European Union (Withdrawal) Bill

Debate between Lord Faulks and Lord Stevenson of Balmacara

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Stevenson of Balmacara]

My Lords, I thank the noble Lords, Lord Warner and Lord Clement-Jones, for their contributions. The interesting exchange we have had here went a bit wider than we perhaps needed to do on this Bill. But I am afraid that it reflects our concern on two, or perhaps now three, sides of the House that we may have missed something quite important in relation to the Data Protection Bill and its assurance of the fundamental rights involved in it.

The Minister said that she felt that the Government had fully implemented the GDPR through the Data Protection Act—but I do not think that is right. This is for another time, but the amendment to Clause 2 that was made on Report, which we welcomed and signed up to, flagged up that the Government had not quite yet got to the bottom of the argument. The rights deficit that arises with the failure to ensure that Article 8 of the Charter of Fundamental Rights is in place as a back-stop or underfloor element to the Data Protection Act means that there may be dangers going forward. That was the starting point for this amendment. If it is possible to see it more fully worked in the way that was suggested creatively by the noble Lord, Lord Warner, building on an earlier suggestion from the noble and learned Lord, Lord Mackay, with the Bill picking out high-risk areas in our public life which need to be given extra protection, that might be a solution to one of the issues raised.

[Lord Faulks (Con)]

I know that the noble Lord is coming back to an issue which was much discussed during the course of the Data Protection Bill. The charter, in particular, was raised in that context. But one of the difficulties pointed out during those debates was that the charter is expressed in generalities, as opposed to the Data Protection Act we now have, which is far more specific. The noble Lord once again invokes the charter. He will not have forgotten that the Human Rights Act and Article 8 are expressly preserved by Clause 7(7). Does he not agree that we are trying to have as clear a position as possible? The Minister explained that Clause 7 is of a limited but important purpose: to enable that clarity to be achieved.

[Lord Stevenson of Balmacara]

I am grateful to the noble Lord for his intervention, because it allows me to refer back to the recently received JCHR report, Legislative Scrutiny: The EU (Withdrawal) Bill: A Right by Right Analysis. I am sure he is familiar with it. It says, if I can find the paragraph—I will talk quickly until I do—that there is still some doubt as to whether the treatment accorded to Article 8 of the Charter of Fundamental Rights is covered in the Data Protection Act. The report says:

“The Government … relies heavily in its analysis”,


on the GDPR,

“as a means of incorporating Article 8 of the Charter into domestic law. The GDPR and the Data Protection Bill contain numerous rights for data subjects. However, the Bill does not explicitly incorporate Article 8 … Given the vast number of exemptions and derogations from these rights provided for in the Bill, there is a question as to whether the Bill offers protection that is equivalent to Article 8 of the Charter”.

I put it to the noble Lord that this is an open question.

I know that I am straying into territory that we do not need to, but I started doing that because I was aware that my noble friend the Leader of the Opposition had not yet arrived to take the Statement. I have now been caught going a bit further than I should have, and I apologise to your Lordships’ House. I will sum up quickly. I accept the good intentions from the Minister. May I suggest to her that it might be worth one further discussion on this issue before we finalise our consideration of this Bill and the Data Protection Act? With that, I beg leave to withdraw the amendment.