National Security Bill

Lord Stevenson of Balmacara Excerpts

2nd reading
Tuesday 6th December 2022 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I want to pick up two points raised by my noble friend Lord Coaker in his introduction, and which others have touched on in the course of the debate. They are the proposals in the Bill to criminalise legitimate public interest journalism, and to ask whether the measures included within this Bill, and the similar measures in the Online Safety Bill, are sufficiently harmonised.

The Minister has explained the rationale for the Bill and noted the influence of the preceding Law Commission review. However, the Joint Committee on Human Rights points out that, although the Bill is broadly in line with the Law Commission recommendations, it does not include all of them, and as a result there are risks that the Bill would

“criminalise behaviour that does not constitute a threat to national security”

and

“interfere unnecessarily and disproportionately with rights to freedom of expression and association”.

A free and independent press facilitates government accountability and the public’s right to know, but the nature and scope of the proposed espionage offences will have a chilling effect, discouraging sources—including whistleblowers—from coming forward and engendering a risk-averse environment in media organisations. Others have argued that the failure to include a public interest defence in the Bill poses a grave threat to investigative journalism and its sources.

Clause 5 outlines conditions under which unauthorised entry to a prohibited place would be a criminal offence. The noble Lord, Lord Marks of Henley-on-Thames, expressed concern that photographers capturing material as part of their journalistic duties would thereby fall into scope of the Bill. The Law Commission envisaged a public interest defence available to anyone—including journalists and photographers—charged with an unauthorised disclosure under the Official Secrets Act 1989 on the basis that

“it was in the public interest for the information disclosed to be known by the recipient; and … the manner of the disclosure was in the public interest.”

I accept the concerns expressed by the noble Lord, Lord Evans, and the noble Baroness, Lady Manningham-Buller, but I believe that the courts would be able to reach a view on such cases, and I urge the Government to introduce the defence.

The Law Commission also advocated having a statutory commissioner to investigate allegations of wrongdoing or criminality made by civil servants or members of the public where disclosures of such concerns would be an offence under the 1989 Act. There may be other protections for whistleblowers, as has been pointed out, but there is a principle at stake here. The report I have already quoted noted that the

“recommendation for a statutory commissioner, fortified by a public interest defence, … is about a fair law that takes seriously the public interests in national security and in accountable Government”,

so it would have a dual function. Who could resist calling for “fair law” anyway? That would be nice.

A public interest defence enables matters of public interest to be scrutinised and debated and allows malpractice to be exposed and addressed. I suggest to the Government that this could help them with the problem they are having with the issue of “legal but harmful” material and freedom of expression in the Online Safety Bill. The intention in this Bill is clear: to ensure that platforms in scope of the Bill do not have the right to take down content from “recognised news publishers”, and that their websites are also exempt from the Bill’s scope. But the problem lies in defining “news-related material” and determining what constitutes “recognised news publishers”. As the Joint Committee for pre-legislative scrutiny of the Online Safety Bill—I declare my interest as a member—recognised, introducing a public interest test in the Bill for this purpose would be very helpful in this context, and it would have the additional benefit of ensuring that hundreds of independently regulated specialist publishers’ titles are not excluded from the protections afforded in the Online Safety Bill.

I look forward to the Minister’s response.

Queen’s Speech

Lord Stevenson of Balmacara Excerpts

Thursday 12th May 2022 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, as the noble Baroness, Lady Bonham-Carter, noted when she spoke earlier, DCMS has six Bills in this Session for which it is the lead department, and one—the digital markets, competition and consumer Bill—for which it is joint lead with BEIS. This is a large and significant amount of activity, and it is good to see it coming from a department that has often not pulled its weight as much as its importance would suggest. I am sad that time limits mean that I cannot deal with much of what is to come, and I am going to restrict my remarks to the media Bill and the Online Safety Bill.

The appearance of the recent White Paper on broadcasting, Up Next, was a bit of surprise. We normally have to wait, sometimes for years, before getting insights into the Government’s thinking on big policy issues, particularly if, as in this case, they deal with controversial issues not covered in their manifesto. In truth, this is more of a Green Paper than a traditional White Paper—perhaps a smoky green. There are some welcome decisions on policy on the future of public service broadcasting and on prominence and standards in the digital world, but flagrant disregard of the evidence received about the proposed privatisation of Channel 4 and an almost universal rejection of the arguments from experts, commentators, Select Committees and Conservative Back-Benchers in the other place—and indeed here, on Tuesday, rather bravely, by the second supporter of the humble Address, the noble Baroness, Lady Fraser. These suggest that the Government have got this wrong, so what on earth is it doing in the list of Bills?

Up Next gets right much of the history, thinking, careful policy development and past practice which has created our brilliant public service broadcasting system, which the Government admit is the envy of the world. Some of the changes proposed will build on that and can be supported. But the truth is that unless the Government radically change the carefully constructed remit for Channel 4, it will not sell, as no private sector owner could make the returns it will need to recoup its investment and then go on to make profits. That means that the distinctive public service remit and support of the creative industries that Channel 4 has delivered in recent years will be lost and with it will go the 100 years of public service broadcasting that the Government say they want to preserve. Up next? What next? If the Government proceed with this proposal, they will find that they have a battle on their hands. With Red Igor, as we must call him—sadly, the noble and learned Lord, Lord Judge, is not in his place—egging us on, who knows where we will go?

Like others, I welcome the changes the Government have made to the original draft of the Online Safety Bill, which has the potential to establish an effective framework for the regulation of social media companies operating in the UK. I suggest to the Government that they work with the considerable expertise that exists in your Lordships’ House, including among those of us who served on the excellent Joint Select Committee which undertook the pre-legislative scrutiny of the Bill. This could get us to a much better place on a number of the key issues; we are not far apart.

There are issues that would be the subject of early meetings and I shall suggest an agenda for the Minister to consider once this debate is over. The drafting of the Bill is overly complex. For example, while the objectives of the legislation now appear in the Bill, they are in Schedule 4. Given that they underwrite the Bill’s safety duties, this seems a very bizarre choice that is likely to cause confusion. There needs to be a clearer separation of powers between Ministers and the regulator. The draft Bill takes far too many powers for the Secretary of State, particularly egregious being the Secretary of State’s power to direct Ofcom to modify codes of practice to bring them in line with government policy—so much for an independent regulator.

The Bill quickly loses the clarity and focus of its earlier parts and much of the detailed material should be left to the regulator to determine. In particular, the proposed rigid categorisation of companies and the strictures on remediation for legal but harmful content surely have to flow from the risk assessments carried out by the regulator. This attempt to micromanage the legislation has meant that the Bill does not properly address the issue raised by my noble friend Lord Hunt: how to balance freedom of speech with the huge volumes of racism, misogyny, anti-Semitism, disinformation and misinformation that are not criminal but are oppressive and harmful.

The late, but welcome, decision to include scam adverts in the Bill raises the issue of how advertising is regulated more generally. The current ASA self-regulatory regime for the content of ads and the weakness of the penalties which can be applied need to be urgently reformed, but the whole system needs to be controlled by Ofcom. The regime described in the Bill could and should be employed by other regulators to make markets work better and offer more protection to the public. Surely this would be a good time to make sure that all regulators, including the Electoral Commission, have the statutory powers they need and ensure that joint action has full statutory backing.

Our Joint Committee felt strongly that there should be a continuing role for Parliament in this fast-moving and technically challenging area. A possible model here is the Joint Committee on Human Rights; perhaps the Minister could address this when he comes to respond. Finally, a glaring anomaly in the Bill is the complete absence of any systematic approach to ensure that consumer complaints and redress against social media publications are properly dealt with. Ofcom will have the power to ensure that there are systems in place, but despite the fact that there is already concern about this issue and the public expectation is that there will be action, nothing appears in the Bill. It is time for the Government to act.

Extradition (Provisional Arrest) Bill [HL]

Lord Stevenson of Balmacara Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 23rd March 2020 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I thank both noble Lords who have spoken. I was looking at the noble Baroness, Lady Ludford, slightly strangely because it is unusual to speak twice on the same group of amendments. It really does not matter because these are very unusual times, so it is not a precedent.

I do not know whether noble Lords want me to go through the full arguments today or whether they want to return to them at Third Reading; I sense that that is the mood of the House. Noble Lords have made their arguments. For the reason that the noble and learned Lord, Lord Judge, is not here and would like a further crack at this whip, I suggest that we let this lie for the moment and return to it at Third Reading, if that is okay with noble Lords.

[Lord Stevenson of Balmacara (Lab)]

I am sorry to interrupt. The sensibility behind the noble Baroness’s comment is that this a matter that we can come back to at Third Reading. Without wishing to be overly bureaucratic about it, following her helpful line in allowing issues on Report to be taken in a more relaxed way, a rule in the Companion is quite clear that it is with the leave of the Minister that matters can be raised again. Is she saying that, if these amendments are withdrawn, she will accept that they may be brought back for further debate and discussion? That would be sufficient for the clerks to be able to allow us to do that.

[Baroness Williams of Trafford]

I most certainly am saying that. For me to lay out arguments today, with the noble Baroness saying what she said about coming back to this at Third Reading, would seem a little futile. That is absolutely what I am saying.

Data Protection Bill [HL]

Lord Stevenson of Balmacara Excerpts

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

Moved by

[Lord Stevenson of Balmacara]

108B: Clause 15, page 9, line 14, at end insert—
“( ) Regulations made under this section may not amend, repeal or revoke the GDPR after the United Kingdom leaves the EU.”

[Lord Stevenson of Balmacara (Lab)]

I am delighted to move Amendment 108A, which is an extremely important amendment. No, it is not—Amendment 108B is. If noble Lords want to know, this has not been a good day so far. I attended a wonderful memorial service for Lord Joffe, at which many noble Lords were present, and which was a moving and grand experience—so moving that I left the church without my bag, which contained all my possessions: my keys, wallet and everything else. I then spent most of the time until about five minutes ago worrying about that and not concentrating as I should have done on the important business of the House. This has a happy ending. Somebody found the bag, did not hand it in, took it home, thought it belonged to the other Lord Stevenson, the noble Lord, Lord Stevenson of Coddenham, spent four hours trying to find him, and eventually decided that it belonged not to him but to me. I now have my bag back and I feel much better.

[Noble Lords]

Hooray!

[Lord Stevenson of Balmacara]

I thank your Lordships.

Amendment 108B would prevent regulations under this section being used to amend, repeal or revoke the GDPR after Brexit. This may seem a rather tough charge to lay at the Government’s door. However, concerns about adequacy after Brexit will be so important that it may be in the Government’s best interest to ensure that the Bill contains no hint that the GDPR after Brexit, which will be the responsibility of this Parliament and this Parliament alone, could be amended simply by secondary legislation. If the Government follow this argument they will see that it has a symmetry behind it that encourages the approach taken here, in that when we are a third party and need to rely on an adequacy agreement the GDPR will be seen to be especially ring-fenced.

I will also speak to the other amendments in this group, two of which come from recommendations on delegated legislation made by your Lordships’ House. Amendment 110B is about replacing the current requirement for a negative procedure with a requirement for an affirmative one. In order to explain that, it is probably best if I quote from the report itself. The DPRRC took the view that the framework for the transfer of personal data to third countries should be provided on a test greater than just simply the negative procedure. This is a major issue. One possible example is if the Government were to use the argument that it was in the public interest to transfer bulk personal data held by a UK government department to the agencies of a foreign power—a remote possibility, I know. That would be of interest to the House and probably would need to be debated. The recommendation is that a change should be made from a negative to an affirmative procedure, and that is what this amendment seeks to do.

In a similar vein, the proposal to delete Clause 21 comes from the DPRRC report. The report says that the committee was,

“puzzled by the inclusion of … a suite of delegated powers … to provide by regulations for various exemptions and derogations from the obligations and rights contained in the GDPR which, as noted above, may … be exercised in respect of ‘the applied GDPR’. The memorandum fails to explain why those powers are considered inadequate, or why the Government might need to have recourse to the distinct powers in section 2(2) of the 1972 Act—which allows Ministers to make regulations”,

around EU obligations. The point is that there will be a period after Royal Assent to the Bill and when the country leaves—if it does—the EU in which it is possible that the Government will wish to make regulations. The committee assumes that this clause has been included just in case the Government decide that these powers are required. But the committee goes on to say:

“We consider it unsatisfactory that the Government should seek to take this widely drafted power without explaining properly what it might be used for”.


I therefore call on the Government to do so if it is appropriate at this time.

The final two amendments in the group, Amendments 180A and 180B, play to the same issue: that the powers, however they are finally settled, will still be wide ranging and grant the Government of the day a considerable amount of power to introduce rules by secondary legislation. In a sense, that is inevitable given the way that things are going, and we are not attacking the main principle. The question is around what safeguards would be appropriate. On these powers we think it would be appropriate for the Government to consult not only the commissioner, for which there is a provision, but the data subjects affected by the regulations. This is not a power that is currently there and we recommend that the Government consider it. I beg to move.

[Lord Arbuthnot of Edrom (Con)]

My Lords, I hope I will not add to the troubles of the noble Lord, Lord Stevenson, when I say that I am troubled by a couple of his amendments, Amendments 108B and 180A. The former suggests that the Government should not be permitted to,

“amend, repeal or revoke the GDPR”.

I know the Government will have responsibility for the provisions of the GDPR, but these are surely provisions for which the regulations either are or are not. They are European Union regulations, and I would not have thought the Government would have the power to amend or repeal them.

I am also confused, as so often, by the fact that we have already discussed whether Clause 15 should stand part of the Bill but are now considering an amendment to it. No doubt that is just one of the usual vagaries that leads to my confusion about the procedures of this House.

I move on to Amendment 180A, which suggests that the Secretary of State must consult not only the commissioner but data subjects. I am not sure how on earth he could find out who those data subjects were in order to consult them. Therefore, due to practical concerns, I hope the noble Lord will not press the amendment to a Division.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, I am thrilled that the day of the noble Lord, Lord Stevenson, has got better, and I hope that at the end of my speech it will get better still. Things are definitely looking up for the noble Lord, I hope.

I will be reasonably brief on this because we have debated other delegated powers before and much of what my noble friend Lady Chisholm said on day two of Committee holds here.

On Amendment 108B, I agree with much of what my noble friend Lord Arbuthnot said. I shall answer the noble Lord, Lord Paddick, in a different way which will address his point. The amendment would prevent the Secretary of State using the delegated power contained in Clause 15 to,

“amend, repeal or revoke the GDPR”.

I am happy to reassure the noble Lord not only that the Government do not intend to use the power in Clause 15 to amend, repeal or revoke the GDPR but that they actively cannot. As the opening line of Clause 15 describes, the power contained in it permits the Secretary of State only to,

“make provision altering the application of the GDPR”.

