Data Protection Bill [HL]

Lord Kennedy of Southwark Excerpts

Monday 6th November 2017 Lords Chamber

Moved by

[Lord Kennedy of Southwark]

25: Schedule 1, page 112, line 8, leave out paragraph (a)

[Lord Kennedy of Southwark]

My Lords, the amendments in this group are largely in my name and that of my noble friend Lord Stevenson of Balmacara and are probing in nature. We look forward to the Minister’s response, as we seek to test the provisions before the Committee.

The GDPR generally prohibits the processing of special category data, with article 9(2) of the GDPR providing for circumstances in which, on the processing of special category data, article 9(1) may not apply. Paragraph 1 of Schedule 1 states that it may not apply if,

“the processing is necessary for the purposes of performing or exercising obligations or rights of the controller or the data subject under employment law, social security law or the law relating to social protection”.

Amendment 25 would delete paragraph 1(1)(a) on page 112 of the Bill, and I hope the Minister will be able to explain to the Committee why the provision, in the form it is written in the schedule, is necessary.

Amendment 25A in the name of the noble Earl, Lord Kinnoull, and the noble Lord, Lord Clement-Jones, changes the emphasis by deleting the word “under” and replacing it with the words “in connection with”. That probably widens the scope, but it will be useful to hear the noble Lords speak to that amendment and the Minister’s response.

Amendments 27 and 28 in my name and that of my noble friend Lord Stevenson move on to the question of health and social care purposes. Specifically, these amendments delete two conditions concerning,

“the working capacity of an employee”,

and,

“the management of health care systems or services or social care systems or services”.

When the Minister responds, will he specifically address why paragraph 2(2)(b) of Schedule 1 is deemed necessary? Will he give the Committee some examples of the data on the working capacity of an employee that would be collected under this provision of the assessment? It would also be helpful to understand why paragraph 2(2)(f) of Schedule 1 is necessary and why it would not be covered under paragraphs 2(2)(d) and 2(2)(e).

Amendment 29 would delete paragraph 3(a). We have tabled the amendment simply to enable the Minister to state clearly and to put on the record why this sub-paragraph is necessary. Amendment 31 would strengthen the sub-paragraph by putting the words,

“who owes a duty of confidentiality”,

after “health professional”. Those words are used in paragraph 3(b)(ii) and we can see no reason why they are not used in 3(b)(i). If the Minister thinks that they are not necessary then will he say so clearly for the record and explain his reasoning carefully? Amendment 70 puts the words in the same context on the face of the Bill.

Amendments 31 and 32 concern paragraph 4 of Schedule 1. They would sharpen up and widen the definition in the Bill and make it clearer that “archiving” includes collections of physical and digital materials. The wording in the Bill at the moment is a big weakness and these amendments, and Amendments 33 and 34, help improve it.

The final amendment in this group would add to Clause 15 a subsection which puts into the Bill a clear restriction that if there is a common law duty of confidentiality it cannot be overridden by regulations under the Act. That is an important safeguard that belongs on the face of the Bill. There is a lot here for the Committee to debate. I beg to move.

--- Later in debate ---

[Lord Ashton of Hyde]

It is always a pleasure to meet my noble friend, and I am happy to do that.

[Lord Kennedy of Southwark]

My Lords, I thank all noble Lords who have spoken in the debate this evening. We have touched on a number of important topics, which I hope the noble Lord, Lord Ashton of Hyde, will reflect on as we move through the Bill and look at these issues again. I make it clear that my amendments were all probing amendments to get from the Government their position on things. I was particularly pleased that the noble Earl, Lord Kinnoull, raised the issue about the insurance industry and that the Minister will meet him and representatives of the industry.

I noticed when the Minister replied to the debate that on more than one occasion he made references to recitals. He, I and the House know that the recitals will not form part of British law, so to keep relying on them is, I contend, a little weak on the Government’s part. They will have to find something a bit stronger and more solid as we move on, because, as I said, these will not form part of British law. That is an important point for the Minister to think of when he responds to amendments. For him to keep relying on them highlights the position the Government are in, which is not very good at the moment. Having said that, I beg leave to withdraw the amendment.

Amendment 25 withdrawn.