Data Protection Bill [HL]

Lord Kennedy of Southwark Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th December 2017 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, Amendment 42, moved by the noble Baroness, Lady Hamwee, was also debated in Committee. The noble Baroness, her noble friend and other noble Lords raised concerns in Committee about paragraph 4 of Schedule 2 in respect of the broad nature, the wide-ranging exemptions and the application of those exemptions. I see the point about the application of this part of the Bill. The amendments tabled by the noble Lord, Lord Ashton of Hyde, set out in the Bill those rights which might be restricted by virtue of article 23(1) of the GDPR and so give more focus to this part of the schedule.

I want to see effective immigration controls and also fair immigration controls, but I do not want to see people unable to get access to data held on them or to how that data is being used and shared except in limited circumstances. I hope the Minister can confirm that the government amendments will do this on a case-by-case basis and do not provide a blanket power. These things are very sensitive and are a matter of balancing important principles, protections and rights carefully and coming down with the right protections in place. I think it would be a problem if we were left in a situation where we could disclose to data subjects information that could give them the opportunity to circumvent our immigration controls.

The noble Baroness, Lady Williams of Trafford, gave a detailed explanation of the Government’s opposition to the amendment in Committee and highlighted a number of the issues that would come forward. I do not think anyone wants a situation where we are making things worse for ourselves. I recall the examples given of an overstayer where the authorities are seeking to enforce an administrative removal or where there is an application to extend the leave to stay and it is suspected that false information has been given. These seem perfectly reasonable to me. The amendments tabled by the Government provide important clarification on what is exempt, limit the power in the Bill and seek to address the concerns highlighted during the previous debate and today.

[Lord Clement-Jones]

Before the noble Lord sits down, does he therefore agree with the Government that this is all about the circumvention of immigration controls? Does he not think that essentially, as my noble friend Lady Hamwee mentioned, most of the circumstances are about people asserting their rights?

[Lord Kennedy of Southwark]

I accept that people want to assert their rights. Of course I do. I also think that we had a very detailed debate in Committee. Points were raised about the broad-brush approach; the Government have responded, and I am happy to support their amendments.

[Baroness Williams of Trafford]

My Lords, these amendments bring us back to the immigration exemption in paragraph 4 of Schedule 2 which, as the noble Lord, Lord Kennedy, said, was debated at some length in Committee. As this is Report, I am not going to repeat all the arguments I made in the earlier debate, not least because noble Lords will have seen my follow-up letter of 23 November, but it is important to reiterate a few key points about the nature of this provision, not least to allay the concerns that have been expressed by noble Lords.

Let me begin by restating the core objective underpinning this provision. The noble Lord, Lord Kennedy, specifically asked for further clarity on this point. The UK’s ability to maintain an effective system of immigration control and to enforce our immigration laws should not be threatened by the impact of the GDPR. It is therefore entirely appropriate to restrict, on a case-by-case basis, certain rights of a data subject in circumstances where giving effect to those rights would undermine that objective. That is the sole purpose and effect of this provision—nothing more, nothing less.

The GDPR recognises this by enabling member states to place restrictions on the rights of data subjects where it is necessary and proportionate to do so to safeguard,

“important objectives of general public interest”.

The maintenance of effective immigration control is one such objective. This is the basis for the provision in paragraph 4 of Schedule 2.

The noble Baroness referred to article 23 of the GDPR. It does not expressly allow restrictions for the purposes of immigration control. She asked whether the immigration restriction is legal. She pointed to Liberty’s claim that the exemption is unlawful. It is not the case.

Data Protection Bill [HL]

Lord Kennedy of Southwark Excerpts

Report: 1st sitting: House of Lords
Monday 11th December 2017 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I hope to be as brief as the Minister, who I thought was admirably so in introducing the government amendments. However, there are some issues that arise. I applaud the noble Baroness, Lady Royall, and others who have been so instrumental in persuading the Government on this. As the noble Lord, Lord Patel, indicated in various ways, there are ambiguities; the particular way in which the Government have chosen to amend the Bill potentially leaves a gap. I wonder, for instance, whether alumni fundraising for, say, a research institute can never be in the public interest. Is there not a possibility that it might fall outside the exemptions as a result? Perhaps the Minister can give me the correct interpretation. It is very important that this is on the record and that it is very clear what the formulation means. It would have been much more straightforward to have approached the subject directly in the Freedom of Information Act, but that is not the way the Government have chosen to help alumni fundraising in universities. In talking about universities, I should declare an interest as chairman of the council of Queen Mary University as well.

Another question arises. By and large there is nothing particularly controversial in the remainder of the amendments, but I do not quite understand why new Section 76C of the Freedom of Information Act, which was introduced in the original version of the Bill, is now being taken out by Amendment 198. Is it because Clause 127 already provides the necessary duty of confidentiality of information by the commissioner and employees of the Information Commissioner’s Office? The Minister might have given us a bit of explanation about that, which would have been extremely helpful.

Otherwise, many of the other provisions are welcome. Amendments 119, 182 and 197 demonstrate that it would be a good idea to have prompt enactment or implementation of legislation, so that weird and wonderful new clauses such as are introduced by those amendments would be unnecessary.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I thank the noble Baroness, Lady Chisholm of Owlpen, for her explanation of the government amendments in this group, which are largely in response to issues raised in Committee. I do not intend to speak for long on this group, because the amendments are largely to be welcomed. I want to pay particular tribute to my noble friend Lady Royall of Blaisdon, who raised the concern of the university sector during Committee that, under the Bill, universities could find themselves in difficulty over fundraising activities with alumni. We were pleased to see today that the Government have listened and addressed that. My noble friend cannot be with us today because of the weather making it difficult for her to travel to London. Generally, the higher education sector and others are grateful for what is proposed, although a couple of noble Lords have raised particular concerns, so it would be useful if the Minister could address those in her response. There may be one area that has not quite been resolved.

There are a couple of issues to mention. We are happy to support the amendment on police sharing of information for law enforcement purposes, as I am the amendment in respect of the Prisoner Ombudsman for Northern Ireland and the technical amendments on tribunals and courts to ensure consistency of language.

I shall not go on any further, because I am conscious that we have two Statements today and one will take at least an hour and the other 40 minutes, and the dinner break business for an hour, which will eat in to our time for Report today. I shall leave it here and say well done to the Government: thank you very much for that. It is better that we spend our day looking at issues that we have not quite resolved.

[Baroness Chisholm of Owlpen]

My Lords, I thank all noble Lords for the points they made. In answer to the noble Lord, Lord Patel, as my noble friend Lord Ashton explained in previous debates, Clause 7 was never intended to provide an exhaustive list of public interest tasks but, rather, to ensure continuity with respect to those processing activities that cover paragraph 5 of Schedule 2 to the 1968 Act. However, I am happy to reiterate that medical research—and other types of research carried out by universities for the benefit of society—will almost always be seen as a public interest task. I appreciate the sector’s desire to have greater guidance from the Information Commissioner on the issue, and I shall certainly pass that on, but the noble Lord will appreciate that it is not for me to dictate the Information Commissioner’s precise programme of work from the Dispatch Box.

I thank the noble Lords, Lord Smith and Lord Macdonald, for their kind words. I think we have put universities on a safe footing in this regard. I reiterate my thanks to them for coming to see us and helping us with that amendment.

The noble Lord, Lord Clement-Jones, asked: is alumni fundraising always in the public interest, and what about medical research?

Data Protection Bill [HL]

Lord Kennedy of Southwark Excerpts

Report stage (Hansard - continued): House of Lords
Monday 11th December 2017 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, the noble Baroness having sat through my last speech, I am in no position to judge. That was a skilful summary of the memorandum put to the Delegated Powers and Regulatory Reform Committee and it is useful to have it on the parliamentary record.

I remind the House that the amendments we have brought forward do not take the ultra position, if you like. They are about having an appropriate level of parliamentary control over delegated legislation in a field where these are important matters—rights which are inextricably linked to human rights. To boil down a long memorandum, the Minister’s arguments are about flexibility and future proofing. However, the horse has bolted. In previous legislation such regulations were permitted to be made by government and therefore we should roll over and put them into the next bit of legislation.

The one essence that I take away is that the consultation duty is enshrined. I accept that it is a considerable improvement that the Secretary of State must consult the commissioner and such other persons as the Secretary of State considers appropriate. It would be useful at this stage at least to have on the record the kinds of bodies the Minister thinks are appropriate in these circumstances.

The real issue and the reason why we have tabled our amendments—I am not saying they are perfect but they allow for a parliamentary process in which there is an ability to suggest amendments and to have a full consultation on regulation changes—is the controversy about “omission”, “addition” and “varying”. The Government have clearly come to the view that omitting provisions is permissible in certain circumstances but they are relying on adding or varying. They say that varying is a light-touch aspect but why, in certain circumstances, is it permissible to omit provisions added by regulations? Is this a kind of second thoughts aspect, whereby regulations are brought forward under this Bill and then the Government think they want to omit some of them? I do not quite understand the rationale behind that.

I accept that in some of the crucial cases they are limiting themselves to “adding” or “varying”. However, variation can be extremely broad and virtually equivalent to omitting. It seems that one can vary a right all the way down to a minuscule situation which can impinge on the human rights of an individual, even though it is not technically an omission where a safeguard is provided. These are very broad rights. They are broad powers to create new exemptions to data protection rules as they affect a data subject and they can add exemptions to safeguards for processing sensitive personal data. These matters could have a powerful effect on individuals.

I should remind the Minister of a sad aspect, which is that in its procedures, the Delegated Powers and Regulatory Reform Committee does not seem to have a second bite of the cherry—something I am sure the Minister approves of entirely. But for those of us who relied on the very useful original DPRRC report, it is unfortunate that the committee has not come back and said what it thinks of the ministerial memorandum. In the original report the committee went as far as to say:

“We consider that clause 9(6) is inappropriately wide and recommend its removal from the Bill”.


That is pretty heavy stuff, even for this useful committee. It had even more to say about Clause 15:

“We regard this is an insufficient and unconvincing explanation for such an important power”.


I must put on the record that we on these Benches do not think that the Government have discharged the onus of proof, showing why they need these extraordinary powers under the Bill, and we hope that they will further reduce their regulation-making powers.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, this group of overwhelmingly government amendments seeks to address issues raised by the Delegated Powers and Regulatory Reform Committee in its sixth report, published on 24 October this year, the only addition being Amendments 10 and 69 in the names of the noble Lords, Lord Clement-Jones and Lord Paddick. As we have heard, the Delegated Powers and Regulatory Reform Committee is widely respected in the House and I am pleased that the government amendments address the concerns raised by the committee. But as we have heard from the noble Baroness, Lady Chisholm of Owlpen, those concerns have not been accepted in full, and she has given the reasons for that.

