Data Protection Bill [HL]

Debate between Lord Keen of Elie and Lord Clement-Jones

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 6th November 2017 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, of course, we appreciate the contributions from all sides of the Committee on this issue, but let us be clear: this Bill is about data protection—it is not about press regulation. It is not about distinguishing between journalists, nor between the regulators they may or may not belong to.

The Government are committed to defending not only hard-won liberties but the operation of a free press. That is a fundamental principle of any liberal democracy. This Bill seeks to preserve the balance found in the 1998 Act, where journalists can process personal and special categories of personal data, but only when their processing is in the public interest and the substantial public interest respectively. The Bill also seeks to ensure that journalists are exempt from compliance with certain data protection requirements where to do so would undermine the operation of a free press, a key part of a strong and effective democracy where Governments are held to account and corruption and criminal behaviour can be challenged. No one seeks to condone the past misbehaviour of individual media organisations, nor to legitimise it.

Amendment 42 is moved by the noble Lord, Lord Stevenson. As we discussed last week in reference to Part 2 of Schedule 1, there is an exhaustive list of the types of processing which could be in the substantial public interest. When the Government consider that processing of a particular type will not always be in the substantial public interest, the Bill makes it a requirement that the data controller satisfies himself that any particular instance of processing is in the substantial public interest. Amendment 42 concerns the condition allowing journalists to process data in connection with unlawful acts and dishonesty, as dealt with in paragraph 10. The Bill, however, needs to balance freedom of expression with privacy and it may be that in some cases an act of dishonesty is not important enough and does not engage the substantial public interest to the extent that it justifies the processing of sensitive data by journalists. That is why the distinction is made.

To pick up on a point made by the noble Lord, Lord Stevenson, about continuity of arrangements in the 1998 Act, this processing condition is the same as that which currently appears under the existing Data Protection Act. It would appear that journalists have been dealing with that effectively and making the appropriate judgments for the last 20 years. I hope that that goes some way to explaining why we resist Amendment 42.

On Amendment 87B, I reassure the noble Lord that the specific inclusion of “photographic material” in paragraph 24(2)(a) of the schedule is unnecessary. This is because photographic material is likely to fall within one or more of the categories listed in that paragraph—for example, journalistic material or artistic material. We suggest that there is no requirement for express reference to photographic material. As for the point that was raised with the noble Lord by the NUJ, I think, about the use, the test is,

“with a view to publication”.

As long as that test is met, it does not necessarily follow that there must have been publication in order to legitimise the material in question. The position would, of course, be radically different if one had regard to one of the amendments moved by the noble Baroness, Lady Hollins.

Amendment 87E would remove the list of codes and guidelines in paragraph 24 of Schedule 2 that help controllers assess whether a publication would be in the public interest for data protection purposes and would replace it, as I understand it, with the term “appropriate codes”. I confess that I am a lawyer, to respond to a point made by the noble Lord, Lord McNally, or at least it is alleged that I am. That would certainly make it more difficult, as a matter for interpretation, for both publishers and the Information Commissioner to evaluate whether the publication of an individual’s personal data was in the public interest. Indeed, rather than the clarity of a list, one could instead be faced with years of potential litigation before an adequate body of case law was in place to establish what was appropriate. That is why we suggest it is appropriate that there should be a specific list, as reflected in the current legislation, the 1998 Act.

Amendments 88 and 89A concern the specific industry codes listed in the Bill. I start by saying that the codes currently listed in the Bill reflect those that are listed in the existing legislation. The editors’ code listed in the Bill—now enforced by IPSO rather than the Press Complaints Commission, I acknowledge —is one of these, and the Information Commissioner has already reflected this change in her current guidance on Section 32 of the existing Act. That follows from the Data Protection (Designated Codes of Practice) (No. 2) Order 2000, which set out the various codes of practice and included the editors’ code of practice. While there is a suggestion that the editors’ code of practice might change, in the light of any such change the Information Commissioner’s view and guidance as to the applicability of that code may also change. So it is not as if it is entirely without control.

[Lord Clement-Jones (LD)]

The Minister said that it could change, but the word IPSO is actually in the Bill, so I do not quite understand the point that the Minister has just made.