The noble Lord’s amendment is therefore unnecessary.

Clause 17(1)(a) would allow the Secretary of State to specify in regulations circumstances in which a transfer of personal data to a third country is necessary for an important reason of public interest not already recognised in law. Public interest is one of a number legal bases on which a controller can rely when justifying such a transfer. This is very much a backstop power. In many cases, reasons of public interest will already be recognised in law, so the power is likely to be needed only when there is a pressing need to recognise a particular but novel reason for transferring personal data as being one of public interest. We are wary of any change such as that proposed in Amendment 110B, which may hamper its exercise in emergency situations such as financial crises.

Amendment 180B seeks to amend Part 7 of the Bill to ensure that the power contained in Clause 21 cannot be exercised without consulting the Information Commissioner. The clause is a backstop power which allows the Secretary of State to amend Part 2 of Chapter 3 of the Bill—that is, the applied GDPR and associated provisions—to mirror changes made using Section 2(2) of the European Communities Act 1972 in relation to the GDPR. As I am sure we are all aware, a Bill is being considered in another place that would repeal the European Communities Act, so this power is already specific and time-limited. We are not sure what consulting the Information Commissioner before exercising it would add. However, these points notwithstanding, we are happy to consider the role of Clause 21 and Amendments 110B and 180B in the context of the Government’s response to the Delegated Powers and Regulatory Reform Committee’s recent report on the Bill.

The Government have previously committed to considering amendments substantively similar to Amendment 180A and I am happy to consider that amendment as well. However, I echo what my noble friend Lady Chisholm said about the importance of the law being able to keep up with a fast-moving field.

With those reassurances, I hope the noble Lord will feel able to withdraw the amendment.

[Lord Stevenson of Balmacara]

It certainly is turning out to be my day. I am grateful to the Minister for his comments. We are perhaps anticipating a further debate that we may have to have on the basis of what the Government intend to take back to the DPRRC, but it is good to have a sense of where the thinking is going, which I am sure we will look at in a sympathetic light. Where he ended up will be an appropriate way of progressing on this point.

On the Minister’s first point in relation to Clause 15, I hesitate to ask because I know he is already burdened, but it would be helpful if he can write to me about subsection (1) because our reading of the line:

“The following powers to make provision altering the application of the GDPR”,


could not, according to what he has said, change the GDPR itself, only the way that it is applied. We may be talking only about nuances of language. Interpretations from the far north, where the noble Lord resides, down to the metropolitan south may well not survive the discussion, so I would be grateful to have something in writing. With that, I beg leave to withdraw the amendment.

Amendment 108B withdrawn.

--- Later in debate ---

Moved by

[Lord Stevenson of Balmacara]

108C: Schedule 5, page 154, line 29, after “by” insert “any relevant”

[Lord Stevenson of Balmacara]

My Lords, we turn to Schedule 5, which deals with an issue covered in the Data Protection Act 1998 and comes forward again in this Bill. It relates to how the accreditation of certification providers is carried out in practice and, for a primary piece of legislation, goes into rather a lot of detail about the way reviews are carried out and appeals are heard. These are probing amendments to try to put on the record some of the issues.

Amendments 108C and 110A would ensure that documentation submitted by the applicant must be relevant to the matter to be considered by the commissioner. This is quite a widely drafted power and it would be otiose if the applicant raises issues that are not narrowly to the point.

Amendment 108D is a probing amendment into the grounds on which an applicant can bring an appeal. At the moment, all the applicant appears to have to show is that they are “dissatisfied”, which seems a rather broad way of opening up a discussion on an important issue. The word “dissatisfied” does not sound as though it will restrict the ability of people to put in submissions on this point.

Amendment 108E deals with the timing. There is a two-stage review process, each stage lasting 28 days, so it is odd that we have different timings. I would be grateful for a comment on that. I do not think there is a particular issue; perhaps the problem is the way it is expressed.

Amendment 108F deals with the very wide powers specified for the grounds to appeal against those appointed members of an appeal panel. Again, I do not see anything wrong with that, but it would be helpful to know the Government’s thinking on why the grounds are so wide: someone can simply put in an appeal and it must be heard. That would probably be rather open-ended, but it may be that there is a history of this and issues that we are not aware of.

Finally, on Amendment 110A, the arrangements for the appeal panel hearings also seem heavily specified. I wonder whether there may be a case for a slightly lighter touch and leaving it more open to the ACAS body, if that is the one concerned, to carry them through.

There are no particular issues here and we are not looking for major changes, but I would be grateful for a response. I beg to move.

[The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)]

If Amendment 108F is agreed to, I cannot call Amendment 109 due to pre-emption.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful to the noble Lord for turning the attention of the Committee to the accreditation process. I recognise the intention behind his detailed amendments; namely, to reduce the administrative burden associated with requests for accreditation decisions to be reviewed and, subsequently, for the review process to be appealed. Under the new regime, both the Information Commissioner and the United Kingdom Accreditation Service will be able to accredit organisations that wish to offer a certification service for compliance with data protection legislation. Many organisations may wish to make use of certification services to support their compliance with the new law, and the accreditation process is intended to support them in choosing a provider of certification.

Schedule 5 establishes a mechanism for organisations that have applied for accreditation to seek redress against a decision made by UKAS or the Information Commissioner. The mechanism process has two elements. In the first instance, organisations can seek a review of the accreditation decision. Then, if they are unhappy with that review process, they can lodge an appeal. I share the noble Lord’s desire to minimise the administrative burden created by that review and appeal mechanism. Amendments 108C and 110A limit the documents that may be submitted when appealing. Amendment 108E reduces the time to lodge an appeal. Amendment 108F removes the ability of the appellant to object to members of the appeal panel.

I assure noble Lords that we want a fair and straightforward review and appeals mechanism. Our choice of process, time limits and other restrictions mirrors the appeals process that UKAS currently operates. That process is as provided for by the Accreditation Regulations 2009. Maintaining a consistent appeals process creates administrative simplicity and efficiency. The Government consider that the process in Schedule 5 strikes the right balance between limiting the administrative burden on the accrediting bodies, while also providing applicants with sufficient means of redress.

To add them up, there are four reasons why we feel that what is in there now works well: our choice of process, time limits and other restrictions limits the appeals process that UKAS currently operates; it maintains a consistent appeals process, which creates administrative simplicity and efficiency; it strikes the right balance between limiting the administrative burden but provides applicants with sufficient means of redress; and the accreditation process will give organisations confidence that they are choosing the right provider of certification. I hope I have addressed the noble Lord’s concerns and urge him to withdraw the amendment.

[Lord Stevenson of Balmacara]

I am grateful to the Minister for her response. I think I may have slightly misled the Committee: I think I am right in saying that this is a new process, brought in by the Bill. It was not in the Data Protection Act 1998. I should have said that there is an additional reason for wanting to scrutinise it, to make sure we are looking at the right things.

I should have asked one question, to which I do not expect a response now, unless the Minister has it to hand. I notice that the national accreditation body, which has to be set up by member states because of the GDPR, is set up under another EU instrument because it is the designated body under the Accreditation Regulations 2009. I take it that they will be brought forward in the withdrawal Bill as necessary regulations for that to be provided.

[Baroness Chisholm of Owlpen]

As the noble Lord said, the process is new to the GDPR and not in the 1995 directive or the DPA. The GDPR requires member states to ensure that certification bodies are accredited by the ICO and/or the national accreditation body. As such, the UK Government will need to demonstrate their compliance with that requirement, which Clause 16 and Schedule 5 fulfil.

[Lord Stevenson of Balmacara]

I thank the Minister for that response. I am sure that the narrow point about the regulations can be dealt with by correspondence, so I will not press it today. I beg leave to withdraw the amendment.

Amendment 108C withdrawn.

--- Later in debate ---

Moved by

[Lord Stevenson of Balmacara]

113A: Schedule 6, page 157, line 25, leave out paragraph 4

[Lord Stevenson of Balmacara]

My Lords, in moving Amendment 113A I will speak to Amendments 114A, 118A, 119A and 121A. Schedule 6 changes references to “the Union” to “the United Kingdom” and deals with the transposition between the GDPR and the applied GDPR as and when we move beyond Brexit.

The paragraphs to which these amendments relate may be a bit confusing unless we understand the timescale under which they operate. We think that the GDPR, as originally drafted, aims to say that there should be a free flow of information between member states, creating a single market for data flows across the whole of the EU, applied irrespective of the concerns of the various national regimes. Once we leave the EU it hardly seems necessary to have such a provision because it would seem to imply we need to provide powers for data to flow within the United Kingdom. Therefore, the heart of the amendment and of part of this group is the suggestion that this is otiose. Will the Government explain what they are trying to do if it is not about the flow of data within the United Kingdom? If it is, it surely is not needed because we should not have that situation arising.

The concern is not really about whether the Bill refers to Union or domestic law, but which space we are talking about. Are we talking about the United Kingdom or parts of the United Kingdom? Will different rules apply in Jersey, Guernsey and the Isle of Man? These are all the issues that regularly come up about the United Kingdom. By focusing too narrowly on this we raise a danger that we might be overcomplicating what should be a relatively straightforward issue. I beg to move.

[Lord Ashton of Hyde]

My Lords, it is a great pleasure to speak on these amendments, which cover the applied GDPR. Before I address them directly, it is worth recalling that the purpose of the applied GDPR is to extend GDPR standards to those additional areas of processing that are outside the scope of EU law and not covered separately in Parts 3 and 4 of the Bill. The benefit of taking this approach is that it avoids relevant controllers and processors needing to adapt their systems to two different sets of standards, or even needing to know which set of standards they should be applying. However, if the need for such analysis arises, it is crucial that the data subjects and controllers and processors are clear about their respective rights and obligations.

In such circumstances, reference to text that contains concepts that have no meaning or practical application for processing out of scope of EU law will result in confusion and uncertainty. So, while the intention of the applied GDPR is to align as closely as possible with the GDPR, Schedule 6 adapts the GDPR’s wording where necessary so that it is clear and meaningful. It is important to remember that the GDPR does not apply to such processing, so the creation of equivalent standards under UK law is a voluntary measure we are making in the Bill.

In particular, paragraph 4 of Schedule 6—the subject of Amendment 113A—replaces references to such terms as “the Union” and “member state” with reference to the UK. This simply clarifies that, unlike the GDPR itself, the applied GDPR is a UK-only document and should be read in that context. References to “the Union” et cetera are at best confusing and at worst create uncertainty for the small number of controllers whose processing is captured by the applied GDPR. Paragraph 4 provides important legal clarity to them and, of course, to the Information Commissioner. The United Kingdom in this context refers to England, Wales, Scotland and Northern Ireland only, in accordance with Clause 193.

Paragraph 8, the subject of Amendment 114A, limits the territorial application of the applied GDPR so that it is consistent with that for Parts 3 and 4 of the Bill, as set out in Clause 186, without the EU-wide, and indeed extraterritorial, application of the GDPR itself. As we have touched on in a previous debate, the applied GDPR will apply almost exclusively to processing by UK public bodies relating to areas such as defence and the UK consular services. Controllers in these situations either are in the UK or, if overseas, are not offering goods and services to those in the UK. As such, there is simply no need for the applied GDPR to have the same EU-wide or extraterritorial application as the GDPR.

Article 9.2(j) of the GDPR provides for a derogation for processing of special categories of personal data for archiving and research purposes, and references the need to comply with the safeguards set out in Article 89 when conducting such processing. The Bill makes full use of this derogation, so paragraph 12(f) of Schedule 6, the subject of Amendment 118A, tidies up the drafting of Article 9.2(j) for the purposes of the applied GDPR so that, rather than setting out the need for derogation, it refers directly to the relevant provisions in the Bill.

Paragraph 27, the subject of Amendment 119A, removes certain requirements on the Information Commissioner relating to data protection impact assessments on the grounds that those provisions exist mainly or wholly to assist the European Data Protection Board in ensuring consistent application among member states. There is clearly no need for such consistency in respect of the applied GDPR—a document which exists only in UK law—and the Information Commissioner will in any case undertake very comparable activities in respect of the GDPR itself. Paragraph 46(d), the subject of Amendment 121A, simply makes further provision to the same end, both specifically in relation to data protection impact assessments and more broadly. I hope that, with those reassurances, the noble Lord will feel able to withdraw his amendment.

--- Later in debate ---

[Lord Stevenson of Balmacara]

I am grateful to the Minister for that very full response. I shall read it in Hansard, because there is a lot of detail in it, but I want to make sure that I have got the essence of it to help in subsequent discussions.

On Amendment 113A, I think the Minister’s argument was that the provision was mainly a tidying-up and voluntary measure which was not required by the GDPR but was being done by the Government as a matter of good practice to make sure that data controllers in particular—I suppose it would apply also to data subjects—do not have to keep worrying about how the rules might change once we get to Brexit or later. I understand that point. I think he also clarified that this was a UK mainland rather than a total-UK situation —again, it is helpful to have that clarification.

Perhaps I may ask the Minister about extraterritoriality —our second favourite word. The implication from discussion on a previous set of amendments was that the requirements under the GDPR for extraterritorial application—so that when companies are not established in the EU, they need to have a representative here—will be dropped once we leave the EU. I worry that that would make it harder for data subjects in particular to gain access to data held by data controllers from extraterritorial companies—we have one or two in mind —if a representative is not required to be in the UK. I wonder whether the Minister might reflect on that.

On Amendment 119A, I think that the Minister said that the reason for the original requirement for data protection impact assessments was to satisfy any concern that the European Data Protection Board might have that the same standards were not being applied equally in all EU countries. That is fine, and if we leave the EU, it would not apply. Am I right in assuming that the ICO effectively takes the place of the European Data Protection Board in that respect and that to some extent the question of whether comparability is operating throughout the EU is also true of the United Kingdom? Would there not be a case for maintaining the board in that case? I do not know whether the Minister wants to respond in writing or today.

[Lord Ashton of Hyde]

I think it would be sensible to reply in writing, just because I want to get it right. It would be more useful for noble Lords to get a letter.

[Lord Stevenson of Balmacara]

I thank the Minister for that offer, I look forward to a letter and I beg leave to withdraw the amendment.

Amendment 113A withdrawn.

--- Later in debate ---

[Baroness Hamwee]

My Lords, this group of amendments is about data protection principles. Our Amendments 129G and 129H would add transparency to the requirements of lawfulness and fairness for processing. Here, the directive is again being reflected, but why, since transparency is a requirement in the case of the intelligence services? I confess that I found this counterintuitive. I might have expected the services to have an argument against transparency because of the very nature of what they do, but not so law enforcement—at least, not so much.

