Data Protection Bill [HL]

Debate between Lord Paddick and Lord Stevenson of Balmacara

3rd reading (Hansard): House of Lords & Report: 2nd sitting (Hansard): House of Lords
Wednesday 17th January 2018 Lords Chamber

[Lord Paddick (LD)]

My Lords, Clause 124(4)(b) refers to the United Nations Convention on the Rights of the Child, which defines a child as a person under the age of 18, so we can assume that that is the working principle. Clause 124, introduced at a previous stage by an amendment from the noble Baroness, Lady Kidron, talks about age-appropriate design, and so presumably that means appropriate at different ages—for example, safeguards for those aged 12 will be different from those for people aged 16 and 18. Bearing in mind the United Nations convention definition, will the Minister confirm that that is the working principle for this Bill?

[Lord Stevenson of Balmacara]

My Lords, I do not wish to detain the House. I thank the noble Baroness for raising the point; clarity is always important, as we have learned, and she is right to put her finger on it. However, the point made by the noble Lord, Lord Paddick, is correct.

We run the risk in this Bill of pouring fuel on an already raging fire: the more we try to focus on children as a group, the more we demonise and make difficult the Bill’s attempts—through an amendment we all supported on Report—to raise our sights and find a way of expressing how all people are dealt with in terms of internet access, with particular reference to those with developmental or other support needs to whom the word “child” could well be applied. But that does not mean that we want the more generic approach to fail because it did not mention vulnerable adults, the elderly who may be struggling with internet issues, those with special needs or others. These groups all need to be considered in the right way, and I am sure that, in time, “age appropriate” may not be the most appropriate way of dealing with it. It does get us to a particular point, however. It was a historic decision that we took on Report to do it this way, but we need to have an eye on the much wider case for a better understanding of under what conditions and with what impact those of us who wish to use the internet can do so safely and securely.

Data Protection Bill [HL]

Debate between Lord Paddick and Lord Stevenson of Balmacara

Report: 3rd sitting Hansard: House of Lords
Wednesday 10th January 2018 Lords Chamber

[Lord Paddick (LD)]

My Lords, we are very grateful to the Government for introducing Amendment 118. We still believe that they could and should have gone further. Taking the example of the Investigatory Powers Act 2016—the fact that Ministers are unable to authorise interception without oversight by an independent judicial commissioner of that decision—we wonder why that sort of oversight could not be applied to these certificates as well. Clearly, we are grateful to the Government for going as far as they have done. We are just disappointed that they did not go as far as we wanted.

[Lord Stevenson of Balmacara]

My Lords, my noble friend Lord Kennedy is not available at the moment. He is occupied with a personal matter and has asked me to say that he supports the words of the Minister. She has listened to concerns. It is very welcome that she has done so and we agree with the amendment.

Data Protection Bill [HL]

Debate between Lord Paddick and Lord Stevenson of Balmacara

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

[Lord Paddick (LD)]

My Lords, I will speak to Amendment 153 in my name and that of my noble friend Lord Clement-Jones. Section 17(1) of the Data Protection Act 1998 states that personal data must not be processed unless an entry in respect of the data controller is included in the register maintained by the Information Commissioner. Effectively, processing personal data without registering and without paying a fee is, at the moment, a strict liability criminal offence. This ensures that all data controllers are aware of their most basic obligations and that a central register of who is processing personal data is maintained. It also provides a simple means of collecting notification fee income.

We have been made acutely aware during the debates on the passage of the Bill of the increased responsibilities that will be placed on the Information Commissioner and the need for her to have additional resources. This is one way of ensuring that she has those resources, provided she is able to keep the fees raised and does not have to hand over large amounts of those fees to the Treasury.

This is an important protection for data subjects, and the Government have asserted that they are strengthening the law to protect data subjects. If the requirement to register is removed, as will happen without this amendment, this will weaken those protections. In addition to protections provided by registration and the increased awareness of the other requirements around data protection as a result of registering, it allows for the Proceeds of Crime Act to be used to confiscate money generated by the unlawful processing of personal data by those who are not registered. This would be lost if this amendment is not adopted.

The amendment seeks to maintain the current position by requiring the Information Commissioner to register all data controllers. However, unlike the current requirement for more detailed information, the amendment requires that the data controller provides only the minimum of information—such as his name and address; if he has nominated a representative for the purposes of the Act, their name and address; and the principal activity or activities undertaken by the data controller.