Sky and 21st Century Fox: Proposed Merger

Debate between Lord Keen of Elie and Lord Clement-Jones

Thursday 29th June 2017 Lords Chamber

[Lord Keen of Elie]

My Lords, I am obliged to my noble friend Lord Grade. I heartily endorse his observation that it is so important to keep the politicians out of these issues—that they should not become politicised. I endorse his observations about the independence of Ofcom in the context of this process. At the end of the day, fitness is for an independent regulator to determine. It would be a poor turn of events if we found that that was simply a political or ministerial decision.

[Lord Clement-Jones (LD)]

My Lords, I fully accept the Minister’s point about the independence of Ofcom and, indeed, the point made by the noble Lord, Lord Grade, about not politicising this process. But returning to the point made by my noble friend and the noble Lord, Lord Collins, about Leveson 2, how can a credible “fit and proper” report be drawn up by Ofcom when Leveson 2 has not taken place and two of the absolutely key terms of reference relate to improper conduct within News International and the corporate governance and management failures at News International?

[Lord Keen of Elie]

With respect to my learned friend—the noble Lord; I apologise—

[Lord Clement-Jones]

I am flattered.

[Lord Keen of Elie]

I have sometimes inadvertently made that observation with regard to a solicitor. At the end of the day Ofcom is satisfied that it has been able to reach a decision on that point and it has done so in a number of different contexts and for a number of years without the requirement for Leveson 2. But ultimately that is a matter for Ofcom. If it felt it was not able to arrive at a conclusion without Leveson 2, I have no doubt it would have said so.

Digital Economy Bill

Debate between Lord Keen of Elie and Lord Clement-Jones

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 6th February 2017 Lords Chamber

[Lord Keen of Elie]

It does not extend to Scotland. It is a provision pertaining to England and Wales. I am obliged to the noble Lord for giving me time to find my place in my notes. It is greatly appreciated.

As I said, the proposals in Chapter 2 of Part 5 will ensure that citizens are able to access future government digital services efficiently and securely, while removing the current reliance on paper certificates. I will address the two amendments first before addressing the clause stand part aspect of this debate.

Amendment 113 would add a requirement for a civil registration official to be satisfied that the information is required by a recipient to fulfil one or more of their functions before disclosing data and also seeks to add a requirement that an individual must have given valid consent under data protection legislation prior to any disclosure of their personal data. With respect, this amendment is unnecessary because disclosure of personal data under these clauses will already be subject to the provisions of the Data Protection Act. To require explicit consent in all cases would exceed the requirements of the Data Protection Act and the purpose of this clause. Disclosure will take place without consent only if to do so would be consistent with the Data Protection Act, which governs fair disclosure. Examples of how the powers would be exercised in practice include allowing registration officials to disclose information within and across local authority boundaries in order to safeguard children. Being able to share information will ensure that children are known to the local authorities in which they reside and action can be taken to address any needs of the child or the parent. That is what lies behind this matter.

Amendment 116 seeks to amend the Births and Deaths Registration Act 1953 to introduce an electronic register for the registration of births and deaths. However, the proposed amendment to Section 25 of the 1953 Act as currently drafted does not go far enough. The legislation which provides for the registration of births and deaths is based on legislation in place in 1836—or 1837—and very little has changed to the process of registering births and deaths since then. The Act would need more amendment in order to introduce an electronic register. Moving to an electronic register would remove the requirement for hard-copy registers and the electronic register of births and deaths would be the legal record instead of the paper registers. It is certainly an area of reform that the Government are keen to take forward. However, we need more time. I reassure noble Lords that the Government will look in more detail at what changes need to be made to the Act in order to bring in this change and we will consider legislating in due course. We recognise the benefits that the noble Lord, Lord Clement-Jones, suggested could be achieved once that entire process is completed. In light of those points, I hope that the noble Lord will agree not to press that amendment.

