord Clement-Jones
That is not what I meant. That is not a trigger; it is notification by the data controller.
Lord Ashton of Hyde
If you process and control data, you will need to make a notification to the data commissioner. I do not understand why that is not a trigger.
Lord Ashton of Hyde
Exactly, so my point, which I was coming to but which the noble Lord has very carefully made for me, is that, in doing this, the Information Commissioner will obviously keep a list of the names and addresses of those people who have paid the charge. The noble Lord may even want to call that a register. The difference is, unlike the previous register, it will not have all the details included in the previous one. That was fine in 1998, and had some benefit, but the Information Commissioner finds it extremely time-consuming to maintain this. In addition, as regards the information required in the existing register, under the GDPR that now has to be notified to the data subjects anyway. Therefore, if the noble Lord wants to think of this list of people who have paid the charge as a register, he may feel happier.
I have talked about the penalty sanction. When the noble Lord interrupted me, I was just about to say—I will repeat it—that the commissioner will maintain a database of those who have paid the new charge, and will use the charge income to fund her operation. So what has changed? The main change is that the same benefits of the old scheme are achieved with less burden on business and less unnecessary administration for the commissioner. The current scheme is cumbersome, demanding lots of information from the data processors and controllers, and for the commissioner, and it demands regular updates. It had a place in 1998 and was introduced then to support the proper implementation of data protection law in the UK. However, in the past two decades, the use of data in our society has changed dramatically. In our digital age, in which an ever-increasing amount of data is being processed, data controllers find this process unwieldy. It takes longer and longer to complete the forms and updates are needed more and more often, and the commissioner herself tells us that she has limited use for this information.
My hope is that Amendment 107A is born out of a feeling shared by many, which is to a certain extent one of confusion. I hope that with this explanation the situation is now clearer. When we lay the charges regulations shortly, it will, I hope, become clearer still. The amendment would simply create unnecessary red tape and may even be incompatible with the GDPR as it would institute a register which is not required by the GDPR. I am sure that cannot be the noble Lord’s intention. For all those reasons, I hope he will withdraw the amendment.
Baroness Neville-Rolfe
I thank the Minister for going into the issues in such detail, and for the support that is now being offered by the ICO through the transition. We have heard about the helpline, the websites, and new guidance—not only for parish councils, which I regard as a major breakthrough, but for small business and schools. That is all very good news. There will be a charge but it will be modulated, as I understand it, in a way to be decided and brought before the House in an order. I think the Minister understands the wish of this House not to load lots of costs on smaller businesses as a result of this important legislation, which we all know is necessary for a post-Brexit world.
My only concern related to the Minister’s comments on what we might put into the report, because he rightly said that the Information Commissioner had to be independent, which I totally agree with. Equally, I thought that without undermining her independence, it was possible to ask her to report on economic matters and, for example, on how business learns about data protection and how that is going. I do not know whether he is able to confirm that today, but he made a point about independence and it was not clear whether it would be possible to put something into the reporting system.
Lord Ashton of Hyde
We are keen that the Information Commissioner be independent and is seen to be independent, and I know that the commissioner herself is aware of that. I cannot commit to anything today, but I will certainly take back my noble friend’s question and see what can be done while maintaining the Information Commissioner’s independence.
Baroness Neville-Rolfe
On that basis, I am happy to beg leave to withdraw my amendment.
Lord Stevenson of Balmacara
My Lords, in earlier amendments I have tried to interest the Government in the idea of establishing what I loosely call a copyright of one’s personal data. Another possibility put forward in a different amendment is that one could think of data provided by individuals as matters that would be controlled by them through the role of a data controller. I am not trying to be in any sense critical of the Government’s response to this but I think I was ahead of my time—a nice place to be if you can—and I do not think the idea is quite ready to be turned into legislative form. I suspect that the solution lies in a data ethics commission, an idea that we will come to later in the agenda. Such a commission may be established by statute, either today or through some future legislative process, so that we can begin to think through these important issues. I was interested in a lot of what the noble Lord, Lord Mitchell, said in his introduction of the amendment because it has bearing on these issues.
I agree with the noble Lord, Lord Clement-Jones, that we are not quite there yet. However, worrying issues have been raised that need to be addressed, particularly in relation to data that is acquired, used and commercially exploited without necessarily being certain that we are getting value for money from it. The amendments are relatively mild in their exhortations to the Government, but they certainly point the way to further work that should be done and I support them.
Lord Ashton of Hyde
My Lords, I am grateful to the noble Lord, Lord Mitchell, for taking the time to come and see me to explain these amendments. We had an interesting conversation and I learned a lot—although clearly I did not convince him that they should not be put forward. I am grateful also to the noble Lords, Lord Clement-Jones and Lord Stevenson, who said, I think, that there may be more work to do on this—I agree—and that possibly this is not the right time to discuss these issues because they are broader than the amendment. Notwithstanding that, I completely understand the issues that the noble Lord, Lord Mitchell, has raised, and they are certainly worth thinking about.
These amendments seek to ensure that public authorities—for example, the NHS—are, with the help of the Information Commissioner, fully cognisant of the value of the data that they hold when entering into appropriate data-sharing agreements with third parties. Amendment 107B would also require the Information Commissioner to keep a register of this data of “national significance”. I can see the concerns of the noble Lord, Lord Mitchell. It would seem right that when public authorities are sharing data with third parties, those agreements are entered into with a full understanding of the value of that data. We all agree that we do not want the public sector disadvantaged, but I am not sure that the public sector is being disadvantaged. Before any amendment could be agreed, we would need to establish that there really was a problem.
Opening up public data improves transparency, builds trust and fosters innovation. Making data easily available means that it will be easier for people to make decisions and suggestions about government policies based on detailed information. There are many examples of public transport and mapping apps that make people’s lives easier that are powered by open data. The innovation that this fosters builds world-beating technologies and skills that form the cornerstone of the tech sector in the UK. While protecting the value in our data is important, it cannot be done with a blunt tool, as we need equally to continue our efforts to open up and make best use of government-held data.
In respect of health data, efforts are afoot to find this balance. For example, Sir John Bell proposed in the Life Sciences: Industrial Strategy, published in August last year, that a working group be established to explore a new health technology assessment and commercial framework that would capture the value in algorithms generated using NHS data. This type of body would be more suitable to explore these questions than a code of practice issued by the Information Commissioner, as the noble Lord proposes.
I agree that it is absolutely right that public sector bodies should be aware of the value of the data that they hold. However, value can be extracted in many ways, not solely through monetary means. For example, sharing health data with companies who analyse that data may lead to a deeper understanding of diseases and potentially even to new cures—that is true value. The Information Commissioner could not advise on this.
That sharing, of course, raises ethical issues as well as financial ones and we will debate later the future role and status of the new centre for data ethics and innovation, as the noble Lord, Lord Stevenson, mentioned. This body is under development and I am sure that this House would want to contribute to its development, not least the noble Lord, Lord Clement-Jones, and his Select Committee on Artificial Intelligence.
For those reasons, I am not sure that a code is the right answer. Having heard some of the factors that need to be considered, I hope the noble Lord will not press his amendment.
Perhaps I may offer some further reassurance. If in the future it emerged that a code was the right solution, the Bill allows, at Clause 124, for the Secretary of State to require the Information Commissioner to prepare appropriate codes. If it proves better that the Government should provide guidance, the Secretary of State could offer his own code.
