Regional Arts Facilities

Earl of Kinnoull Excerpts

Wednesday 27th March 2024 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness is right. All three elements that she mentioned are important, and all three are facing challenges at the moment. That is why we were so pleased that the Chancellor agreed to make permanent the tax reliefs in the Budget, because that encourages the sort of risk-taking experiment, such as touring a new production, that can help be a part of the commercial income of our brilliant arts organisations. I am glad that the noble Baroness has agreed to join the advisory panel for Dame Mary Archer’s review of Arts Council England, which can look at this important landscape and, I hope, inform the review and the recommendations that it makes to government.

[The Earl of Kinnoull (CB)]

My Lords, I declare my interest as set out in the register. Tomorrow sees the opening of the new Perth Museum, which is the new home for the Stone of Scone, or the Stone of Destiny. This has been made possible by £10 million of funding from the UK Government, and also substantial funding from the local council. This has been a brilliant model and will be transformational for Perth. Can the Minister tell us a bit more about whether the Government will make more of these types of transformational investments—capital investments—to allow regions that are relatively deprived to have vibrant arts and cultural organisations?

[Lord Parkinson of Whitley Bay (Con)]

The noble Earl is right to point to the importance of partnership working. The Government are very proud to have contributed towards the museum in Perth and the new home for the Stone of Scone—I hope that the opening tomorrow goes well. In the Budget, we also joined the Welsh Government and Flintshire county council in supporting Theatr Clwyd, which does important work not just in north Wales but in the north-west of England. I had the pleasure of visiting the theatre and seeing the renovation that has been done there. Through both the levelling up fund and the UK shared prosperity fund, the UK Government are playing their part in helping arts and culture in every part of the United Kingdom.

Telecommunications Infrastructure (Leasehold Property) Bill

Earl of Kinnoull Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Thursday 28th January 2021 Lords Chamber

As always, I will listen carefully to the debate and to the noble Baroness, but I do recognise the efforts that she has genuinely made. I beg to move.

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

The noble Lord, Lord Adonis, has withdrawn, so I call the noble Lord, Lord Forsyth of Drumlean.

[Lord Forsyth of Drumlean (Con) [V]]

My Lords, I do not wish to detain the House at this stage in the Bill, especially following that excellent speech by the noble Lord, Lord Alton. I do not wish to repeat many of the arguments that have been put at an earlier stage in the Bill and the information which has been made available to the House about the atrocities which are happening in China today—not just among the Uighur people. The noble Lord, Lord Alton, has set out in great detail the arguments which I would have thought would persuade any Government of the virtues of this amendment.

I join him in paying tribute to my noble friend the Minister, who has worked hard to find a way through this. I appreciate that collective responsibility means that it is not always possible to deliver what Ministers might wish to achieve. However, following on from the remarks the noble Lord made about the debate on Tuesday next week on the all-party amendment on genocide, I think it is absolutely outrageous that those of us who wish to speak in that debate are unable to do so unless we appear in person at the House.

I have just received a letter from the Clerk of the Parliaments advising me that it is very undesirable for Members to come to the House, as indeed it is from a wider social point of view. At the beginning of each sitting, the Chair has indicated that all Members will be treated equally. It seems that the procedures that operate under ping-pong are preventing Members of the House carrying out their duties while being socially responsible and while following the advice from Public Health England and Scotland. I hope very much that this can be looked at before next Tuesday, so that we are all able to carry out our duties to the House of Commons and meet our responsibilities to our fellow citizens.

The noble Lord, Lord Alton, seemed to indicate that he would not press this amendment to a Division. Had he done so, I would have happily supported him, because I believe that it is a sensible amendment for the reasons put forward in earlier stages of the Bill. However, as I have said, I will not detain the House other than to indicate my support for the noble Lord and my admiration for the enormous energy that he has put into defending human rights and championing the cause of those people in China who, unbelievably, are experiencing what we have always been told after the events in Germany during the 1930s and 1940s would never be allowed to happen again.

