Data Protection Bill [HL]
Lord Ashton of Hyde Excerpts(8 years, 5 months ago)
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Lord Griffiths of Burry Port (Lab)
My Lords, if the House will indulge me, having heard someone who described herself earlier as a foot soldier in her army of volunteers, I can now identify her as a beaver in the battalion of dam building. It seems that by broadening all that falls under the term, “legal claims”, and, of course, on the advice of the Bar Council, some common sense is being alluded to here and therefore we have no hesitation in joining our forces to those we have heard so ably expressed.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, I am grateful to the noble Baroness for making her debut in the Committee stage and to the noble Lord for his comments. By way of background, because I find it quite complicated, it is worth reminding ourselves that article 9 of the GDPR provides processing conditions for special categories of data. In particular, the processing necessary for,
“the establishment, exercise or defence of legal claims”,
is permitted by article 9(2)(f). It is directly applicable and does not allow any discretion to derogate from it in any way. Article 10 of the GDPR, which relates to criminal convictions and offences data, takes a different approach. It requires member states to set out in their law conditions relating to the processing of said criminal convictions and offences data in order to enable many organisations to process it. Paragraph 26 of Schedule 1 therefore seeks to maintain the status quo by replicating in relation to criminal convictions data the processing condition for the special categories of personal data contained in article 9(2)(f).
Government Amendment 65, referred to by the noble Baroness, responds to a request we have had from stakeholders to anglicise the language currently used in that paragraph. The Government strongly agree about the importance of ensuring that data protection law does not accidentally undermine the proper conduct of legal proceedings, which is why we have made this provision. We submit that Amendments 63A and 64A are unnecessary. They are predicated on the false premise that government Amendment 65 in some way changes the scope of paragraph 26. It does not, it simply anglicises it. However, even if different wording were to be used in Amendment 63A to that used in Amendment 65, we are certain that the Commission would take a dim view of member states attempting to use article 9(2)(g), the substantial public interest processing condition, to expand article 9(2)(f) in the way that Amendment 63A proposes. In the light of that explanation, I would be grateful if in this case the noble Baroness would withdraw her amendment.
Baroness Hamwee
My Lords, I am still processing the compliment that has been paid to me. If I were standing for election, the noble Lord might find himself being quoted.
The Minister says that the amendment is unnecessary but then goes on to say that it is wrong. The main point is not the five or so lines of wording as what is required or precluded by the articles of the GDPR that he has quoted. I will not attempt to respond today because I could not do his arguments justice, but I suspect that others will try to do so. As I say, his officials have met with representatives of the Bar Council. I am sure that he will be happy for that dialogue to continue, and if necessary for it to extend to some of us who might come along and listen to what the officials are saying and give it a rubber stamp in an effort to progress the argument. There is a real concern about where this exemption should lie and how it should apply, so I will beg leave to withdraw the amendment, not because I am convinced but because there is still more discussion to be had.
Lord Ashton of Hyde
(a) is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings),(b) is necessary for the purpose of obtaining legal advice, or(c) is otherwise necessary for the purposes of establishing, exercising or defending legal rights.”
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Clement-Jones (LD)
My Lords, the noble Lord, Lord Stevenson, has raised some important points, which refer back to our labour over the Digital Economy Bill. One particular point occurs to me in relation to the questions that he asked: have we made any progress towards anonymisation in age verification, as we debated at some length during the passage of that Bill? As I recall, the Government’s point was that they did not think it necessary to include anything in the Bill because anonymisation would happen. The Minister should engage with that important issue. The other point that could be made is about whether the Government believe that the amendment of the noble Lord, Lord Lucas, would help us towards that goal.
Lord Ashton of Hyde
My Lords, as we have heard, Part 3 of the Digital Economy Act 2017 requires online providers of pornographic material on a commercial basis to institute appropriate age verification controls. My noble friend’s Amendment 71ZA seeks to allow the age verification regulator to publish regulations relating to the protection of personal data processed for that purpose. The amendment aims to provide protection, choice and trust in respect of personal data processed for the purpose of compliance with Part 3 of the 2017 Act.
I think that I understand my noble friend’s aim. It is a concern I remember well from this House’s extensive deliberations on what became the Digital Economy Act, as referred to earlier. We now have before us a Bill for a new legal framework which is designed to ensure that protection, choice and trust are embedded in all data-processing practices, with stronger sanctions for malpractice. This partly answers my noble friend Lord Elton, who asked what we would produce to deal with this problem.
Personal data, particularly those concerning a data subject’s sex life or sexual orientation, as may be the case here, will be subject to rigorous new protections. For the reasons I have just mentioned, the Government do not consider it necessary to provide for separate standards relating exclusively and narrowly to age verification in the context of accessing online pornography. That is not to say that there will be a lack of guidance to firms subject to Part 3 of the 2017 Act on how best to implement their obligations. In particular, the age verification regulator is required to publish guidance about the types of arrangements for making pornographic material available that the regulator will treat as compliant.
As noble Lords will be aware, the British Board of Film Classification is the intended age verification regulator. I reassure noble Lords that in its preparations for taking on the role of age verification regulator, the BBFC has indicated that it will ensure that the guidance it issues promotes the highest data protection standards. As part of this, it has held regular discussions with the Information Commissioner’s Office and it will flag up any potential data protection concerns to that office. It will then be for the Information Commissioner to determine whether action or further investigation is needed, as is her role.
The noble Lord, Lord Clement-Jones, talked about anonymisation and the noble Lord, Lord Stevenson, asked for an update of where we actually were. I remember the discussions on anonymisation, which is an important issue. I do not have the details of exactly where we have got to on that subject—so, if it is okay, I will write to the noble Lord on that.
I can update the noble Lord, Lord Stevenson, to a certain extent. As I just said, the BBFC is in discussion with the Information Commissioner’s Office to ensure that best practice is observed. Age verification controls are already in place in other areas of internet content access; for example, licensed gambling sites are required to have them in place. They are also in place for UK-based video-on-demand services. The BBFC will be able to learn from how these operate, to ensure that effective systems are created—but the age verification regulator will not be endorsing a list of age verification technology providers. Rather, the regulator will be responsible for setting guidance and standards on robust age verification checks.
We continue to work with the BBFC in its engagement with the industry to establish the best technological solutions, which must be compliant with data protection law. We are aware that such solutions exist, focusing rightly on verification rather than identification—which I think was the point made by the noble Lord, Lord Clement-Jones. If I can provide any more detail in the follow-up letter that I send after each day of Committee, I will do so—but that is the general background.
Online age verification is a rapidly growing area and there will be much innovation and development in this field. Industry is rightly putting data privacy and security at the forefront of its design, and this will be underscored by the new requirements under the GDPR. In view of that explanation, I hope that my noble friend will be able to withdraw his amendment.
Lord Lucas
My Lords, I am very grateful for my noble friend’s reply. With his leave, I will digest it overnight and tomorrow. I look forward to the letter that he promised—but if, at the end of that, I still think that there is something worth discussing, I hope that his ever-open door will be open even to that.
Lord Ashton of Hyde
I believe that during our previous day in Committee, I offered to meet my noble friend.
Lord Stevenson of Balmacara
My Lords, I was not referring to this amendment specifically in commenting on Amendment 71ZA, but we had difficulty getting this amendment in scope, so as to be in line with our aspirations and what we wanted to discuss today.
Amendment 71A would introduce an individual right for data subjects to be informed by data controllers when there is an actual or intended commercial exploitation of their personal data. Machine learning will allow data companies to get a lot of value out of people’s data—indeed, it already does. It will allow greater and more valuable targeting of advertisements and services on a vast scale, given the way that modern data platforms work. This skews further the balance of power between those companies and the individuals whose data is being exploited.
One could probably describe the current relationship between people and the data companies to whom they give their data as rather unsophisticated. People hand it over for a very low value, as in a bartering service or crude exchange—and, as in a barter economy, it cannot be efficient. This amendment will test whether we can get more power into the hands of the people who make the exchange to make the market function better. The companies’ position is completely the reverse: it is almost that of a monopsony, although as a technical term monopsonies are those situations in which dominant companies set a price for the market, whereas in this case there is no price. It is interesting to follow that line of thought a little further because, where there are monopsonies, the normal remedy put forward by those involved is to publish a standard price list. That improves choice to the point that people are not exploited on the price they pay; it is just a question of choice on quality or service, rather than the price. That at least protects individuals to some extent against the dominant company exploiting control.
The essence of this amendment is an attempt to try to give power back to the people whose data is being used. We are talking about very significant sums of money. I gather from a recent article in the Guardian that the top price you can get for your data—although I am not sure whether “price” is the right word here; “value” might be better—is about $14 each quarter for a company such as Facebook. If you compare that across the world, in the Asia-Pacific region it is worth only about $2. There is a variation, and the reason is the ability to exploit some form of advertising revenue from individual data, so the US, where the highest prices are going to be available, was worth about $2.8 billion in advertising revenue to Facebook last quarter while the second-biggest Facebook market, Europe, was worth only about £$1.4 billion, which is about half. You can see how the prices would follow through in terms of the data. We are talking about quite a lot of resource here in terms of how this money flows and how it works.
The process of trying to seek the money has already started. Some companies are now trying to reverse the direction of travel. They go to individuals through the web and offer them the chance to connect all their data together across the social media companies in which they already have it. The companies then value it and try to sell it on behalf of the individuals to the companies concerned. That is obviously the beginning of a market approach to this, which is where this amendment is centred.
I mentioned that I had difficulty getting what I wanted in the scope of the Bill. I think I have mentioned this before, but it seems to us that we do not yet have the right sense of what people’s data represent in relation to the companies that seek to use it. One suggestion we have had is that we might look to the creative industries—not inappropriately since this is a DCMS Bill—and think of it as some form of copyright. If it were a copyright—and it may or may not be possible to establish one’s personal data in a copyright mode—we would immediately be in a world where the data transferring from the individual to the company would be not sold but licensed, and therefore there would be a continuing sense of ownership in the process in which the data is transferred. It would also mean that there would have to be continuing reporting back to the licence holder for the use of the data, and we could go further and expect to follow the creative industries down the track which they currently go. The personal copyright would then have value to the company and there is a waterfall, as they call it, of revenue exploitation so that those who hold the copyright might expect to earn a small but not insignificant amount from it. We begin to see a commercial system, more obviously found in other areas of the marketplace, but it relates to the way in which individuals would have a value in relation to their data, and there might even be a way in which that money could be returned. If you were in that happy situation, what would you do with the money? One would hope that it would be useful to some people, but it might also be possible to accumulate it, perhaps through a collecting society, and see it invested in educational work or improving people’s security in relation to their data, for instance. There are many choices around that.
Having said all that about copyright, I am not particularly wedded to it as a concept because there are downsides to copyright, but it is an issue worth exploring. The essence of the amendment is to try to restore equality of arms between the individual and the companies to which the data is transferred. I beg to move.
Lord Ashton of Hyde
My Lords, I am grateful to the noble Lord, Lord Stevenson, for raising this important subject. I recall the questions that he posed at Second Reading about whether data subjects had sufficient support in relation to the power of companies that wanted to access, use and monetise their data, and I recognise the intention behind his amendment, which he carefully explained. I also agree wholeheartedly with him that these are questions worthy of debate, not only during the passage of this Bill, but over the coming months and years as the digital economy continues to develop. Later in Committee, we may discuss suitable forums where this could take place. These are big questions of data rights and how they are monetised, if they are, versus the growth of the digital economy for public benefit.
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.
Lord Ashton of Hyde
My Lords, I thank the noble Lord, Lord Clement-Jones, who introduced this interesting debate; of course, I recognise his authority and his newfound expertise in artificial intelligence from being chairman of the Select Committee on Artificial Intelligence. I am sure that he is an expert anyway, but it will only increase his expertise. I thank other noble Lords for their contributions, which raise important issues about the increasing use of automated decision-making, particularly in the online world. It is a broad category, including everything from personalised music playlists to quotes for home insurance and far beyond that.
The noble Lord, Lord Stevenson, before speaking to his amendments, warned about some of the things that we need to think about. He contrasted the position on human embryology and fertility research and the HFEA, which is not exactly parallel because, of course, the genie is out of the bottle in that respect, and things were prevented from happening at least until the matter was debated. But I take what the noble Lord said and agree with the issues that he raised. I think that we will discuss in a later group some of the ideas about how we debate those broader issues.
The noble Baroness, Lady Jones, talked about how she hoped that the repressive bits would be removed from the Bill. I did not completely understand her point, as this Bill is actually about giving data subjects increased rights, both in the GDPR and the law enforcement directive. That will take direct effect, but we are also applying those GDPR rights to other areas not subject to EU jurisdiction. I shall come on to her amendment on the Human Rights Act in a minute—but we agree with her that human beings should be involved in significant decisions. That is exactly what the Bill tries to do. We realise that data subjects should have rights when they are confronted by significant decisions made about them by machines.
The Bill recognises the need to ensure that such processing is correctly regulated. That is why it includes safeguards, such as the right to be informed of automated processing as soon as reasonably practicable and the right to challenge an automated decision made by the controller. The noble Lord, Lord Clement-Jones, alluded to some of these things. We believe that Clauses 13, 47, 48, 94 and 95 provide adequate and proportionate safeguards to protect data subjects of all ages, adults as well as children. I can give some more examples, because it is important to recognise data rights. For example, Clause 47 is clear that individuals should not be subject to a decision based solely on automated processing if that decision significantly and adversely impacts on them, either legally or otherwise, unless required by law. If that decision is required by law, Clause 48 specifies the safeguards that controllers should apply to ensure the impact on the individual is minimised. Critically, that includes informing the data subject that a decision has been taken and providing them 21 days within which to ask the controller to reconsider the decision or retake the decision with human intervention.
I turn to Amendments 74, 134 and 136, proposed by the noble Lord, Lord Clement-Jones, which seek to insert into Parts 2 and 3 of the Bill a definition of the term,
“based solely on automated processing”,
to provide that human intervention must be meaningful. I do not disagree with the meaning of the phrase put forward by the noble Lord. Indeed, I think that that is precisely the meaning that that phrase already has. The test here is what type of processing the decision having legal or significant effects is based on. Mere human presence or token human involvement will not be enough. The purported human involvement has to be meaningful; it has to address the basis for the decision. If a decision was based solely on automated processing, it could not have meaningful input by a natural person. On that basis, I am confident that there is no need to amend the Bill to clarify this definition further.
In relation to Amendments 74A and 133A, the intention here seems to be to prevent any automated decision-making that impacts on a child. By and large, the provisions of the GDPR and of the Bill, Clause 8 aside, apply equally to all data subjects, regardless of age. We are not persuaded of the case for different treatment here. The important point is that the stringent safeguards in the Bill apply equally to all ages. It seems odd to suggest that the NHS could, at some future point, use automated decision-making, with appropriate safeguards, to decide on the eligibility for a particular vaccine—
Lord Clement-Jones
My Lords, I hesitate to interrupt the Minister, but it is written down in the recital that such a measure,
“should not concern a child”.
The whole of that recital is to do with automated processing, as it is called in the recital. The interpretation of that recital is going to be rather important.
Lord Ashton of Hyde
My Lords, I was coming to recital 71. In the example I gave, it seems odd to suggest that the NHS could at some future point use automated decision-making with appropriate safeguards to decide on the eligibility for a particular vaccine of an 82 year-old, but not a two year-old.
The noble Lord referred to the rather odd wording of recital 71. On this point, we agree with the Article 29 working party—the group of European regulators—that it should be read as discouraging as a matter of best practice automated decision-making with significant effects on children. However, as I have already said, there can and will be cases where it is appropriate, and the Bill rightly makes provision for those.
Lord Clement-Jones
Would the Minister like to give chapter and verse on how that distinction is made?
Lord Ashton of Hyde
I think that “chapter and verse” implies “written”—and I will certainly do that because it is important to write to all noble Lords who have participated in this debate. As we have found in many of these areas, we need to get these things right. If I am to provide clarification, I will want to check—so I will take that back.
Lord Clement-Jones
I apologise for interrupting again. This is a bit like a dialogue, in a funny sort of way. If the Minister’s notes do not refer to the Article 29 working party, and whether or not we will continue to take guidance from it, could he include that in his letter as well?
Lord Ashton of Hyde
I will. I had some inspiration from elsewhere on that very subject—but it was then withdrawn, so I will take up the offer to write on that. However, I take the noble Lord’s point.
