Data Protection Bill [HL]

Baroness Chisholm of Owlpen Excerpts

Monday 6th November 2017 Lords Chamber

[Lord McNally]

I can imagine how it was when the legislative programme was discussed in the Cabinet Office, or even at No. 10: how on earth do we get all this through? I am sure that the Civil Service advice was—or at least one adviser said—“Well, you could try by Henry VIII powers and lots of secondary legislation. Looking at the present rules, that is the only way that we think you could get it through in that timetable”. And so the process started.

I know that the big problem for Ministers in this House is that there will be great impatience in No. 10 and down the Corridor at any delays or defeats—but, as has been said a number of times, they are going about it the wrong way. We are heading for a constitutional car crash unless there is intervention at the very highest level to look at this problem. It is a twin problem: how do you give flexibility to make legislation fool-proof in a rapidly changing technological situation, which is one of the central problems for the Bill; and how do you deal with Brexit legislation in such a tight timetable?

I know what cannot happen. It would be the irony of ironies if an exercise that was supposed to return sovereignty to this Parliament ended up with this Parliament accepting a whole range of precedents that diminished its sovereignty. Therefore, although it is unfair on each Minister, this debate will continue to take place, and I hope that when we get to Divisions we will put a halt to this solution, so that some really hard thinking will be done about how to achieve the end of the Government getting their business through without sacrificing parliamentary sovereignty.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I welcome this opportunity to set out the Government’s position on various delegated powers contained in the Bill, which have been the subject of recommendations by the Delegated Powers and Regulatory Reform Committee. The Government are very grateful to the committee for its usual thoroughness in examining the delegated powers in the Bill, but I should begin my remarks by saying that the committee’s report, which ran to some 20 pages, was published only on 24 October, so we are still considering its conclusions and recommendations. The range of views expressed in tonight’s debate will be further input into that process.

The current Data Protection Act has stood firm for almost 20 years. This one will be in danger of lasting barely two if we start striking out the delegated powers contained within it. As the noble Lord, Lord Stevenson, and the noble Baroness, Lady Jones, said, such is the pace of change in this area that we need to keep up with what is going on. Furthermore, new forms of data processing not yet dreamed of will have been designed, developed and deployed even before the Bill reaches Royal Assent. It is essential that the law can keep up.

It is also worth reminding ourselves that the Government have taken the opportunity to include directly in the relevant schedules numerous provisions which had previously been included only in secondary legislation. The noble Lord, Lord Stevenson, has been extremely busy, and has taken the opportunity to table more than a dozen amendments to Schedule 1 alone. We will of course turn to those shortly.

That said, the Government recognise that there is tension between the need to provide for appropriate future-proofing of legislation, such as provided for in Clauses 9, 15, 33, 84 and 111, and the need to ensure proper parliamentary scrutiny of the resultant delegated powers. It follows that we are open to constructive suggestions as to how provisions in the Bill can be improved and, obviously, that includes its regulation-making powers.

I have listened with care and interest to the case put forward by my noble friend Lord Arbuthnot, the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones, for the application of the super-affirmative procedure. I am also grateful to the noble Lord, Lord Whitty, for reminding us that data subjects, not just data controllers, have an interest in the proper application of these powers.

I am sure that noble Lords will agree that the amendments before us should be considered in the context of the broader recommendations of the Delegated Powers and Regulatory Reform Committee report. As I said earlier, the process of considering these issues is still ongoing, but I am more than confident that it will conclude in time for the Bill’s next stage.

Before I conclude, I think that the noble Lord, Lord Stevenson, asked what was meant by “legislative measure”. Clause 15(1)(b) uses the term “legislative measure” to reflect the wording used in Article 23 of the GDPR. Recital 41 makes clear that a legislative measure would include an Act or statutory instrument. I hope that that answers the question.

I therefore humbly invite the noble Lord to withdraw his amendment on the understanding that we will return to this important issue on Report.

[Lord Stevenson of Balmacara]

I thank all noble Lords for their contributions; we have had a very good go at this, which has raised all the big issues. The Minister made a positive response, with a sideswipe at me for being too active on the amendment front; but that is what we do, and we expect Ministers to be able to deal with them without too much worry. We are enjoying this debate and will have lots of things to come back to on Report because of the interesting points being made.

However, on this issue, we are slightly narrower. The Government have got themselves into a bit of a hole here. I appreciate the wider context, and the point has been very well made. It seems to me that there are three options. They can tough it out and just say to the DPRRC that it has stepped too far from where they want to be and this is the only way forward. They can follow the DPRRC and find amendments that they can bring back on Report—I think the Minister was talking about Report; later than that would be too late. We are talking here about narrower powers to define down the areas within which discretion is operated. To follow the point made by the noble Baroness, Lady Neville-Jones, and the noble Lord, Lord Arbuthnot—I think this is my noble friend Lord Whitty’s concern and is shared widely around the House—the most egregious issue here is when the Government seek to omit legislation which has been passed as primary legislation by secondary legislation, or legislative measures, as we now call them.

The helpful suggestion, backed up by the noble Lord, Lord Clement-Jones—that we should have a super-affirmative measure when matters are almost of the status of requiring there to be primary legislation, but for which flexibility requires a lesser measure—seems to be the way forward. A very little research shows that “super-affirmative” has many meanings. That chosen by the noble Lord and the noble Baroness, Lady Neville-Jones, is one of about seven or eight. The Public Bill Office has published a table which noble Lords can pore over at leisure and find themselves completely confused at the end about the best route forward. I am sure the clerks will guide us as we go forward down that route. However, the best seems to be the one that provides for amendments to be made to the measure that is being considered before the vote. That is the sensibility which is being assembled around the Committee, and I hope that the Government will take it away and do it.

The noble Lord, Lord McNally, is right: there is a possibility here of a constitutional car crash. It is not restricted to this Bill, and no noble Lords who have spoken in this debate would want it to be taken, sui generis, to this Bill. It has to be taken more widely, because it is a much bigger issue. On the other hand, this provides an opportunity to go forward. In the meantime, I beg leave to withdraw the amendment.