Amendment 129J enables me to ask, as I did at Second Reading, why some activities are “strictly necessary” and others merely “necessary”. This arises in several places and this is the first example, although for good measure my Amendment 133ZJ seeks to add “strictly” to another of these—I am not sure that it was my best choice, but there you go. The point is that “strictly” calls into question just how necessary something that does not attract the term is. This may be an example of adopting language used in other legislation and directives without it having been considered in the context of UK legislation.

The Minister used the example of our seeking in the first group of amendments on these parts to change a term used in current legislation. I take that point, because it opens up a question as to whether there is any distinction. The point I am making about terminology is not a million miles away from that.

Amendment 130A concerns the scope for the Secretary of State to amend Schedule 8 by regulations. That schedule sets out the conditions for “sensitive processing”—in other words, when that processing is permitted. Should the Secretary of State be able to add circumstances when it is permitted, or to vary the schedule, omitting items from the schedule by regulations would fulfil the objective of protecting the data subject. That is very different from “adding” or “varying”.

Amendment 133ZB deals with another instance of different legislative styles. In Clause 34(1), the law enforcement purpose must be “legitimate”—an interesting term when applied to law enforcement. I suggest as an alternative “authorised by law”, a term used later in the clause, in order to probe this. In not very technical language “legitimate” suggests something wider than legal. It has elements of logic and justification and might import the notion of balance. The term comes from not only the GDPR but the 1995 directive—so there is a history to this—and there are many examples of the accepted meaning of “legitimate” in EU law. However, I am concerned about how we interpret the term and apply it in the UK. Looking to the future, what will happen when we are cut adrift from the European Court of Justice? Presumably we will have to rely on the development of case law in the UK and the different UK jurisdictions. It is worth thinking about how this may be dealt with as we go forward.

On Amendment 133ZD, under Clause 36(3) a clear distinction needs to be made “where relevant”—the amendment would delete this—as far as possible between data relating to different categories of data subject. I do not see what “where relevant” means in this context. It begs the question of whether or not something is relevant and whether the provision is applicable.

Amendment 133ZE applies to Clause 36(4), which deals what must be done—or, rather, not done—with inaccurate, incomplete or out-of-date data, which must not be “transmitted or made available”. That is the phrase used and my amendment probes the question of why the term “disclosed” is not used. There is a definition of “processing” in Clause 2, which includes,

“disclosure by transmission, dissemination or otherwise making available”.

In other words, “disclosed” would cover everything.

Amendment 133ZK relates to Clause 40, which deals with the controller having an appropriate policy document. Under that clause, the controller must make the document available to the Information Commissioner. Is it not a public document? Should it not be published? The amendment proposes that it should be. I beg to move.

[Lord Stevenson of Balmacara]

My Lords, we have a number of amendments in this group which fit very well with what has just been said by the noble Baroness, Lady Hamwee. I hope she will take it from that that we support broadly where she is coming from and hope to extend it slightly in a couple of areas.

Amendment 130—which is a DPRRC recommendation —affects Schedule 8. This was touched on in earlier groups and I will not delay the Committee by repeating the points now. They will be covered in the Minister’s response, which we confidently expect to be that this is under consideration, that a further air travel bulletin will be emerging shortly and that we should not worry too much about it at this stage. However, I am prepared to argue for it if necessary, and if the noble Lord challenges me I will do so.

The government amendments have not yet been introduced. However, in anticipation, we welcome them. They take out one or two of the points I will be making later. Once they have been introduced and looked at we will be able to rely on them. They cover a particular gap in the Bill in terms of the need to rely on a function conferred on a person by rule of law as well as simply by an enactment.

Amendment 133ZA is a probing amendment to quite an important clause that we would like to see retained. The reason for putting down the amendment in this form is to probe further into what is going on here. The terms of Clause 39 apply only,

“in relation to the processing of personal data for a law enforcement purpose”,

and would be conferred by rule of law as well. It repeats other areas that cover,

“archiving purposes in the public interest … scientific or historical research purposes, or … statistical purposes”.

I am not clear why these are linked to law enforcement purposes. Why would archiving be necessary for such a purpose? Perhaps the Minister can respond on that particular point. It is a narrow one, but I should like to know the answer.

Clause 33(5) deals with processing without the consent of the data subject, of which this is a part, and makes the point that it is permissible only for the purposes listed in Schedule 8. However, Clause 33(6) permits amendment to this derogation, so purposes could be added or indeed lost. There is of course a wide research exception in Schedule 8 with no specific safeguards. So it is important to understand why the framing of this is so open-ended, and I would be grateful for a response.

When we check the GDPR, the antecedent impulse for this is present in the wording of article 4(3). That goes on to say that the processing has to be subject to appropriate safeguards for the rights and freedoms of data subjects, yet we do not see these in either Clause 33 or Clause 39—or indeed at any point in between. Why is that? Is there a reason why it should not be part of the processing conditions? If so, can we have an example of why that would be necessary?

Amendment 133ZC relates to quite an important area, which is a derogation to allow personal data to be processed for different law enforcement purposes other than when it is initially processed, as long as it is a lawful purpose and is proportionate and necessary. That is quite open-ended, so it would be helpful if in his response the Minister could speculate a little about where the boundaries there exist. We have no objection to the provision in principle, but it is important to ensure that the scope is not so impossibly broad that anything can be hung on one particular issue. If that was coming forward, I am sure that it would be possible to do that. The scope seems to be too broad to be considered proportionate—which, as I said, is what the directive requires.

Amendment 133ZE builds on Amendment 133ZD to which the noble Baroness, Lady Hamwee, has already spoken. This is about what happens to data that is found to be inaccurate and the requirement that it should not be disclosed for any law enforcement purpose. This is a slightly different wording and I am looking for confirmation that the Government do not see a difference in the two possibilities. The original requirement was that data should not be “transmitted or made available” if it is inaccurate, but this would say that it should not be “disclosed”, which is an active rather than a passive expression of that—but is it different? The amendment tries to broaden the provision so that reasonable steps are taken to make sure that data is not made available for any purpose, which I think would be a more satisfactory approach.

I turn to Amendment 133ZG. I think I am right in saying that the GDPR envisages that inaccurate personal data should be corrected or deleted at the initiative of the controller, but that provision does not appear in the Bill. I wonder whether there is an explanation for that. If there is not, who will be responsible for correcting data that is found to be inaccurate or needs to be corrected or deleted?

Finally in this group, Amendment 133ZH relates to Clause 37, which requires that personal data should be kept for no longer than necessary. To comply with this principle, the data controller should establish time limits for erasure or for a periodic review. The current drafting seems to suggest that all that is required to be done by controllers is that from time to time they should review their procedures; it does not say that they have to do it. Perhaps the Minister could respond on this point. Surely what we want here is a clear requirement for both reviews and action. You can review the data, but if it is no longer required and should be deleted, there should be an appropriate follow-up. Time limits are not enough: you do it within the time limits but then you have to follow up. We do not think it currently makes sense. I look forward to the Minister’s responses.

[Baroness Williams of Trafford]

My Lords, as the noble Baroness, Lady Hamwee, said in her opening remarks, the amendments in this group relate to the data protection principles as they apply to law enforcement processing.

I will deal first with the amendments in the name of the noble Baroness, Lady Hamwee, before moving on to the others. Amendments 129G and 129H would add a requirement that processing under Part 3 be transparent as well as lawful and fair, thus mirroring the data protection principles set out in Parts 2 and 4 of the Bill. There is a very simple explanation for the difference of approach. The GDPR and the Council of Europe Convention 108, on which the provisions of Parts 2 and 4 are based, are designed for general processing. Therefore, it is wholly appropriate in that context that the processing of personal data should be transparent. Of course, that data protection principle, as with certain others, will apply subject to the application of the exceptions provided for in Parts 2 and 4, including where necessary to safeguard national security. At first glance, I accept that it might seem odd that Part 4 of the Bill, which relates to processing by the intelligence services, contains a requirement for transparency, but the provisions in Part 4 must be compliant with the modernised Convention 108. As I have said, that data protection principle will operate subject to the application of the exceptions provided for in that part.

In contrast, Part 3 of the Bill reflects the provisions of the law enforcement directive, which is designed to govern law enforcement processing; in this context, it is appropriate that the transparency requirement should not apply. A requirement that all such processing be transparent would, for example, undermine police investigations and operation capabilities. That is not to say that controllers under Part 3 will not process data transparently where they can, and Chapter 3 of this part imposes significant duties on controllers to provide information to data subjects.

Amendments 129J and 133ZJ are not about a popular Saturday night television programme, but about the significance of the word “strictly” in the context of Clause 33(5). Our approach here, and elsewhere, has been to copy out the language of the law enforcement directive wherever possible. Article 10 of the LED uses the phrase “strictly necessary”. The noble Baroness asked whether references in Part 3 to “necessary” and “strictly necessary” should be interpreted differently. That must be the case: “strictly necessary” is a higher threshold than “necessary” on its own.

Amendment 130A brings us back to the report of the Delegated Powers and Regulatory Reform Committee, which was the subject of some debate on day two of Committee. As the noble Baroness, Lady Chisholm, indicated in response to that debate, we are carefully considering the Delegated Powers Committee’s report and will respond before the next stage of the Bill.

Amendment 133ZB would replace the term “legitimate” in Clause 34—which establishes the second data protection principle—with the phrase “authorised by law”. I do not believe that there is any material difference between the two terms. Moreover, “legitimate” is used in both the GDPR and the LED, so for that reason we should retain the language used in those instruments to avoid creating legal uncertainty.

The noble Baroness asked about ECJ case law, post Brexit. The European Union (Withdrawal) Bill sets out how judgments of the Court of Justice of the European Union are to be treated by domestic courts and tribunals after exit day. Clause 6 of that Bill draws a distinction between pre-exit and post-exit CJEU case law. Domestic courts and tribunals are not bound by post-exit case law but may have regard to it if they consider it appropriate. In contrast, pre-exit case law is binding on most domestic courts and tribunals in so far as it is relevant to questions pertaining to retained EU law. The Supreme Court and, in some circumstances, the High Court of Justiciary are, however, not bound. They may depart from pre-exit CJEU case law by reference to the same test that applies when they decide whether to depart from their own case law.

Amendment 133ZD seeks to strike out the reference to “where relevant” in Clause 36(3), which requires a controller to make a distinction between different categories of data subjects, such as suspects, convicted offenders and victims. There may well be a case where it simply would not be relevant for a controller to draw such a distinction. If a controller processes data in respect of only one of the categories of data subject, there is evidently no need for this provision.

Amendment 133ZE seeks to simplify the drafting of Clause 36(4). I do not believe the definitions in Clause 2 support the case for this amendment. Clause 2 defines processing, which includes disclosure, but it does not provide a general definition of disclosure, so it is preferable to retain the language in Clause 36(4).

Amendment 133ZK would introduce a requirement on controllers to publish their policy documents relating to sensitive processing. Such policy documents may contain operationally sensitive information that could well be damaging if published. Given this, scrutiny of such documents by the Information Commissioner, where necessary, provides an appropriate safeguard.

I turn to the amendments tabled by the noble Lord, Lord Kennedy, and articulated by the noble Lord, Lord Stevenson. Amendment 133ZA would remove archiving from the list of conditions for processing sensitive data. Law enforcement agencies often archive data for public protection purposes. However, it is right that sufficient safeguards should be in place, particularly concerning sensitive data. The Bill achieves this by permitting archiving only where it is necessary.

The noble Lord asked in what circumstances archiving would be carried out for a purpose connected with law enforcement processing. It may be necessary where, for example, a law enforcement agency needs to review historical offences, such as allegations of child sexual exploitation. On this occasion, data have been processed for the purposes of reviewing the approach taken in child abuse cases investigated decades previously.

[Lord Stevenson of Balmacara]

I am grateful to the noble Baroness for that example. I could have used scientific or historical research. Again, I am not entirely clear why these are law enforcement categories. The general ability to take a derogation relating to either of the items listed is well spelled out in the schedule, but I was trying to address the narrow formulation of that in a law enforcement category. The particular example is fine and it is possible that could be right, but I do not think it applies across science, historical or statistical research. Does it?

[Baroness Williams of Trafford]

It may do if it pertains to law enforcement purposes, but we may be dancing on the head of a very small pin. Perhaps I could come back to the noble Lord, but where it overlaps into the law enforcement sphere I would think it relevant. However, I will write to him to clarify and confirm my thoughts on that.

The noble Lord also asked about retention of data. I am not sure that was on this amendment, but he is right that it is not—

[Lord Stevenson of Balmacara]

Later on.

[Baroness Williams of Trafford]

Okay, I will carry on to Amendment 133ZC, which seeks to require that further processing for law enforcement purposes must have a statutory basis. This would prevent further processing in circumstances that are lawful but not provided in statute. It cannot be in the public interest to unduly restrict the use of data that could assist law enforcement to carry out its legitimate functions.

Amendment 133ZF would remove the law enforcement qualification from Clause 36(4). Its purpose appears to be to ensure that inaccurate data cannot be processed irrespective of whether it is for a law enforcement purpose. For processing other than for a law enforcement purpose, the controller must apply Part 2 of the Bill. Also with reference to Clause 36, Amendment 133ZG would insert a requirement that inaccurate data must be erased if it is not corrected. I understand exactly why this might be a fitting addition. However, it will not always be appropriate for law enforcement where data may form part of a criminal case. For instance, it may be important for evidential reasons for data to be kept unaltered. Inaccurate information could also be evidence of perjury or perverting the course of justice.

Amendment 133ZH would require the controller to have in place a document outlining their retention policy, which would have to be made available to the Information Commissioner on request. Clause 42 already provides safeguards, including a duty to inform the subject about the period for which the data will be stored or the criteria used to determine the period. Moreover, in the policing context, there are policy documents already published that cover this ground, such as the College of Policing manual on the management of police information.

Finally, I will deal briefly with the three government amendments in this group, Amendments 131, 139 and 140, for which the noble Lord has stated his support. They relate to Schedules 8, 9 and 10, which set out a number of conditions, at least one of which must be met, where a law enforcement agency processes sensitive personal data, or one of the intelligence services processes any personal data. They clarify that any processing is lawful for the purposes of the exercise of a function conferred on a person by a rule of law as well as by an enactment. This is consistent with the existing scheme under the Data Protection Act 1998.

In the case of the police, the processing of personal data is, in some instances, undertaken utilising common-law powers in pursuit of their function to prevent crime. One such example is the operation of the domestic violence disclosure scheme, or Clare’s law. Under that scheme, a police force may disclose information to a person about a previous violent and abusive offending behaviour of their partner when he or she was in a previous relationship. It is vital that the police can continue to protect people by disclosing sensitive personal information using their common-law powers.

