Data Protection Bill [HL]

Lord McNally Excerpts

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

[Baroness Jay of Paddington (Lab)]

My Lords, before the Minister replies to my noble friend Lord Whitty, I want to emphasise the importance of his arguments and ask him to reflect again on what he said about the point made by the noble Baroness, Lady Hamwee, on the Electoral Commission’s involvement. Although, as the Minister said, he wrote in general terms to the commission—or it was asked to give evidence to the Government on the matter—that may have been around the time of the general election, when perhaps it was engaged in immediate problems. It is important that it be included in discussions on the broader issues, particularly the ones just raised by my noble friend Lord Whitty. Perhaps it would be worth the Government reflecting on attempting to draw it into the conversation now.

[Lord McNally (LD)]

It is easier for me to intervene now, so the Minister can answer everything in one go. In two small amendments, there is a massive issue that needs to be addressed with great seriousness. The Minister referred to the Information Commissioner’s study on the interrelationship between data and the political process. I wonder whether her findings will be available before the Bill becomes law, because that will have a great impact. The other thing we must learn, as the noble Lord, Lord Whitty, said, is that it is often wise to look across the Atlantic to find out what is coming to us. There is a massive problem coming down the road concerning how data are used during the political process. On the one hand, there is the issue, referred to by the noble Lord, Lord Kennedy, of political parties being mostly volunteers, trying their best to deal with complex laws. They must be protected as best they can. On the other side of the argument, there is a degree of sophistication in applying data to politics, which could become a threat to the democratic process. These are two small amendments, but they are an iceberg in terms of the problems that lie beneath them.

Data Protection Bill [HL]

Lord McNally Excerpts

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

As I said at Second Reading, I am extremely grateful to my noble friend the Minister, and to the DDCMS, for the constructive way in which they have approached the media issues arising in this Bill and the helpful, dialogue that they have maintained throughout. These amendments are proposed in the spirit of that dialogue to ensure that the Government’s clear intention to maintain the correct balance between privacy and freedom of expression and information is as robust and effective as possible. I beg to move.

[Lord McNally (LD)]

My Lords, when the famous French long-serving Foreign Minister Talleyrand died and the news was taken to his long-term rival Prince Metternich of Austria, Metternich looked at the telegram and said, “What does he mean by this?”. Some of my friends have a similar reaction to any amendments that carry the name of the noble Lord, Lord Black, but I am not among them. I think that we share a common belief in a free and a vigorous and independent press. He knows that when at Second Reading he referred to the Defamation Act 2013, my ears pricked up, because it is one of the things that I am most proud of from my time as a Minister. With my noble friend Lord Lester as my mentor, we piloted that Bill into legislation. I am certainly very interested in any amendment that would prevent this Bill becoming a backdoor to getting around the protections that the Defamation Act gave to free comment and academic freedom to have peer comment, and so on. The Act has worked—we are no longer considered the libel capital of the world—and there is a great deal more freedom in the academic world for peer comments and criticisms, without the threat of libel actions, which had a chilling effect.

The problem is that this is an alphabet soup of amendments, which the noble Lord, Lord Black, has put forward with great clarity, so we will be able to study what exactly he wants to do and how he wants to do it. I am interested in a number of things; I am interested in the idea, which he quite rightly pointed out, of investigative journalists having to give prior notice of what they are doing, which seems rather counterintuitive to the idea of investigative journalism. I have certainly received that point of view from the BBC and other forms of journal about the effect of that proposal. The noble Lord, Lord Black, is quite right. We have seen only recently the Paradise papers as another example of investigative journalism exposing things that people would rather keep quiet, which is massively in the public interest. He also referred to the number of exposés of care homes, prisons and young offender institutions, all of which are massively in the public interest. It would be wrong to allow the Bill to bring into law provisions that would chill, prevent or curb the great traditions of a free and vigorous press. In the spirit of Committee stage, I would like to look carefully at what the amendments of the noble Lord, Lord Black, seek to do. As he knows, after Second Reading I offered to collaborate with him on amendments but that would probably have been too great a shock to both our constitutions. However, I would certainly be interested to see where we can work together on the broad aim of ensuring that the Bill contains no accidental curbs on the activities of a vigorous and free press and media.

