Data Protection Bill [HL]

Lord Griffiths of Burry Port Excerpts

Committee: 5th sitting (Hansard): House of Lords
Monday 20th November 2017 Lords Chamber

[Lord Griffiths of Burry Port (Lab)]

My Lords, it is an extraordinary list of amendments that address things in great detail; they are all about tidying up and working things out as we go along. Since that is what we try to do as often as we can, it is nice to see the effort that has been made and hours that have been spent. Much of it is logical and needs no further discussion, but we have in respect of amendments in the range of Amendment 171, and so on, a bit of a worry about the notion that personal data is processed for special purposes—journalism, academic, artistic or literary purposes—and that there are exemptions in place so that the commissioner must first determine whether processing is for a special purpose before taking further enforcement action.

We have always understood that the provisions at this point are only asking in this Bill to replicate the conditions obtaining in such cases in the 1998 legislation. This particular detail makes it seem as if that might not be the case, because we have submissions from various people in the media to suggest that, while they understand the regulations, to step in before the material is put together to make this determination feels a bit threatening. Can the Minister guarantee that the provisions in this Bill are identical with those in the 1998 Act?

There is not an adequate mention, again, according to people in the field, of the relation of photography and photojournalism to written journalism. Could that be thought about, too? If everything is the same, we have no further questions but, if not, could the Minister tell us exactly what the differences are and whether she can write to us so that we may know what they are?

[Baroness Chisholm of Owlpen]

As the noble Lord said, this particular group of amendments is where personal data is processed for special purposes for journalism, academic, artistic or literary purposes. There are certain exemptions in place, so the commissioner must first determine whether processing is for special purposes before taking further enforcement action. A special purposes determination can be appealed to a court, not a tribunal; these amendments correct the Bill as only a court, not tribunals, are relevant. They also make technical corrections to ensure compatibility with Scots law. The definition of special purposes proceedings is also widened slightly so that special purposes can be asserted in a wider range of situations.

I think that I have inspiration coming from my right hand side. The noble Lord mentioned photojournalism, which is included in the data—I think that that is what he meant.

[Lord Griffiths of Burry Port]

I sympathise with the Minister, who sought inspiration from behind, because it is what I do all the time. Those who have expressed anxiety to us are worried that pressure will be put on them as programme makers and investigative journalists prior to publication and issuing their material in edited form, whereas currently they are subject to the regulation once that material has been put together. That is the area where anxieties have been expressed, and we need some reassurance on that point.

[Baroness Chisholm of Owlpen]

The best thing that I can do is to have a look and get back to the noble Lord on those points, if that is okay.

Data Protection Bill [HL]

Lord Griffiths of Burry Port Excerpts

Monday 13th November 2017 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, these amendments, in my name and those of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Arbuthnot, may not be the most difficult or most significant that we will come to, but they are important and they deal with an issue brought to us by the Bar Council. I am aware that members of the Bar Council met officials and I believe that some of the matters throughout the Bill that they discussed were left with officials to consider—and, no doubt, with the Bar Council as well. I am not aware that this matter has been settled. The amendment would remove the paragraph from Part 3 of this schedule and put it in Part 2 and would extend the exemption recognising practicalities. Briefly, the issue is the term “legal claims”.

The Bar Council makes the point that this phrase does not adequately describe all the work that lawyers and all parts of the profession undertake on behalf of their clients. There is a risk, therefore, that legal professionals will not be able to process special categories of personal data when undertaking legal advice relating to prosecutions, defences to prosecutions and criminal appeals, family and child protection proceedings and so on, or—noble Lords may think that this should not come within this category—legal advice relating to tax or a proposed transaction. The Bar Council is rightly concerned, of course, to ensure that legal professionals can process such data when undertaking activity which is squarely within the scope of its normal work but beyond what might be described by the narrow term, “legal claims”. The amendment includes wording which is about to be put to the Committee in the form of government amendments which have already been debated and brings the matter of the legal activity listed in the new clause and the government amendments into Part 2 of Schedule 1. I beg to move.

[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.

