Amazon

Lord Whitty Excerpts

Monday 12th October 2020 Lords Chamber

[Baroness Barran (Con)]

The Government and the Treasury absolutely recognise the importance of our high streets. That is why the Treasury announced a fundamental review of the business rates system earlier this year.

[Lord Whitty (Lab) [V]]

My Lords, has the Minister read the report by the TUC and the GMB this morning on Amazon’s dire employment practices? In this Covid period, Amazon has received a lot of government and public sector contracts. Why are the Government not using their leverage over those contracts to ensure that Amazon improves its employment conditions?

[Baroness Barran (Con)]

We are working across the piece to protect jobs in all parts of the economy and to clamp down on any abuses that we are aware of.

Music Industry

Lord Whitty Excerpts

Thursday 10th September 2020 Lords Chamber

[Baroness Barran (Con)]

The Government absolutely recognise some of the issues that the noble Baroness raises. We do not have the data specifically for music, but across the cultural sector, about 75,000 people have already benefited from the Self-employment Income Support Scheme. We have aimed to structure the cultural recovery fund in a way that maximises employment opportunities for those working in this sector, but obviously we are keeping it under review and are in close conversation with sector bodies.

[Lord Whitty (Lab) [V]]

In normal times, many musicians and music enterprises make part of their money from live appearances and touring, particularly across Europe. I have yet to have a reply to my question to the noble Lord, Lord True, last week as to what post-Brexit provisions for free movement of musicians and free passage of their equipment, and that of support teams, the Government are looking for in this week's negotiations. I ask the Minister here today: what are the expectations of her department in that regard?

[Baroness Barran (Con)]

Obviously, my department is working very closely with those involved in the negotiations, and we aim to negotiate reciprocal arrangements which will facilitate businesses, including musicians and groups of musicians, to deliver their services within the EU.

Brexit: Movement of People in the Cultural Sector (European Union Committee Report)

Lord Whitty Excerpts

Wednesday 15th May 2019 Lords Chamber

[Lord Whitty (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Jay, and I congratulate him on the work that he and his sub-committee have done on the cultural sector.

Nearly two years ago now, my own sub-committee of your Lordships’ European Union Select Committee produced a report on Brexit and the service trades. My intervention today is not through any particular insight into the position of the various cultural sectors—I am a great admirer of many of the sectors that the noble Lord, Lord Jay, has referred to, particularly cinema and the theatre—but in our earlier inquiry many musicians, stage providers and the whole broadcasting sector all emphasised the danger of uncertainty, as the noble Lord said, and the effect that restrictions on the movement of people will have on their ability to deliver British cultural products, employ talent from around the world and send our talent around the world if this issue is not addressed fully.

I am not a representative of any cultural sector. I found myself boasting over the weekend, after a couple of glasses, that I had been on stage with some of our leading actors. That was 50 years ago, and their careers seem to have taken off better than mine did, so, like many failed actors, I ended up in politics.

This is part of a wider situation. The cultural sector depends on people’s ability to move around, as do many others. Professional services, tourism and a whole range of industries depend on people moving from this country into Europe and on Europeans coming to work here in the long, medium or short term. The way in which our immigration system and Europe’s immigration system operate with the rest of the world is not conducive to that method of operating across borders for sectors of this kind. People in them need to move frequently without hassle—as our passports used to say, “without let or hindrance”—but that only ever operated within the EU. We are talking about a significant sector. The noble Lord said that the cultural sector is worth £30 billion, but together the sectors we are talking about form approximately 60% of our economy, and most of them depend on that kind of movement.

What is our reaction and the EU’s reaction to these issues in the negotiations that have already been dragging on for three years and look like dragging on for another few years? It is not good. The services sector has either been assumed to take care of itself or has not been mentioned. There is no provision for it in the Chequers agreement or in the Prime Minister’s position on the withdrawal agreement. It is referred to in the political declaration, but only in relatively negative terms. In effect, it says that people moving to other countries to deliver services will be covered by the rules of the host country. That means every single nation state, and they all have different rules for different services, different qualifications and different ways in which you put on shows in the cultural sector or appear before the courts in the legal sector. The European rules overrule that, which means that a Spanish lawyer can appear in a German court and an Italian violinist can appear in a Scottish concert hall, but each of those countries has its own rules, and if I read the terms of the political declaration literally, it means that those rules can be used to keep both those individuals out.

