Data Protection Bill [HL]

Lord Mackay of Clashfern Excerpts

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

[Lord McNally (LD)]

My Lords, I follow with some trepidation my successor at the Ministry of Justice, the noble Lord, Lord Faulks. I do so because, for the three years before he took up his office, I was the Minister of State at the Ministry of Justice who had responsibility for the negotiations around the GDPR in its early stages. It is interesting that this debate reflects very much the early gestation of the GDPR. At that point, there was a very clear division between what I would describe as the Anglo-Saxon approach—which the noble Lord, Lord Faulks, has expounded—and the continental approach. I suspect that is something that has bedevilled our approach to law-making in the EU over 40 years.

The truth of the Anglo-Saxon approach is this: of course we believe in these things, and if we look here, there and everywhere we will find that they are all covered; but hold that against points made by people who have only very recently experienced the power of the state and its abuse of the law by the Stasi and others. They want a much clearer definition that can be clearly observed. Thanks mainly to the hard work of my noble friend Lady Ludford in the European Parliament, we got a GDPR that was not overprescriptive in that direction but satisfied those very real concerns. We are at the same point again in this Bill.

Of course the noble Lord, Lord Faulks, is undoubtedly right about the various guarantees found in this and other legislation, but the politician in me says that if we are to get the adequacy we want in due course, we must not—to use a phrase of an old mentor of mine, Joe Gormley—build platforms for malcontents to stand on. We must not leave in everybody’s mind the question of why they did not want this in the Bill, when it is such a clear statement of their beliefs and our beliefs.

To revert to my old job as a political adviser, my advice to the Minister is this. In doing what he has been asked to do—to withdraw the amendment—he should work with the amendment tabled by the Opposition and bring through at Third Reading something that will cover our Anglo-Saxon desire to see these things in law but also reassure in a very political way those who have genuine concerns and want to see us carry out and stand by these responsibilities.

[Lord Mackay of Clashfern (Con)]

My Lords, I find this situation slightly difficult because it looks to me as though what is wanted is to say that there is something in the charter that is not already in the Bill; otherwise it does not seem very much to the point. If it is already in the Bill, the two proposed new clauses—which are not intended to be additional but optional—are unnecessary. If it is not in the Bill, surely we should put it in the Bill and not leave it. I do not know whether I am Anglo-Saxon, Celtic or what, but I do not distinguish between these various matters. As for being political, I am not sure that I want to be that either.

I want the Bill to be as precise as it can be in a difficult area. Both the government amendment and the opposition amendment strike me as vague. I will say a few words about the opposition amendment because the government amendment, as the Minister says, is not intended to confer any new rights. That is a clear situation. Proposed new subsection (5) of the opposition amendment states:

“Restrictions on the rights of a data subject and any limitation on the exercise of the right to the protection of personal data under this section must be provided for by legislation”.


I would like to see it stopping there. I do not see how you can start to judge the legislation that has already been passed by considering whether it respects the essence of that right. If it does not, it should not have been passed as legislation.

Proposed new subsection (6) has the same effect. It states:

“Subject to the principle of proportionality, the restrictions and limitations under subsection (5)”—


these are restrictions brought in by statute, according to subsection (5)—

“may be made only if they are necessary to support a democratic society”,

and so on. I think I know where that comes from. The point is that if that is right, it should not be in the legislation. This is a requirement about the nature of the legislation which, on the theory of proposed new subsection (5), has already been passed.

It is not appropriate for the Bill to try to control legislation which, according to this, does not seem to have been passed, unless it is already in this Bill, in which case we should accept it.