I was particularly pleased to see government Amendments 9, 67 and 68, among others, which would limit the powers to amend the processing conditions and exemptions found in various schedules to the Bill. I am equally pleased to see the Government act in respect of the powers to make regulations. This will be done using the affirmative rather the negative procedure, starting with government Amendment 71. It gives Parliament the right level of scrutiny and the ability to reject or express regret about a particular decision, and allows for a proper level of scrutiny, a debate having to take place in both Houses.

In respect of Clauses 9 and 15, Amendments 10 and 69 seek to change the scrutiny procedure from the affirmative, as presently in the Bill, to the super-affirmative. I am not convinced that this is necessary as we have the tools at our disposal to scrutinise the proposals using the affirmative procedure. Starting with government Amendment 130, we have a series of amendments relating to the enforcement powers of the ICO, and again these are to be welcomed.

As I say, in general I welcome the government amendments and the explanation given by the noble Baroness.

[Baroness Chisholm of Owlpen]

I thank the noble Lord for those kind words. The noble Lord, Lord Clement-Jones, asked who would be consulted. While it is clearly impossible to be specific, the Secretary of State might consider it appropriate to consult, for example, representatives of data subjects or trade bodies, depending on the circumstances and regulations in question. I hope that that answers his question.

On why it is permissible to admit provisions added by regulations, we believe it is qualitatively different from admitting those added during the extensive parliamentary debate and scrutiny afforded to primary legislation. As I said, many other powers are not new. The 1998 Act already provides a power to add to conditions for sensitive processing. We feel it is prudent to retain the ability to amend Schedules 2 to 4 if necessary. As I said, this is a fast-moving area. We want to make sure that the Bill provides a framework for the constant evolution and developments in how we use and apply data, but it must be supportive rather than stifle innovation and growth.

--- Later in debate ---

[Lord Clement-Jones]

My Lords, it is a pleasure to follow the noble Earl, Lord Kinnoull, who has very impressively pursued these issues with considerable care and determination. He has said pretty much everything that needs to be said. Processing special category data, including health data and criminal convictions is, as he said, fundamental to calculating levels of risk and underwriting. I hardly need to say that to the Minister. His amendments are welcome, but of course the essence of the noble Earl’s amendments is to get from the Minister a progress report on how things are moving on in terms of enabling the continued processing of special category and criminal conviction data and whether we can get something along the right lines that allows a derogation for processing of special category and criminal conviction data where it is necessary in relation to insurance policies and claims. That would prevent disruption to consumers in the way the noble Earl mentioned. Then, of course, there is the guidance produced by Amendment 26; this is what you might call a sprat to catch a mackerel and I hope that the Minister will deliver the mackerel.

[Lord Kennedy of Southwark]

My Lords, I welcome government Amendments 11 and 12. As we have heard, they address some of the concerns that were raised in Committee. The Government have said that they never intended to have a narrow interpretation and they have put back the words of the 1998 Act, which is very welcome. As was said earlier, the noble Earl, Lord Kinnoull, has laid out in great detail the issues addressed in his Amendments 25 and 26. He makes a very important and clear case and raised some important issues. I hope that the noble Lord, Lord Ashton of Hyde, will respond to those. I certainly think that there is a case for bringing these things back at Third Reading to address the points the noble Earl has raised.

[Lord Ashton of Hyde]

My Lords, I am grateful to everyone who has spoken in this debate. As we have just heard, Amendment 25 would replace the existing processing conditions:

“Insurance and data concerning health of relatives of insured person”,


and:

“Third party data processing insurance policies and insurance on the life of another”,


with a broader insurance processing condition. Amendment 26 would require the Information Commissioner to produce sector-specific guidance for the insurance sector. These processing conditions are made under article 9(2)(g), the substantial public interest derogation. When setting out the grounds for such a derogation, the Government are limited by the need to meet this substantial public interest test. We are also required to provide appropriate safeguards for data subjects.

The Government recognise the importance of insurance products, in particular compulsory classes and the protection afforded by third-party liability. As the noble Earl mentioned, engagement between the insurance sector and government officials has continued since this matter was discussed in Committee and, indeed, since I met him and representatives of the insurance industry after Committee. There is still some work to do on the precise drafting of the relevant provisions, but I am grateful for the opportunity to place on record the Government’s intention to table an amendment addressing this issue at Third Reading, if we can finalise the drafting in time and the House is content for us to do so. At the moment I am not aware of any insuperable problems in that regard, but noble Lords will recognise that this is a complex issue and one that we want to get absolutely right.

As for the Information Commissioner producing sector-specific guidance, as proposed by Amendment 26, I will certainly take that back and pass it on to the department. With that reinsurance, or rather reassurance—“reinsurance” was a bit of a Freudian slip there—I respectfully invite the noble Earl not to move his amendments this evening. I beg to move.

--- Later in debate ---

Moved by

[Lord Kennedy of Southwark]

27: Schedule 1, page 121, line 27, at end insert “and any additional activities determined to be appropriate by the Electoral Commission”

[Lord Kennedy of Southwark]

My Lords, I tabled this amendment to keep the issue that I raised in Committee on the agenda. I spoke about it at some length in Committee. I think it is better determined by your Lordships’ House, rather than going off to the other place. I know the Minister has kindly agreed to a meeting. We have not had a chance to have it yet, but we will later this week.

I know that the noble Lord, Lord Hayward, who sits on the Government Benches, fully supports this issue being debated. He, like me, hopes it can be sorted out here by Third Reading, rather than going to the other place. The basic problem is that provisions in the Bill potentially conflict with legislation in respect of elections and other matters already on the statute book. I went through those in Committee. I am sure we do not want to pass legislation that conflicts with existing legislation, but we risk doing that here. That cannot be right. What political parties, campaigners and politicians need—and certainly what the regulators need—is crystal clear legislation and regulation that they can apply. To pass something that is in direct conflict with the Representation of the People Act would be unwise. We need to have our meeting later this week and I hope we can bring something back at Third Reading. These are important issues that we need to get right to ensure that all legislation is working together. I beg to move.

[Baroness Hamwee]

My Lords, I am very glad that the noble Lord is keeping this on the agenda. I had a note to ask what was happening about the meeting to which lots of people were invited at the previous stage. I do not believe that we have heard anything about it. This is not a whinge but a suggestion that it is important to discuss this very widely.

I find this paragraph in Schedule 1 very difficult. One of the criteria is that the processing is necessary for the purposes of political activities. I honestly find that really hard to understand. Necessary clearly means more than desirable, but you can campaign, which is one of the activities, without processing personal data. What does this mean in practice? I have a list of questions, by no means exhaustive, one of which comes from outside, asking what is meant by political opinion. That is not voting intention. Political opinion could mean a number of things across quite a wide spectrum. We heard at the previous stage that the Electoral Commission had not been involved in this, and a number of noble Lords urged that it should be. It did not respond when asked initially, but that does not mean it should be kept out of the picture altogether. After all, it will have to respond to quite a lot of what goes on. It might not be completely its bag, but it is certainly not a long way from it.

We support pinning down the detail of this. I do not actually agree with the noble Lord’s amendment as drafted, but I thank him for finding a mechanism to raise the issue again.

[Lord Ashton of Hyde]

I am grateful to the noble Lord, Lord Kennedy, for raising this issue, and to the noble Baroness for her comments. These issues are vital to our system of government, and we agree with that.

Amendment 27 seeks to expand the umbrella term “political activities” to include any additional activities determined to be appropriate by the Electoral Commission. Noble Lords will agree that engaging and interacting with the electorate is crucial in a democratic society, and we must therefore ensure that all activity to facilitate this is done in a lawful manner. Although paragraph 18(4) includes campaigning, fundraising, political surveys and case work as illustrative examples of political activities, it should not be taken to represent an exhaustive list.

Noble Lords will be aware that the Electoral Commission’s main areas of expertise concern the regulation of political funding and spending, and we are of the opinion that much, if not all the activities they regulate will be captured under the heading “political activity”. As I have just set out, fundraising is included as an illustrative example, which ought to provide some reassurance on this point. Moreover, the greater the number of activities denoted by the Electoral Commission, the less likely it is that any other activity would be considered by a court to be a political activity by dint of its omission. The commission, a body which as far as I am aware claims no expertise in data protection matters, would find itself in an endless spiral of denoting new activities as being permissible under the GDPR. Nevertheless, in recognition of the importance of such processing to the democratic process, the Government are continuing to consider the broader issues at stake and may well return to them in the second House. In this vein, the noble Lord made a number of good points, and I look forward to meeting him with the Minister for Digital, my right honourable friend Matt Hancock, on Thursday this week to discuss the matter in more detail than the parameters of this debate allow. We will see what the noble Lord feels about the timing of that after the meeting.

As for the noble Baroness, Lady Hamwee, we talked about having bigger meetings, and I am sure the time will come. This is just a preliminary meeting to decide on timings and to give the noble Lord, Lord Kennedy, the chance to discuss this with the Minister for Digital. I envisage that further meetings will include the noble Baroness.

I appreciate the sentiment behind the noble Lord’s amendment. In the light of our forthcoming discussions, I hope he feels able to withdraw it.

[Lord Kennedy of Southwark]

I thank the Minister for his response. I tabled the amendment to keep the issue live and to illustrate the problem we have here. In his response, he talked about the responsibilities of the commission and data protection responsibilities and how they may conflict, belonging to different bodies. That begins to highlight the problem that we potentially have here. You could have different regulators trying to enforce different bits of legislation, all on the statute book at the same time and equally legitimate. We have got a real problem here.

I look forward to the meeting on Thursday. It is very important that we have a meeting after that, though, with a much wider group of people from different parties and campaigns. It is a genuine problem that affects every political party represented in this House and the other place and those that are not in either House. There is no advantage here—it is a question of getting a procedure in place that allows political parties to campaign and do their job properly and fairly. Equally, it protects the volunteers so that they understand what they can and cannot do so that they do not unintentionally get themselves in difficulty. I look forward to the meeting, but there are one or two things to sort out before then. I hope that it can get done by Thursday but, if it cannot, we have the other place. But it would be much better to sort it out at this end rather than the other end. I beg leave to withdraw the amendment.

Amendment 27 withdrawn.

