Data Protection and Digital Information Bill

Debate between Lord Anderson of Ipswich and Lord Davies of Brixton

Committee stage
Wednesday 24th April 2024 Grand Committee

[Lord Anderson of Ipswich (CB)]

My Lords, I apologise to the Committee that duties elsewhere in the House prevented me from attending the last two debates on Monday and so from speaking to the amendments that I had tabled and signed. However, I have read the Official Report with care.

I cannot pretend to be a data protection nerd, or even a social security nerd, like some speakers in those debates, but I hope that I pass muster as a surveillance nerd, having written for the Home Secretary two of the reports that informed the Investigatory Powers Act 2016 and, more recently, a report that informed the Investigatory Powers (Amendment) Bill, which I see is to be given Royal Assent tomorrow.

I support all the amendments in the name of the noble Baroness, Lady Sherlock, in this group. Of course there must be a code of practice. Of course it must be consulted on and scrutinised. I would add that that of course we could not contemplate passing this schedule into law until we have seen and studied it. An annual report of the sort that accompanies the reasonable suspicion power to issue financial institution notices, exercised by HMRC under Schedule 36 to the Finance Act 2008, would also be useful. For example, it is from the last of those reports, dated January 2024, that I learned that these reasonable suspicion tax information powers were now being used to obtain location data—something that it had previously been said would not be done.

Dan Squires, one of the authors of the legal opinion that I know was referred to on Monday, is not only a King’s Counsel but a deputy High Court judge and a genuine expert in this area. He and his junior, Aidan Wills, point in that opinion to the personal nature of some of the data that could be harvested under the proposed power and advise that Schedule 11 does not come close to the safeguards required for compliance with Article 8. They refer in particular to the striking lack of clarity about the grounds on which and the circumstances in which the proposed power can be used, as well as to the absence of both independent authorisation and independent oversight. They point out that, although saving up to £600 million over five years is a very important objective, it weighs no more heavily—indeed, probably less heavily—than the normal justifications for obtaining information in bulk: protecting national security and the prevention and detection of serious crime. Their opinion is well referenced, persuasive and consistent with the view on proportionality expressed by both the Information Commissioner and the Constitution Committee, on which I sit.

On Monday, the Minister referred to the power in Schedule 23 to the Finance Act 2011 to obtain certain data items from particular classes of data holder—for example, employers and land agents. So I had a look at that schedule and the data-gathering regulations under its paragraph 1. The power would appear to apply only to certain tightly defined items, such as payments made by the employer or arising from use of land. There would appear to be a noticeable contrast with location data, personal spending habits and so on, which fall within the scope of the powers in this schedule, as they are written in the Bill. Both HMRC and the Home Office operate under powers tightly defined in legislation. Assurances that those powers will be used in a restrained way, as Justice has commented in its useful briefing on the Bill, simply do not cut it. I am afraid that the law requires the DWP to be subject to the same constraints.

I am concerned: concerned that this important new power was not subject to detailed consultation or even to scrutiny by a Commons Bill Committee, where useful evidence could have been heard; concerned that it could even have been contemplated that so vague a power might be in the Bill and not accompanied by a code of practice; concerned about the absence of an independent approval and oversight mechanism, equivalent to the Office for Communications Data Authorisations and the Investigatory Powers Commissioner’s Office; and concerned that, if we do not get this potentially valuable power right from the start, it will immediately be subject to legal challenges, which will swiftly render it unusable.

If, as I believe, Schedule 11 is currently unfit for purpose, is there time to rescue it? I have a couple of practical suggestions. First, I saw the investigatory powers unit from the Home Office when it happened to be in the House yesterday, and I wondered if there might be utility in it comparing notes with the Bill team about these types of powers and their attendant safeguards.

Secondly, I hope the Government appreciate the significance—at least to us nerds in the Committee—of the legal analysis of Dan Squires KC and Aidan Wills. If we are to be told that it is mistaken, which would certainly be unusual, I for one would like to see that backed up by an opinion from a lawyer of equivalent stature, whether at the GLD or independent counsel, explaining precisely and persuasively why Mr Squires and Mr Wills are wrong. Otherwise, and without significant change of the type identified in the opinion, I am afraid I am not inclined to give this schedule the benefit of the doubt.

I signed up to the stand part notice of the noble Baroness, Lady Kidron, thinking it would at least be a platform to think about what amendments to the schedule might be needed. The more I read the schedule and the more I hear about it, the more I am driven to the conclusion that, if we do not see substantial change, opposing the schedule may be the way that we have to go at the next stage.

[Lord Davies of Brixton (Lab)]

In the two previous groups, I raised pension credit, and it is notable that the noble Viscount the Minister has not responded on that point. As such, my automatic assumption is that he believes that the implementation of these powers will deter people from seeking pension credit, which is contrary to the Government’s declared policy to encourage people. I mention that in passing, given this opportunity.

My other moan is about the impact assessment; there is none. I do not like the impact assessment that we have. It is a totally impenetrable and meaningless document, which is clearly there just as a matter of form rather than as a serious attempt to try to inform participants in these debates about what is in the Bill and what impact it will have on people and organisations.

My specific points are broadly in line with the points raised by UK Finance, the overall organisation for financial organisations, including banks and insurance companies, which continues to have serious concerns about these provisions. I think we should listen carefully to what it says. In particular, if we are going to have these powers then, in line with the amendments tabled by my noble friend Lady Sherlock, we have to make sure that they are introduced in an effective way that appreciates the vulnerabilities of customers.