We do not think that Amendment 75 would work. It seeks to prevent any decision being taken on the basis of automated decision-making where the decision would “engage” the rights of the data subject under the Human Rights Act. Arguably, such a provision would wholly negate the provisions in respect of automated decision-making as it would be possible to argue that any decision based on automated decision-making at the very least engaged the data subject’s right to have their private life respected under Article 8 of the European Convention on Human Rights, even if it was entirely lawful. All decisions relating to the processing of personal data engage an individual’s human rights, so it would not be appropriate to exclude automated decisions on this basis. The purpose of the Bill is to ensure that we reflect processing in the digital age—and that includes automated processing. This will often be a legitimate form of processing, but it is right that the Bill should recognise the additional sensitivities that surround it. There must be sufficient checks and balances and the Bill achieves this in Clauses 13 and 48 by ensuring appropriate notification requirements and the right to have a decision reassessed by non-automated means.
Baroness Hamwee
As the Minister may be about to move on from that, I think he is saying that the phrase, “engages an individual’s rights” is problematic. Are the Government satisfied that the provisions the Minister has just mentioned adequately protect those rights—I am searching for the right verb—and that automated decision-making is not in danger of infringing the rights that are, as he says, always engaged?
Lord Ashton of Hyde
Automated processing could do that. However, with the appropriate safeguards we have put in the Bill, we do not think that it will.
Amendment 77 seeks to define a significant decision as including a decision that has legal or similar effects for the data subject or a group sharing one of the nine protected characteristics under the Equality Act 2010 to which the data subject belongs.
We agree that all forms of discrimination, including discriminatory profiling via the use of algorithms and automated processing, are fundamentally wrong. However, we note that the Equality Act already provides a safeguard for individuals against being profiled on the basis of a particular protected characteristic they possess. Furthermore, recital 71 of the GDPR states that data controllers must ensure that they use appropriate mathematical or statistical procedures to ensure that factors which result in inaccuracies are minimised, and to prevent discriminatory effects on individuals,
“on the basis of racial or ethnic origin, political opinion, religion or beliefs, trade union membership, genetic or health status or sexual orientation”.
We therefore do not feel that further provision is needed at this stage.
Amendment 77A, in the name of the noble Lord, Lord Stevenson, seeks to require a data controller who makes a significant decision based on automated processing to provide meaningful information about the logical and legal consequences of the processing. Amendment 119, as I understand it, talks to a similar goal, with the added complication of driving a wedge between the requirements of the GDPR and applied GDPR. Articles 13 and 14 of the GDPR, replicated in the applied GDPR, already require data controllers to provide data subjects with this same information at the point the data is collected, and whenever it is processed for a new purpose. We are not convinced that there is much to be gained from requiring data controllers to repeat such an exercise, other than regulatory burden. In fact, the GDPR requires the information earlier, which allows the data subject to take action earlier.
Similarly, Amendment 77B seeks to ensure that data subjects who are the subject of automated decision-making retain the right to make a complaint to the commissioner and to access judicial remedies. Again, this provision is not required in the Bill, as data subjects retain the right to make a complaint to the commissioner or access judicial remedies for any infringement of data protection law.
Amendment 78 would confer powers on the Secretary of State to review the operational effectiveness of article 22 of the GDPR within three years, and lay a report on the review before Parliament. This amendment is not required because all new primary legislation is subject to post-legislative scrutiny within three to five years of receiving Royal Assent. Any review of the Act will necessarily also cover the GDPR. Not only that, but the Information Commissioner will keep the operation of the Act and the GDPR under review and will no doubt flag up any issues that may arise on this or other areas.
Amendment 153A would place a requirement on the Information Commissioner to investigate, keep under review and publish guidance on several matters relating to the use of automated data in the health and social care sector in respect of the terms on which enterprises gain consent to the disclosure of the personal data of vulnerable adults. I recognise and share noble Lords’ concern. These are areas where there is a particular value in monitoring the application of a new regime and where further clarity may be beneficial. I reassure noble Lords that the Information Commissioner has already contributed significantly to GDPR guidance being developed by the health sector and continues to work closely with the Government to identify appropriate areas requiring further guidance. Adding additional prescriptive requirements in the Bill is unlikely to help them shape that work in a way that maximises its impact.
As we have heard, Amendment 183 would insert a new clause before Clause 171 stating that public bodies who profile a data subject should inform the data subject of their decision. This is unnecessary as Clauses 13 and 48 state that when a data controller has taken a decision based solely on automated processing, they must inform the data subject in writing that they have done so. This includes profiling. Furthermore, Clauses 13 and 48 confer powers on the Secretary of State to make further provisions to provide suitable measures to safeguard a data subject’s rights and freedoms.
I thank noble Lords for raising these important issues, which deserve to be debated. I hope that, as a result of the explanation in response to these amendments, I have been able to persuade them that there are sufficient safeguards in relation to automated decision-making in the GDPR and Parts 2 to 4 of the Bill, and that their amendments are therefore unnecessary. On that basis, I invite noble Lords not to press their amendments.
Lord Lucas
My Lords, I rather hope that the Minister has not been able to persuade noble Lords opposite. Certainly, I have not felt myself persuaded. First, on the point about “solely”, in recruiting these days, when big companies need to reduce a couple of thousand applications to 100, the general practice is that you put everything into an automated process—you do not really know how it works—get a set of scores at the end and decide where the boundary lies according to how much time you have to interview people. Therefore, there is human intervention—of course there is. You are looking at the output and making the decision about who gets interviewed and who does not. That is a human decision, but it is based on the data coming out of the algorithm without understanding the algorithm. It is easy for an algorithm to be racist. I just googled “pictures of Europeans”. You get a page of black faces. Somewhere in the Google algorithm, a bit of compensation is going on. With a big algorithm like that, they have not checked what the result of that search would be, but it comes out that way. It has been equally possible to carry out searches, as at various times in the past, which were similarly off-beam with other groups in society.
When you compile an algorithm to work with applications, you start off, perhaps, by looking at, “Who succeeds in my company now? What are their characteristics?”. Then you go through and you say, “You are not allowed to look at whether the person is a man or a woman, or black or white”, but perhaps you are measuring other things that vary with those characteristics and which you have not noticed, or some combinations. An AI algorithm can be entirely unmappable. It is just a learning algorithm; there is no mental process that a human can track. It just learns from what is there. It says, “Give me a lot of data about your employees and how successful they are and I will find you people like that”.
At the end of the day, you need to be able to test these algorithms. The Minister may remember that I posed that challenge in a previous amendment to a previous Bill. I was told then that a report was coming out from the Royal Society that would look at how we should set about testing algorithms. I have not seen that report, but has the Minister seen it? Does he know when it is coming out or what lines of thinking the Royal Society is developing? We absolutely need something practical so that when I apply for a job and I think I have been hard done by, I have some way to do something about it. Somebody has to be able to test the algorithm. As a private individual, how do you get that done? How do you test a recruitment algorithm? Are you allowed to invent 100 fictitious characters to put through the system, or should the state take an interest in this and audit it?
We have made so much effort in my lifetime and we have got so much better at being equal—of course, we have a fair way to go—doing our best continually to make things better with regard to discrimination. It is therefore important that we do not allow ourselves to go backwards because we do not understand what is going on inside a computer. So absolutely, there has to be significant human involvement for it to be regarded as a human decision. Generally, where there is not, there has to be a way to get a human challenge—a proper human review—not just the response, “We are sure that the system worked right”. There has to be a way round which is not discriminatory, in which something is looked at to see whether it is working and whether it has gone right. We should not allow automation into bits of the system that affect the way we interact with each other in society. Therefore, it is important that we pursue this and I very much hope that noble Lords opposite will give us another chance to look at this area when we come to Report.
Lord Ashton of Hyde
I highlight that we do not disagree with that. I will study carefully what my noble friend Lord Lucas said. We agree that it is important that privacy rights continue to be protected, and we do not expect data subjects to have their lives run by computer alone. That is exactly why the Bill creates safeguards: to make sure that individuals can request not to be the subject of decisions made automatically if it might have a significant legal effect on them. They are also allowed to demand that a human being participate meaningfully in those decisions that affect them. I will look at what my noble friend said and include that in my write-round. However, as I said, we do not disagree with that. The illusion that we have got to a stage where our lives will be run unaccountably by computers is exactly what the Bill is trying to prevent.
Lord Clement-Jones
My Lords, I would not want to give that impression. None of us are gloom merchants in this respect. We want to be able to harness the new technology in a way that is appropriate and beneficial for us, and we do that by setting the right framework in data protection, ethical behaviour and so on.
I am grateful to the Minister for engaging in the way he has on the amendments. It is extremely important to probe each of those areas of Clauses 13, 47 and 48. For instance, there are lacunae. The Minister talked about the right to be informed and the right to challenge, and so on, and said that these provided adequate and proportional safeguards, but the right to explanation is not absolutely enshrined, even though it is mentioned in the GDPR. So in some areas we will probe on that.
Lord Clement-Jones
Yes, my Lords, but it is in the recital, so I think we come back again to whether the recitals form part of the Bill. That is what I believe to be the case. I may have to write to the Minister. Who knows? Anything is possible.
One of the key points—raised by the noble Lord, Lord Lucas—is the question of human intervention being meaningful. To me, “solely”, in the ordinary meaning of the word, does not mean that human intervention is there at all, and that is a real worry. The writ of the article 29 working group may run until Brexit but, frankly, after Brexit we will not be part of the article 29 working group, so what interpretation of the GDPR will we have when it is incorporated into UK domestic law? If those rights are not to be granted, the interpretation of “solely” with the absolute requirement of human involvement needs to be on the face of the Bill.
As far as recital 71 is concerned, I think that the Minister will write with his interpretation and about the impact of the article 29 working group and whether we incorporate its views. If the Government are not prepared to accept that the rulings of the European Court of Justice will be effective in UK law after Brexit, I can only assume that the article 29 working group will have no more impact. Therefore, there is a real issue there.
I take the Minister’s point about safeguards under the Equality Act. That is important and there are other aspects that we will no doubt wish to look at very carefully. I was not overly convinced by his answer to Amendment 75, spoken to by the noble Baroness, Lady Jones, and my noble friend Lady Hamwee, because he said, “Well, it’s all there anyway”. I do not think we would have had to incorporate those words unless we felt there was a gap in the way the clause operated.
I will not take the arguments any further but I am not quite as optimistic as the Minister about the impact of that part of the Bill, and we may well come back to various forms of this subject on Report. However, it would be helpful if the Minister indicated the guidance the ICO is adopting in respect of the issue raised in Amendment 153A. When he writes, perhaps he could direct us to those aspects of the guidance that will be applicable in order to help us decide whether to come back to Amendment 153A. In the meantime, I beg leave to withdraw.
Lord Ashton of Hyde
Lord Lucas
My Lords, clearly the Royal Society has been talking to other people. I hope that someone from there is listening and will be encouraged to talk to me too. I am delighted with this amendment and think it is an excellent idea, paired with Amendment 77A, which gives individuals some purchase and the ability to know what is going on. Here we have an organisation with the ability to do something about it, not by pulling any levers but by raising enough of a storm and finding out what is going on to effect change. Amendments 77A and 78A are a very good answer to the worries we have raised in this area.
It is important that we have the ability to feel comfortable and to trust—to know that what is going on is acceptable to us. We do not want to create divisions, tensions and unhappiness in society because things are going on that we do not know about or understand. As the noble Lord said, the organisations running these algorithms do not share our values—it is hard to see that they have any values at all other than the pleasures of the few who run them. We should not submit to that. We must, in all sorts of ways, stand up to that. There are many ways in which these organisations have an impact on our lives, and we must insist that they do that on our terms. We are waking up quite slowly. To have a body such as this, based on principles and ethics and with a real ability to find out what is going on, would be a great advance. It would give me a lot of comfort about what is happening in this Bill, which otherwise is just handing power to people who have a great deal of power already.
Lord Ashton of Hyde
My Lords, the noble Lord, Lord Stevenson, has raised the important issue of data ethics. I am grateful to everyone who has spoken on this issue tonight and has agreed that it is very important. I assure noble Lords that we agree with that. We had a debate the other day on this issue and I am sure we will have many more in the future. The noble Lord, Lord Puttnam, has been to see me to talk about this, and I tried to convince him then that we were taking it seriously. By the sound of it, I am not sure that I completely succeeded, but we are. We understand the points he makes, although I am possibly not as gloomy about things as he is.
We are fortunate in the UK to have the widely respected Information Commissioner to provide expert advice on data protection issues—I accept that that advice is just on data protection issues—but we recognise the need for further credible and expert advice on the broader issue of the ethical use of data. That is exactly why we committed to setting up an expert advisory data ethics body in the 2017 manifesto, which, I am glad to hear, the noble Lord, Lord Clement-Jones, read carefully.
Lord Clement-Jones
We like to hold the Government to their manifesto commitments occasionally.
Lord Ashton of Hyde
Tonight the noble Lord can because the Secretary of State is leading on this important matter. She is as committed as I am to ensuring that such a body is set up shortly. She has been consulting widely with civil society groups, industry and academia, some of which has been mentioned tonight, to refine the scope and functions of the body. It will work closely with the Information Commissioner and other regulators. As the noble Lords, Lord Clement-Jones and Lord Patel, mentioned, it will identify gaps in the regulatory landscape and provide Ministers with advice on addressing those gaps.
It is important that the new advisory body has a clearly defined role and a strong relationship to other bodies in this space, including the Information Commissioner. The Government’s proposals are for an advisory body which may have a broader remit than that suggested in the amendment. It will provide recommendations on the ethics of data use in gaps in the regulatory landscape, as I have just said. For example, one fruitful area could be the ethics of exploiting aggregated anonymised datasets for social and commercial benefit, taking into account the importance of transparency and accountability. These aggregated datasets do not fall under the legal definition of personal data and would therefore be outside the scope of both the body proposed by the noble Lord and, I suspect, this Bill.
Technically, Amendment 78 needs to be more carefully drafted to avoid the risk of non-compliance with the GDPR and avoid conflict with the Information Commissioner. Article 51 of the GDPR requires each member state to appoint one or more independent public authorities to monitor and enforce the GDPR on its territory as a supervisory authority. Clause 113 makes the Information Commissioner the UK’s sole supervisory authority for data protection. The functions of any advisory data ethics body must not cut across the Information Commissioner’s performance of its functions under the GDPR.
The amendment proposes that the advisory board should,
“monitor further technical advances in the use and management of personal data”.
But one of the Information Commissioner’s key functions is to
“keep abreast of evolving technology”.
That is a potential conflict we must avoid. The noble Lord, Lord Patel, alluded to some of the conflicts.
Nevertheless, I agree with the importance that noble Lords place on the consideration of the ethics of data use, and I repeat that the Government are determined to make progress in this area. However, as I explained, I cannot agree to Amendment 78 tonight. Therefore, in the light of my explanation, I hope the noble Lord will feel able to withdraw it.
Baroness Hamwee
Before the noble Lord, Lord Stevenson, responds—he will probably make this point better than I can—have we just heard from the Minister an outline of an amendment the Government will bring forward in order to enshrine the body they are advocating? He will understand that, whichever side of the House you are on, you are always aware that a future Government may not have the same ways of going about things as the Government he is supporting at the moment, and whose proposals are entirely laudable. Things may change.
Lord Ashton of Hyde
I cannot agree with the noble Baroness’s point. However, I accept that that is a possibility and that things will not last for ever. However, in this case we expect to have the proposals shortly and this Government will definitely be around at that time.
Lord Ashton of Hyde
The noble Baroness asked whether it would be enshrined in this Bill. As I tried to explain, it will have a far broader remit than this Bill.
Lord Stevenson of Balmacara
That is a no, then. Oh well, these things happen. You are up one minute and then down. We cannot live like this, can we? However, it is only the Committee stage and we have plenty of time. We can presumably inveigle the Minister into a meeting about this. Not with everyone concerned because that would be too much, but I would be happy to meet him about this on neutral turf if possible. I am fairly confident that we would not want to see the Government voting against a manifesto commitment, which I think I heard him say. We can be reasonably certain that progress can be made on this issue and I wish to signal here our considerable support for that. I look forward to the discussions and beg leave to withdraw the amendment.
Data Protection Bill [HL]
Lord Ashton of Hyde ExcerptsMonday 13th November 2017
(8 years, 5 months ago)
Lords ChamberRead Full debate Data Protection Act 2018 View all Data Protection Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 66-IV Fourth marshalled list for Committee (PDF, 151KB) - (13 Nov 2017)
Lord Lucas
My Lords, I support Amendment 79. I offer as an example the national pupil database, which the Department for Education makes available. It is very widely used, principally to help improve education. In my case, I use it to provide information to parents via the Good Schools Guide; in many other cases it is used as part of understanding what is going on in schools, suggesting where the roots of problems might lie, and how to make education in this country better. That does not fall under “scientific or historical” and is a good example of why that phrase needs widening.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, as a non-lawyer, I am delighted to find myself in the same company as the noble and learned Lord, Lord Hope of Craighead, as this has also introduced me to an area of trust law which I am not familiar with. I thank noble Lords for their amendments, which concern the exemptions from data rights in the GDPR that the Bill creates. Two weeks ago we debated amendments that sought to create an absolute right to data protection. Today we will further debate why, in some circumstances, it is essential to place limitations on those rights.