Data Protection Bill [HL]

Lord Kennedy of Southwark Excerpts

Committee: 6th sitting (Hansard): House of Lords
Wednesday 22nd November 2017 Lords Chamber

Moved by

[Lord Kennedy of Southwark]

170J: Clause 163, page 92, line 24, at end insert—
“( ) In this section, a request made by a data subject under subsection (1)(a) includes, but is not limited to, requests about reviews written by a third party about workers.”

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 170J, which stands in my name and that of my noble friend Lord Stevenson of Balmacara, seeks to address an issue that I am not convinced is sufficiently covered in the Bill as it stands.

Freelance workers or self-employed people—whatever you want to call them—offering a range of services and seeking work through various platforms, have sprung up in recent years. In many cases, their customers are able to rate them and the work they have done. However, these individuals often find that they cannot take that rating information with them if they move on to another platform. The reviews are written by third parties, who rate the quality of the work, and understandably it is very valuable to the trades- persons if they can carry those reviews forward with them.

This is a very strange situation. Various companies often maintain that they do not have employees and that they are merely acting as a platform, a noticeboard or a portal where people can find tradespersons. However, those tradespersons then find that it is not very easy to take information about them with them when they move on. This is intended as an enabling amendment to put on the face of the Bill that data subjects have the right to take with them the information written about them by third parties when they move on to another platform.

At this stage, this is obviously a probing amendment but I am keen to hear what the noble Lord has to say about this issue. It is important for the people concerned—if you have done a good job, you want to take recognition of that with you. I look forward to the noble Lord’s response.

[Lord Ashton of Hyde]

My Lords, I am grateful to the noble Lord, Lord Kennedy, for turning the Committee’s attention to the provisions in Clause 163. The clause makes it a criminal offence for a data controller, or somebody employed by the controller, to deliberately frustrate a subject access request by altering, defacing or destroying information that a person would have been entitled to receive.

This offence is not new. A similar offence was provided for in Section 77 of the Freedom of Information Act 2000. The only difference between the offence in Clause 163 and the offence in the Act is that the latter was limited to the handling of subject access requests by public authorities and their employees and agents, whereas Clause 163 extends this to apply to all controllers.

The noble Lord’s amendment would make it clear that the offence applies where a data subject requests personal data about them contained in a review about workers written by a third party. I am grateful to the noble Lord for explaining the background to the amendment; nevertheless, I submit that it is unnecessary. Article 15 of the GDPR makes it clear that the data subject has the right to obtain from the controller confirmation as to whether data about him or her is being processed, as well as access to that data. Whether a report about the data subject was compiled by a third party or processor acting on the controller’s behalf is irrelevant, as it still amounts to personal data held by the controller.

It is always unacceptable for any controller to destroy or deface personal data with the sole intention of preventing somebody accessing what they were entitled to. That is precisely why Clause 163 creates a criminal offence targeted on that particular activity.

I hope that I have addressed the noble Lord’s concerns. If I have not, of course I will be more than happy to discuss them with him later. Therefore, I hope that he will be able to withdraw the amendment.

[Lord Kennedy of Southwark]

I thank the noble Lord for his response. He has not really addressed the point that I was making, so I will be very happy to have a discussion outside the Chamber. This is a real problem that is happening now and I am not convinced that what we have in the Bill will be enough to deal with it. It may well be that my amendment is not in the right place, but there is an issue with people not easily accessing data that is held on them, particularly for the self-employed and others seeking work through various platforms.

[Lord Ashton of Hyde]

If we have misunderstood the noble Lord’s intention behind the amendment, I apologise. As I said, we will be happy to discuss it with him.

[Lord Kennedy of Southwark]

I do not think that the noble Lord misunderstood; it is just that there are several issues around the gig economy that we need to look at, and I shall be happy to discuss them outside the Chamber. I beg leave to withdraw the amendment.

Amendment 170J withdrawn.

--- Later in debate ---

[Lord Ashton of Hyde]

My Lords, the Bill creates a comprehensive and modern framework for data protection in the UK. The importance of these data protection standards continues to grow—a point that has not been lost on noble Lords, nor the Government. That is why the Government have tabled Amendments 185A, 185B, 185C and 185D, which provide for a framework for data processing by government.

Inherent in the execution of the Government’s function is a requirement to process significant volumes of personal data, whether in issuing a passport or providing information on vulnerable persons to the social services departments of local authorities. The Government recognise the strong public interest in understanding better how they process that data. The framework is intended to set out the principles and processes that the Government must have regard to when processing personal data.

All government and public sector activities require some form of power to process personal data, which is derived from both statute and common law. In light of the requirements of the GDPR, such processing should be undertaken in a clear, precise and foreseeable way. The Government’s view is that the framework will serve further to improve the transparency and clarity of existing government data processing. The Government can, and should, lead by example on data protection. To that end, the proposed clauses provide the Secretary of State with the power to issue guidance in relation to the processing of personal data by government under existing powers. As I have already stated, government departments will be required to have regard to the guidance when processing personal data.

The Government have consulted the Information Commissioner in preparing the amendment and will, as required in Amendment 185A, consult the commissioner before preparing the framework. The Government are keen to benefit from the commissioner’s expertise in this area and to ensure that the framework does not conflict with the commissioner’s codes of practice. The guidance should provide reassurance to data subjects about the approach that government takes to processing data and the procedures it follows when doing so. It will also help to strengthen further the Government’s compliance with the GDPR’s principles. I beg to move.

[Lord Kennedy of Southwark]

My Lords, government Amendments 185A, 185B, 185C and 185D add four fairly substantial new clauses to the Bill on the last day of Committee. I can see the point made by the Minister when he moved the amendments, but it is disappointing that they were not included right at the start. Have the Government just thought about them as a good thing?

The Delegated Powers and Regulatory Reform Committee has not had time to look at these matters. I note that in Amendment 185A, the Government suggest that regulations be approved by Parliament under the negative procedure. I will look very carefully at anything that the committee wants to bring to the attention of the House when we look at these matters again on Report. I am sure the committee will have reported by then.

I will not oppose the amendments today, but that is not to say that I will not move some amendments on Report—particularly if the committee draws these matters to the House’s attention.

[Lord Clement-Jones]

My Lords, I want to echo that point. There is time for reflection on this set of amendments and I sympathise with what the noble Lord, Lord Kennedy, said.

Data Protection Bill [HL]

Lord Kennedy of Southwark Excerpts

Committee: 5th sitting (Hansard): House of Lords
Monday 20th November 2017 Lords Chamber

Moved by

[Lord Kennedy of Southwark]

163ZC: Clause 142, page 79, line 2, at end insert—
“( ) Within three months of this Act coming into force, the Commissioner must specify in guidance what constitutes “other failures” under subsection (8).”

[Lord Kennedy of Southwark]

My Lords, the amendments in this group, in my name and that of my noble friend Lord Stevenson of Balmacara, take up a number of issues raised by the Delegated Powers and Regulatory Reform Committee in its report on the Data Protection Act. Our Amendment 163ZC adds a requirement on the commissioner to specify in guidance what constitutes “other failures” under subsection (8). Amendment 164C adds a requirement on the commissioner to specify, within three months of the Act coming into force, what constitutes “other failures”. I think it is important that we are clear, at least in guidance, what these “other failures” are.

Amendment 168A concerns the regulations for non-compliance with the charges regulations, deleting all the subsections and inserting new ones. The new subsections make provision for proper consultation with the commissioner and other persons that the Secretary of State considers appropriate, and state that any regulations made must be subject to the affirmative resolution procedure. The amendment sets a maximum penalty and the amount of penalty for different types of failure.

Amendment 168B seeks to replace “produce and publish” with “prepare”, which we think is better in this context. Amendment 168C seeks to put in the Bill a procedure that was recommended in the report of the Delegated Powers and Regulatory Reform Committee, which suggested that the guidance should be subject to some form of parliamentary scrutiny. Amendment 168D seeks to set out how the guidance can be amended or altered with the new procedures outlined in Amendment 168C.

The final four amendments in the group—Amendments 182D to 182G—take up the issue of the power in the Bill to make Henry VIII changes to reflect changes to the data protection convention. We are seeking to delete “or appropriate” from Clause 170(1) to make it only,

“as the Secretary of State considers necessary”.

We think that presently the subsection is worded too broadly. We also seek to delete “includes” and insert “is limited to” in respect of the powers. Then we make it clear that the power is in respect only of Part 4. Finally, as highlighted by the committee, we time-limit the period for changes to three years. I beg to move.

[Baroness Chisholm of Owlpen]

My Lords, the amendments tabled by the noble Lords, Lord Stevenson and Lord Kennedy, reflect the recommendations made by the Delegated Powers and Regulatory Reform Committee in its report on the Bill. As noble Lords will be aware, the Government hold the committee in high regard and, as always, we are grateful for its consideration of the delegated powers in the Bill. As set out in our previous discussions on delegated powers, the Government are considering the committee’s recommendations with a view to bringing forward amendments on Report. For that reason, I will keep my remarks brief but noble Lords should be reassured that I have listened to and will reflect on our discussions today.

As noble Lords know only too well, delegated powers are inserted into legislation to allow a degree of adaptability in law. As we have touched on in our earlier discussions of delegated powers, and as I am sure noble Lords will agree, no other sector or industry is evolving as quickly as the digital and data economy. The pace at which new forms of data processing are being developed, and the sophistication and complexity with which new data systems are being designed, will render any current governance obsolete in a very short time. It is for this reason that we consider it necessary to be able to adapt and update the Information Commissioner’s enforcement powers.

However, the Government recognise the need to provide certainty through clauses on the statute book. I therefore thank the noble Lord for his suggestions in Amendments 163ZC and 164C for how regulation-making powers relating to the commissioner’s enforcement and penalty notices in Clauses 142 and 148 could be more appropriately defined; this is certainly something that I will reflect upon. In Amendments 168A to 168D, I recognise other recommendations of the DPRRC relating to the Information Commissioner’s guidance and penalties.

As I have already set out, it is important that the Information Commissioner’s powers are subject to a degree of flexibility. She must be able not only to identify new areas of concern but to tackle them with proportionate but effective enforcement measures. In an ideal world, we would have a crystal ball that could tell us all but the reality is that we do not. We do not have one now and the Information Commissioner will not have one three months after Royal Assent. We must preserve the ability of the regulatory toolkit to constantly adapt to changing circumstances and keep data subjects’ rights protected.

I note the proposals in Amendments 182D to 182G, which would limit the scope of the regulation-making power in Clause 170. Clause 170 is intended to allow the Government to update the Bill to reflect amendments to convention 108.