Amendments 139 and 140 to Schedules 9 and 10 respectively ensure consistency of approach across Parts 3 and 4 of the Bill.

To go back to the point about retention of data and the noble Lord’s point about reviewing whether data are still required, appropriate action should follow such a review. The fifth data protection principle makes this clear. If data are no longer required they should be deleted. I am not entirely sure which amendment that refers to, but I hope some of the explanations I have given will ensure that noble Lords and the noble Baroness are content not to press their amendments.

[Lord Stevenson of Balmacara]

I am very grateful for the late intelligence that came across on the point about withdrawal. The issue was not that there is not sufficient power in the Bill—there is, we accept that—but just that there seems to be an unfortunate separation between the need periodically to review the length of time for which the data is held and the fact that, when a decision has been arrived at, the data is no longer required. There seems to be no prod to remove the data that should be removed. I understand the point made earlier by the Minister that some data, although wrong, should be kept, but that was not the point I was making. However, I think we can deal with this outside the Chamber.

[Baroness Hamwee]

My Lords, without wanting to appear ungrateful, I am very troubled by some of what we have heard about the incorporation of language used in the law enforcement directive and in the modernised 108. Simply to reflect that language, incorporate it into our primary legislation and cause confusion thereby does not seem to be a very good way to proceed. My questions about the difference between “strictly necessary” and “necessary” illustrate this well. To be told that “necessary” is a lower threshold than “strictly necessary”—which is certainly how I would read it—calls into question how necessary something which is necessary really is.

We will have to come back to this—it may be something that we can discuss outside the Chamber before Report. I wonder whether I should threaten to unleash my noble friend Lord Lester of Herne Hill—that might be enough to lead us to a resolution, but I have not consulted him yet. However, I am troubled, because we are in danger of doing a disservice to the application of these important provisions. For the moment, of course, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, we debated automated decision-making under Part 2 on Monday. Clause 48 provides for automated decision-making in the case of law enforcement. No doubt we will return to the issues raised on Monday in this connection, but for now, Clause 48(1) provides that a “qualifying significant decision” must be,

“required or authorised by law”.

This is perhaps a slightly frivolous probe, but may a controller take a decision that is not required or authorised by law? If it is not authorised, how is the data subject protected?

Amendment 135 refers to not engaging the rights of the data subject under the Human Rights Act. Again, we had a debate on this on Monday and it is a subject to which we may return. I simply ask: does the Minister have anything to add to what her noble friend Lord Ashton of Hyde had to say then? He told us that human rights are always engaged—indeed they are—and that the amendment therefore did not really work but that there are, as he said in col. 1871, “appropriate safeguards”. Are the Government satisfied that the balance between processing and protection is the right one? As I say, I am sure we will come back to this issue.

Amendment 135A is to Clause 48(2), which deals with decisions based solely on automated processing. Article 11 of the directive, which I believe is the basis for this, provides for automated processing, including profiling. Profiling is a defined term, so I merely want to check that there is no significance in omitting the reference to it. I doubt there is but the language is reproduced exactly elsewhere, so this is a simple check.

Clause 48(2)(a) provides that notification of a decision must be given “as soon as … practicable”. Amendment 135B would limit this to a maximum of 72 hours. I do not want to describe what is in the Bill as open-ended but I think the Minister would accept that it is less certain than it could be, which is a pity as the requirement under this clause to notify the right to ask for reconsideration is important. I note that at another point close to this, the data subject has an exact limit of 21 days. That may not be practicable for the data subject but perhaps the Minister can confirm whether that means within 21 days of actual receipt, not 21 days of delivery, as the means of serving that notification.

Amendment 136A would insert a new provision. We have been considering some form of independent oversight of automated decision-making. That would not be quite right because we have the commissioner, who is independent, but the amendment proposes more assistance and advice in this connection and the publication of reports on the subject.

Amendment 137 proposes a new clause. We debated a more elaborate amendment on the right to information about decisions based on algorithmic profiling on Monday. The proposed new clause would allow the data subject to obtain an understanding of the reasoning underlying the processes, when the results of it are applied to him. The wording might seem familiar to noble Lords, which would show that they have read on in the Bill. The amendment would reproduce in the law enforcement part a right that is included in Clause 96 in Part 4, which deals with the intelligence services. If they can do it, why not law enforcement? I was quite surprised that they could do it and were expected to provide the underlying reasoning, but that is a good thing. I am not arguing that this would be a silver bullet for all the issues around algorithms but it would be significant. Perhaps it would be courteous and appropriate to say I understand that as regards the intelligence services exemptions, the UK is proposing one of the most advanced explanation rights in the world—tick.

Amendment 144 raises the human rights point again, in the context of the intelligence services’ automated decision-making. Amendments 145 and 146 are to ask the Government to justify decisions based solely on automated processing which significantly affects the data subject when it relates to a contract. Clause 94(2)(c) refers to,

“considering whether to enter into a contract with the data subject”,

and,

“with a view to entering into … a contract”,

with them. There must be a fine distinction between those two provisions but they are dealt with differently. These are all in Part 4, on the intelligence services. Finally, Amendment 146A is to ask whether the commissioner should have a role in the process, because there is a bit more scope for people doing their own thing in this part of the Bill than under Part 3. I beg to move.

[Lord Stevenson of Balmacara]

My Lords, I support the amendments that have just been moved and spoken to by the noble Baroness, Lady Hamwee. We should perhaps have signed up to them but I do not think we had the time to do so. However, they all bear on important issues that need to be addressed and I look forward to hearing the responses from the Minister.

Our amendments in this group are also about automated processing but they attach to a slightly different arrangement. In Clause 92, on page 52, the right of access provisions are largely copied from earlier parts of the Bill and are extensive. Like the noble Baroness, Lady Hamwee, we appreciate that. The Government have moved a long way to try to reassure everyone that the intelligence services, as well as the defence services, are trying to operate in a manner that could be taken almost directly from the GDPR. While this may be gold-plating, it is a good way of making progress. Having said that, halfway down page 52 are two things that our amendments address. In Amendment 142C, we suggest that there should be a,

“right to object to automated-decision making”,

within automatic processing, because at the end of Clause 92(2) all the other rights are there but the one present in other parts of the Bill on the right to object is not. I wonder why it has been missed out. It would be interesting to hear from the Minister about that.

In Amendment 143B, we also wish to challenge why the fee has to be paid for this. The Government have tried hard to make an equality of approach right the way across but fees suddenly appear here, in a way which seems rather strange. It cannot be that the information services of Her Majesty’s Government are so starved of cash that they have to charge money to get their services completed for those who just want reasonable information, which should specifically be made available. It seems a double bind to have a situation where these rights and obligations are tantalisingly included in the Bill, but are then removed from reasonable access because of the costs that might be charged. I know that the Secretary of State would have to do it by regulations, which would be subject to further scrutiny, but perhaps this could be looked at again.

--- Later in debate ---

[Baroness Hamwee]

My Lords, under Clause 59, the controller must record certain information, including, according to subsection (2)(g),

“where applicable, details of the use of profiling”.

The purpose of Amendment 137B is to ask whether, if profiling is used, this is not applicable. My amendment would delete the words, but the Minister will understand that I am probing.

I am afraid this is quite a big group of amendments. Clause 62 provides for data protection impact assessments when there is a “high risk” to “rights and freedoms”. In assessing the risk, the controller,

“must take into account the nature, scope, context and purposes of the processing”.

Amendment 137C would insert a reference to,

“new technologies, mechanisms and procedures”,

picking up wording which is in articles 27 and 28 of the law enforcement directive.

Clause 63 requires consultation with the commissioner where there is a “high risk” to “rights and freedoms”. Article 28(3) of the directive allows for the “supervisory authority”—the commissioner, in our case—to,

“establish a list of the processing operations which are to be subject to prior consultation”.

Amendment 137D would allow the commissioner to “specify other conditions” where consultation is required. I am not sure I would defend the approach of having regulations under a negative resolution. The amendment was tabled following a certain amount of toing and froing—aka consultation with me—because my original amendment did not quite work, or at any rate I was not clear enough about it. I was not at Westminster at the time and I think I did not take in properly over the phone what was being proposed. I am sure the Minister will not take me too much to task for that, but focus instead on the nub of this.

Under Clause 63, the commissioner is required to give advice to the controller and the processor when she thinks that the intended processing would infringe Part 3. Amendment 137E set outs what advice would be included “to mitigate the risk” and would be a reminder of the commissioner’s powers in the event of non-compliance. The amendment builds on rather fuller provisions in article 28 of the directive, which provides for the use of powers.

Amendment 137F would amend Clause 64, which deals with the security of processing and refers to,

“appropriate measures … to ensure a level of security appropriate to the risks”.

The amendment proposes what “appropriate measures” might be, in particular whether cost is a criterion. Article 29(1) seems to envisage this—are we envisaging it in the Bill?

As for Amendment 137G, there is a duty in Clause 66 to inform the data subject when there is a breach, but not when the controller has implemented protection measures. In seeking to change “has” to “had” implemented, I just seek confirmation that the measures in question were applied before the breach. One might read the clause as meaning that, subsequently, steps had been taken and protection measures implemented. That will be good for the future, but would not address the specific breach.

On Amendment 137H, Clause 66(7) gives a wide exemption, setting out the reasons for restricting the provision of information to a data subject. I assume from the words “so long as necessary” that, once a specific security threat has passed or a court case is over, the right to that information would revive. Can the Minister confirm this? Again, I am not sure what the role of the commissioner would be here.

On Amendment 137J, Clause 69 sets out the tasks of the data protection officer. Chapter 5 of this part deals with transfers to third countries. By requiring the updating of controllers on the development of standards of third countries, my amendment suggests that the data protection officer should keep on top of international issues.

Amendment 137K is an amendment to Clause 71 in Chapter 5, on the principles for the transfer of data to a third country or international organisation. It would insert an explicit requirement that the rights of the data subject be protected. Article 44 provides:

“All provisions in this Chapter shall be applied in order to ensure that the level of protection of natural persons guaranteed by this Regulation is not undermined”.


That is broad and overarching. My amendment probes how that protection is covered: is it in the detail of the subsequent clauses? It is spelled out in the article; does that imply that the clauses might not always properly provide protection if we do not spell it out in the same way, given the reflections that the Bill provides?

On Amendments 137L and 137M, authorisation under Clause 71(1)(b) from another member state from which the data originated is not required if the transfer is necessary for the prevention of a threat to the essential interests of a member state and authorisation cannot be obtained in good time. The amendments probe whether “essential interests” are more than law enforcement purposes—the first condition for transfer. Will the interests be clear? Is there a confusing element of subjectivity here? The person who wants the data might see things quite differently from the person who is being asked to transfer it. It is open to us to provide higher safeguards, which is what I am working towards. “Obtaining in good time” perhaps suggests a slightly more relaxed attitude than the subject matter should demand. I would substitute a reference to urgency.

On Amendment 137N—noble Lords will be relieved to know that I am on the last of our amendments in this group—there can be a transfer on the basis of special circumstances under Clause 74. I welcome the fact that, in some cases, the controller can refuse a transfer because fundamental rights and freedoms override the public interest in the transfer. Presumably, the controller’s determination must be reasonable. This seems to give some discretion to the commissioner; I wonder whether the commissioner might give guidance rather than leaving it entirely up to the controller. I beg to move.

[Lord Stevenson of Balmacara]

My Lords, we have one amendment in this group, and I will speak to it. It affects what appears to be a lacuna—if that is not too technical a term for Hansard—in relation to the storage and retention of data collected by local police forces under the automatic number plate recognition system. Each local police force has an ANPR system. There are thousands of cameras, which we are all too aware of. Anyone who drives past one and has a picture of their number plate taken has a momentary shudder in case they are doing something wrong. When you add them all together, it is one of the biggest surveillance systems in the world—probably the world’s biggest non-military system—and it is growing every day. At the moment, there are probably about 1 billion shots of people cars in circulation. It is of course personal data, as it tracks people’s journeys, or can be read to do so.

There are two problems. First, the ANPR system has grown and grown but does not have proper governance or structure. Attention needs to be paid to that. This is not the Bill for that, but the noble Baroness might wish to take that point back with her. Secondly, an FOI request revealed in 2015 that the police had no systematic retention or disposal policy; they simply just kept the data because it might come in useful at some time. I do not think that works under the Data Protection Act 1998 and does not seem appropriate, given the way the Bill is framed.

In case there is any doubt whether those systems fall within the scope of the Act or whether there should be a change of policy, we have tabled the amendment to probe what is going on. There has been a recent change—I hope that the noble Baroness will update us about it—and several billion deletions, but there is still a question about the appropriate retention system. Our amendment is an attempt to move forward on that issue.

The problem is that the ANPR is not covered anywhere in statute. Despite the fact that it is very large, it is simply run. The Home Office does not see it as an espionage system—that is fair enough—so it is not covered in the Investigatory Powers Act. There is a case, however, for using the Bill to get this issue back into scope. The proposal here is simple. These particular words need not be used, but I hope the noble Baroness will accept that something should be done. We propose that the approach should be in accordance with the arrangements currently adopted in surveillance systems elsewhere.

--- Later in debate ---

[Lord Stevenson of Balmacara]

My Lords, I can be very brief. We had intended to withdraw Amendment 142A in this group but, unfortunately, we could not do so in time so I will not speak to it. To complete the icing on the cake, I have already spoken, rather stupidly, to Amendment 142D, and therefore I do not need to repeat myself. I simply await the noble Baroness’s response on it.

[Baroness Hamwee]

My Lords, I cannot be quite so quick but I will be fairly quick. Amendment 142B concerns Clause 91(3), which states:

“The controller is not required … to give a data subject information that the data subject already has”.


When I read that, I wondered how the controller would know that the data subject had the information. Therefore, my alternative wording would refer to information which the,

“controller has previously provided to the data subject”.

There can therefore be no doubt about that.

Amendment 143A concerns Clause 92, which deals with a right of access within a time limit of a month of the relevant day, as that is defined, or a longer period specified in regulations. What is anticipated here? Why is there the possibility of an extension? This cannot, I believe, be dealt with on a case-by-case basis as that would be completely impracticable and, I think, improper. Is it to see whether experience shows that it is a struggle to provide information within a month, and therefore a time limit of more than a month would benefit the controller, which at the same time would be likely to disbenefit the data subject, given the importance of the information? I hope the Minister can explain why this slightly curious power for the Secretary of State is included in the Bill.