Data Protection Bill [HL]

Lord Griffiths of Burry Port Excerpts

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

[Lord Griffiths of Burry Port (Lab)]

My Lords, we have amendments in this group. Amendment 79A concerns exemptions from GDPR and adaptations and restrictions based on various articles. As we begin to tighten up our understanding and clarify the range of application of these exemptions as the Bill goes through this House, we have talked to Liberty about the rights of individuals under this part of the Bill. Amendment 79A seeks to remove the exemption from data subjects’ right to restrict the processing of their data—for example, in cases where data accuracy is contested, the processing is unlawful or the data is required for the exercise of a legal claim in relation to a variety of broad purposes including the prevention and detection of crime, tax purposes, risk assessment systems, including in the administering of housing benefit, and the maintenance of effective immigration control.

Amendment 79B is a similar and parallel amendment to remove the exemption from data subjects’ right to object to data processing where there is an absence of compelling legitimate grounds, again in relation to the same range of activities and purposes. Amendment 83B is a probing amendment by which we seek to delete a paragraph which outlines where the GDPR does not apply to personal data processed for the purposes of functions designed to protect the public. Instanced against this are, for example,

“financial loss due to dishonesty … financial loss due to the conduct of discharged or undischarged bankrupts”,

and so on.

A set of amendments then come under Part 3 of this schedule on the protection of the rights of others. Amendment 86A deletes conditions under which a controller can determine whether it is reasonable to disclose information without consent. Amendment 86B probes provisions which state that information can be disclosed without consent where,

“the health data test is met … the social work data test is met, or … the education data test”.

When we get into some of these it seems, frankly, that they are rather loosely drafted and not immediately clear. Perhaps we could work harder to bring these things to a pitch where they are common sense and clear to normally intelligent people—although after the presentation from the noble Lord, Lord Pannick, I do not reach that bar; I am doing my best. Amendment 86C deletes the paragraph which outlines conditions by which the GDPR does not apply,

“to personal data processed for the purposes of or in connection with a corporate finance service provided by a relevant person”.

Even reading the wording of an amendment which we have put some thought into is complicated, and these amendments refer to clauses in the Bill that are even more complicated. Since these affect the rights of individuals, the law should be written with some clarity and lucidity to make it more accessible.

Amendment 86D deletes a paragraph which states that the GDPR provisions do not apply where data is processed for,

“management forecasting or management planning in relation to a business or other activity”.

I have to spit the word “data” out of my mouth when it is used with a singular verb. All my education taught me that it should not be.

Data Protection Bill [HL]

Lord Griffiths of Burry Port Excerpts

Monday 6th November 2017 Lords Chamber

[Lord Griffiths of Burry Port (Lab)]

My Lords, it falls to me to speak to a sequence of amendments from Amendment 35 to Amendment 68. Whereas we have had complicated issues before us in previous discussions on the Bill, most of these are probing and of a much simpler substance. I will proceed with them as best I may.

Amendment 35 is to paragraph 5(1), which states that a condition for substantial public interest is met only when the processing is carried out by the controller, who has,

“an appropriate policy document in place”.

The amendment we propose seems sensible and simple, which is that the policy document should be,

“made available to the data subject without charge”.

We repeat that in Amendment 68 to Part 4 of Schedule 1, where there is discussion of an “appropriate” document.

Amendment 37 probes the protected characteristics of the Equality Act. Whereas in the Bill just a few are mentioned, our amendment asks why all those included in the Equality Act are not in that list. In the amendment we can see the proposed extra categories that would be placed there to complete that list. Once again it seems sensible, having started on that track, to complete that process.

We come next to preventing or detecting unlawful acts. Amendment 38 asks about “a serious” test. We have had conversations with Reuters and a number of amendments are consequent on some of the observations we made in that conversation. Thus with Amendment 39 we would ask the information commissioning officer to clarify that processing must be carried out without the consent of a data subject where,

“a data subject is unlikely to give consent”,

for example to frustrate prevention or detection, where it would involve disproportionate effort to achieve consent or where the nature of the processing means that withdrawal of consent would prejudice prevention or detection of unlawful acts. That probes the extent to which these matters might apply.

Amendment 40 is again a probing amendment on the question of dishonesty, under the heading:

“Protecting the public against dishonesty”.