As with previous amendments based on the Delegated Powers and Regulatory Reform Committee’s report, it is important that we consider these amendments alongside the broader recommendations given by that committee. The Government are keen to give proper consideration to these recommendations and, although this is ongoing, I am confident that we will have concluded our position on these amendments before we come to the next stage of the Bill. I am grateful for the informative discussion we have had today, which forms the final part of our reflection upon the committee’s report. I hope that the noble Lord will feel able to withdraw his amendment and I look forward to returning to these issues on Report.

[Lord Kennedy of Southwark]

My Lords, the Delegated Powers and Regulatory Reform Committee is one which the Opposition hold in high regard, as the Government do. It does an important job for the Government by going through legislation and looking at whether the powers the Government seek to take are applied appropriately. I thank the noble Baroness, Lady Chisholm, for that very much and I am pleased that she confirmed that the Government were looking at the matters in the report carefully. When they come back on Report, I hope that they will address the issues I have raised and others in that report. On that basis, I am happy at this stage to withdraw my amendment.

Amendment 163ZC withdrawn.

Data Protection Bill [HL]

Lord Kennedy of Southwark Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 13th November 2017 Lords Chamber

[Lord Lucas]

My Lords, I thoroughly support this amendment. I really hope that the Home Office has noticed that the Bill is starting in this House and that therefore this is a paragraph we can kill—and should, as we did in 1983. If the Home Office needs something more, it should make a case for it and we should listen, but to have a blanket provision such as this is very destructive of data collection as a whole. To take again the example of the NPD, the fact that data is passed from the NPD to the Home Office has made the bits of data that are being passed totally corrupt: one can no longer rely on that data because so many schools, not unnaturally, are unwilling to shop their parents and drop their parents into what can be extremely difficult circumstances. You destroy the purpose of the data that you pollute in this way; you make it unreliable. I suspect that you also undermine the research exemption: if data is actually being collected to give to the Home Office, how can you claim that it is for research? You start to undermine the Bill in all sorts of insidious ways by having such a broad and unjustified paragraph— unjustified in the sense that no one has made a justification for it. I really hope that the Home Office will think again.

[Lord Kennedy of Southwark (Lab (Co-op))]

My Lords, first, I welcome the noble Baroness, Lady Williams of Trafford, back to the Committee. Every time I get to the Bill I speak either to her or to the noble Lord, Lord Bourne of Aberystwyth, so I am glad we are back again in Committee.

Amendment 80, moved by the noble Lord, Lord Clement-Jones, would delete paragraph 4 from Part 1 of Schedule 2 to the Bill, as we have heard. I have added my name to the amendment, as have the noble Lord, Lord Paddick, and the noble Baroness, Lady Jones of Moulsecoomb. The amendment deletes the whole paragraph which exempts personal data from the GDPR provisions as they relate, first, to the maintenance of effective immigration control and, secondly, to the investigation or detection of activities that would undermine the maintenance of effective immigration control. I want to be very clear that the intention of this amendment is to enable the Government to explain to us why they think the paragraph is necessary. As we have heard, it is very wide ranging and has been rejected in the past, so I hope the Minister can explain why it is so important that this paragraph gets through in the Bill. The noble Lord, Lord Clement-Jones, raised important points about the broad potential risks to data subjects’ rights, as did the noble Baroness, Lady Hamwee, and my noble friend Lady Jones of Moulsecoomb.

I certainly want an effective immigration service and policy, along with proper immigration controls. Having said that, I am not happy with many aspects of the policies being pursued by the Government with respect to immigration. They are ones that I do not support and they have damaged our reputation as a generous country that has been respected around the world. Unfortunately, that is not the only area where the Government have damaged our reputation. I should like the noble Baroness to explain very carefully why she believes that there is a need for this provision and where it differs from what is already in force. As we have heard, under other provisions the Government have what they need in terms of ensuring that these matters are dealt with properly. The exemptions certainly appear to be wide ranging and I want to be convinced that they are absolutely necessary. As I said, there are provisions in other Acts that the Government can rely on. At this stage, I await the response of the noble Baroness.

Data Protection Bill [HL]

Lord Kennedy of Southwark Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 13th November 2017 Lords Chamber

Moved by

[Lord Kennedy of Southwark]

53: Schedule 1, page 118, line 19, leave out first “substantial”

[Lord Kennedy of Southwark (Lab)]

My Lords, as this amendment involves data provided by local authorities, I should declare my interests as a councillor of the London Borough of Southwark and as a vice-president of the Local Government Association.

Amendment 53 in my name and that of my noble friend Lord Stevenson of Balmacara would delete the first occurrence of the word “substantial” from paragraph 17(2) of Schedule 1 and Amendment 54 would delete its second occurrence from the same provision.

Healthy-functioning political parties are a vital part of our democracy. Campaigners and campaigning have moved on a long way from the days of hand writing envelopes to encompass much more sophisticated methods of contacting voters using all available mechanisms.

Political parties and their members need clarity and certainty as to what they are required to do, what they are able to do and what they are not able to do, so that they act lawfully at all times and in all respects. We cannot leave parties, campaigners and party members with law that is grey and unclear, and with rules that mean that campaigners, in good faith, make wide interpretations that are then found to be incorrect, due largely to the required clarity not having been given to them in the first place by government and Parliament.

I am also very clear that political parties are volunteer armies, with people volunteering to campaign to get members of their party elected to various positions in Parliament and in local authorities and to run various campaigns.

I have a number of questions for the Minister. I do not necessarily expect to get answers today but I hope that when he responds he will agree to meet me along with other interested Peers on the matters I am raising. I know that the noble Lord, Lord Hayward, from the Minister’s Benches would certainly like to meet him, and I am sure that the noble Lord, Lord Tyler, would also wish to be involved in those discussions. I hope that the Minister will agree to that. I also think that it would be useful if any such meeting involved officials from the three parties to discuss how we can get this right; otherwise, there will be all sorts of problems for parties, party members and campaigners, and none of us wants that.

Therefore, my questions to the Minister are as follows—as I said, I shall be happy for him to write to me. Will he provide a list of the characteristics or activities that are required for a political party to conduct operations? Does he believe that the terms in relation to political activity in paragraph 17 of Schedule 1 definitively cover the required activities of UK political parties? Will he clarify what constitutes profiling with regard to the activities of political parties? What activities or operations with reference to paragraph 17(1)(c) of Schedule 1 would be considered necessary for a political party? Does he think that the procedure detailed in paragraph 17(3)(a), whereby a data subject can give written notice to require the data controller—in this case, a political party—to cease the processing of their data, is consistent with Section 13(3) of the RPA 1983, where parties hold and process data on the basis not of consent but of being supplied that data by a local authority via the electoral register? Given the regular transfer of registers to political parties, does the Minister think it is practical or enforceable for a party to cease processing the data, which will likely be resupplied by an authority?

Let me make the point this way: take elector A, who instructs the party to stop processing their data, and the party complies. But the party then gets given data from the local authority in the next round, and elector A’s information is included. As soon as the party processes that data, it will technically have infringed the law. This is very complicated and it would be useful if the Minister’s officials could meet people interested in this area and come back to us. Whatever we end up with following this process, it must be consistent and work, and it should not bring into conflict two different Acts of Parliament. I beg to move.

[Baroness Hamwee (LD)]

My Lords, the noble Lord referred to the rules as a bit grey and asked for clarity for the volunteer army. I should declare an interest as a foot soldier in that volunteer army.

The noble Lord’s request that party officials should be involved in this process is a good one—I would have thought they would have been. The Minister should be aware of my first question as I emailed him about this, over the weekend I am afraid. Has the Electoral Commission been involved in these provisions?

The noble Lord mentioned the electoral register provided by a local authority. My specific question is about the provision, acquisition and use of a marked electoral register. For those who are not foot soldiers, that document is marked up by the local authority, which administers elections, to show which electors have voted. As noble Lords will understand, this is valuable information for campaigning parties and can identify whether an individual is likely to turn out and vote and so worth concentrating a lot of effort on. I can see that this exercise could be regarded as “campaigning” under paragraph 17(4) of Schedule 1. However, it is necessary, although I do not suppose that every local party in every constituency makes use of the access it has. It is obvious to me that this information does not reveal political opinions, which is also mentioned in the provisions. I would be grateful to hear the Minister’s comments. I am happy to wait until a wider meeting takes place, but that needs to be before Report.

I want to raise a question on a paragraph that is in close geographical proximity in the Bill—I cannot see another place to raise the issue and it occurred to me only yesterday. Why are Members of the House of Lords not within the definition of “elected representatives”? We do not have the casework that MPs do, but we are often approached about individual cases and some Peers pursue those with considerable vigour. This omission—I can see a typo in the email that I sent to the Minister about this; I have typed “mission” but I meant “omission”—is obviously deliberate on the part of the Government.

--- Later in debate ---

[Lord Ashton of Hyde]

No, it is not the first time because this is the position that exists under the Data Protection Act 1998.

[Lord Kennedy of Southwark]

My Lords, I thank all noble Lords for speaking in this debate. As I think the noble Lord, Lord McNally, said, these amendments would delete just two words, but we have had a very important debate. We tabled the amendments to probe these issues, which are very important.

I am pleased that the noble Lord, Lord Ashton of Hyde, has agreed to meet us because we need to discuss this. It would be much better if we could get interested Peers from this House and officials from various parties together to sort this matter out, rather than leave it and let it go to the other place. We have a much better record of sitting down and sorting such issues out. I hope, if we need to amend the Bill, we do so on Report. Before we have our meeting—I accept it will be quite a big meeting—it would be useful if the noble Lord wrote to me, if he can, and to other interested Lords so we can have the Government’s position on paper before we sit down. That would help our discussions and move them on. There is a community of interest among noble Lords.

I certainly agree with the points made by the noble Lord, Lord McNally, and by my noble friends Lord Whitty and Lady Jay, but we need to focus on these issues, get them right and get proper amendments in place to protect parties and campaigners as they do their proper and lawful work. At this stage, I am happy to withdraw the amendment.

Amendment 53 withdrawn.

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.

Data Protection Bill [HL]

Lord Kennedy of Southwark Excerpts

Monday 30th October 2017 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, I refer the Committee to my registered interests: I am on the board of two small charities in the London Borough of Southwark.

I recall from Second Reading the noble Lord, Lord Marlesford, who is not in his place today, talking about the effect of the legislation on small organisations—many others have made reference to it already. He referred to parish councils, which often employ just a part-time parish clerk. The noble Lord, Lord Arbuthnot of Edrom, spoke similarly about the effect on organisations. Both noble Lords had a point at Second Reading, as does the noble Baroness, Lady Neville-Rolfe, with her amendment today.