Amendment 146B concerns Clause 97, which deals with the right to object to processing. I might have misunderstood this but I believe that the controller is obliged to comply only if he needs to be informed of the location of data. I do not know whether I have that right, so Amendment 146B proposes the wording,

“if its location is known to the data subject”,

so that the amendment flows through in terms of language, if not in sense. The second limb of Clause 97(2), whereby the data subject is told that the controller needs to know this, suggests this. That enables me to make the point that this puts quite a heavy burden on the data subject.

Amendment 148A concerns Clause 101. I, of course, support the requirement that the controller should implement measures to minimise the risks to rights and freedoms. However, I question the term “minimise”. The Bill is generally demanding in regard to this protection, so to root the requirement in the detail of the Bill the amendment would add,

“in accordance with this Act”.

As regards the test of whether a personal data breach seriously interferes with rights, I suggest this is not as high a threshold as that required by the term “significantly” proposed in Amendment 148B.

Following the noble Lord’s co-piloting analogy, I now say, “Over and out”.

--- Later in debate ---

[Baroness Williams of Trafford]

Yes, that is the point I made.

One of the rights afforded by Part 4 is that a data subject can require a controller not to process their personal data if that processing is an unwarranted interference with their interests or rights. If such a request is received, the controller may require further information in order to comply with the request. This includes information so as to be satisfied of the identity of the requesting individual or information so that they can locate the data in question.

Amendment 146B would require the requesting individual to provide information to help the controller locate the data in question only if the individual themselves knows where the data is located. I think we can agree that it is very unlikely that a data subject would know the exact location of data processed by a controller. As such, this change could make it more difficult for a controller to locate the data in question, as the data subject could refuse to provide any information to aid in the locating of their data. This could make it impossible for the controller to comply with the request and would in turn deprive the data subject of having their request fulfilled.

Chapter 4 of Part 4 deals with the obligations of the controller and processor. Controllers must consider the impact of any proposed processing on the rights of data subjects and implement appropriate measures to ensure those rights. In particular, Clause 101(2)(b) requires that risks to the rights and freedoms of data subjects be minimised. Amendment 148A would require that those risks be also dealt with in accordance with the Bill. If I understand the purpose of this amendment correctly and the noble Baroness’s intention is that the broader requirements of Part 4 should apply to any new type of processing, I can concur with the sentiments behind this amendment. However, it is not necessary to state this requirement in Clause 101; all processing by the intelligence services must be in accordance with the relevant provisions of the Bill.

Finally, Clause 106 requires that the controller notify the Information Commissioner if the controller becomes aware of a serious personal breach of data for which it is responsible. A data breach is deemed serious if it seriously interferes with the rights and freedoms of a data subject. Amendment 148B seeks to alter the level at which a data breach must be notified to the commissioner by lowering the threshold from a serious interference with the rights and freedoms of a data subject to a significant interference. The threshold is set purposely at serious so that the focus and resources of the controller and commissioner are spent on breaches above a reasonable threshold. We also draw the noble Baroness’s attention to the draft modernised Convention 108, which uses the phrase “seriously interfere”.

I am mindful that some noble Lords in this Chamber will be utterly perplexed by the subject matter to which we have been referring, so I hope that, with those words, the noble Lord will be sufficiently reassured and will withdraw his amendment.

[Lord Stevenson of Balmacara]

The answer to that question is that we are not happy with what the Minister said about the ability of the intelligence services, uniquely in this whole area, to charge a fee to discourage people from getting access to the rights which they certainly have under the Act. I sensed that the Minister understands that; perhaps it is a little unfair to say that, as most other noble Lords were not able to see her smile, gently, as she tried to put substance and seriousness into the argument she was using, which was clearly very thin indeed. To make the point, we are relying on a convention which has yet to be signed. That is the fig leaf under which we will be smuggling these ridiculous fees. I urge the Minister to take this back and think again, and I look forward to a further discussion with her if she feels that any more information could be provided.

Amendment 141 agreed.

Committee on the Equality Act 2010 and Disability Report

Lord Stevenson of Balmacara Excerpts

Tuesday 6th September 2016 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, the House’s committee system is an important part of our work that allows us to bring together expertise, knowledge and information in a way that is very unusual in our public life. It is a part of our processes that we should support as long as we can. We should cherish the good examples of it that we have, including the report we are discussing, which, as many people have said, has been an exemplary exercise.

The committee is a well-timed initiative, led by the noble Baroness, Lady Thomas of Winchester, but picked up quickly by those who saw the importance of a review centred on evidence that could be provided not just by those in this House, but by a wider community prepared to come in and share with us the experiences they have had of the Equality Act 2010. It is not just an ordinary review of another piece of legislation, but a real, living exercise in trying to understand the experiences people go through when they face disability, in a way many people do not. I am not one of those who has a disability that would qualify in any sense for this activity, but I have learned so much, as the noble Lord, Lord Addington, said, by listening. It has been a pleasure. I hope the report of this debate will reach a wider community and convince people of the value of the exercise we have been listening to.

I give my thanks, which have of course already been given, to the noble Baroness, Lady Deech, not only for chairing the committee, which was obviously a brilliant exercise in which everyone seems to have had a good time, which I am sure is not always the case in committees—we will pass over that—but also for her speech, which introduced the report so well and highlighted the key moments we need to focus on. Those who have spoken have largely been members of the committee, including the mobile Bench, which is a wonderful term for them, but the debate has brought in others who have also contributed. That is very good. The debate is well-timed, as has been picked up, because it is just before the beginning of the Paralympics, four years after London 2012 transformed our understanding in this country I hope for the longer term—although the evidence from the noble Baroness, Lady Brinton, is that that is not the case. It certainly did for those of us who were there. I think I shared with the House before that one of the most interesting experiences in my life was being asked to present prizes for a couple of races in the Paralympic stadium. It was an astonishing experience that I will never, ever forget.

We have had a very good debate based on a good report, which has been described as being of a very high standard and a good read. It is important to recognise that. But the key thing is that it is evidence-rich. The report is not just the views of the committee members; it is informed, transformed and transmuted by what they have heard. It is in that sense that the Government’s response, which has come in for a fair amount of criticism, is such a disappointment, particularly the prologue, which reads more like an apologia, with a sense of doom and gloom surrounding it and the inevitability of disaster awaiting as you turn every page. The Greeks did it well. We should not learn from them in this respect. The Government owe more to the House and the community that the committee was serving, and should provide a response that at least engages with the issues, even if it does not necessarily always agree with them. If the Government really believe that they are going to build a country that works for everyone, in which we all benefit and there are no barriers or assumptions of exclusion, they have to do more than simply hold conversations and return to consultations which, as has been said, have already been carried out to exhaustion.

The noble Baroness, Lady Campbell, in a very powerful speech, and others pointed out that what you read in the Government’s response is that discussion and consciousness-raising is the way forward, when all the evidence and all the messages received by the committee and all the information that it gathered—which really cannot be ignored—is that the Government just need to get on with implementing the will of Parliament by bringing forward outstanding sections of Bills; by funding the EHRC properly to do what it was set up to do and making sure that it can do that without red tape or other considerations being brought to bear on it; and by ensuring that all those who already have responsibilities under the Acts that provide the underpinning of our approach to disability are made to deliver them. The Government must challenge what the noble Baroness, Lady Deech, called the insouciance of those who will not comply or who use the reasonableness test to evade doing the right thing. They must challenge them and force them to do what is needed. That is the role of government and one that they should be proud to exercise. It will be for the benefit of all.

Before I deal with some of the recommendations, I will make two positioning points, which struck me on reading the report and the response and listening to the debate today. The first is on the numbers. I do not think it is well recognised that there are as many as 11 million disabled people in the United Kingdom. Of course, that number is complicated by the fact, which a number of people mentioned, including the noble Baronesses, Lady Deech and Lady Brinton, that not everybody who is disabled is visible in the sense of being in a wheelchair. We ignore that point at considerable risk to the policy-making process. Eleven million people is a huge constituency and we do not do ourselves justice if we ignore them. As the report says:

“Disability affects us all—as disabled people ourselves, and as the carers, family, friends, employers, colleagues, and educators of disabled people—and it is the task of all of us to remove the barriers that prevent some from participating fully, and equally, in society”.

As has been pointed out, if that requires positive discrimination, so be it. We should do it.

Secondly, we still do not really know enough about the conditions under which those who are disabled have to operate and live. The point was made in the report and echoed by a number of speakers that more and better collection of data, and an evaluation of the cumulative impacts on disabled people, are desperately needed. Trying to bring that about would be the right place for the Government to start.

The report is full of recommendations but we have time for only a few of them. The ones I have selected are the ones where I think that more bangs would be achieved for the bucks that might have to be invested. The report refers to “20 years of inertia” in transport. So many people have raised that, I do not need to spend time on it. The Government have a huge opportunity with the need to move forward on taxis, even if they will not go back and look again at the implementation of the outstanding issues, with a Law Commission bill on taxis in the wings, I think, ready to be brought forward this year or next year. There really is no excuse for not dealing with all the issues to do with taxis. Significant points have been made about buses and trains. There are also questions about ships and hovercraft, which have not been picked up yet but are important. Because the regulation there has been repealed, with the possibility that the regulation that is currently there underpinning an EU directive not being effective after 2019, it is really important for the Government to think harder about how they are going to make the Equality Act apply so that there is accessibility, for instance, in bars and shops.

On providers of services and the duty to make reasonable adjustments, it was incredible to hear the story about the planning of Crossrail and that there was not to be step-free access to it. What will happen with HS2? Can the Minister remind us whether it will be a requirement on those responsible for building HS2—if it is still the Chinese, then we perhaps should know a bit more than we otherwise would—that proper access will be provided on that route?

In a powerful intervention, the noble Lord, Lord McColl, who is not in his place, went through the issues about taxis and raised the first point about disability training, which has been picked up so many times that I will not list your Lordships’ names. There are obviously two sides of the same coin. Without the proper investment in disability training, so many of the issues that arise in transportation in the practical sense will be ineffective. We heard further examples which were almost too difficult to listen to. There is a very easy solution to the question of audio-visual notifications, which has been picked up in legislation currently before the House.

The noble Lord, Lord Holmes of Richmond, raised the possibility that air carriers would evade responsibility to cover the full cost of the damage that they cause to wheelchairs or mobility devices, because those can be treated as freight and not as essential parts of people’s lives. The Government could easily resolve this and I hope that the Minister can confirm that she is in discussion with the noble Lord on that point.

A number of noble Lords raised football stadia. We have in this House had the experience of seeing a Bill which would resolve that issue go through with unanimous support. Indeed, I do not think that any amendments were even put down for its final stages. As the report says:

“Many of the pleasures which most of us take for granted are denied to disabled people”,

simply because access is not made in the ways that it should be. The law is clear on this. Yet it is absolutely appalling to hear that, despite the Premier League’s commitment and undertaking that,

“its clubs will comply with the accessible stadia guidelines by August 2017”,

this is not the whole story. I think the figure given was that seven clubs may not make it and those that are promoted will not have to make it. What about those clubs in receipt of public funding? I do not want to name names but can the Minister confirm that if any football club in the Premier League is in receipt of public money, that money will be paid to it on condition that the stadium is made accessible? That should at least show the way in which power could be exercised under appropriate arrangements.

The noble Baroness, Lady Thomas of Winchester, mentioned restaurants, pubs and clubs that are difficult to access, with many not providing basic facilities such as disabled toilets. She also suggested an easy amendment to the Licensing Act, which would resolve that. Why could the Government not take that up? The designs of dwellings and common areas are processes where tenants are prepared to pay for improvements. These things could happen simply by requiring that as a condition of having that sort of common approach or in the design and planning arrangements. The Government would not have to invest heavily in it or need to carry out reviews. The research in this area is available to them and reasonable adjustments are part of the process which we all need to support.

A very important point was made that disabled people appear to be worse off than others in getting access to justice. The figures on appeals and tribunals are very significant, because of the mixture of the introduction of fees and the reduction in legal aid. Again, the Government are currently thinking about these issues and I hope that there will be something in the Minister’s response on that.

The broader issue of communication was raised, particularly by the noble Lord, Lord Low, and the need to pick up on reports from the professional bodies is worrying. At a time when we are thinking about digital issues and the Digital Economy Bill is before the House, I would have thought that the Government might look at the opportunities there and see whether they could respond to them.

In conclusion, the needs of disabled people are many and complex. Much more could be done with additional resources and, as has been made clear to us tonight, the resources needed are not significant in these areas. A lot can be achieved for very little investment. It may be that the time of austerity measures is passing and therefore there will be more consideration of investment, but the recommendations should be at the top of the list. The changes listed in the report that have been turned down by the Government are quite simple and often cost-free to the taxpayer. We need the Government behind them. The time for buck-passing and evasion has gone and, as we have heard so many times, raising awareness will not be sufficient. We need action. We need law-law not jaw-jaw, as has been said. As the noble Baroness, Lady Brinton, put it so well, the challenge to the Government is that if they wish to prove that they believe in inclusion for everybody in the country, they should reconsider their present response.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, first, I take the opportunity to thank the noble Baroness, Lady Deech, for securing this important debate on the eve of the Paralympics, as the noble Baroness, Lady Campbell, said, and on the 21st anniversary of the Disability Discrimination Act. I also thank her for coming to see me today. I understand she will be meeting the Secretary of State later this week.

I am also grateful to other noble Lords who have spoken very thoughtfully on this subject. I am particularly grateful to the mobile Bench. I did not know the noble Baronesses were called the mobile Bench or bunch, but they are certainly a very formidable line-up.

I thank the noble Baroness, Lady Deech, and her colleagues on the now-disbanded but certainly not forgotten Select Committee on the Equality Act 2010 and Disability for their wide-ranging report which was published in March. It is timely and comprehensive and highlights the continuing challenges and obstacles which disabled people face on a daily basis. Many examples have been given today.

I hope noble Lords will be happy—or at least less unhappy—on leaving the debate than they have been in recent months about some of the things that I am to say, which I hope will bring a bit of cheer. The committee’s report rightly focused on a number of important issues, such as how adequately we imbed disabled people’s needs into the first steps to plan services and also when we construct premises. I take the point about Crossrail incredibly seriously. I almost could not believe it when the noble Lord raised it, but so many noble Lords repeated it that I will look into the issue and find out why such a huge construction project was built without step-free access. That theme on the construction of premises has now, as noble Lords have said, been taken up by the Women and Equalities Select Committee in the other place for its own inquiry.

The report also fairly examined whether both public and private sectors have been sufficiently proactive in meeting the needs of citizens with a disability and whether there is still a tendency simply to react to problems once they have arisen or to be forced into action when pressed. We further acknowledge the importance of two-way communication between government and disabled people and their representatives, something that the report says we can improve on, in turn improving access to justice and how services are delivered.

