Data Protection Bill [HL]

Baroness Chisholm of Owlpen Excerpts

Committee: 6th sitting (Hansard): House of Lords
Wednesday 22nd November 2017 Lords Chamber

[Baroness Neville-Rolfe (Con)]

I also share the concerns expressed by my noble friend Lord Hunt, based on my experience, both in government and in a number of different businesses. We have the experience not only of the motor sector, which has been talked about, but obviously of PPI, where there was compensation that needed to be paid, but the whole business took years and generated not only claims management companies but also nuisance calls and lots of other harms. This is an area that one has to be very careful about, and I support looking at the drafting carefully to see what can be done, and at my noble friend’s idea of trying to estimate the economic impact—the costs—in terms of those affected. That would help one to come to a sensible conclusion on what is appropriate in this important Bill.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I thank my noble friend Lord Hunt for explaining Amendment 170A and other noble Lords who have spoken. The amendment seeks to clarify the definition of “damage” provided by Clause 159 and its relationship to the language used in article 82 of the GDPR. This is important because article 82 of the GDPR provides a right to compensation when a person has suffered damage as the result of an infringement of the rights during the processing of their personal data.

Currently, the type of damage that can be claimed is broader under article 82 than Section 13 of the 1998 Act, as article 82 expressly extends to “non-material” damage. As a result, in drafting the Bill, the Government considered that some definition of “damage” was necessary, including specifying that it extends to distress, to provide clarity and certainty for data subjects and others as to their rights under article 82.

I stress that Clause 159 does not seek to provide a wider definition of “damage” than is currently provided in the GDPR, and nor indeed could it. The intention is simply to clarify the GDPR’s meaning. My noble friend Lord Hunt asked what estimates have been made of the financial consequences of the increase in litigation, but as Clause 159 does not provide a wider definition of damage there will be no financial consequence.

The concept of “damage” included in the GDPR reflects developments in case law over a period of some years. As such, I cannot agree with my noble friend’s suggestion that the Bill or the GDPR will suddenly unleash a free-for-all of claims. However, I am happy to reflect on my noble friend’s point that the Bill’s use of the term “other adverse effects” may unintentionally provide uncertainty rather than clarity. With the reassurance that I will go away and look at that, I hope my noble friend feels able to withdraw his amendment.

--- Later in debate ---

[Lord Clement-Jones]

My Lords, in moving Amendment 183A I hope to astonish the Minister with my brevity. Clause 172 deals with the avoidance of certain contractual terms related to health records so that,

“A term or condition of a contract is void in so far as it purports to require an individual to supply another person with a record which — … (a) consists of the information contained in a health record, and … (b) has been or is to be obtained by a data subject in the exercise of a data subject access right”.


The NHS has committed to informing patients how their medical records are used. The legal protections in the Bill against an enforced subject access request on a medical record should also apply to such information about that record. Does this provide the required protection? I beg to move.

[Baroness Chisholm of Owlpen]

My Lords, I think that must be a record.

[Lord Clement-Jones]

We try.

[Baroness Chisholm of Owlpen]

It is probably for the best that we are not doing a seventh day in Committee because the noble Lord, Lord Stevenson, has told us that his voice is going and I seem to have an infected eye. Slowly, we are falling by the way, so it is probably just as well that this is our last evening.

This amendment seeks to amend Clause 172, which concerns contractual terms relating to health records. As noble Lords are aware, the Bill will give people more control over use of their data, providing stronger access rights as well as new rights to move or delete personal data. Data subject access rights are intended to aid people in getting access to information held about them by organisations. While subject access provisions are present in current data protection law, the process will be simplified and streamlined under the new legal framework, reflecting the importance of data protection in today’s digital age.

There are, unfortunately, a minority of instances where service providers and employers seek to exploit the rights of data subjects, making it a condition of a contract that a person supplies to them health records obtained through use of their data subject access rights. It is with this in mind that Clause 172 was drafted, to protect data subjects from abuses of their rights. Organisations are able to use provisions in the Access to Medical Reports Act 1988 to gain access to a person’s health records for employment or insurance purposes, and so should not be unduly relying upon subject access rights to acquire such information.

Amendment 183A seeks to widen the clause to include prohibiting contractual terms from including a requirement to use subject access rights to supply a person with information “associated with” as well as “in” a health record. While I can see where the noble Lord is coming from with the amendment and appreciate the willingness further to protect data subjects from exploitation, we are not convinced that it is necessary to widen the scope of this clause. The Government believe that avoidance of contractual terms—that is to say a restriction on parties’ freedom of contract—is not something that should legislated for lightly. Our starting point must be that contractual terms are voided only where there is a known, rather than a hypothetical, abuse of them.

It is also important to point out that the clause has been carried over from the 1998 Act, which has served us well for many years and we are not aware of any issues with its scope. But I will certainly carefully read the noble Lord’s contribution in Hansard, and with this in mind I encourage the noble Lord to withdraw his amendment.