As we have heard, the amendment limits the scope of the Act to organisations employing more than five people and specifies for exemption organisations such as small businesses, charities and parish councils which meet the employment qualification of five employees or fewer. My noble friend Lord Knight of Weymouth made a valuable point about size and turnover—I think the noble Baroness accepted that in her intervention.

The amendment also makes the useful point that the exemption is not limited to these three specific groups but seeks to cast a wider net. I certainly want to hear from the Minister that community councils would be exempted, as well as the small not-for-profit sector and small co-operatives, which I am sure is the intention behind the amendment.

The amendment needs a detailed response, as we have to be clear on what the Government think is reasonable for such organisations to have to comply with and how the Government will make it as simple as possible and not pile additional burdens on them. I hope the Minister will not say that these organisations already have to comply with the 1998 Act and that this legislation is only a very small increase in what is required. We will require a lot more reassurance than that from the Minister.

Amendment 152, also in this group, would place a duty on the Information Commissioner to advise Parliament, government and other institutions and bodies on the likely consequences, economic or otherwise, for industry, charities and public authorities of measures relating to the protection of individuals’ rights and freedoms with regard to the processing of personal data. The noble Baroness again makes a valid point and there is merit to placing this duty in the Bill.

If the Minister thinks that Clause 113, and specifically Clause 113(3)(b), is sufficient to provide the Information Commissioner with the power and the duty to do what is set out in the amendment, we need him carefully to set that out today for the benefit of your Lordships’ House.

Amendments 169—and Amendment 170, which would add “and charities” to it—raises some very important issues. It would place a duty on the Secretary of State to ensure that they or the Information Commissioner had a programme in place to ensure that information on the new duties that businesses and charities will be obliged to follow is publicly available. Again, these are very important and welcome amendments. Large businesses, large corporations and large charities will more than likely have the structures in place to ensure that they comply with any new requirements, but smaller organisations do not have compliance departments or lawyers on retainer to advise them. The Government have to get that message out to them. I particularly like subsection (2) of the new clause proposed by Amendment 169, which would require this information to be placed online and the Secretary of State to have regard to the creation of online training and testing to meet the requirements of the new Act. This group of amendments raises important matters on which I hope the Minister can give the Committee some reassurance.

[Lord Ashton of Hyde]

My Lords, I am grateful to all noble Lords who have raised the amendments and commented on them, because the Government recognise the concern behind them; namely, to protect the smallest organisations from the additional requirements established by this and future data protection legislation and to ensure that all UK businesses and organisations are properly supported through the transition.

I fully concur with my noble friend Lady Neville-Rolfe that supporting UK businesses of all sizes must be a priority. I can assure her that it is of the utmost importance both for the Government and for the Information Commissioner. However, I cannot agree with the proposal in Amendment 7 that those organisations with five or fewer employees be exempted from the requirements of the Act. We are talking in this Bill not just about businesses but about individual rights of data subjects. As my noble friend Lord Lucas mentioned, it is right that individuals enjoy the protections that will be afforded by this new regime regardless of the size of the organisation with which they are dealing. People should not be afforded a lesser degree of protection simply because they have chosen to do business with, or indeed to voluntarily support, a small organisation. After all, the fact that an organisation employs few staff does not mean that a breach of data protection law will cause a correspondingly small amount of distress. Many of the most cutting-edge financial technology firms begin life in someone’s back bedroom, but it does not make their customers’ transaction history any less worthy of protection.

Amendment 7 is unlikely to have the intended effect because the GDPR does not permit such an exemption. As an area in which our ongoing relationship with the European Union will be of the utmost importance, I do not consider that such an amendment would be in the best interests of British businesses.

However, I understand my noble friend’s concerns that the smallest organisations may be the least well equipped to deal with the changes introduced by this regime. I was therefore pleased to learn recently—the noble Lord, Lord Clement-Jones, mentioned this—that the Information Commissioner has announced the establishment of a dedicated telephone advice service for small and micro businesses to support them in implementation. The noble Lord also mentioned that the threshold was 250 employees, which represents quite a large organisation by today’s terms, with small businesses, especially in the tech field, growing up all over the place.

In respect of Amendment 152, I fully concur with my noble friend about the importance of monitoring the consequences of the Act for businesses and other organisations. I reassure her that there is already, quite rightly, a broad obligation on government to assess and report on the impact of all legislation that regulates business under the Small Business, Enterprise and Employment Act 2015. In addition, the Information Commissioner will be required to advise Parliament, government and other bodies on both legislative and administrative measures relating to the new Act and to provide opinions on any issue relating to the protection of personal data. My noble friend Lady Neville-Rolfe also asked about the impact on business. I confirm that the Government will publish a further assessment of the impact of the Bill on business very shortly.

With regard to Amendment 169, it is worth reiterating that the Information Commissioner has already provided general guidance, which is available online to all businesses, to help them understand their obligations. The commissioner is continuing to develop this guidance and has a programme in place for publication. I cannot go through it all but, in addition to the guidance the ICO has already published, it expects to develop this further between now and May into a fully comprehensive guide to the GDPR, including summaries and checklists, as well as more detailed content focused on key areas. This will also be available online from early next year. Later this year, the Information Commissioner will publish draft guidance on children’s data; on accountability, including documentation; on legitimate interests, including examples addressing universities maintaining alumni relationships; and draft guidance on security of processing, including joint work on high-level security principles. It will also provide sector-specific guidance. The Government are working with the Information Commissioner to identify appropriate areas and to work with sectors to deliver more guidance.

In respect of timing, I completely agree with my noble friend that it is desirable that up-to-date guidance about the new regime is available to businesses as soon as possible. As I have just set out, that is precisely what the commissioner is already attempting. But I fear that it may not be feasible, as the amendment requires, for final information to be published at least six months before the commencement of the provisions in the Act, not least because changes to the Bill may affect that guidance.

In respect of Amendment 170, I share the sentiment of the noble Lord, Lord Clement-Jones, in wishing to ensure that charities are provided with guidance to help them understand their obligations. I reassure him that the general guidance that the Information Commissioner has already published is designed to assist all organisations through the transition.

The noble Lord, Lord Knight, asked how the role of the Information Commissioner will develop and be resourced. My noble friend Lady Williams said at Second Reading that the Government take the adequate resourcing of the Information Commissioner very seriously and have provided for an appropriate charging regime in Part 5 of the Bill. I assure the noble Lord that we are aware that there are problems with the Information Commissioner at the moment and we are looking at that. But, possibly for the reasons that he mentioned, I am not able to make any binding commitments tonight. But I accept that there is an issue there. We are looking at it.

I assure noble Lords that the Government share the concerns raised in these amendments and are particularly pleased that the Information Commissioner is actively taking steps to provide dedicated support for small and micro enterprises, including the telephone service I mentioned earlier. With that in mind, I hope my noble friend feels able to withdraw her amendment.

[Lord Kennedy of Southwark]

The Minister mentioned guidance a few times and said that it might not be ready in time. I was reminded of our debates—which he was not involved in—on the Housing and Planning Bill. We were told about guidance and regulations, and well over a year later we have seen next to nothing. This is such an important issue that we need to hear a little more from the Minister. I and many other noble Lords mentioned parish councils. I do not think he mentioned those. For example, I know the Deeping St James Parish Council in Lincolnshire very well. It employs only a part-time clerk. I think the noble Lord, Lord Marlesford, made a similar point about parish councils at Second Reading. Perhaps the Minister could say something about that.

[Lord Ashton of Hyde]

Yes, I think my noble friend mentioned the parish council of the noble Lord, Lord Marlesford, in her reply. I make the point again that individuals’ data rights have to be protected. Just because parish councils are small organisations does not mean that they should not take that seriously—and I am sure they do. With regard to the practicalities of how they cope with their duties, apart from the fact that the Information Commissioner is providing guidance specifically for small organisations, the parish clerk—who already often works for more than one parish council so they can share the cost—is in a good position to deal with the duties under the Bill and will be able to take the guidance relating specifically to small businesses and organisations from the Information Commissioner.

I admit that I did not follow the Housing and Planning Bill too closely. But I mentioned a lot of the guidance that will be available before the end of the year. The Information Commissioner is very aware of the need to produce this quickly. In addition, of course, she is actively involved in outlining the European guidance on which a lot of member states’ guidance will be based. Therefore, she is helping to set the tone on which her future guidance will be based.

[Lord Kennedy of Southwark]

That is fine as far it goes. The point I am making is that we have heard guidance mentioned two or three times, in relation to two or three different organisations. I know that the Minister was not involved but we heard the same comments about guidance and regulations from the Government Front Bench when we were dealing with the Housing and Planning Bill. I hope we are not having déjà vu here. We hear these things are coming forward. These things are very important. I accept entirely that people’s data are important—of course they are—but, equally, getting this guidance right is important, as is organisations being able to have the information so that they ensure that they comply with the law. I hope the Minister can take back how important this is. He said it will all be after Report, at the end of the year. The Bill will have long left this House and we will be saying, “Where is this guidance then? You promised it and nothing has arrived”. It really is not good enough for the individual data subject or for business or for anyone else involved.

[Lord Ashton of Hyde]

I agree with the noble Lord that, if nothing did arrive, it would not be good enough.

--- Later in debate ---

[Lord Lucas]

I am absolutely content that universities should be put on a par with charities, because I know that we will be looking after the interests of those whom charities approach just as much as we look after the interests of charities. I hope that is the solution that my noble friend will afford, but it is welcome that there are limitations in the Bill on the random approaches that can be made by organisations. To the extent that we allow exemptions, we should not privilege universities in any particular way. Yes, they are often worthy causes, but they are very fond of money.

[Lord Kennedy of Southwark]

My Lords, I have no interests whatever to declare in this debate.

Amendment 10, moved by my noble friend Lady Royall of Blaisdon and signed up to by the noble Lords, Lord Pannick and Lord Macdonald of River Glaven, raises the important issue of legitimate fundraising and alumni relations undertaken by schools, colleges and universities being at risk due to the changes being brought in by GDPR. My noble friend referred to various conditions and mentioned the lawfulness condition, specifically on the issue of consent.

As we have heard, GDPR sets a very high bar in requiring a positive opt in, and it is likely that existing consents will not reach the required standard. So educational institutions would have to take on the enormous task of rebuilding their databases from scratch to meet the condition, as my noble friend referred to.