For the bulk of what I am going to say, I now turn to points that noble Lords have raised. The noble Baroness, Lady Deech, and the noble Lord, Lord Stevenson, spoke about court fees, and I will also talk about qualified one-way costs. The Government’s post-implementation review will report in due course, and we will consult on any subsequent proposals for changes to the fees or the remissions system. Lord Justice Jackson recommended the introduction of qualified one-way costs in public injury claims, but the Government will consider the possible extension of qualified one-way costs shifting to other categories of law, including claims made under the Equality Act, in due course, once there is some experience of the regime in personal injury.

The noble Baroness, Lady Deech, also talked about legal aid. We have made sure that legal aid continues to be available to provide access to justice for people in the most serious cases. It includes, subject to statutory means and merits tests, legal aid for disputes with local authorities about community care services for disabled people and for discrimination claims relating to the contravention of the Equality Act.

The noble Baroness, Lady Deech, also talked about the PSED amendment to ensure that public authorities take steps towards equality rather than having “due regard”. The due regard test is well established and the courts have recognised that difficult decisions by elected politicians should not be second-guessed by the courts where all the relevant facts have been considered. The due regard requirement helps to ensure that public bodies remain conscious of equality issues throughout the process of exercising their functions. As soon as a requirement becomes more specific—the noble Baroness and I talked about this today—or task-oriented, there is inevitably the risk that many public bodies may start to think of short cuts or ways out of fulfilling their duties. That is an important point.

The noble Baroness and a couple of noble Lords talked about disabled people losing out now under the PSED. We disagree, first and foremost because two of the leading cases brought under the PSED on the spare room subsidy and the independent living fund were brought by, or on behalf of, disabled people. We feel that if public bodies were under separate duties to have regard to each of the protected characteristics in the Equality Act, we would have a more complicated and bureaucratic scheme than at present.

The noble Baronesses, Lady Deech and Lady Thomas, and other noble Lords talked about the culmination of the change of Ministers and Ministers not being in any one department. There was also a suggestion that the Minister responsible for disabled people might be of a higher rank and a full member of the Cabinet Social Justice Committee. Following the ministerial reshuffle, I requested that I remain as a Minister in the GEO, so as far as the House of Lords is concerned, there is continuity—at least for the moment. The Government have always been clear that regardless of rank, whenever Ministers, whether for faith and integration or for disabled people, speak on disability issues, they speak on behalf of the Secretary of State. Being rank-oriented is probably not entirely helpful.

[Lord Stevenson of Balmacara]

There is a double issue about ministerial positions. The point that the Minister has made is correct but there is a question about whether there would be a greater effect on policy activity if all the Ministers could be in one department—for instance, one in DWP implies a disability focus whereas there is a bigger concept of equality and human rights. The other issue is what would happen if there were to be a British Bill of Rights as there may well be; there has been one from the Ministry of Justice.

[Baroness Williams of Trafford]

I totally understand the noble Lord’s point. Having been in government for a very short time, I believe that if all the Ministers are in one department the attitude can be that it is another department’s responsibility. Issues on disability, race equality and women’s equality should be cross-governmental; every department should take ownership of them. We could argue about that till the cows come home, but our thinking is that it should be a cross-government approach.

The noble Lord, Lord McColl, as well as the noble Baronesses, Lady Campbell, Lady Brinton and Lady Deech, talked about bringing into force all sections of the Equality Act regarding taxis. We talked earlier on outside the Chamber about the best and the worst stories about taxi drivers. I had a very good experience the other week, when we spotted a disabled man whose wheelchair had run out of batteries. The taxi driver could not have done more to assist this man, who would have been helpless in the middle of the street without him. But there are terrible stories as well, and the noble Baroness, Lady Brinton, outlined her experiences in different parts of the country.

Among the provisions in Part 12 of the Act, which concerns access to taxis and private hire vehicles for people who are disabled, those relating to the carriage of assistance dogs are now in force, while those relating to the assistance provided to wheelchair users will be commenced very soon. The noble Baroness, Lady Brinton, talked about enforcement—how do we make sure these people do this. It will be a criminal offence for drivers of designated wheelchair-accessible taxis or private hire vehicles to refuse wheelchair users assistance or to charge them extra. The fine will be up to £1,000. The noble Lord, Lord McColl, asked whether the Government will introduce guidance and training to supplement the introduction of the duty on taxis to take wheelchairs. The answer is yes: guidance will be produced by the Department for Transport to coincide with the introduction of the duty.

The noble Lord, Lord McColl, and the noble Baroness, Lady Deech, also asked about bringing into force Section 36 of the Equality Act. We are conscious that a small number of those sections of the Act that have not been commenced are of particular relevance to disabled people. Accordingly, we are currently reviewing the position on Section 36—even though the noble Baroness might sigh at that response. The duty to make reasonable adjustments to common parts, as our response to the committee makes clear, is a complex issue, but the Government hope to conclude the review by the end of this year, and I am sure I will be taken to task if that does not happen. We will of course report our decision to the Women and Equalities Committee.

The noble Lords, Lord McColl and Lord Low, and the noble Baronesses, Lady Deech and Lady Brinton, talked about the crucial role of audio-visual on all new buses. Building on the Public Service Vehicles Accessibility Regulations, which provide a step change in accessibility for many disabled people, the Bus Services Bill makes specific provision for equipment to be fitted on vehicles that will provide all audio and visual information where the majority of operators in an enhanced partnership agree, and franchising authorities will be able to make similar requirements for the operators of their services. The Bill’s open data provisions will also help to ensure that all passengers have the information to make informed choices about their travelling options. We understand the frustration about the lack of progress in the provision of accessible information outside of London and are actively considering how its uptake can be encouraged.

A number of noble Lords asked about the cumulative impact assessment of cuts et cetera on disabled people. Considering the impact on people with disabilities and those with other protected characteristics is an integral part of the Government’s approach to their policy work. It includes measures taken at all Budgets and other fiscal events and reflects the Government’s principal commitment to fairness as well as their legal obligations.

There were a number of questions about G4S. The noble Baroness, Lady Prosser, expressed concern about the contract with G4S, as did the noble Baroness, Lady Deech. I have to say that G4S was the winner of a thorough, competitive tender process for this contract to run the Equality Advisory and Support Service. We believe that the G4S group has a good background for taking on the EASS functions. During the last three years it has successfully run Child Maintenance Options, a helpline for the Department for Work and Pensions involving many of the same factors that may be present in EASS contacts: callers who may be distressed or emotionally vulnerable and cases that may be complex and span a number of calls or contacts, sometimes with people whose first language is not English. We believe that G4S’s ability to engage positively with this type of case and type of customer provides a good basis for the delivery of the helpline. More generally, it is committed to fulfilling its responsibilities in all its companies around the world by applying the UN’s 2011 Guiding Principles on Business and Human Rights. I hope noble Lords will be able to see beyond the immediate reaction of some NGOs and lobby groups. The Equality Advisory Support Service is an essential service that we are aiming to continue operating on a seamless basis and to the same standards as before.

The noble Baroness, Lady Prosser, talked about training for G4S staff, which clearly is essential. We agree that training for the new G4S staff will be necessary and undertaken; in fact, it has already begun.

The noble Lord, Lord Northbrook, and the noble Baroness, Lady Campbell, made the point that the Government say the EHRC did not want to run the EASS but the EHRC’s response contradicts that. The EHRC did not bid to operate the helpline itself, nor did it propose operating it in discussions with the GEO. The EHRC proposed to manage the tender process but acknowledged that, because of the value of the contract and EU procurement requirements, there was insufficient time to conduct the procurement outside a preapproved framework. That was the approach that the Government used.

The noble Baroness, Lady Campbell, asked why there was a difference of view between the Government and the EHRC over the EHRC taking back the EASS. To be clear on this, the EHRC’s proposal to the Government was that it wanted to reshape and retender the EASS helpline. Its proposal did not involve running the service itself. In retendering the service, the EHRC would have had to have worked within the same contractual framework as the Government, and it proposed to use the GEO resources and support to do so. That was not a cost-effective option for the Government.

The noble Baroness also talked about the EHRC’s disability committee being retained, and whether the Government would hold a meeting with the EHRC and members of that committee to discuss this matter. Now that the order to dissolve the committee has been made, the EHRC’s arrangements for its disability work are essentially a matter for the commission itself. I note that the EHRC rejected the relevant recommendation in the committee’s report. None the less, Ministers meet the EHRC chair and the chief executive from time to time, and I know they would be happy to discuss at a forthcoming meeting their plans for ensuring that its disability work remains effective and well supported by evidence.

The noble Baroness also talked about commencing Section 14 on dual discrimination. As was said in the Government’s response to the committee’s report, we are considering the future of a number of uncommenced provisions in the Equality Act 2010. Unlike, say, the uncommenced reasonable adjustment provisions, we do not see dual discrimination as a particularly well-tailored measure for disabled people.

I am running out of time so I will try to move as quickly as possible. The noble Baroness, Lady Deech, asked for technical guidance from the EHRC to be laid before Parliament as codes of practice. We are yet to be persuaded that codes are the solution when technical guidance can often do an effective job, and we are certainly not aware of any concerns from those for whom the statutory code are intended—the courts, tribunals, employers and service providers—that EHRC guidance on a few areas on the Act appears in a technical non-statutory form rather than as codes. We will, however, continue to bear in mind whether codes might in some circumstances have more to offer.

I turn to sports grounds, which many noble Lords, including the noble Lord, Lord Faulkner, talked about. As has been said, the Government did not support the Accessible Sports Grounds Bill because legislation already exists in the form of provisions in the Equality Act 2010 which require providers of services such as sport stadia to the public to make a reasonable adjustment—for example, a gangway—so that disabled people are not placed at substantial disadvantage. It was felt that the blanket approach adopted by the Bill departed from the careful balance achieved in the Equality Act. We note that, to date, no disabled spectator has brought a case under the reasonable adjustments provisions in that Act.

Moving on to the Premier League’s pledges for 2017, we are disappointed, as are noble Lords, by its progress and will be asking it for a far more detailed report giving a club-by-club breakdown setting out what work has been done and what is planned to meet the August 2017 deadline. The pledges were made publicly by the Premier League on behalf of clubs and we look forward to its taking action against clubs that have failed to meet their targets. If Premier League clubs fail to meet their accessibility commitments, we will expect the Premier League to take appropriate action against all non-compliance.

The noble Lord, Lord Stevenson, made an interesting point about clubs in receipt of public money and how we can hold their feet to the fire. Off the top of my head, I would imagine that clubs would be caught by state aid rules. I thought about Section 106 money being used better to enforce their obligations under the Disability Discrimination Act when work is done by clubs. Perhaps we could take that up.

I have absolutely run out of time. I should have liked to have gone through some of the things that the Government are doing. Perhaps I may put a note in the Library to outline that. There will be questions that I have not answered but, on that note, I thank all noble Lords who have taken part in this debate.

High Speed Rail (London-West Midlands) Bill

Lord Stevenson of Balmacara Excerpts

Thursday 14th April 2016 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I start by welcoming the noble Lord, Lord Mair, to full membership of the House. A number of us will have noticed that he has been around our premises for some time because he was introduced a few months ago. That speaks too of the careful way in which he has allowed himself to understand our procedures and our processes and thus to fit in better with how we operate, and indeed that has been very well brought out in the excellence of his maiden speech. I congratulate him on it and I think that it might become a model of the genre for those who come after him.

As we know, the Cross Benches play an enormous part in our work. Many of us can justify our existence by saying, “Look at the quality of the debates we have here”, but of course we rely heavily on those who are sitting opposite me to be able to justify that claim. But it is a sincere measure of what I say because the gravitas and experience that come with the sort of people who are appointed to the Cross Benches is important to the way in which we look after the responsibilities we have been given in terms of making sure that the Government are held to account and that scrutiny is done in the public interest.

The noble Lord’s curriculum vitae, which I am afraid I picked up only early this morning because I did not realise that I would make the response— I apologise if there is anything I may have missed—is quite large, if I may put it that way. It runs to five closely typed pages and that does not count the 160 periodical and other publications that he mentions modestly but does not actually list. I will check those later and I am sorry that I have not had time to read them. The noble Lord was right to mention his academic experience, and we value that. I think that he was a bit modest about his industrial experience because as well as saving Big Ben, over the past few years he seems to have had a hand in just about every other major infrastructure project all across the world, not just in the UK. He is clearly an extraordinary Renaissance man, if that is not too high praise, and he will surely enrich our discussions. He ended his speech by quoting a slightly unusual person to go to for a reference, His Royal Highness Prince Philip. But he is absolutely right that we have far too few engineers in our Chambers, and we welcome him.

The fact that we are welcoming today somebody with such a wide range of experience, both academic and industrial, suggests that we do not always cherish those who have that particular formation and background. For example, the Companion teaches us how to refer to our colleagues: there are special words and phrases for those with military and legal experience, but we do not treat our academics in the same way. I wonder whether we ought to change that. I had a bit of difficulty thinking up what to say, but we could try it out for a bit; when the noble Lord rises to speak again, as I hope he will, we should refer to him as the “noble and expert Lord”. What do your Lordships think? Shall we give it a go? In any case, we welcome the noble Lord and look forward to his further contributions.

I was very reassured to hear the Minister speaking about the wide powers that will go to the Select Committee. I will be listening very carefully to the answers he gives to the questions asked by my noble friend Lord Rosser when he responds.

In a representative democracy, there are limited opportunities for individual citizens to be engaged in the parliamentary process. The hybrid Bill processes in Parliament provide an important and valuable opportunity for ordinary citizens to protect their private interests when these are being engaged by powerful private and public organisations. However inconvenient for the Government, Parliament must never abuse the trust placed in us by so many people.

I declare an interest as my family and I live in Little Missenden, a village within the Chilterns AONB. I am also a member of the Chiltern Way Federation academy school in Wendover. I do not oppose the Bill but I wish it could be improved. I hope that, before it starts hearing from petitioners, the Select Committee will visit the planned route to get an impression of the issues which are still causing such concern in places such as the Chilterns. I also hope it will get expert advice not just from the promoter, but from others who have expertise and knowledge about the plans.

It will also be important to reflect on the experiences of the Commons Select Committee, and learn from them. Listening to the sessions in the other place and reading the transcripts, one is left with a feeling that what the Commons Select Committee described as the “heavy burden of petitioning”, was a chore it had to endure and not an opportunity for finding a resolution. The fact that so many petitioners raised similar points and sought the same mitigation—in the case of the Chilterns, a bored long tunnel—was seen as a problem and not a rather obvious clue about where the solution to the petitioners’ concerns lay.