[Baroness Northover (LD)]

My Lords, I too start by paying tribute to the noble Lord, Lord Alton, for his commitment and persistence. He is so often the conscience of this House on human rights abuses globally, and once more he has made a very powerful speech.

How can anyone who watched the ceremony to mark Holocaust Memorial Day, which was broadcast last night, not be deeply moved. It made plain how propaganda led to persecution and, step by step, to the appalling slaughter of the Jews and others in the Holocaust. It has been said, “Never again”, and international measures were put in place to try to counter such atrocities and bring people to account, yet there have been genocides in Cambodia, Bosnia, Rwanda, Darfur, Myanmar and so on. As the Holocaust memorial event also mentioned, we are now hearing appalling accounts coming out of China, especially in relation to the Uighurs, including of forced organ harvesting, the sterilisation of women and the re-education camps. We hear credible reports, as the noble Lord, Lord Alton, mentioned, of slave labour. We know that, in Germany, the chemical and pharmaceutical industries, in which the country had an international lead, drew on such slave labour, as did others.

We have seen worrying signs in the UK and across Europe more generally, and especially whipped up recently in the United States, of propaganda and discrimination being exploited by those seeking power. It has been an object lesson in how these things can happen, step by step, and how constant vigilance is always required. We knew it then, and we know it now, so the mover of the amendment and those speaking to it are right that, even here, in this limited Bill covering a specific area, the test should be applied as to whether an operator could be using infrastructure to breach human rights.

I am glad to hear of the efforts being made by the Minister to seek to address this, as the Government also did in the Medicines and Medical Devices Bill, and there managed, working with the noble Lord, Lord Hunt of Kings Heath, and others, to bring forward a relevant amendment. In her letter to us, the noble Baroness cites the actions of the Foreign Secretary in relation to Xinjiang. We are waiting to see the results of this translated into targeted sanctions, as the noble Lord, Lord Alton, mentioned, and the persuasion of other countries, starting with the EU, to follow suit. Sanctions are most effective if they are undertaken collectively.

We will shortly be considering the National Security and Investment Bill, and I am sure that these issues will be raised again. Prior to that, we have the Trade Bill. Surely if the Government are committed to this issue, when we get to that Bill, it is obvious that the Government must accept the amendment on genocide. How could we possibly agree to trade with a country that is committing genocide?

I thank the Government for their engagement, including that of the noble Lord, Lord Ahmad, with Sir Geoffrey Nice, the chair of the China Tribunal, on forced organ harvesting, and I look forward to further engagement. However, that engagement needs to turn into specific action. We cannot turn a blind eye, and I am sure that the noble Lord, Lord Alton, will make sure that we do not.

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

The noble Lord, Lord Vaizey of Didcot, has withdrawn, so I call the next speaker, the noble Baroness, Lady Falkner of Margravine.

[Baroness Falkner of Margravine (CB) [V]]

My Lords, last night at 8 pm, I lit my candle to commemorate Holocaust Memorial Day. Yesterday, Jewish leaders asked us to include later, less egregious events that have been committed against other groups—notably, and most recently, Chinese Uighurs. China is a superpower and we are a mid-sized state, but if the measure of a people is its moral standing, the United Kingdom has stood tall in the past and should continue to do so.

I note that the noble Lord, Lord Alton, is evaluating whether to press this amendment. I say to the House only that the amendment is modest. It seeks to prevent companies using UK telecommunications infrastructure to facilitate human rights abuses. The consumers of that infrastructure would not want infrastructure delivered to them on the back of human rights abuses. It would also give investors a steer, because they would know that the law is clearly set out, and they could make their choices accordingly. There is little that I would add, other than to say that the people of this country rightly hold their leaders to high standards, and this House should uphold those expectations.

Gambling Advertising

Earl of Kinnoull Excerpts

Thursday 25th June 2020 Lords Chamber

[Baroness Barran]

Just to be clear again on the data, unsurprisingly, because there has been no sport during lockdown, 75% of people have not increased their expenditure either of time or money on gambling during lockdown. We should not be surprised about that because there has been no sport broadcast. We are looking at a range of measures and waiting for evidence being published by Public Health England and the National Institute for Health Research. We are preparing a national addiction strategy. The Government are absolutely committed to addressing the problems that arise from gambling and other addictive behaviours, but doing that in the round rather than in a piecemeal fashion.