There are technical questions about the wording of the noble Lord’s amendment. I will not go into them at the moment because the issues of principle are more important. However, for the reasons I have given that the code may not be the correct thing at the moment, I invite him to withdraw his amendment.
Lord Mitchell
My Lords, I thank all noble Lords for their contributions to this short debate. I also thank the Minister for agreeing to see me prior to the Recess and for his comments today. However, this is an issue of precision—and we need precision on the statute book. All that has been suggested to me, which is that it can be found elsewhere or will be looked at in the future, does not give the definitive answer we require. That is why I would like to test the opinion of the House.
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
“(2) But this section does not authorise the making of a disclosure which is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016. (3) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (2) has effect as if it included a reference to that Part.”
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
“Approval of first guidance about regulatory action
(1) When the first guidance is produced under section 153(1)— (a) the Commissioner must submit the final version to the Secretary of State, and(b) the Secretary of State must lay the guidance before Parliament.(2) If, within the 40-day period, either House of Parliament resolves not to approve the guidance—(a) the Commissioner must not issue the guidance, and(b) the Commissioner must produce another version of the guidance (and this section applies to that version).(3) If, within the 40-day period, no such resolution is made—(a) the Commissioner must issue the guidance, and(b) the guidance comes into force at the end of the period of 21 days beginning with the day on which it is issued.(4) Nothing in subsection (2)(a) prevents another version of the guidance being laid before Parliament.(5) In this section, “the 40-day period” means—(a) if the guidance is laid before both Houses of Parliament on the same day, the period of 40 days beginning with that day, or(b) if the guidance is laid before the Houses of Parliament on different days, the period of 40 days beginning with the later of those days.(6) In calculating the 40-day period, no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses of Parliament are adjourned for more than 4 days.”
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
Data Protection Bill [HL]
Lord Ashton of Hyde ExcerptsWednesday 10th January 2018
(6 years, 4 months ago)
Lords ChamberRead Full debate Data Protection Act 2018 View all Data Protection Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 74-III Third marshalled list for Report (PDF, 153KB) - (8 Jan 2018)
Lord Ashton of Hyde
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, I turn to the new offence of reidentifying de-identified personal data. As a new clause, with no corresponding parallel in the 1998 Act, it has been a hot topic throughout the passage of the Bill and the Government welcome the insightful debates on it that took place in Committee. Those debates have influenced our thinking on aspects of the clause and I will elaborate on the amendments we have tabled in response to concerns raised by noble Lords.
By way of background, Clause162(3) and (4) provide a number of defences for circumstances where reidentification may be lawful, including where it was necessary for the prevention or detection of crime, to comply with a legal obligation, or was otherwise justified as being in the public interest. Further defences are available where the controller responsible for de-identifying the personal data, or the data subjects themselves, consented to its reidentification.
As noble Lords will recall, concerns were raised in Committee that researchers who acted in good faith to test the robustness of an organisation’s de-identification mechanisms may not be adequately protected by the defences in the current clause. Although we continue to believe that the public interest defence would be broad enough to cover this type of activity, we recognise that the perception of a gap in the law may itself be capable of creating harm. We therefore tabled Amendments 151A, 156A and 161A to fix this. These amendments introduce a new, bespoke defence for those for whom reidentification is a product of their testing of the effectiveness of the de-identification systems used by other controllers.
A number of safeguards are included to prevent abuse. I particularly draw noble Lords’ attention to the requirement to notify either the original controller or the Information Commissioner. In addition, the researcher cannot intend to cause, or threaten to cause, damage or distress to a legal person. That means, for example, that those self-styled researchers who attempt to use their discovery to extort money from either the data controller or the data subjects they have reidentified are not protected by this new defence.
We fully appreciate the importance of the work undertaken by legitimate security researchers. I assured noble Lords in Committee that it was in no way our intention to put a halt on this activity where it is done in good faith, and the amendments I am moving today make good on that commitment. On that basis, I beg to move.
Lord Clement-Jones (LD)
My Lords, I thank the Minister. We on these Benches had considerable activity from the academic community, security researchers and so on. I am delighted that the Minister has reflected those concerns with the new amendments.
Lord Stevenson of Balmacara (Lab)
My Lords, I echo the noble Lord’s words. We also welcome these amendments. As has been said, this issue was raised by the academic community, whose primary concern was that the way the Bill had originally been phrased would make important security research illegal and weaken data protection for everyone by that process. It would also mean that good and valid research going on in our high-quality institutions might be at risk.
I do not in any sense want to question the amendments’ approach, but I have been in further correspondence with academics who have asked us to make a few points. I am looking for a sense that the issues raised are being dealt with. Either a letter or a confirmation that these will be picked up later in the process of the Bill is all that is necessary.
First, it is fairly common-sense to say that companies probably would not be very happy if a researcher picks up that they are not doing what they say on the tin—in other words, if their claim that their data has been anonymised turns out not to be the case. Therefore, proposed new subsection (2)(b) may well be used against researchers to threaten or shut down their work. The wording refers to “distress” that might be caused, but,
“without intending to cause, or threaten to cause, damage or distress to a person”,
seems a particularly weak formulation. If it is only a question of distress, I could be distressed by something quite different from what might distress the noble Lord, who may be more robust about such matters. I think that is a point to take away.
Secondly, we still do not have, despite the way the Minister introduced the amendment, definitions in the Bill that will work in law. “Re-identification”, which is used in the description and is part of the argument around it, is still not defined. Therefore, in proposed new Clause 161A(3), as mentioned by the noble Lord who introduced the amendment, the person who,
“notified the Commissioner or the controller responsible for de-identifying the personal data about the re-identification”,
has to do this,
“without undue delay, and … where feasible, not later than 72 hours after becoming aware of it”.
That is a very tight timetable. Again, I wonder if there might be a bit more elasticity around that. It does say “where feasible”, but it puts rather tight cordon around that.
We are trying to make it safe for researchers and data scientists to report improperly de-identified data, but in the present arrangements the responsibility for doing all this lies with the researcher. We are asking a researcher to go to court, perhaps, and defend themselves, including arguing that they have satisfied Clause 162(2)(a) and (b) and Clause 162(3)(a), (b) and (c), which is a fairly high burden. All in all, we just wonder whether how this has been framed does the trick satisfactorily. I would be grateful for further correspondence with the Minister on this point.
Finally, there is nothing in this amendment about industry. It may not be necessary but it raises a question that has been picked up by a couple of people who have corresponded with us. The burden, again, is on the researcher. Is there not also a need to try to inculcate a culture of transparency in the anonymisation processes which are being carried out in industry? In other words, if there is a duty on researchers to behave properly and do certain things at a certain time, should there not also be a parallel responsibility, for example, on companies to properly and transparently anonymise the data? If there is no duty for them to do it properly, what is in it for them? It may well be that that is just a natural aspect of the work they are doing, but maybe the Government should reflect on whether they are leaving this a little one-sided. I put that to the Minister and hope to get a response in due course.
Lord Ashton of Hyde
I thank the noble Lord, Lord Clement-Jones, for his support on this. I accept that there may be things to look at that the noble Lord, Lord Stevenson, has mentioned. It is better to consider those things properly rather than give an answer off the top of my head at the Dispatch Box. I certainly commit to taking those points back and having a look at them. It may be that, when we correspond, something can take place in another place. In the meantime, I beg to move.