I turn to my noble friend Lady Byford and her opposition to the clause standing part of the Bill. Unless there is a specific statutory gateway, information from the records of births, marriages, civil partnerships and deaths may not be disclosed by registration officials other than in the form of a certified copy of an entry, such as a birth or death certificate, on payment of the statutory fee. As I have indicated, the system is outdated and based on paper processes from the 19th century. This clause introduces new data-sharing powers that allow registration officials to share data from birth, death, marriage and civil partnership records with public authorities for the purposes of fulfilling their functions. However, only the minimum amount of data will be provided to enable the public authority to fulfil the function.

My noble friend asked for examples of the benefits of sharing such registration data. Being able to share data about deaths with local authorities would assist in combating housing tenancy fraud. The National Fraud Authority estimates that housing tenancy fraud costs local authorities £845 million each year. An example of this is when someone continues to live in a property following the death of the tenant even when they have no right to do so. The sharing of birth data within the local authority would assist social services, for example, if they wanted to engage with one of the parents in the interests of a child. Sharing marriage data would help to target those living together if there were a fraudulent claim to be single for the purposes of claiming benefits. Sharing death data within local authorities would help them to recover medical equipment following the death of an individual.

There are many examples where such data sharing would be of assistance. It paves the way for citizens to access government services more conveniently, efficiently and securely, for example, by removing the current reliance on paper certificates to access services. This will provide more flexibility and will modernise how government services are delivered. An example is where registration officials will be able to share data on births that have occurred in one district, but where those concerned live in a neighbouring district with no hospital. This would allow local authorities more accurately to plan the provision of health care, school planning and other local services. Being able to share death data across boundaries will also help to prevent unwanted mail being sent to the family of a deceased person.

Registration officials will be able to share registration data only with the public authorities defined in new Section 19AB of the Registration Service Act 1953. Any data sharing will of course be carried out strictly in accordance with the requirements of the Data Protection Act. The sharing of registration data will be underpinned by a statutory code of practice as required by Section 19C. One of the requirements in the code will be that the Registrar-General must personally approve any request for the sharing of large amounts of data.

Before data are shared, the code of practice requires privacy impact assessments and data-sharing agreements to be drawn up and agreed with public authorities to include such things as how data are to be used, stored and retained. Data will be able to be used only for the purpose they have been provided and retained only for as long as necessary. Data-sharing agreements will forbid the creation of a database or the linking of registration data in any way. Any breach would be reported to the Information Commissioner, who has the power to impose penalties where it is appropriate to do so. I hope that that deals with the fears expressed about the bulk use of such registration data.

[Lord Clement-Jones]

My Lords, I am not sure whether the Minister has dealt with the questions raised by my noble friend.

[Lord Keen of Elie]

I apologise for omitting to respond to the questions asked by the noble Baroness, Lady Hamwee, by reference to the fact sheet. Rather than poring over the provisions of the Bill, I will undertake to write to her pointing out the cross-reference between the terms of the fact sheet and the relevant provisions in the Bill. I will place a copy of that letter in the Library.

21st Century Fox Takeover Bid for Sky: Timetable

Debate between Lord Keen of Elie and Lord Clement-Jones

Tuesday 20th December 2016 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Lord. Of course I appreciate that the relevant public interest test was incorporated into Section 58 of the Enterprise Act 2002, pursuant to the Communications Act 2003. However, the legislation is absolutely clear: the Secretary of State has to proceed to make a determination exercising a quasi-judicial function. Accordingly, it would not be appropriate to lay her decision-making process before either House before that determination is made.

[Lord Clement-Jones (LD)]

My Lords, the Minister has made much of the integrity of the process and the role of the Secretary of State in determining the public interest. Would not the public interest best be served by the Secretary of State asking Ofcom to make another “fit and proper person” assessment of James Murdoch, who by only a gnat’s whisker got away with being declared not fit and proper last time? The situation is relatively unchanged, except that we have had the conclusion of Leveson in the meantime.

[Lord Keen of Elie]

I am obliged to the noble Lord. I am not sure of the legal definition of a gnat’s whisker and therefore am not in a position to comment on the scope of the Ofcom outcome and its application to James Murdoch in those particular circumstances. Nevertheless, in so far as there is a relevant question of public interest, that is a matter for Ofcom, which will no doubt proceed as it is bound to in terms of the 1990 Act.