The public interest condition does not really work, for various reasons. The legitimate-interest condition may provide a route for the justification of data processing for fundraising purposes but, as we have heard in this debate, there are issues here as well. To make that a realistic solution to this unintended consequence of the new regulations—I think we all agree that it is unintended—my noble friend is seeking to put in the Bill a subsection in Clause 6 that, for the purposes of GDPR, would make it clear that schools, colleges and universities are not public bodies.

I note that Clause 6(2) provides the Secretary of State with the power to designate those public bodies that are not regarded as public bodies for GDPR. I am not sure what the general attitude of the Minister is, although he seems to have indicated that he is broadly sympathetic, but if he is going to rely on subsection (2) then he is going to have to do a bit more. As I mentioned previously, when Governments tell us it will all be sorted out in regulations, that is often not the solution and things can take a very long time. I mention the Housing and Planning Act again.

This is not something that educational institutions can wait months or years for; it would cost them considerably in terms of their fundraising plans. I hope the Minister can deliver some positive news to my noble friend, who has raised an important issue. It is fair to say that if she pressed this or a similar amendment to a vote on Report, she would be likely to win the day because it is an issue that many noble Lords are very concerned about.

[Baroness Chisholm of Owlpen]

My Lords, I thank noble Lords for taking part in this debate. I always feel humbled when I realise how many chancellors, presidents and fellows of universities we have in this House. I think that is why our debates and discussions are always of such high quality, because that is what noble Lords bring to this House. I congratulate the noble Baroness, Lady Royall, on her appointment. I visited Somerville College a lot because my daughter went there; she had an extremely enjoyable time and loved her three years there.

Universities are classified as public authorities under the Freedom of Information Act, and the Bill extends that classification to data protection. We recognise that universities, as complex organisations with many varying functions and interests, also carry out other functions that may not count as “public tasks” under data protection law. The conundrum raised by the noble Baroness has also been raised with the Government by the universities. I thank them for their time and help in working with both the Government and the Information Commissioner to resolve the problem.

I fully appreciate that the intention of the amendment is to protect our schools, colleges and universities by allowing them to continue pursuing their interests outside of their public tasks. I reassure noble Lords that neither the Bill nor the GDPR puts that at risk. The Information Commissioner’s Office has confirmed that it will issue detailed guidance on this matter, including the processing of personal data for the purpose of maintaining alumni relations, in order to make this clear. Representatives of the higher education sector have also indicated to the Information Commissioner’s Office that they may wish to develop further sector-level guidance, and the Information Commissioner’s Office will assist with that.

However, we are very sympathetic to everything that noble Lords have said today. It is important that we should meet again, and I am happy to agree to a meeting between myself, my noble friend Lord Ashton and all interested Peers so that we can talk about this further, in order that when we come back on Report we will have something that perhaps everyone will wish to hear. I hope my clarification on this issue is sufficient for now, and that the noble Baroness will agree to withdraw her amendment.

[Lord Kennedy of Southwark]

The Minister mentioned guidance and said that these matters would be solved then. Can she give us an assurance that we will have the guidance before the Bill becomes law?

[Baroness Chisholm of Owlpen]

The guidance from the Information Commissioner’s Office is ongoing. I had better go and find out whether we will have it by the time this Bill becomes law, because I do not want to say something at the Dispatch Box that turns out to be wrong. I will have to get back to the noble Lord on that point.

Telecommunications Infrastructure (Relief from Non-Domestic Rates) Bill

Lord Kennedy of Southwark Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th October 2017 Grand Committee

[Baroness Pinnock (LD)]

My Lords, I have wondered from the outset of the Bill’s proceedings why companies with billion-pound turnovers require business rate relief, as stated in the Explanatory Notes, of £60 million over a five-year period to provide an incentive for laying fibre to provide fast broadband. My amendment relates to concerns about the lack of focus for the expenditure of public funds. When, as is the case, resources are extremely limited, it is important that they are spent in the most effective way. In this instance, the focus should be on providing incentives where broadband speeds are already poor.

At the last Budget in 2016, the Chancellor emphasised the importance of fibre-to-property broadband to meet future needs, especially of businesses, where improving broadband speeds is probably the single, and simplest, change that will improve this country’s lagging productivity. A report in August of this year assessed that the UK was behind 30 other countries in accessibility to fast broadband. The Government’s current assessment is that 90% of properties have access to fast broadband; however, this figure includes properties that are 1 kilometre distant from the cabinet—not the Cabinet but the street cabinet—and consequently have barely a connection at all.

The Bill simply gives an incentive for broadband providers, both large and small, to lay fibre. The major companies have billion-pound turnovers, so the question has to be asked whether an incentive at the level provided for in the Bill will be significant. Obviously, it will make a difference for smaller providers but the Bill does not distinguish between large and small providers. The Bill makes no requirement for companies to focus on laying new fibre where broadband speeds are currently below the Government’s standard of 10 megabits per second, where the need is greatest.

Hence the amendment, which will limit the business rate relief to laying fibre where broadband speeds are already poor. I have deliberately not made the distinction between rural and urban, as some rural areas such as Cornwall have already benefited from EU investment in improved broadband access, while some urban areas have very poor broadband speeds. Even in London, some areas such as parts of Southwark suffer from having below 10 megabits per second.

I should like to explore further a concern that the largest provider of fibre, BT, has a business plan based on laying cable to the cabinet in the street and not to the premises. From there to the premises the link will be by copper, which in itself degenerates the speed. The further the premises are from the cabinet, the worse the broadband speed. At 300 metres distant, the broadband speed is not much improved from the old copper connections. As I said earlier, at 1 kilometre the connection is barely accessible. A further factor that results in broadband speeds reducing, even with fibre, is the number of properties connected to the cabinet. None of these issues is addressed in the Bill.

My final concern, which is admittedly outwith the Bill, is the cost to families and individuals of accessing broadband. Fibre cable can be laid to provide access but if the cost is prohibitive, some families will not be able to access the better-quality broadband. Since it is becoming, in my view, one of the utilities—like water, electricity and fuel provision—it is really important that we start thinking about how all families are able to afford broadband. I put this into the equation to ask the Government whether they will, at some point, be willing to address that increasingly significant concern. My amendment would encourage the Government to focus public funds on incentives that will make areas with poor connectivity see significant improvements. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I refer the Committee to my registered interests as a local councillor and a vice-president of the Local Government Association. I support Amendments 1, 5 and 11 in this group, tabled by the noble Baroness, Lady Pinnock. They highlight some real problems for communities—be they urban or rural—which suffer from poor connectivity, and there has been no real incentive to improve the situation for them by improving speeds. The amendments add the condition that, for the relief to apply, it has to be focused on areas within a local authority where the average broadband speed is 10 megabits per second or less. I think I am right when I say that about 93% of homes and businesses in the UK are able to receive superfast broadband, but it is the copper version. The Bill is generally welcomed.

The noble Baroness is right to focus her amendments on areas with poor connectivity. There is a good argument for this as reliefs provide an incentive to do something that a business might otherwise not want to or be keen to do. The view may be taken that it is not economically beneficial, or something else could be more beneficial. The noble Baroness raises the important issue of how to ensure that those parts of England and Wales, urban and rural, which suffer from poor connectivity can benefit from the relief provided to companies. Otherwise, such areas run the risk of falling further behind. We can all agree that the benefits that fibre can bring could be enormous for all parts of the UK.

Can the noble Lord, Lord Bourne, respond to the concern expressed by the noble Baroness, as we do not want to see parts of the country falling further behind? How can we ensure that this relief, welcome though it is, actually benefits those areas with the worst connectivity?

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, my noble friend Lord Bourne has left this one to me. I thank the noble Baroness and the noble Lord for their contributions. I realise the point that some of these issues raise. I will make some general comments on the points made by the noble Baroness, Lady Pinnock, and then come to the substance of the amendment.

The noble Baroness referred to billion-dollar companies—I presume she meant BT. The relief applies to all companies, large or small, because fibre-optic cable is the way of the future. We regard laying fibre-optic cable as a good thing, regardless of where it is and who lays it, so we leave it up to the market. This Bill is a fairly blunt instrument—merely an enabling measure; it was announced by the Chancellor and it is merely to allow the relief to take place. On the very understandable issue of where it should be directed, we have carried out a number of measures to effect that. We understand the issue about rural and hard-to-reach areas—and, indeed, some of the areas in our cities that do not have adequate broadband. The specific amendments do not necessarily address the broad thrust of some of the remarks made by noble Lords, and I will explain why we do not think the amendments are particularly helpful. They would mean that the reliefs provided for in the Bill on new fibre applied only to those areas that currently receive an average speed of less than 10 megabits per second. They would undermine a fundamental part of what we seek to achieve through the Bill. We want to ensure that businesses and households throughout the country, including rural areas and cities, have access to faster broadband. In fact, by the end of this year, 19 out of 20 premises will have access to superfast broadband.

The universal service obligation will provide a digital safety net by giving everyone in the country the legal right to request a connection to broadband speeds of at least 10 megabits per second by 2020. As noble Lords will know, we are also considering a voluntary proposal from BT in that respect. I stress that the 10 megabits per second is a safety net; we want as many people as possible to have access to superfast broadband or better, which is why we have set a target of 95% superfast coverage by the end of 2017, which will continue to be extended beyond that to at least 97% of premises.

We have delivered a series of measures to ensure that all areas can and do have access to the broadband speeds that they need. For example, Defra has just made available £30 million of funding under the rural development programme for England, targeted at supporting rural businesses and growth for broadband services in those areas with speeds of 30 megabits per second or faster where that is not currently available or planned. In the 2016 Autumn Statement, the Government announced more than £1 billion to support digital infrastructure, targeted at supporting the rollout of full fibre connections for future 5G communications. The first wave of projects for our local full fibre networks programme has been launched, and includes a mixture of urban and rural areas. We are soon to launch a challenge fund for local bodies to bid for access to £200 million, with all parts of the UK free to participate, and we anticipate a significant number of applications from predominantly rural areas. We think that those projects will encourage further commercial interventions to build and extend fibre networks.

We support better broadband in all areas, but we believe that the amendment would limit the rate relief to only those local authority areas with an average of less than 10 megabits per second, which would damage the rollout of faster broadband across the UK. First, it would mean that much of the new fibre to be installed to the premises—FTTP—would be excluded from the relief. To deliver a network that is fit for the future, we need more fibre everywhere, including in areas that currently get more than 10 megabits. This amendment could deter significant investment and have the perverse result that less full fibre—the gold standard of broadband technology—was actually deployed.