I have to say that the mood at present in the Chilterns from those who tried to engage with the Commons Select Committee is very negative about the experience and there is considerable disenchantment from many people who felt frustrated and patronised. This is not good for democracy, and it is important that the Lords Select Committee can recover some of the ground lost, in the public interest.

Secondly, I hope that the Lords Select Committee will ensure that it considers the wider public interest issues raised by the decision to take the line out of a deep tunnel at South Heath in the middle of the Chilterns, and to continue at surface level to Wendover. There were more than 800 petitions from individuals and action groups about the Chilterns tunnel. All the local councils called for a long tunnel through the Chilterns, and recommendations from the statutory bodies concerned with the Chilterns that a deep, long tunnel was the only possible mitigation to the potential damage caused were framed in as strong a language as is permissible by bodies that receive grant in aid these days.

While the volume and intensity of the petitions surely pointed to the need to give very careful consideration to a bored long tunnel through the Chilterns, the Select Committee appeared at all times, almost to the point of perversity, to be dismissive of that approach. It seemed as though the sole purpose of the committee was to narrow the arguments down to the harm that the project would cause to an individual, and how that might be ameliorated by sound barriers and the like, rather than exploring ways in which this harm could be prevented in the first place—by a tunnel. It was this unwillingness to engage in the wider public interest in the Chilterns that caused so much distress and disillusionment among the petitioners, to which I have already referred.

Thirdly, what is missing at the moment—and it is a very glaring gap—is an independent analysis of what additional costs might be incurred by making provision for a long bored tunnel through the whole of the Chilterns AONB, the benefits which would accrue from preserving nearly all of the AONB if a tunnel were provided, and what the losses would be if the scheme goes ahead in its current form.

When he introduced the Economic Committee’s report on HS2 last September, my noble friend Lord Hollick said, perhaps a little unfairly, that HS2 was,

“a project of faith … supported … by overblown rhetoric”.

He pointed out the need for,

“a rigorous, independent and transparent appraisal of the costs and benefits of this huge undertaking”.—[Official Report, 16/9/15; col. 1850]

The Commons Select Committee expressed “scepticism” of the costs of tunnelling bandied about by all parties, including the promoter, but took no action to expose what these costs actually are. The Lords Select Committee must ensure that this information is made available in the public interest, either directly or by commissioning an independent analysis. Not to do so will further erode people’s faith in the democratic process.

Finally, I hope that one of the key debates in the Committee stages of the Bill will be whether this country values its designated areas of outstanding natural beauty. What should we do when the need for infrastructure improvements impacts on our natural environment and, in particular, our national parks and AONBs? This argument, to protect areas of national importance, is not one against the building of infrastructure as such—it is an argument in favour of ensuring that such developments are sustainable and do not damage irretrievably the quality of our natural environment—an environment that, once gone, cannot be replaced.

We have heard much about the economic case for HS2 but rather less about the case for the natural environment. In all this, the case for the long bored tunnel through the Chilterns seems to have been ignored. So I want to set it out now briefly, for the record, and as a basis for amendments that I hope to move in later stages.

Under the Bill before us today, approximately 8.5 kilometres of the Chilterns AONB will have a major twin-track railway line built on it, running at surface level. It is proposed to have 18 trains an hour each way, which will cause noise and vibration. Large infrastructure projects going through relatively unspoiled countryside will effectively urbanise it. Maintenance activity will take place all night. The trains will cause light pollution, and parts of the route will have fixed lighting. There will be security fencing and sound proofing baffles, maintenance roads, balancing ponds, power lines and gantries, planting and huge earthwork bunds to mitigate the noise emanating from operations, and the soil from cuttings will be deposited right across the Chilterns.

The materials being introduced are not natural; the scale is grotesque and the overall impact is to introduce alien, cityscape elements into a predominantly rural environment. The attempt by the promoter to minimise the impact of these intrusions into the AONB, for example, by arguing:

“It’s really only a very, very small percentage impact, less than 1% impact”,

is as demeaning as it is misleading.

The clue is in the title: the Chilterns is an area of outstanding natural beauty. It is an irreplaceable resource. We can put the earth back on a cut-and-cover tunnel; we can grass it and grow some new trees. But we will not have what age and interaction with people and their dwellings over centuries have produced in the rich patina of a landscape that is largely unchanged since pre-Saxon times, and which is the key reason why it has merited an AONB designation.

Designation as an AONB brings with it a statutory requirement on Ministers to do what they can to conserve and enhance our higher quality English landscapes and protect their scenic beauty. Is it really in the national interest to destroy 8.5 kilometres of outstanding natural beauty, when for a small additional cost, the AONB can be protected for the long term?

How can the Secretary of State say that he is fulfilling the Government’s statutory obligation “to conserve and enhance” when he proposes to build two substantial viaducts, four kilometres of cuttings, 1.7 kilometres of embankments, a green tunnel, six compounds with hard standing and seven bridges? It is just ridiculous.

The National Planning Policy Framework says that major development should not take place in AONBs except in exceptional circumstances, and after appropriate tests have been made. HS2 itself has accepted that a Chiltern long tunnel would provide overall environmental benefits compared to the HS2 proposed scheme during operation and construction. It also confirms that such a tunnel would not adversely affect the programme for the completion of HS2.

Time and again, petitioners to the Commons Select Committee made it clear that they wanted to discuss how and under what conditions the committee would agree to a tunnel through the Chilterns. Every time the committee was unable or unwilling to engage. It took the view that the case for the bored long tunnel “had not been made”, before it had heard any of the individual petitions, and without ever having defined what might constitute such a case.

I suspect that HS2 will always be, “a project of faith supported by overblown rhetoric”. People might be much more willing to support HS2 if they knew that the only AONB on the line had been preserved by a Government who were open and transparent about what they wanted to do, comfortable about discussing the costs of the project, and determined to preserve our natural heritage.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

Of course. As I said, if there are additional questions, I will be pleased to write to noble Lords.

I thank the noble Baroness, Lady Randerson, for her support. She said that the Liberal Democrat approach would be that of a critical friend to the Bill. It is right that in the revising nature of our Chamber we would hope that the discussions we have are always friendly, albeit a tad critical, but I understand the concerns that the noble Baroness has raised. She raised, rightly, connectivity with the rest of the network. As she will know, we are undertaking one of the largest programmes of investment in the railways. That is important. I have previously said from this Dispatch Box that the Government are investing £38 billion in the railways in the next five years.

The noble Lord, Lord Birt, raised the issue of investment generally over the next 15 or 20 years. I can certainly give him the detail that in the next five years the overall transport investment is in excess of £60 billion, in addition to the money we are spending on HS2. I hope that that underlines the Government’s commitment to the importance of transport infrastructure in the United Kingdom.

[Lord Stevenson of Balmacara]

I checked with the Deputy Speaker to see whether I could come in after the completion of the Second Reading but he advised that I should interrupt now and ask my question. Therefore, I am following on from my noble friend Lord Tunnicliffe. The description the Minister gave before he got to the alternative provision arrangements was that that was a matter for the House to determine, not the Government. I would be grateful if, when he writes to my noble friend Lord Tunnicliffe, he could specify exactly where the precedent is that he is relying on for that. Presumably these words are not his but words of the House and the House authorities, and obviously we would like to check chapter and verse.

I might well wish to return to this later but it is my understanding that there are several precedents which suggest that what he read out was not correct; that previously in two major Bills—the Crossrail Bill and the Channel Tunnel Rail Link Bill—additional provisions were considered by the second House; and that on occasions, although intimations about the powers have been made, the general position appears to be that it is possible, as my noble friend Lord Tunnicliffe suggested, that with an instruction the committee could consider and recommend an alternative provision. It is such an important point because the more the Minister narrows the position, the more difficult it will be for those who have suggestions to make to the Select Committee to be able to do so within the petitioning process as he has described it.

In addition, this does not seem to accord with what has been said to the public. He might wish to reflect on this when he replies. The clerks of the House have done a very good job in reaching out to those who wish to petition your Lordships’ House. There is a petitioning kit, which is a novel innovation, but it is certainly worth looking at because it is very informative. It says that,

“individuals, businesses and organisations specially and directly affected by a hybrid bill are given the opportunity to ‘petition’ either or both Houses of Parliament to seek to mitigate the effects of the bill on themselves, their business or their property”.

There is no qualification in that. That is a straight statement that mitigation can be provided. The kit explains what a petition is and says:

“A Select Committee … will be appointed to consider your petition and any other petitions deposited against the Bill … They have the power to amend the Bill, but not reject it”.

I do not understand how he can arrive at the position he has just articulated, given that and what has been said publicly. Without wishing to prolong the proceedings of the House, a lot of what has been said today has been about the confidence that people have in the House. We are in great danger of losing that.

[Lord Ahmad of Wimbledon]

Part of what I am seeking to do is to provide greater clarity but, in the interests of time and of ensuring that we get a comprehensive position, I will be writing to noble Lords to detail the position exactly. I hope the noble Lord, Lord Stevenson, is satisfied with that. He is right to raise this important issue, as the noble Lord, Lord Tunnicliffe, did, which requires—

Online Safety Bill [HL]

Lord Stevenson of Balmacara Excerpts

Friday 11th December 2015 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, in the film “Groundhog Day”, progress cannot be made unless the principal character comes across a moment of self-revelation. I do not think that is necessary in the case of the Bill. As we have heard, five years is a long time, but every year the noble Baroness has brought forward a better and better Bill. This time, we have the additional support of several noble Lords who have not only added their names to amendments but fervently support the Bill, as we have heard, and the Delegated Powers Committee has kindly assisted and provided some amendments. Perhaps that is the point at which Groundhog Day becomes reality and we can make progress. We wish the Bill all the best.

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Baroness Shields) (Con)]

My Lords, I recognise the noble Baroness, Lady Howe, for her unwavering commitment to this agenda, and all those who have spoken and contributed to the Bill thus far. As you know, the Government are absolutely committed to the protection of children online, and we must acknowledge the significant and hugely encouraging progress that has been made in the UK on a self-regulatory and voluntary basis. Without legislation, the UK Council for Child Internet Safety has played a vital role in this process. This multi-stakeholder approach to internet safety draws together government, charities, and the internet and mobile industries, and provides a highly effective approach to internet safety that is the envy of our international equivalents.

This, in and of itself, is a future-proofing strategy. The Family Online Safety Institute, an international organisation based in Washington DC that works globally to drive up internet safety, says that the UK is,

“at the forefront of online safety and best practice”,

and that UKCIS is at the core of that.

The first part of this Bill, to which it is proposed to add Amendments 1 and 2, would set out additional duties on internet service providers, mobile phone operators, Ofcom and Ministers in respect of providing a safe internet service for children and information about online safety. This is beyond the self-regulatory regime of family-friendly filters already voluntarily applied by all major ISPs and mobile phone operators in the UK. However well intentioned the drafting of such future-proofing clauses may be, this is, as has been said, a constantly moving target. We have no reason to believe that the successful, voluntary approach led by industry will change in future. Nor do we expect that such an approach would be incapable of addressing these issues as they come up or the arrival of new operators, services and platforms.

Ofcom regularly publishes reports on internet safety measures and a forthcoming report will address the noble Baroness’s concerns. We feel that there is no need to set out arrangements in statute to require this at further intervals because they already do it voluntarily. Furthermore, all mobile phone operators provide filters as default-on, with age-verification controls in place before any changes can be made or filters removed. These filters are underpinned by an independent framework provided by the BBFC to define unsuitable content for under-18s, based on its classification guidelines.

However, as my noble friends and colleagues have mentioned, there is always more that can be done, and no filters or technological tools will be 100% successful all the time. It is crucial that parents continue to engage with their children’s internet experiences and ensure that they build awareness of and resilience to things they see on the internet which may upset them or cause them harm. It is also vital that we, as the Government, continue our effective and productive relationships with industry and Ofcom to consider how our world-class internet safety protections can be made even better. Great progress has been achieved in the UK through voluntary activity, with industry working together with Government and the charity sector in an effective and collaborative way. We have no reason to expect this effective partnership to change.

--- Later in debate ---

[Baroness Howe of Idlicote]

My Lords, I congratulate the noble Baroness, Lady Benjamin, on her amendment, which put the whole theme very effectively. We can all only do our best to re-emphasise all these points, because they are so vital.

We have heard a good deal about age verification in relation to pornographic websites since the publication of the Conservative manifesto, and rightly so. The commitment is of seminal importance, and I very much welcome it. However, we should not lose sight of an entirely different application of age verification in the online world, which the noble Baroness has raised in this debate. Filtering as a child protection mechanism is only really credible if filters are lifted in response to requests from adults. To avoid confusion, let me be clear about what I mean when I talk in terms of lifting filters, and what I do not mean. Having a robust filtering system does not mean guaranteeing that no one with special expertise will be able to bypass the filters. That is beginning to be made clear—I hope so—because many people have mentioned it to the Minister.

I fully recognise, as do most of us, that quite a number of young people will work out how to do bypass filters. My point has never been that a robust filtering system makes the internet safe—only that it makes the internet safer. What I am talking about here is the facility that an adult, regardless of whether or not they are a computer expert, should be able to access to lift adult content filters if they decide they do not want them anymore. While a robust filtering system cannot be expected to guard against those young people with real computer expertise who can work out how to bypass filters, it must ensure that the mechanism that ISPs make available to their customers to switch off the filters is subject to age verification.

To have filters in place that anyone can lift without age verification is a bit like saying that we are doing our best to promote security by providing doors, even though all the doors are unlocked. In this context, a so-called closed loop system whereby an ISP will send an email to an account holder informing him that the filter settings have been changed is completely unacceptable. As other noble Lords have pointed out, age verification takes place before an age-restricted activity occurs, not after it. As the polling demonstrates, a significant number of people would never open an email from their ISP. The noble Lord, Lord Morrow, made that point, and I could not agree with him more. I very much hope that the Government will start taking note of this aspect of the age verification challenge as well as in relation to web crime.

The Bill, which requires users to decide whether they want to access adult content, subject to age verification checks, would help them rise to this challenge. Clause 1(4)(b) requires that a provider of a service has to have age verification that meets the standards set out in Clause 2. I am grateful to the noble Baroness, Lady Benjamin, for moving her amendment, which makes explicit this very sensible requirement. I hope that on this occasion the Minister will have taken in what has been said and will do something about it.