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

My Lords, the time allowed for this Question has now elapsed, and we will therefore move to the third Oral Question.

Children: Exposure to Harmful Content

Earl of Kinnoull Excerpts

Thursday 11th June 2020 Lords Chamber

[Baroness Barran [V]]

Bringing forward the legislation remains a priority. We will respond to the consultation this autumn and, as I have said several times, the legislation will be brought forward in this Session. We are also implementing the Audiovisual Media Services Directive this autumn, which will provide higher levels of protection for children around accessing harmful content.

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

My Lords, the time allowed for this Question has elapsed.

Brexit: Movement of People in the Cultural Sector (European Union Committee Report)

Earl of Kinnoull Excerpts

Wednesday 15th May 2019 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Lipsey, and his very thought-provoking remarks. I was particularly taken by his thoughts on CITES. That convention was not going to form part of my submissions but I very much associate myself with his analysis. I also warmly congratulate the noble Lord, Lord Jay, and his committee on an extremely incisive, focused and compelling report. It is very difficult to write a short essay and this was a short essay with plenty of punch. I declare my interests as set out in the register, and particularly that I am on the board of a performing arts trust and chairman of a visual arts trust, both in Perth and Kinross, that employ several hundred people between them, and that I am on two museum boards. I should also declare, for reasons that will become obvious, my farming interests as set out in the register.

The gross value added to the UK economy by the cultural sector in 2015 was £27 billion—I am sorry for choosing an old number, but the reason will become obvious. For the agricultural sector it was £8.5 billion, so the cultural sector is three times bigger. Both sectors, of course, depend on EU workers for key elements. In the farming sector, particularly for vegetables and soft fruit, these are actually rather skilled jobs which rely on people coming in to do them. Paragraph 21 of the report reflects on that and on what it terms “massive variations” within the sub-sectors as to what is involved. There is a very good example in paragraph 21 of the visual effects sub-sector, where one-third of all the staff come from the EU. Later on it says that for the dance sector it is 20% and for my own beloved museum sector it is 15%. If I think of who those 15% are in Perth and Kinross, they are often in utterly critical and very highly skilled jobs, but I can assure noble Lords that none is paid £30,000 a year.

I worry about the interconnectivity of the whole cultural sector and the collateral damage when you damage one sector. That becomes very obvious when one thinks of the visual effects sector, as I have mentioned, which services other bits of the cultural industry, notably the film industry. The museum industry is also interested in it. If it is taken elsewhere, that will necessarily produce a pressure for other bits of the cultural sector to move elsewhere as well. That cannot be a good idea.

Others have mentioned how much the whole sector depends on mobility. Paragraph 44 of the report notes that plenty of musicians come from outside the UK and do 50 performances a year. Certainly, as you go through what is coming up over the next year at the concert hall in Perth, as I did over the weekend, you can see that a tremendous number of people are due to come into Perth from the EU and outside the UK.

Quite apart from mobility is the necessity for speed. The quotes on this from paragraph 38 of the report are very good. Early on, it says:

“The Creative Industries Federation told us that industries relied on a ‘rapid turnaround’ to access talent, often on a ‘same-day’ basis”.


Later, the same paragraph says that,

“it was essential to be able to bring in talent at short notice, particularly in the event of emergencies such as a lead singer or dancer falling ill or sustaining an injury”.

The visa system in place at the moment for third countries is interesting to analyse. Tier 2 visas are for specified jobs; there is a cap on the total number for general ones, and the £30,000 minimum hurdle. The trouble is that DCMS’s own figures say that 47.6%—a remarkably precise percentage—of the more than 650,000 people in the sector are self-employed, so tier 2 visas could not apply to them. The same goes for tier 5 visas because, once again, you have to have a specified job for them, which you would not have on a self-employed basis.

The Government’s White Paper on immigration from December last year said in paragraph 32:

“In accordance with the MAC’s advice, we do not intend to open sectoral labour schemes, except potentially for seasonal agricultural work”.