Lord Ashton of Hyde
Lord Ashton of Hyde
“Re-identification: effectiveness testing conditions
(1) For the purposes of section 162, in relation to a person who re-identifies information that is de-identified personal data, “the effectiveness testing conditions” means the conditions in subsections (2) and (3).(2) The first condition is that the person acted—(a) with a view to testing the effectiveness of the de-identification of personal data,(b) without intending to cause, or threaten to cause, damage or distress to a person, and(c) in the reasonable belief that, in the particular circumstances, re-identifying the information was justified as being in the public interest.(3) The second condition is that the person notified the Commissioner or the controller responsible for de-identifying the personal data about the re- identification—(a) without undue delay, and(b) where feasible, not later than 72 hours after becoming aware of it.(4) Where there is more than one controller responsible for de-identifying personal data, the requirement in subsection (3) is satisfied if one or more of them is notified.”
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
“(2) Before making regulations under this Act, the Secretary of State must consult—(a) the Commissioner, and(b) such other persons as the Secretary of State considers appropriate.(2A) Subsection (2) does not apply to”
Lord Ashton of Hyde
“(a) to amend or replace the definition of “the Data Protection Convention” in section 2;(b) to amend Chapter 3 of Part 2 of this Act;(c) to amend Part 4 of this Act;(d) to make provision about the functions of the Commissioner, courts or tribunals in connection with processing of personal data to which Chapter 3 of Part 2 or Part 4 of this Act applies, including provision amending Parts 5 to 7 of this Act;(e) to make provision about the functions of the Commissioner in connection with the Data Protection Convention or an instrument replacing that Convention, including provision amending Parts 5 to 7 of this Act;(f) to consequentially amend this Act.”
Lord Ashton of Hyde
Baroness Kidron (CB)
My Lords, I too want to speak to this amendment, to which I have added my name, and I acknowledge and welcome the support of the Information Commissioner on this issue. I support the collective redress of adults but I specifically want to support the noble Lord, Lord Stevenson, on this question of children.
At Second Reading and again in Committee I raised the problem of expecting a data subject who is a child to act on their own behalf. Paragraph (b) of proposed new subsection (4B) stipulates that,
“in the case of a class consisting of or including children under the age of 18, an individual may bring proceedings as a representative of the class whether or not the individual’ s own rights have been infringed".
This is an important point about the right of a child to have an advocate who may be separate from that child and whose own rights have not been abused. Children cannot take on the stress and responsibility of representing themselves and should not be expected to do so, nor should they be expected to police data compliance. Children whose data is processed unlawfully or who suffer a data breach may be unaware that something mischievous, harmful or simply incorrect has been attached to their digital identity. We know that data is not a static or benign thing and that assumptions are made on what is already captured to predict future outcomes. It creates the potential for those assumptions to act as a sort of lead boot to a child’s progress. We have to make sure that children are not left unprotected because they do not have the maturity or circumstances to protect themselves.
As the noble Lord, Lord Stevenson, said, earlier this evening, the age-appropriate design code was formally adopted as part of this Bill. It is an important and welcome step, and I thank the Minister and the new Secretary of State Matt Hancock, whose appointment I warmly welcome, for their contribution to making that happen. Children’s rights have been recognised in the Bill, but rights are not meaningful unless they can be enacted. Children make up nearly one-third of all users worldwide, but rarely do they or the vast majority of their parents have the skills necessary to access data protection.
The amendment would ensure that data controllers worked to a higher standard of data security when dealing with children’s data in the first place. Rather than feeling that the risk of a child bringing a complaint was vanishingly low, they would know that those of us who advocate for and protect the rights of children were able to make sure that their data was treated with the care, security and respect that we all believe it deserves.
Lord Ashton of Hyde
My Lords, I am very grateful to noble Lords for their comments. Although I have to say at the outset that we have some reservations about these amendments, I think we might be able to find a way forward this evening. I have listened to the noble Lords, Lord Stevenson and Lord Clement-Jones, and taken their remarks on board, but I have especially listened to the noble Baroness, Lady Kidron, who spoke about children. We have some experience of her input in this Bill. I obviously take a lot of notice of what the noble Lords, Lord Stevenson and Lord Clement-Jones, say but, as you know, familiarity and all that, so I have certainly listened especially to the noble Baroness, Lady Kidron.
The Government are sympathetic to the idea of facilitating greater private enforcement, but we continue to believe that the Bill as drafted provides significant and sufficient recourse for data subjects. In our view, there is no need to invoke article 80(2) of the GDPR, with all the risks and potential pitfalls that that entails. To recap, the GDPR provides for, and the Bill allows, data subjects to mandate a suitable non-profit organisation to represent their interests following a purported infringement. The power will, in other words, be in their hands. They will have control over which organisation is best placed to represent their interests, what action to take and what remedy to seek. The GDPR also places robust obligations on the data controller to notify the data subject if there has been a breach which is likely to result in a high risk to the data subject’s rights and freedoms. This is almost unprecedented and quite different from, say, consumer law where compulsory notification of customers is rarely proportionate or achievable.
These are very significant developments from the 1998 Act and augment a rapidly growing list of enforcement options available to data subjects. That list already includes existing provisions for collective redress, such as group litigation orders, which were used so effectively in the recent Morrisons data breach case, and the ability for individuals and organisations to independently complain to the Information Commissioner where they have concerns about how personal data is being processed.
What these initiatives have in common is that they, like the GDPR as a whole, seek to empower data subjects and ensure they receive the information they need to enforce their own data rights. By comparison, Amendments 175 and 175A would go much further. I stress that, as I have already said, we are not against greater private enforcement, and I have borne in mind the points the noble Baroness made about children. We also have reservations about the drafting and purpose of these amendments, all of which I could of course go through at length, if the House wishes, but in view of what I am about to say, I hope that will not be necessary.
Since Committee, the Government have reflected on the principles at stake here and agree it would be reasonable for a review to be undertaken, two years after Royal Assent, of the effectiveness of Clause 173 as it is currently drafted. The Government are fully prepared to look again at the issue of article 80(2) in the context of that review. We are serious about this. We will therefore amend the Bill in the other place to provide for such a review and to provide the power for the Government to implement its conclusions.
In view of that, I would be very grateful if the noble Lord will withdraw his amendment this evening and other noble Lords do not press theirs.
Baroness Kidron
Before the Minister sits down, can I get absolute reassurance from him that this is not pushing it into the future, where it will languish? Will the Government be looking to this review to actually solve the problem that we have put forward on behalf of children?
Lord Ashton of Hyde
It absolutely will not and cannot languish, because we are going to put in the Bill—so on a statutory basis—that this has to be reviewed in two years. It will not languish. As I said, if we were just going to kick it into the long grass, I would not have said what I just said, which everyone can read. We would not have put it in the Bill and made the commitments we have made tonight.