[Lord Stevenson of Balmacara]

My Lords, like the noble Earl, Lord Erroll, I think this is a logical amendment which follows the way in which the promoters of this Bill are taking it forward. It fits well into the logic of what we have heard so far, and it should be supported. As many noble Lords have said, age verification lies at the heart of this issue. It is not just in relation to adult content—however it is to be described—but also in relation to things such as gambling access and more generally. As we move into the digital age and as consumers increasingly exercise online purchasing power, there will be other issues where it is important to make sure that age is verifiable. I am not sure that we have got to that point. That makes the Government’s response so far rather confusing, and I will be interested to hear what the Minister says on this amendment. They seem quite happy to go with the crowd on populist measures, talking up what should happen here, but they seem reluctant to take the necessary steps to enforce them in a way that will give confidence to those who have to use these systems that they will work. Like the noble Baroness, I am looking forward to what the Minister will say.

[Baroness Shields]

I thank noble Lords for their comments. This discussion has gone way beyond the scope of the amendment, but I state at the outset that there is no reluctance on the part of the Government to take action here. We are talking not about what is going to be done but about how it is going to be done. We have talked about future-proofing, but the real issue is that by the time legislation is in the public domain, the world will have moved on. We are starting a consultation very shortly on age verification. It is part of our manifesto commitment. We have been seeking the advice of experts for the past couple of months and are going to open that up to the public. There is no wavering in the Government’s commitment to online safety. We are talking about how we are trying to do it versus what we are trying do. We all agree that this is an urgent issue that has to be addressed. We have talked about filters. The noble Earl, Lord Erroll, has been very involved in the development of age verification systems and, as he said, filters are a very crude mechanism. We cannot rely on them completely. That said, we believe they are part of the parental toolkit, and we will make sure that by December 2016 we are in compliance with the EU regulations on net neutrality. We will not let that slip through our fingers.

We are trying to legislate about many bits and bobs, if you will. We have to continue the process of co-operating with industry to evolve the regimes that protect children online. That is the only way. If there is something wrong with the way that ISPs are doing this and if there are things that noble Lords want to raise, they should raise them. The ISPs will change their procedures and modify accordingly. They are committed to this agenda. We do not need to legislate here. We just have to continue to work with them through the UK Council for Child Internet Safety and the voluntary mechanisms that we have established and we will accomplish more.

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[Baroness Howe of Idlicote]

I congratulate the noble Lord, Lord Morrow, on his amendment, which he moved so ably, not least because it highlights one of the key points that has been made repeatedly in debates not only on this Bill but on the many previous online safety Bills.

I have never been persuaded that the voluntary filtering agreement between the big four ISPs is anything other than a very temporary measure. In the first instance, I believe that filtering is sufficiently important to warrant a statutory foundation. In the second instance, I believe it is important for the Prime Minister to press the big four ISPs to introduce a robust filtering regime for the sake of the children in the house that they serve. If it is important for him to agree to do that then, as others have mentioned, it is equally important that he does the same for the children in houses served by other ISPs. Unless we believe that some children are more important than others, surely we must operate on the basis that all children are worth fighting for just as much as those serviced by the big four. If it falls to all of us in this current attempt to bring in an online safety Act to support and speak up for the children in this group, of course we will continue to do so.

In my view, the only sensible way forward here is an even-handed statutory approach, as set out in Clause 1. It should relate, as the noble Lord’s amendment proposes, to Ofcom’s reporting of filtering as well as to the filtering itself. If the Government now have to make statutory provision for filtering because of new EU legislation, it certainly would be indefensible not to apply the new provision to all providers. With this in mind, and as I and others have said, we would be more than happy for the Government to take aboard and use this part of the Online Safety Bill.

[Lord Stevenson of Balmacara]

My Lords, I opened my comments this morning by referring to the film “Groundhog Day”. I did so in jest and it was not taken seriously but, as we go through the Bill, I am beginning to think that it has more to say to us than I had thought.

Like the right reverend Prelate the Bishop of Bristol, I am quite confused about the Government’s position on this. I am sorry to keep going on to the Minister, who I know is in a good place on many of these issues, but what is happening? She said, in a very strong statement, that there was no reluctance to act; on the other hand, she was quite careful to cover herself and said that that did not mean legislation. Yet, as we have heard, the Prime Minister himself—her boss—has jumped in and has said that legislation will be in place by 31 December, even though we think the date will be 30 April next year. I am not an expert on these matters and I certainly do not want to cause the Committee more confusion, because we want to get through this business today and make sure that the Bill goes on its way. However, it would be helpful if, either now or before the end of this Committee, we had a very clear statement.

Like others, I think this whole area needs people who are keen to see movement on it to get round a table and work out what can be done. If the Government are to go ahead with their own agenda, I am sure the promoters of the Bill, and the noble Baroness, Lady Howe, in particular, will want to get behind that and support it. However, as we know, legislation and legislative time is very difficult to arrange, so, if the Government decided that they had to legislate, it would be completely ridiculous to lose the opportunity available to us here today. We on this side of the House are very willing to support what is necessary to do this—we are not oppositional on this matter—but we are confused.

[Baroness Shields]

I thank all noble Lords for their comments. I start by addressing the conflation of some issues and the confusion that has been raised. On the confusion regarding the filters regime and its legality in terms of Europe, we must legislate to make our filters regime legal according to the new net neutrality regulations. The date for that is by December 2016. To be clear: we need to do something to keep our existing regime viable and functional under the law. That is the first thing. As the noble Lord, Lord Morrow, so aptly presented in his comments, the Prime Minister said that we would legislate to make sure that our filters regime is legal under European law.

It is not fair to insinuate that by challenging the vehicle we are somehow not supporting or speaking up for children. That is so far from the truth. The noble Earl, Lord Erroll, said that filters are not a silver bullet and explained to us how technically they work. The work being done by the British Standards Institution and the Digital Policy Alliance to define a standard for things such as age verification is vital to staying ahead of this problem. If the result of this work is something that the ISPs can then adopt, we will have an evidence-based technological solution that will support us going forward. That is much better than trying to tell the ISPs how to do it. We are looking to experts and developing an evidence base so that we can do this properly and voluntarily. The ISPs have said that they are willing to take that on board.

When the Digital Policy Alliance reports back to tell us how this can be done effectively, it will take time for these companies to go back to their engineering teams and develop solutions that enable them to implement those recommendations. That all takes time. You cannot legislate for that today. We are not talking about whether we are committed to it or the industry is committed to it.

Economic Case for HS2 (Economic Affairs Committee Report)

Lord Stevenson of Balmacara Excerpts

Wednesday 16th September 2015 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I thank the Select Committee for its excellent report. Over time, I have come to accept, if not to love, the need for additional capacity on the railway network, but it is always important to test public policy proposals and I think that it is generally accepted around your Lordships’ House that HS2 has not been properly examined. This is an exemplary report. It must have been great fun watching economics in action. It was a joy to read the forensic demolition of the Government’s economic case, as it was to hear it distilled in my noble friend Lord Hollick’s excellent speech. As many people have said, the Government’s response was tokenistic and not appropriate in the circumstances.

I am very grateful to the noble Lord, Lord Framlingham, for raising the question of the Chilterns AONB. I declare an interest in that I and my family live in Little Missenden, which lies very close to the line of HS2 phase 1. I want today to raise the concern that, for reasons which are still not clear, the HS2 Bill Committee has effectively ruled out extending the deep tunnel which at the moment goes part of the way through the Chilterns AONB—a decision which might seem to be rather discourteous, to say the least, as it was taken at the very start of the petitioning process for this area, effectively denying some 800 applicants in person the chance to give their evidence to be considered by the committee.

It is obvious that at the heart of a decision to allow a long Chiltern tunnel is a cost versus value decision, which is familiar territory for economists. There has to be a trade-off. There are additional costs that a longer tunnel would bear, but there are significant savings from reduced compensation payments and reduced land take. However, such a trade-off cannot ignore the benefits which accrue to the nation from preserving a special part of our countryside. After all, the whole business case for HS2 is based on a much disputed calculation of the benefit that business men and women get from saving time by faster travel. If that can be done, why can we not value the countryside? There are ways of quantifying these benefits, and a methodology is available that is already used by government. So far, though, the department and the Bill Select Committee have been highly resistant to engaging in this debate. Why is this?

Large infrastructure projects going through relatively unspoiled countryside effectively urbanise it. It is proposed to have 18 trains an hour each way, which cause noise and vibration. Maintenance activity will take place all night. The trains cause light pollution, and parts of the route have to have fixed lighting. There will be vent shafts where there are tunnels; access points; security fencing and sound proofing baffles; maintenance roads; balancing ponds; power lines and gantries; earthworks, planting and huge earthwork bunds to mitigate what is built; and soil from cuttings deposited right across the Chilterns. The materials are not natural, the scale is grotesque and the impact is to introduce alien cityscape elements into a predominantly rural environment.

The attempt by the promoter and the department to minimise the impact of these intrusions into the AONB—for example, by arguing, as they did recently to the Bill Committee, that:

“It’s really only a very, very small percentage impact, less than 1% impact, that we’re having on some particular feature of the AONB, whether it’s ancient woodland or woodland area”,

is as demeaning as it is misleading. The clue is in the title: it is an area of outstanding natural beauty, and the value placed on it has to be on the whole area, not by extracting fractions or percentages. It is an irreplaceable resource. You can put the earth back on a cut-and-cover tunnel, you can grass it and you can grow some new trees, but you do not have what age and interaction with people and their dwellings over centuries have produced in the rich patina of a landscape that is largely unchanged since pre-Saxon times, which is the key reason why it has merited an AONB designation.

As the Bill Committee has heard in evidence, designation as an AONB brings with it a requirement on Ministers and statutory bodies to do what they can to conserve and enhance our higher-quality English landscapes and protect their scenic beauty. What evidence is there that Ministers have taken this responsibility seriously? The National Planning Policy Framework says that major development should not take place in AONBs except in exceptional circumstances after appropriate tests have been made. What evidence is there that these tests were done properly?

The statutory framework also lays down that a relevant authority shall have regard to the purpose of conserving and enhancing the natural beauty of the AONB. A relevant person is any Minister of the Crown, public body or statutory undertaker. Given that requirement, why would a rational promoter—or a rational Secretary of State, for that matter, if that is not a tautology—not wish to see the AONB protected, first by considering routes other than through the AONB but, failing that, by considering a deep tunnel through the Chilterns?

HS2 itself has recently accepted that there is no rational basis for rejecting a tunnel. In its recent report, applying its criteria and using its consultants and its judgment, it says:

“It is clear that a Chiltern Long Tunnel would provide overall environmental benefits compared to the HS2 Proposed Scheme during operation and construction”.

It also confirms that such a tunnel would not adversely affect the programme.

Faced with over 800 petitions from individual organisations and local councils calling for a long tunnel through the Chilterns, recommendations from the statutory bodies concerned with the Chilterns that a deep, long tunnel is the only possible mitigation, and the requirement under the statutory framework and the national planning framework to conserve and enhance the natural beauty of the AONB, the HS2 Bill Select Committee takes the view that the tunnel is too expensive. We do not know what persuaded the committee to take this view, and it has not published any evidence in the form of a calculation that demonstrates that the benefits from preserving the Chiltern AONB do not outweigh the additional costs of a long tunnel.

The missing ingredient at the moment is a sense of what we will lose if the scheme goes ahead in its current form. People might be much more willing to support HS2 if they knew that the only AONB on the line had been preserved by a Government who knew not only the cost of the project but the value of what was affected.

Immigration

Lord Stevenson of Balmacara Excerpts

Monday 12th May 2014 Lords Chamber

[Lord Taylor of Holbeach]

Yes, my Lords. As my noble friend will know, institutions which were guilty of that practice are no longer able to sponsor students. I accept that universities are acting in good faith in conducting their responsibilities in this regard. All I am saying is that the Government’s position is that we want to back them in making sure that we tell the world what a good offer we have in this country for students.

[Lord Stevenson of Balmacara (Lab)]

Is not the problem that the Department for Business, Innovation and Skills is actively trying to make sure that many students come here but the Home Office is doing its best to make sure that they do not get in? This has been exemplified by the warm words said by the Minister today, which are simply not believed in many of the places that traditionally have sent students here. What is he going to do to go on the front foot and get out there and persuade people that Britain is indeed open for business and that our education system is something that they should be joining?

[Lord Taylor of Holbeach]

I do not think that the noble Lord would have any doubts as to my good faith in this matter, and I am sure that that is true of most noble Lords because it is not the first time that we have discussed this issue. Indeed, it has been a theme over the past 12 months since the committee reported to the House. I am anxious to join noble Lords who have responsibility within universities in making it clear that the Home Office policy is not about making it difficult for these people to be here; it is about facilitating their studies and encouraging them to do so. As the noble Lord will know, during the passage of the Immigration Bill through this House we debated this very issue and I said that I hoped to meet Universities UK to talk about it, and that remains my intention.

Immigration Bill

Lord Stevenson of Balmacara Excerpts

Thursday 3rd April 2014 Lords Chamber

[Baroness Benjamin (LD)]

My Lords, I support the amendment in the name of the noble Lord, Lord Hannay. UK universities have worked tirelessly over the years to attract international students, including Exeter University, of which I am the chancellor so I declare an interest. We cannot sustain the level of financial support that universities require and will continue to require without international student support. We also benefit from those students’ academic and cultural contribution. Our country gains so much from these resources. Exeter benefits greatly from its international students, not just financially but also, because of where geographically we are placed, from the culturally diverse, rich mix that such students bring.

I congratulate my noble friend the Minister on all the concessions that he has made after hearing the concerns that many noble Lords have expressed. I thank him, too, for all the meetings that he has granted us. I also invite him to consider further the amendment in the name of the noble Lord, Lord Hannay, which would make a difference to the perception that those abroad have of us as a welcoming nation to international students.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a very good debate which, with one exception, has focused narrowly on the questions being posed in the amendments that we are considering. Of course, we have still to hear from the Minister on his amendments and I am sure that a lot is riding on them. The noble Lord, Lord Hodgson, was very kind to refer to our shared interest in squash. I am a little sad that we did not encounter one another on the squash court, because, given his positioning of putting his head well above the parapet and his heart very much in his game, I think that he would have been easy prey, certainly to be beaten by fair means. But if I was struggling, I think that I would have been able to lop his head off quite easily. In what was effectively a Second Reading speech, it was not at all clear which parts of the amendments the noble Lord was supporting or not supporting. I think that we missed that, and the noble Lord, Lord Cormack, put it very nicely when he explained what he felt about that.

Other than that, we have focused hard on the issues relating to students. The quotation given to us by the noble Lord, Lord Sutherland, should be very much in our thinking as we look at these issues. There is no doubt that we are talking here about perceptions. We are talking about whether, in aggregate, the work that the Government are doing through the Bill complements, supports or destroys the currently very effective system of higher education that we have in this country in relation to overseas entrants to and users of it—although the context is not that good given the row that there has been in the past couple of weeks about what is happening to the system of higher education as a whole, which I suspect has a long way to go.