Secondly, the amendment would exclude from the rate relief new fibre in those villages and rural areas that do not currently have high-speed broadband but happen to fall within a local authority area which does on average have high speed broadband. It would mean excluding from the relief whole areas where support is needed and where the measures provided for in the Bill would make a difference. At the moment, less than 3% of premises across the UK receives under 10 megabits per second, so the amendment potentially excludes up to 97% of premises from the relief.

Therefore, I hope that the Committee will recognise that the amendments should not be included in the Bill. However, we agree that improving broadband in those areas with less than 10 megabits is a priority, which is why we have put in place the universal service obligation. The new fibre rate relief as proposed through the Bill will support that objective. I hope that, with this in mind, the noble Baroness will withdraw her amendment.

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Moved by

[Lord Kennedy of Southwark]

2: Clause 1, page 1, line 16, at end insert—
“(4FA) Conditions prescribed by the appropriate national authority by regulations under subsection (4F)(b) must include the condition that new fibre is part of the hereditament under subsection (4F)(a).”

[Lord Kennedy of Southwark]

My Lords, Amendments 2, 3, 6, 7, 9, 10 and 12 are all in my name and form group two in our deliberations. This group seeks to address one of the principal concerns expressed by people and smaller companies in the industry: that the way the Bill is written does not provide enough protection from companies ripping out old fibre and laying new fibre solely to benefit from the relief, which would pay for itself in less than two years. I think that was one of the points the noble Baroness, Lady Harding of Winscombe, made at Second Reading after her discussion with colleagues and people in the industry. I am convinced that there is a real risk of this happening, which would be absolute madness and not what the relief was intended for. It would, in effect, become a subsidy for old networks. Can the Minister address this particular point: how will we ensure this does not happen?

My amendments seek to prevent this in three ways. They would put in the Bill the words,

“must include the condition that new fibre is part of the hereditament”.

They would add a subsection that would put in the Bill the meaning of “new fibre” and what would not be covered by this relief. They would go further to address the point that laying, affixing, flying or attaching should not be solely to gain relief. Amendment 9 makes the specific point that the relief should not be there just to “replicate existing” telecoms structures. The Bill is about providing business relief to encourage and to speed up additional fibre telecommunications infrastructure.

There may be other ways to do what I seek here, but the Bill as drafted has people in the industry concerned. They are unhappy with the protections that the Bill affords at present, or fails to afford. The purpose of these amendments is to raise the issue with the Minister, and to get a response and, I hope, a commitment from the Government that these issues will be looked at seriously. Further, would he be prepared to meet me and representatives of the industry between now and Report? That would be helpful, because it is a serious problem. Somehow the Government, either with these amendments or by regulation, have to address these points further. I beg to move.

[Baroness Pinnock]

My Lords, I support the amendments tabled by the noble Lord, Lord Kennedy, because he, like I did in previous amendments, seeks to focus the relief provided in the Bill on those places and areas that need it most. He is asking to put in safeguards to prevent some companies deliberately laying cable with no purpose and to ensure that what is done on rate relief achieves the outcome the Government seek, which is to provide more domestic premises and businesses with fast broadband connectivity. I look forward to the response from the Minister—I am not sure which one, perhaps it will be a double act. The questions that the noble Lord, Lord Kennedy, has raised are important and need an answer.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Northern Ireland Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, on this occasion I am genuinely grateful to the noble Lord, Lord Kennedy, for raising this matter. I am not always grateful to him for raising matters but I am today. I am grateful also to the noble Baroness, Lady Pinnock, for her comments. We have a shared interest here, in that I cannot believe that anybody wants to see gaming in the system.

Concerns about gaming in the proposed rate relief for new fibre were raised by a small number of operators in August, when we first shared with them our proposals for the draft regulations. As the noble Lord has said, my noble friend Lady Harding raised this issue at Second Reading. I think she went on to say that she was not by any means convinced that there would be gaming but she raised it as a concern, so we share an interest in ensuring that there is not gaming.

Other operators have told us that they do not believe there is scope for gaming and support the proposed scheme. Nevertheless, we take this matter seriously and have been investigating these claims. Overall, our initial view is that it is unlikely gaming will be used in this tax relief. As I have said, we continue to discuss this with the sector and we are still gathering evidence.

However, if it will help the Committee, I will explain in a little detail why concerns as to gaming have arisen, why we believe such gaming is unlikely, in practice, and how I propose to deal with the matter between now and Report. What is being seen as the potential risk of gaming comes from the line we propose to draw in regulations as to when the relief should apply. New fibre installed after 1 April 2017 will receive the relief. However, some operators will choose instead to use existing fibre optic cable which was installed prior to 1 April 2017 but has not yet been activated. This is known as dark fibre. The objective of the measure in the Bill is to support investment in new fibre broadband infrastructure. Therefore, previous investment in existing fibre, including dark fibre, is not considered to be new fibre, has not been incentivised by this measure and will be outside the relief.

We have heard concerns that the proposed different treatment in the relief scheme of new fibre, which gets the relief, and dark fibre, which does not, could lead to some gaming in the system. It has been suggested that telecom operators may replace or duplicate existing dark fibre with new fibre merely to secure the rate relief. It has also been suggested that some operators may install new fibre in existing locations to gain a competitive advantage over existing operators in that location, merely because of the rate relief.

To understand this better we are investigating the costs and operational implications of installing new fibre into existing infrastructure, such as ducts. By comparing these costs to the potential saving on business rates from the new fibre relief we can identify where, in principle, the scope for gaming exists. To help us with that work we have held discussions with telecom companies regarding this matter and are now considering evidence provided by one operator, Gamma Telecom, which I mentioned at Second Reading. The consultation on the draft regulations runs until 21 November, and during this time we would like to hear views from other operators regarding the risk of gaming. This work is at an early stage and noble Lords will understand that some of the data we are using in this study is commercially confidential.

Our initial findings are that in the vast majority of cases—perhaps covering more than 99% of the telecom network—it will not be financially viable for operators to install new fibre merely to gain the relief. In those cases, the cost of purchasing the fibre and the labour costs associated with opening existing ducts—putting the fibre through those ducts and then connecting the fibre—exceeds the saving from business rates. In those situations it will be cheaper to use existing dark fibre, so gaming would not occur. Our focus, therefore, is on smaller networks where the business rates paid in respect of each kilometre of network are higher than for larger networks. The potential for making a saving in business rates is therefore also higher.

We are looking closely at the circumstances in which new fibre may be installed in existing smaller networks and exploring more of the costs associated with accessing existing ducts. These circumstances account for a very small fraction of the telecoms network—probably less than 1%. That said, I cannot see why 1% should be ignored and if there is evidence of the possibility of gaming, I would want to ensure that we act. But even if there are circumstances where, in principle, the rates saving exceeds the costs, it does not necessarily follow that, in practice, gaming is viable. For example, it may not be possible to add new fibre to ducts which are already in use, while switching from one fibre to another may cause interruption or disruption to the customer, which may be especially unacceptable for business customers and unattractive to the operator. But, as I have said, we agree with the noble Lord and the noble Baroness that we do not want a tax system that is open to gaming in the way that has been suggested. If from our work with the sector we conclude that gaming is likely, I assure the noble Lord and the noble Baroness that we would consider how to amend the draft regulations to prevent it.

The amendments we are considering would move the definition of new fibre into the Bill. This would in fact significantly limit our ability to tackle any gaming. The approach in the Bill of defining in regulations the meaning of new fibre gives us the scope to first identify the circumstances in which gaming might arise before we devise the solution. It allows us to ensure that any solution is practical and to respond quickly to any future circumstances where gaming might arise.

Moving on to the practical points put by the noble Lord and echoed by the noble Baroness about meeting the sector, as I have indicated, I intend to meet Gamma between now and Report, which will probably be towards the end of November. I will certainly keep the House—including the noble Lord and the noble Baroness—informed about how the discussions are going. I would be happy to include them in the thrust of what is happening, and expect to act on any concerns about gaming which indicate that this issue needs addressing. As I say, we are as keen as they are to tackle any potential gaming. I hope with that assurance and the guarantee that I will keep the noble Lord and the noble Baroness involved with what is happening, that the noble Lord will feel able to withdraw his amendment.

[Lord Kennedy of Southwark]

My Lords, I thank the Minister for that helpful response. I am happy to withdraw my amendment at this stage. I am delighted that the Minister is meeting representative of the industry, particularly Gamma. That is very good.

I hope the Minister is right on all these things and that there is no issue with gaming at all. My only concern is that we should pass the legislation in a way that eliminates it. We are often told by the Government that parliamentary time is precious. It would be a shame to get the Bill through and then find, in a year’s time, that there was a problem after all and people are doing the things which we do not think they will now. I like the idea of putting something in regulations as a good way forward. They can be amended a bit more easily. I was at a meeting this morning on a completely different subject: a very good initiative that the Government had come forward with many years ago, when I first joined the House, but now there are some concerns about how it is operating. To get that initiative changed, we have to go back and get the law changed. That is not always easy. I thank the Minister for his response and look forward to further discussions. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

--- Later in debate ---

Moved by

[Lord Kennedy of Southwark]

4: Clause 1, page 1, line 16, at end insert—
“(4FC) Providers of telecommunications benefiting from the relief under subsections (4E) and (4F) must give due consideration to providing high quality telecommunications services to rural and hard to reach areas.”

[Lord Kennedy of Southwark]

Amendments 4, 8 and 13 in my name and Amendment 15 in the name of the noble Baroness, Lady Pinnock, concern how we help rural areas and communities benefit from improved connectivity with fibre, to address the concerns that rural and other hard-to-reach areas have.

Amendments 4, 8 and 13 are in effect the same amendment placed in three different parts of the Bill. They would place a requirement on those companies benefiting from the business rates relief to give due consideration to providing high-quality telecoms services to such areas. These are very reasonable amendments—I always table reasonable amendments in your Lordships’ House—and they would place a duty only to give due consideration. There is nothing onerous or anything that would put the viability of a business at risk, but they propose that connectivity must be given proper consideration and significance.

If a particular area is benefiting from an upgrade to fibre, the company doing the work should give proper weight to the proposition that, as a beneficiary of the rates relief, it should also look at whether the work in the village down the road could be done at the same time—the risk being that if it is not done then, it will never be done at all. The community would then be as disadvantaged, as it was previously.

I fully support the amendment in the name of the noble Baroness, Lady Pinnock. It asks that a report be laid before Parliament 12 months after the Act comes into force, to look at various issues, which I am sure she will refer to in her contribution. I beg to move.

