Data Protection Bill [HL]

Lord Best Excerpts

Monday 11th December 2017 Lords Chamber

[The Earl of Erroll (CB)]

My Lords, I cannot add much to what the noble Baroness, Lady Kidron, said when she took us on her concise comprehensive canter through her amendments, but I will mention two things.

The first is in response to the noble Lord, Lord Arbuthnot, who is right to say that enforcement is essential, particularly because it is international—the internet is international. We faced this with Part 3 of the Digital Economy Act in trying to prevent children getting pornography. One of the things that became apparent is that the payment services providers are good on this sort of thing, and if it looks right and the community agrees it, they will withdraw payment services from people who do not comply. As most websites are out there to make money, if they cannot get the money in, they quickly come into line. So there may be some enforcement possibilities in that area, as it ends up being international.

The other thing we noticed is that the world is watching us in Britain because we are leading on a lot of these things. If we can make this effective, I think other countries will start to roll it out, which makes it much easier to make it effective. It is a big question because at the end of the day we are trying to balance the well-meaning desire of the developers and those producing these apps, who want to deliver a ubiquitous, useful utility everywhere, with the protection of the young. That is a difficult thing to do, which is why this has to remain flexible. We have to leave it up to someone who is very wise to get us there. If we get it right, this could be a very good step forward.

[Lord Best (CB)]

My Lords, I rise in support of these amendments, as if any further support were needed. I speak as the Member of your Lordships’ House who chaired your Communications Committee when we produced our report, Growing Up With the Internet. My noble friend Lady Kidron was a most distinguished member of the committee and greatly helped us in formulating our recommendations. Alongside support for parents and schools and other measures, the committee sought government intervention in curbing the poor practices of the organisations providing content and delivering the internet’s services to children, especially through social media. This group of amendments takes forward that central theme from the committee’s report, and I thank my noble friend and congratulate her on her foresight and tenacity in pursuing this. I also thank the Minister, backed by his Secretary of State, for supporting these amendments today.

The underlying significance of the amendments is that they establish a process for government—for society—to intervene in determining the behaviour of those responsible for internet services that can have such a huge impact on the lives of our children. In particular, the new process will cover the activities of huge global companies such as Facebook and Google, among the most prosperous and profitable organisations on the planet, which have the power, if only they would use it, to ensure the safety and well-being of children online. The process set in train by these amendments involves empowering the Information Commissioner to set the standards that all the key players will be expected to adopt or face significant sanctions. The amendments mark a necessary shift away from depending on good will and purely voluntary self-regulation. They represent a breakthrough in holding to account those mighty corporations based far away in Silicon Valley, to which the noble Lord, Lord Puttnam, made reference, and others closer to home. It is good to see major organisation such as Sky and TalkTalk supporting such a change, alongside the major charities such as the NSPCC.

Your Lordships’ Communications Committee and the whole House owe a huge debt of gratitude to my noble friend Lady Kidron for so diligently taking forward the arguments that have led to the significant change which these amendments herald. I know that the committee, as well as all those concerned with the safety and well-being of the nation’s children, will greatly welcome this big step towards ensuring better behaviour from all the relevant commercial enterprises. I suggest that this is a major step in protecting not just children in the UK but children around the world as the value of this kind of intervention becomes recognised, as the noble Earl, Lord Erroll, mentioned. The amendments get my fulsome support.

[The Earl of Clancarty (CB)]

My Lords, I will speak to Amendment 117 in my name, but before I do I warmly congratulate my noble friend Lady Kidron on obtaining this important code of practice for children. I apologise for not having spoken in the debate on this Bill previously, but Amendment 117 is significant and is also a children’s rights issue.

If there is to be—correctly—a sensitivity concerning age-appropriate understanding by children in relation to information services, the same should be no less true in the school setting, where personal data given out ranges from a new maths app to data collected by the DfE for the national pupil database. A code of practice needs to be introduced that centres on the rights of the child—children are currently disempowered in relation to their own personal data in schools. Although not explicitly referred to in this amendment, such a code ought to reflect the child’s right to be heard as set out in Article 12 of the UN Convention on the Rights of the Child. Among other things, it would allow children, parents, school staff and systems administrators to build trust together in safe, fair and transparent practice.

The situation is complicated in part by the fact that it is parents who make decisions on behalf of children up to the age of 18; although that in itself makes it even more necessary that children are made aware of the data about themselves that is collected and every use to which that data may be put, including the handing on to third-party users, as well as the justification for so doing. The current reality is that children may well go through life without knowing that data on a named basis is held permanently by the DfE, let alone passed on to others. There may, of course, be very good research reasons why data is collected, but such reasons should not override children’s rights, even as an exemption.

It is because there is no clear code of practice for a culture of increased data gathering in the school setting that we now have the current situation of growing controversy, enforcement and misuse. It is important, for instance, that both parents and children, in their capacity to understand, are made aware—as schools should be—of what data can be provided optionally. However, when nationality and place of birth were introduced by the DfE last year, many schools demanded that passports be brought into the classroom. In effect, the DfE operated an opt-out system. The introduction of nationality and place of birth data also raises the question of the relevance of data to improving education and its ultimate use. Many parents do not believe that such data has anything to do with the improvement of education. Last week, Against Borders for Children, supported by Liberty, launched an action against the Government on this basis.

There is now also considerable concern about the further expansion of the census data in January next year to include alternative provision data on mental health, pregnancy and other sensitive information without consent from parents or children, with no commitment to children’s confidentiality and without ceasing the use of identifying data for third-party use.

It was only after FOI requests and questions from Caroline Lucas that we discovered that the DfE had passed on individual records to the Home Office for particular immigration purposes. As defenddigitalme said, such action,

“impinges on fundamental rights to privacy and the basic data protection principles of purposes limitation and fairness”.

I appreciate that as the Bill stands such purposes are an exemption, but teachers are not border guards.

In 2013, a large number of records were passed to the Daily Telegraph by the DfE. In an Answer given on 31 October this year by Nick Gibb to a Question by Darren Jones, he incorrectly said that individuals could not be identified. There is no suggestion that there was any sinister intent, but many parents and schoolchildren would be appalled that a newspaper had possession of this data or that such a transfer of information was possible. Moreover, in the same Answer he said that he did not know how many datasets had been passed on. This is unacceptable. There needs to be a proper auditing process, as data needs to be safe. It is wrong too that a company may have more access to a pupil’s data than the pupil themselves, or indeed have such data corrected if wrong.

It is clear that from the Government’s point of view, one reason for having a good code of practice is to restore confidence in the Government, but this should not be the main reason. In September, Schools Week reported that the Information Commissioner’s Office was critical of the current DfE guidance, which is aimed at schools rather than parents or children and is, in the main, procedural. It said that rights were not given enough prominence. Both children and parents need to be properly informed of these rights and the use to which data is put at every stage throughout a child’s school life and, where applicable, beyond.