Accordingly, I thought it would be interesting to see what that advice had actually been. It was referencing the report of the Migration Advisory Committee from September 2018 entitled EEA Migration in the UK. In paragraph 36 of that report, above which is the title “Low-skilled workers”, its recommendation is:

“We do not recommend an explicit work migration route for low-skilled workers with the possible exception of a seasonal agricultural workers schemes”.


The MAC seems aware that many of the workers we are talking about might be low-paid but are most certainly not low-skilled. It is therefore a bit naughty in logic to use that recommendation in the way the White Paper has used it all round.

On the agricultural sector, I have nothing but praise for Defra. It has drafted a fantastically helpful four-page document called Employing EU Seasonal Workers After the UK Leaves the EU. This document is very clear and helpful. It also appears in Bulgarian, Romanian and what are called accessible formats. There is also an email helpline, which farmers whom I know and chatted to over the weekend said was incredibly helpful for setting out a future and meant that, at least for a couple of years—they can only go out so far—they know the exact position. You can plan as a business; you can talk to the people you will bring into your farming business; you can plan ahead. Remember of course that the agricultural sector is one-third of the size of the cultural sector, and it is not growing, because we cannot grow the amount of land in the UK. If there are special arrangements for that, and given that I believe the interpretation of the MAC’s advice is wrong and that its advice is therefore not inconsistent with having a similar approach for the cultural sector, there should be special arrangements for the cultural sector. I have no doubt that they will be very similar to the ones recommended by the committee of the noble Lord, Lord Jay. I have only one question: does the Minister agree with that analysis?

Data Protection Bill [HL]

Earl of Kinnoull Excerpts

3rd reading (Hansard): House of Lords & Report: 2nd sitting (Hansard): House of Lords
Wednesday 17th January 2018 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, I strongly support this excellent group of amendments. I declare my interests as set out in the register, particularly those in respect of the insurance industry. I am enormously grateful to the Minister for being so generous with his time in the process that has led to the birth of these amendments. His Bill team has been quite outstanding—I see some of them sitting over there—and I thank them as well. I also thank three other Members of your Lordships’ House: the noble Lord, Lord Clement-Jones —who yet again was emailing me at 11 o’clock last night —and the noble Lords, Lord Hunt of Wirral and Lord Stevenson of Balmacara, who have been great supporters in trying to make sure that the ordinary man in the street can continue to buy insurance at a good price.

I have one tiny point of clarification, which will be very easy for the Minister to answer. He talked about insurance and I have talked about insurance, but it is important that reinsurance is understood, as well as retrocession and all the other words. We are talking about the whole concept of insurance and if he could confirm that reinsurance, retrocession and other things are included, that would be very helpful.

Anyway, with this change the man in the street will be able to buy personal and business insurances that involve special category personal data and yet the GDPR will have arrived. Insurers will have to improve their game somewhat—never a problem for the good, and important for the back-markers in the industry.

[Lord Clement-Jones]

My Lords, I congratulate the noble Earl on the assiduous way in which he has pursued these issues on behalf of the insurance industry, and thank the Minister for his close engagement on them. We very much welcome these amendments but I have a couple of clarificatory questions for the Minister, the answers to which would be helpful in making sure that we all understand the exact position of the insurance industry relative to these new provisions.

The proposed derogation to paragraph 13A of Part 2 of Schedule 1 does not specifically address the processing of data relating to criminal convictions or offences. First, can the Minister confirm that paragraph 28 of Part 3 of Schedule 1 may be read in conjunction with paragraph 13A of Part 2 to permit the processing of data relating to criminal convictions or offences where it is necessary for an insurer to process this data for policy underwriting and claims management or related money laundering and anti-fraud activities? The reference in paragraph 13A to,

“racial or ethnic origin, religious or philosophical beliefs or trade union membership, genetic data or data concerning health”,

would appear to preclude this, but we assume that this is not the intent.

Secondly, can the Minister confirm that the processing of special category data or data relating to criminal convictions or offences by insurance companies and related intermediaries, such as reinsurers and brokers, for the purposes of conducting insurance-related business and managing claims will be regarded by the Government as purposes that are in the “substantial public interest”?

