Data Protection Bill [HL]

Baroness Hamwee Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 13th November 2017 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, as this amendment involves data provided by local authorities, I should declare my interests as a councillor of the London Borough of Southwark and as a vice-president of the Local Government Association.

Amendment 53 in my name and that of my noble friend Lord Stevenson of Balmacara would delete the first occurrence of the word “substantial” from paragraph 17(2) of Schedule 1 and Amendment 54 would delete its second occurrence from the same provision.

Healthy-functioning political parties are a vital part of our democracy. Campaigners and campaigning have moved on a long way from the days of hand writing envelopes to encompass much more sophisticated methods of contacting voters using all available mechanisms.

Political parties and their members need clarity and certainty as to what they are required to do, what they are able to do and what they are not able to do, so that they act lawfully at all times and in all respects. We cannot leave parties, campaigners and party members with law that is grey and unclear, and with rules that mean that campaigners, in good faith, make wide interpretations that are then found to be incorrect, due largely to the required clarity not having been given to them in the first place by government and Parliament.

I am also very clear that political parties are volunteer armies, with people volunteering to campaign to get members of their party elected to various positions in Parliament and in local authorities and to run various campaigns.

I have a number of questions for the Minister. I do not necessarily expect to get answers today but I hope that when he responds he will agree to meet me along with other interested Peers on the matters I am raising. I know that the noble Lord, Lord Hayward, from the Minister’s Benches would certainly like to meet him, and I am sure that the noble Lord, Lord Tyler, would also wish to be involved in those discussions. I hope that the Minister will agree to that. I also think that it would be useful if any such meeting involved officials from the three parties to discuss how we can get this right; otherwise, there will be all sorts of problems for parties, party members and campaigners, and none of us wants that.

Therefore, my questions to the Minister are as follows—as I said, I shall be happy for him to write to me. Will he provide a list of the characteristics or activities that are required for a political party to conduct operations? Does he believe that the terms in relation to political activity in paragraph 17 of Schedule 1 definitively cover the required activities of UK political parties? Will he clarify what constitutes profiling with regard to the activities of political parties? What activities or operations with reference to paragraph 17(1)(c) of Schedule 1 would be considered necessary for a political party? Does he think that the procedure detailed in paragraph 17(3)(a), whereby a data subject can give written notice to require the data controller—in this case, a political party—to cease the processing of their data, is consistent with Section 13(3) of the RPA 1983, where parties hold and process data on the basis not of consent but of being supplied that data by a local authority via the electoral register? Given the regular transfer of registers to political parties, does the Minister think it is practical or enforceable for a party to cease processing the data, which will likely be resupplied by an authority?

Let me make the point this way: take elector A, who instructs the party to stop processing their data, and the party complies. But the party then gets given data from the local authority in the next round, and elector A’s information is included. As soon as the party processes that data, it will technically have infringed the law. This is very complicated and it would be useful if the Minister’s officials could meet people interested in this area and come back to us. Whatever we end up with following this process, it must be consistent and work, and it should not bring into conflict two different Acts of Parliament. I beg to move.

[Baroness Hamwee (LD)]

My Lords, the noble Lord referred to the rules as a bit grey and asked for clarity for the volunteer army. I should declare an interest as a foot soldier in that volunteer army.

The noble Lord’s request that party officials should be involved in this process is a good one—I would have thought they would have been. The Minister should be aware of my first question as I emailed him about this, over the weekend I am afraid. Has the Electoral Commission been involved in these provisions?

The noble Lord mentioned the electoral register provided by a local authority. My specific question is about the provision, acquisition and use of a marked electoral register. For those who are not foot soldiers, that document is marked up by the local authority, which administers elections, to show which electors have voted. As noble Lords will understand, this is valuable information for campaigning parties and can identify whether an individual is likely to turn out and vote and so worth concentrating a lot of effort on. I can see that this exercise could be regarded as “campaigning” under paragraph 17(4) of Schedule 1. However, it is necessary, although I do not suppose that every local party in every constituency makes use of the access it has. It is obvious to me that this information does not reveal political opinions, which is also mentioned in the provisions. I would be grateful to hear the Minister’s comments. I am happy to wait until a wider meeting takes place, but that needs to be before Report.

