Draft Data Protection (Charges and Information) (Amendment) Regulations 2019

Liam Byrne Excerpts

Monday 4th February 2019 General Committees

[Liam Byrne (Birmingham, Hodge Hill) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Bone. I am grateful to the Minister for setting out the case for this important exemption. The debate was rehearsed during the passage of the Data Protection Bill and in previous Delegated Legislation Committees, and the regulations enjoy cross-party support.

I want to put two requests to the Minister. The first is for her to underline in guidance to Members of both Houses precisely what their obligations are when it comes to the payment of data processing fees. She will remember that at the back end of last year, the Independent Parliamentary Standards Authority got into a bit of confusion in overstating some of the new responsibilities. In particular, the authority seems to find it difficult to spell out the difference between caseworking data and data collected during the course of canvassing, for example, or other such political campaigning functions. Both are covered by the terms of the Data Protection Act. We, as data processors, can process both kinds of data, but the proximity of a candidate, or Member of Parliament, and a political party working in this field will often lead to some confusion about who precisely is responsible for what, and who therefore pays what. As it happens, political parties, candidates and Members are covered in terms of the data processing obligations, but none the less there remains some confusion overhanging from last year.

The second point of clarity that I seek from the Minister concerns regulation 2(3)(c), which is drafted incredibly broadly in saying that the exemption will be enjoyed by

“a person seeking to become (or remain) an elected representative”

or, indeed,

“a person acting on the instructions”

of someone who is seeking office. In the Minister’s remarks, she used the phrase “validly nominated”. That is not the definition used in the regulation. There is nothing about valid nomination in the regulation, which is pretty de minimis in that regard; it simply defines the exemption as being for a candidate who is seeking office.

What does that mean? Does that mean someone who is seeking office a long time before an election, or a candidate who is seeking office and has been approved by a relevant political party, because political parties are regulated with all sorts of important regulations? Furthermore, what on earth are the safeguards around a person acting on the instructions of someone who is seeking office? When in the electoral cycle does that particular exemption bite? There was a degree of dissonance between the Minister’s remarks and the regulations as drafted. Perhaps she could clear that up before we approve the motion.

[Margot James]

I am grateful to the right hon. Gentleman for his questions, and his support for the amendment regulations. With regard to the issues that all Members had with the Independent Parliamentary Standards Authority’s guidance last year, in the immediate aftermath of the passage of the legislation, Members were rightly very concerned about the guidance that some of their staff members were receiving from officially sanctioned courses and training. For a period, there seemed to be something of a debacle around that issue, but we were able to clarify it.

I think the problem arose because the courses were designed before the legislation had fully progressed through both Houses, so they did not take account of the various amendments that we debated and passed—notably, the exemption for people in elected office to use the lawful basis of democratic engagement to process personal data. I think we have clarified that.

I was not aware, but the right hon. Gentleman has made me aware, that there was similar confusion about charges. Before we created the exemption, elected officials and all the other categories that we have discussed this afternoon were, strictly speaking, liable in law to pay a charge to the ICO. That is why we have introduced the exemption. We debated the exemption during the passage of the Bill, but we have been able to bring it into law only today.

There should be no further confusion about charges. We, as elected representatives, are data processors. Candidates are also data processors as soon as they start dealing with people’s inquiries in their constituencies or wards.

[Liam Byrne]

The Minister uses the word “candidate”, which elides two important definitions. One is that set out in the regulations:

“a person seeking to become (or remain) an elected representative”.

The second is that of an individual who is in that position and has been nominated by a political party. Most Members present think of a candidate as someone who has been validly nominated, rather than the definition in the regulations.

[Margot James]

I was going to come to that, because the right hon. Gentleman made that point clearly in his earlier remarks. I will look into the discrepancy in the language. He has raised an important point. I agree that valid nomination is the definition that we want, and if that is not in the amendment regulations, I will look into that and write to him. I should also point out that the Information Commissioner herself is developing a code of practice for political parties regarding their use of data, and this matter may well be something that she touches on during that work.

[Liam Byrne]

The Minister has sought a test that is not in the regulations, so she is inviting the Committee to approve them using a definition that is not in the regulations, but in her speech. Will she undertake, before she concludes her remarks, to write to me and provide an assurance that she will re-present the regulations if necessary? I am happy to give them our leave this afternoon, but I am also happy for her to re-present them if she thinks the definitions need tidying up to bring them within the definition that she set out in her remarks.

[Margot James]

I will certainly write to the right hon. Gentleman. Since I last rose to speak, I have been informed that the regulations apply to both prospective and validly nominated candidates. We have kept it deliberately broad to prevent unfairness between incumbents and those starting out on the democratic process. I think I have already covered that point.

[Liam Byrne]

I am grateful to the Minister for being very generous and giving way again, but that is not good enough, because anyone could seek to stand for elected office. If she and the Information Commissioner want to avoid a very large number of people seeking those exemptions and destroying the economic base of the ICO, the Minister must act, because otherwise that is what she will get. I think she will have to re-present the regulations, but let us just get something in place now to ensure that there is no lacuna in the law. However, please introduce stronger proposals.

[Margot James]

I will certainly write to the right hon. Gentleman. If it is clear that we need to tighten the definition up, I am happy to re-present the regulations.

Question put and agreed to.