As I have said before, the noble Lord, Lord Black, and his friends would be in a stronger position if the background to this was not one of previous criminality and invasion of the privacy of people who had every right to see their privacy protected. Therefore, there is bound to be a certain scepticism about whether these proposals give overgenerous access to overbroad exemptions. But let us have a look at them and at some of the issues that have been raised in other quarters—as I say, by the BBC and journals that are not members of IPSO that have expressed the concerns raised by the noble Lord, Lord Black. Following that and what the Minister is about to tell us, we can then make judgments about how we shall approach these issues on Report.

[Lord Stevenson of Balmacara]

My Lords, we are all very grateful to the noble Lord, Lord Black, for his very full introduction to these amendments. I shall read very carefully what the noble Lord, Lord McNally, said and take his remarks on their merits. I have no problem with that.

I am sure that the noble Lord, Lord Black, will not mind if I quote what he said in Committee only a week ago and pose a question to him. He said:

“This Bill is very carefully crafted to balance rights to free expression and rights to privacy, which of course are of huge importance. It recognises the vital importance of free speech in a free society at the same time as protecting individuals. It replicates a system which has worked well for 20 years and can work well for another 20”.—[Official Report, 6/11/17; cols. 1667-68.]


What a difference a week makes to one’s thinking. The noble Lord was pressed by a number of noble Lords, including his noble friend Lord Attlee, to come up with a much more detailed and engaged critique. We would love to hear from him again if he is prepared to tell us why there has been a change in his thinking. However, I do not think that gets in the way of what he is saying, which is that some issues need to be addressed. We will look at them carefully when we have the chance to see them in print. I shall also be interested to hear what the noble Baroness makes of this when she replies.

[Lord Black of Brentwood]

I am grateful to my noble friend for those words and to all noble Lords who have taken part in this short debate at this late hour. Apart from anything else, it has given me an opportunity to say words which I never thought I would hear myself say: I agree with virtually everything that the noble Lord, Lord McNally, said this evening.

[Lord McNally]

Then I certainly must read Hansard carefully in the morning.

[Lord Black of Brentwood]

I am particularly pleased that the noble Lord mentioned Prince Metternich, who of course was no great fan of liberal democracy. I understand that he once said that the best way to protect the freedom of the press was for nothing whatever to be published over the course of the next five years. That may indeed be the case.

I say to the noble Lord, Lord Stevenson, that in Committee last week we talked about a very different set of amendments from the one that I am proposing this evening. Those amendments were about press regulation. I argued then, and I argue now, that that should not have anything to do with this Bill. My amendments this evening do not undermine what I believe to be a very good balance, and I absolutely stick by my words; they merely provide clarification in some important areas.

I think I sense from the Committee that it would be useful to look in more detail at what I have proposed. I would be happy to talk about it further with noble Lords and to take up my noble friend’s offer to continue constructive dialogue. With that, I beg leave to withdraw the amendment.

Data Protection Bill [HL]

Lord McNally Excerpts

Monday 6th November 2017 Lords Chamber

[Lord McNally (LD)]

My Lords, as my noble friend Lord Clement-Jones indicated, I shall speak to Amendments 41 and 44, which were eloquently introduced by the noble Lord, Lord Griffiths. I had no idea that it was a maiden speech from the Front Bench, and it is to the discredit of the Labour Party that it has taken him so long to climb to the top of the greasy pole. Having got there, I hope that he enjoys the view.

As the noble Lord indicated, these amendments are inspired mainly by Thomson Reuters and others in the City. I attended a seminar in the City some weeks ago in which the corporation, the City of London Police and some leading companies talked about the challenges that data was bringing them. At the core of this is a concern that the Bill is loosely and poorly worded in preventing private companies doing work with data which will help them to keep best practice in line with the objectives for corporate governance and efforts to fight crime, terrorism, slavery, bribery and corruption.

I hope the Minister can give some comfort that the Bill will give cover to companies, financial institutions and others to carry out this kind of data activity and allow screening by private companies for the purposes of checking against non-UK laws on terrorist financing or money laundering. It should be amended to allow compliance with widely recognised guidelines such as those promulgated by the Financial Action Task Force. In the light of the Minister’s response and in consultation with those who have asked us to raise this matter, we would see whether we wanted to take it further. At the source of these amendments is a concern on the part of companies which I think genuinely want to help.