The exemptions from data rights in the GDPR are found in Schedules 2 to 4 to the Bill. Part 6 of Schedule 2 deals with exemptions for scientific or historical research and archiving. Without these exemptions, scientific research which involves working on large datasets would be crippled by the administration of dealing with requests from individuals for their data and the need to give notice and service other data rights. This data provides the fuel for scientific breakthroughs, which the noble Lord, Lord Patel, and others have told us so much about in recent debates.
Amendment 79 seeks to remove “scientific or historical” processing from the signposting provision in Clause 14. Article 89 of the GDPR is clear that we may derogate only in relation to specifically historical or scientific research. We believe that Clause 14 needs to correctly describe the available exemption, although I reassure noble Lords that, as we have discussed previously, these terms are to be interpreted broadly, as outlined in the recitals.
Part 1 of Schedule 2 deals with exemptions relating to crime, tax and immigration. For example, where the tax authorities assess whether tax has been correctly paid or criminally evaded, that assessment must not be undermined by individuals accessing the data being processed by the authority. Amendments 79A and 79B, spoken to by the noble Lord, Lord Griffiths of Burry Port, would limit the available exemptions by removing from the list of GDPR rights that can be disapplied the right to restrict processing and the right to object to processing. In my example, persons subject to a tax investigation would be able to restrict and object to the processing by a tax authority. Clearly that is not desirable.
Amendments 80A and 83A seek to widen the exemption in paragraph 5(3) of Schedule 2 which exempts data controllers from complying with certain data rights where that data is to be disclosed for the purposes of legal proceedings. Without this provision, which mirrors the 1998 Act, individuals may be able to unfairly disrupt legal proceedings by blocking the processing of data. We are aware that the Bar Council has suggested that the exemption be widened as the amendments propose. This would enable data controllers to be wholly exempt from the relevant data rights. We believe that this is too wide and that the exemption should apply only where the data is, or will be, subject to a disclosure exercise, which is a process managed through court procedure rules. At paragraph 17 of Schedule 2, the Bill makes separate provision for exemptions to protect legal professional privilege. We think that the Bill continues to strike the right balance between the rights of data subjects and controllers processing personal data for the purposes of exercising their legal rights.
Amendment 83B seeks to remove paragraph 7 of Schedule 2 from the Bill. This paragraph sets out the conditions for restricting data subjects’ rights in respect of personal data processed for the purposes of protecting the public. Those carrying out functions to protect the public would include bodies and watchdogs concerned with protecting the public from incompetence, malpractice, dishonesty or seriously improper conduct, securing the health and safety of persons at work and protecting charities and fair competition in business. Paragraph 7, which is based on the current Section 31 of the 1998 Act, ensures that important investigations can continue without interference. Without this paragraph, persons would have to be given notice that they were being investigated and, on receipt of notice, they could require their data to be deleted, frustrating the investigation.
Paragraph 14 of Schedule 2 allows a data controller to refuse to disclose information to the data subject where doing so would involve disclosing information relating to a third party. Amendment 86A would remove the circumstances set out in sub-paragraph (3) to which a data controller must have regard when determining whether it is reasonable to disclose information relating to a third party without their consent. These considerations mirror those in the 1998 Act and we think that they remain important matters to be considered when determining reasonableness. They also allow for any duty of confidentiality to be respected.
Paragraph 15 of Schedule 2 ensures that an individual’s health, education or social work records cannot be withheld simply because they make reference to the health, education and social work professionals who contributed to them. Amendment 86B would allow a controller to refuse to disclose an individual’s health records to that individual on the grounds that they would identify the relevant health professionals who authored them. We believe that individuals should be able to access their health records in these circumstances.
Lord Ashton of Hyde
This was included in the letter I was sent today. I am afraid the noble Lord has not got it. The noble Lord, Lord Kennedy, helpfully withdrew his amendment before I was able to say anything the other night but the EU withdrawal Bill will convert the full text of direct EU instruments into UK law. This includes recitals, which will retain their status as an interpretive aid.
Lord Clement-Jones
My Lords, we will see if the EU withdrawal Bill gets passed, but that is a matter for another day.
I thank the Minister for his remarks. There are many aspects of his reply which Members around the House will wish to unpick.
Lord Stevenson of Balmacara (Lab)
Perhaps I may pursue this for a second. It is late in the evening and I am not moving fast enough in my brain, but the recitals have been discussed time and again and it is great that we are now getting a narrow understanding of where they go. I thought we were transposing the GDPR, after 20 May and after Brexit, through Schedule 6. However, Schedule 6 does not mention the recitals, so if the Minister can explain how this magic translation will happen I will be very grateful.
Lord Ashton of Hyde
We are not transposing the GDPR. It takes direct effect on 25 May.
Lord Stevenson of Balmacara
I knew I was slow. We are moving to applied GDPR; that is correct. The applied GDPR, as I read it in the book—that great wonderful dossier that I have forgotten to table; I am sure the box can supply it when we need it—does not contain the recitals.
Lord Clement-Jones
My Lords, just to heap Pelion on Ossa, I assume that until 29 March the recitals are not part of UK law.
Lord Ashton of Hyde
They will be part of UK law, because the withdrawal Bill will convert the full text into UK law. There will of course be a difference between the recitals and the articles; it will be like a statutory instrument, where the Explanatory Memorandum is part of the text of the instrument.
Lord Pannick
May I add to this fascinating debate? Does this not illustrate one of the problems of the withdrawal Bill—that in many areas, of which this is one, there will be two potentially conflicting sources of English law? There will be this Act, on data protection, and the direct implementation through the EU withdrawal Bill on the same subject. The two may conflict because this Act will not contain the recitals.
Lord Clement-Jones
My Lords, all I can say is that I do not know how the legal profession will cope in the circumstances.
Lord Ashton of Hyde
One thing we can all be certain of is that the legal profession will cope.
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
“( ) the placement (or prospective placement) of the data subject as a volunteer,”
Lord Ashton of Hyde
Lord Ashton of Hyde
Charitable Incorporated Organisations (Consequential Amendments) Order 2017
Lord Ashton of Hyde Excerpts(8 years, 5 months ago)
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Lord Ashton of Hyde
That the draft Order laid before the House on 7 September be approved.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, the order forms a very small part of a package of secondary legislation that will enable charities that have adopted the company structure, or a community interest company, to use a simple process to convert into a charitable incorporated organisation —CIO—should they so wish, and makes some consequential amendments. The order provides a right of appeal against a decision of the Charity Commission not to permit a community interest company to convert into a CIO. This mirrors the right of appeal that already exists in statute in Schedule 6 to the Charities Act 2011 for a charitable company.
It may help the House if I explain the overall package of which the order forms a small part. If approved by Parliament, the two negative resolution regulations that complete the package will also be made. The first sets out the detail of the conversion process for community interest companies and supplements the provision for charitable companies. The second adds CIOs and Scottish CIOs to the index of company names to prevent the registration of new companies with names that are the same as, or too similar to, existing CIOs and Scottish CIOs on the index. This will help charities to protect their corporate identity. To assist in understanding the package of secondary legislation, my honourable friend the Minister for Sport and Civil Society has deposited draft versions of the two other statutory instruments in the House Library.
The CIO, available since 2013, is the first and only legal structure designed specifically for charities. It has the benefits of legal personality and limited liability for its members and trustees, but, unlike the company structure, it is subject to a single regulatory regime under the Charity Commission rather than a dual regime under both the Charity Commission and Companies House. It has proved popular, with more than 12,000 CIOs set up so far.
Some charities that had already chosen the company structure may want to change to become CIOs, and some community interest companies may want to become CIOs. That is the purpose of this package of legislation: to enable a smooth conversion process that makes it simple for charitable companies and community interest companies to convert if they want to. These changes have been developed in close consultation with the Charity Commission, Companies House and the Scottish Government. Consultation feedback showed overwhelming support, 95%, for establishing a statutory conversion process.
That is the background. The draft order before us today merely provides a right of appeal for community interest companies. I commend it to the House and beg to move.
Lord Stevenson of Balmacara
Indeed—my final point was to be that we have something waiting in the wings which presumably is the answer and I thank the noble Lord for raising it. That is my main point and there are two minor points around it. The first concerns paragraph 8.6 of the Explanatory Memorandum, which suggests that minor amendments were made as a result of the consultation, which I felt was well handled. Only one is given, which is that this order does not include,
“the requirement for charitable companies to have filed their most recent accounts or reports with Companies House before an application is granted”.
On the other hand, it states:
“We will retain the requirement to refuse an application if a charity is in default”.
This seems to me to be the same thing. Has the Minister any light to throw on it? If a charity has not completed its formal registration, then it will be in default, so I do not know what this adds. I may be misreading it; if so, I will be grateful to be corrected on it.
Finally, those who have followed my long and extensive career in quizzing statutory instruments will know that I am fixated on dates. The date for the introduction of this does not fall within the common commencement dates. I accept that this does not affect business, so it is not necessarily caught by that, but to choose 1 January, a public holiday, for implementation seems a little perverse and I would be grateful for any comments.
Lord Ashton of Hyde
My Lords, I thank both noble Lords for their comments. I shall start with my noble friend. Of course we are aware that there will be some work involved in this for the Charity Commission, and we also acknowledge that it has limited resources. That is why we have agreed with the commission a phased approach to implementation. It has been planning for this for a number of years and has IT processes and support systems in place. I remind noble Lords that the Charity Commission received an £8 million investment in 2015 to support its transition into a modern, effective regulator and we believe that it has made very good progress. Work is under way within government to explore future funding options, including bringing the Charity Commission more into line with the model of other regulators. All options regarding the future funding model will be properly considered by the Government and will be subject to public consultation before any changes are made.
I am grateful to the noble Lord, Lord Stevenson, for his kind words about the preparation of this order, for which I take no credit, but the DCMS team, which does, will be very pleased: I think it is merited. I take his point about the issues more generally about charities. I agree with my noble friend Lord Hodgson that the report by your Lordships’ Committee on Charities, Stronger Charities for a Stronger Society, is awaiting a response. I can say that that will be coming soon, and soon means soon in this case.
Lord Ashton of Hyde
I have spent a long time at this Dispatch Box debating what “soon” means, and “very soon” and “imminent”, but in this case it is soon. My noble friend Lord Hodgson said there are opportunities in that response. I think it will be worth reading. I am sure that in due course the business managers will arrange a debate on the report.
My noble friend did not mention, but the noble Lord, Lord Stevenson, did, that he was responsible for the statutory review of the Charities Act 2006. The Law Commission’s report, which was published in September, examined a range of technical changes in charity law, many of which my noble friend posited in his statutory review. We welcome the Law Commission’s report and we will respond formally in due course. I expect, but cannot guarantee, that our response will be positive. The challenge is likely to be securing a legislative slot, which may take some time.
The noble Lord, Lord Stevenson, asked why we chose 1 January. I can only assume—if I am wrong on this, I will confirm it—that it was because it is the beginning of the new year and we decided that would be a good time. He asked one more, rather technical, question, and I do not have an answer to it. I will certainly write to him.
As I explained, the order provides a right of appeal for community interest companies. The rest of the package will be laid if the order is agreed to. I commend it to the House.
Data Protection Bill [HL]
Lord Ashton of Hyde ExcerptsMonday 6th November 2017
(8 years, 5 months ago)
Lords ChamberRead Full debate Data Protection Act 2018 View all Data Protection Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 66-II(Rev)(a) Amendment for Committee, supplementary to the revised second marshalled list (PDF, 55KB) - (6 Nov 2017)
Lord Stevenson of Balmacara (Lab)
My Lords, this has been a terrific debate on an important subject. We probably all agree that of all the issues that will come up on the Bill, we care about this one the most and would like to see it settled in a way that balances, as has been said, the wish for people to enjoy the use of the internet—which brings so much in so many different ways—with an appropriate regulatory structure that means that harm is prevented where it is appropriate to do so.
I was struck by what the noble Baroness, Lady Harding, said. Obviously, she is in a difficult position, speaking against her Government on a matter about which she has so much expertise and knowledge. However, she made the case so well that it is worth paying tribute to her for that. If we find a situation in any aspect of our public life where those responsible for an issue are unwilling or unable to deal with it appropriately, the public authorities have to take that step. We are in that situation—she made that clear so well.
Other arguments have been used today that were knocked back by the noble Baroness, Lady Kidron, when she spoke, but it is important to bear this in mind. There is no question here about us affecting our adequacy issues. This is definitely left to the government agencies in the countries involved to act on, and there is no issue here with regard to what we would say to the European Union should that be required in terms of adequacy, so we should not be dissuaded by that. As the recitals attached to the GDPR say, it is still a question of needing to balance the lower age of consent with the appropriate safeguards required. Age is one of those—it is important, but not the only one; capacity has also been raised before. However, we have the issue here about age, and there is a need for guidance around that.
The Government will not address the issue in any future sense. The internet strategy, which was referred to, is a bit of a red herring here, and, as we have heard, self-regulation, on which it is largely based, does not work. Therefore, action is probably required. As I said, if the industry will not do it, the public authorities should. We want this country to be the best place in the world to be online, and we want it to be safe to do so. If it is possible to design an age-appropriate environment, we should look very hard at that. The case that has been made today is incredibly important. The Government have a good sense of that from all around the Committee, as was said, and I hope they will be able to respond positively to it.
I will speak briefly to Amendment 20A, which picks up points made by the noble Baroness, Lady Howe. One issue that affects all those who wish to work in this area is the lack of information about what is happening on the ground: who is using what and how, with regard to time, effort and use of the internet? Amendment 20A, in my name, suggests to the Government that there is need at some point for a proper review which will require the companies to divest the information they currently have but which they do not share on information society services. Only then will the evidence of which the noble Baroness, Lady Howe, spoke, which will inform us as we go forward, be available. However, it should not stand in the way of the need to act in this way in this amendment, which I fully support.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, the noble Lord, Lord Stevenson, said that he hoped I had a sense of where the Committee is coming from. I very much have a sense of that. I know that child online safety is an issue that is taken seriously by all noble Lords in the House, and it has been the subject of much debate apart from today. I am therefore grateful to the noble Baroness and to all who contributed for introducing this important subject. I assure all noble Lords that we have an open mind. However, I will pour a bit of cold water because some issues, to which we may well come back, need to be thought about. I apologise to the noble Baroness, Lady Kidron, for the fact that we have not met. I thought that we were arranging a meeting. I have certainly talked to my noble friend Lady Harding about these amendments. However, I repeat not only to her but to every noble Lord that I am very happy to talk to anyone about these matters before Report, and I have no doubt that I will be talking to the noble Baroness before too long.
At Second Reading we heard a good deal about the need to improve online safety and concerns about the role that social media companies play in young people’s lives. The Government are fully committed to this cause. Our approach has been laid out in the Internet Safety Strategy Green Paper, published earlier this month. In that strategy, the Government detailed a number of commitments to improve online safety for all users and issued a consultation on further work, including the social media code of practice, the social media levy and transparency reporting. Although the Government are currently promoting a voluntary approach to work with industry, we have clearly stated in the strategy—and I repeat it now—that legislation will be introduced if necessary, and this will be taken forward in the digital charter.
The Government’s clear intention is to educate all users on the safe use of online sites such as social media sites. Again, this is set out in the strategy. This includes efforts targeted at children, comprising working with civil society groups to support peer-to-peer programmes and revised national curriculums. We believe that education is fundamental to safe use of the internet because it enables users to build the skills and resilience needed to navigate the online world and to be capable of adapting to the continuous changes and innovations that we see in this space.
The aim of these amendments is to allow information society services to make use of the derogation in the GDPR to set the age threshold at 13 only if sites comply with guidance on the minimum standards of age-appropriate design as set out by the Information Commissioner. Although the Government are sympathetic to their goal to raise the level of safety online, we have some questions about how it would work in practice and some fundamental concerns about its possible unintended consequences.
The noble Lord, Lord Storey, said that we should not rest our case on EU law. That is an enticing argument, especially from a Liberal Democrat, but I think that there is a sense of frustration there and I would not hold him to that. However, the fact is that, as we discussed last week, we are determined to ensure that we preserve the free flow of data once the UK leaves the EU.