Lord Clement-Jones
My Lords, I thank the Minister for his response and am only sorry that I, rather than the noble Lord, Lord Stevenson, have the privilege of responding. The Minister came back, I thought, very helpfully. The noble Baroness, Lady Kidron, made a superb case for these rights to be implemented earlier rather than later. If we are creating all those new rights for children under the Bill, as she says, we must have a mechanism to enforce them. I believe the Minister said that the review would be two years after the Bill comes into effect. I hope that that is an absolute—
Lord Clement-Jones
Let us hope that that is treated as an important timetable. I was interested that the Minister expressed his sympathy—I know that that was genuine—but then went on to talk about risks and pitfalls, and very significant developments, which all sounded a bit timid. I understand that we are in relatively novel territory, but it sounded rather timid in the circumstances, especially where the rights of children are concerned.
One point the Minister did come back on was group litigation orders. Class actions are very different from the kinds of representative action that we are talking about under these amendments. For example, they would be anonymous and the consent of the data subject would not have had to be acquired, unlike with a class action. They are very different, which is worth pointing out. There are some egregious issues in terms of the use of people’s data—the Equifax case, Uber, and so on. We need to remind ourselves that these are really important data breaches and there need to be remedies available. We, on this side of the House, and those on the Benches of the noble Baroness, Lady Kidron, will be vigilant on this aspect.
The one area of clarification that I did not receive from the Minister was whether this would apply to processing of personal data that was not under the GDPR. Will it be under the applied GDPR, and would that apply?
Lord Ashton of Hyde
I think it applies to the whole thing, but if I am wrong, I will certainly write to everyone who is here.
Earl Attlee
The noble Lord may be right but, of course, it is equally very rare that we turn down an affirmative order.
Lord Ashton of Hyde
My Lords, I am grateful to all those who have participated. I take on board what the noble Lord, Lord Clement-Jones, said about our brief debate on the final day in Committee, so we can do a bit tonight. I hope that by the end I will be able to convince noble Lords that this is not quite as sinister as has been made out. I am going to duck, if I may, the argument about the affirmative procedure and whether it should be amendable, particularly given other Bills that are coming before this House soon. After all, I was only reappointed yesterday.
It is helpful to have this opportunity to further set out the purpose and operation of Clauses 175 to 178 and, in doing so, explain why the amendments in this group are unnecessary—except, of course, the government amendments. As noble Lords will now be aware, the Bill creates a comprehensive and modern scheme for data protection in the UK. No one is above the law, including the Government. That partly answers the point made by the noble Lord, Lord Clement-Jones. The Secretary of State cannot do whatever she or he wants because they are subject to the GDPR and the Bill, like everyone else. When I go further and explain the relationship between this framework and the ICO’s guidance, if it is issued, I hope that will further reassure noble Lords.
While we are on this subject, the reason the Bill uses the term “framework” is that it uses the term “code of practice” to refer to a number of documents produced by the Information Commissioner. As this document will be produced by the Government, we felt that it would be clearer not to use that term in this case. It is purely a question of naming conventions—nothing significant at all.
Inherent in the execution of the Government’s functions is a requirement to process significant volumes of personal data, whether in issuing a passport or providing information on vulnerable persons to the social services departments of local authorities. The Government recognise the strong public interest in understanding better how they process that data. The framework is therefore intended to set out the principles and processes that the Government must have regard to when processing personal data. Government departments will be required to have regard to the framework when processing personal data. This is not a novel concept. Across the country, organisations and businesses produce guidance on data processing that addresses the specific circumstances relevant to them or the sector in which they operate. This sector, or organisation-specific guidance, coexists with the overarching guidance provided by the Information Commissioner.
This framework adopts a similar approach; it is the Government producing guidance on their own processing of data. The Information Commissioner was consulted during the preparation of these clauses and will be consulted during the preparation of the framework itself to ensure that the framework complements the commissioner’s high-level national guidance when setting out more detailed provision for government.
Lord Clement-Jones
My Lords, the Minister said that the Information Commissioner was consulted, but what was her view? Can the Minister put on record what the Information Commissioner’s view about the final architecture was? She has made it fairly clear to us that this is not satisfactory, as far as she is concerned.
Lord Ashton of Hyde
When I said that she was consulted, I said what I meant. This is one of the few areas in the whole Bill, I think, where we do not have complete agreement with the Information Commissioner. I think that she is worried about complications regarding independence and the extent of her authority in this. I am not pretending that she is completely happy with this, but I hope that I will address how the two interlink and we can come back to this if the noble Lord wants. I acknowledge his point that she is not completely happy with this but, as I said before, it is one of the few areas in the whole Bill where that is the case. Certainly, we have a very good relationship with the Information Commissioner, as evidenced earlier this evening by her agreement on pay and flexibility. Importantly though, whatever she thinks of it, she will be consulted during the preparation of the framework itself to ensure that it complements the commissioner’s high-level national guidance when setting out more detailed provision for the Government.
As I explained in Committee, the Government’s view is that the framework will serve to further improve the transparency and clarity of existing government data processing. The Government can and should lead by example on data protection. Amendment 176 is designed to address concerns about the potential for confusion if the framework is produced by the Government, I respectfully suggest that these concerns are misplaced. The Secretary of State’s framework will set out principles for the specific context of data processing by government. It will, as I have set out, complement rather than supplant the commissioner’s statutory codes of practice and guidance, which will, by necessity, be high level and general as they will apply to any number of sectors and organisations.
Requiring the commissioner to dedicate time and resources to producing guidance specifically for the Government, as the noble Lord’s amendment would require, would hardly seem to the best use of her resources. Just like a sectoral representative body, it is the Government who have the experience and knowledge to devise a framework that speaks to their own context in more specific terms.
Lord Clement-Jones
I am sorry to keep interrupting the Minister, but is he therefore saying that the frameworks cover government and that the ICO’s codes of practice cover government as well?
Lord Ashton of Hyde
Absolutely. The framework exists like other sectoral guidance that is produced, under the overarching guidance produced by the Information Commissioner. In a minute I will provide further reassurance on how the two interlink.
As I have already set out, the Government will consult the commissioner in preparing the framework. Importantly, she is free to disregard the Government’s framework wherever she considers it irrelevant or to disagree with its contents.
Lord Stevenson of Balmacara
I know that we should not be intervening like this on Report, but the phrasing that the Minister just used is of interest—to the noble Lord, Lord Clement-Jones, as well, I think. What does “irrelevant” mean? Can the Minister unpick that a little? Either the Secretary of State has the power to do something, or not. If that power is conditional on the ICO having given broad agreement to it, under what conditions can the ICO intervene? Can it be because the commissioner regards it as irrelevant? What does that mean?
Lord Ashton of Hyde
I think it means that, if the Information Commissioner were considering the case of a data breach committed by the Government, she would normally take the framework into account, as she would take into account the guidance that other sectors produce. If, however, there were circumstances in which she did not consider that it was relevant for her investigation into whether the law had been broken, given that she is the enforcer of the law, she would be free to disregard it. The words “must take into account” mean that she is not bound by the provision but has to take it into account. She is, after all, the regulator who sits above all data processors.
I reiterate that the guidance will provide reassurance to data subjects about the approach the Government take to processing data and the procedures that they follow when doing so. It will help further strengthen the Government’s compliance with the principles of the GDPR.
Amendments 177 and 178, in the name of the noble Lord, Lord Clement-Jones, concern the process for making the guidance. The guidance may be revised if Parliament does not approve it or if it needs adjustment to be compatible with international obligations. It would be odd and irresponsible to abandon the problem these clauses are trying to resolve if Parliament does not approve the guidance. A revised version should be prepared. Similarly, data protection rules are often international in nature and indeed this Bill is based on three international instruments, so revising the guidance to maintain compatibility must be the sensible approach.
