Data Protection Bill [HL]

Debate between Lord Clement-Jones and Lord Brown of Eaton-under-Heywood

3rd reading (Hansard): House of Lords & Report: 2nd sitting (Hansard): House of Lords
Wednesday 17th January 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I strongly support this group of amendments, perhaps unsurprisingly given that they have now been brought forward in place of a series of broadly similar amendments which, as the Minister has mentioned, I tabled on Report. They achieve the same basic objective, which is to safeguard parliamentary privilege and thereby ensure that this House, along with the other place, can continue to go about its business and fulfil its vital constitutional role without inappropriate inhibitions and concerns with regard to the protection of data and privacy, which of course the Bill as a whole is rightly designed to protect.

As I made plain on Report, I was prompted to table the original amendments by and on behalf of the officials of both Houses, that is to say, the clerks and counsel, because of their concern about how, unamended as it then was, the Bill risked infringing parliamentary privilege in the various ways that the Minister has recounted. These concerns were raised and over recent months they have been discussed extensively between officials and the Bill team. Again I express my gratitude and pay tribute to the Bill team for its hugely constructive help and co-operation throughout. As now formulated, these amendments substantially and realistically meet the concerns of officials, and accordingly I welcome them.

[Lord Clement-Jones (LD)]

My Lords, we should all thank the noble and learned Lord, Lord Brown, together with officials of the House, for having prompted these amendments. In thanking the Minister I want also to mention in dispatches my noble friend Lady Hamwee. She highlighted this point early on in Committee, I think to the incredulity of the House at the time because it was thought that it was only Members of Parliament who should have the exemptions in the Bill. These elegant solutions demonstrate that parliamentary privilege covers both Houses.

Data Protection Bill [HL]

Debate between Lord Clement-Jones and Lord Brown of Eaton-under-Heywood

Committee: 1st sitting (Hansard): House of Lords
Monday 30th October 2017 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I remind the Committee that this is an intensely practical issue. We have managed to lure many of our learned noble Lords from their chambers today—so clearly it has been a fairly expensive afternoon. I am only a humble solicitor and I tend to focus on what is practical and necessary for those whom we advise. The fundamental basis of these amendments is the concern in many sectors—manufacturing, retail, health, information technology and financial services in particular—that the free flow of data between ourselves and the EU continues post Brexit with minimum disruption. With an increasingly digital economy, this is critical for international trade.

We have been briefed by techUK, TheCityUK, the ABI, our own Lords EU affairs sub-committee, and the UK Information Commissioner herself. They have persuasively argued that we need to ensure that our data protection legislation is ruled as adequate for the purposes of permitting cross-border data flow into and out of the EU post Brexit. The first question that arises is: will the Government, even before any transition period, start the process needed to obtain an adequacy decision from the EU before we arrive at the status of a third country for EU data adequacy purposes?

However, as the Committee has heard today, if an adequacy ruling is to be sought, a major obstacle has been erected by the Government themselves in the European Union (Withdrawal) Bill, which makes it clear that the European Charter of Fundamental Rights will not become part of UK law as part of the replication process. Many noble Lords have spoken of their fears about the interaction with Article 8 of the charter, yet this article, relating to the protection of personal data, underpins the GDPR. How will we secure adequacy without adhering to the charter? Will the Government separately state that they will adhere to Article 8? We are not trying today to confer “special status”, in the words of the noble Lord, Lord Faulks, on Article 8. The wording of the amendment reflects Article 8, but it is designed to create certainty, post Brexit, for the sectors of business which I mentioned earlier.

Let us not forget that the EU Select Committee heard from witnesses who highlighted the ongoing role of the European Court of Justice and the continued relevance of the Charter of Fundamental Rights in relation to adequacy decisions. The amendment is not frivolous: it is essential to underpin an adequacy decision by the EU post Brexit. Does the House really want to put that decision at risk? I am sure that it does not. Whether now or in the future, we need to pass this kind of amendment. I look forward to hearing what the Minister has to say, which will determine whether or not the House divides.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, when I came into the Chamber, I had not the faintest intention of speaking in this debate. I do so, above all, for one reason: not because I am opposed to the amendment, although I am, very substantially, for the reasons given by the noble Lord, Lord Pannick. I do so because, in my experience, it is very unusual nowadays to vote at the outset of Committee stage on so fundamental a question as that raised by the amendment. It is surely yet more unusual—spectacularly so—to do so on a manuscript amendment filed this morning, which none of us has had sufficient time to deal with, on a very tricky area of the law, which so fundamentally alters the original amendment. As we have heard, that amendment was completely hopeless. The noble Lord, Lord Lester, described it as “constitutionally illiterate”. At least this one tries to introduce the concept of a balanced right which previously was missing.

It is true that I come from a different tradition where you do not vote on anything or decide anything unless you have heard the arguments. I rather gather that there may be a whipped vote on the other side, so the amendment is going to be voted on by noble Lords who have not heard the arguments of the noble Lords, Lord Pannick, Lord Faulks and Lord Lester, and who do not recognise the difficulties and the fundamental importance of this amendment. I seriously urge that it is not pressed to a Division today.