How we deal with services and the movement of people is bedevilled by the fact that ideologically and politically there are different attitudes to this, and they are in essence ideological and, if you like, instinctive. The liberal left regards this as an issue of human rights, citizenship and open access. The political right by and large regards this as an immigration issue of control, numbers and terms on which people enter the country. However, what the committee’s report and I are saying is that this is, in essence, an economic issue. This is a vital section of the British economy which will be absolutely stymied if we apply the rules which some people are advocating and which already exist for these groups of workers from the rest of the world or if the EU apply them to us.

I am not encouraged by what has been said so far about the focus of discussions. Even assuming for a moment that we reach some sort of agreement on a version of the withdrawal agreement and move into a truncated transition period after Halloween, we will not have a lot of time to sort out these issues because they are different in the different sectors. Some of them will depend on qualifications; some will depend on salary. For example, in this sector and most of the tourism sector a cut-off point of £30,000 a year will not be seriously helpful to many of the people who need to move around.

Therefore, my plea to the Government is, first, to reply in more detail to the noble Lord’s report and, secondly, to recognise that, whatever the political pressures on them, they should treat migration as a border control issue or a human rights issue, both of which are valid. In this context, the key issue for the future prosperity of these sectors is that it should be treated as an economic issue, and sensible and rational decisions should be taken on the future reciprocal migration arrangements with Europe.

I thank the noble Lord for his report. I underline its wider implications and look forward to the debate.

Data Protection Bill [HL]

Lord Whitty Excerpts

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

[Lord Ashton of Hyde]

My Lords, I begin by repeating, almost word-for-word, the noble Lord, Lord Kennedy: engaging voters is important in a healthy democracy. In order to do that, political parties, referendum campaigners and candidates will campaign using a variety of communication methods. However, they must comply with the law when doing so, and this includes the proper handling of the personal data they collect and hold.

Noble Lords will be aware that the Information Commissioner recently announced that she was conducting an assessment of the data protection risks arising from the use of data analytics, including for political purposes. She recognises that this is a complex and rapidly evolving area where organisations use a person’s internet or public profile to target communications or messaging. The level of awareness among the public about how data and analytics work and how their personal data is collected, shared and used through such tools is low. What is clear is that these tools have a significant potential impact on an individual’s privacy, and the Government welcome the commissioner’s focus on this issue. It is against this backdrop that we considered the amendments of the noble Lord.

The amendments seek to amend a processing condition relating to political parties in paragraph 17. The current clause permits political parties to process data revealing political opinions, provided that it does not cause substantial damage or substantial distress. This replicates the existing wording in the Data Protection Act 1998. I have said that political campaigning is a vital democratic activity but it can also generate heated debated. Removal of the word “substantial” could mean that data processing for political purposes which caused even mild offence or irritation becomes unlawful. I am sure noble Lords would agree that it is vital that the Bill, while recognising the importance of adequate data protection standards, does not unduly chill such an important aspect of the UK’s democracy. For that reason I ask the noble Lord to withdraw the amendments.

I thank the noble Lord for allowing me to reply later to his list of questions. I found it difficult to copy them down, let alone answer them all, but I take the point. In many instances we are all in the same boat on this, as far as political parties are concerned. I shall of course be happy to meet with him, and I take the point about who should attend. I am not sure it will be next week, when we have two days in Committee, but we will arrange it as soon as possible. I will have to get a big room because my office is too small for all the people who will be coming. I take the points the noble Lord made in his questions and will address them in the meeting.

The noble Baroness, Lady Hamwee, asked whether the Electoral Commission had been consulted. It did not respond to the Government’s call for views which was published earlier this year, and we have not solicited any views explicitly from it beyond that.

The noble Baroness also asked about the provision, acquisition and use of a marked electoral register within paragraph 17 of Schedule 1. As she explained, the marked register shows who has voted at an election but does not show how they voted. As such, it does not record political views and does not contain sensitive data—called special categories of data in the GDPR —and, as the protections for sensitive data in article 9 of the GDPR are not relevant, Schedule 1 does not apply.