I have to raise the issue of compliance with the GDPR, because we have a very real concern that these amendments are not compatible with it. The GDPR was designed as a regulation to ensure harmonisation of data protection laws across the EU. The nature of the internet and the transnational flow of data that it entails mean that effective regulations need international agreement. However, these amendments would create additional burdens for data controllers. Article 8 of the GDPR says that member states may provide by law for a lower age but it does not indicate that exercising this derogation should be conditional on other requirements. These amendments go further than permitted, creating a risk for our future trading relationships.
The noble Baroness mentioned that she had advice from a prominent QC. If she would care to share that with us, I would be happy to discuss it with her, and we will put that in front of our lawyers as well. I have an open mind on this but we think that there is an issue as far as the GDPR’s compatibility is concerned.
Amendment 155 would require the Information Commissioner to produce guidance on standards and design. The Information Commissioner will already be providing guidance on minimum standards to comply with the requirement not to offer services to under-13s without parental consent. Indeed, it will be the role of the commissioner to enforce the new law on consent. Although the guidance will not include details on age-appropriate design, this is not something that should be overlooked by government. However, tackling the problem of age-appropriate design is not just a data protection issue, and we should be very cautious about using this age threshold as a tool to keep children off certain sites. This is about their data and not the more fundamental question of the age at which children should be able to use these sites.
We need to educate children and work with internet companies to keep them safe and allow them to benefit from being online. Where there is clearly harmful material, such as online pornography, we have acted to protect children through a requirement for age verification in the Digital Economy Act 2017. The Government’s Internet Safety Strategy addresses a wide range of ways to protect the public online. While online safety, particularly for children, is very important, we should not be confusing this with the age at which parental consent is no longer required for the processing of personal data by online services. The Government have a clear plan of action.
Lord Knight of Weymouth
I apologise to the Minister for interrupting. I am just interested in that confusion that he talks about. Perhaps I am incorrect, but I understand that images, for example, are data. There is a lot of concern about sexting and about platforms such as Snapchat and the sharing of data. Where is the confusion? Is it in the Government, or in the Chamber?
Lord Ashton of Hyde
I do not think I mentioned confusion. What we are talking about in the Bill is purely data protection. We are talking about the age at which children can consent to information society services handling their data. What I think the noble Baroness, and a lot of Peers in the House, are talking about is keeping children safe online, which is more than just protection of their personal data.
Baroness Kidron
I also apologise for interrupting but I have to support the noble Lord, Lord Knight. When I read out the list, I said that Instagram takes information such as your phone number, your birthday and who you are chatting with. That is data, so I come at this from a very clear position on children’s rights. I am very keen for children to be online. I agree with the noble Lord, Lord Knight, that we are beyond an age of consent, as he said on Second Reading. Consent is meaningless if you do not change the service on the other side of that consent. It is not simply about the bad things that happen. It is about abusing the entire data of a child when they are online. I hope that is helpful to put it back into scope of the Bill.
Lord Ashton of Hyde
There may be some confusion now. I am not saying that children’s data is not important or that data protection for children is not important: clearly they are. However, the internet safety strategy addresses an overall, comprehensive range of measures that is about more than just data protection. We want to have a comprehensive strategy, which I am going to come to, to talk about safety. Nobody in their right mind is saying that we should not protect children, not only on the domestic front but internationally, as the noble Baroness, Lady Jay, said. Let me continue and I am sure all will become clear. If it does not, I am sure that the noble Baroness and others will cross-question me. If I have misunderstood what the noble Lord, Lord Knight, is getting at, I will look at Hansard and get back to him. I am sure we will come to this again.
We have a clear plan of action to raise the level of safety online for all users, as set out in the internet safety strategy. We are consulting on a new code of practice for the providers of online social media platforms, as required by the Digital Economy Act. That will set best practice for platform providers in offering adequate online protection policies, including minimum standards. Approaching the problem in this way as a safety matter, rather than a data protection matter, ensures we can tackle the problem while avoiding a debate over whether we are compliant with the GDPR. The internet safety strategy also outlines the Government’s promotion of “Think safety first” for online services. This will aim to educate and encourage new start-ups and developers to ensure that safety and privacy are built into their products from the design phase. Examples of this type of approach include having robust reporting mechanisms for users. We are looking at whether extra considerations should be in place on devices that are registered as being used by a child.
It is essential that we take a careful and considered approach to affecting the design standard of online services. Making overly complex or demanding requirements may result in negative consequences. Let me explain why. Amendments 18 and 19 essentially offer website operators a stark choice. Websites will need to either invest in upgrading standards and design or withdraw their services for use by under-16s. This is dangerous for the following reasons.
First, it could cause a displacement effect where children move to less popular platforms that would potentially not comply with such requirements—the noble Baroness, Lady Jay, talked about foreign sites. It is often more difficult to monitor these services and to ensure they have the basic protections that we expect from more legitimate sites. Platforms comply either because they are responsible or because they believe that the regulator will take enforcement action against them. Platforms hosted overseas may not always comply, because to do so would reduce the volume of users and potential monetisation, and the risk of enforcement action may be low.
Secondly, it is likely that young people, particularly those who already use these sites, may lie about their age to circumvent restrictions. This could have negative consequences for the prosecution of online grooming and underage sex: teenagers would be vulnerable to the assumption that they are over 16; adults could use this as a defence for their conduct; and sites may not be as accountable for the content that children are exposed to. This is not an imaginary problem. There have been cases of acquittal at trial, where men have had sexual relations with underage girls after meeting them on sites for over-18s only, using their presence on the site as a defence for believing them to be adults.
Thirdly, circumvention may be sought through the use of mechanisms to anonymise—I am having a problem with my pronunciation too—the use of the internet. Young people may adopt anonymising tools such as VPNs to access non-UK versions of the sites. This would make it more difficult for law enforcement to investigate, should they be exploited or subject to crime.
Fourthly, there is already in place a variety of legislation to safeguard children. Any change brought in through this Bill would have potential ramifications for other statutes. Altering how children make use of online service providers would need to be carefully worked through with law enforcement agencies to ensure that it did not damage the effectiveness of safeguarding vulnerable people.
Fifthly, these amendments do not just apply to social media services. A broad range of online services would be affected by this proposal, from media players to commerce sites. The kinds of services that would be caught by this amendment include many that develop content specifically for young people, including educational materials, not to mention the wider impact on digital skills if children are forced offline.
I move on now to more practical considerations. I am concerned that the amendments as drafted, while an elegant proposal, could serve to create confusion about what sites have to do. We know that the GDPR will apply from 25 May, and I am not convinced that this will allow enough time for the commissioner to consult on the guidance, prepare it, agree it and lay it before Parliament, and for companies to be compliant with it. Online service providers will need to adhere to the new requirements from May 2018, and may have existing customers that the new provisions will apply to. They will need some time to make any necessary changes in advance. Even with the transition period available in the amendment, this would lead to considerable uncertainty and confusion from online services about the rules they will have to follow come May. This could result in the problems that I have already laid out.
Finally, the Information Commissioner has raised a technical point. These amendments would apply only where consent is the lawful basis for processing data. Children also have access to online services where the data controller relies on a contractual basis or vital interests to offer services, rather than reliance on consent. Therefore, the amendments may have less reach than seems to be envisaged and are likely to lead to confusion as to which services the requirements apply to.
In summary, in spite of our appreciation of the aims of these amendments, we have concerns. They may prove dangerous to the online safety of children and young people. Creating unnecessary and isolated requirements runs the risk of being counterproductive to other work in this space. There needs to be some serious and detailed discussion on this before any changes are made. Furthermore, the technical and legal drafting of the amendments remains in question.
There is no doubt that further work needs to be done in the online safety space to ensure the robust and sustainable protection of our children and young people online. We have demonstrated commitment to this through the work on the internet safety strategy and the Digital Economy Act. We are working on these issues as a matter of priority, but strongly believe that it is better to address them as a whole rather than pursue them through the narrow lens of data protection. We need to work collaboratively with a wide range of stakeholders to ensure that we get the right approach. The noble Baroness, Lady Kidron, for example, was among those who attended the parliamentarians’ round table on the internet safety strategy, which she mentioned, hosted by the Secretary of State last week. We are engaged on this issue and are not pursuing the work behind locked doors. These specific amendments, however, are not the right course of action to take at this time.
Lord Alton of Liverpool
My Lords, the Minister has just referred to the round table. He will recall that I mentioned in my remarks the issue of definitions and suicide sites that were raised during that round table last week. Can he tell the House any more about that?
Lord Ashton of Hyde
I was not at the round table, and I am afraid that I would require some notice to answer that question. I am certainly happy to write to the Committee about that. I had not forgotten; I just do not have an answer.
Given the arguments that I have laid out, I would like to reassure the House that this issue remains high priority. The noble Lord, Lord Knight, asked whether GOV.UK’s Verify site could be used for age verification. Verify confirms identity against records held by mobile phone companies, HM Passport Office, the DVLA and credit agencies, so it is not designed for use by children. We will continue to work with interested parties to improve internet safety, but in a coherent and systematic way. For the moment, and in anticipation of further discussions, I ask the noble Baroness to withdraw her amendment.
I now move to Amendment 20A from the noble Lords, Lord Stevenson and Lord Kennedy, on the requirement for a review of Clause 8. Again, the Government agree with the spirit of this amendment in ensuring that the legislation we are creating offers the protections that we desire. However, there are a few issues that we would like to address.
First, it is government practice to review and report in cases of new legislation like this. Bringing about a mandatory report in this case is therefore unnecessary. Furthermore, prescribing the specific content of such a report at this stage is counterproductive. This is especially true given the complex and wide-ranging nature of child online safety and the work being conducted by the Government in this space.
Secondly, on timings, as noble Lords are aware, we must comply with the GDPR from 25 May next year, by which time the Bill must be passed. I am concerned, therefore, that to require a review to be published within 12 months of the Bill passing would not leave sufficient time to produce a meaningful report. Companies need the time to bring in new mechanisms to be compliant with the regulation. For data to be created and collected, time must be given for the sites to be tested and used following the new regulations. This will allow for the comparison of robust data and that which will reflect other work around online safety, which is still being developed. For those reasons, I ask the noble Lords not to press their amendments.
Lord Stevenson of Balmacara
I do not think that the Minister answered the point made by my noble friend Lady Jay on extraterritoriality—a word that I know he will want to use. Also, before the noble Baroness, Lady Kidron, replies, the main thrust of the Minister’s points was that government action on a code and on the digital charter would take most of the issues away. He relied on that in terms of his main argument. But am I right in saying that the code that has been consulted on is voluntary and that there will be no statutory basis for the digital charter? I would be grateful if he could help us on those two points.
Lord Ashton of Hyde
I am happy to confirm those two points. On extraterritoriality, I agree with the noble Baroness that it is difficult to control. Commercial sites are easier—an example of which is gambling. We can control the payments, so if they are commercial and cannot pay people, they may well lose their attractiveness. Of course, the only way to solve this is through international agreement, and the Government are working on that. Part of my point is that, if you drive children away to sites located abroad, there is a risk in that. The big, well-known sites are by and large responsible. They may not do what we want, but they will work with the Government. That is the thrust of our argument. We are working with the well-known companies and, by and large, they act responsibly, even if they do not do exactly what we want. As I say, however, we are working on that. The noble Baroness is right to say that, if we drive children on to less responsible sites based in jurisdictions with less sensible and acceptable regimes, that is a problem.
Lord Knight of Weymouth
Could the Minister help me with any information he might have about when the GDPR was drawn up? It must have been envisaged when Article 8 was put together that some member states would go with something different—be it 13, 16, or whatever. The issue of foreign powers must have been thought about, as well as verifying age, parental consent, or the verification of parental identity to verify age. Article 8 just talks about having to have parental sign-off. These issues of verification and going off to foreign powers must have been thought about when the article was being put together in Europe. Does he have any advice on what they thought would be done about this problem?
Lord Ashton of Hyde
I cannot give the noble Lord chapter and verse on what the European bureaucrats were thinking when they produced the article, but age verification is not really the issue on this one, because it is extremely difficult to verify ages below 18 anyway. Although one can get a driving licence at 17, it is at the age of 18 when you can have a credit card. As I say, the issue here is not age verification—rather, it is about how, when we make things too onerous, that has the potential to drive people away on to other sites which take their responsibilities less seriously. That was the point I was trying to make.
Baroness Jay of Paddington
My Lords, the Minister was kind enough to respond to the point I sought to make about the extraterritorial nature of all this, which of course goes way beyond individual sites to corporate ownership, the issue that I am most concerned about. I am glad that the Government are having conversations with, or at least dealing with, what he describes as the most responsible players in this market. None the less, we are dealing with a global environment in which most countries, not just a few rogue countries, have a very different environment and understanding of the culture and nature of the regulation of broadcasting than we do in this country. We have had a very particular and sophisticated way of dealing with terrestrial broadcasting for several generations. The real problem lies in addressing how we can translate some of those values and regulatory formats into the global internet age.
Lord Ashton of Hyde
I take that point completely. So that I get it right, it would be best if I write to the noble Baroness about what we are doing. I am afraid that I cannot recall whether it is the G8, the G20 or whatever. Ownership is obviously a key point as well, so I will write to the noble Baroness on those points.
Lord Stevenson of Balmacara
My Lords, I am very sorry for interrupting the noble Lord, Lord McNally, as what he had to say was very apposite and appropriate. I thought at one stage that he was going to say that he had been around for the passing of the first reform Act as well as everything else he was talking about, but I must have misheard him.
This has been a good debate, which has tended to range rather widely, mainly because it is so important we get this right. I confidently expect the Minister to respond by saying that this is a very good idea but he lacks the power to be able to give any response one way or another because it lies in the hands of one of his noble friends. That of course is the problem here, that we have another linked issue. Whitehall is useless at trying to take a broader issue that arises in one area and apply it in another. Education seems to be one of the worst departments in that respect. I mean that, as it has come up time and again: good ideas about how we need to radicalise our curriculum never get implemented because there seems to be an innate inability in the department to go along with it. It may well be that the changes to the structure of education in recent years have something to do with that. It is good to see in the second line of this amendment that this would apply to “all children” irrespective of the type of school or type of organisational structure that school is in, so that it applies to everyone. We support that.
However, two worries remain that still need to be looked at very hard, and the noble Lord who just spoke was on the point here. Do we have the skills in the schools to teach to the level of understanding that we are talking about? I suspect that we do not. If so, what are we going to do about that? Thirdly, I suspect that our kids are way ahead of us on this. They have already moved across into a knowledge and understanding of this technology that we cannot possibly match. Teaching them to go back to basics, as has been the case in previous restructuring of the curriculum, is not the right way. We need a radical rethink of the overall curriculum, something which is urgent and pressing. It is raised, interestingly enough, in a number of publications that are now appearing around the industrial strategy. If we do not get this right, we will never have a strategy for our industries that will resolve all the issues we have with improving productivity. I hope the Minister will take this away.
Lord Ashton of Hyde
My Lords, I am grateful to the noble Lord, Lord Storey, whose long experience in education I acknowledge, and to all noble Lords who have contributed. I could not agree more about the importance of children and young people fully understanding how their data is collected, stored and used. That is why the Government have already taken steps to ensure that key aspects of data protection are taught in maintained schools. In 2014 we established a new and more rigorous national computing curriculum covering ages five to 16. It is compulsory in maintained schools in England and sets an ambitious benchmark that autonomous academies and free schools can use and improve on.
The new computing curriculum was developed by industry experts and includes safety, which helps to give children the tools that they need to make sensible choices online. I say to the noble Lord, Lord Puttnam, and my noble friend Lord Lucas that they were a bit pessimistic about what we are doing; we are certainly not doing nothing, as my noble friend implied. Children are taught how to use technology safely, respectfully and responsibly; how to recognise unacceptable behaviour; and how to report concerns about content and contact. Importantly, the curriculum also includes keeping personal information private and protecting their online identity and privacy, both of which are important parts of data protection. All schools can choose to teach children about data collection, storage and usage as part of these topics.
I also say to the noble Lord, Lord Puttnam, that the digital economy is actually not doing too badly; it is growing at twice the rate of the rest of the economy. The Government are spending to improve skills at all levels, including at PhD level, to prevent social exclusion. So we get the issues that he is talking about, and in my answer to the debate of the noble Baroness, Lady Lane-Fox, I outlined some of the things that we are doing.
Lord Puttnam
I accept entirely that the economic drivers for the digital economy are being handled quite well. I am suggesting that the societal end of that debate is not keeping pace with the commercial and that, if we allow too great a disconnect to occur between societal impacts and commercial success, we will reap a very unfortunate harvest. The Minister was good enough to see me last week, together with an official from the Department for Education. I am not pretending for a moment that nothing is being done, but I am suggesting that there is nothing like enough urgency in trying to correct the societal aspects of this issue.