I want to raise a question on a paragraph that is in close geographical proximity in the Bill—I cannot see another place to raise the issue and it occurred to me only yesterday. Why are Members of the House of Lords not within the definition of “elected representatives”? We do not have the casework that MPs do, but we are often approached about individual cases and some Peers pursue those with considerable vigour. This omission—I can see a typo in the email that I sent to the Minister about this; I have typed “mission” but I meant “omission”—is obviously deliberate on the part of the Government.

[Lord Ashton of Hyde]

My Lords, I begin by repeating, almost word-for-word, the noble Lord, Lord Kennedy: engaging voters is important in a healthy democracy. In order to do that, political parties, referendum campaigners and candidates will campaign using a variety of communication methods. However, they must comply with the law when doing so, and this includes the proper handling of the personal data they collect and hold.

Noble Lords will be aware that the Information Commissioner recently announced that she was conducting an assessment of the data protection risks arising from the use of data analytics, including for political purposes. She recognises that this is a complex and rapidly evolving area where organisations use a person’s internet or public profile to target communications or messaging. The level of awareness among the public about how data and analytics work and how their personal data is collected, shared and used through such tools is low. What is clear is that these tools have a significant potential impact on an individual’s privacy, and the Government welcome the commissioner’s focus on this issue. It is against this backdrop that we considered the amendments of the noble Lord.

The amendments seek to amend a processing condition relating to political parties in paragraph 17. The current clause permits political parties to process data revealing political opinions, provided that it does not cause substantial damage or substantial distress. This replicates the existing wording in the Data Protection Act 1998. I have said that political campaigning is a vital democratic activity but it can also generate heated debated. Removal of the word “substantial” could mean that data processing for political purposes which caused even mild offence or irritation becomes unlawful. I am sure noble Lords would agree that it is vital that the Bill, while recognising the importance of adequate data protection standards, does not unduly chill such an important aspect of the UK’s democracy. For that reason I ask the noble Lord to withdraw the amendments.

I thank the noble Lord for allowing me to reply later to his list of questions. I found it difficult to copy them down, let alone answer them all, but I take the point. In many instances we are all in the same boat on this, as far as political parties are concerned. I shall of course be happy to meet with him, and I take the point about who should attend. I am not sure it will be next week, when we have two days in Committee, but we will arrange it as soon as possible. I will have to get a big room because my office is too small for all the people who will be coming. I take the points the noble Lord made in his questions and will address them in the meeting.

The noble Baroness, Lady Hamwee, asked whether the Electoral Commission had been consulted. It did not respond to the Government’s call for views which was published earlier this year, and we have not solicited any views explicitly from it beyond that.

The noble Baroness also asked about the provision, acquisition and use of a marked electoral register within paragraph 17 of Schedule 1. As she explained, the marked register shows who has voted at an election but does not show how they voted. As such, it does not record political views and does not contain sensitive data—called special categories of data in the GDPR —and, as the protections for sensitive data in article 9 of the GDPR are not relevant, Schedule 1 does not apply.

Lastly, the noble Baroness asked why Members of the House of Lords are not within the definition of elected representatives. Speaking as an elected Member of the House of Lords—albeit with a fairly small electorate—I am obviously interested in this. I have discovered that none of us, I am afraid, are within the definition of elected representatives in the Bill. We recognise that noble Lords may raise issues on an individual’s behalf. Most issues will not concern sensitive data but, where they do, in most cases we would expect noble Lords to rely on the explicit consent of the person concerned. This arrangement has operated for the past 20 years under the current law, and that is the position at the moment.

I hope I have tackled the specific items relating to the amendments. I accept the points made by the noble Lord, Lord Kennedy, about the electoral issues that need to be raised in general.