Lastly, the noble Baroness asked why Members of the House of Lords are not within the definition of elected representatives. Speaking as an elected Member of the House of Lords—albeit with a fairly small electorate—I am obviously interested in this. I have discovered that none of us, I am afraid, are within the definition of elected representatives in the Bill. We recognise that noble Lords may raise issues on an individual’s behalf. Most issues will not concern sensitive data but, where they do, in most cases we would expect noble Lords to rely on the explicit consent of the person concerned. This arrangement has operated for the past 20 years under the current law, and that is the position at the moment.

I hope I have tackled the specific items relating to the amendments. I accept the points made by the noble Lord, Lord Kennedy, about the electoral issues that need to be raised in general.

[Lord Whitty (Lab)]

I fully support my noble friend’s assertions and the Minister’s response. It is very important that registered political parties can operate effectively. I wonder whether, in the discussions he is proposing to undertake, the Minister will also address the issue of other organisations and political parties attempting to influence the political process. I do not think I need to spell it out, in view of recent news, but the use of social media by organisations that are not covered by our electoral law or by registration as a political party must not have the same provisions that registered political parties would have under the Bill or my noble friend’s amendments. I wonder if that could be addressed directly in these discussions.

Data Protection Bill [HL]

Lord Whitty Excerpts

Monday 13th November 2017 Lords Chamber

[Baroness Hamwee]

My Lords, I too want to say a word about Amendment 75. The Human Rights Act trumps everything. To put it another way, the fundamental rights it deals with are incorporated into UK law, and they trump everything.

Like the noble Baroness, I believe that it is quite right that those who are responsible—humans—stop and think whether fundamental human rights are engaged. The right not to be subject to unfair discrimination has been referred to. Both the Bill and the GDPR recognised that as an issue in the provisions on profiling, but we need this overarching provision. Like other noble Lords, I find it so unsettling to be faced with what are clearly algorithmic decisions.

When I was on holiday I went to a restaurant in France called L’Algorithme, which was very worrying but I was allowed to choose my own meal. If this work continues in the industry, perhaps I will not be allowed to do so next year. I wondered about the practicalities of this, and whether through this amendment we are seeking something difficult to implement—but I do not think so. Law enforcement agencies under a later part of the Bill may not make significant decisions adversely affecting a data subject. Judgments of this sort must be practicable. That was a concern in my mind, and I thought that I would articulate my dismissal of that concern.

[Lord Whitty (Lab)]

My Lords, my name is attached to two of these amendments. This is a very difficult subject in that we are all getting used to algorithmic decisions; not many people call them that, but they are what in effect decide major issues in their life and entice them into areas where they did not previously choose to be. Their profile, based on a number of inter-related algorithms, suggests that they may be interested in a particular commercial product or lifestyle move. It is quite difficult for those of my generation to grasp that, and difficult also for the legislative process to grasp it. So some of these amendments go back to first principles. The noble Baroness, Lady Hamwee, said that the issue of human rights trumps everything. Of course, we all agree with that, but human rights do not work unless you have methods of enforcing them.

In other walks of life, there are precedents. You may not be able to identify exactly who took a decision that, for example, women in a workforce should be paid significantly less than men for what were broadly equivalent jobs; it had probably gone on for decades. There was no clear paper trail to establish that discrimination took place but, nevertheless, the outcome was discriminatory. With algorithms, it is clear that some of the outcomes may be discriminatory, but you would not be able to put your finger on why they were discriminatory, let alone who or what decided that that discrimination should take place. Nevertheless, if the outcome is discriminatory, you need a way of redressing it. That is why the amendments to which I have added my name effectively say that the data subject should be made aware of the use to which their data is being made and that they would have the right of appeal to the Information Commissioner and of redress, as you would in a human-based decision-making process that was obscure in its origin but clear in relation to its outcome. That may be a slightly simplistic way in which to approach the issue, but it is a logical one that needs to be reflected in the Bill, and I hope that the Government take the amendments seriously.

[Lord Ashton of Hyde]

My Lords, I thank the noble Lord, Lord Clement-Jones, who introduced this interesting debate; of course, I recognise his authority and his newfound expertise in artificial intelligence from being chairman of the Select Committee on Artificial Intelligence. I am sure that he is an expert anyway, but it will only increase his expertise. I thank other noble Lords for their contributions, which raise important issues about the increasing use of automated decision-making, particularly in the online world. It is a broad category, including everything from personalised music playlists to quotes for home insurance and far beyond that.