Data Protection Bill [HL]

Earl of Kinnoull Excerpts

Report stage (Hansard - continued): House of Lords
Monday 11th December 2017 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, in Committee the noble Earl, Lord Kinnoull—I am very grateful to him for his help and that of the industry bodies that I have now met—told us that the language in the Bill enabling the processing of sensitive data relating to employment might be interpreted more narrowly than the similar wording in paragraph 2 of Schedule 3 to the Data Protection Act 1998. This was never the Government’s intention and I thank the noble Earl and the noble Lord, Lord Clement-Jones, for bringing the issue to the Government’s attention. Amendments 11 and 12 to address these concerns by reverting to the wording used in the 1998 Act, thereby removing any doubts as to their proper interpretation. I will sit down and wait for the noble Earl to propose his amendments and reply to them after. I beg to move.

[The Earl of Kinnoull (CB)]

My Lords, I am very grateful to the Minister for that news on those government amendments. It is very helpful and will prevent a lot of insurers having to redo their administrative systems. I shall speak to Amendments 25 and 26, which are another pair of insurance amendments. I declare my interests as set out in the register of the House, particular those in respect of the insurance industry.

I thank the noble Lord, Lord Clement-Jones, who has been very helpful. He brings great clarity at all times of day to our discussions. Although he is the chairman of the Artificial Intelligence Select Committee, his intelligence is far from artificial and is most helpful. Also, I see the Bill team over there. They have been excellent. Given the amount of fire coming in they are very calm, collected and user-friendly. I thank them for everything they have done so far on the Bill.

The Lloyd’s Market Association, the British Insurance Brokers’ Association and the Association of British Insurers, among other insurance associations, have helped in the preparation of some of these remarks. The insurance industry is trying to deliver products in the public interest. Indeed, some major classes of insurance, such as motor insurance and employers’ liability insurance, are compulsory. There is a long list of other insurances that are quasi-compulsory. For instance, one cannot get a mortgage without buying household insurance. It is greatly to society’s benefit that a wide choice of good products is available at a reasonable price.

Data Protection Bill [HL]

Earl of Kinnoull Excerpts

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

Moved by

[The Earl of Kinnoull]

45B: Schedule 1, page 116, line 35, leave out paragraphs 14 and 15 and insert—
“(1) This condition is met if the processing—(a) is necessary for the purposes listed in sub-paragraph (2), and(b) is necessary for reasons of substantial public interest.(2) The purposes mentioned in sub-paragraph (1)(a) are—(a) the arrangement, underwriting, performance or administration (or assisting in the arrangement, underwriting, performance or administration) of a contract of insurance or reinsurance;(b) the handling or administration (or assisting in the handling or administration) of a claim made under a contract of insurance or reinsurance.”

[The Earl of Kinnoull (CB)]

My Lords, I will speak also to Amendments 46A, 47A, 48A and 50A. We move to a series of probing amendments relating to insurance. I am concerned about many practical things in the Bill, and what I see as unnecessary and unwise obstacles for insurance in general, and for motor insurance and employer liability insurance in particular. I declare my interests as set out in the register of the House and, in particular, those in respect of the insurance industry.

I thank the noble Lord, Lord Clement-Jones, for his support for these amendments—indeed, he was emailing me late last night—and I thank the Minister for a generous slice of his time last week. I also thank the Association of British Insurers and the Lloyds Market Association for their help in preparing my remarks. They, in turn, have had input from the four other major insurance market associations and other bodies.

The insurance industry delivers products in the public interest. Indeed, some of the major classes, such as motor insurance and employer liability insurance, are compulsory. It is greatly to society’s benefit that there is a wide choice of good products available at a reasonable price. It is less well understood in the wider world what an important part reinsurance plays in supporting insurers by protecting insurance companies from large unexpected losses and providing temporary extra capital when it is needed. In other words, insurers, too, need a wide choice of good products available at a reasonable price. It is a complex ecosystem, and unintended consequences tend almost invariably to hurt the man in the street.