[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.

--- Later in debate ---

I suppose that it depends on how the parties come together after Committee to agree on the best form of action in response to these Henry VIII powers—but I suspect that, on Report, there will be a deal of contention on the matter.

[Lord McNally]

I can imagine how it was when the legislative programme was discussed in the Cabinet Office, or even at No. 10: how on earth do we get all this through? I am sure that the Civil Service advice was—or at least one adviser said—“Well, you could try by Henry VIII powers and lots of secondary legislation. Looking at the present rules, that is the only way that we think you could get it through in that timetable”. And so the process started.

I know that the big problem for Ministers in this House is that there will be great impatience in No. 10 and down the Corridor at any delays or defeats—but, as has been said a number of times, they are going about it the wrong way. We are heading for a constitutional car crash unless there is intervention at the very highest level to look at this problem. It is a twin problem: how do you give flexibility to make legislation fool-proof in a rapidly changing technological situation, which is one of the central problems for the Bill; and how do you deal with Brexit legislation in such a tight timetable?

I know what cannot happen. It would be the irony of ironies if an exercise that was supposed to return sovereignty to this Parliament ended up with this Parliament accepting a whole range of precedents that diminished its sovereignty. Therefore, although it is unfair on each Minister, this debate will continue to take place, and I hope that when we get to Divisions we will put a halt to this solution, so that some really hard thinking will be done about how to achieve the end of the Government getting their business through without sacrificing parliamentary sovereignty.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I welcome this opportunity to set out the Government’s position on various delegated powers contained in the Bill, which have been the subject of recommendations by the Delegated Powers and Regulatory Reform Committee. The Government are very grateful to the committee for its usual thoroughness in examining the delegated powers in the Bill, but I should begin my remarks by saying that the committee’s report, which ran to some 20 pages, was published only on 24 October, so we are still considering its conclusions and recommendations. The range of views expressed in tonight’s debate will be further input into that process.

The current Data Protection Act has stood firm for almost 20 years. This one will be in danger of lasting barely two if we start striking out the delegated powers contained within it. As the noble Lord, Lord Stevenson, and the noble Baroness, Lady Jones, said, such is the pace of change in this area that we need to keep up with what is going on. Furthermore, new forms of data processing not yet dreamed of will have been designed, developed and deployed even before the Bill reaches Royal Assent. It is essential that the law can keep up.

It is also worth reminding ourselves that the Government have taken the opportunity to include directly in the relevant schedules numerous provisions which had previously been included only in secondary legislation. The noble Lord, Lord Stevenson, has been extremely busy, and has taken the opportunity to table more than a dozen amendments to Schedule 1 alone. We will of course turn to those shortly.

That said, the Government recognise that there is tension between the need to provide for appropriate future-proofing of legislation, such as provided for in Clauses 9, 15, 33, 84 and 111, and the need to ensure proper parliamentary scrutiny of the resultant delegated powers. It follows that we are open to constructive suggestions as to how provisions in the Bill can be improved and, obviously, that includes its regulation-making powers.

I have listened with care and interest to the case put forward by my noble friend Lord Arbuthnot, the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones, for the application of the super-affirmative procedure. I am also grateful to the noble Lord, Lord Whitty, for reminding us that data subjects, not just data controllers, have an interest in the proper application of these powers.

I am sure that noble Lords will agree that the amendments before us should be considered in the context of the broader recommendations of the Delegated Powers and Regulatory Reform Committee report. As I said earlier, the process of considering these issues is still ongoing, but I am more than confident that it will conclude in time for the Bill’s next stage.

Before I conclude, I think that the noble Lord, Lord Stevenson, asked what was meant by “legislative measure”. Clause 15(1)(b) uses the term “legislative measure” to reflect the wording used in Article 23 of the GDPR. Recital 41 makes clear that a legislative measure would include an Act or statutory instrument. I hope that that answers the question.

I therefore humbly invite the noble Lord to withdraw his amendment on the understanding that we will return to this important issue on Report.