The noble Lord, Lord Stevenson, before speaking to his amendments, warned about some of the things that we need to think about. He contrasted the position on human embryology and fertility research and the HFEA, which is not exactly parallel because, of course, the genie is out of the bottle in that respect, and things were prevented from happening at least until the matter was debated. But I take what the noble Lord said and agree with the issues that he raised. I think that we will discuss in a later group some of the ideas about how we debate those broader issues.

The noble Baroness, Lady Jones, talked about how she hoped that the repressive bits would be removed from the Bill. I did not completely understand her point, as this Bill is actually about giving data subjects increased rights, both in the GDPR and the law enforcement directive. That will take direct effect, but we are also applying those GDPR rights to other areas not subject to EU jurisdiction. I shall come on to her amendment on the Human Rights Act in a minute—but we agree with her that human beings should be involved in significant decisions. That is exactly what the Bill tries to do. We realise that data subjects should have rights when they are confronted by significant decisions made about them by machines.

The Bill recognises the need to ensure that such processing is correctly regulated. That is why it includes safeguards, such as the right to be informed of automated processing as soon as reasonably practicable and the right to challenge an automated decision made by the controller. The noble Lord, Lord Clement-Jones, alluded to some of these things. We believe that Clauses 13, 47, 48, 94 and 95 provide adequate and proportionate safeguards to protect data subjects of all ages, adults as well as children. I can give some more examples, because it is important to recognise data rights. For example, Clause 47 is clear that individuals should not be subject to a decision based solely on automated processing if that decision significantly and adversely impacts on them, either legally or otherwise, unless required by law. If that decision is required by law, Clause 48 specifies the safeguards that controllers should apply to ensure the impact on the individual is minimised. Critically, that includes informing the data subject that a decision has been taken and providing them 21 days within which to ask the controller to reconsider the decision or retake the decision with human intervention.

I turn to Amendments 74, 134 and 136, proposed by the noble Lord, Lord Clement-Jones, which seek to insert into Parts 2 and 3 of the Bill a definition of the term,

“based solely on automated processing”,

to provide that human intervention must be meaningful. I do not disagree with the meaning of the phrase put forward by the noble Lord. Indeed, I think that that is precisely the meaning that that phrase already has. The test here is what type of processing the decision having legal or significant effects is based on. Mere human presence or token human involvement will not be enough. The purported human involvement has to be meaningful; it has to address the basis for the decision. If a decision was based solely on automated processing, it could not have meaningful input by a natural person. On that basis, I am confident that there is no need to amend the Bill to clarify this definition further.

In relation to Amendments 74A and 133A, the intention here seems to be to prevent any automated decision-making that impacts on a child. By and large, the provisions of the GDPR and of the Bill, Clause 8 aside, apply equally to all data subjects, regardless of age. We are not persuaded of the case for different treatment here. The important point is that the stringent safeguards in the Bill apply equally to all ages. It seems odd to suggest that the NHS could, at some future point, use automated decision-making, with appropriate safeguards, to decide on the eligibility for a particular vaccine—

Data Protection Bill [HL]

Lord Whitty Excerpts

Monday 6th November 2017 Lords Chamber

[Lord Arbuthnot of Edrom (Con)]

My Lords, like the noble Baroness, Lady Jones, I understand the issues of fast-changing technology and the fact that it is very hard for primary legislation to keep up. My noble friend Lady Neville-Rolfe has asked me to express her sadness that she is unable to be here today due to a family funeral. I shall speak to the amendments in our name which, like Amendment 24, propose the super-affirmative resolution procedure.

The report by the Delegated Powers Committee speaks eloquently for itself. The arguments have been made already by the noble Lord, Lord Stevenson, and the noble Baroness, Lady Jones, and I shall not repeat them. Our amendments would do two extra things: they would put the super-affirmative resolution process in the Bill, which would make it a bit clearer—that seems more helpful—and would add a requirement for an updated impact assessment for industry, charities and public authorities. The reason for that is that the Executive could make changes under these powers, including adding a whole new technology to the data protection regime—so an impact assessment, according to my suggestion, would be essential. My noble friend Lady Neville-Rolfe and I would support any call for discussions with the Minister so that we can identify where the super-affirmative procedure should apply.