Lord Ashton of Hyde
I take that point. I also understand the difference that the noble Baroness, Lady Lane-Fox, highlighted between digital skills and digital understanding, and we need to address that. One of the issues that the data ethics body is going to look at is how society deals with these technical problems, albeit that they are changing incredibly fast.
I have talked about younger pupils. Older pupils are also taught citizenship as part of the national curriculum. That equips pupils to take their place in society as active and responsible citizens, including providing them with the knowledge and skills that they need to think critically and to research and interrogate evidence. These vital skills help our children understand how their data can be used and why data protection is important.
Amendment 20 would require the Secretary of State for Education to make changes to the current maintained schools national curriculum, and would create new requirements for independent schools and academies. In our view, now is not the time to make further changes to these subjects. We need to allow schools to fully embed the new curriculum in order to provide a period of stability for schools so that they can focus on ensuring that pupils are taught this new curriculum well, including the new aspects on data protection.
Having said that, we are not complacent. We realise that companies’ use of data in the online world is increasingly complex and that we need to support children to understand that. The changes introduced in the Children and Social Work Act 2017 represent a step change in education on online safety. For the first time it will be compulsory for all primary-aged children at school in England to be taught relationships education, and all secondary-school children will be taught relationships and sex education. In addition, we will carefully consider whether also to make personal, social, health and economic education compulsory in all schools.
The noble Lord, Lord Knight, took my lines to a certain extent. I was going to confirm that the Department for Education confirmed today that it has begun its engagement with stakeholders. This is a point that has come up before: that will help it reach evidence-based decisions on the content. I can tell the noble Lord that the head teacher who is running it will advise the Department for Education on what will be included in relationships and sex education and PSHE, whether it should be compulsory and, if so, what content may be included. It will be live to online issues and include what children need to know to be safe online, beyond what is already in the computing curriculum.
The Government will ensure that these new compulsory subjects in England address the challenges experienced by young people online and are seeking views to work out exactly what this should cover and how best to do so. The Department for Education will support schools to ensure that content is pitched at the right level for each school year and builds knowledge as children grow up. Engagement and consultation will help us to get the detail right.
My department, DCMS, and the Department for Education are working together on the online safety aspects of these subjects. We will work with partners, including social media and technology companies, subject experts, law enforcement—
Baroness O'Neill of Bengarve (CB)
I thank the Minister for giving way. Is he suggesting that the aim should be to adapt children to the realities of the online world and the internet service providers, rather than to adapt the providers to the needs of children?
Lord Ashton of Hyde
I am not an expert on education, but I do not think that “adapting” children is a recognised educational aspiration. We are trying to make children aware of the issues involved in the online world. We all accept that they are technically skilful, but they may not have the maturity to make the right decisions at certain times in their lives. As I said, we are trying to pitch it so that, as children develop, they are introduced to different things along the way. I hope that that answers the noble Baroness.
We are working with social media and technology companies, subject experts, law enforcement, English schools and teaching bodies to ensure these subjects are up to date with how children and young people access content online and the risks they face. We will also consider how best to support schools in the delivery of these new subjects. It is important to note that education on data processing does not exist in a vacuum but is viewed as a part of a wider programme of digital learning being promoted to improve user awareness of online safety and build digital capability. As such, we think that legislation focusing solely on data processing would risk detracting from the broader issues being tackled.
I am grateful to noble Lords for their amendment: it has prompted an interesting debate and raised issues which have gone beyond data protection, on which of course we are concentrating in the Bill. I hope that I have reassured the noble Lord that the Government take the issue of educating young people seriously, particularly in data protection matters. Not only do they already feature in the curriculum but we are considering how we might strengthen this teaching as a key part of our wider online safety work. With that reassurance, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Storey
I am very grateful for the Minister’s helpful reply and to noble Lords who have contributed to this debate. I do not particularly like the phrase “digital literacy”: I much prefer “digital understanding”. I always understood that the fourth “r” was religion, so perhaps, with a small “r”, this is a religion for some of these large tech companies.
I can accept everything the Minister said, with the exception of two points. He said that these things are happening in the maintained sector. However, over 70% of our secondary schools are no longer in the maintained sector and they can choose whether or not to follow the programmes that he has suggested. Free schools are also increasing in number and, again, they do not have to take any part in this activity if they do not want to.
I agree with the Minister that this is not a discrete package where you tick the box when you have done it. It has to be part of a wider programme which goes through all aspects of learning. I also agree with the noble Lord, Lord Stevenson, who raised the question of whether we have the skills in our schools. It is not just digital issues: we do not have teachers for A-level maths or physics but we do not stop doing maths or physics. This might ensure that we actually started training teachers to work in this area.
I am grateful for the Minister’s helpful reply and look forward to considering this again on Report. I beg leave to withdraw the amendment.
Data Protection Bill [HL]
Lord Ashton of Hyde Excerpts(8 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Lester of Herne Hill (LD)
My Lords, I want to raise an issue which I would be grateful if it were thought about, although I would not dream of asking the Minister to give an informed reply today. I am puzzled especially by Amendment 37, spoken to by the noble Lord, Lord Griffiths, because I spent a good deal of my time developing the Equality Act 2010 and we were very concerned when doing so about issues of personal privacy and enforceability.
Obviously, one size does not fit all when it comes to equal opportunity and treatment. It is fairly easy to operate a policy measuring ethnicity, for example, without any problem about privacy; it is pretty easy to do so in respect of gender, although gender does not at the moment figure in the list for some reason, but it becomes terribly difficult when one is dealing with sexuality, religion or philosophical belief, which are for some reason in the list at the moment. I would be grateful if the Minister could reflect with people from the Government Equalities Office on whether this is an example of overlegislation, which it would be much better to prune down.
I am all in favour of affirmative action to promote equality between the sexes or people of different ethnicity, but when it comes to religion, philosophical belief and the other matters that are either there at the moment or would be there under Amendment 37, I get very worried. For example, I once represented the Church of Scientology—successfully—in establishing that scientology is a religion. I would not like these provisions to be the source of conflict and division between one kind of religion and another, or one kind of no religion and humanists, and so on. I think it is an example of overlegislation and underlegislation, and needs to be sorted.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, I am grateful to all noble Lords who have participated. I am especially grateful for the clear way in which the noble Lord, Lord Griffiths, outlined the case for all his amendments. He could have chosen an easier Bill to start on, I must say, but he did it very well. I am grateful for the opportunity to set out the purpose of various conditions included in Schedule 1, this time specifically with reference to Part 2.
As we have already discussed, for “special categories of data” to be processed lawfully, controllers must demonstrate that their processing meets one of the processing conditions set out in article 9 of the GDPR. We have already touched on several of these. Here we turn to processing which is,
“necessary for reasons of substantial public interest”.
Clause 9 requires that controllers wishing to rely on this processing condition must meet one of the conditions set out in Part 2 of Schedule 1.
Paragraph 7 of Schedule 1 allows processing of certain specified special categories of personal data for the purpose of promoting equality of opportunity. Amendment 37 seeks to expand this condition to permit the processing of additional categories of personal data. This is unnecessary because the categories of data referred to in the amendment are either not considered by the GDPR framework to be special categories of data in the first place or covered by the categories already listed in paragraph 7 of Schedule 1; for example, “Personal data revealing age” need not be listed because it is not subject to additional protection to begin with.
The Government accept that the existing special categories of data are broad and in some circumstances will overlap with the categories of data suggested in the amendment; for example,
“Personal data revealing a disability”,
will fall within the special category of “Data concerning health”. But in these cases, paragraph 7 already permits the processing of such data for equality-monitoring purposes. I will read carefully the remarks of the noble Lord, Lord Lester. I suspect his point is to do with what is and what is not a special category of data, but I will read Hansard and write to him, and copy other noble Lords. I thank him for not requiring a considered answer tonight.
Amendments 38 and 39 address the condition in paragraph 8 which permits the processing of data where this is,
“necessary for the purposes of the prevention or detection of an unlawful act”.
Amendment 38 would make it clear that the condition was available only if the unlawful act in question was “serious”. I can understand the rationale behind the amendment but the Government consider that it might nevertheless be in the substantial public interest for an organisation to process data for the prevention or detection of an unlawful act that was not obviously “serious”. An offence such as driving without a licence or insurance may not be the most serious in terms of the maximum penalty available, but it could still be in the substantial public interest for it to be reported by the data controller. Paragraph 8 ensures that data controllers are empowered to make that call and be accountable for their decision.
Amendment 39 would make the condition available only,
“under circumstances in which it is reasonably clear that a data subject is unlikely to give consent”.
While similar provision is made in other conditions where required, the Government consider that it would not be appropriate in this case, given that the purpose is to process data in circumstances where seeking consent risks prejudicing the prevention or detection of an unlawful act.
Amendment 40 would remove the word “dishonesty” from paragraph 9(2)(a) so that an organisation could rely on this provision only if it were processing sensitive categories of personal data to protect the public from malpractice, other seriously improper conduct or the other listed behaviours. The Government consider that there might be situations where an organisation would also need to process data to protect the public from dishonesty that does not necessarily amount to malpractice or improper conduct. It is therefore right that the paragraph covers the full gamut. This processing condition is not new; a similarly worded provision already exists under the current Data Protection Act.
The noble Lord, Lord Griffiths, suggested that there was a need for a further definition of “dishonesty”. I am afraid we do not agree. The word has a plain English meaning, defined in the dictionary. Furthermore, to define it here would cause confusion as it is used throughout UK legislation.
Amendment 41 would extend the scope of the same processing condition so that it could also be used to protect bodies and associations, rather than just the general public, from dishonesty, malpractice and improper conduct. It is one thing to allow the processing of an individual’s personal data for the purposes of protecting the general public—that is, other individuals; there is a neat symmetry there—but quite another to suggest that it could be processed to protect organisations from reputational harm. On that basis, I cannot agree to include it.
Amendments 43 and 44 address the processing condition in paragraph 12 which allows organisations such as banks to make disclosures “in good faith” under the Terrorism Act 2000 and the Proceeds of Crime Act 2002 about third parties who are suspected of terrorist-financing offences or money laundering. This processing condition is intended to protect organisations that disclose data on the basis of a genuine suspicion, even if it turns out later not to have been well founded. Noble Lords will recall that this condition was debated and agreed to as part of the Criminal Finances Bill earlier this year. The condition is tied to the improvement of a specific statutory regime—known as the suspicious activity reports regime—and is designed to give legal clarity to encourage the sharing of information to prevent serious crime and terrorism. I know there are some in the financial sector who have suggested that these provisions should go further to permit screening by private companies for the purposes of checking against non-UK laws on terrorist financing and money laundering. As noble Lords may be aware, the relevant provisions in the Criminal Finances Act were commenced only at the end of last month. We are not convinced that there is a need to amend them at such an early stage.
Amendment 45 would amend the processing condition relating to,
“confidential counselling, advice or support”,
in paragraph 13. It would add “guidance” to the list of processing activities which are permitted under this provision. This paragraph is not new; the relevant wording is drawn directly from existing legislation. But I am happy to put on the record the Government’s view that guidance is already covered by this provision and thus there is no need to amend it.
Amendments 45A and 64 in the name of my noble friend Lady Neville-Jones seek to clarify the legal status of processing by patient support groups. The Government strongly support the varied and important work of patient support groups and I am grateful for my noble friend’s time in meeting me recently. It is important to reiterate that groups such as Unique will have access to a number of provisions already in the Bill, even in cases where consent cannot be obtained, or reobtained, from the data subject.
We discussed the provisions for scientific research last week. In addition, paragraph 13 of Schedule 1 makes provision for confidential counselling, advice and support. Taken together, the provisions I have mentioned—for consent, scientific research, and confidential counselling, advice and support—seem to cover a great deal of the vital work undertaken by patient support groups. But the Government retain an open mind on this and I will read my noble friend’s contribution in Hansard carefully.
Lord Ashton of Hyde
I agree. I have the same. You have to put in your numerical password every so often just to check that you have still got the same finger. Technically, you might not have.
The amendments also seek to permit the processing of such data when biometric identification devices are installed by employers to allow employees to gain access to work premises or when the controller is using the data for internal purposes to improve ID verification mechanisms. I am grateful to the noble Lord for raising this important issue because the use of biometric verification devices is likely only to increase in the coming years. At the moment, our initial view is that, given the current range of processing conditions provided in Schedule 1 to the Bill, no further provision is needed to facilitate the activities to which the noble Lord referred. However, this is a technical issue and so I am happy to write to the noble Lord to set out our reasoning on that point. Of course, this may not be the case in relation to the application of future technology, and we have already discussed the need for delegated powers in the Bill to ensure that the law can keep pace. I think we will discuss that again in a later group.
On this basis, I hope I have tackled the noble Lord’s concerns, and I would be grateful if he will withdraw the amendment.
Lord Clement-Jones
My Lords, as usual the noble Lord, Lord Maxton, has put his finger on the problem. If we have iris recognition, he will keep his eye on the matter.
I thank the Minister for his explanation of the multifarious amendments and welcome the maiden speech from the Front Bench by the noble Lord, Lord Griffiths. I do not think I can better my noble friend Lord McNally’s description of his ascent to greatness in this matter. I suspect that in essence it means that the noble Lord, Lord Griffiths, like me, picks up all the worst technical amendments which are the most difficult to explain in a short speech.
I thought the Minister rather short-changed some of the amendments, but I will rely on Hansard at a later date, and I am sure the Opposition Front Bench will do the same when we come to it. The particular area where he was disappointing was on what you might call the Thomson Reuters perspective, and I am sure that we will want to examine very carefully what the Minister had to say because it could be of considerable significance if there is no suitable exemption to allow that kind of fraud prevention to take place. Although he said he had an open mind, I was rather surprised by his approach to Amendments 45A and 64 which were tabled by the noble Baroness, Lady Neville-Jones. One will have to unpick carefully what he said.
The bulk of what I want to respond to is what the Minister said about biometrics. I took quite a lot of comfort from what he said because he did not start quoting chapter and verse at me, which I think means that nobody has quite yet worked out where this biometric data fits and where there might be suitable exemptions. There is a general feeling that somewhere in the Bill or the schedules we will find something that will cover it. I think that may be an overoptimistic view, but I look forward to receiving the Minister’s letter. In the meantime, I beg leave to withdraw the amendment.
Lord Ashton of Hyde
My Lords, I am grateful to noble Lords who have spoken and for the opportunity to set out the purposes of various conditions included in Part 1 of Schedule 1.
It is worth recalling that, in order for special categories of data to be processed lawfully, controllers must demonstrate that their processing meets one of a defined list of processing conditions set out in article 9 of the GDPR. Many controllers will meet this requirement by seeking the explicit consent of the data subject but the reality is there will be circumstances where it would not be appropriate, or indeed possible, for a controller to seek consent. In these cases, alternative conditions include processing which is necessary for the purposes of employment and social security; for the provision of health or social care; for public health; and for archiving and research. But for UK controllers to take advantage of these particular processing conditions, the UK must make suitable provision in UK law. That is what the conditions set out in Part 1 of Schedule 1 seek to do.
Paragraph 1 of that schedule, referenced in Amendment 25, refers to the processing of sensitive personal data where necessary for exercising obligations under employment law, social security law or the law relating to social protection. This is a specific category under article 9(2)(b) of the GDPR, and paragraph 1 gives it legislative effect.
It is true that the 1998 Act did not refer to social security and social protection law, but the GDPR gives them specific emphasis in recognition of the reality that processing of special categories of data may be necessary for the purposes of calculating social security benefits or arranging interventions by social services when people are in need of support. In practice, it may not be possible to obtain consent to every measure or decision which is taken about a person when arranging benefit payments or care provisions. Amendment 25 would remove paragraph 1(1)(a) from Schedule 1, making this clause ineffective and closing off a potentially valuable processing condition to social services and other care providers.
The noble Earl, Lord Kinnoull, and the noble Lord, Lord Clement-Jones, suggested in Amendment 25A that “under” employment law should be replaced with “in connection with” employment law. I appreciate the sentiment behind the amendment, which is to ensure that the provision does not operate too restrictively. However, the Government are satisfied the term is sufficiently broad to cover processing that would have been permitted for these purposes under the Data Protection Act, while operating within the limits of the derogation provided for by the GDPR. The new condition, which permits processing that is,
“necessary for the purposes of performing or exercising obligations or rights of the controller or the data subject under employment law”,
would have the same meaning as the Data Protection Act wording, which referred to, processing necessary for the purposes of,
“exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment”.
I therefore hope the noble Lords will accept my reassurances in that regard.
