Data Protection Bill [HL]

Lord McNally Excerpts

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

The noble Baroness, Lady Ludford, posed the question: what does “so far as it is possible to do” mean? The Minister will be invited to respond to that but presumably it means in so far as it is not inconsistent with the specific legislative provisions contained in the Bill—I do not know; the Minister may have a better answer than that. However, it seems to me that by invoking broad generalisations there is almost an admission that the Bill is not doing the proper job. It may satisfy a number of people’s understandable concerns about somehow striking the right balance between protecting personal data and allowing free access to data that is appropriate, but inserting, rather at the last minute, two general provisions of this sort does not seem to me to be making good law.

[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.

--- Later in debate ---

[Lord Pannick]

Does the Minister also agree that a further answer to the points made by the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Mackay of Clashfern, is that it is absolutely inevitable that the detailed provisions of the Bill will be, on occasion, the subject of dispute, uncertainty and litigation, and that it would be very helpful to have a statement of principle on what is intended at the commencement of the Bill? This would not be the first time that a Bill has done that. Everybody would then know what the principles were. Of course, the Minister still needs to consider before Third Reading what that statement should be, but that is the point, as I understand it, of government Amendment 1.

[Lord McNally]

Why does the Minister feel it so necessary to push ahead with his amendment when it is quite clear that the best and most constructive way forward would be for both amendments not to be pressed to allow constructive discussion and resolution at Third Reading?

[Lord Ashton of Hyde]

Government Amendment 1 provides a basis for the discussion that we will have before Third Reading. Of course, I accept that it could be amended at that stage.

As for the remarks of the noble Lord, Lord Pannick, I will have to read my noble friend Lord Faulks’s words. I was not entirely sure that he was as supportive as the noble Lord feels, but I may have misinterpreted him.