Perhaps we need to work out how better to define dishonesty. We all know what telling a lie is, but in the days of fake news we can perhaps have different or varying views on this. Perhaps it needs to be tied down a bit more closely.

Amendment 41 refers to protecting members of the public. It is unclear in the schedule whether this extends to protecting businesses from doing business with other businesses that would cause them severe reputational harm because, for example, they engage in modern slavery, bribery or whatever. It might be good to frame the law so it is clear that it involves businesses and members of the public. To skip an amendment for the moment, that ties in with Amendment 44. Paragraph 12 does not expressly allow screening by private companies for the purpose of checking against non-UK terrorist financing or money-laundering laws. Nor does it allow screening to be undertaken to comply with widely recognised guidelines such as those promulgated by the Financial Action Task Force, in which the United Kingdom Government participate. It seems sensible to include that screening in the Bill. The amendment seeks to achieve that.

Amendment 43 is to paragraph 12, which says that the condition of expressing a public interest is met,

“if the processing is necessary for the purposes of making a disclosure in good faith”,

under sections of the Terrorism Act and the Proceeds of Crime Act. Again, it would be nice to tie some of that down with further clarification. That might help us all. Amendment 45 asks about counselling.

That is the rather interesting daisy chain of amendments it falls to me to present. Since this is, for me, a maiden speech on a piece of legislation, nobody would expect it to be contentious, disputational or controversial. In that sense, I offer it for the consideration of the Committee.

[Baroness Neville-Jones (Con)]

My Lords, I will speak to Amendment 45A in my name. I am advised my Amendment 64 is not in the right place, so I direct the Committee’s attention to Amendment 45A.

Last Monday there was considerable focus in our discussions on the vital need to ensure that legitimate research—especially medical research in the public interest based on the personal data of patients—was not impeded by the terms of this legislation by requiring re-consents that might well be unobtainable. The noble Lord, Lord Patel, spelled out the arguments with great cogency and I do not need to repeat them.

My amendment seeks to ensure that another category of medical activity is not prevented from continuing to give help. I refer to patient support groups. At Second Reading I spoke about Unique, a not-for-profit charity that enables research into, and offers support to, sufferers of rare chromosome disorders and their families. These disorders can and often do result in severe and even profound lifelong disability for which there is no cure.

Since I spoke, many other patient support organisations have been in touch with the same concerns. They support my amendment. They include Genetic Alliance, which comprises 190 organisations giving support to individuals with rare or incurable conditions, such as the Down’s Syndrome Association; the MPS Society, which supports individuals suffering from mucopolysaccharide disease; Alström Syndrome UK; Prader-Willi Syndrome Association; the MND Association for motor neurone disease; Action Duchenne, which supports those suffering from muscular dystrophy; Save Babies Through Screening Foundation, which focuses on infants with Krabbe disease; the Lily Foundation, which supports those with mitochondrial disease; the PCD Family Support Group, for primary ciliary dyskinesia; UKPIPS, Primary Immune-deficiency Patient Support; SMA Support for spinal muscular atrophy; Vasculitis UK; and Annabelle’s Challenge.

All these groups support the amendment I tabled. I could go on; there are others. I have listed them because I do not want it thought that there is in my amendment any suggestion of special pleading for a very small number of organisations. On the contrary, patient support groups are numerous and do unsung but irreplaceable work among individuals and families for whom life can be very hard.

What is the problem with the Bill? Schedule 1 lists a number of circumstances in which the special category of sensitive personal data can be processed without explicit consent for reasons of public interest. But patient support groups do not fall into the categories of organisations that can avail them themselves of this exemption, nor do the purposes for which they collect personal data qualify. This means that the Bill will oblige patient support groups which collect health information from their members either to re-contact everyone from their database to get renewed explicit consent, or to destroy or anonymise any data not re-consented.