Data Protection Bill [HL]

Lord McNally Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Monday 6th November 2017 Lords Chamber

[Lord Stevenson of Balmacara]

My Lords—

[Lord McNally (LD)]

My Lords, my name is also on this amendment. It is a great pleasure to follow the noble Lord, Lord Puttnam, who has championed these issues for 20 years or more. It is worth while having a reality check for ourselves. One of the good things about the House of Lords is a certain continuity. I was in this House for the Data Protection Act 1998, which we are now reviewing, and for the Communications Act to which the noble Lord, Lord Puttnam, referred, and I served on his committee. We had no idea what revolution was coming our way. Indeed, in the Communications Committee, we were asked not to look at the internet; it was for the future. If we think about what has happened in those 20 years, what on earth is going to happen in the next 20, when we are reliably told we are on the verge of a fourth industrial revolution driven by data?

We were quietly asked by the noble Baroness, Lady Kidron, not to include this amendment in the previous group in case the whole thing became hijacked by a debate about education, and she was shrewd in that, but it was useful that she pointed out—I love this point—that data literacy should be as important as the three Rs as a core competency for the 21st-century child. If we are going to achieve that, we have to get out of the silo mentality: “It’s not our job, it’s the Information Commissioner’s job”; “It’s the Department for Education’s job”; “It’s DCMS’s job”. Somebody has to take responsibility for what we are saying because it is one of the great challenges.

There is a danger, particularly in a House of this age group, that we overestimate the capacity of the young. We all have our anecdotes about our grandchildren or our children being able to work the gadgets that we cannot work, but that does not mean that they have the competence or the maturity to make proper rational, responsible decisions about some of the factors that come within their ambit with this new technology. My noble friend Lord Storey referred earlier to a story in today’s paper about the increase in sexting among young children. We also know the extent of cyberbullying that goes on between children and about the naivety of children in being willing to reveal personal information online. Navigating the digital world is very complex.

The noble Lord, Lord Lexden, is in his place, and I am always worried about quoting history, but when the reform Act was passed in 1867, somebody said, “We now must educate our masters”, and that brought about the Elementary Education Act 1870. Nobody can now be in any doubt about the enormity of the task of preparing the whole population, but especially our children, to handle the new powers that are coming down the track at us. Educating for digital is one of the most important tasks facing us. I enjoyed and appreciated the way the noble Baroness, Lady Kidron, delivered her amendments. She made the point that that education is not to make this generation of children able to fit into the needs of Silicon Valley; it is to give them the power to make sure that Silicon Valley responds to their needs as citizens. That is the task that this amendment is trying to promote.

Data Protection Bill [HL]

Lord McNally Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 30th October 2017 Lords Chamber

[Lord Stevenson of Balmacara]

As a Scot I can hardly complain, and I am always bewildered, too—not only about this but about many other things. Our Amendment 17 in this group is also one of bewilderment. Clause 8 is headed:

“Child’s consent in relation to information society services”,


and refers to “preventive or counselling services” not being included. This goes back to an earlier amendment, when we established that these references are actually recitals and not part of the substantive GDPR, so we are back in what is not normative language and issues that we cannot possibly talk about in relation to the wider context because we are talking about the law that will apply.

There are three points that need to be made and I would be grateful if the noble Lord would either respond today or write to me about them. The first is to be clear that the reference to “information society services”, which is defined, has nothing in it that would suggest that it is a problem in relation to the lack of inclusion of preventive or counselling services. The answer is probably a straightforward yes. Secondly, what are the preventive or counselling services that we are talking about? I think the context is that these are meant to exclude any data processing relating to a data subject if the data subject concerned—with parental consent if the subject is younger than 13 and on their own if they are older than 13—who is taking a form of counselling that may be related to health or sexual issues would not be allowed to be included. Is my understanding of that right? I am sure that it is.

Thirdly, could we have a better definition of preventive or counselling services because those are very wide-ranging terms? Yes, they come from a recital and perhaps in that sense they can be tracked back to earlier discussions around the formation of the GDPR, but they have to be applied in this country to situations in real life. I am not sure what a preventive service is and I should like to have it explained. Counselling services I probably do get, but do they include face-to-face counselling or is this about only online counselling services? Is it the same if the child is being accompanied by a parent or guardian? There are other issues that come into this and there is a need for clarity on the point.