The Earl of Kinnoull
I raise a simple point—that pretty big businesses look after the employment law insurance issues, and they are so incredibly important that they are often compulsory types of insurance because we feel that every business should have them. These huge businesses will have massive change in the way this operates because there is this change. We have just heard that it is not a change, but I hope that the Minister will accept that the insurance businesses—I had a sensitive briefing from the ABI—are worried about that. Accordingly, will he at least be prepared to have a meeting to go through that, otherwise there will be a lot of expense, fuss and bother and maybe some unintended damage to the process of an important type of insurance?
Lord Ashton of Hyde
I said that we believe that the term is sufficiently broad to cover processing that would have been permitted hitherto, which the noble Earl refers to. However, of course, if we have got it wrong and if the insurance industry has a point it wants to bring up, it would be sensible, and I would be delighted, to meet him and the industry to discuss that. As I said before, we have an open mind, so I will certainly do that.
On the provisions in paragraphs 2 and 3 of Schedule 1 on health and social care, and public health, respectively, which are the focus of Amendments 27 to 29, it is fair to say that the drafting here has moved on slightly from the approach taken in Schedule 3 to the 1998 Act. However, article 9(2)(h) of the GDPR refers specifically to processing which is necessary for,
“the assessment of the working capacity of an employee”,
and,
“the management of health … care systems”.
Article 9(2)(i) refers specifically to processing which is,
“necessary for reasons of public interest in the area of public health”.
The purpose of paragraphs 2 and 3 of Schedule 1 is to give these GDPR provisions legislative effect. To remove these terms from the clause by virtue of Amendments 27 to 29 would mean that healthcare providers might have no lawful basis to process special categories of data for such purposes after 25 May. I am sure that noble Lords would agree that that would be unwelcome.
The noble Lord, Lord Kennedy, asked some questions on paragraph 2 and asked for an example of data processed under paragraph 2(b). An example would be occupational health. The wording of paragraph 2(2)(f) of Schedule 1 is imported from article 9(2)(h), and I refer the noble Lord—I am sure that he has remembered it—to the exposition given in recital 53.
Paragraph 4—the focus of Amendments 32 to 34—provides for the processing of special categories of data for purposes relating to archiving and research. The outcome of these amendments would be to name specific areas of research and types of records. The terms “scientific research” and “archiving” cover a wide range of activities. Recital 157 to the GDPR specifically refers to “social science” in the context of scientific research, and recital 159 makes it clear that,
“scientific research purposes should be interpreted in a broad manner including for example technological development and demonstration, fundamental research, applied research and privately funded research”.
The Government are not aware of anything in the GDPR or the Bill which casts doubt on the application of these terms to social science research or digital archiving.
Finally, on the important issue of confidentiality, Amendments 31 and 70 are unnecessary, because all health professionals are subject to the common-law duty of confidentiality. The duty is generally understood to mean that, if information is given in circumstances where it is expected that a duty of confidence applies, that information cannot normally be disclosed without the information provider’s consent. However, beyond relying on the common-law duty of confidentiality, health professionals and social work professionals are bound by the requirements in their employee contract to uphold rules on confidentiality, whether that information is held on paper, computer, visually or audio recorded, or even held in the memory of the professional. Health professionals and social work professionals as defined in Clause 183 are all regulated professionals.
I can therefore reassure the noble Lord, Lord Kakkar—I am also grateful to the noble Lord, Lord Lester, for his support with regard to the Human Rights Act—that the Government strongly agree on the importance of the common-law duty of medical confidentiality but also recognise that it is not absolute. For example, there already are, and will continue to be, instances where disclosure of personal data by a medical professional is necessary for important public interest purposes, such as certain crime prevention purposes or pursuant to a court order. I therefore cannot agree to Amendment 108A, although, as we have already said, the Government are committed to looking at the issue of delegated powers in the round. I will certainly include that in that discussion. Therefore, with that reassurance, I ask the noble Lord to withdraw his amendment.
Lord Lucas
My Lords, might I beg a meeting of the Minister to discuss the matter of suicidal students at university and how that will be handled under the new legislation as it is developed? This need not necessarily fit within the timescale of the Bill, but I would very much like to be able to understand policy on it and to involve universities in moving from the current unsatisfactory position.
Lord Ashton of Hyde
It is always a pleasure to meet my noble friend, and I am happy to do that.
Lord Kennedy of Southwark
My Lords, I thank all noble Lords who have spoken in the debate this evening. We have touched on a number of important topics, which I hope the noble Lord, Lord Ashton of Hyde, will reflect on as we move through the Bill and look at these issues again. I make it clear that my amendments were all probing amendments to get from the Government their position on things. I was particularly pleased that the noble Earl, Lord Kinnoull, raised the issue about the insurance industry and that the Minister will meet him and representatives of the industry.
I noticed when the Minister replied to the debate that on more than one occasion he made references to recitals. He, I and the House know that the recitals will not form part of British law, so to keep relying on them is, I contend, a little weak on the Government’s part. They will have to find something a bit stronger and more solid as we move on, because, as I said, these will not form part of British law. That is an important point for the Minister to think of when he responds to amendments. For him to keep relying on them highlights the position the Government are in, which is not very good at the moment. Having said that, I beg leave to withdraw the amendment.
Review of Gaming Machines
Lord Ashton of Hyde Excerpts(8 years, 6 months ago)
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The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, with the leave of the House, I will repeat in the form of a Statement an Answer to an Urgent Question made by my honourable friend the Minister in the other place responsible for gambling. The Statement is as follows:
“I am pleased to inform the House that I published a consultation on proposals for changes to gaming machines and social responsibility requirements across the gambling industry today. The consultation will run for 12 weeks, during which the general public, industry and all other interested parties will be able to voice their views on the questions raised. I appreciate some may not understand why we have to run a consultation, but this is the right process by which to proceed if we are to address this issue thoroughly and properly.
As you know, the Government announced a review of gaming machines and social responsibility measures in October 2016 and I am grateful to all those who responded, including individual former addicts, faith groups, local authorities and the bookmakers. The objective of the review was to ensure we have the right balance between a sector that can grow and contribute to the economy, and one that is socially responsible and doing all it should to protect consumers and communities.
While our consultation sets out a package of measures to protect vulnerable people from harm, the main area of interest has been the stake of B2 gaming machines, known as fixed-odds betting terminals or FOBTs for short. We believe that the current regulation of FOBTs is inappropriate to achieve our stated objective of protecting consumers and wider communities. We are therefore consulting on regulatory changes to the maximum stake, looking at options between £50 and £2 to reduce the potential for large losses and therefore the potentially harmful impact on the player, their families and the wider community.
We are aware that the factors which influence the extent of harm to the player are wider than one product or a limited set of parameters such as stakes and prizes, and include factors around the player, the environment and the product. We are therefore also consulting on corresponding social responsibility measures, on player protections in the online sector and on a package of measures on gambling advertising. Within this package we want to see industry, the regulator and charities continue to drive a social responsibility agenda to ensure all is being done to protect players and that those in trouble can access the treatment and support they need.
The consultation will close on 23 January 2018, following which government will consider their final proposals”.
Lord Griffiths of Burry Port (Lab)
My Lords, while I am grateful to the Minister for repeating that Statement, I confess it leaves me perplexed. The recent review and other sources have yielded facts enough: 430,000 gamblers with an addiction, up by a third in three years; a further 2 million problem gamblers at risk of developing an addiction; £1.8 billion lost on these machines each year, an increase of 79% in the last eight years; and a gambling industry whose yield, or the amounts it wins in bets, has increased to £13.8 billion from £8.36 billion in 2009, having spent a mere £10 million towards a voluntary levy last year on education and treatment. Some 450,000 children gamble at least once a week.
My question is simple: granted that we are armed already with factual and proven information, what is to be gained by having this consultation? Will the Government let us know clearly what they are probing for by holding this further consultation, and can they assure me that, with the grass-cutting season nearly over, it is not an exercise for lobbing things into the long grass?
Lord Ashton of Hyde
My Lords, that is not an unexpected question. I can assure the noble Lord that we are not putting this into the long grass. He is absolutely right that there was a six-week evidence-gathering session. The evidence gathered has convinced us of the need to take action and reduce the maximum FOBT stakes. However, it is a complex issue and not about stakes alone. We are therefore publishing today a package of measures to address the concerns. We must strike the right balance between the socially responsible growth of the industry and the protection of consumers and the communities they live in. Our position is that the maximum stake should be between £50 and £2. We are consulting on that specific issue. This has to be done with due process to avoid any further problems which may come in the future with doing it in too rushed a manner.
Lord Clement-Jones (LD)
My Lords, Liberal Democrats have been calling for a £2 stake on these highly addictive machines, which have been a catalyst of problem gambling, social breakdown and serious crime in communities, for nearly a decade. We therefore give a qualified welcome to the review, but, rather like the noble Lord, Lord Griffiths, we are disappointed that a range of options rather than a firm recommendation is being given, and that we now have a 12-week consultation rather than action. Reducing the maximum stake to £50 would still mean that you could lose £750 in five minutes, or £300 if the stake was reduced to £20. I urge the Minister and his colleagues to resist Treasury pressure and move to take effective action by focusing on stake reduction to £2, which would put a clear and sensible limit on all high street machines. Can the Minister tell us what the role of the Gambling Commission has been and will be in the consultation? It has a duty to minimise gambling-related harm and protect children and the vulnerable. Will the Government act on that advice? Will the review examine the proliferation of betting shops on the high street and the self-referral or exclusion system, which is so ineffective? As well as reducing the maximum stake, will it look at limiting the spin rate? Finally, will the consultation address stakes in online equivalents to these games, such as blackjack?
Lord Ashton of Hyde
My Lords, the noble Lord makes a predictable comment about Treasury pressure, of which there was none. The decision on stakes will come from DCMS and not from the Treasury—although it will take into account fiscal implications, as it does for any government policy. The Gambling Commission is involved in the consultation because it is involved also in the other package of measures covered by it. The consultation is not just on the stakes but on other matters such as tougher licence conditions. The noble Lord referred to spin rates. What one can lose where higher stakes are concerned depends on the spin rate. I can confirm that that will be included in the consultation. I urge the noble Lord and the noble Lord, Lord Griffiths, to contribute to the consultation and make their views known.
The Lord Bishop of St Albans
My Lords, last year, there were more than 200,000 occasions when gamblers on FOBTs lost more than £1,000 at a single sitting. All other forms of gambling with stakes of more than £2 are restricted to premises such as casinos, which do not have open access and are not on the high street. Does the Minister agree that the only way to rectify the mistake of the 2005 Act and restore logic and order to the gambling regime is to support a £2 stake?
Lord Ashton of Hyde
As I just said, the stake is not the only thing that matters. That is why we are introducing a package of measures. The level of stake is important, obviously, and that is why we are committed to reducing it. But there are economic impacts that must be taken into account, depending on the level of stake that is chosen. The spin rates are important, as are the other measures which may deter people from gambling. I hope the right reverend Prelate will contribute to the consultation.
Lord Cormack (Con)
My Lords, does my noble friend accept that it is not just the noble Lord, Lord Griffiths—whom we are delighted to see on the Front Bench—the noble Lord, Lord Clement-Jones, and the right reverend Prelate who have misgivings about this? This is a very disappointing Statement. This is a social issue where we look to the Government to give firm guidance and leadership and not to pussyfoot around. It really is important that the moment this—what I consider unnecessary—period of consultation is over, we have firm action.
Lord Ashton of Hyde
I agree with the noble Lord that the Government should provide guidance and leadership. That is why we have said we believe that the stakes should be reduced. But we have also said—sensibly, I think—that these things have to be done in a proper way and if they are not done in a responsible and thoughtful way, according to the evidence, problems may ensue from that. This 12-week consultation is necessary.
Lord Richard (Lab)
My Lords, I confess I have almost totally lost the Government’s position on this. At one and the same time they say, “Yes, there is a problem. Yes, we have gathered the evidence. Yes, we know what the evidence is. Yes, it points unmistakably in the direction of doing something about this issue. Yes, we are convinced”—to use the Minister’s own word—“of the need to do something about it”, and what do we get? We get another consultation period. With great respect to the Minister, and indeed to the Government, merely saying something is appropriate does not make it appropriate. It does not make it right to have a consultation period just because the Government say it is. As far as I can see, there is absolutely no need for it. The Government have the evidence, they have the proposals—why on earth do they not do it?
Lord Ashton of Hyde
Because there is more to it than just the stake. As I said, there is an impact from the different levels of stake, and we have published an economic impact assessment today. The issue is the right balance between continuing a perfectly legal industry and social protection for consumers. That is why we have decided that the stake should be lowered. The 12-week consultation on this and the package of measures that goes with it will ensure that the decisions are made with due process.
Lord Porter of Spalding (Con)
Does the Minister agree that noble Lords are quite right to see this as being not FOBT but fobbed off? The stake is considerably too high, even if it is halved. It should not be possible for somebody to lose more than a week’s wages in a matter of moments. That money is lost to the local economy—it is being wasted—and we need to do something as quickly as possible to make sure that all the benefits of that money are spread across the whole community and not just into the bank accounts of a few businesses.
Lord Ashton of Hyde
My Lords, if you do it without the proper consideration and it is judicially reviewed, the result may be that you wait longer.
Lord Morrow (DUP)
My Lords, will the Minister give an assurance today that the review and report will include the areas where betting outlets are located? Many of them are located in areas of deprivation and cause great social harm, particularly among families.
Lord Ashton of Hyde
My Lords, I agree with the noble Lord. These outlets tend to be in areas of social deprivation. That was included in the review. It is not my area of expertise but I believe that local authorities have been given powers to restrict these outlets, especially new ones.
Data Protection Bill [HL]
Lord Ashton of Hyde ExcerptsMonday 30th October 2017
(8 years, 6 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, when I came into the Chamber, I had not the faintest intention of speaking in this debate. I do so, above all, for one reason: not because I am opposed to the amendment, although I am, very substantially, for the reasons given by the noble Lord, Lord Pannick. I do so because, in my experience, it is very unusual nowadays to vote at the outset of Committee stage on so fundamental a question as that raised by the amendment. It is surely yet more unusual—spectacularly so—to do so on a manuscript amendment filed this morning, which none of us has had sufficient time to deal with, on a very tricky area of the law, which so fundamentally alters the original amendment. As we have heard, that amendment was completely hopeless. The noble Lord, Lord Lester, described it as “constitutionally illiterate”. At least this one tries to introduce the concept of a balanced right which previously was missing.
It is true that I come from a different tradition where you do not vote on anything or decide anything unless you have heard the arguments. I rather gather that there may be a whipped vote on the other side, so the amendment is going to be voted on by noble Lords who have not heard the arguments of the noble Lords, Lord Pannick, Lord Faulks and Lord Lester, and who do not recognise the difficulties and the fundamental importance of this amendment. I seriously urge that it is not pressed to a Division today.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, I am grateful to all noble Lords who have spoken, many of whom do not appear to support these amendments. I particularly thank the lawyers in the House, who have instructed us on the legal position. I feel slightly like the lay person who was talked about, which I am, I hasten to add.
On a political view, it is important to remember that only three weeks ago at Second Reading it was clear that the Bill was widely supported across the House. Many noble Lords highlighted areas where further scrutiny and perhaps improvement were desired, but the House was unanimous in the view that data protection laws needed updating, that the general data protection regulation standards were the right standards, and that we must do everything to maintain future free flows of data. We shared those conclusions because we understand the role and value of data in our digital world and how it is the basis of delivering education, social mobility and economic advantage. That is why it is so sad that in this first group of amendments, on the first of seven days of Committee, for a Lords starter Bill, the opposition parties have threatened to suspend the usual business arrangements whereby we can debate in Committee, meet subsequently outside the Chamber and often come to agreement before the Bill leaves our House—an arrangement which does not prevent votes when they are needed, but which has worked well in the past. I urge noble Lords not to put this at risk. The Data Protection Act has stood the test of time because it was not a partisan piece of legislation, and we must not allow this Bill to become one.
Many noble Lords have said that these amendments are made in good faith to ensure that the UK is given a data protection adequacy agreement by our largest trading partner. This is the right ultimate objective, but it is the wrong route to get there. Contrary to the charge of the noble Lord, Lord Stevenson, we have not forgotten the importance of a free flow of data. In fact, ensuring we maintain a free flow of data is our number one priority, and we want to achieve that from the moment of Brexit, not wait to become a third country and then start the application process for adequacy. I direct those remarks especially to the noble Lord, Lord Clement-Jones. That is why last year we committed to ensuring that the UK adopts GDPR standards. That is why in August we published our plans and ambitions for the free flow of data once we leave the EU. That is why we have presented this House with this Bill: a Bill which builds a comprehensive regulatory system for personal data that covers everything that could be scrutinised in future adequacy negotiations, including areas which are not currently subject to EU jurisdiction. That answers the question of the noble Baroness, Lady Hamwee, on adequacy and the point made by the noble Lord, Lord Clement-Jones.