On the face of it, this may seem perfectly reasonable, but it takes no account of the real-life situation of the individuals and their families which the patient support groups help. I explained at Second Reading how in reality carers, who may be the other side of the world, may not respond to communications but then, possibly years later, communicate to ask for help or get in touch to help each other. It is certainly wasteful and gratuitously harmful to require such data to be destroyed when it is the very basis on which these groups can offer relevant support. In the case of Unique, experience suggests that up to 50% of existing data would need to be destroyed, having been accumulated over 30 years, and thus lost for current and future research and sufferers. I am sure this cannot be the intended outcome of the Bill.

Anonymisation, which in some circumstances might be an acceptable answer, does not provide a solution in the case of support groups. Matching disease types enables support groups to give informed prognoses to the families of sufferers and to their clinicians, who individually may not have met such a rare condition before. They help with practical advice and put sufferers and their families in touch with each other, thus improving their prospects and relieving distress and loneliness. But to do this, they need access to names and addresses and special-category data of their members, because anonymous data are of absolutely no use in this context.

Medical research would also be the loser as the Bill stands. To take one example, the MND Association, the motor neurone support group, has more than 3,000 blood samples in its collection, cell lines and accompanying clinical information. This database has been and is used in a variety of research projects to look at potential causative genes. Samples will also be used to screen potential drugs. To all this, the personal data of the individuals concerned is essential and it is not guaranteed that they will always be capable of being re-contacted.

In this context, perhaps I may quote from a statement by Public Health England in support of the work of patient support groups:

“We are clear that patient registries, particularly for individuals with less common conditions, are one of the most valuable sources for the care, research and support of patients and their families. In many cases they are the only source of information on some disorders. Some collections stretch back many years. This historical record is essential for longitudinal studies and long term follow up … These searches can only be performed on well curated, identifiable data as people change their names and locations”.


Public Health England goes on to say that the question is about the adequacy of the consent obtained in the first place and whether it meets the enhanced rights of data subjects under the GDPR. Absolutely—there is no argument that the consent at the outset needs to be of a good standard so that subsequent use of personal data can be validly based on it.

My amendment would confine the special provision that I am proposing to members of organisations for specific purposes which I would hope we could all agree lie in the public interest. It would not open the floodgates to a collection of streams of unconsented personal data for undefined purposes. I therefore hope that the Government can agree to my amendment.

Review of Gaming Machines

Lord Griffiths of Burry Port Excerpts

Tuesday 31st October 2017 Lords Chamber

[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.

Channel 4: Privatisation (Communications Committee Report)

Lord Griffiths of Burry Port Excerpts

Tuesday 17th October 2017 Lords Chamber

[Lord Griffiths of Burry Port (Lab)]

My Lords, it is a pleasure to be here. I am delighted to be speaking to a report introduced so wonderfully by the noble Lord, Lord Best, to whom tribute has been paid from many quarters for the clarity with which he put his view and for the intelligence with which he anticipated so many of the points that I want to make. I was delighted to hear the impassioned speech by the noble Lord, Lord Holmes, which swept us off our feet. He told us of his watching habits at the age of 11. It was a long list. My only disappointment was that it did not highlight a programme on which I appeared more than once: “The Big Breakfast”. I shall never forget the experience of sitting on the studio couch being interviewed by two puppets called Zig and Zag. Some of the committee work in this House has made me aware of that experience and of some of its colour.

The future of Channel 4 must be a matter of concern for all of us. Since it was set up in 1982, it has become part of a brilliantly conceived ecosystem of free-to-air provision for the British public, and we ruin or harm or diminish it at our peril. I, too, regret that this report has taken so long to come to our attention on the Floor of the House. When I was reading it, I found it difficult to understand why the Government had set their heart on privatising Channel 4 at all. There were many financial, regulatory, commercial and professional voices mentioned in the report, even competitors in the field, and the Government’s position seemed so lonely among all the very different advice that was being given. The noble Lord, Lord Best, mentioned that an American might have bought Channel 4 if it had been for sale. We can imagine what such an American might have done with the remit which currently governs Channel 4 programming. It would not have been the same at all. It is not going to produce much money to do all those things, such as stimulate public debate, inspire change and nurture new and existing talent, which is truly radical.