[Lord Whitty (Lab)]

My Lords, I have two sets of amendments in this group. The first ones are actually amendments to that of the noble Lord, Lord Arbuthnot, because, like him, I think it would be useful, given the range of delegated powers within the Bill, if we wrote the super-affirmative resolution into the Bill. If we do not succeed in greatly reducing the amount of delegated legislation that is permitted under the Bill—although I hope my noble friend Lord Stevenson and others do—we need to treat that delegated legislation when it is brought forward in a way that is more intensive, consultative and engaging than our normal simple affirmative resolutions.

So I support the principle of the amendment of the noble Lord, Lord Arbuthnot, and the noble Baroness, Lady Neville-Rolfe. My Amendments 182A to 182C would simply add an additional dimension. As I read the amendment at the moment, it is emphatic on getting the Government to identify the impact on industry, charities and public bodies. The main point that we are all concerned about is actually the impact on individuals, the data subjects, yet they are not explicitly referred to in the draft of the amendment before us. My three amendments would therefore effectively do two things: first, they would require the Minister to consult data subjects or organisations representing them, such as consumer organisations, as well as those stipulated in the amendment as it stands; and, secondly, they would ensure that the impact assessments related to the impact on individuals as well as on organisations. I hope that the noble Lord would agree to my amendments at whatever point he and the noble Baroness propose to put this to the vote, in which case I could fully support their amendment.

My Amendment 22A is a specific example of the themes that my noble friend Lord Stevenson and the noble Baroness, Lady Jones, have already spelled out. I will not repeat everything they said but it is a particularly egregious form in that it allows the Minister—the noble Baroness, Lady Jones, has already referred to this—to add, vary or omit any safeguard that is in Schedule 1. I particularly object to “omit”. That does not simply mean modifying or tinkering in order to keep up with the technology; rather, it means omitting a serious safeguard that has been put in the Bill during its passage through Parliament.

Since Schedule 1 is pretty wide ranging, this could include issues that related to legal proceedings, crime, taxation, insurance, banking, immigration, public health or indeed any aspect of the public interest. That is a huge range of potential removal of safeguards that would not be subject to the approval of this House through primary legislation. If the safeguards persist and are maintained through the Bill when it eventually emerges, the ability of Ministers to vary them so drastically should be curtailed. I understand that my amendment would be pre-empted if my noble friend Lord Stevenson’s amendments were carried—but if they are not we definitely need to alter that clause.

This is a complex Bill because of the technology and because of the juxtaposition between European legislation and the position we are currently in with regard to it. The Bill is also an exemplar of what we are going to go through in Brexit-related legislation in a much wider sense. We must get right how we deal with delegated legislation post Brexit, and we need to ensure that the Bill is an example and does not concede powers to Henry VIII or indeed to the Minister that we might regret when his successors make use of them later.

[Lord Clement-Jones]

My Lords, I can be very brief. I have not yet quite got through the concept of the Minister as Henry VIII. There is a clear common theme coming through every speech in the House today. The issue is whether the Government’s arguments for the use of the powers contained in the various clauses that have been mentioned—my amendments from these Benches, Amendments 24 and 107, relate to Clauses 9 and 15, but there is a broader issue—are credible and whether their desire for flexibility is convincing. As many noble Lords have mentioned, the Delegated Powers Committee did not find them particularly credible and stated:

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


That applies to Clause 15, but we on these Benches believe that the power in Clause 9 should not be there in its present form, either.

We have tried to be constructive. We have put forward a suggestion, as has the noble Lord, Lord Arbuthnot, for the use of the super-affirmative power. That is extremely well known and is enshrined in legislation—so, unlike the noble Lord, we did not feel the need to spell out exactly what the procedure was because it is already contained in a piece of legislation that I will no doubt come across in my notes at some suitable moment. It is now an extremely common and useful way of giving the Government flexibility, while allowing sufficient consultation before any regulations come to the House by affirmative resolution. We recognise that this could be fast moving, so it may be appropriate that the Government have those powers, provided that they are governed by super-affirmative resolution.