Amendments 179 and 180 seek to limit the effect of the guidance. Persons must have regard to the guidance but there may be good reasons why processing data in a particular set of circumstances can lawfully be conducted in a manner outside the guidance. As long as regard has been had to the guidance but good reasons for departing from it or for its non-applicability have been established, it is perfectly proper and within the norm of usual public law principles to do so. Clause 178 ensures that those principles are enforced.
In our view, the existence of a framework in no way impinges upon the commissioner’s independence. Clause 178(5) simply requires the commissioner to take a provision in the Government’s framework into account if it appears to her to be relevant to the matter in hand. For example, if the commissioner were to investigate a data breach by a government department, she may consider it relevant to consider whether or not that department had applied the principles set out in the framework. It is standard practice for the Information Commissioner to take into account relevant sectoral guidance when examining issues related to the processing of personal data by a particular sector. Clause 178(5) simply reflects that practice. Furthermore, nothing in Clause 178(5) constrains the Information Commissioner in any way. She is free to disregard the Government’s framework wherever she considers it irrelevant or to disagree with its contents, as I said.
Government Amendments 184A and 184B are technical amendments and are similarly designed to assist with the Government’s compliance with the GDPR. Most bodies falling within the Bill’s definition of government departments are Crown bodies. Such bodies cannot contract with each other as the Crown cannot contract with itself. This constitutional quirk means that the usual GDPR requirement that controllers and processors must have a contractual relationship is impossible to satisfy where one department is processing on behalf of another. These amendments resolve this situation by allowing departments to enter into a memorandum of understanding between each other instead and remain GDPR-compliant.
On the basis of my comments, I hope that the noble Lord will feel able to withdraw his amendment and support the government amendments in this group.
Lord Stevenson of Balmacara
I thank the Minister very much indeed for his very full response. I will read it carefully in Hansard but at this stage, although it is a rather complicated issue, I understand where he is coming from and I think we can probably let it rest at this point. If there is anything else, I will write to him rather than prolong the discussion today.
I opined that negative resolutions were rarely voted down and cited 1940 as the last occasion that that happened, but I was wrong. Some 40 years ago on 24 October 1979, the Paraffin (Maximum Retail Prices) (Revocation) Order 1979 was defeated late at night during what appears to have been rather unsavoury activity by members of the Labour Party who hid in cupboards and things and then jumped out. Mr Hamish Gray, whom Members may recall, was unable to sustain the standing order and it had to be brought back later on—it was all very complicated and Hansard is wonderful about it. I beg leave to withdraw the amendment.
Lord Clement-Jones
My Lords, we are at the last knockings on most of the Bill. It is rather ironic that one of the most important concepts that we need to establish is a new data ethics body—a new stewardship body—called for by the Government in their manifesto, by the Royal Society, by the British Academy and by many others. Many of those who gave evidence to our Select Committee want to see an overarching body of the kind that is set out, and with a code of ethics to go with it. We all heard what the Minister had to say last time; we hope that he can perhaps give us more of an update on the work being carried out in this area.
This should not be and I do not think it will be a matter of party contention; I think there will be a great deal of consensus on the need to have this kind of body, not just for the narrow field of data protection and the use of data but generally, for the wider application in the whole field, whether it is the internet of things or artificial intelligence, and so on. There is therefore a desire to see progress in fairly short order in this kind of area. One of the reasons for that is precisely because of the power of the tech majors. We want to see a much more muscular approach to the use of data by those tech majors. It is coming down the track in all sorts of different varieties. We have seen it in debates in this House; no doubt there will be a discussion tomorrow about social media platforms and their use of news and content and so on. This is therefore a live issue, and I very much hope that the Minister will be able to tell us that the new Secretary of State is dynamically taking this forward as one of the top items on his agenda.
Lord Ashton of Hyde
My Lords, I can certainly confirm that the new Secretary of State is dynamic. In this group we are in danger of violently agreeing with each other. There is a definite consensus on the need for this; whether there will be consensus on the results is another matter. I agree with the analysis given by the noble Lord, Lord Stevenson, that the trouble is that to get this into the Bill, we have to concentrate on data. As the noble Lord, Lord Clement-Jones, outlined, many other things need to be included in this grouping, not least artificial intelligence.
I will briefly outline what we would like to do. For the record, we understand that the use of data and the data-enabled technologies is transforming our society at unprecedented speed. We should expect artificial intelligence and machine learning to inform ever more aspects of our life in increasingly important ways. These new advances have the potential to deliver enormous benefits to society and the economy but, as we are made aware on a daily basis—like the noble Lord, Lord Clement-Jones, I am sure that this will be raised tomorrow in the debate that we are all looking forward to on social media—they are also raising a host of new and profoundly important challenges that we need to consider. One of those challenges, and the focus of this Bill, is protecting people’s personal data—ensuring that it is collected, retained and used appropriately. However, the other challenges and opportunities raised by these technologies go far beyond that, and there are many examples that I could give.
Therefore, in the Autumn Budget the Government announced their intention to create a centre for data ethics and innovation to maximise the benefits of AI and data technologies to society and the economy, and to help identify and address the ethical challenges that they pose. The centre will advise the Government and regulators on how they can strengthen and improve the way that data and artificial intelligence are governed. It will also support the effective, innovative and ethical use of data and artificial intelligence so that we maximise the positive impact that these technologies can have on our economy and society.
We are in the process of working up the centre’s terms of reference in more detail and will consult on this soon. The issues it will consider are pressing, and we intend to set it up in an interim form as soon as possible, in parallel to this consultation. However, I fully share the noble Lord’s view that the centre, whatever its precise form, should be placed on a statutory footing, and I can commit that we will bring forward appropriate legislation to do so at the earliest opportunity. I accept the reasoning from the noble Lord, Lord Stevenson, on why this is not the appropriate place due to the limitations of this Bill, and I therefore hope that he will be able to withdraw his amendment.
Lord Stevenson of Balmacara
I am very grateful to the Minister for that response. That is probably the right way forward, and I beg leave to withdraw the amendment.
Lord Ashton of Hyde
(a) its functions under the data protection legislation, or(b) its other functions relating to the Commissioner’s acts and omissions.(2) But this section does not authorise the making of a disclosure which is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016. (3) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (2) has effect as if it included a reference to that Part.”
Lord Ashton of Hyde
“the made affirmative resolution procedure | section 169” |
Lord Ashton of Hyde
Lord Ashton of Hyde
BBC: Unfair Pay
Lord Ashton of Hyde Excerpts(6 years, 4 months ago)
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The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer given by my right honourable friend the Secretary of State for the Department for Digital, Culture, Media and Sport to an Urgent Question in another place. The Statement is as follows:
“Thank you very much, Mr Speaker. Like most Members of the House, I strongly support the BBC, and like most of the licence fee payers who fund it, I would go so far as to say that I love it. Now in this digital age, perhaps more than ever, if the BBC did not exist, we would need to invent it. But as a treasured national institution, the BBC must not only uphold, but be a beacon for, the British values of fairness that this nation holds dear. That includes fair pay and equal pay for equal jobs. By introducing reforms in the BBC charter, this Government, under the leadership of my two predecessors, have vastly improved BBC transparency and shone a light on gender and pay issues at the BBC. This new transparency includes requiring the BBC annually to publish the salary details of all BBC staff paid more than £150,000. Publishing these details for the first time in July resulted in much-needed public scrutiny of pay at the BBC. The BBC’s overall gender pay gap stands at around 9%. But the figures also show that two-thirds of those earning over £150,000 were men, and reveal a lack of staff from BAME backgrounds among top earners.