While I am on my feet I should like to respond to the amendment moved by the noble Baroness, Lady Howe, who has campaigned long and hard on these issues. We would be bereft if she did not enter into this Bill with all its implications for children, given the wisdom and experience that she brings to the table. The point she makes is one of simple clarity. There is a need to be very careful about the evidence gathering on this issue and it is probably not appropriate for it to be left to Ministers in regulations. There needs to be a wider discussion and debate on the matter, perhaps involving the Children’s Commissioner and other persons with expertise. She has made her point very well and I should like to support it.

[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 McNally Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 30th October 2017 Lords Chamber

[Lord Cormack (Con)]

My Lords, I appeal to the noble Lord, Lord Stevenson, not to rush the House on this matter. The amendment is clearly deficient. This morning I was with the director of the Victoria and Albert Museum, Dr Tristram Hunt, who urged me, if I possibly could, to say something briefly this afternoon. He gave me a brief that I have not had a chance to master, but it is quite clear that all the directors of our great national museums and galleries have real misgivings about Amendment 4 and, from what I have heard, would have similar misgivings—or most of them—about Amendment 4A. There is no constitutional need for us to divide this afternoon. Shortly after I came into your Lordships’ House, I remember that the late Lord Jenkin of Roding said, “We don’t normally vote at Committee stage in our House. It’s better to air the arguments and then to come back to them on Report”. That was wise advice and the House should heed it today.

[Lord McNally (LD)]

My Lords, I suspect that this is going to be a shorter debate than perhaps was at first imagined, but I feel it is important that I add one or two words. When I was Minister at the Ministry of Justice, preceded by the noble Lord, Lord Faulks, I met a distinguished American lawyer. I said to him by way of introduction, as I regularly did, “Now, I’m not a lawyer”. He looked at me and said, “Then I’ll speak very, very slowly”.

I feel a bit like that after all the howitzers have been rolled out this afternoon—the noble Lords, Lord Faulks, Lord Lester and Lord Pannick, along with a more helpful contribution from the noble and learned Lord, Lord Goldsmith. I intervened because it would be very wrong, or very misleading, if Ministers were to take this mini-debate as an escape from a real problem. I was, although the post may have been slightly misnamed, Minister for Data Protection for three and a half years. Between 2010 and 2013 I had the job of going across to Brussels for negotiations on a lot of the issues that we are now discussing. What struck me there was how much influence we had in bringing together legislation that met the concerns mainly of western Europeans about a light-touch form of regulation and the concerns mainly of eastern Europeans who had fairly recent experience of how state abuse of power could be used against the citizen and the individual.

The point that I want to leave with Ministers is that, whatever fault our legal experts have found with the amendment, it underpins a real concern, which the noble and learned Lord, Lord Goldsmith, picked up: the layman, the ordinary citizen, wants to be assured that by the end of the Bill’s passage, on which we are only just starting, it will very much protect civil rights, civil liberties and individual freedoms. One of the great challenges we face is that this extraordinary change in the structure of our society, brought about by this fourth industrial revolution based on data, really calls into question a lot of the protections that we thought we had.

I hope the Minister will take and grab hold of what was said in introducing this Bill. We are attempting in these amendments, particularly in Amendment 4A, to meet a real and genuine concern of ordinary people who are perhaps not as clever as the noble Lords, Lord Pannick, Lord Lester, and others, but who have a concern about the abuse of power. There has been no sense of shame or regret. I understand and have been passionate all my life about the defence of the freedom of the press, but I wish that the press did not rush so quickly to scream, “They’re trying to curb the freedom of the press”, when all that the press has done since Leveson is try to sabotage any proper press regulation. I worry about saying, “Well, it will stop various parts of our society using this new data”, without seeing and recognising the huge amount of evidence already of massive abuses of data which impinge on our very democracy. I felt it worth saying, even if I had to listen to the lawyers, that the layman also has a voice in this, and we have a real duty to make sure that this legislation is up to the task presented by the new data world.

[The Earl of Lytton (CB)]

I realise that, in rising to speak on this particular part of the Bill, I depart slightly from the purpose of the noble Lord, Lord Stevenson—but I thank him for raising the issue all the same.