The Minister may wish to pray in aid article 57(3) of the GDPR, which states:

“The performance of the tasks of each supervisory authority shall be free of charge for the data subject and, where applicable, for the data protection officer”.


We argue that this is a notification fee, not a task performed by the Information Commissioner, and a fee that would be levied on the data controller and not the data protection officer. I beg to move.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I shall speak to Amendment 153ZA in my name and that of my noble friend Lord Kennedy of Southwark. I support the amendment tabled by the noble Lords, Lord Clement-Jones and Lord Paddick, which is important. We look forward to hearing what the Minister says in response.

Our amendment is in two halves. The first probes the question of what happens in cases where the data controller relies on derogations or limitations provided for under the GDPR that have been brought, directly or indirectly, into UK law through the existence of the GDPR after 25 May 2018 or through secondary legislation, whichever is appropriate. It asks whether there is a need for a bit more guidance on the commissioner’s duties, in that she may wish to look at the proportionality of such reliance by the data controller—in other words, whether it is appropriate relative to the overall aims and objectives placed on the data by the data controller—and whether it is appropriate under the GDPR or its subsequent limitation or derogation. It also asks whether adequate systems are in place to make sure the rights of data subjects are safeguarded. This may seem to be gold-plating, but it is important to understand better how the mechanics of this works in practice. These are very important issues.

The second part returns to an issue we touched on earlier in Committee, but about which there is still concern. We have again had representations on this issue. The amendment is framed as a probing amendment, but it comes back to familiar territory: what will happen in later stages of the life of the Bill as we leave the EU and are required to make sure our own legislative arrangements are in place? At present, the GDPR has an extraterritorial application so that even when companies are not established in the EU they are bound by the GDPR where they offer goods or services to EU citizens or monitor their behaviour. As well as requiring that lawful processing of data is not excessive, data controllers are required to keep data secure.

So far, so good. The important point is that under the GDPR at present—there is no derogation on this—it is necessary for such companies to make sure they have what is called a representative in the EU. This would be a physical office or body, staffed so that where EU citizens wish to take up issues that affect them, such as whether the data is being properly controlled or whether it has been processed legally, contact can be made directly. But under the Bill as I understand it, and I would be grateful if the Minister could confirm what exactly the situation is, after the applied GDPR comes in the requirement for a company to make sure it has a representative in the UK—in the GDPR, it is for a company to have a representative in the EU—will be dropped. If that is right, even if the operating company is well-respected for its data protection laws or is in good standing as far as the EU is concerned, any individual based in the UK would obviously have much more difficulty if there is no representative, such as in a situation with different foreign laws, where an individual would probably rely on an intermediary who may not see non-nationals as a sufficiently high priority. If things do not work out, the individual may have to have recourse to law in a foreign court. This will make it very difficult to enforce new rights.

Is it right that the Government will not require foreign companies operating in the UK after Brexit to have a representative? If it is, how will they get round these problems? I look forward to hearing what the Minister says on these points.

--- Later in debate ---

[Lord Stevenson of Balmacara]

My Lords, I want to come back to an issue relating to the situation post Brexit: companies operating in the UK, for which a representative will not be required. I listened to the Minister very carefully and I understand what he is saying, but I take it that, post Brexit, he is basically relying on the force of the Information Commissioner’s personality and her ability to maintain her current relationships and build on them. As such, when taking issues abroad, individuals in the UK will not have any statutory provision, as they currently do, but will have to rely on the informal mechanisms the Minister mentioned and their own resources. He has failed to answer the question whether that is a good situation to be in as we progress through the Bill, but I will read what he said more carefully and come back to him later.

[Lord Paddick]

My Lords, I thank the noble Baroness, Lady O’Neill of Bengarve, for her contribution—we will look at that should we bring back the amendment on Report. I also thank the noble Lord, Lord Stevenson of Balmacara, for his support for the amendment.

The Minister said that provision in the 1998 Act requiring all data controllers to be registered was an important part of data protection, yet his argument for not continuing with that seemed to be that it would be difficult to maintain a register with the numbers now involved. Either the register is an important contribution to data protection or it is not. In any event, we should bear in mind that a charge could be levied. The Minister suggested that a register would not be a proportionate use of the Information Commissioner’s resources, but those resources could significantly increase. If the existing law were enforced, it is estimated that an additional £1 billion in income would be possible.

On a detailed central register, I said when introducing the amendment that the detail suggested would be far less than is currently the case. However, we will reflect on what the Minister said. For the moment, I beg leave to withdraw the amendment.