I would add to the programming that has been mentioned the extraordinary film series, “The Promise” and “The State”, which Peter Kosminsky brought to our screens and which, very bravely, took us into the heart of complicated situations in a graphic way, as only the arts can succeed in doing. It was strange for me, a newcomer to this business, to read of the Government’s commitment to privatisation. Possible motives have been alluded to by noble Lords who have taken part in the debate. However, wiser heads prevailed and the project was abandoned. Privatisation went off the table, and we came to the question of nations and regions—and nobody, of course, can be against that.

We have had different advocates. My noble friend Lady Quin made an impassioned plea for the north-east. If I were less bound by my brief, I would go to town on the case for Wales. The barely disguised suggestion is that a significant part of the core business, if not all of it, should up sticks and move to another part of the country, although the noble Lord, Lord Storey, and the noble Baroness, Lady Kidron, have suggested more varied ways in which that might be achieved.

The Secretary of State announced the Government’s U-turn on privatisation from the heart of Media City in Manchester. We have heard about the letter that the noble Lord, Lord Best, received, and we have seen a copy of it. She made a big speech in Media City, in which she turned her attention towards regionalisation. She declared herself,

“unsympathetic towards those who recoil in horror at the very idea of media jobs being based outside the capital”.

Indeed, she offered Manchester as an example of what was being done for the industry by people who had shown themselves prepared to move out into other parts of the land.

We should be careful about facile comparisons. I happened to be working with the BBC in a peripheral way when, during the 1990s, some departments were being decanted from London to Manchester. I became aware of numbers of experienced staff who had roots, mortgages and children at school in London which they simply could not abandon. Others have mentioned the plight of such people. They are real human-need stories. There will always be a human cost to such a plan. It was the existence of already vibrant BBC activity in Manchester, together with the eventual presence of ITV, that allowed those relocated departments the possibility of achieving critical mass as the bold new venture was developed.

There is no similar place beckoning the Channel 4 operation. Indeed, Channel 4 has conducted its own consultation process, which has made it aware of the need to provide greater investment in programme commissioning that favours the nations and regions far more than at present. We can only hope that, when Alex Mahon comes into office as the chief executive officer, she will take those plans forward. It is worth pausing to rejoice at the fact that a woman is to be the chief executive officer, a first for a major broadcasting company in this country, and to talk about the fact that, while mention has been made of the fact that diversity on the board is less than it could be, there has been a terrific commitment to the question of diversity as far as it includes disabled people. You cannot win everything, but I should say that while Channel 4 has struggled with the question of diversity and there are things that it might have done better, there are things that we must rejoice at its having achieved.

There is no familiar place for Channel 4 to relocate to. In my view, everything would have to begin several steps back from what happened in Manchester. Nor should we forget that, at least in those days, the BBC did most of its work in-house. A lot more is put out now to independent companies—then it produced its own programmes. Channel 4, as many have said, does not work that way; it commissions its work from outside bodies. Are we aware that it sets up and employs 3,000 people across the nation and has spent £1.5 million on such programmes, a not inconsiderable amount? Just think of “Location, Location, Location”, whose production team is based in Glasgow and which films throughout the country, or “Hollyoaks”—why has no one mentioned that? It is Channel 4’s largest production and is rooted in the north-west, with 70% of its workforce drawn from the area. Then there is “Ackley Bridge”, a new school drama that is filmed and based in Halifax.

I suspect it would be interesting to look more closely not just at Channel 4 in this regard but at where terrestrial broadcasters as a whole currently commission their programmes, to ensure that independent producers in all areas of our regions and nations get the chance to tell their stories and broadcast their ideas about the world, each from their own perspective. This is not just a Channel 4 issue; ITV and the BBC, which are public service broadcasters too, should be asked, as well as Channel 4, to defend their commissioning policies. A key feature of our terrestrial television system is that it is a complex interrelated ecology where the channels compete on quality and diversity so that audiences receive the best service possible.

We damage Channel 4’s ability to maintain and develop its levels of performance at our peril. Since earlier I heard debates about implementation and transitional arrangements, I note that Channel 4 is awaiting the arrival of a new CEO, so perhaps this is the time to just wait a moment, consult and see how things turn out. Perhaps “Festina lente”—“Make haste slowly”—is the best advice that we could give ourselves.