In the past, 12 countries have negotiated adequacy agreements with the EU Commission, including Canada, Israel, New Zealand and the USA. None of these was forced by the EU Commission to put the charter into their law in order to obtain adequacy. It is not a requirement and it is peculiar to suggest that it will be. It is a myth that we need this amendment to secure a future agreement. Why is that? The GDPR itself, which will become part of our law, says in Recital 4:
“This Regulation respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties, in particular the respect for private and family life, home and communications, the protection of personal data”.
Recital 173 says:
“This Regulation should apply to all matters concerning the protection of fundamental rights and freedoms vis-à-vis the processing of personal data”.
The noble Lord, Lord Stevenson, was reported over the weekend to be claiming that the Government were scaremongering. We were not. We were deadly serious about the risks, so I am delighted that the noble Lord has now recognised that Amendment 4 needs further thought. What a pity, therefore, that he was unable to discuss it with the Government.
I listened to the noble Baroness, Lady Ludford, who addressed the original Amendment 4. The problem, which I think has been alluded to, is that subsection (3) of the proposed new clause creates an absolute unqualified right to data protection. As attractive as that sounds, it is fatal, for two reasons. First, data protection is not an absolute right, as many noble Lords have said, and the GDPR says it explicitly, too:
“The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality”.
Secondly, both the GDPR and the Bill create a number of exemptions from data rights, which we will debate over the next few weeks. However, while we may disagree on some exemptions, I think that we all agree on the important ones. Terrorists must not be given unrestrained access to information held about them by the security services. Scientists must not usually be prevented from advancing research and furthering understanding. Therefore, the original Amendment 4 creates a risk at precisely the time we need reassurance.
However, Amendment 4A is a welcome improvement. We received this amendment just before noon today. Data protection is not the simplest area of our law, and at Second Reading many noble Lords commented on the complexity of the subject. It would be irresponsible of the Government to accept an amendment of this sort with just a few hours to consider it. What does it mean for future data flows and trade? How does it interlock with the rest of our legislation on information rights? What will the courts make of it?
At best, Amendment 4A is unnecessary or may not achieve what it seeks to achieve. Two particular problems with it were mentioned by the noble Lord, Lord Pannick. First, it has no value, and it only creates legal confusion. Secondly, subsection (4) of the proposed new clause is unwise. Rights often conflict; the Bill and the Human Rights Act manage those conflicts, while subsection (4) does not. At worst, as my noble friend Lord Faulks, outlined, it may have unintended consequences which nobody has been able to consider. Our initial analysis is similar to that given by the noble Lord, Lord Pannick, that Amendment 4A probably does very little. It does little other than summarise what the Bill does. The Bill protects personal data rights, and Amendment 4A reminds us of this. None the less, with so much at stake, we must give this amendment full and careful legal analysis.
The noble Lord, Lord Stevenson, has been placed in a difficult position. Labour is in a muddle over this. But that is exactly why we do not usually vote in Committee. This stage is for resolving muddles and for understanding the issues. It is not the stage for tabling amendments on the day and voting on them hours later, without even discussing it with the Government. I cannot see how this is a service to the House, which prides itself on careful reflection.
The noble Lord, Lord Stevenson, reminded us at Second Reading about the number of Bills that he and I have worked on together. He said that this was the sixth. I pay tribute to the careful, detailed—and sometimes even enjoyable—scrutiny he has given. We have had many useful meetings. Today is the first day in Committee and the first group of amendments on the Bill. We should continue with the positive spirit that we have built together, setting out our arguments and concerns. We can continue to meet outside the Chamber, and I and the Bill team are always happy to listen to and meet other interested noble Lords. On Report, we can reflect and, where we disagree, we can divide.
Therefore, I hope that noble Lords will see that now is not the time and these are not the amendments on which we should divide at this stage. They are unnecessary and they may be deficient. This Bill is essential for our social and economic future, and we risk wrecking it at the first hurdle. I therefore ask the noble Lord to withdraw the amendment.
Data Protection Bill [HL]
Lord Ashton of Hyde Excerpts(8 years, 6 months ago)
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Baroness Hamwee (LD)
My Lords, I am glad that the noble Lord, Lord Stevenson, has raised the question of the meaning of “broadly equivalent”. It encapsulates a difficulty I have found throughout the Bill: the language of the GDPR and of the law enforcement directive is more narrative and descriptive than language to which we are accustomed in UK legislation. Though one might say we should just apply a bit of common sense, that is not always the first thing to apply in interpreting UK legislation.
In this clause, there is another issue apart from the fact that “broadly equivalent” gives a lot of scope for variation. Although Clause 3 is an introduction to the part, if there are problems of interpretation later in Part 2, one might be tempted to go back to Clause 3 to find out what the part is about and be further misled or confused.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, I am grateful to noble Lords for their comments and the opportunity, I hope, to make things clearer. Amendment 5 seeks to make it clear that the applied GDPR does not apply to processing activities which fall outside the scope of EU law. Amendment 6 examines the differences between the GDPR and the applied GDPR. The applied GDPR exists to extend the GDPR standards for personal data processing to datasets outside the scope of EU law, which may be otherwise left unregulated. This is an essential extension because, first, we believe that all personal data should be protected, irrespective of EU legal competence; and, secondly, we need a complete data protection regulatory system to secure the future free flow of data.
Chapter 3 of Part 2 and Schedule 6 create the applied GDPR, which is close to, but not identical to, the GDPR. This is primarily because we have anglicised it as it sits within our domestic law, not European law. References to member states become references to the UK. As domestic regulation it is also outside the scope of the functions of the European Data Protection Board, so appropriate amendments are needed to reflect that. Otherwise the same general standards and exemptions apply to the applied GDPR as for the GDPR.
Lord Stevenson of Balmacara
Perhaps the Minister will respond to that because I, too, am troubled about the same point. If I am right, and I will read Hansard to make sure I am not misreading or mishearing what was said, the situation until such time as we leave through Brexit is covered by the GDPR. The extraterritorial—I cannot say it but you know what I am going to say—is still in place. Therefore, as suggested by the noble Lord, Lord Clement-Jones, a company operating out of a foreign country which was selling goods and services within the UK would have to have a representative, and that representative could be attached should there be a requirement to do so. It is strange that we are not doing that in the applied GDPR because, despite the great improvement that will come from better language, the issue is still the same. If there is someone that our laws cannot attack, there is obviously an issue. Perhaps the Minister would like to respond.
Lord Ashton of Hyde
Quite apart from the get-out that Clause 3 is only a signposting, I can confirm that we are not derogating from the GDPR. We intend to apply GDPR standards when we leave the EU, so we are not derogating from the GDPR on extraterritoriality.
Lord Stevenson of Balmacara
This concerns Amendment 115, which is to a substantial part of the Bill; it is not the issue raised by the amendment I introduced. We are talking about page 158, line 34. Perhaps it would be better if I requested a letter on this point so that—again, I cannot say the word—does not bog us down.
Lord Stevenson of Balmacara
Isn’t he so smooth? Unfortunately, I bet Hansard does not print that. However, extraterritoriality is important because it represents a diminution of the ability of those data subjects affected by actions taken by those bodies in terms of their future redress. It is important that we get that right and I would be grateful if the Minister could write to us on that.
I am satisfied with what the Minister said on Amendments 5 and 6. I am grateful and beg leave to withdraw the amendment.
Lord Kennedy of Southwark (Lab)
My Lords, I refer the Committee to my registered interests: I am on the board of two small charities in the London Borough of Southwark.
I recall from Second Reading the noble Lord, Lord Marlesford, who is not in his place today, talking about the effect of the legislation on small organisations—many others have made reference to it already. He referred to parish councils, which often employ just a part-time parish clerk. The noble Lord, Lord Arbuthnot of Edrom, spoke similarly about the effect on organisations. Both noble Lords had a point at Second Reading, as does the noble Baroness, Lady Neville-Rolfe, with her amendment today.
As we have heard, the amendment limits the scope of the Act to organisations employing more than five people and specifies for exemption organisations such as small businesses, charities and parish councils which meet the employment qualification of five employees or fewer. My noble friend Lord Knight of Weymouth made a valuable point about size and turnover—I think the noble Baroness accepted that in her intervention.
The amendment also makes the useful point that the exemption is not limited to these three specific groups but seeks to cast a wider net. I certainly want to hear from the Minister that community councils would be exempted, as well as the small not-for-profit sector and small co-operatives, which I am sure is the intention behind the amendment.
The amendment needs a detailed response, as we have to be clear on what the Government think is reasonable for such organisations to have to comply with and how the Government will make it as simple as possible and not pile additional burdens on them. I hope the Minister will not say that these organisations already have to comply with the 1998 Act and that this legislation is only a very small increase in what is required. We will require a lot more reassurance than that from the Minister.
Amendment 152, also in this group, would place a duty on the Information Commissioner to advise Parliament, government and other institutions and bodies on the likely consequences, economic or otherwise, for industry, charities and public authorities of measures relating to the protection of individuals’ rights and freedoms with regard to the processing of personal data. The noble Baroness again makes a valid point and there is merit to placing this duty in the Bill.
If the Minister thinks that Clause 113, and specifically Clause 113(3)(b), is sufficient to provide the Information Commissioner with the power and the duty to do what is set out in the amendment, we need him carefully to set that out today for the benefit of your Lordships’ House.
Amendments 169—and Amendment 170, which would add “and charities” to it—raises some very important issues. It would place a duty on the Secretary of State to ensure that they or the Information Commissioner had a programme in place to ensure that information on the new duties that businesses and charities will be obliged to follow is publicly available. Again, these are very important and welcome amendments. Large businesses, large corporations and large charities will more than likely have the structures in place to ensure that they comply with any new requirements, but smaller organisations do not have compliance departments or lawyers on retainer to advise them. The Government have to get that message out to them. I particularly like subsection (2) of the new clause proposed by Amendment 169, which would require this information to be placed online and the Secretary of State to have regard to the creation of online training and testing to meet the requirements of the new Act. This group of amendments raises important matters on which I hope the Minister can give the Committee some reassurance.
Lord Ashton of Hyde
My Lords, I am grateful to all noble Lords who have raised the amendments and commented on them, because the Government recognise the concern behind them; namely, to protect the smallest organisations from the additional requirements established by this and future data protection legislation and to ensure that all UK businesses and organisations are properly supported through the transition.
I fully concur with my noble friend Lady Neville-Rolfe that supporting UK businesses of all sizes must be a priority. I can assure her that it is of the utmost importance both for the Government and for the Information Commissioner. However, I cannot agree with the proposal in Amendment 7 that those organisations with five or fewer employees be exempted from the requirements of the Act. We are talking in this Bill not just about businesses but about individual rights of data subjects. As my noble friend Lord Lucas mentioned, it is right that individuals enjoy the protections that will be afforded by this new regime regardless of the size of the organisation with which they are dealing. People should not be afforded a lesser degree of protection simply because they have chosen to do business with, or indeed to voluntarily support, a small organisation. After all, the fact that an organisation employs few staff does not mean that a breach of data protection law will cause a correspondingly small amount of distress. Many of the most cutting-edge financial technology firms begin life in someone’s back bedroom, but it does not make their customers’ transaction history any less worthy of protection.
Amendment 7 is unlikely to have the intended effect because the GDPR does not permit such an exemption. As an area in which our ongoing relationship with the European Union will be of the utmost importance, I do not consider that such an amendment would be in the best interests of British businesses.
However, I understand my noble friend’s concerns that the smallest organisations may be the least well equipped to deal with the changes introduced by this regime. I was therefore pleased to learn recently—the noble Lord, Lord Clement-Jones, mentioned this—that the Information Commissioner has announced the establishment of a dedicated telephone advice service for small and micro businesses to support them in implementation. The noble Lord also mentioned that the threshold was 250 employees, which represents quite a large organisation by today’s terms, with small businesses, especially in the tech field, growing up all over the place.
In respect of Amendment 152, I fully concur with my noble friend about the importance of monitoring the consequences of the Act for businesses and other organisations. I reassure her that there is already, quite rightly, a broad obligation on government to assess and report on the impact of all legislation that regulates business under the Small Business, Enterprise and Employment Act 2015. In addition, the Information Commissioner will be required to advise Parliament, government and other bodies on both legislative and administrative measures relating to the new Act and to provide opinions on any issue relating to the protection of personal data. My noble friend Lady Neville-Rolfe also asked about the impact on business. I confirm that the Government will publish a further assessment of the impact of the Bill on business very shortly.
With regard to Amendment 169, it is worth reiterating that the Information Commissioner has already provided general guidance, which is available online to all businesses, to help them understand their obligations. The commissioner is continuing to develop this guidance and has a programme in place for publication. I cannot go through it all but, in addition to the guidance the ICO has already published, it expects to develop this further between now and May into a fully comprehensive guide to the GDPR, including summaries and checklists, as well as more detailed content focused on key areas. This will also be available online from early next year. Later this year, the Information Commissioner will publish draft guidance on children’s data; on accountability, including documentation; on legitimate interests, including examples addressing universities maintaining alumni relationships; and draft guidance on security of processing, including joint work on high-level security principles. It will also provide sector-specific guidance. The Government are working with the Information Commissioner to identify appropriate areas and to work with sectors to deliver more guidance.
In respect of timing, I completely agree with my noble friend that it is desirable that up-to-date guidance about the new regime is available to businesses as soon as possible. As I have just set out, that is precisely what the commissioner is already attempting. But I fear that it may not be feasible, as the amendment requires, for final information to be published at least six months before the commencement of the provisions in the Act, not least because changes to the Bill may affect that guidance.
In respect of Amendment 170, I share the sentiment of the noble Lord, Lord Clement-Jones, in wishing to ensure that charities are provided with guidance to help them understand their obligations. I reassure him that the general guidance that the Information Commissioner has already published is designed to assist all organisations through the transition.
The noble Lord, Lord Knight, asked how the role of the Information Commissioner will develop and be resourced. My noble friend Lady Williams said at Second Reading that the Government take the adequate resourcing of the Information Commissioner very seriously and have provided for an appropriate charging regime in Part 5 of the Bill. I assure the noble Lord that we are aware that there are problems with the Information Commissioner at the moment and we are looking at that. But, possibly for the reasons that he mentioned, I am not able to make any binding commitments tonight. But I accept that there is an issue there. We are looking at it.
I assure noble Lords that the Government share the concerns raised in these amendments and are particularly pleased that the Information Commissioner is actively taking steps to provide dedicated support for small and micro enterprises, including the telephone service I mentioned earlier. With that in mind, I hope my noble friend feels able to withdraw her amendment.
Lord Kennedy of Southwark
The Minister mentioned guidance a few times and said that it might not be ready in time. I was reminded of our debates—which he was not involved in—on the Housing and Planning Bill. We were told about guidance and regulations, and well over a year later we have seen next to nothing. This is such an important issue that we need to hear a little more from the Minister. I and many other noble Lords mentioned parish councils. I do not think he mentioned those. For example, I know the Deeping St James Parish Council in Lincolnshire very well. It employs only a part-time clerk. I think the noble Lord, Lord Marlesford, made a similar point about parish councils at Second Reading. Perhaps the Minister could say something about that.
Lord Ashton of Hyde
Yes, I think my noble friend mentioned the parish council of the noble Lord, Lord Marlesford, in her reply. I make the point again that individuals’ data rights have to be protected. Just because parish councils are small organisations does not mean that they should not take that seriously—and I am sure they do. With regard to the practicalities of how they cope with their duties, apart from the fact that the Information Commissioner is providing guidance specifically for small organisations, the parish clerk—who already often works for more than one parish council so they can share the cost—is in a good position to deal with the duties under the Bill and will be able to take the guidance relating specifically to small businesses and organisations from the Information Commissioner.
I admit that I did not follow the Housing and Planning Bill too closely. But I mentioned a lot of the guidance that will be available before the end of the year. The Information Commissioner is very aware of the need to produce this quickly. In addition, of course, she is actively involved in outlining the European guidance on which a lot of member states’ guidance will be based. Therefore, she is helping to set the tone on which her future guidance will be based.
