Data Protection and Digital Information Bill

Lord Bassam of Brighton Excerpts

Committee stage
Monday 22nd April 2024 Grand Committee

[Lord Bassam of Brighton (Lab)]

My Lords, Clause 109 makes changes to the regulations relating to the use of cookies, which, on the face of it, clarify and expand the PEC regulations. Some of the amendments seem benign enough, adding useful flexibility and much-needed clarity; others give the Secretary of State pretty wide-sweeping powers.

Taking a look at new Regulation 6A(1)(a), for example, a future Secretary of State will be able to add new exceptions to the cookie consent requirements. The regulation will also enable variations and omissions. All the Secretary of State would need to do is “consult” the commissioner and such other persons as the Secretary of State considers appropriate—so they will be left with some fairly wide powers and opportunities.

Before turning to Amendment 202 in the name of my noble friend Lady Jones of Whitchurch, I want to quickly respond to Amendments 199, 200 and 201, from the noble Lords, Lord Lucas and Lord Clement-Jones, and very ably supported by my noble friend Lord Chandos. These seek to introduce an additional exemption for cookies used for the purposes of non-intrusive audience measurement and ad performance, both of which are obviously very important to publishers, who need to understand how their websites are used and ensure that advertising is delivering revenue. It is famously hard to predict how successful advertising is; you are never quite sure whether the adverts are hitting home, but this sort of data is critical to that activity.

As noted by others, the Bill currently contains an exemption for cookies used solely for statistical purposes. It may be that the Minister is able to provide comfort to the publishing sector that audience measurement and ad performance are both areas that fall within this new exemption. If he cannot do that today, I hope he will be able to come back to interested colleagues in writing or, as the noble Lord, Lord Lucas, suggested, hold further discussions on this ahead of Report.

We had a number of significant debates during the passage of the Digital Markets, Competition and Consumers Bill regarding the fragility of the publishing sector. Newspapers, sectoral magazines and other sources fulfil a valuable role and we should seek to nurture that as far as is practical.

Amendment 202 in the name of my noble friend is another means of trying to support publishers by probing the potential consequences of the Government’s proposals around centralised cookie controls. Some users may happily accept cookies from the websites of trusted organisations, such as news sources that they use regularly, but generally decline cookies from other websites due to privacy concerns. I would like to know from the Minister how this nuance would be reflected if automatic preferencing is rolled out.

Organisations have also raised competition concerns. The number of mainstream internet browsers is incredibly small and they are operated by firms likely to be designated as having strategic market status under the digital markets Bill. If this legislation establishes a system that makes these browsers some kind of cookie gatekeeper, does that not risk amplifying existing competition barriers in digital markets, rather than bringing them down?

Our amendment would remove provisions around automatic cookie consent. Amendment 203 in the name of the noble Lord, Lord Lucas, proposes a different option, providing a straightforward means for users to override their general preference when using specific websites. That is an interesting alternative, and we need to listen carefully to the Minister’s reply because it gets to the heart of the issue. The noble Lord’s Amendment 204 would also be important, ensuring broader consultation before statutory instruments were brought forward under new Regulation 6B.

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[Lord Bassam of Brighton (Lab)]

I am interested in the Minister’s point about the flexibility the Government see in this clause, but I am not sure who in the end has the responsibility to lead on that flexibility. Will it come from the commissioner or be driven by the Secretary of State’s considerations? The consultation duties seem very dependent on the commissioner’s view and I am not sure at what stage the Secretary of State would want to intervene to ensure that they have got this bit right. That is very important, because the balance is quite sophisticated.

[Lord Clement-Jones (LD)]

The Minister used the expression “when the evidence emerges”, as did the noble Viscount, Lord Camrose, in another context last week. I would have thought that these organisations know what they are about, and they have provided some pretty comprehensive evidence about the impact on their businesses. Is that not a pretty good reason for the Government to think that they might not have this set of provisions entirely right, quite apart from the other aspects of this group of amendments? If that evidence is not enough—I read out the list of organisations—the Government are more or less saying that they will not accept any evidence.

[Lord Clement-Jones (LD)]

Will the Minister write and unpack exactly what the balance of opinion was? We are talking about pretty crucial stuff here. It is not always a question just of numbers; it is quite often a question of weighting the arguments. The Minister should write to us and tell us how they came to that conclusion, because the case was clearly being made during the consultation, but the Government have effectively ignored it.

[Lord Bassam of Brighton (Lab)]

In this tripartite geography that the noble Lord described, the power—

[Lord Clement-Jones (LD)]

It is a trifecta, actually—that is a betting term.

[Lord Bassam of Brighton (Lab)]

I am not a gambling man. It is an interesting term. The Minister is suggesting that power rests equally among those three elements but it does not. The Secretary of State is the all-powerful being and the commissioner is there to ensure that regulation works effectively. How will this operate in practice? There is no advisory body here; it is the Secretary of State having a discussion with the commissioner and then, on the balance of some of the consultation information that comes in, making a decision. That will not enable the sector, the market and those providers to be engaged.

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[Viscount Younger of Leckie (Con)]

I will need to get back to the noble Lord on that, but perhaps can reassure him that it is already being worked on. You can imagine that, because of the sensitivity of these powers, we are working very carefully on this and making sure that it will be fit for purpose.

[Lord Bassam of Brighton (Lab)]

Can we see the draft code of practice before Report?

[Viscount Younger of Leckie (Con)]

That is part of the answer that I gave to the noble Lord, Lord Vaux, which I think is a fair point.

The noble Baroness, Lady Kidron, asked about the code of practice and what steps my department will take to ensure transparency and accountability in the exercise of these powers if they are implemented. In the primary legislation, we will make provision to publish the code of practice, which will set out general guidance on how the third-party data power will work, as I have mentioned. We will develop the code of practice with relevant third parties and it will be consulted on publicly before being laid in Parliament. We will explain what the expectation is for data holders and ensure full compliance for the DWP. This will provide assurance that we will operate transparently and mirror the approach that we have taken with other DWP powers. Any changes to the code of practice, other than minor changes, will also be done in consultation with stakeholders.

The noble Baroness, Lady Kidron, stated that the power was too broad and the gist of one of her questions was that there is no need for all these benefits to be in scope. As the noble Baroness has demonstrated, there is a wide range of benefits and therefore potential avenues for fraudsters to seek to exploit or for error to creep in. That is why it is important that the power enables the department to respond proactively, as new fraud risks emerge.

That said, as the noble Baroness knows, the power will not be exercisable in all the benefits that she listed, such as child benefit, because the legislation is drafted in such a way that it could reasonably be exercised only in relation to benefits for which the Secretary of State is responsible. I reassure the Committee that using Section 121DA of the Social Security Administration Act 1992 is a consistent approach that we take to defining benefits in this way to safeguard all existing legislation and account for a benefit being, for example, renamed or amended. It should be stressed that the listing of a benefit does not mean that this power can or will be exercised upon it. The conditions in the third-party data legislation must still apply, and therefore not all benefits will be subject to this measure. That is a very important point.