Of course, we are dealing with the overview of the Bill. The noble Lord, Lord McNally, almost wrote my introduction. What has worried me for some considerable time, notwithstanding the Bill’s provisions that provide for data subject to error correction, is the manifest inclusion of data in the data processing function, which is broadly drawn—namely, the inclusion of information that is knowingly false or recklessly included in that process, and which can affect the life chances of individuals. We know of significant and high-profile circumstances in which false information has been included and has either affected a significant class of people or has seriously damaged the life prospects of individuals.

Given that the collection of data is part of the processing function, it seems to me that very little is being said about responsibility for those sorts of errors—in other words, the things that one could or should have realised were incorrect or where there was a disregard for the norms of checking information before it got into data systems. We heard at Second Reading how difficult it is to excise that information from the system once it has got in there and been round the virtual world of information technology.

Could the noble Lord, Lord Stevenson, or the Minister in replying, say whether there is anything apart from the Bill—I do not see it there at the moment—that enables there to be some sort of sanction, for want of a better word, against knowingly or recklessly including data that is false and which affects the life chances and prospects of individuals because it is capable of being identified with them and can be highly damaging? That is something that we may need to look at further down the line. If I am speaking in error, I shall stand corrected.

Data Protection Bill [HL]

Lord McNally Excerpts

2nd reading (Hansard): House of Lords
Tuesday 10th October 2017 Lords Chamber

[Lord McNally (LD)]

My Lords, I am delighted to follow the noble Lord, Lord Stevenson, in this debate. I am a little puzzled, because some months ago I took part in a rather emotional debate where we said farewell to him on the Front Bench and, since then, they seem to have been working him harder than ever. As the Minister will already have gathered from his intervention, although he can look to the noble Lord’s support for the Bill, in many parts it will be like Lenin’s support for the social democrats: like a rope supports the hanging man. We will look forward to working with the noble Lord, Lord Stevenson, on many of the points that he has raised, not least on part 2 of Leveson.

I open this debate for the Liberal Democrats because, as the Minister has already explained, my noble friend Lord Clement-Jones is chairing the Committee on Artificial Intelligence this afternoon. He will return to the fray later in the Bill’s passage to do a lot of the heavy lifting with my noble friend Lord Paddick.

While wishing the Bill well, our approach will be to try to ensure that individuals have to the maximum extent possible control of their own data and that data are used responsibly and ethically by individuals and by both public and private bodies. This will be of particular concern in law enforcement areas where, for example, the use of algorithms throws up concerns about profiling and related matters.

It is clear that the Brexit decision and timetable will cast a long shadow as we debate the Bill. The Information Commissioner, Elizabeth Denham, has already warned that data adequacy status with the EU will be difficult to achieve within the Government’s Brexit timetable and a major obstacle has been erected by the Government themselves. The European withdrawal Bill makes it clear that the EU Charter of Fundamental Rights will not become part of UK law as part of the replication process, yet Article 8 of the charter relating to personal data underpins the GDPR. How then will we secure adequacy without adhering to the charter?

As the noble Lord, Lord Stevenson, indicated, there are many other issues relating to the GDPR and Brexit, particularly the need to examine and test the derogations in the Bill, which I am sure will be raised by colleagues and others and which we will probe further in Committee.

While referring to the Information Commissioner, I put on record our view that the Information Commissioner’s Office must continue to be adequately funded and staffed during this period of great uncertainty. The biggest changes since our debates on the Data Protection Act 1998, or even the early stages of the GDPR, which I was involved in as a Minister at the MoJ from 2010 to 2013, is that the threat to civil liberties and personal freedoms now comes not only from agencies of the state but from corporate power as well.

A week today, on 17 October, the Royal Society of Arts will host a discussion entitled “The Existential Threat of Big Tech”. The promotion for this event says:

“The early 21st century has seen a revolution in terms of who controls knowledge and information. This rapid change has profound consequences for the way we think. Within a few short decades the world has rushed to embrace the products and services of four giant corporations: Amazon, Facebook, Apple and Google. But at what cost?”.


That question prompts an even more fundamental question. We have become accustomed to the idea that some financial institutions are too big to fail. Are we approaching a situation where these global tech giants are too big to regulate? As a parliamentarian and democrat, every fibre of my being tells me that that cannot be so. We have to devise legislation and have the political courage to bring the global tech giants within the compass of the rule of law, not least in their roles as media operators, as the noble Lord, Lord Stevenson, indicated.