At the time of publication, some male presenters were understandably uncomfortable with the results. John Humphrys even acknowledged that he would not necessarily be able to explain his salary of £600,000. This is a matter not just of levelling women’s pay up: it is a matter of pay equality. Working for the BBC is public service and a great privilege, yet some men at the BBC are paid far more than other equivalent public servants. The BBC has now begun to act, and I welcome that. But more action—much more action—is needed, especially when BBC foreign editors can earn more than Her Majesty’s ambassadors in the same jurisdiction. In the specific case of Carrie Gracie, I welcome the EHRC’s decision to look into the issues she has raised. The EHRC is the regulatory body responsible for policing equal pay and it is for it, not the Government, to investigate this matter further and take further action if necessary.
Of course, the BBC is operationally and editorially independent of government—rightly so. The director-general has, commendably, committed to sorting out this issue by 2020 and we will hold him to that. I understand that its report on on-air presenter salaries will be published in the next few weeks. But we expect the BBC to observe pay restraint and deliver value for money for licence fee payers. We will watch closely. The BBC must act. The brilliant women working at all levels of the BBC deserve better”.
Lord Griffiths of Burry Port (Lab)
My Lords, I am grateful to the Minister for repeating that Answer to an Urgent Question given in another place. I must say, as I take part in this exercise for the first time, that I had expected in an Urgent Question to hear a note of urgency. While I sense a little self-congratulation about measures that have been brought in and reforms that have been introduced, as regards the BBC I do not sense that deep desire to achieve objectives that are in line with public expectations at large, deeply held and urgently sought. Of course, the measures that are mentioned must continue, but 2020 seems a long way away. We understand that the BBC must look after its own internal affairs, but can the Government assure us that, with some urgency, all appropriate measures will be applied to encourage, goad and pressurise it to come forward with a solution to these questions, so that the beacon referred to can serve as a benchmark against which to measure progress in other sectors of our public life?
Lord Ashton of Hyde
I stress that the Government absolutely support urgent action on this. Of course, it was this Government who brought in the requirement for the BBC to publish salaries over £150,000, which is one of the reasons why we are talking about this issue today. The Statement makes it quite clear that the Government expect the BBC to act in accordance with what we have expected it to do as regards the gender pay gap. We understand that when you have a deep-seated and probably long-established problem, it takes some time to deal with and it is a difficult management issue. But let us be under no illusions—the Government expect the director-general and the new unitary board to deal with that. They are the people who have responsibility for that. We are pleased that the EHRC will look at this. For individuals, it has been illegal to pay people unequally because of their gender for over 40 years, and we expect all companies—not only the BBC but especially the BBC, which is a public institution —to obey the law.
Baroness Burt of Solihull (LD)
My Lords, the Minister says that it has been illegal to pay women less than men for 40years. However, is not the crux of the matter that many employers, even those as publicly exposed as the BBC, will pay as little as they think they can get away with, and they think they can get away with paying women less than men? The BBC is in a pickle and it needs to sort itself out, otherwise it will be sorted out by the EHRC. Any employer worth his or her salt appreciates that women are often more hard-working and conscientious—indeed, better employees —than men. However, men know how to demand, and we are conditioned to believe that demanding things, especially money, is strident and inappropriate. But when men do it, that is assertive and appropriate. Enough already—let us have full transparency over pay for everyone. What can the Minister do to ensure that that happens at the BBC and other public bodies?
Lord Ashton of Hyde
I agree with some of what the noble Baroness has said but I do not agree with the general statement that sometimes women work harder or are better at their jobs than men. We are talking about equality here. People should be paid the same for doing the same job and should be treated equally and given the same opportunities. As far as the BBC is concerned, this Government have made transparency available—both by introducing transparency regulations on the gender pay gap for all organisations with more than 250 employees and by making the BBC publish the details of employees earning over £150,000—so that we can look at this situation. We can get all organisations to do what they should be doing, which we all support, by making it transparent when they do not do so, so that their customers, employees and all the stakeholders that deal with them know the sort of organisations they are.
Baroness McIntosh of Pickering (Con)
Does my noble friend not agree that it is unacceptable for this situation to continue so many months after the initial transparency regulations were introduced, with the exposure of the differences in salaries? Had this particular female employee of the BBC not resigned on a matter of principle, it would have been swept under the carpet. How can this situation, where she is so well qualified as a Mandarin speaker and outperforms her two male colleagues, persist?
Lord Ashton of Hyde
I am certainly not going to get into the details of whether she outperformed her male colleagues. People should be paid equally for doing the same jobs, but that does not mean that two people, be they men or women, will be paid exactly the same at different levels, as there are different levels of experience. The fact is that, if somebody does not believe that they are receiving equal pay for gender reasons, under the Equality Act they can go to an employment tribunal.
Baroness Bakewell (Lab)
My Lords, I speak as a long-term employee of the BBC, which, I have to say, has taken a long time to obey this law. The BBC is not above the law. It is good at arguing a very complicated case, which in fact is very simple: people should be given equal pay for doing an equal job. The BBC will say, “Ah, yes, we need until 2020 to sort it out. It is very difficult”, but it is not very difficult. The BBC tries to feed off the difference between information and entertainment. Different entertainers receive entirely different fees. Graham Norton is not paid the same as Jonathan Ross, and Sandi Toksvig is not paid the same as Sue Perkins. They are entertainers, but journalists are something else. An absolute condition of their job is that they are efficient and able in the same sort of way. Four people called foreign editors in different zones of the globe are not identical. Who could claim that the reporter, Jon Sopel, who works out of Washington, has a more difficult job than Carrie Gracie, who works out of China? It may well be said that she has a tougher job trying to penetrate the news situation there than he has in Washington, which is abundant with news, leads, leaks and so on. Therefore, I invite the Minister not to be confused by the BBC’s strategy of, and skill in, confusing the issue, which is very straightforward: women want equal pay for equal work, and they have waited too long to get it.
Lord Ashton of Hyde
I am very grateful for that instruction. I have listened to everything that the noble Baroness has said, particularly with reference to her experience of being paid by the BBC. Of course, the BBC has not totally disregarded the situation—it knows that we take it seriously. I remember that we spent a long time discussing pay transparency during the charter renewal process. The compromise position that was reached—that we should make the BBC publish all salaries above £150,000—was not straightforward, and I cannot say that the BBC particularly wanted to do it. However, we made it do that and, as a result, we are talking about these issues today, whereas it is unlikely that we would be doing so had we not done that. As a result, the BBC committed to publish its gender pay gap data earlier than was required under the law, it carried out an independent audit of pay for the majority of its staff, and it is undertaking a separate review of on-air presenters, editors and correspondents, which will come out soon.