The impact assessment called for the setting of new standards in accordance with the GDPR,

“whilst preserving the existing tailored exemptions from the Data Protection Act”.

Later on in the same page of the impact assessment there is a call for,

“exercising the derogations in the best interest of the UK”.

In fact, the impact assessment has several references to business and insurance business which make it plain that the Government do not intend to place an undue extra burden on business. I am grateful to the Government and the Bill team for having gone some way to alleviating the problems—but I fear that we need to go a lot further.

Sensitive personal data under the current Data Protection Act 1998 has become special category personal data in the GDPR. The treatment of special category personal data looks similar under the GDPR and the DPA, with consent as the applicable legal ground under which data can be processed in most cases. However, what has changed is the definition of consent, with the threshold for valid consent under GDPR now being much higher.

For insurers and reinsurers, the two most common types of special category personal data are information relating to health and information relating to criminal convictions. Being able to consider health and criminal conviction data is hugely important for insurers uniformly and throughout the world. The ABI estimates that the ability to process these types of data helped in detecting around £1.3 billion in fraudulent claims in 2015 alone, and I fear that the Bill unamended would therefore potentially increase costs for millions of motor insurance policyholders. To get an idea of the size of the market where health data is required for underwriting and claims purposes, the LMA has advised me that it identifies annual Lloyd’s market premiums alone of at least £2.3 billion a year.

Processing special-category data, including health data, is fundamental to calculating levels of risk and underwriting the majority of retail insurance products. ICO draft guidance infer that consent as a precondition of accessing a service, as would be the case for a proposal for an insurance contract, would not be a legitimate basis for processing special-category personal data.

Let us take the example of a daily smoker who at retirement age tries to buy an annuity. They would be asked to provide their medical details. This health data would establish that the individual has a below-average life expectancy. The insurer is therefore able to offer an enhanced annuity that pays the individual a higher percentage of income every year.

Under the Bill and its associated draft ICO guidance, insurers would not be able to access the individual’s medical records as consent is a precondition of accessing the enhanced annuity market and therefore such consent cannot be freely given. Insurers would be unable to offer an enhanced annuity and the individual would be treated as a consumer with average life expectancy and receive a lower income from their annuity. This would be a highly undesirable state of affairs.

Take the situation where an insurer has a direct relationship with the insured—a personal motor policy, let us assume. It would seem relatively easy for them to obtain a consent for all processing. However, it is not. More than half the motor insurers in the UK make use of the Motor Insurance Bureau’s MyLicence anti-fraud facility. This third-party service, available to all insurers, allows them at the quote stage to understand a driver’s record using DVLA data. Express consent is not possible and nor, for the same ICO reasoning as my annuity example, would any consent anyway be valid. If the Bill is unamended, this would be bound to drive up premiums for motor insurers, as a principal defence against fraud would cease to exist.

--- Later in debate ---

[Lord Ashton of Hyde]

Of course, it is not for us to tell the Information Commissioner what guidance to issue. The guidance that has been issued is not in all respects completely helpful to the insurance industry.

[The Earl of Kinnoull]

Following up the noble Lord’s point, I would like to say a couple of things. First, I sort of understand where the Information Commissioner’s Office is coming from. I have article 7 in my hands, which contains the definition of consent from the GDPR, and article 9(2)(a). My concern is that even if the Government are very nice to an Information Commissioner and persuade them to change the guidance, it could change at any time. It is important to ensure that the Bill will work for the ordinary man in the street. As for compulsory classes, it is not about looking after the insurers but every small business in Britain and every small person who wants to get motor insurance, especially those who have problems with either criminal convictions or their health.

[Lord Ashton of Hyde]

I agree; I think I mentioned compulsory classes before. Going back to the guidance, we are having discussions. We have already had constructive discussions with the noble Earl, and we will have more discussions on this subject with the insurance industry, in which he has indicated that he would like to take part. I am grateful to him for coming to see me last week.