These modern tech giants operate in a world where the sense of privacy which was almost part of the DNA of my own and my parents’ generation is ignored with gay abandon by a generation quite willing to trade their privacy for the benefits, material and social, that the new technology provides. That is why we are so indebted to the noble Baroness, Lady Lane-Fox. Her speech in the debate she initiated in this House on 7 September is required reading in approaching the Bill. That speech contains her oft-repeated warning about sleepwalking to digital disaster, but it also robustly champions the opportunities open to a digitally literate society. I know that she will have an ally in my noble friend Lord Storey in championing better and earlier digital education in schools. The noble Lord, Lord Puttnam, recently pointed out that Ofcom already has an existing statutory duty to promote digital education. It will be interesting to learn how Ofcom intends to fulfil that obligation.

The elephant in the room always in discussing a Bill such as this is how we get the balance right between protecting the freedoms and civil liberties that underpin our functioning liberal democracy while protecting that democracy from the various threats to our safety and well-being. The sophisticated use of new technologies by terrorist groups and organised crime means that we have to make a sober assessment of exactly what powers our police and security services need to combat the terrorist attack and disrupt the drug or people trafficker or the money launderer. The fact that those threats are often overlapping and interconnected makes granting powers and achieving appropriate checks and balances ever more difficult.

On the issue of crime fighting, I recently attended a conference in the Guildhall, sponsored by the City of London Corporation, the Atlantic Council and Thomson Reuters. Its title was “Big Data: A Twenty-First Century Arms Race”. It could have been called “Apocalypse Now”, as the threat to business, the state and the individual was outlined, from existing technologies and from those fast approaching and identified. I was encouraged that there seemed to be an appetite in the private sector to co-operate with the police and government to ensure that big data can be effectively tamed to ensure better compliance, improve monitoring and reporting and prevent illicit financial flows. I will be interested to know whether the Government have a similar appetite for public/private co-operation in this area.

One point was made with particular vigour by Thomson Reuters. With offerings such as World-Check, it plays a key role in Europe and globally in helping many private sector firms and public authorities identify potential risks in their supply chains, customers and business relationships. It made it clear that it will be needing a number of clarifications in the Bill so that it will be able to continue to provide its important services, and we will probe those concerns and the concerns of others in the private sector in Committee.

In Committee we will also seek to raise concerns brought to us by Imperial College London and others about the efficacy of Clause 162 on the re-identification of de-identified personal data. We will need to probe whether the clause is the best way of dealing with the problem it seeks to address. I notice that the noble Lord, Lord Stevenson, gave it his approval, as did the Information Commissioner, but it is a legitimate question.

There is no doubt that the greater transparency and availability of data provided by government has contributed to citizens’ better understanding of and access to government information and services, but public concerns remain about the use of data in certain sectors. For example, although there are clear benefits to medical research from giving researchers access to anonymised medical data, it remains a matter of concern to the public, the media and the profession itself. Your Lordships will have received a briefing from the BMA on the matter and I am sure probing amendments will be required in Committee.

I am by nature an optimist, so I believe the noble Baroness, Lady Lane-Fox, when she tells us, as she did in this House a month ago, that,

“we can harness the power of these technologies to address the other great challenges we face”.—[Official Report, 7/9/17; col. 2110.]

In my youth I read Robert Tressell’s The Ragged Trousered Philanthropists, a parable about how working men were complicit in their own exploitation. We are in danger of becoming the 21st century’s ragged trousered philanthropists if we do not have a framework of law by which we can constrain big data from misusing the information we so profligately provide every day in every way.

I do not believe that sprinkling Bills with Henry VIII clauses is an answer to the challenge of future-proofing. Perhaps there is a case for expanding the remit of the National Data Guardian to act as an early warning system on wider data abuse—or that of the Information Commissioner or our own Select Committee—but there is a need. I fear that without some permanent mechanism in place, we will be for ever running up the down escalator trying to match legal protections to technical capacity. But that is no excuse for not trying to improve the Bill before us. We will work with others so to do. Looking at the speaking list, the Minister is not going to be short of good and expert advice on how to do that.