Data Protection Bill [HL]

Debate between Lord Whitty and Lord Clement-Jones

Monday 6th November 2017 Lords Chamber

[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.