Data Protection and Digital Information Bill

Debate between Baroness Harding of Winscombe and Baroness Jones of Whitchurch

Committee stage
Monday 25th March 2024 Grand Committee

[Baroness Harding of Winscombe (Con)]

My Lords, I support the noble Baroness, Lady Kidron, in Amendments 13 and 15, to which I have added my name. Rather than repeat her arguments—as we are now all trying not to do—I want to build on them and point to the debate we had on the first group in Committee, when my noble friend the Minister insisted that the Government had no desire to water down the protections for children in the Bill. In Clause 5, in proposed new paragraph (7) of Article 6, the Government have felt it necessary to be explicit, in that paragraph only, that children might need extra protection. This, on its own, makes me worried that the whole Bill is reducing the protection children have, because the Government felt it necessary to insert new paragraph (7)(b). Interestingly, it refers to,

“where relevant, the need to provide children”

with additional support. But where is that not relevant?

Amendment 13 simply looks to strengthen this—to accept the premise on which the Bill is currently drafted that we need to be explicit where children deserve the right to a higher level of protection, and to get the wording right. Will my noble friend the Minister reconsider? There are two choices here: to state right at the beginning of the Bill that there is a principle that there will be no reduction in children’s right to a higher level of protection, or to do as the Bill currently does and make sure that we get the wording right at every stage as we work through.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank noble Lords who have spoken to this group. As ever, I am grateful to the Delegated Powers and Regulatory Reform Committee for the care it has taken in scrutinising the Bill. In its 10th report it made a number of recommendations addressing the Henry VIII powers in the Bill, which are reflected in a number of amendments that we have tabled.

In this group, we have Amendment 12 to Clause 5, which addresses the committee’s concerns about the new powers for the Secretary of State to amend new Annexe 1 of Article 6. This sets out the grounds for treating data processing as a recognised legitimate interest. This issue was raised by the noble Lord, Lord Clement-Jones, in his introduction. The Government argue that they are starting with a limited number of grounds and that the list might need to be changed swiftly, hence the need for the Secretary of State’s power to make changes by affirmative regulations.

However, the Delegated Powers and Regulatory Reform Committee argues:

“The grounds for lawful processing of personal data go to the heart of the data protection legislation, and therefore in our view should not be capable of being changed by subordinate legislation”.


It also argues that the Government have not provided strong reasons for needing this power. It recommends that the delegated power in Clause 5(4) should be removed from the Bill, which is what our Amendment 12 seeks to do.

These concerns were echoed by the Constitution Committee, which went one stage further by arguing:

“Data protection is a matter of great importance in maintaining a relationship of trust between the state and the individual”.


It is important to maintain these fundamental individual rights. On that basis, the Constitution Committee asks us to consider whether the breadth of the Secretary of State’s powers in Clauses 5 and 6 is such that those powers should be subject to primary rather than secondary legislation.

I make this point about the seriousness of these issues as they underline the points made by other noble Lords in their amendments in this group. In particular, the noble Lord, Lord Clement-Jones, asked whether any regulations made by the Secretary of State should be the subject of the super-affirmative procedure. We will be interested to hear the Minister’s response, given the concerns raised by the Constitution Committee.

Will the Minister also explain why it was necessary to remove the balancing test, which would require organisations to show why their interest in processing data outweighs the rights of data subjects? Again, this point was made by the noble Lord, Lord Clement-Jones. It would also be helpful if the Minister could clarify whether the new powers for the Secretary of State to amend the recognised legitimate interest could have consequences for data adequacy and whether this has been checked and tested with the EU.

Finally, we also welcome a number of other amendments tabled by the noble Lord, Lord Clement-Jones, in particular those to ensure that direct marketing should be considered a legitimate interest only if there is proper consent. This was one of the themes of the noble Baroness, Lady Kidron, who made, as ever, a very powerful case for ensuring that children specifically should not be subject to direct market as routine and that there should be clear consent.

The noble Baronesses, Lady Kidron and Lady Harding, have once again, quite rightly, brought us back to the Bill needing to state explicitly that children’s rights are not being watered down by it, otherwise we will come back to this again and again in all the clauses. The noble Baroness, Lady Kidron, said that this will be decided on the Floor of the House, or the Minister could give in now and come back with some government amendments. I heartily recommend to the Minister that he considers doing that because it might save us some time. I look forward to the Minister’s response on that and on the Delegated Powers and Regulatory Reform Committee’s recommendations about removing the Secretary of State’s right to amend the legitimate interest test.