Baroness Stowell of Beeston (Con)
My Lords, I very much support the stance that the women at the BBC are taking in demanding equal pay. I support also the fact that they have made it clear that they are not seeking pay increases, and are raising awareness of and concerns about high pay for some of the top presenters. Has my noble friend had the opportunity to reflect on the allegation in Carrie Gracie’s public letter at the weekend that the BBC often settles cases out of court—these are disputes about pay—and demands non-disclosure agreements? What is the Government’s view of the BBC, a public organisation, using NDAs?
Lord Ashton of Hyde
That is a genuine issue to consider. These things have to be taken on a case-by-case basis, and there are times when non-disclosure agreements are right. However, the BBC has to remember that it is a mainly publicly funded organisation and has to set an example of how to treat male and female employees and all questions of diversity. We expect the BBC to do that and to be an example, and we will continue to make sure that it is.
Data Protection Bill [HL]
Lord Ashton of Hyde ExcerptsWednesday 13th December 2017
(6 years, 5 months ago)
Lords ChamberRead Full debate Data Protection Act 2018 View all Data Protection Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 74-II Manuscript amendment for Report (PDF, 72KB) - (13 Dec 2017)
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, I am not quaking in my boots when addressing an amendment from my noble friend, first, because he is a helpful man and, secondly, because I am getting quite used to it, to be quite honest, particularly after the Digital Economy Bill.
As we heard, my noble friend’s amendment would restrict the provision in the Bill that allows anti-doping bodies to process sensitive personal data without consent to just UK Anti-Doping. It would permit other bodies to process sensitive data only if allowed by the Secretary of State. This House agrees, I think, how important sport is and that it can only continue to be successful if it is, and is seen to be, clean. It should therefore come as no surprise when I say that the Government remain fully committed to combating doping and protecting the integrity of sport. We are at one with the noble Baroness, Lady Billingham, on that.
At the moment, a large number of organisations, both domestic and international, work to prevent and eliminate doping in sport in this country in accordance with agreed international standards. UKAD, as the UK’s national anti-doping organisation, plays a vital role. But we must recognise that other bodies, some of which have been mentioned, also have important roles to play, including in particular sports’ national governing bodies. The amendment would see UKAD as the only body with automatic responsibility for processing sensitive data for the purposes of preventing doping in the UK. Other bodies would have a role only if named by the Secretary of State.
I am not convinced that this is a positive change for a number of reasons. First, it is not immediately clear to me why such an amendment is needed. UKAD’s role, and that of other sporting bodies, is set out in the national anti-doping policy, and this arrangement is largely seen to be effective, not just here in the UK but internationally. But we can never be complacent, and that is why my honourable friend the Minister for Sport, Tracey Crouch, has already commissioned a review of UKAD. That review is looking closely at UKAD’s functions, efficiency and effectiveness and has consulted widely. The findings of this review will be published early next year and will inform the revision of the UK national anti-doping policy, which will also take account of the recently published review of the criminalisation of doping. As part of this policy revision process, the Government will consult all relevant stakeholders, and will no doubt welcome discussions with my noble friend Lord Moynihan.
In addition, the arrangement outlined in my noble friend’s amendment would appear to present a number of risks. As he mentioned, the World Anti-Doping Code and the UNESCO convention set a clear framework that allows major events organisers and international federations to conduct their own anti-doping activities. Their ability to test cannot, without risking a breach of the convention, be contingent on them having obtained prior authorisation by a national Government.
Sports bodies change regularly as new sports are recognised and new bodies gain funding and manage competitions. A new round of designations would be required every time a new sporting body came into being or organised competitions or an old body changed its name. Under the system proposed by my noble friend, even a short delay in doing so could allow a drugs cheat to escape sanction by challenging the validity of the data processing undertaken by a sports body weeks, months or even years prior. That is not least because the Secretary of State’s decision to designate a body would itself be subject to judicial review. This could turn a relatively straightforward process of designation into a lengthy process of review, consultation and litigation. Similarly, if international bodies wanted to hold competitions in this country, they would, on the face of it, need to be officially designated by the Secretary of State. In a competitive marketplace, this could discourage organisers of major events from bringing their events to the UK.
To summarise, the Government believe that my noble friend’s amendment will put the UK’s status as a leading destination for clean sport at risk. It will create uncertainty in the sporting world and will be out of step with the recognised international framework that is already in place. It is widely understood that UKAD is the recognised body in the UK with responsibility for enforcing anti-doping rules. But the Bill must not be used as a tool to limit interventions by internationally recognised sporting bodies, such as the England and Wales Cricket Board, the Football Association and the Rugby Football Union. They, like UKAD, should be allowed to set and enforce anti-doping rules in sports. The fact that these bodies are not governed entirely by UKAD’s rules does not make their need to process data without consent for anti-doping purposes any less important. We are clear on that, the World Anti-Doping Code is clear on that, and the bodies themselves are clear on that.
Indeed, I have a statement from four of our leading sports bodies: the Football Association, the Rugby Football Union, the England and Wales Cricket Board, and the British Horseracing Authority. They are not speaking with different voices. This is a joint quote, which they have authorised me to announce. They say:
“We welcome further discussion with all parties on this issue but do not believe that this Amendment, that has not been discussed with or subject to any consultation with our organisations, is the right way to proceed today”.
In answer to the noble Viscount, Lord Falkland, who asked about the horseracing authority, I am afraid he should direct his question to my noble friend Lord Moynihan, because it is his amendment that would change the current system. Therefore, while I understand the desire of my noble friend to assist in the fight against doping, which we all support, I do not believe that the Bill is the proper vehicle to achieve it; nor do I believe that my noble friend’s amendment would in fact achieve it.
Let me be clear: if my noble friend or the noble Lord, Lord Stevenson, want to keep talking about anti-doping in general, I am very happy to do so, as is my honourable friend the Minister for Sport; I have already said that. But the Government have spent a great deal of time working with UKAD and sports bodies to design paragraph 23 of Schedule 1, and I have heard nothing in the debates in Committee and today that would suggest that we should alter our view before the review of UKAD is complete. On that basis, I urge my noble friend to withdraw his amendment.
Lord Moynihan
My Lords, I am grateful to all noble Lords who have contributed. I will respond to the Minister first. I was disappointed that he did not respond to the suggestion of the noble Lord, Lord Clement-Jones, which I also touched on, namely, that it was important, if at all possible, to take away this amendment and consider it in greater detail so that the Government could bring it back at Third Reading. The Government have decided not to do so, and in so doing they have argued the following points.
The first was that there has been inadequate consultation—for example, no discussion between the BHA and myself. If I may respond to the noble Viscount, Lord Falkland, I had a conference call with, I think, four BHA people last Friday to discuss in detail the consequences of the proposed amendment. It was a constructive and helpful discussion. It was very important to them that they did not come under the umbrella of UKAD, and they would not. Amendment 31 says very specifically that the references are,
“to be read as references to … UKAD … , its successor bodies or a body designated by the Secretary of State”.
They asked me whether that would be a cumbersome process, and I said, “Certainly not”. The Secretary of State could respond to a letter pretty much immediately by saying, “Continue the good work that you’re doing”. That would be absolutely fine under the amendments I have tabled to Schedule 1.
