Data Protection Bill [HL]

Lord Arbuthnot of Edrom Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 15th November 2017 Lords Chamber

[Lord Stevenson of Balmacara]

I thank your Lordships.

Amendment 108B would prevent regulations under this section being used to amend, repeal or revoke the GDPR after Brexit. This may seem a rather tough charge to lay at the Government’s door. However, concerns about adequacy after Brexit will be so important that it may be in the Government’s best interest to ensure that the Bill contains no hint that the GDPR after Brexit, which will be the responsibility of this Parliament and this Parliament alone, could be amended simply by secondary legislation. If the Government follow this argument they will see that it has a symmetry behind it that encourages the approach taken here, in that when we are a third party and need to rely on an adequacy agreement the GDPR will be seen to be especially ring-fenced.

I will also speak to the other amendments in this group, two of which come from recommendations on delegated legislation made by your Lordships’ House. Amendment 110B is about replacing the current requirement for a negative procedure with a requirement for an affirmative one. In order to explain that, it is probably best if I quote from the report itself. The DPRRC took the view that the framework for the transfer of personal data to third countries should be provided on a test greater than just simply the negative procedure. This is a major issue. One possible example is if the Government were to use the argument that it was in the public interest to transfer bulk personal data held by a UK government department to the agencies of a foreign power—a remote possibility, I know. That would be of interest to the House and probably would need to be debated. The recommendation is that a change should be made from a negative to an affirmative procedure, and that is what this amendment seeks to do.

In a similar vein, the proposal to delete Clause 21 comes from the DPRRC report. The report says that the committee was,

“puzzled by the inclusion of … a suite of delegated powers … to provide by regulations for various exemptions and derogations from the obligations and rights contained in the GDPR which, as noted above, may … be exercised in respect of ‘the applied GDPR’. The memorandum fails to explain why those powers are considered inadequate, or why the Government might need to have recourse to the distinct powers in section 2(2) of the 1972 Act—which allows Ministers to make regulations”,

around EU obligations. The point is that there will be a period after Royal Assent to the Bill and when the country leaves—if it does—the EU in which it is possible that the Government will wish to make regulations. The committee assumes that this clause has been included just in case the Government decide that these powers are required. But the committee goes on to say:

“We consider it unsatisfactory that the Government should seek to take this widely drafted power without explaining properly what it might be used for”.


I therefore call on the Government to do so if it is appropriate at this time.

The final two amendments in the group, Amendments 180A and 180B, play to the same issue: that the powers, however they are finally settled, will still be wide ranging and grant the Government of the day a considerable amount of power to introduce rules by secondary legislation. In a sense, that is inevitable given the way that things are going, and we are not attacking the main principle. The question is around what safeguards would be appropriate. On these powers we think it would be appropriate for the Government to consult not only the commissioner, for which there is a provision, but the data subjects affected by the regulations. This is not a power that is currently there and we recommend that the Government consider it. I beg to move.

[Lord Arbuthnot of Edrom (Con)]

My Lords, I hope I will not add to the troubles of the noble Lord, Lord Stevenson, when I say that I am troubled by a couple of his amendments, Amendments 108B and 180A. The former suggests that the Government should not be permitted to,

“amend, repeal or revoke the GDPR”.

I know the Government will have responsibility for the provisions of the GDPR, but these are surely provisions for which the regulations either are or are not. They are European Union regulations, and I would not have thought the Government would have the power to amend or repeal them.

I am also confused, as so often, by the fact that we have already discussed whether Clause 15 should stand part of the Bill but are now considering an amendment to it. No doubt that is just one of the usual vagaries that leads to my confusion about the procedures of this House.

I move on to Amendment 180A, which suggests that the Secretary of State must consult not only the commissioner but data subjects. I am not sure how on earth he could find out who those data subjects were in order to consult them. Therefore, due to practical concerns, I hope the noble Lord will not press the amendment to a Division.

[Lord Paddick (LD)]

My Lords, I will briefly comment on Amendment 108B. Taking up the position of the noble Lord, Lord Arbuthnot of Edrom, is it not the case that if we leave the European Union, the GDPR will then become, by means of the repeal Bill, part of UK law and therefore could be changed, which is why the amendment makes sense?

However, while I agree with the argument of the noble Lord, Lord Stevenson of Balmacara, that if parts of the GDPR were amended, repealed or revoked after we have left the EU, this may affect the adequacy decision of the European Union. Presumably, if the European Union makes changes to the GDPR it would be advantageous for the Government to be able to respond quickly by means of secondary legislation to those changes to ensure that we can continue to have adequacy—that is, when the change is on the EU side rather than on the UK side. Perhaps the Minister will clarify that.