Lord Kennedy of Southwark
That is fine as far it goes. The point I am making is that we have heard guidance mentioned two or three times, in relation to two or three different organisations. I know that the Minister was not involved but we heard the same comments about guidance and regulations from the Government Front Bench when we were dealing with the Housing and Planning Bill. I hope we are not having déjà vu here. We hear these things are coming forward. These things are very important. I accept entirely that people’s data are important—of course they are—but, equally, getting this guidance right is important, as is organisations being able to have the information so that they ensure that they comply with the law. I hope the Minister can take back how important this is. He said it will all be after Report, at the end of the year. The Bill will have long left this House and we will be saying, “Where is this guidance then? You promised it and nothing has arrived”. It really is not good enough for the individual data subject or for business or for anyone else involved.
Lord Ashton of Hyde
I agree with the noble Lord that, if nothing did arrive, it would not be good enough.
Baroness Neville-Rolfe
My Lords, I was slightly disappointed when all my amendments were grouped, but bringing them together has led to an extremely useful and productive debate. I am very grateful to noble Lords right across the Committee for their support. I am also grateful to the Minister for saying that he will let us have a compliance cost assessment, which I will read with the detail and vigour that it merits, and for some of the other points he made.
I am a little disappointed about how we achieve some de minimis relief for the smaller organisations in these various sectors, including the ones mentioned by the noble Lord, Lord Kennedy, as well as on guidance—I am not sure we are quite there. We need to think a little further. I gave the Minister an example of the difficulties that the data analytics sector had had on consent. It would be good if he could look at that point and perhaps arrange for a meeting so that we could talk further. I will look in Hansard at the progress we have made in this very constructive discussion and possibly come back on Report on one or two points. I beg leave to withdraw the amendment.
Lord Patel (CB)
My Lords, I speak to Amendments 11 and 13, in the name of the noble Lord, Lord Clement-Jones, and Amendment 154, in the name of the noble Lord, Lord Stevenson of Balmacara, and to which I have added my name in support.
When I first read the amendments tabled by the noble Lord, Lord Clement-Jones, I was concerned because I thought them quite restrictive. Now that he has spoken to them, I can see that he intended them to be wider, so I apologise to him that I did not have the opportunity to speak with him beforehand, so that I would have had that clarification. None the less, having said that, I am concerned that the amendment would restrict the interpretation of,
“a task carried out in the public interest”,
and a narrow list is set out in Clause 7(a) to (d). That is a major concern for universities and other institutions involved in research.
It is absolutely important that universities and other public bodies that carry out research functions are able to use,
“task carried out in the public interest”,
as a legal basis for processing personal data. Restricting this clause to apply only to those functions listed in paragraphs (a) to (d) would instantly make all processing of personal data carried out for research purposes with a university illegal. That is unless it could meet the stringent requirements of GDPR-compliant consent, which I will speak to on an amendment in the group that follows.
None the less, providing further clarity through regulations would ensure that “public interest” was not used as a catch-all for public bodies, negating the incentive to restrict the definition in the Bill in the way proposed by this amendment. I have no doubt that we will have a discussion and that the amendment is not intended to be so restrictive. I look forward to the Minister’s summing up.
I support Amendment 154 in the name of the noble Lord, Lord Stevenson of Balmacara. However, under the GDPR, all users and controllers of data will need to be much clearer about the legal basis that they use to process personal data, and more explicit with data subjects about what is happening to data about them. However, this shift is also likely to generate a certain amount of confusion among researchers who process personal data as part of their studies.
An enormous amount of research using personal data is carried out by universities, which constitute public bodies. As it stands, the Bill defines “public interest” in quite a narrow way—and I shall come to that in more detail when I deal with a group of amendments in my name. But “public interest” is an underspecified notion that could be interpreted in many ways, in the absence of authoritative guidance—and it is that absence that the amendment under the name of the noble Lord, Lord Stevenson of Balmacara, deals with. Placing the requirement to produce codes of practice in the Bill will ensure that it is an undertaking that receives the urgent attention that it demands, and I support it for that reason.
Lord Ashton of Hyde
My Lords, this is a rather unusual occasion, in that normally noble Lords say that they are going to read very carefully what the Minister has said in Hansard. In this case, I am certainly going to have to read carefully what the noble Lord, Lord Clement-Jones, said, in Hansard. This is a complicated matter and I thought that I was following it and then thought that I did not—and then I thought that I did again. I shall set out what I think should be the answer to his remarks, but when we have both read Hansard we may have to get together again before Report on this matter.
I am glad that we have this opportunity to set out the approach taken in the Bill to processing that is in the public interests and the substantial public interests. Both terms are not new; they appeared before 1998, as the noble Lord, Lord Stevenson, said, in the 1995 data protection directive, in the same sense as they are used in the GDPR and the Bill. That is to say, “substantial public interest” is one of the bases for the processing of special categories of personal data, and this is a stricter test than the public interest test that applies in connection with the processing of all categories of personal data. The noble Lord, Lord Clement-Jones, was wrong to suggest that the list provided in the 1998 Act in relation to public interest was genuinely exhaustive, I think. As he said himself, the effect of paragraph 5(d) of Schedule 2 was to make that list non-exhaustive.
In keeping with the approach taken under the 1998 Act, the Government have not limited the public interest general processing condition. The list in Clause 7 is therefore non-exhaustive. This is intentional, and enables organisations which undertake legitimate public interest tasks to continue to process general data. Noble Lords may recall that the Government committed after Second Reading to update the Explanatory Notes to provide reassurance that Clause 7 should be interpreted broadly. Universities, museums and many other organisations carrying out important work for the benefit of society all rely on this processing condition. For much the same reason, “public interest” has not historically been defined in statute, recognising that the public interest will change over time and according to the circumstances of each situation. This flexibility is important, and I would not wish to start down the slippery slope of attempting to define it further.
The Government have, however, chosen to set out in Part 2 of Schedule 1 an exhaustive list of types of processing which they consider constitute, or could constitute, processing in the substantial public interest. That reflects the increased risks for data subjects when their sensitive personal data is processed. Again, this approach replicates that taken in the 1998 Act. Where the Government consider that processing meeting a condition in that part will sometimes, but not necessarily, meet the substantial public interest test, a sub-condition to that effect is included. This ensures that the exemption remains targeted on those processing activities in the substantial public interest. A similar approach was taken in secondary legislation made under the 1998 Act. The Government intend to keep Part 2 of Schedule 1 under review, and have proposed a regulation-making power in Clause 9 that would allow Schedule 1 to be updated or refined in a timelier manner than would be the case if primary legislation were required. We will of course return to that issue in a later group.
Amendment 15 seeks to make clear that the public interest test referred to in Clause 7 is not restricted by the substantial public interest test referred to in Part 2 of Schedule 1. Having described the purposes of both these elements of the Bill, I hope that noble Lords can see that these are two separate tests. The different wording used would mean that these would be interpreted as different tests, and there is no need to amend the Bill to clarify that further.
Amendment 154 would require the Information Commissioner to develop a code of practice in relation to the processing of personal data in the public interest and substantial public interest. As we have already touched on, the Information Commissioner is developing relevant guidance to support the implementation of the new data protection framework. Should there later prove a need to formalise this guidance as a code of practice, Clause 124 provides the Secretary of State with the power to direct the Information Commissioner to make such a code. There is no need to make further provision.
I hope that that explanation satisfies noble Lords for tonight, and I urge the noble Lord to withdraw his amendment. However, in this complicated matter, I am certainly prepared to meet noble Lords to discuss this further, if they so require.
Lord Clement-Jones
My Lords, I thank the Minister for that very helpful exposition. I shall return the compliment and read his contribution in Hansard with great care. I apologise to the noble Lord, Lord Kennedy, if the Bill has already had a befuddling influence on me. It comes from looking along the Labour Benches too much in profile.
With this amendment, I feel somewhat caught between the noble Lord, Lord Patel, and a very hard place. Clearly, he wants flexibility in a public interest test, and I can well understand that. But there are issues to which we shall need to return. The idea of a specific code seems the way forward; the way forward is not by granting overmighty powers to the Government to change the definitions according to the circumstances. I think that that was the phrase that the Minister used—they wish to have that flexibility so that the public interest test could be varied according to circumstances. If there is a power to change, it has to be pretty circumscribed. Obviously, we will come back to that in a later group. In the meantime, I beg leave to withdraw the amendment.
Data Protection Bill [HL]
Lord Ashton of Hyde ExcerptsMonday 30th October 2017
(8 years, 6 months ago)
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Lord Stevenson of Balmacara
It might have been. The noble Lord has exposed a much greater issue than we thought we were grappling with. The case has now been well made that there are four pillars rather than the three that I adumbrated before. We seem to have a case for special treatment. I am sure that the noble Lord, Lord Patel, with his assiduous workload and high work rate will have made this point several times to officials and Ministers. However, if he is not getting the answers he needs, we have a bit of a problem here, so I hope that the Minister will be able to help us on that.
This goes back to an earlier debate about the public interest. It again worries me—I think the noble Lord, Lord Clement-Jones, touched on this—that “public interest” is becoming an overworked term for rather too many issues. In other words, the argument here is not about the public interest at all; it is about the public good that would come from a differential approach, safeguarded by the ethics approach—I said that was new to me and I am grateful to hear about it—and about reinforcing the contribution that would make to an industrial strategy covering a much broader range of understanding about what we are doing, thus making this country a world centre for all that. So there is a power behind this that I had not appreciated and I am grateful to the noble Lord for explaining it. It is easy to analyse it in this way and come up with the answer that he might want, but is it the right way forward on this?
The noble Lord was wise to point out that there are constraints within the GDPR and limits on what the Government can do, but it must be possible to think more creatively about the problem that has come forward. If, as the noble Lord said, the GDPR opens up the question of not requiring consent in that very formal sense, and we are looking for an evidence-led policy initiative which addresses the public good, it behoves Ministers to think very carefully about how one might take it forward.
This may or may not be the only issue that requires this sort of approach, but the case has been made on its merits that more needs to be done. Listing existing bodies that are not included, to put it in the positive, in a list of issues—for example, the administration of justice is a function of the Houses of Parliament—is not the way into this issue. I appeal to the Minister to think creatively about this because it seems to me that we need a new approach here. I am very convinced by that and look forward to hearing what the Minister says.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, first, I thank the noble Lord, Lord Patel, for his insightful remarks and for providing us with evidence of his knowledge of this subject, and of the Bill’s potential implications for pioneering medical research. I am grateful to him for sharing his expertise on these issues. I am also grateful to the noble Baroness, Lady Manningham-Buller, who speaks on behalf of the Wellcome Trust. Other reputable medical research organisations and universities have also expressed concern about this issue. I understand about the issue of consent and whether it is GDPR-compliant.
On the concerns the noble Lord raised in relation to Clause 7, I mentioned at Second Reading, and on a previous group of amendments, that the list of tasks in Clause 7 is deliberately designed to be indicative and non-exhaustive. When I wrote to noble Lords after that debate, I committed to make this clearer in the Explanatory Notes and the Government will honour that commitment.
The noble Lord, Lord Stevenson, mentioned that we might have to have a new approach to this problem. We are happy to think about these issues. At the moment we find that it is difficult to expand Clause 7 to cover every scenario where personal data has been processed in the public interest. Each addition to the list, however justified on its own merits, would cast greater uncertainty on the public interest tasks that continue to be omitted. However, I can reassure universities and research groups carrying out legitimate medical research, that, in the Government’s view, such tasks are in the public interest for these purposes. I will come later to how we take this forward.
Lord Clement-Jones
My Lords, the Minister gave the impression that medical research of the type described by the noble Lord, Lord Patel, was encompassed, or allowable, by the GDPR. Can he give chapter and verse on where in the mixture of article 6 and article 9 that occurs? That would be extremely helpful. I understand that obviously the Minister was also agreeing to look further in case those articles did not cover the situation, but it would be good to know which articles he is referring to.
Lord Ashton of Hyde
I re-emphasise to the noble Lord that we think these tasks are in the public interest. However, I understand his desire for even more clarity than that. It would be sensible if I wrote to him and to other noble Lords taking part in the debate. I want to make sure that I get the legal basis right rather than just doing it on the hoof, so I agree to write to him and to all noble Lords who have spoken tonight. Again, as I say, we will work towards what I hope will be a more acceptable solution for everyone. Fundamentally, we do not want to impede medical research that is for the public good.
Baroness Manningham-Buller
May I correct an impression that medical research does not seek consent? It seeks consent whenever possible, and extensively. However, there are categories where something else is needed. I would not want to leave the House with the impression that there is a substitute for that. In some circumstances we need an additional safeguard.
Lord Ashton of Hyde
I believe also that even when consent is obtained, the worry is that it may not be subject to GDPR compliance, even if consent was acceptable before.
Lord Stevenson of Balmacara
I think we have already made the point and we do not need to come back to it. What I took from the noble Lord’s earlier contribution was that one way in which medical research is developed and carried out involves a consent process, and we would not want to change anything in that sense. However, for lots of reasons—the noble Lord gave three or four—you cannot always use consent. You may not want to go to the patient, or perhaps you cannot go to or find the patient. Alternatively, the noble Lord made the more general point that you often collect data without any real sense of where it might go in the future. We are not saying that any of that is good, bad or indifferent—one is no better than the other—but they all need to be considered in a broader understanding of the public good being best served by having the least restrictive system concomitant with appropriate procedures being in place. That is the line, with the ethics committee sitting at the top, that gets you to the point where that would be a fruitful conversation to have with Ministers.
Lord McNally (LD)
My Lords, I associate myself with the amendment in the name of the noble Baroness, Lady Howe. We are in Committee and it is a probing amendment. When we discussed it with colleagues the feeling was that 13 might be the right age but, as the noble Baroness indicated, it needs probing and some thinking about.
There is a danger, particularly in a House with our age group, that we assume these technologies are understood by the young—even the very young. We all hear anecdotes of parents or grandparents who have to consult their eight year-olds on how to make various gadgets work, but that misses the point. A frightening amount of information is being freely given. I mentioned at Second Reading that my generation and my parents’ generation had thoughts of personal privacy that my daughter and her contemporaries seem to have no thought of. They are very happy to exchange information about themselves, what they do and where they are with gay abandon.
When we get to the very young it is very important to make sure—we will discuss this in later amendments, if not tonight—that there is sufficient understanding and information to make informed choices, otherwise we get into very dangerous territory indeed. Therefore we are, not for the first time, in the noble Baroness’s debt for raising these questions. Late as it is, it is right that we put on record that these things, along with the amendments that will follow in the next couple of groupings, need to be taken as a whole before we make a final judgment as to the right age.
Lord Ashton of Hyde
My Lords, I echo the comments of the noble Lord, Lord McNally, to say we are grateful to the noble Baroness, Lady Howe. I acknowledge, particularly after her Second Reading speech, that she has not immediately demanded that the age be put back up to 16, which I thought she might. She has produced an interesting amendment.
Amendment 16 would give the Information Commissioner the power to determine the age threshold at which children can consent to their data being processed by online information services. This would be based on consultation and evidence. While it is certainly a preferable proposal to a blanket increase to 16, I am afraid I still cannot agree.
First, the Information Commissioner’s role as an independent regulatory authority is to administer and enforce the application of data protection legislation. As part of that role the Commissioner provides advice to businesses, organisations and individuals on the proper implementation of the legislation and on their rights under that legislation, and provides redress for breaches of individuals’ personal data. It also has an advisory function in relation to Parliament, the Government and other institutions. By contrast, the question of affixing the age below which parental consent is required has much broader-ranging considerations and implications, including an important moral dimension. Requiring the Information Commissioner to be the one to answer it would place on the officeholder an extra demand for which the office is neither designed nor resourced.
Secondly, the GDPR specifies that it is member states that should make this important decision. It does not give the power for states to delegate this choice to another regulatory body. Therefore, this amendment would make the Bill as a whole non-compliant with the GDPR. It is for those reasons that the Government consider that the question should be decided by this House and the other place rather than by a regulatory body. I realise that, in saying that, we leave ourselves open to further discussions on this matter.
Data Protection Bill [HL]
Lord Ashton of Hyde Excerpts(8 years, 6 months ago)
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Lord Ashton of Hyde
That it be an instruction to the Committee of the Whole House to which the Data Protection Bill [HL] has been committed that they consider the bill in the following order:
Clauses 1 to 9, Schedule 1, Clauses 10 to 14, Schedules 2 to 4, Clauses 15 and 16, Schedule 5, Clauses 17 to 20, Schedule 6, Clauses 21 to 28, Schedule 7, Clauses 29 to 33, Schedule 8, Clauses 34 to 84, Schedules 9 and 10, Clauses 85 to 110, Schedule 11, Clauses 111 and 112, Schedule 12, Clauses 113 and 114, Schedule 13, Clauses 115 and 116, Schedule 14, Clauses 117 to 147, Schedule 15, Clause 148, Schedule 16, Clauses 149 to 171, Schedule 17, Clauses 172 to 190, Schedule 18, Clauses 191 to 194, Title.