This would apply to any organising group that exercises authority in anti-doping in this country outside UKAD, which covers the wide majority. Indeed, UKAD can test any athlete in this country, if it so wishes, at any level of competition. But there are organisations which will operate outside UKAD, for example the international federations and the International Olympic Committee. The other organisations which the noble Lord mentioned operate within UKAD in any event. Organisations such as the Football Association and the Rugby Football Union have a relationship with it to continue its good work, not least because those are Olympic sports, so they are covered in any event by the phrase,
“a body designated by the Secretary of State”.
I want further to assist my noble friend the Minister by suggesting that, instead of simply leaving it at that, every single point that he made could be covered by the regulations that he is being asked to bring forward under the Bill. There would be no uncertainty; there would be complete clarity, and we would have the opportunity to address those points in detail prior to that secondary legislation coming forward.
Why was it important to amend a general catch-all clause on sport to deal with these issues? It was important so that the BHA knew its position and could continue the good work with minimum bureaucracy, simply by a letter recognising that it continues the good work. I have heard nobody—not from the Bill team, which I met, not the policy advisers from DCMS and not the BHA, which I had a long conference call with last Friday—mention that there is anybody who seeks to change the way in which the BHA does excellent work in this area. It would simply be recognised on the face of the secondary legislation and so it should be—
Lord Ashton of Hyde
Does my noble friend not accept, then, that if the situation is exactly the same as now, he is proposing a new process which will possibly be subject to litigation and achieve exactly the same status that we have today?
Lord Moynihan
First, there is no evidence whatever that it is subject to litigation. If the Secretary of State—
Lord Ashton of Hyde
I am sorry to interrupt again. Of course there has not been any litigation because the system that my noble friend proposes has not been put in place.
Lord Moynihan
But there are no grounds for litigation. If the BHA is doing good work in anti-doping then, in the context of this paragraph, all that is being done is for that to be recognised within the legislation and by the Secretary of State in designating the BHA to continue its good work. Who would wish to litigate on that? Nobody is changing any relationship between the BHA, and those who work within it, and the excellent anti-doping policy that it currently runs. I am sure the Government would not want to change that.
The reason why this should be on the face of the Bill and in the secondary legislation—the regulations—is that this is of serious importance. We are asking athletes to give up a lot of personal data, and we should protect them when giving up personal data. It is important and right for an anti-doping policy that they should do so, but its importance should be recognised and my noble friend the Minister did not even mention it in his response. It is about the data management.
I conclude by saying simply this, and I will happily give way to my noble friend the Minister. If he is prepared, as I hope he is, to follow the initiative of the noble Lord, Lord Clement-Jones, which I fully support, on improving the wording of the amendment, I stand absolutely ready to find consensus with all governing bodies, the Government, the Bill team and everybody else who is interested in the subject, including all Members of your Lordships’ House, in order to find an improved amendment. I think the amendment works perfectly satisfactorily, and I have just tried to explain that to my noble friend and the House, but I am sure it could be improved by further discussions. Is my noble friend the Minister willing to take it away and bring it back at Third Reading? If he is, I will happily give way.
Lord Ashton of Hyde
I have to be very clear about what we are doing, particularly as this is the first group on our first day on Report. To be absolutely clear, I am not content to return to this issue at Third Reading of the Data Protection Bill because we have heard nothing that would suggest to us that paragraph 23 would benefit from further consideration at this time. I have to repeat that the wording on the face of the Bill was drawn up—this is a quote from the governing bodies that I mentioned—
“in close consultation with the sports governing bodies and the Sport and Recreation Alliance and we support the original wording as the right way forward”.
Lord Moynihan
I hear what the Minister said. We have had many discussions with different members of governing bodies and others who have argued that this provision could be improved. Indeed, the noble Lord, Lord Stevenson, and I sat opposite UKAD and governing bodies last Monday, so what the right hand in some of these governing bodies is doing is clearly not what the left hand is doing. I think this amendment is a significant improvement that protects the rights of individual athletes. That is what we should be doing in this Bill because it is about data management. Regretfully, because I hoped that the Minister would take this away and come back with a consensus on something better, I wish to test the opinion of the House.
Lord Ashton of Hyde
Lord Stevenson of Balmacara
My Lords, I intend to be brief, but not because this is a minor matter—quite the reverse. This is one of the biggest concerns that we should have about how we engage through the public view on the issues that affect many of our citizens. I am talking particularly here about safeguarding, especially in relation to sport, although it also has wider concerns, wherever an adult has responsibility for a child.
The public concern has mostly focused on issues such as football and swimming in recent months and the last few years, but there are wider concerns that have been dealt with under various inquiries, and we await the results. The narrow issue relating to this Bill is that those individuals or bodies that have a protective function of safeguarding children or, indeed, vulnerable adults, and need to process sensitive data, even though they have no legal obligation to do it and have no statutory function may be an issue that the Government wish to return to. There is no doubt that UK Anti-Doping has the powers that are necessary in sports. But when members of the public and their children are not being sufficiently looked after, extra vigilance must be taken, and we must ensure that the Bill in no way affects that.
I have tabled this amendment, sent to us by a number of bodies involved in sport, but there are other groups outside the sporting area with interests here. The Government are currently discussing these issues and hoping to come to a conclusion shortly. On that basis, I hope that the Minister can give us some indication of the progress that has been made here and, if he can, some sense of the timescale in which the Government will act. I beg to move.
Lord Ashton of Hyde
My Lords, I will be brief. Amendment 33 seeks to introduce a condition permitting the processing of special categories of personal data where it is necessary for the purposes of safeguarding children or vulnerable adults. The Government take the issue of safeguarding extremely seriously and recognise the need for the Bill to provide certainty to organisations with safeguarding responsibilities, so I thank the noble Lord, Lord Stevenson, for raising this issue.
Organisations in all sectors wish to ensure that they have a lawful basis when they process special categories of data for safeguarding purposes. In many—maybe even all—circumstances, organisations will be able to rely on existing conditions under the Bill: for example, where processing is necessary for the purposes of preventing or detecting unlawful acts or where the processing is necessary for the exercise of functions under legislation or under a rule of law. However, I recognise that there is an argument for having a specific safeguarding condition to put the issue beyond doubt.
This is an issue which requires careful consideration and noble Lords may be assured that my department is actively working across government and with stakeholders in the voluntary and private sectors to consider the issue. We must be mindful, for example, of the broader implications of defining safeguarding and vulnerability within data protection law. Inclusion of such definitions within the Bill could have unforeseen consequences for other legislation which uses the same, or similar, terminology. As such, I can assure noble Lords that the Government are sympathetic to the objective of this amendment. However, given the importance of this issue and the potential impacts both within and beyond data protection law, we are sure that further consideration is required before any amendment can be brought forward. I can assure noble Lords that we will continue to examine this issue urgently. While it will not be possible to conclude our consideration in time for Third Reading, I am confident of doing so in time for Committee stage in the Commons. On the understanding that we will return to the issue of safeguarding in the Commons, I hope that the noble Lord feels able to withdraw his amendment this evening.
Lord Stevenson of Balmacara
I am grateful to the Minister for giving such a precise response to this, not only on the substance, recognising the issue and confirming that it needs to be put beyond doubt that the powers will exist, but giving us the assurance that this matter will be brought back in the Commons, which is wonderful. I beg leave to withdraw the amendment.
Lord Ashton of Hyde
Lord Ashton of Hyde