--- Later in debate ---

[Lord Ashton of Hyde]

My Lords, I am grateful to noble Lords for laying out their amendments clearly. As the noble Lord, Lord Kennedy, said, these amendments are very much linked to the last group on which I answered—the first group today.

Amendment 4, which was moved by the noble Lord, Lord Kennedy, seeks to ensure that there is a requirement for recipients of the relief to,

“give due consideration … to rural and hard to reach areas”.

In a similar vein, the noble Baroness, Lady Pinnock, proposes an amendment to require a report on the impact of these measures on rural connectivity. Although I might support the spirit of these apparently reasonable amendments, I do not believe that they are necessary. I share the concerns of many noble Lords that rural and remote areas should not be left behind in the drive to improve and extend high-quality broadband connectivity. I declare an interest: I live in a rural area and am absolutely aware of the problems to which noble Lords have alluded.

The relief provided for in the Bill is available across England and Wales. No area is excluded or exempted, and we have engaged with the Welsh Government to support the application of the measure in Wales. Providers deploying fibre connectivity in the countryside will receive the same rates relief as those deploying in the hearts of our great cities. That is important because the problems of slow speeds are the same, regardless of where the household is located. When we talk about social deprivation, for example, it is still a problem in an inner city as well as a rural area.

Providers are free to deliver connectivity wherever the market allows. However, to ensure that people living and working in rural and remote areas can and do have access to the broadband speeds that they need, the Government have delivered a series of measures, which I mentioned in my previous answer—but I shall remind noble Lords of them just briefly. There is the superfast rollout programme, which is worth about £1.7 billion of public money. We are currently consulting on the broadband universal service obligation, which will apply across the United Kingdom, with at least 10 megabits per second. Then there is the local full fibre networks programme, worth £200 million, and the rural development programme for England at £30 million for broadband. Those measures have been a great success, with 45% of households with superfast in 2010 rising to 95% by the end of this year.

It is clear that the relief will be alongside a package of measures put in place by the Government to help spread to those living and working in rural and remote areas the benefits of economic growth and access to services that better broadband connectivity will bring. Together, they will also lay the foundations needed for the next generation of mobile technology, known as 5G, to which the noble Baroness, Lady Pinnock, referred.

The noble Baroness’s proposed new clause in Amendment 15 would require a report on the impact of the measure on rural connectivity. I support the outcome—that is, an understanding of the impact of Government’s action in this area—but my concern is that requiring a report on the impact on rural connectivity may have an adverse effect. Telecoms networks take time to plan and build, and investors rely on certainty. A report on the relief after 12 months is premature, given the time taken to deploy networks. My noble friend Lord Bourne will cover reporting arrangements in greater detail later, but my concern is that if the Government are required to report so soon, it could create uncertainty over whether the relief will continue, and lead to unintended consequences.

On subsection (2)(c) of the noble Baroness’s proposed new clause, on mobile coverage, I note that the main benefit of the measure to mobile will be in aiding the deployment of 5G. It will take longer than 12 months for the next generation of mobile technology to appear; we do not quite know what it is yet.

Of course, we will monitor the effectiveness of the scheme in providing new fibre, which will include rural areas, but we need to allow the sector appropriate time to build networks in all areas. Ofcom reports on infrastructure deployment every year, and we should see the impact of all the Government’s measures in this field in due course. In view of those explanations, I hope that the noble Lord will withdraw his amendment.

[Lord Kennedy of Southwark]

The Minister made the point, with regard to the amendment of the noble Baroness, Lady Pinnock, that 12 months may be too soon. After what period of time does he think a report would be useful? Would it be 12 months, 24 months or 36 months?

[Lord Ashton of Hyde]

Ofcom reports every year, so I do not think it would matter whether it is 12 months or 24. My point was specifically on mobile coverage for which the 12 months would not be appropriate, because 5G has not really been invented yet, so there certainly will not be any visible signs on mobile coverage. Essentially, we are saying that we want fibre-optic cable to be laid over all areas of the country to improve future mobile reception and also fibre to the premises, which is what the future gold standard is. We need it everywhere, not just in rural areas. While we accept that rural and hard-to-reach areas have a problem, I have laid down a series of other measures to deal with those areas specifically.

[Lord Kennedy of Southwark]

I thank the Minister for that response and for his response to my other question. I am happy at this stage to withdraw my amendment.

Amendment 4 withdrawn.

--- Later in debate ---

Moved by

[Lord Kennedy of Southwark]

14: After Clause 3, insert the following new Clause—
“Assessment of rate relief: reporting
(1) The Secretary of State must, within the period of 12 months beginning with the day on which this Act has effect, lay a report before both Houses of Parliament containing an assessment of the operation of the relief provided under this Act in the 2017-18 financial year.(2) The report must include an account of—(a) the impact of the relief upon the level of local authority income raised through non-domestic rating;(b) the level of investment likely to have been stimulated by the relief, and the scope for extending the relief to other forms of investment;(c) whether the duration of the relief is appropriate;(d) the views of those subject to the charges of non-domestic rates on the relief; and(e) the efficacy of the mechanism for the distribution of the relief.”

[Lord Kennedy of Southwark]

My Lords, I will be brief, as we have rehearsed some of the points made earlier. Amendment 14 in my name and that of the noble Baroness, Lady Pinnock, puts a requirement on the Secretary of State to lay a report before both Houses of Parliament. A similar amendment was tabled in the other place to get the Government to make an assessment of the operation of the relief proposed under this Bill. The amendments list, in paragraphs (a) to (e) in subsection (2) of the proposed new clause, the areas that the report should cover. I hope that the Minister can address the concerns raised by the amendment. It seeks to ensure, among other things, that the issues we have been discussing today and in previous debates do not arise. It would be a major disappointment if we failed to address these concerns and also failed to take any measures to keep ourselves informed about the effect of the relief and how it is working.

I like to base my decisions on evidence. As I said, I was at a meeting today on a completely different matter, where, after many years down the line, we have not got a mechanism to change things. I hope we can get a positive response. I do not accept that having a report to Parliament, whether next year or in 24 months’ time, in itself creates great problems for business in terms of uncertainty. We are in very uncertain times on a whole range of issues, and I am sure businesses would be much happier with other things. I am sure the point can be made for the moment, but I do not accept the inference made. I beg to move.

[Baroness Pinnock]

As I have put my name to this amendment, clearly I support it. The specific parts of this amendment that I would like the Government to consider are paragraphs (a) and (e) of subsection (2). The first is the impact of the relief upon the level of local authority income raised and the second is, importantly, the mechanism for the distribution of the relief, whether it is going to be a speedy one and how carefully it can be calculated. I can see quite a lot of room for dispute about the cabling, such as which part of local authority boundaries it crosses and so on. What we would like is an assurance that there will be an appeal mechanism for local authorities if the distribution of the relief is not what they anticipate. The reporting would enable that to happen.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord and the noble Baroness for their contributions on this amendment dealing with the possibility of a review. I welcome the opportunity to return to this proposed new clause, which, as the noble Lord rightly says, was discussed in Committee in the other place.

We have said throughout the passage of the Bill that we intend to work with the sector and the Valuation Office Agency to ensure the smooth implementation of this relief. I happily restate that. We have published draft regulations for consultation; they are up for consultation until 21 November. I hope that noble Lords will see from the debate that we have just had in relation to gaming that my department and the Government as a whole are looking very closely at the detailed operation of the scheme. We all share the objective of wishing to see this scheme implemented effectively and quickly from the outset. This in turn will lead to new fibre growth and improved broadband. That is the aim, which I know that noble Lords share.

However, I fear that the proposed new clause would not achieve that aim and, if included in the Bill, could threaten the success of this scheme. I note what the noble Lord says about business uncertainty elsewhere, but that hardly means that a bit more uncertainty is a good thing or something that we should not be concerned about. Sending a clear signal to investors in the telecoms sector is critical to the success of this measure, which is why we have moved quickly to bring forward the Bill and why we are consulting early on the draft regulations. Investors need to see a clear intention on the part of the Government to deliver relief from 1 April 2017 for five years up to 2022.

One suggestion is about the length of the relief being provided. Any suggestion that it might not last the full five years is not desirable. Those sorts of signals can make the difference to decision-makers in telecoms companies in deciding whether to proceed with an investment. Businesses thrive on certainty. Decisions in telecoms companies are being made now on the basis of the promise made by the Chancellor that new fibre will have relief until 2022.

I understand the objective of the amendment, but it would create uncertainty in the sector and damage the prospects for success of the measure. By providing for, in effect, a review of the rate relief after only one year, we will sow the seeds of doubt in the sector. The sector may fear that the Government might cancel or otherwise negate the relief after a year—especially when, as the amendment clearly states, the review should consider the duration of the relief. We could expect telecoms companies to react in only one way to the prospect of such a review: they will be less likely to invest, which would damage the rollout of broadband. Therefore, I am afraid that the Government cannot accept the amendment.

We will, of course, continue to monitor the effective operation of the scheme to ensure that it is indeed providing relief on new fibre. We will work with the sector and the Valuation Office Agency to do that. The powers in the Act will allow us to adjust the scheme where necessary such as to reflect changing and new technologies. Any suggestion that the relief might last less than five years is something that we cannot subscribe to.

The amendment would also require the Government to assess the impact of the relief on local government. In fact, that is information which we already plan to collect and publish. I can give that undertaking. Each year, the department publishes non-domestic rating returns containing the information about the business rates income and relief in each local authority area, which this seems to ask for. I can ensure access to that; we can provide the link so that that information is readily available. Those returns are based on information provided to us by local government, and they can be found in full on our website. As I say, I am very happy to provide guidance on how that can be accessed. Those returns will in future include information about the level of new fibre relief. We expect the first returns to include this information to be the outturns for 2017-18, published in autumn next year. I am happy to provide that information and, indeed, to meet the noble Lord and the noble Baroness, with officials, to explain how a lot of the information that has been requested is already available.

Throughout the passage of the Bill through this House and the other place, we have been clear that we would compensate local government for the cost of its share of the relief, and I give that assurance again today. In view of these assurances, I hope the noble Lord will feel able to withdraw his amendment, with the undertaking that I am happy to meet him and the noble Baroness to go through this, perhaps to explain how at least some of this information is available at the moment.

[Lord Kennedy of Southwark]

I thank the Minister for his helpful response. I am happy to withdraw my amendment. I think that brings us to the end.

Amendment 14 withdrawn.