--- Later in debate ---

[Lord Ashton of Hyde]

I agree, which is why I mentioned the guidance that the Information Commissioner has already given. I am certainly willing to talk to her but it is not our place to order her into the room. However, we are constantly talking to her, and there is absolutely no reason why we would not do so on this important matter.

[The Earl of Kinnoull]

I thank all noble Lords who have taken part in this short but interesting debate. Of course, the Information Commissioner reports to Parliament, so if we held a meeting here, we probably could ask her, quite properly, to come. That might be quite helpful in this complex area. As I said, when you mess around in these areas, the person who suffers is the man in the street, not the insurance companies. The noble Lord, Lord Stevenson of Balmacara, in particular made a number of interesting points in speaking to his amendment, which need to go into the mix as regards how we sort through this difficult area.

I am very grateful to the Minister for confirming that we will continue discussions in this area. I do not think for a moment that I necessarily have all the right answers, but we have started on the journey and will continue. We will certainly be talking about the same issues again in different formats on Report and I look forward to that very much. On that basis, I beg leave to withdraw the amendment.

Amendment 45B withdrawn.

Data Protection Bill [HL]

Earl of Kinnoull Excerpts

Monday 6th November 2017 Lords Chamber

[The Deputy Chairman of Committees (The Countess of Mar) (CB)]

If this amendment is agreed, I cannot call Amendments 25A or 26 because of pre-emption.

[The Earl of Kinnoull (CB)]

I speak to Amendment 25A and declare my interests as set out in the register, particularly those in respect of the insurance industry. I thank the noble Lord, Lord Kennedy of Southwark, for a clear introduction to his thinking. I am also looking forward to hearing what the Minister says later on.

Amendment 25A is essentially a probing amendment relating to another problem of unintended consequences of the Bill’s far-reaching provisions. The impact assessment, in its section entitled “policy objectives and intended effects”, talks of setting new standards in accordance with the GDPR,

“whilst preserving existing tailored exemptions from the Data Protection Act”.

Later on, the assessment talks about ensuring that,

“the burden on business is kept minimal”.

Amendment 25A is designed to avert just such an unintended consequence which, although small in words, would be substantial in effect for insurers and therefore affect people who want to take out policies. Without this amendment, the Bill would affect insurers’ ability to process data in relation to obligations in connection with employment law. In short, they will have to redesign all their processes in what is a substantial and important area. The amendment changes the wording back to that in paragraph 2(1) of Schedule 3 to the Data Protection Act 1998, so that insurers can continue to use existing procedures. It is entirely consistent with the GDPR, in particular with article 9(2)(b), which is the bit which affects this and calls for safeguards. I can think of no better watchdogs than the Information Commissioner’s Office and the FCA. I therefore feel that this amendment should be uncontroversial and look forward to hearing the Minister’s reasoning on it. I would welcome discussions outside the Chamber should he want further detail.

[Lord Kakkar (CB)]

My Lords, I support Amendment 108A and remind noble Lords of my entry in the register regarding my duties as a doctor and medical researcher.

The overriding duty in common law to protect medical confidentiality is vital to contemporary clinical practice. There are considerable concerns that Clause 15 might provide an opportunity for that duty to be overridden through the application of future regulations. It is important for Her Majesty’s Government to establish that that is not possible and could not be the case in the future. The provisions in common law regarding medical confidentiality provide further safeguards for healthcare data beyond those provided in current data protection regulation and statute. It would be a retrograde step if provision were made that destroyed those safeguards. That might be manifested in a greater reluctance for individual patients to share their confidential information with healthcare professionals. This may result in a poorer ability for the public interest to be satisfied and safeguarded in terms of collecting data on important public health issues. It may also result in greater reluctance for individuals to participate in medical research or to provide their data for fear that it may be shared in the wrong way. Can the Minister provide reassurance that the application of Clause 15, as drafted, would not result in undermining this common law duty, and therefore have serious unintended consequences in the future? If Her Majesty’s Government are not able to provide that reassurance, how would they go about dealing with Clause 15? Would they include in the Bill a measure such as that proposed in Amendment 108A, or what other mechanism would they provide to ensure that this vital common law duty is in no way affected in the future?

--- Later in debate ---

[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.