Data Protection (Fundamental Rights and Freedoms) (Amendment) Regulations 2023

Debate between Lord Bassam of Brighton and Baroness Swinburne

Tuesday 12th December 2023 Grand Committee

[Lord Bassam of Brighton (Lab)]

The Minister will probably be relieved to know that I do not have a speech as long as that of the noble Lord, Lord Clement-Jones, but I share many of his concerns. I would very much appreciate some of the detailed questions that the noble Lord asked being put to the test in an essay to us, perhaps in the form of a letter. That might be very helpful.

As the noble Baroness said, the regulations propose to replace the definition of fundamental rights and freedoms contained in the UK general data protection regulation and the Data Protection Act 2018. As the SLSC noted, these are currently defined by reference to rights contained in retained EU law.

I share the concern of the noble Lord, Lord Clement-Jones, that the regulations were originally to be under the negative procedure. I am glad that the Minister and officials have decided that that was an unwise course, because it would have given us very little control over the process and would not have enabled the sort of scrutiny that we in this House have come to expect.

I also share the noble Lord’s concern about the data protection framework being a weak spot. There is not much question about that. As he says, this acts as a curtain-raiser to our discussions and debates on the Bill coming forward next Tuesday. The data protection framework is undoubtedly being changed and not, it seems, for the better. These regulations foresee a time when there will be a weaker level of data protection, and I do not think that is in the public interest.

The DSIT colleague, as the noble Lord, Lord Clement-Jones, said, told the SLSC that

“the impact on organisations and individuals as a result of the proposed changes was expected ‘to be minimal’, … but … was unable to rule out entirely potential differences in the rights and freedoms”.

As the SLSC concluded, while DSIT had

“not identified any discernible impact, any changes in this sensitive area may be regarded as politically significant”

and something on which, quite rightly, the House would want to comment.

We welcome the work of the sifting committees and that, as a result of their reports, the SI is being debated as it should be. We do not oppose the statutory instrument. We share the sifting committees’ concern about changes brought by the repeal of EU-derived rights at the end of the year and that these may, directly or indirectly, lead to a lower overall level of protection for individuals. However, we note that, while we are debating the SI only a short time before the Christmas Recess, the department did publish draft regulations in September. This has given relevant parties time to prepare for the changes, which has not always been the case under different iterations of His Majesty’s Government.

As highlighted by the Commons debate, we must consider this SI in the context of broader changes to domestic data protection law, and the potential long-term consequences of these changes on our relationship with other jurisdictions. As I said earlier, your Lordships’ House will shortly begin consideration of the Data Protection and Digital Information Bill. Concerns have already been voiced that this will lower data protection standards and thresholds and, as a result, put our EU data adequacy decision at risk when it comes up for review.

We will have the opportunity to discuss those issues in more detail next week, but we would be grateful to the Minister if she could distance herself from the unfortunate comments of Minister Whittingdale in the Commons, who accused my colleague, Sir Chris Bryant, of appearing to see conspiracy where none actually exists. We do not believe that is the case; we believe these concerns are rightly stated. It is our role to scrutinise His Majesty’s Government and to ask legitimate questions that are of concern to the public. We are doing so at a time when there are live debates within the Conservative Party about the extent to which the UK should adhere or even remain signatories to international human rights treaties.

So, while we support the SI’s passage, as it will keep the statute book in order as parts of retained EU law are swept away, the department has a lot more work to do to convince us and other noble Lords of its broader approach to data protection law. I give notice today that we will be following very closely the debates next week scrutinising legislation at Second Reading and, with colleagues, will no doubt be submitting amendments to the legislation to toughen it up. It is clear to us that there is a direction of travel, and it is not one that we agree with.

[Baroness Swinburne (Con)]

I thank noble Lords, who are very well versed in this topic and have obviously spent a lot of time thinking about it. I have had some flashbacks to my time in the European Parliament, where I did the original GDPR. I am glad that people now think it was a perfect piece of work. At the time, people were very critical of what we did.