Data Protection Bill [HL]

Debate between Lord Whitty and Baroness Hamwee

Monday 13th November 2017 Lords Chamber

[Baroness Hamwee]

My Lords, I too want to say a word about Amendment 75. The Human Rights Act trumps everything. To put it another way, the fundamental rights it deals with are incorporated into UK law, and they trump everything.

Like the noble Baroness, I believe that it is quite right that those who are responsible—humans—stop and think whether fundamental human rights are engaged. The right not to be subject to unfair discrimination has been referred to. Both the Bill and the GDPR recognised that as an issue in the provisions on profiling, but we need this overarching provision. Like other noble Lords, I find it so unsettling to be faced with what are clearly algorithmic decisions.

When I was on holiday I went to a restaurant in France called L’Algorithme, which was very worrying but I was allowed to choose my own meal. If this work continues in the industry, perhaps I will not be allowed to do so next year. I wondered about the practicalities of this, and whether through this amendment we are seeking something difficult to implement—but I do not think so. Law enforcement agencies under a later part of the Bill may not make significant decisions adversely affecting a data subject. Judgments of this sort must be practicable. That was a concern in my mind, and I thought that I would articulate my dismissal of that concern.

[Lord Whitty (Lab)]

My Lords, my name is attached to two of these amendments. This is a very difficult subject in that we are all getting used to algorithmic decisions; not many people call them that, but they are what in effect decide major issues in their life and entice them into areas where they did not previously choose to be. Their profile, based on a number of inter-related algorithms, suggests that they may be interested in a particular commercial product or lifestyle move. It is quite difficult for those of my generation to grasp that, and difficult also for the legislative process to grasp it. So some of these amendments go back to first principles. The noble Baroness, Lady Hamwee, said that the issue of human rights trumps everything. Of course, we all agree with that, but human rights do not work unless you have methods of enforcing them.

In other walks of life, there are precedents. You may not be able to identify exactly who took a decision that, for example, women in a workforce should be paid significantly less than men for what were broadly equivalent jobs; it had probably gone on for decades. There was no clear paper trail to establish that discrimination took place but, nevertheless, the outcome was discriminatory. With algorithms, it is clear that some of the outcomes may be discriminatory, but you would not be able to put your finger on why they were discriminatory, let alone who or what decided that that discrimination should take place. Nevertheless, if the outcome is discriminatory, you need a way of redressing it. That is why the amendments to which I have added my name effectively say that the data subject should be made aware of the use to which their data is being made and that they would have the right of appeal to the Information Commissioner and of redress, as you would in a human-based decision-making process that was obscure in its origin but clear in relation to its outcome. That may be a slightly simplistic way in which to approach the issue, but it is a logical one that needs to be reflected in the Bill, and I hope that the Government take the amendments seriously.